Dáil Éireann Debate, Tuesday - 5 December 2023
389. Deputy Catherine Murphy asked the Minister for Justice if she will set out her rationale for the withdrawal of proposals in respect of consent in the context of her plans to reform of existing legislation (details supplied). [53400/23]
View answer414. Deputy Holly Cairns asked the Minister for Justice to provide the reasoning behind her decision to remove proposals in the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 in relation to consent; who was consulted as part of this decision; and if she will make a statement on the matter. [53784/23]
View answer415. Deputy Holly Cairns asked the Minister for Justice whether she engaged with any domestic and sexual violence organisation in regard to her decision to remove proposals around consent from the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023; and if so, to provide details of those consultations. [53785/23]
View answer416. Deputy Holly Cairns asked the Minister for Justice when it was flagged with her or her Department that there were legal concerns in relation to her proposals on consent in the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023; and if she will make a statement on the matter. [53786/23]
View answerI propose to take Questions Nos. 389 and 414 to 416, inclusive, together.
Last month, the Justice Committee agreed with my proposal to remove the provisions of the Bill in relation to knowledge of consent in rape from the Criminal Law (Sexual Offences & Human Trafficking) Bill 2023. The provisions in question stem from recommendations of the Law Reform Commission (LRC) in relation to rape that are set out in the Bill as published in July.
Consent – its presence or absence – is a key issue in these offences. At the moment, the rules around consent are the same for sexual assault and for rape. Concerns were raised in recent months that introducing reforms to rape law, in redefining the ‘mental state’ as recommended by the LRC, without ensuring that these also apply to our laws on sexual assault would create issues during trials, particularly in cases where a person is accused of both rape and sexual assault. The LRC had not examined sexual assault when recommending reform of the rape provisions.
Separately, the Supreme Court recently struck down section 3(5) of the Criminal Law (Sexual Offences) Act 2006. In its judgment at the end of August, the Court considered liability for criminal offences in detail. This comprehensive new analysis may have implications for the proposed consent reforms. Careful scrutiny is needed to ensure the proposals – published before the judgment – are robust and will withstand constitutional challenges.
For these reasons the difficult decision has been taken to remove the knowledge of consent provisions at this time, in consultation with the Office of the Attorney General and the Office of the Director of Public Prosecutions. My officials also consulted with Rape Crisis Network Ireland in coming to this decision.
The Government has agreed to my proposal to develop a separate Sexual Offences Bill, which will provide for knowledge of consent in relation to both rape and sexual assault. This also requires sexual assault, which is currently a common law offence, to be put on a statutory footing.
The new Sexual Offences Bill will entail fundamental and necessary revisions to our sexual offences legislation and I am determined that this will be done in a considered and comprehensive manner, and in consultation with key stakeholders.
As there are elements of the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 that are time sensitive – including putting the new National Referral Mechanism for victims of human trafficking on a statutory footing, urgently amending the Defence Act 1954; providing for key protections for victims of sexual offences; and provisions needed for ratification of the Second Optional Protocol to the UN Convention of the Rights of the Child – I wanted to ensure that we proceed with the rest of the Bill without delay.
