LAST UPDATE | 27 Jul 2022

JUSTICE MINISTER HELEN McEntee has received Cabinet approval for a bill to strengthen laws around consent in rape cases.

Proposals from McEntee would see the laws around consent, knowledge and belief in rape cases strengthened and would change the current situation where an accused person can be found not guilty of rape if they believed that they had received consent.

Currently, Irish rape law states that a man commits rape when “he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it” or if “he is reckless as to whether she does or does not consent to it”.

McEntee sought approval to publish a general scheme of the bill and then begin drafting the proposed legislation.

Under the new proposals, the accused’s defence that a person was consenting must be ‘objectively reasonable’.

This would mean that juries would examine the steps an accused took to check whether or not consent was received, alongside the accused decision making capacity.

Speaking on RTÉ Radio One, McEntee said that this was an important distinction to make as people can have a subjective beliefs that they received consent.

“At the moment. All they have to prove is that they themselves thought that this person was consenting,” McEntee said.

“You can have some very difficult situations where it’s very clear to any person looking into it that that person wasn’t capable of consenting, or that they themselves have disputed that they gave any form of consent.

“It’s important that we make this differentiation because, you know, somebody can have an honest belief but to an objective person, it’s clearly not something that was going to be willingly or freely given.”

The plan would also remove self-intoxication as a defence to a rape charge, where an accused says that they didn’t have the capacity to understand if they had received consent.

While McEntee says that this defence is not used in Irish courts, she wants to have it placed in law that it isn’t a valid defence.

“I want to make it absolutely clear on our legal statute books. It is not a defense to say that ‘I was too drunk. I didn’t know the person wasn’t consenting, because I was too drunk’.

“So while it’s not something that is used at the moment, we are making it absolutely clear in law that you cannot use being intoxicated or being drunk as a defense.”

The proposed changes were originally recommended by the Law Reform Commission after the Attorney General sought an examination of existing rape laws.

The bill would also include provision allowing for anonymity in trials for victims of all sexual offences, rather than just in rape trials.

Anonymity for accused will be kept in case they are found not guilty, but a convicted person may be identified unless it may lead to the identification of the victim.

Members of the public will continue to be excluded from courtrooms in sexual abuse trials, however this will not change the law around reporting on sexual abuse court cases.

The law will also be changed to ensure social media is covered, to ensure that victim’s anonymity is protected.

The proposals from McEntee come weeks after she launched the ‘Zero Tolerance’ strategy for combating domestic, sexual and gender-based violence.