A seven-judge Supreme Court will rule later on an important appeal concerning what positive obligations apply to men charged with rape who plead they believed there was consent to sex.
The DPP also wants the court to consider whether, in particular cases of alleged rape, an accused is obliged, before any sex, to ascertain there was actual capacity to consent.
Tom O’Malley BL, for the DPP, said consent is “the minimum required of any respectful interaction between human beings”.
It would be helpful for the Supreme Court to clarify there must be a genuine basis for consent in circumstances including where some hold views a woman may be so “out of it” consent is irrelevant, he said.
The appeal concerns a man jailed for 12 years after being convicted of raping his mother, aged in her 60s. He denied rape and pleaded he honestly believed she consented to sex, a claim she rejected.
After the Court of Appeal dismissed his appeal against conviction, he sought a further appeal to the Supreme Court. It agreed to hear an appeal after stating, given the importance of the protection of women from sexual violence, the precise definition of the mental element of rape is “a matter of general public importance”. The presentation of that definition to a jury was also important, it said. Consent, as a matter of fact, “may carry positive obligations for a man to ascertain where the issue of consent by the woman to sexual intercourse stands”, it added.
It certified two questions for determination in the appeal, heard and concluded on Monday. The Chief Justice, Ms Justice Susan Denham, said the court was reserving judgment.
The first question is whether the mental element of rape can excuse a situation where, on unreasonable and irrational grounds, a man genuinely believed a woman consented to sex when in fact she had not.
The second asks whether, within the legal definition of rape, there is a legal requirement for a man to ascertain, prior to sex, the woman is (a) capable of consenting and (b) she has consented.
The case concerns Section 2.2 of the 1981 Rape Act which states, when a jury has to consider whether a man believed there was consent to sex, “the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed”.
Maurice Collins SC, for the man, said it was never part of the case against his client his mother was not capable of giving consent and the DPP’s submissions effectively asked the court to strike a different balance than provided for in Section 2.2.
The Oireachtas had legislated for a test of belief there was consent, not a test of “reasonable” belief and, where there is reasonable doubt whether or not there was honest belief there was consent, there must be an acquittal.
Mr O’Malley said, where a rape accused pleads a belief there was consent, a jury was entitled to take into account the presence or absence of reasonable grounds for that belief.
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