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.
- Sexual intercourse must have taken place;
- the person must not have consented; and
- 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, with a view to bringing forward proposals for legislation to implement the recommendations as appropriate, while of course maintaining the necessary fairness and balance inherent in our criminal justice process.
I have no role in the prosecution of offences or convictions for offences, these are entirely matters for the Director of Public Prosecutions and the Courts, who are independent in the exercise of their functions. The Deputy will also appreciate that the conduct of criminal investigations are for the Commissioner and his team, and I have no role as Minister in these matters.
I am informed that An Garda Síochána is continuously improving its specialist services. Responding to the needs of victims and vulnerable persons has seen the rolling out by the Commissioner of Divisional Protective Services Units (DPSUs). These Units are staffed by specially trained personnel and will support the delivery of a consistent and professional approach to the investigation of sexual and domestic crime.
DPSUs are tasked with improving services to victims of domestic and sexual violence, improving the investigation of domestic and sexual violence incidents and identifying and managing risk. I am informed that to date, DPSUs have been established in 13 locations nationwide, namely Carlow, Cork City, DMR South Central, DMR West, Galway, Kerry, Kilkenny, Limerick, Louth and Waterford Garda Divisions as well as the newly established units in DMR East, DMR South and Tipperary.
I am informed by the Garda authorities that it is expected that DPSUs should be rolled-out to all Divisions on a phased basis by the end Q1, 2020. Rollout of these units will meet a key commitment in A Policing Service for the Future, the four-year implementation plan giving effect to the recommendations of the Commission on the Future of Policing in Ireland.