EMBARGO: MIDNIGHT THURSDAY 7th NOVEMBER 2019
LAW REFORM COMMISSION PUBLISHES REPORT ON
KNOWLEDGE OR BELIEF CONCERNING CONSENT IN RAPE LAW
Current law is that a subjectively honest, though unreasonable, mistaken belief that the woman was consenting is a defence to rape; but the man’s belief must be “genuine” and “not obviously false”
Report recommends that the law should be reformed so that the accused’s belief in consent should be objectively reasonable, and that juries should have regard to the accused’s relevant decision-making capacity and the steps, if any, that the accused takes to ascertain whether the woman is consenting
Friday 8th November 2019: The Law Reform Commission is today launching its Report on Knowledge and Belief Concerning Consent in Rape Law at its offices at 4pm. The Commission has prepared the Report (which follows an Issues Paper on this subject published in 2018) in response to a reference in 2017 from the then Attorney General under the Law Reform Commission Act 1975. This requested the Commission to examine and make recommendations on whether changes should be made to that aspect of section 2 of the Criminal Law (Rape) Act 1981 dealing with knowledge or belief in consent, having regard to relevant case law, particularly the Supreme Court’s 2016 decision in The People (DPP) v C O’R.
Current law on knowledge or belief concerning consent
The current law, as stated in section 2 of the Criminal Law (Rape) Act 1981, is that a man commits rape if he has sexual intercourse with a woman who at the time does not consent to it, and at the time he knows that she is not consenting or is reckless as to whether she is or not.
If the accused asserts that he believed the woman was consenting, the test is whether he “honestly” or “genuinely” believed this. In The People (DPP) v C O’R (2016) the Supreme Court confirmed that the test to be applied is primarily subjective. This means that attention is focused on what the particular accused actually (subjectively) believed, rather than on whether his belief in this regard was one that a reasonable person would have held in the circumstances. Therefore, the Court confirmed that an “honest, though unreasonable, mistake that the woman was consenting is a defence to rape.”
The Court also added, however, that the accused’s asserted belief in consent “must be genuinely held.” The Court therefore stated that a jury is not required to believe “an obviously false story” from the accused; and that jurors should use “shrewdness and common sense” to judge what the accused claims as to his mistaken belief “against their view of what an ordinary or reasonable man would have realised in the circumstances.”
The Attorney General’s request also arises against the immediate background of the wide-ranging reform of the law on sexual offences in the Criminal Law (Sexual Offences) Act 2017. The 2017 Act made significant amendments to the general law on rape and other sexual assault offences. The Oireachtas debated whether to include in the 2017 Act reform of the law concerning knowledge or belief under section 2 of the 1981 Act, but it ultimately decided that it would be preferable to have the matter referred to the Commission for further analysis.
In examining the Attorney General’s reference, the Commission was therefore required to assess whether the current primarily subjective test as to knowledge or belief should be retained, or whether a different test should be put in place that would include more objective elements.
Context of Report
The Commission’s Report notes the wider social setting in which the Attorney General’s request arises, not only globally where sexual violence and the law’s response has been widely debated, but also in Northern Ireland and this State. The Report also notes the establishment by the Department of Justice and Equality of an expert working group to review the investigation and prosecution of sexual offences. This mirrors the establishment of a similar review of the law in Northern Ireland, the Gillen Review.
The Report discusses the extent to which rape myths and misconceptions have an impact on the criminal justice process. The Commission acknowledges that the impact of rape myths and misconceptions may be of more direct relevance to the review of the investigation and prosecution of sexual offences being carried out by the Department of Justice and Equality’s expert working group. However, since the current subjective honest belief test may relate in some respects to some myths and misconceptions, it is appropriate to consider them in the Report in the context of reform proposals.
Proposed reforms of current law on knowledge or belief concerning consent
The Commission’s Report considers in detail the arguments for and against the current law, which is that the accused man must either have actual knowledge of lack of consent or that he is subjectively reckless as to whether there is consent. The Commission concludes that the main arguments for the current law are outweighed by the arguments against, and the Commission therefore recommends that the current primarily subjective test should be replaced. The Commission’s recommended reforms involve the following.
First, the fault or mental element of the rape offence in section 2 of the 1981 Act would be reformed by adding that the accused man commits rape if, at the time of the sexual intercourse, he “does not reasonably believe” that the woman was consenting. This is an objective test, and would be in addition to the current two situations under the 1981 Act, that is, where the accused man knows that the woman is not consenting or is subjectively reckless as to whether she is consenting.
The Commission’s second proposed reform is that, where the question of reasonable belief arises in a rape trial, the jury is to have regard to a specific list of circumstances related to the accused’s personal capacity, and only those circumstances. These are: any physical, mental or intellectual disability of the man, any mental illness of his, and his age and maturity. The Commission emphasises that these factors are only to be considered relevant where any of them are such that the man lacked the capacity to understand whether the woman was consenting. Requiring the consideration of these circumstances introduces a subjective element to the test.
The Commission’s third proposed reform is that, where the question of reasonable belief arises, the jury is also to have regard to the steps, if any, taken by the accused man to ascertain whether the woman consented to the intercourse.
The Commission also recommends that the current law on self-induced intoxication, in which it is not a defence to a charge of rape where the intoxication means that the man lacked the capacity to know whether the woman was consenting, should be retained.
In summary, the Commission’s proposed reforms involve moving from the current primarily subjective test to a primarily objective test, having regard to certain subjective elements. It is therefore a mixed test. The first element, “does not reasonably believe”, is objective. The second element, for the jury to have regard to certain aspects of the accused’s personal capacity, is subjective. The third element, for the jury to have regard to the steps, if any, that the accused may have taken, is also subjective.
The Report also addresses a question raised in the Commission’s Issues Paper published in 2018 as to whether a new lesser offence of “gross negligence rape”, which has been enacted in 2018 in Sweden and Iceland, should be introduced. The overwhelming majority of consultees were strongly opposed to such an offence, as was the Gillen Review in Northern Ireland, which also considered this matter. The Commission agrees with the views of consultees and with the analysis in the Gillen Review, and concludes that it should not be introduced. Such an offence would be completely inconsistent with the recommendations for reform made in the Report.
For further information or interview with Commissioner Tom O’Malley or other Commission spokesperson contact:
Winifred McCourt, McCourt CFL T: 087-2446004
Background Notes for Editors
The Law Reform Commission is an independent statutory body whose main role is to keep the law under review and to make proposals for reform. To date, the Commission has published over 200 documents (Consultation Papers, Issues Papers and Reports) containing reform proposals. The majority of these proposals have influenced the drafting and content of reforming legislation. The Report will be available on the Commission’s website, lawreform.ie, from the morning of Friday 8th November.