Rape law should be reformed to have ‘primarily objective’ consent test

Rape law should be reformed to have 'primarily objective' consent test

The law on rape should be reformed to provide for a primarily objective test on whether an accused believed the woman was consenting to sex, rather than the current primarily subjective test, the Law Reform Commission has said.

The commission’s Report on Knowledge and Belief Concerning Consent in Rape Law will be formally launched at its offices this afternoon.

Justice Minister Charlie Flanagan has said his department will “immediately” begin work on legislation to implement the recommendations of the report.

The Attorney General asked the law reform body to look at the law concerning knowledge or belief in consent under section 2 of the Criminal Law (Rape) Act 1981 after the matter was discussed during wide-reaching reforms in 2017.

The Criminal Law (Sexual Offences) Act 2017 made significant amendments to the general law on rape and other sexual assault offences, but the Oireachtas decided to refer the law concerning knowledge or belief under section 2 of the 1981 Act to the Law Reform Commission for further analysis.

The current law is that a man commits rape if he has sexual intercourse with a woman who at the time does not consent to it, and at the time he knows that she is not consenting or is reckless as to whether she is or not.

If the accused asserts that he believed the woman was consenting, the test is whether he “honestly” or “genuinely” believed this.

In The People (DPP) v C O’R (2016), the Supreme Court confirmed that the test to be applied is primarily subjective. This means that attention is focused on what the particular accused actually (subjectively) believed, rather than on whether his belief in this regard was one that a reasonable person would have held in the circumstances. Therefore, the Court confirmed that an “honest, though unreasonable, mistake that the woman was consenting is a defence to rape”.

The Law Reform Commission has made a number of recommendations to replace the current primarily subjective test with a primarily objective test, having regard to certain subjective elements.

First, the fault or mental element of the rape offence in section 2 of the 1981 Act would be reformed by adding that the accused man commits rape if, at the time of the sexual intercourse, he “does not reasonably believe” that the woman was consenting.

Secondly, where the question of reasonable belief arises in a rape trial, the jury is to have regard to a specific list of circumstances related to the accused’s personal capacity, and only those circumstances, introducing a subjective element to the test.

Thirdly, where where the question of reasonable belief arises, the jury is also to have regard to the steps, if any, taken by the accused man to ascertain whether the woman consented to the intercourse.

The Commission also recommends that the current law on self-induced intoxication, in which it is not a defence to a charge of rape where the intoxication means that the man lacked the capacity to know whether the woman was consenting, should be retained.

Welcoming the report, Mr Flanagan said: “Ireland’s law on sexual offences has been greatly reformed in recent years; however the difficult issue of consent has been one area that needed further attention.

“The detailed recommendations in the report will now be addressed as a priority by my department and work will begin immediately to develop the necessary legislative proposals arising from the recommendations of this report.”

He added: “The work of the Law Reform Commission is part of a wider reform of the law on sexual offences in Ireland. I look forward to the completion of the review of the investigation and prosecution of sexual offences currently being chaired by Tom O’Malley BL. This review is at an advanced stage and is expected to be completed by the end of the year.”

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