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Bill to change law on consent in rape cases

The Government has approved the publication of what is being described as a “wide-ranging” bill aimed at strengthening protection for victims of sexual offences and human trafficking.

Among the bill’s main provisions is a change in the law on consent in rape cases.

At the moment, a person can be found not guilty of rape if they honestly, but mistakenly, believed that they had the consent of the victim.

Under the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023, however, the question will be whether the belief is one that a reasonable person would have held in the circumstances, rather than whether such belief was honestly held.

This belief must be objectively reasonable rather than subjective. Where the question of reasonable belief arises in a trial, the jury must have regard to the steps, if any, taken by the accused to ascertain whether the victim consented to the intercourse.

References under oath

Minister for Justice Helen McEntee (pictured) said that the change was in line with recommendations made by the Law Reform Commission, and described the bill as “a key piece of legislation” to tackle domestic, sexual and gender-based violence.

Another change proposed in the bill would provide for written character references for those convicted of a sexual offence to be given on oath or through affidavit, meaning that the person providing the reference could be called before the court and cross-examined.

Currently if a witness is called to court to provide character evidence, this evidence is given under oath. Written testimonials, however, are not sworn.

“The use of character references can often cause further trauma for victims,” said the minister, adding that stronger rules on how they could be used in court were needed.

Anonymity

The bill includes a number of provisions recommended by the O’Malley Report that are aimed at improving the criminal-justice system for victims:

• Separate legal representation for victims of sexual assault if there is an application to question them on their previous sexual experience. If this application is granted, the barrister representing the victim will continue to represent the victim during the questioning,
• Ensuring anonymity for victims in all trials for sexual offences,
• Providing anonymity for the accused for certain sexual offences,
• Updating the definitions for publish and broadcast,
• The repeal of statutes that provide that the verdict or decision in trials be announced in public.

The new legislation will also implement a recommendation by the Defence Forces Independent Review Group (IRG) on amendments to the Defence Act 1954.

The changes will ensure that people subject to military law who commit sexual offences in this jurisdiction will be dealt with by an Garda Síochána and the civilian courts, rather than by courts-martial.

The bill will also put a revised National Referral Mechanism (NRM) in place for identification and support of victims of human trafficking.