Alleged rapists will no longer be able to defend themselves in court with an “honest belief” that a victim had consented to sex, under a significant legal change being considered by the Government this week.
Minister for Justice Jim O’Callaghan will bring a Bill to Cabinet tomorrow that proposes widespread changes in the way the criminal justice system treats domestic, sexual and gender-based violence.
Chief among them will be a notable alteration to the State’s consent laws, which will mean that an accused cannot be acquitted of rape or sexual assault if a court should find their belief that the alleged victim had consented was not objectively reasonable.
The mental element of whether someone had sex with another without consent will now be an objective, rather than a subjective test. It means that sexually assaulting someone would be defined as an instance where an alleged perpetrator did not “reasonably believe” that the other person consented. The offence of sexual assault will now be on a statutory footing, under the Bill being brought forward this week.
RM Block
For almost a decade, campaigners for survivors of sexual assault had been calling on government to clarify consent laws. It follows case law from 2016, which indicated that an accused person could defend themselves from a rape charge by testifying that they honestly believed their accuser had consented to sex, even if that belief is not reasonable or rational.
In 2016, the Supreme Court found, in the case of The People (DPP) v C O’R, that an “honest, though unreasonable, mistake that the woman was consenting is a defence to rape”. It added that the belief must be “genuinely held” by the accused.
In 2017, the government tasked the Law Reform Commission with considering the need to amend the law and in 2019 the expert group said that the law should be reformed so that the accused’s belief in consent should be objectively reasonable, and that juries should consider what steps the accused took to establish that the alleged victim had consented.
Mr O’Callaghan will bring the Criminal Law (Sexual offences, domestic violence and international instruments) Bill 2025 to Cabinet. As revealed by The Irish Times last week, the Bill will also include a domestic violence register – a public list of judgments against those convicted of offences related to domestic abuse. The courts will manage the register, but the victim’s consent will also be required before a perpetrator’s name is added to the public list. Gardaí will also now have the power to inform a child’s school that a domestic violence incident has taken place in their home, under the proposed law.
The proposed legislation will also update the State’s legislation on forced exploitation, including forced marriage, forced surrogacy and illegal adoption and see more enhanced legislation on female genital mutilation. Legal terminology will also be updated to remove any references to “child pornography” and replace it with “child sexual abuse material”.
