The law on rape allows as a defence that the accused had an honest belief the alleged victim had given consent, though the jury in any trial should consider whether there are reasonable grounds for that belief.
Some believe the law should be changed, so that only a “reasonable belief”, rather than an honest belief, can be a defence in cases where the woman did not consent to sex.
Calls for the law to be changed to include a definition of consent in relation to rape and sexual assault laws go back to the late 1980s when the Law Reform Commission called for such a change.
The issue of consent, and what the accused believed, were considered in a lengthy ruling on Friday by seven judges of the Supreme Court.
In Irish law a man is guilty of rape if he has sex with a woman without her consent and if “he knows that she does not consent to the intercourse or is reckless as to whether she does or does not consent”.
Sentenced to 15 years
The Supreme Court judgment arose from an appeal by a man who had been convicted by a jury of raping his mother at a time when they were both drunk. He was sentenced to 15 years. An appeal to the Court of Appeal was unsuccessful. The man pleaded that he believed his mother had consented to sex.
In the course of his Supreme Court judgment, Mr Justice Peter Charleton noted that the circumstances were rare where a genuine issue could arise that, even though the woman did not consent, the man nonetheless believed she had.
However, having noted the law in other jurisdictions, he said the law in Ireland was "not what a reasonable man believed as to the presence of consent, but rather what the individual accused actually believed. The mental element of rape requires the accused to know that the woman does not consent to intercourse or for him to be reckless as to whether she does or does not consent."
While the absence of consent was an objective fact, “an honest, though unreasonable, mistake that the woman was consenting is a defence to rape”.
It was a matter for the jury to decide if the belief was honestly held, given the facts, the judge noted. Every jury was “entrusted, using shrewdness and common sense, to judge what the accused claims as to his mistaken belief against their view of what an ordinary or reasonable man would have realised in the circumstances.” A jury did not have to believe “an obviously false story”.
Rape Crisis Centre
The chief executive of the Dublin Rape Crisis Centre, Noeline Blackwell, welcomed the judgment in that she believed it was important that the details of our rape law were restated. However, she said she believed the subjective, "honest belief" aspect of the law should be changed, to be replaced with a more objective, "reasonable belief" rule.
She also said the fact that the appeal to the highest court in the land had occurred showed how unclear the Irish law is in relation to consent. “That’s why it needs to be clarified.”
The court made no recommendations to the Oireachtas in relation to changing the law. Ms Blackwell called for the Sexual Offences Bill, going through the Oireachtas, to be changed so that consent was defined, and to bring the level of defence at least up to the standard of what a reasonable person should believe.