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 Law Reform Commission has said.
A more objective test should be introduced for cases where a man claims he believed the woman consented to sex, the commission said in a report published on Friday.
The report, Knowledge or Belief Concerning Consent in Rape Law, is concerned solely with the law on non-consensual sexual intercourse between a man and a woman.
Other types of serious sex offence, such as crimes involving a male victim or other types of penetrative sexual assault, are to be the focus of a separate study.
The report was sought by the 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”.
Precaution
The commission has recommended that the law be changed so that it must be shown by the prosecution that the man did not “reasonably believe” the woman had consented.
It also recommends restricting the range of circumstances a jury can consider when the defence of reasonable belief has been raised.
The only issues that should be considered are whether the man had a physical, mental or intellectual disability, or mental illness, which meant he lacked the capacity to understand whether the woman was consenting.
Maturity
Similarly, the jury should be allowed consider whether the age or level of maturity of the accused. Children as young as 10 can be convicted of rape.
The commission recommended that the law should not be changed in regard to self-induced intoxication. An accused cannot claim they lacked the capacity to understand if the alleged victim was consenting because of self-induced intoxication.
