Rape accused will have to show consent belief was ‘objectively reasonable’ under new reforms

A person accused of rape will have to show they had an “objectively reasonable” belief that they had the consent of the victim to have a defence in law under new plans due to be approved by Cabinet on Wednesday.

Minister for Justice Helen McEntee will bring a memo to Cabinet on Wednesday morning seeking to overhaul laws on consent, knowledge and belief in rape cases.

Under the plans, the new legislation will change the current situation where a person is not guilty of rape if they honestly believed they had the consent of the victim.

The changes proposed will be made to existing laws from 1981 which specifically refer to “a man” committing rape. The Department of Justice intends to further amend the laws to update them to include both men and women as perpetrators.*

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The accused’s defence that the man believed the woman was consenting will instead have to be objectively reasonable. Effectively this will mean that juries will take into account the steps the accused took to check whether the woman was consenting. There will also be a new provision in the legislation that self-induced intoxication will not be a defence to a charge of rape in relation to the accused’s capacity to understand if he did have consent.

The Cabinet is expected to approve the publication of the general scheme of the Bill, and also approve plans for the full Bill to now be drafted.

Under current law, the accused’s own subjectively honest but mistaken belief that the victim was consenting is a defence to rape.

The current definition of rape is that the man knows that a woman is not consenting, or is reckless as to whether she is consenting. The new Bill will amend the fault or mental element — that is, what is in the mind of the accused — of the rape offence 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.

Under the proposed new laws, where the question of reasonable belief arises in a rape trial, the jury should consider the accused’s personal capacity, meaning any physical, mental or intellectual disability of the accused; any mental illness, as well as age and maturity.

In 2019, the Law Reform Commission recommended that men should no longer be able to use the claim that they “honestly believed” a woman had consented to sex as a defence in rape trials. The report was sought by the Attorney General, Séamus Woulfe, after the Supreme Court confirmed in 2016 that an “honest, though unreasonable mistake that the woman was consenting, is a defence in rape”.

The Dublin Rape Crisis Centre has previously said the “honest belief” defence for persons accused of rape is “not acceptable” and puts individual rape victims and all of society at risk.

Noeline Blackwell, chief executive of the centre, said “it should not be the case that a man can ‘walk out of court’ with his honest but unreasonable belief intact in a case where a woman had not consented to sex”.

The plans to overhaul consent laws will be contained in a Bill which will also provide for anonymity for victims and the accused in all trials for sexual offences, and not just in rape trials.

Anonymity for victims in all trials for sexual offences will be guaranteed and extended to additional offences specifically targeting vulnerable victims, including persons with mental illness or a mental or intellectual disability. Anonymity for the accused will also be provided for in case they are found not guilty of the offence. If an accused person is convicted of a sexual offence, they may be identified unless to do so would lead to identification of the victim.

The public will be excluded from the courtroom for sexual offence trials but this will not impact the ability of the media to report the verdict and sentence. The definitions of “broadcast” and “publication” will be updated to ensure that social media is covered in order to protect the victim’s identity. The victim’s right to separate legal representation if there is an application to question them on their previous sexual experience will be extended to include trials for sexual assault offences not just rape offences as is currently the case.

*This article was amended on Tuesday, August 2nd, 2022.