The Government is to introduce a definition of consent into the Irish law on rape.
The decision came as a seven-judge sitting of the Supreme Court issued a lengthy consideration of the issue on Friday, in an appeal by a man who was convicted of raping his mother.
He had claimed she had consented, but the man’s appeal was dismissed.
Calls for the introduction of a definition of consent in Irish legislation go back to the 1980s, when it was recommended by the Law Reform Commission.
Other jurisdictions, including England, have already introduced such definitions.
In Irish law, a man has raped a woman if she had not consented to intercourse and he knew this, or was reckless as to whether the victim did or did not consent. Consent has been defined by the courts, but not by the Oireachtas.
Following the Supreme Court judgment on Friday, a spokesman for Minister for Justice and Equality Frances Fitzgerald said a statutory definition of consent, taking account of the judgment, would be brought by way of amendment into the Criminal Law (Sexual Offences) Bill.
The Bill is currently going through the Oireachtas.
Ethical message
The introduction of the definition would not necessarily change how rape cases are prosecuted in the courts.
However, barrister and Law Reform Commission member Tom O’Malley said it would “send out an ethical message that this is what the State regards as consent”.
He added that, as matters stand, if a woman is asleep or so intoxicated or under the influence of drugs that she is not capable of giving consent, then there is no consent.
The fact that the accused man was also intoxicated or drugged cannot be a defence.
Law lecturer Dr Susan Leahy, of the University of Limerick, said consent was the dividing line between sex and rape and it was appropriate that it should be defined in legislation.
“We will now have a benchmark we can work towards,” she said.
It was often the case, when discussing the issue with students, that their first question was how the matter was defined in Irish law, she said.
The fact that there was no definition, she added, said something about Ireland’s view on the matter.
Along with a range of other examples, English law says that a woman has not consented if she was too affected by alcohol or drugs to agree freely to sexual activity.
Ruling
The Supreme Court ruling outlined how Irish law allows for the defence of a subjective “honest belief” on the part of the accused that the victim had consented.
It also noted that Irish law says the presence or absence of “reasonable grounds for such a belief” was something a jury should have regard to.
Noeline Blackwell, chief executive of the Dublin Rape Crisis Centre, welcomed the court's clear statement that lack of consent was equal to rape.
Given that it took a question to a seven-judge Supreme Court to secure an up-to-date answer on the Irish law on consent, and that the answer was still very complex and case-specific, it was more important than ever that the Government used the legislation currently going through the Dáil to clarify what is meant by consent, she said.
