The Dublin Rape Crisis Centre has said the "honest belief" defence for persons accused of rape is "not acceptable" and puts individual rape victims and all of society at risk.
The centre has welcomed a paper published on Friday by the Law Reform Commission which addresses the issue of honest belief and consent.
In Irish law a man is not guilty of rape if he honestly but mistakenly believed that a woman had consented to sex. The defence applies even to cases where the man’s belief is unreasonable.
The commission has invited submissions on the matter and will in due course submit its recommendations to the Government, which asked it to conduct a review.
The commission is looking at whether the law should be changed so that an honest belief would have to be reasonable if it was to provide a defence.
Noeline Blackwell, chief executive of the centre, said that the honest belief defence as it stands goes against everything else that the law says in relation to sex without consent being rape.
She said the “day is gone” when people might unreasonably but mistakenly believe a woman had consented to sex and so not be guilty of rape. “You need to take cognisance of the other person. It can’t be all about you.”
‘Walk out’
“It should not be the case that a man can “walk out of court” with his honest but unreasonable belief intact in a case where a woman had not consented to sex,” said Ms Blackwell.
The defence of honest belief is rarely a deciding factor in rape trials, most of which pivot on whether the complainant in fact consented to the sexual act. However, Ms Blackwell said the existence of the defence is inconsistent with the view that sex without consent is rape.
In its paper, which can be read at www.lawreform.ie, the commission also invites submissions on whether a new law, less serious than rape, might be introduced to cover cases where a man mistakenly but honestly believed that a woman had consented to sex, even though the belief was unreasonable.
An honest, reasonable, but mistaken belief that a woman had consented would still be a defence against charge of rape.
Ms Blackwell said she saw some merit in the idea of a new, lesser law but would like to consider the matter further.
Throughout the UK and in other common law jurisdictions, honest but mistaken belief must be a reasonable one if it is to be a defence against a charge of rape.
The centre said it recognises that allowances may have to be made for diminished responsibility in some cases, and in those cases, conviction on a lesser charge may be suitable.
2The law on rape is clearly based on consent and the law must uphold the obligation on every party to sexual intercourse to ensure that the behaviour is consensual,” the centre said.
