The LRC report recommends that the law should be reformed so that the accused’s belief in consent should be objectively reasonable.
It says that juries should have regard to the accused’s relevant decision-making capacity, and what steps were taken to ascertain whether the woman’s consent was given.
This follows an LRC issues paper on the subject, published in 2018, after the Attorney General requested an examination of whether changes should be made to definitions in section 2 of the Criminal Law (Rape) Act 1981.
The relevant case law is the Supreme Court’s 2016 decision in The People (DPP) v C O’R.
The current law 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 not.
If the accused asserts that he believed that 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 was primarily subjective.
This means that attention is focused on what the 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.
Defence to rape
Therefore, the Supreme 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”, and that a jury is not required to believe “an obviously false story”.
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 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 matter was debated by the Oireachtas as to whether to include in the 2017 act reform of the law concerning knowledge or belief under section 2 of the 1981 act.
Ultimately, it decided that it would be preferable to have the matter referred to the LRC for further analysis.
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.
The commission’s report notes the wider social setting in which the Attorney General’s request arises.
It 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, called the Gillen Review.
The LRC report discusses the extent to which rape myths and misconceptions have an impact on the criminal-justice process, because it says the current subjective ‘honest belief’ test may relate, in some respects, to these myths and misconceptions.
The LRC weighs 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 recommends that the current primarily subjective test should be replaced.
The LRC’s recommended reforms are as follows
- The fault or mental element of the rape offence in section 2 of the 1981 act is 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.
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,
- 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,
- 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, (where intoxication means that the man lacked capacity to know whether the woman was consenting) should be retained as a defence.
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 whether a new lesser offence of “gross negligence rape”, which was 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, and concludes that it should not be introduced because such an offence would be completely inconsistent with its recommendations for reform.