Law Reform Commission wants public input into reform of rape law

The paper wants views on four issues relating to the mental element of rape

Law Reform Commission wants public input into reform of rape law

A general view of the defendant's seat at the Courts of Criminal Justice in Dublin | Image: Niall Carson/PA Archive/PA Images

Updated 14:40

The Dublin Rape Crisis Centre has welcomed a new plan to seek the views of the public of Ireland’s rape laws.

The Law Reform Commission (LRC) today issued a paper on the knowledge and belief of consent in rape law.

It is looking for public input into potential reforms of the law.

It is examining the question of whether a person should be entitled to be acquitted of rape, if it is found that they honestly believed that the complainant was consenting.

The issues paper examines a range of options - including whether the accused's belief in consent should be objectively reasonable and/or whether the accused should be required to take "reasonable steps" to confirm that the woman is consenting.

The commission has prepared the paper in response to a request from the Attorney-General.

Dublin Rape Crisis Centre CEO Noeline Blackwell said rape survivors will trust the justice system more if there is more clarity surrounding the law.

“The more we solve these kinds of ancient anomalies in the law, the clearer it will be for everyone,” she said.

“The easier it will be to get everyone into a place where everybody knows that sexual intercourse only happens where there is consent.

“If there is not consent – it is rape.”

Vulnerable witnesses

This afternoon, the Minister for Justice Charlie Flanagan welcomed the call-out for submissions.

He said it is essential that the law on consent is “clear and unambiguous.”

“I am acutely conscious of the particular vulnerability of victims of sexual violence during the court process,” he said.

“A number of measures have been introduced in recent years to provide greater protections to victims in these instances, but I am aware that there may be further issues to address.

He said a review of the protections for vulnerable witnesses in sexual offences cases will begin shortly with the findings of the LRC report set to “inform further proposals in this area.”

Consent

The current law states that an honest, though mistaken, belief that a person had consented is a defence to rape - but the accused's belief must be "genuine" and "not obviously false."

The LRC says the Attorney-General's request also comes against the background of wide-ranging reform of the law on sexual offences in the Criminal Law (Sexual Offences) Act 2017.

This act made significant amendments to the general law on consent in rape and other sexual assaults.

The Oireachtas debated whether to include reform of the law about knowledge or belief in the 2017 act - but it decided to refer it to the commission.

The commission is therefore required to assess whether the current, "primarily subjective", test as to knowledge or belief should be retained - or whether a different test should be put in place.

Four elements

The paper seeks views on four issues relating to the mental element of rape.

  • Issue one asks whether the current law relating to knowledge or belief should be retained. If people believe this aspect should be amended, they will be asked to consider a number of possible options
  • Issue two examines whether an objective or "reasonable belief" element should be added to the definition of rape. Under this reform option, an accused's belief in consent would have to be both honest (as under the current, primarily subjective, test) and reasonable (thereby importing an objective element) in order for him to be acquitted
  • Issue 3 examines whether the law might be reformed so as to make mistaken belief in consent a defence. Under the current law, the absence of belief in consent is an element of the offence which must be proved by the prosecution. Under the option being examined here, an accused, in order to rely on the mistaken belief defence, would have to establish that he took "reasonable steps" to ascertain whether the complainant was consenting
  • Issue 4 asks if there is any merit in the idea of having a separate offence, less serious than rape, to cover a situation where an accused honesty but unreasonably and mistakenly believed that the complainant was consenting. Such an offence might tentatively be described as "gross negligence rape"

The commission also looks briefly at the separate but related issue of self-induced intoxication.

Under the law as it stands, a person accused of rape cannot rely on self-induced intoxication - whether due to alcohol or drugs - to escape criminal liability.

The LRC says: "Many offences, including sexual offences, are committed by persons acting under the effects of alcohol or drugs, and the Irish courts have consistently held that it would be contrary to public policy to allow them to escape criminal liability on that account.

"The commission asks if it should be expressly stated in legislation that self-induced intoxication is not a defence to a charge of rape."

The issues paper is available on the commission's website.

Interested parties are asked to submit feedback via e-mail to ag47@lawreform.ie before the close of business on October 26th.

With reporting from Michael Staines ...