The study produced by the Law Reform Commission this week is a useful platform for discussion about a possible change to rape legislation insofar as it concerns the issue of "honest belief". As matters stand a man who has sex with a woman while honestly but wrongly believing that she has consented, is not guilty of rape. This is the case even where the belief is unreasonable.
It is being suggested that the law be changed so that a more objective test is introduced whereby the honest belief will have to be reasonable in order for it to be a defence against rape. This is the law in Northern Ireland, Scotland, England and Wales, and other common law jurisdictions. The commission was asked to investigate the matter by the Government and, following consideration of submissions, will deliver its recommendations on how to proceed.
The Government introduced substantial new legislation on rape and consent last year and may in time consider amending the honest belief rule. However, as is noted in the commission’s report, the issue is not a deciding factor in many rape trials. Most cases pivot around whether consent was actually given, and this is why rape complainants often feel it is they who are on trial when they give evidence for the prosecution.
Alcohol is a prevalent feature in many trials. Often it is not so much the woman’s consent but her recollection of what occurred that is challenged in such cases. Very often the jury is confronted with a scenario where there is no dispute about the fact that the woman consented to be in the man’s company, and even to some level of intimacy. Given that juries have to be convinced beyond reasonable doubt that the woman did not consent to sex, the bar is set quite high for achieving a conviction.
Being intoxicated is not a defence for men pleading honest belief and this is how it should be. The Law Reform Commission suggests this might be positively stated in legislation, and there is merit in this. Stating in law that an honest belief must be a reasonable one may also be a positive change. However a jury’s deliberation over whether a belief is honestly held, or a reasonable one, may not be such separate matters in the instance of a particular rape case.
There has been some progress in efforts to improve matters for complainants but the credibility contest and hostile cross-examination that often characterise rape trials continue to be one of the major disincentives to victims in deciding to press charges. It is a fundamental failing that only 10 per cent of victims report rape to the Garda and just eight per cent of those cases result in convictions. In that context, any improvements to the law are welcome but the crime of rape is not conducive to simple answers. Nor is there any escaping the fact that the criminal justice system itself can further traumatise victims.