A new rape law in Ireland to deal with cases where a man has wrongfully, but honestly, believed that consent had been given has been suggested in a report today from the Law Reform Commission.
Under current law, for a man to be found guilty of rape he has to have known that he was having sex with a woman without her consent, or have been reckless as to whether she had given consent.
In a lengthy document dealing with rape and the defence of “honest belief”, the commission has asked if there should be a new law which would be less serious than rape and might be called “gross negligence rape”.
The new law would address cases where a man had an honest but unreasonable belief that a woman had consented to sexual intercourse.
“Needless to say, he would not be guilty of either rape or the lesser offence if his belief was found to have been reasonable,” the commission says in its issues paper.
A disadvantage with the new law might be that people who should have been charged or convicted of rape would end up being charged or convicted with the new lesser charge.
The paper discusses whether the current law on rape should be changed so that a man’s belief that a woman had consented to sex would have to be “reasonable”.
As matters stand, an honest belief in the woman’s consent, even if unreasonable, is a defence to an accusation of rape.
The commission’s paper examines the topic of honest belief in regard to men accused of vaginal rape. If urged in submissions it has invited to broaden its response to other areas of sexual assault, the commission will consider such requests.
Introducing an objective element to the test on consent “would recognise that engaging in non-consensual sexual penetration without having a reasonable ground for believing that the woman consents is a significant wrongdoing.”
The Government decided in 2017 to ask the commission to investigate the honest belief issue at a time when it was introducing the Criminal Law (Sexual Offences) Act 2017, which made significant reforms in the area of consent.
The new law introduced a definition of consent as free and voluntary agreement and the commission has said it remained to be seen how strictly this will be interpreted in the courts.
Honest belief is not a particularly common defence in rape cases, most of which involve a contest over whether the woman in fact consented.
The paper says this may be because defence lawyers find it easier to attack the credibility of the woman and argue that she in fact consented, than to concede that the woman did not consent and then argue that the man mistakenly believed that she was consenting.
Irish law on “honest belief” reflects a UK House of Lords decision in 1976 that a belief in consent need not be reasonable in order to acquit a defendant, it need only be honest. The decision was introduced into Irish law in 1981.
The law in Northern Ireland, Scotland, England and Wales, and other common law jurisdictions, has since been changed so as to introduce an “objective” element to the test. However this is not believed to have led to a change in the conviction rates in rape cases in those jurisdictions.
In Irish law, a person accused of rape cannot rely on self-induced intoxication as a defence but the commission has asked if it should be expressly stated in legislation that intoxication is not a defence to a charge of rape.
The Law Reform Commission paper can be read on its website ( www.lawreform.ie ). Interested parties are asked to make submissions by October 26th of this year.