‘Honest belief’ defence should no longer be allowed in rape cases

One year after the #MeToo movement swept across the globe, we have reached an important moment in this country regarding the law of rape. The Law Reform Commission is inviting views on possible reforms to the law of rape.

One of the proposed changes relates to what’s called the “honest belief” defence to rape.

Under current law the crime of rape has been committed if a man penetrates a woman without her consent, and knew or was reckless as to the absence of consent.

It is a defence to say he honestly believed her to be consenting.

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In practice this means that even if it is conceded that non-consensual intercourse took place, no crime has been committed if the man honestly believed the woman was consenting, no matter how unreasonable or bizarre that belief.

Of course, a jury might say that the belief that is claimed was so unreasonable that they do not accept it was honestly held; there is no requirement to believe the unbelievable.

But ultimately there is a burden on the State to show, beyond a reasonable doubt, that such an honest belief did not exist.

I think it is fair to say that if we were creating the law of rape from scratch we would not start here.

This law is the product of a long patriarchal history in which female sexuality was seen as something for men to take, and not as something of and for the enjoyment of women

This law is the product of a long patriarchal history in which female sexuality was seen as something for men to take, and not as something of and for the enjoyment of women.

Furthermore, the myth that “rape. . .is an accusation easily to be made . . . and harder to be defended by the party accused, tho never so innocent” (as Lord chief justice Hale put it in the 17th Century) still abounds.

We see it in how women are questioned about their clothing, alcohol consumption and conduct in our courts. The idea that an unreasonable but honest belief of consent should excuse a man from legal guilt for rape is part of the legacy of this mindset.

What if we started somewhere else? What if, instead of asking what a man believed, we asked what a woman experienced?

The #MeToo movement might have brought the scale of rape and sexual violence to “society’s” attention, but most women were unsurprised.

Scale of harassment

Women everywhere were already aware of the scale of harassment, abuse and violence.

After all, it is the canvas against which many make every day decisions, from whether to walk or take a bus, to what to wear going out.

This has been underlined by studies at NUI Galway published this week where 70 per cent of female students experience harassment by the time they have finished third-level education.

Speak to the women in your life and they will also affirm that on dates, in relationships and marriages, and in encounters with strangers the use of cajoling, coercion, guilt, shame and force to “get” sex is widespread.

The vast majority of women who experience this violence do not report it, feeling they won’t be believed or, even if they are, that women’s truth is not enough to establish men’s culpability.

Rights of the accused

As a feminist I want to make law that starts with that truth, and then builds in the safeguards needed to protect the rights of the accused.

It seems to me that a “reasonable belief” defence would achieve that balance.

It would still allow for a defence, but one that demands rather more of men than a mere honest belief. With such a standard we would, instead, demand reasonable behaviour of men in their sexual lives.

One hopes that would trigger a change in dynamics in rape trials. For too long, it is women who have felt on trial in these cases, interrogated about every part of their behaviour to explore the “honesty” of their assailants’ beliefs.

Instead of asking whether the accused believed the woman consented, we could ask whether it was reasonable to believe this against societal norms of behaviour.

For most of us, those norms are already way ahead of the criminal law.

If a woman is physically unresponsive and weeping it is not reasonable to believe she is consenting to sex.

The reasonable course of action is to stop and ask her, to communicate, to show care.

It is time that our criminal law communicates clearly that what distinguishes sex from violence is consent.

Full and free partners

Men have a responsibility to ensure their sexual partners are full and free partners in sexual activity. Politicians have a responsibilty to ensure the law makes that clear. Changing from “honest” to “reasonable” belief in the law of rape would be a good start.

Such legal change would support behavioural change whereby consent is ongoing, mutual and freely given, OMFG, as is currently being promoted by students and academics in NUI Galway on the back of their research. Dr Katherine Zappone is Minister for Children and Youth Affairs