Supreme Court issues ruling on consent in rape cases

The Supreme Court has issued a ruling on the legal definition of consent in cases of rape.

The ruling comes after the Director of Public Prosecutions asked the court to clarify the law in cases where a man charged with rape claims the woman agreed to sex.

It finds that the prosecution will have to prove there was no consent for the man to be convicted of rape.

If its proven that no consent was given, the jury will also have to consider the accused's state of mind at the time.

Delivering the judgment of the seven judges who heard the case, Mr Justice Peter Charlton said that consent cannot exist if a woman, for any reason, is not in a condition to give it.

Under section nine of the amended Criminal Law (Rape) Act 1990, consent is defined as "an offence that consists of or includes the doing of an act to a person without the consent of that person any failure or omission by that person to offer resistance to the act does not of itself constitute consent to the act."

The Dublin Rape Crisis Centre has called for a definition of consent to be put into legislation following the ruling from the Supreme Court today.

Commenting on the judgment, Dublin Rape Crisis Centre CEO Noeline Blackwell said: "We welcome the clear statement of Irish law by the Supreme Court that lack of consent is equal to rape.

"The judges also recognised that the crime of rape springs from the constitutional right of a woman to be protected against a gross violation of her mental and physical integrity.

"However, what the judgment also shows is that our law on consent needs to be strengthened.

"The court found that an honest belief by an accused that the woman consented would be a good defence for the accused even if the belief is unreasonable."

She noted that the court had gone into some detail to consider the credibility challenges that an accused will face if claiming an honest belief of consent.

Repeating a call previously made by the Centre to Minister for Justice Frances Fitzgerald to include a statutory definition of consent in the Criminal Justice (Sexual Offences) Bill 2015 currently going through the Dáil, Ms Blackwell said: “Given that it took a question to a seven-judge Supreme Court to give us an up to date answer on the Irish law on consent, and given that the answer is still very complex and case-specific, it is more important than ever that the legislature would use the legislation currently going through the Dáil on sexual offence to clarify what is meant by consent.

"They should also ensure that they take the chance to improve our law so that it is entirely clear that a belief of consent must be real and well grounded in reality."

She added that the law is still focusing on the accused and "not on the reality".

"The Supreme Court set out first of all that sexual intercourse without consent is rape", she said. "But the question that they really had to tease out a bit was the mental element of an accused when they're having that sexual intercourse.

"In Irish law, if a person is having sexual intercourse with a woman and he really believes he has her consent, that will be a defence of rape."


KEYWORDS: rape, consent

 

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