Give Me a Crash Course In… new consent laws in rape cases

What changes did the Cabinet approve this week?

Minister for Justice Helen McEntee this week received Cabinet approval to strengthen the law on consent, knowledge and belief in rape cases, by changing the current situation where an accused person is not guilty of rape if they honestly believed that they had consent.

What has the position been up to this point?

Under current law, the accused’s own subjectively honest but mistaken belief that the victim was consenting is a defence to rape. A new Bill will amend the fault or mental element — that is, what is in the mind of the accused — of the rape offence by adding that the accused commits rape if, at the time of the sexual intercourse, the accused does not “reasonably believe” that the victim was consenting.

So, effectively the change removes some of that subjective element of belief and places an obligation on the accused to show they objectively considered whether consent was given?

Yes: a person accused of rape will have to show they had an “objectively reasonable” belief that they had the consent of the victim to have a defence in law.

Why have reports this week referred to a man specifically as the accused?

The changes proposed will be made to existing laws from 1981 that specifically refer to “a man” committing rape. For example, under the section detailing what the meaning of rape is, the legislation says: “a man commits rape if — he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it” among other definitions. That is why the changes mentioned this week also refer specifically to a man in this context.

The Department of Justice intends to further amend the laws to update them to include men and women as perpetrators.

What prompted the Government to act on this now?

This Government and the last one have been considering the matter on foot of a number of reports and calls for action from advocacy groups. In 2019, the Law Reform Commission recommended that men should no longer be able to use the claim that they “honestly believed” a woman had consented to sex as a defence in rape trials. The report was sought by the former attorney general, Séamus Woulfe, after the Supreme Court confirmed in 2016 that an “honest, though unreasonable mistake that the woman was consenting, is a defence in rape”.

The Dublin Rape Crisis Centre has previously said the “honest belief” defence for people accused of rape is “not acceptable” and puts individual rape victims and all of society at risk.

Are there any other big changes planned in how trials around rape and sexual assault are handled?

Yes, some big changes are in the works. Anonymity for victims in all trials for sexual offences will be guaranteed and extended to additional offences specifically targeting vulnerable victims, including people with mental illness or a mental or intellectual disability. Anonymity for the accused will also be provided for in case they are found not guilty of the offence. If an accused person is convicted of a sexual offence, they may be identified unless it would lead to the identification of the victim. The public will be excluded from the courtroom for sexual offence trials but this will not impact the ability of the media to report the trial, verdict and sentence.

Anything else?

The victim’s right to separate legal representation if there is an application to question them on their previous sexual experience will be extended to include trials for sexual assault offences, not just rape offences as is currently the case.

If you have been affected by any of the issues raised in this article you can contact the Rape Crisis Helpline (1800-778888)

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