A person accused of rape will have to prove to a jury how they believed they had consent to have sex, under proposals going to Cabinet today.
Under current law, the accused’s own subjectively honest but mistaken belief that the woman was consenting is a defence to rape.
Justice Minister Helen McEntee is seeking approval from her Cabinet colleagues to draft new legislation that will also put a stop to a man using the defence that he was drunk in relation to his capacity to understand if he did have consent to have sex.
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And the law will also provide for anonymity for victims and the accused in all trials for sexual offences – and not just in rape trials.
The proposal is expected to get the green light from Ministers as Minister McEntee wants to strengthen the law on consent in rape cases and to support victims in sexual violence cases.
Under the law, it will no longer be enough for a man to stand up in court and say he believed he had consent to have sex with a woman in a rape trial.
The accused will have to show a jury the effort he made to check whether he had consent. The accused’s defence that he believed she was consenting has to be objectively reasonable.
In effect, this means that juries should have regard to the steps the accused took to check whether the woman is consenting, as well as the accused’s decision making capacity at that time.
The change from the current situation where a man is not guilty of rape if he honestly believed that he had the consent of a woman was a recommendation from the Law Reform Commission on foot of a request by the Attorney General to examine existing rape law.
The new piece of legislation will also amend the fault or mental element of the rape offence 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.
The legislation will also include a provision that where the question of reasonable belief arises in a rape trial, the jury should consider the accused’s personal capacity, meaning whether the accused has any physical, mental or intellectual disability, any mental illness of and his age and maturity.
Anonymity for victims in all trials for sexual offences will be guaranteed and extended to additional offences specifically targeting vulnerable victims, including persons with mental illness or a mental or intellectual disability.
And anonymity for the accused will also be provided for in case they are found not guilty of the offence.
If an accused person is convicted of a sexual offence, they may be identified unless to do so would lead to identification of the victim.
This was a recommendation of the O’Malley Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences conducted by an expert working group, led by Professor Tom O’Malley.
Under the legislation by Minister McEntee, the public will be excluded from the courtroom for sexual offence trials.
This will not impact the press’ ability to report the verdict or sentence.
And the definitions of “broadcast” and “publication” will be updated to ensure that social media is covered in order to protect the victim’s identity.
The victim’s right to separate legal representation if there is an application to question them on their previous sexual experience will be extended to include trials for sexual assault offences not just rape offences as is currently the case.
And the barrister assigned to represent the victim at the application will be allowed continue to represent the victim at the questioning, if the application is granted.
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