Moves to define ‘consent’ in cases of sexual violence

Cliona Saidlear: We need to look to England and Wales.

The introduction of a statutory definition for consent is being examined by the Department of Justice and Equality.

The issue of consent in cases of sexual violence is a major grey area in Irish law as there is no statutory definition for it.

“Introducing a statutory definition of consent is a matter which is under review in the department,” a spokeswoman from the Department of Justice told the Irish Examiner.

This news follows the publication of the Criminal Law (Sexual Offences) Bill 2015, which referred to consent but failed to define it. As it stands, there is only a reference to consent in Irish law.

The department spokeswoman said: “Section 9 of the Criminal Law (Rape) (Amendment) Act 1990 confirms that the failure to offer resistance does not amount to consent. Otherwise, the issue of what is or is not consent has been developed through case law. The courts have confirmed that consent requires voluntary agreement by a person at the age of consent and with the necessary mental capacity.”

The Rape Crisis Network of Ireland (RCNI) has long lobbied for a statutory definition for consent. Head of RCNI, Cliona Saidlear, said we need to look to England and Wales for a definition.

“RCNI recommend a definition similar to that adopted in England and Wales in their 2003 Sexual Offences Act, at section 74, namely: ‘A person consents if he agrees by choice, and has the freedom and capacity to make that choice’,” she said.

The most recent figures from RCNI indicate just how crucial a clear definition for consent is.

In 2014, just 1% of sexual violence against children under the age of 13, was committed by a stranger. For people between the ages of 13 and 17 inclusive, only 6% of crimes were carried out by strangers and for people over the age of 18, approximately 14% of their offenders were unknown to them.

“The typical conversation is: ‘Well it wasn’t in an alleyway, I don’t know if I should ring you’. The message we need to get through here is that having someone give in to your advances is not consent. If someone chooses a lesser sexual act as a way of avoiding a bigger sexual ask, that is not consent,” said Ms Saidlear.


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