I very much welcome the publication of the Law Reform Commission’s Report on knowledge and belief concerning consent in rape law. As the Deputy may recall, the report was prepared by the Commission in response to a reference from the then Attorney General, on behalf of the Government.
The report is a thorough and expert examination of this complex issue and I can assure the Deputy that my Department is closely examining its recommendations with a view to bringing forward amending legislation.
It is important to understand the context of the report.
The Criminal Law (Sexual Offences) Act 2017 has been widely recognised as a landmark piece of legislation dealing with consent and exploitation in sexual activity. For the first time, it set out in statute what consent actually means - a free and voluntary agreement between people to engage in sexual activity.
The 2017 Act also set out a non-exhaustive list of circumstances where consent is impossible, such as when a person is asleep or unconscious; if they are being held captive; if they cannot communicate their agreement due to physical inability or disability; if they are mistaken or misled about who the other person is, or what the activity is; or for example if they are so drunk or intoxicated that they are in no position to consider the activity and make up their mind.
In order for a jury to find a person guilty of rape, three things are necessary.
1. Sexual intercourse must have taken place;
2. the person must not have consented; and
3. the accused person must either have known that person didn’t consent, or been reckless as to whether they consented or not.
During the Oireachtas debate on the Bill, the issue of whether a person’s belief in consent must be reasonably held was discussed in some detail. As the law stands, the mental element of the offence of rape is not present if the accused honestly believed consent was given, so long as that belief was genuine, no matter how unreasonable or irrational. As a result, a person who held a genuine but completely unreasonable belief that the other person consented would not be found guilty of rape.
It was on foot of those debates that the Attorney General and my predecessor as Minister discussed the matter and agreed to refer it to the Law Reform Commission, for detailed consideration.
As the Deputy is aware, the Commission's recently published Report recommends a change in the law to state that the belief of the accused person in consent must be reasonably held. It also touches on some of the surrounding matters which are being examined elsewhere, such as rape myths and stereotypes, obstacles to prosecution in rape cases, the treatment of victims in rape cases and other related matters.
The timing of the Commission's report is particularly welcome, given that the review of protections for vulnerable witness in the investigation and prosecution of sexual offences, chaired by an expert barrister Tom O’Malley, is due to be completed by the end of this year.
I intend to consider these two sets of recommendations in tandem and I therefore have asked my officials to examine the Law Reform Commission's Report in detail with a view to bringing forward proposals to implement its recommendations. Any recommendations which may arise out from the O’Malley review group and which may be of assistance in supporting victims and vulnerable witnesses will feed into this process, while of course maintaining the necessary fairness and balance inherent in our criminal justice system.