Clarity on rape consent as appeal dismissed

A seven-judge Supreme Court has dismissed a man’s appeal against his conviction for raping his mother on Mother’s Day.

The judgment provides guidance for judges in explaining to juries the law on rape, including in relation to defences based on an alleged belief by an accused that a woman consented to sex. An alleged belief a woman “might” be consenting to sex is not a defence, the court stressed.

The man had claimed he genuinely believed his mother, aged in her 60s and with mobility problems, had consented to sex. She was adamant she had not. He was convicted by a jury in 2012 and jailed for 12.5 years.

In opposing his appeal, lawyers for the DPP said it would be helpful for the Supreme Court to clarify that there must be a genuine basis for consent in circumstances including where some hold views that a woman may be so “out of it” that consent is irrelevant.

Giving the unanimous judgment, Mr Justice Peter Charleton said the incident happened in 2008 after the man called to his mother’s home. She was in bed, having been out earlier with relatives for a Mother’s Day meal. She got up, both consumed some “strong drink”, and started dancing. She was also on medication and told the jury she ended up on the floor with her son on top of her having sex with her.

She said that was not consensual. He claimed it was consensual.

Mr Justice Charleton said rape is “a terrible violation of a woman’s physical and mental integrity”.

The trial judge, in his charge to the jury, misstated the law by a mistaken reference that a belief by the accused that a woman “might be consenting” rendered non-consensual sex somehow not a crime, he said. A woman “has a constitutional right to her bodily integrity” and, as a matter of law, there must be a lack of consent by a woman.

Sexual intercourse in such circumstances can only be excused if an accused honestly believed the woman was actually consenting, “not merely that she might be”, the judge said.

A proper consideration of the mental element in rape demonstrated the trial judge mistakenly stated the defence case in terms of law too widely but in favour of the accused, he said. As no error against the accused was identified, his appeal would be dismissed.

The judge said the model chosen in the Criminal Law (Rape) Act 1981, amended, adopted not what a “reasonable man” believed concerning whether there was consent, but rather what an individual accused believed.

He said trial judges need to state no jury is “under any obligation to believe an obviously false story” and is entitled to accept or reject prosecution or defence evidence. Where defences of mistaken belief in consent are advanced, every jury is entrusted to judge what the accused claims to be a mistaken belief, against the view of what an ordinary or reasonable man would have realised in the circumstances. This defence requires “genuine belief”.

“Lack of consent constitutes rape,” he added.

Dublin Rape Crisis Centre CEO Noeline Blackwell said: “We welcome the clear statement of Irish law by the Supreme Court that lack of consent is equal to rape. What the judgment also shows is that our law on consent needs to be strengthened. The court found that an honest belief by an accused that the woman consented would be a good defence for the accused, even if the belief is unreasonable.”