Dáil Éireann Debate, Wednesday - 20 November 2019
3. Deputy Jim O'Callaghan asked the Minister for Justice and Equality if a response will issue to the call from the Law Reform Commission for a change in the way consent is considered in rape trials; and if he will make a statement on the matter. [48027/19]
Amharc ar fhreagraIn 2016, the Attorney General requested the Law Reform Commission to produce a report on how consent is considered in rape trials. That report was published earlier this month and it made significant recommendations on how the law in respect of consent in rape should be changed. Does the Government propose to accept that recommendation and, if so, does it intend to introduce legislation giving effect to the Law Reform Commission's recommendations?
I warmly 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. I 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 landmark legislation dealing with consent and exploitation in sexual activity. For the first time, it set out in statute what consent actually means, namely, 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 a person is being held captive; if a person cannot communicate his or her agreement due to physical inability or disability; if a person is mistaken or misled about who the other person is, or what the activity is; or, for example, if a person is so drunk or intoxicated that he or she is not in a position to consider the activity and make up his or her own mind. In order for a jury to find a person guilty of rape, three things are necessary: sexual intercourse must have taken place; the person must not have consented; and the accused person must either have known that person did not consent or must have been reckless as to whether he or she consented.
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. 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. That is the report the Deputy has mentioned.
I thank the Minister for his reply. This is a complex and complicated aspect of our law. Nonetheless it needs to be amended. We need to recognise that at present when it comes to the issue of consent, a man is believed to have honestly and genuinely consented if he believed the woman was consenting. At present that is a subjective test. That was the test that was recognised as being the law by the Supreme Court in the 2016 case of the DPP v. O'R. On foot of that decision the Attorney General requested the Law Reform Commission to prepare a report.
Under the law as it exists, it appears that a man can have an honest, though unreasonable, belief that the woman was consenting and that would be a defence to rape. The Law Reform Commission report seeks to change that subjective test to an objective test, which is preferable. It would obviously still maintain the rights of the accused in such a trial. The report puts a further onus on an individual when having sexual intercourse with another person to ensure that it is reasonable to believe that the other person is consenting.
I am pleased the Deputy recognises that this is not only a most sensitive area of the law but also a most complex area. 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 Law Reform Commission was asked to give the matter detailed consideration. As the Deputy has said, the 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.
I am giving the matter urgent consideration and will be mindful of the recommendation. I think we will have an opportunity to discuss the issue again at an early date.
As legislators, we need to recognise that we have a problem in this country with people, particularly women, coming forward and being prepared to make complaints in respect of rape and other sexual offences. Part of the reason is that they find the process very intimidating and threatening. While ensuring an accused has a fair trial, we also have an obligation to put in place laws that make it more conducive for people to make complaints when they have been victims of sexual abuse. At present, the proper test should be that somebody looking at what happened objectively would think it is reasonable or unreasonable for the person to have believed consent was forthcoming. It is unfair for persons to be able to defend themselves in our legal system on the basis of saying, "Well, I honestly thought she was consenting", even though anyone objectively looking at it would regard that as a grossly unreasonable basis of assessment. I welcome the Minister's statement that he is bringing forward this legislation. It is complicated but we need to introduce legislation in line with the Law Reform Commission recommendation.
Lest the House be under any misapprehension, while the intention may be to introduce amending legislation, it will not happen within the coming weeks or months. We have the important contribution to the debate of the Law Reform Commission report. The timing of the report is particularly welcome, given the review of protections for vulnerable witnesses in the investigation and prosecution of sexual offences, chaired by an expert barrister, Tom O’Malley. That report is due to be completed by the end of this year.
I intend to give early consideration to these two sets of recommendations. I have asked my officials to examine the Law Reform Commission report in detail with a view to introducing proposals to implement its recommendations. Any recommendations which may arise 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 which must at all times be inherent in our criminal justice system.
