A person will no longer be able to avoid a rape conviction on the basis they honestly but mistakenly believed they had the consent of the victim, under proposed new laws agreed by Government.
The Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 aims to overhaul the law in relation to a variety of sexual offences, including trafficking.
Minister for Justice Helen McEntee secured Government approval to publish the Bill on Tuesday.
A strengthening of the law in relation to consent is one of its key features, designed to reduce reliance on what is deemed a subjective defence.
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Reasonable belief
Under current law, a rape accused can be cleared where they claim to have been honestly but mistakenly under the belief that consent had been given.
The new laws would objectively test whether such a belief would have been held by a reasonable person in the circumstances.
Where the question of reasonable belief arises at trial, the jury must consider what steps were taken by the accused to ascertain whether the victim consented to sex.
“A subjective belief that a person had consent should not be sufficient to be used as a defence,” said Ms McEntee. “This is in line with recommendations of the Law Reform Commission.”
In 2019, the commission published its Knowledge or Belief Concerning Consent in Rape Law report which suggested such changes.
The new Bill forms a “key element” of the Minister’s approach towards domestic, sexual and gender violence.
Changes to the furnishing of written character references are also planned. Where someone intends to offer a reference at a sentencing hearing, it would have to be given on oath or via affidavit. While this is the case with sworn testimony, it is not for written references.
The change is designed to ensure anyone providing the reference swears to the veracity of their statement and can be called before the court for cross-examination. In effect, it will mean character reference letters could no longer be read out in court unchallenged, if warranted, said the Department of Justice in outlining elements of the proposed law.
“The use of character references can often cause further trauma for victims and it is clear to me that we need stronger rules around how they can be used in court,” said Ms McEntee.
Ensuring anonymity
Other areas of victim support are included in the proposals as parts of overall efforts in easing their interaction with the criminal justice system. These would include the provision of separate legal representation in cases where they are to be questioned on previous sexual experience and ensuring anonymity for victims in all sexual offences trials and for the accused in certain cases.
In the area of trafficking, a revised National Referral Mechanism system will be in place to identify and support victims. Under this, multiple departments and agencies, as well as gardaí who operate alone, will help identify those who have fallen victim to trafficking.
The Minister said such an overhaul would make it easier for victims to come forward, be identified and seek support.
The Bill will also give effect to recommendations by the Defence Forces Independent Review Group, in that people who commit sexual offences in the Defence Forces will be dealt with by gardaí and civilian, not military, courts.
Last March 2023, the review group report held that various such offences including sexual assault, aggravated sexual assault and rape be dealt with under civilian institutions. Military law will continue to apply where such offences are alleged overseas.
