THE LAW REFORM Commission will today publish a paper that examines a range of reform options in relation to consent.

The current law, as set out in section 2 of the Criminal Law (Rape) Act 1981, states: “A man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and at the time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it.”

The LRC’s paper examines whether the accused’s belief in consent should be objectively reasonable and/or whether the accused should be required to take reasonable steps to confirm that the woman is consenting.

The Commission compiled the paper in response to a request from the Attorney General, who asked it to examine if changes should be made to the Act in relation to consent, in particular citing the Supreme Court’s judgment in the People (DPP) v C. O’R (2016) – a case where a man was convicted of raping his mother. You can read more about that here.

In this case, the LRC noted the Supreme Court confirmed that deciding if the accused “honestly” or “genuinely” believed that a woman was consenting to sex, this test is primarily subjective.

This means that attention is focused on what the particular accused actually (subjectively) believed, rather than on whether his belief in this regard was one that a reasonable person would have held in the circumstances.

Therefore, the Court confirmed that an “honest, though unreasonable, mistake that the woman was consenting is a defence to rape”.

‘Common sense’

The Court also added, however, that the accused’s asserted belief in consent “must be genuinely held”.

The Court therefore stated that a jury is not required to believe “an obviously false story” from the accused; and that jurors should use “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”.

In its paper, the LRC notes that the Attorney General’s request also arises against the immediate background of the wide-ranging reform of the law on sexual offences in the Criminal Law (Sexual Offences) Act 2017.

This Act made significant amendments to the general law on consent in rape and other sexual assaults.

The Oireachtas debated whether to include in the 2017 Act reform of the law concerning knowledge or belief under section 2 of the 1981 Act, but it ultimately decided that it would be preferable to have the matter referred to the LRC for further analysis.

The Commission was required to assess whether the current primarily subjective test should be retained, or whether a different test should be put in place that would include more objective elements.

The paper seeks views on the following four issues:

Issue 1 asks whether the current law relating to knowledge or belief should be retained. If consultees believe that this aspect of the present law on rape should be amended, they are then asked to consider a number of possible reform options.

Issue 2 examines whether an objective or “reasonable belief” element should be added to the definition of rape. Under this reform option, an accused’s belief in consent would have to be both honest (as under the current, primarily subjective, test) and reasonable (thereby importing an objective element) in order for him to be acquitted.

The inclusion of such an objective element in the definition of rape would be in line with the definition of some other serious offences in Irish law, such as manslaughter and sexual activity with a child, as well the definition of rape in Northern Ireland, England and Wales, Scotland, and other common law jurisdictions.

The Commission also asks whether the accused’s personal characteristics, such as his decision-making (mental) capacity, could be considered in deciding if his belief in consent was reasonable.

Issue 3 examines whether the law might be reformed so as to make mistaken belief in consent a defence. Under the current law, the absence of belief in consent is an element of the offence which must be proved by the prosecution.

Under the option being examined here, an accused, in order to rely on the mistaken belief defence, would have to establish that he took “reasonable steps” to ascertain whether the complainant was consenting. This would be similar to the law as it exists in Canada and Tasmania.

Issue 4 asks if there is any merit in the idea of having a separate offence, less serious than rape, to cover a situation where an accused honesty but unreasonably and mistakenly believed that the complainant was consenting. Such an offence might tentatively be described as “gross negligence rape”.

Under the law as it stands, an accused who knew that the complainant was not consenting or was reckless as to whether she was or not is guilty of rape.

Under the reform option being proposed here, an accused would be guilty of the lesser offence, whatever name it might bear, if he honestly believed the complainant was consenting, but his belief was unreasonable.

The LRC notes that he would not be guilty of either rape or the lesser offence if his belief was found to have been reasonable. Sweden has a lesser rape offence of the kind being discussed here.

Self-induced intoxication

The Commission also discusses briefly the separate but related issue of self-induced intoxication. Under the law as it stands, a person accused of rape cannot rely on self-induced intoxication (whether due to alcohol or drugs) to escape criminal liability.

This rule has been adopted largely as a matter of public policy. Many offences, including sexual offences, are committed by people acting under the effects of alcohol or drugs; and the Irish courts have consistently held that it would be contrary to public policy to allow them to escape criminal liability on that account.

The Commission asks if it should be expressly stated in legislation that self-induced intoxication is not a defence to a charge of rape.

The full paper can be read on the LRC’s website.