Rape law escape clause on consent challenged

A PERSON accused of rape is less likely to be convicted if they genuinely believed the victim consented. Conor Hanley, a lecturer in criminal law, has called for a change in the law which may let some rapists off the hook.

“Legislation defines rape as where a man has sexual intercourse with a woman without her consent and, at that time, knows that she does not consent or is reckless as to that consent. But some men genuinely believe that there was consent, even when the woman was kicking and screaming.

“And if a man genuinely believes this, even if it is completely unreasonable, he must be acquitted. This is obviously untenable. It means in effect that the more warped a man and his view of sex is, the more he is regarded as genuine when he is pleading to have made an honest mistake. This needs to be changed.”

Mr Hanley, a speaker at the Rape Crisis Network Ireland two-day rally in Galway, said the mental element of rape needed to be looked at again.

“At the moment, it is totally subjective and is based on whether the defendant knew the woman was not consenting, but didn’t care less. The prosecution must establish its case by looking at what the defendant himself thought and believed.

“I am saying that the prosecution should have to establish that non-consensual sex occurred in a context where any reasonable person would understand that the woman was not consenting.”

Mr Hanley said the offence needed to be redefined to make it objective, to hold men to a reasonable standard of behaviour, which would in turn require the mistake to be honest and reasonable.

He also said that the term ‘consent’ needed a statutory definition, that case law provided some guidance of what consent meant, but juries were still left unsure from time to time.

“My recommendation would be that a definition of consent be inserted and that certain guidance be given to juries in circumstances where consent did not exist, for example, where serious force was used or threats were made to the victim, such as they would lose their job or fail an exam.”

Mr Hanley has also called for a change in the definition of rape to cover the rape of trans-sexuals. Because it is defined as a man having sexual intercourse with a woman without her consent, it provides no protection for trans-sexuals who, although they underwent a gender re-assignment operation, are still legally regarded as male.