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Accused in rape cases must show how consent was obtained under new law

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People accused of rape will have to convince a jury they took steps to get consent from their accuser in a major reform of rape laws.

Currently, those accused of rape can be found not guilty if they honestly believed they had obtained consent. However, following sign-off from senior ministers, new laws will mean the accused will have to show how they tried to get consent from their accuser.

The landmark legislation from Justice Minister Helen McEntee will strengthen consent laws, meaning those accused of rape will no longer be able to use being drunk and believing they had consent at the time as a viable defence.

Under the new proposals, a defence of believing consent had been given has to be “objectively reasonable”.

Juries will have to determine if any steps taken by the accused to check if the other party gave their consent at the time of sexual intercourse are “reasonable”.

The new bill will mean the accused only commits rape if, at the time of the sexual intercourse, they do not “reasonably believe” the other party had given their consent.

The present definition of rape is that one party knows that the other has not given consent or is unable to give consent.

They will then consider the physical, mental or intellectual disability of the accused, any mental illness, as well as their age and maturity.

The Sexual Offences and Human Trafficking Bill, which will go to Cabinet today, includes policy commitments from Ms McEntee’s third national strategy on domestic, sexual and gender-based
violence. She is expected to get the green light from colleagues to publish the General Scheme of the Bill, and begin drafting the full legislation.

The long-awaited reforms aim to protect victims, empower them to come forward and protect their vulnerability as they seek justice through the courts.

The new laws will also see anonymity for victims and the accused in all trials for sexual offences, not just in rape trials.

The public will also be excluded from the courtroom for sexual offence trials.

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Anonymity may also be extended for other offences, where vulnerable victims are targeted, including people with mental illness or an intellectual disability. However, this will not affect the media’s ability to report the verdict, sentence or proceedings.

The definitions of “broadcast” and “publication” will be changed to ensure that social media is covered in order to protect the victim’s identity.

Those accused of these offences will also remain anonymous in case they are found not guilty.

If an accused person is convicted of a sexual offence, they may be identified unless to do so would lead to the victim being identified.

If victims are to be questioned on their previous sexual experiences, they will be entitled to separate legal representation – this will include trials for sexual
assault offences, not just rape offences as is currently the case.

The barrister assigned to represent the victim will also be allowed to continue to represent the victim at the questioning.

The hardening up of consent legislation follows on from recommendations of the O’Malley review of protection of vulnerable witnesses in the investigation and prosecution of sexual offences.

These recommendations underpin the Department of Justice’s plans to support victims and vulnerable witnesses in sexual violence cases.


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