Report proposes charge on mistaken ‘consent’

By Joe Leogue

A new proposal may see someone prosecuted under a less serious charge than rape if they mistakenly but unreasonably believed they had the consent of a person with whom they had sex.

The Dublin Rape Crisis Centre (DRCC) has welcomed the publication by the Law Reform Commission of a paper on issues around consent in rape law.

The commission, the watchdog responsible for reviewing laws, is seeking submissions on four aspects of existing rape laws, specifically on issues surrounding belief and consent.

In announcing the Issues Paper on Knowledge and Belief Concerning Consent in Rape Law, the commission highlighted how, under current law, “a man commits rape if he has sexual intercourse with a woman who at the time does not consent to it, and at the time he knows that she is not consenting or is reckless as to whether she is or not”.

The commission said that, as it stands, “an honest, though unreasonable, mistaken belief that the woman was consenting is a defence to rape; but the man’s belief must be ‘genuine’ and ‘not obviously false’.

“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 that would include more objective elements.”

said the commission.

Speaking on RTÉ Radio 1’s Morning Ireland programme, Tom O’Malley of the commission said an option of “gross negligence rape” is under consideration.

“In other countries, they have changed the law to provide that it isn’t sufficient for the person to have an honest belief, which could be quite legitimate, but at the same time it might be entirely unreasonable in the circumstances,” said Mr O’Malley. “And to insist that the person’s belief is reasonable as well as honest.”

The four issues at the centre of the Issues Paper are:

  • Whether the current law relating to knowledge or belief should be retained;
  • Whether an objective or “reasonable belief” element should be added to the definition of rape;
  • Whether the law might be reformed so as to make mistaken belief in consent a defence;
  • And whether 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”.

The publication of the document was welcomed by the DRCC, which said it has been concerned about the existing law for some time.

“In law today, a person who convinces a jury that he honestly believed the victim was consenting to sex will be acquitted of rape, even if that belief is clearly not reasonable,” the DRCC said in a statement.

“At Dublin Rape Crisis Centre, we say that the current standard is not acceptable and puts individual victims and all of our society at risk. Rather the test should be that an accused person’s belief in consent was ‘reasonable’, so that there is some element of rationality to a person’s belief. This is the standard used throughout the UK and elsewhere.

“The centre recognises that allowances may have to be made for diminished responsibility in some cases, and in those cases, conviction on a lesser charge may be suitable. However, the centre stresses that the time where a person can be acquitted simply based on their own honest, unreasonable belief has passed.”

The law on rape is clearly based on consent and the law must uphold the obligation on every party to sexual intercourse to ensure that the behaviour is consensual,” the DRCC said.

Justice Minister Charlie Flanagan welcomed the paper’s publication, and said a review of protections for vulnerable witnesses in the investigation and prosecution of sexual offences will begin shortly “and the findings of the report will inform further proposals in this area”.

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