The Government has approved the publication of the general scheme of a bill aimed at strengthening the law on consent in rape cases, and supporting victims of sexual violence and human trafficking.

The bill will strengthen the law on consent, knowledge, and belief in rape cases by changing the current situation, in which a man is not guilty of rape if he honestly believed that he had consent.

Under the Criminal Justice (Sexual Offences and Human Trafficking) Bill 2022, the accused’s defence that he believed she was consenting has to be “objectively reasonable”.

Decision-making capacity

The Minister for Justice Helen McEntee described the bill “a very important and timely piece of legislation” that would mean that juries should have regard to the steps the accused took to check whether the woman was consenting, as well as the accused’s decision-making capacity at that time.

“Currently the accused’s own subjectively honest but mistaken belief that the woman was consenting is a defence to rape. This needs to change,” the minister stated.

The bill will also provide greater protections and supports to victims of sexual crimes and human trafficking – including putting the National Referral Mechanism (NRM) on a statutory footing, and ensuring anonymity for victims in all sexual-offences trials.

State bodies and NGOs

The Department of Justice says that many of these victims will not approach an Garda Síochána, but may be much more comfortable approaching a different state body, or a non-governmental organisation (NGO).

It states that the new approach acknowledges that other state bodies and NGOs have a role in identifying victims of human trafficking, and referring them to the NRM.

The bill also removes the final legislative barriers to Ireland’s ratification of the Second Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography.