Definition for consent could be brought into law

A definition for consent may be inserted into law, according to Tánaiste and Justice Minister Frances Fitzgerald.

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

The Criminal Law (Sexual Offences) Bill 2015 is progressing through the Oireachtas, but a definition for consent was not included in it during the draft stages.

The Department of Justice has until now said the matter was “under review”.

Ms Fitzgerald was asked by the Irish Examiner at a recent One in Four event if a definition was going to be included.

“We’re examining that and if it’s possible to do that, if we feel it’s in the interest of victims, we’ll go ahead and insert that at committee stages of the Sexual Offences Bill,” she said.

At the moment there is only a reference to consent in Irish legislation.

Section 9 of the Criminal Law (Rape) (Amendment) Act 1990 states 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 Department of Justice has previously said that the courts have confirmed that consent requires voluntary agreement by a person at the age of consent and with the necessary mental capacity.

This legal grey area and the lack of legislative clarity has been heavily criticised in the past by sexual violence support groups.

The Rape Crisis Network of Ireland recommends a definition similar to that adopted in England and Wales in their 2003 Sexual Offences Act, at section 74.

It is defined as: “A person consents if he agrees by choice, and has the freedom and capacity to make that choice.”

Joanna Fortune, a child and adolescent psychotherapist, said that our young adults find it difficult to define consent.

Ms Fortune said they are confusing relenting to a sexual act after pressure has been applied, to consenting to one.

“Relenting is the grey area of consenting, at least among young people who find it hard to define that as non-consensual or assault,” she said.

“It feels uncomfortable and wrong and they can often experience the type of anxiety and trauma-based reactions sexual assault victims do.”

“When people feel backed into a corner you’re either going to fight your way out of it, or get out as safely as possible. They think, ‘I’m going to have to do something because I agreed to bring him to my house.’ But you can say no and walk away.”

Ms Fortune, who works with young adults in her practice Solamh, which is based in Dublin, also gives talks on the matter to schools.

She says that young adults are increasingly resorting to “giving in” to a sexual act as a way of defending themselves.