Bill to overhaul Irish laws on consent in rape cases welcomed by advocacy group

Minister for Justice Helen McEntee (Brian Lawless/PA)

A Bill to overhaul and strengthen laws on consent and belief in rape cases has been welcomed by the Rape Crisis Network Ireland (RCNI).

The Cabinet on Wednesday approved changes to the law that will now require a person accused of rape to show they had a “objectively reasonable” belief that they had consent from the complainant to use it as a defence.

It changes the current defence position which requires an accused person to show they honestly believed they had the consent of the victim.

The new law would mean the defence of honest belief has to be objectively reasonable and juries will have regard to the steps an accused took to check if the alleged victim was consenting.

The core piece here is that justice needs to make sense to all of us, needs to be common sense and it needs to be something that we can all support

Cliona Saidlear, chief executive of the RCNI, said the change holds the accused to a standard that is “more fair” to society.

Ms Saidlear said advocacy groups have been campaigning for these changes for more than a decade.

“We really, really welcome these changes and the minister moving on this,” Ms Saidlear added.

“The core piece here is that justice needs to make sense to all of us, needs to be common sense and it needs to be something that we can all support.

“When you have a situation in a courtroom where, on the one hand you can say that you absolutely believe that survivor, that what happens to them is true, but simultaneously that the person who you know did it, that they are not in fact guilty.

“These two things make it difficult for the law to make sense to us. I think one of the things of moving from subjective to objective, what we’re trying to do is we’re saying the standard that we are going to hold the perpetrator to is not their own personal standard, but it is our collective standard.

“I think that’s vitally important.

The Criminal Courts of Justice (Julien Behal/PA) 

“It recognises that if the perpetrator has, for some reason, an honestly held belief but what we would all consider a really unreasonable understanding of consent, for example, we can say, no, that’s just not reasonable. It’s just not reasonable that you thought that.

“I think it’s about holding the perpetrator to a standard that feels more fair to all of us.

“This will prove itself in that we will have less of the cases where we look at it and go that doesn’t make sense.

“So in many ways, this will take time to prove itself in terms of the confidence of survivors.”

The change also proposes to remove self-intoxication as a defence to a rape charge.

Justice Minister Helen McEntee said: “At the moment, if a person is accused of rape – and this would apply to a man or a woman, so it’s not specific to a man in this instance – if a person is accused, they can say that they honestly believed at the time that the person was consenting.

“But they don’t have to show that they went to any lengths or any steps to actually know that that person was consenting.

“So they didn’t ask, they didn’t have a conversation prior to or during anything happening,

We would now have an objective test so that a person will have to show that they went to reasonable lengths, that a reasonable person would think well, yes, that person was consenting

“So they can say it’s a subjective test, which means it’s based on their feelings, their thoughts, their views.

“What we are proposing, and this is based on a recommendation that was made a number of years ago, it was then upheld and presented to me through a report, as to how we can strengthen the criminal justice system for victims to encourage them to come forward.

“We would now have an objective test so that a person will have to show that they went to reasonable lengths, that a reasonable person would think well, yes, that person was consenting.

“They did engage with them, they did talk to them, and that a jury would be convinced that that person has taken those steps.

“It can’t just be a case where I thought that person was consenting.”

Ms McEntee said the changes mean there will be an onus on the accused to show they took reasonable steps to confirm consent and that a reasonable person would believe there was consent.

The Bill would also see anonymity in trials for victims and accused in all sexual offence cases.

Ms McEntee added: “The whole reason for these changes in this Bill, it’s about supporting victims and encouraging people to come forward.

“At the moment you can access separate legal support for advice in a rape case in certain circumstances. We’re now extending that to sexual offences cases as well.”