CABINET HAS APPROVED a proposal by Tánaiste and Minister for Justice Frances Fitzgerald to provide a definition of sexual consent in legislation already published.

The new provisions on consent in the Criminal Law (Sexual Offences) Bill will make it clear that a person who is incapable of consenting to a sexual act in the instance of being asleep or unconscious, as a result of intoxication or being mistaken as to the identity of the other person involved cannot give consent.

It also includes a person who does not consent if he or she is being unlawfully detained, cannot communicate whether or not they agree to the act due to a physical disability or if the only consent given is that of a third party.

Clarity 

Fitzgerald said the provisions will help provide additional clarity, together with established case law, in cases involving sexual offences.

Taoiseach Enda Kenny told the Dáil this afternoon he expected Fitzgerald to bring the amendment forward as soon as possible.

“This should have been done many years ago,” said Kenny.

‘Honest belief defence’

Children’s Minister Katherine Zappone also secured a government agreement to review the defence of honest belief that consent was given in rape cases.

This is when an accused can and must be acquitted of rape if he can persuade a jury and the court that he honestly believed consent existed, no matter how mistaken or illogical that belief.

While this is separate to the legislation, it has been agreed the Law Reform Commission will examine ending the practice of accepting a defence of honest belief alone.

The current practice allows the accused to continue their illogical process of forming beliefs and risks them engaging in the same behaviour again.

Speaking following the Cabinet decision today, Zappone said:

The defence of honest belief in the consent of a victim, no matter how unreasonable, is out dated.

We now have an opportunity to introduce in law the need for those accused of rape to demonstrate an element of reasonableness in relying on the defence of honest belief.

Following today’s cabinet decision the Law Reform Commission will be requested to produce a “definitive, balanced and reasonable assessment” with the hope it will lead to a draft bill before the end of the year, said Zappone.

Women’s Aid has welcomed today’s announcement, with the organisation’s director, Margaret Martin stating:

“We are heartened to see the provisions on the use of force or the threat of force to coerce women to engage in sexual activity, recognition that consent can be withdrawn at any time and that the absence or omission of resistance does not mean the person has consented.”

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