The Law Reform Commission has proposed legislative changes which would make it harder for men in rape cases to claim women had consented to sex as a defence.
It currently allows an honest but unreasonable and mistaken belief by an accused party that the victim had engaged in consensual sex to be used as a defence so long as the belief is “genuine” and “not obviously false”.
In a new report, the LRC has recommended this should be changed to introduce an objective test to an accused’s belief his victim had given consent.
It has also proposed that juries should be allowed to take into account the decision-making capacity of a defendant and also what steps they took to establish a woman was consenting to sex.
The LRC was asked by then Attorney General Maire Whelan in 2017 to examine Section 2 of the Criminal Law (Rape) Act 1981 following a Supreme Court ruling the previous year in a rape case.
It confirmed the test to be applied to Section 2 is “primarily subjective” and was “not what a reasonable man believed as to the presence of consent, but rather what the individual accused actually believed”. In other words, it restated an honest but unreasonable mistake about consensual sex was a defence to a charge of rape.
The Supreme Court added the belief “must be genuinely held” and a jury was not required to believe “an obviously false story” from the accused and should use “shrewdness and common sense”.
The LRC said it had considered in detail the current legislation regarding consent in rape trials and concluded the main arguments for Section 2 were outweighed by the arguments against a subjective test.
It has proposed that Section 2 should be reformed by adding an objective test whereby the accused commits rape if, at the time of sexual intercourse, he “does not reasonably believe” the woman was consenting.
The LRC recommended a jury should have regard to a specific list of circumstances related to the accused’s personal capacity including any physical, mental or intellectual disability as well as
his age and maturity.
And the advisory body also said there should be no change in the current law which prevents self-induced intoxication from being used as a defence in rape trials.
