Cabinet to approve bill to change law around consent and belief in rape cases

Justice Minister  Helen McEntee at the launch of the Government's Zero Tolerance strategy to combat domestic, sexual, and gender-based violence or the attitudes which underpin it. Picture: Maxwells

Ministers are due to sign off on a bill to change the law on consent, knowledge, and belief in rape cases.

Justice Minister Helen McEntee is bringing forward proposals that will alter the current situation where an accused is not guilty of rape if he honestly believed that he had the consent of the complainant.

This defence will now have to be found to be "objectively reasonable", meaning juries will have to have regard to the steps the accused took to check whether the complainant was consenting, as well as the accused’s decision-making capacity at that time.

In assessing an accused person's capacity, juries will be asked to consider any physical, mental, or intellectual disability of the accused, any mental illness, as well as the age and maturity of the person on trial.

The bill will also include the provision that self-induced intoxication will not be a defence to a charge of rape in relation to an accused’s capacity to understand if he had consent or not.

In addition, the bill will also provide for anonymity for victims and the accused in all trials for sexual offences — and not just in rape trials, which was a recommendation of the O’Malley Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences.

Safe Access Zones at abortion providers

Meanwhile, Health Minister Stephen Donnelly will seek Cabinet approval for legislation to introduce ‘Safe Access Zones’ outside GP practices, hospitals, and other facilities that can provide abortion services.

It is understood that the Department of Health will engage directly with the DPP, the Irish Human Rights and Equality Commission, and the Irish Council for Civil Liberties, seeking any observations they may have on the General Scheme, which will be considered in the drafting of a final bill.

There have been protests outside some maternity hospitals and a recent study reported that one-in-seven women who accessed, or tried to access, a termination of pregnancy had encountered anti-abortion activity.

The legislation proposes a 100m Safe Access Zone around healthcare facilities that can provide a termination of pregnancy, and not just those that currently do.

Within the zones, any activity that is intended to, or may reasonably have the effect of, influencing the decision of a person in relation to availing of, or providing services relating to termination of pregnancy will be prohibited.

Sources have said this would cover the type of activity that has been seen outside the National Maternity Hospital where tiny white crosses and coffins have been displayed.

Mr Donnelly will also bring a memo on Covid-19 testing and tracing, looking at a possible phasing out of the current testing system.

Tuam excavation

Separately, Children's Minister Roderic O'Gorman bring a memo to establish an Office of Director of Authorised Intervention, to oversee and manage the excavation and recovery at the former Tuam Mother and Baby Home.

However, this will also require the approval of the Dáil and Seanad when both Houses return in September. 

Between now and the time that it is passed, environmental screening on the site will be completed, as well as preparatory work for the recruitment of the director and the establishment of the Advisory Council.