Current laws that lets a man accused of rape be acquitted if he honestly believes the woman consented to sex, even where she did not, should be removed, the State’s legal advisory body has recommended.
The Law Reform Commission said the defence of ‘honest belief’ by the accused should be replaced with a provision that such a belief must be ‘reasonable’.
Where an accused argues that he had a reasonable belief that the woman consented to sex, the commission recommends the jury in a trial should consider: A “specific list of circumstances” relating to the personal capacity of the accused including any physical, mental or intellectual disability; any mental illness; and his age (eg if he is a juvenile) or maturity; What steps the accused took to ascertain if the woman consented to sex.
The commission conducted a detailed examination of the law after the attorney general requested it to do so in 2017 following a Supreme Court ruling that the law centred on what an individual (the defendant) believed in relation to consent, rather than if it was a reasonable belief.
The Supreme Court said that an “honest, though unreasonable, mistake that the woman was consenting is a defence to rape”.
The commission said its work ran parallel to other inquiries, including a Department of Justice expert working group on the investigation and prosecution of sexual offences.
Justice Minister Charlie Flanagan set up this group in September 2018, under the chair of law lecturer and commission member Tom O’Malley following the outcry over the Belfast rape trial last year and the subsequent establishment in the North of the Gillen Review.
The commission said its examination was also against the background of ongoing concerns over the high attrition rate between reports of sexual violence to gardaí and prosecution before the courts.
It also examined concerns at the impact of ‘rape myths’ and cited a 2016 Eurobarometer survey which indicated that a fifth of Irish respondents thought that having sex without consent might be acceptable in certain situations, including where a person voluntarily went home with someone, for example after a party or a date, or where the woman was wearing revealing or provocative clothing.
The commission said the clothing that women wear is raised in trials and cited the case highlighted in the Irish Examiner in November 2018 in which the defence counsel raised the type of underwear worn by the complainant.
The commission said all of this highlighted the key issue of consent, saying: “As the law currently stands in Ireland, sexual intercourse where actual consent is not present may be lawful where a jury concludes that the man honestly believes the woman was consenting even if this was not the case.”
Its report, Knowledge or Belief Concerning Consent in Rape Law, said: “In order to secure a conviction for rape, the prosecution must prove beyond a reasonable doubt that the accused either knew that the complainant did not consent or else was reckless as to her consent.”
The commission said there was a longstanding common law presumption of the need to prove the intention or knowledge of the person in serious crimes, although not all such crimes, including manslaughter.
The commission received submissions from people regarding cases where the complainant was “frozen in fear” and that this silence could be interpreted as consent and that this honest belief could even encourage men not to check that the woman was consenting.
It said that the arguments against the current law “greatly outweigh” the arguments in favour. It said the current law appeared to “place a premium on ignorance, lack of consideration or insensitivity”.
The 117-page report contains a draft Criminal Law (Rape) (Amendment) Bill 2019.