'A positive change': Proposed changes to laws in rape cases welcomed by Cork experts 

Justice Minister Helen McEntee brought a memo before Cabinet yesterday, seeking approval for a bill to strengthen the law on consent, knowledge and belief in rape cases.
'A positive change': Proposed changes to laws in rape cases welcomed by Cork experts 

Justice Minister Helen McEntee brought a memo before Cabinet yesterday, seeking approval for a bill to strengthen the law in a number of areas in rape cases. PIC: Conor Ó Mearáin

A PROPOSED change to the law around consent in rape cases has been praised by Cork legal experts and sexual violence related activists as one which strikes a fairer balance between the accused and the victim in trials.

Justice Minister Helen McEntee brought a memo before Cabinet yesterday, seeking approval for a bill to strengthen the law on consent, knowledge and belief in rape cases.

The current definition of rape is that rape has occurred when a person knew another person did not consent, or was reckless as to whether they were consenting.

As the law stands, a person accused of rape can avail of the defence they honestly believed they had the other person’s consent, even if that subjective belief was mistaken.

Proposed changes to the law include an amendment to the definition of rape, to include an objective test, that an accused person commits rape if they could not have reasonably believed the other person was consenting.

Proposed changes also include exclusion of the public from the courtroom in sexual offence trials, a new provision that self-induced intoxication will not be a defence to a charge of rape, and anonymity for victims in all trials for sexual offences.

The proposed removal of the “honest belief” defence to rape was recommended by the Law Reform Commission in 2019.

'A positive change'

Dr Catherine O’Sullivan, Criminal law lecturer in UCC, said it is a “positive change” that would, if the final Bill follows the recommendations of the Law Reform Commission, introduce an objective test with a narrow set of subjective factors that a jury can consider.

She said that when determining if an accused had a reasonably held belief of consent, the jury can take into account a number of subjective circumstances, such as intellectual disability, mental illness, and the age and the maturity of the accused.

“By narrowing it to these, you get that balance right between protecting non-blameworthy accused, those who could not possibly attain that reasonable belief standard… the constitutional rights of the accused, in relation to being found guilty of such a serious offense, whilst also protecting the constitutional right of the woman to bodily autonomy and her right not to be raped,” she added.

However, she warned that deciding what is a reasonably held belief could lead juries to consider commonly endorsed myths and biases held around rape, adding: “This needs to be part of a wider package of reforms in terms of education around consent, and is a much bigger issue than just what the law says… we need to change social attitudes.”

'More of a balance'

Mary Crilly, CEO of Cork Sexual Violence Centre, said that the change will “create more of a balance in cases”.

“I welcome anything that creates more of a balance in cases,” she said.

“The system we have for rape cases and sexual violence cases is old, archaic, and not fit for purpose.

“I’m optimistic that we are making changes, because it’s about making it better for everybody involved, especially the victim,” she added.

She emphasised that there is still much to be improved about how sexual violence cases are conducted in Ireland, such as the adversarial nature of trials where victims have to take to the stand as witnesses, and in particular character references in convictions, which she said she would like to see gotten rid of “immediately”.

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