People who stand accused will now have to detail the steps they took to obtain consent
Justice Minister Helen McEntee presented major rape law reforms to her colleagues at the last cabinet meeting before the summer recess.
The proposals have been welcomed by campaigners, but legal experts expressed concerns about their impact.
Under the new laws, people who deny rape will have to detail the steps they took to obtain consent.
Currently, those accused of the crime can be found not guilty if they say they honestly believed they had obtained consent — a subjective test.
However, the new law means they must show how they sought consent, changing it to an objective test.
Ms McEntee said it will ultimately be up to the jury to decide whether they believe the defendant when they outline the steps they took to get consent.
The new legislation also changes the definition of rape, meaning the accused only commits rape if, at the time of sexual intercourse, they do not “reasonably believe” the other party has consented.
The jury will then consider the physical, mental or intellectual disability of the accused, any mental illness, their age and maturity.
Ms McEntee said there should “never” be a situation where someone is in doubt as to whether or not the other person is consenting.
“I think it’s really important that we move away from this idea that a person can simply say, ‘I honestly believed that the person was consenting’,” she said.
“But to a reasonable person, this person couldn’t talk, was maybe not able to walk, might have had something happen to them — or they very clearly did not consent.”
While the legislation is still in its early stages and based heavily on a report from the Law Reform Commission and the O’Malley Review, the Sunday Independent spoke to a number of legal sources and experts who raised concerns about how exactly a defendant can show the steps they took to obtain consent.
Dr Caroline West, the outreach co-ordinator at Active Consent, said verbal consent should be a “standard”.
“We infer someone’s intentions in various ways; for instance, through non-verbal behaviour, facial expressions and, of course through, language,” she said.
“Not alone does this change mean that we are prompted to accept verbal consent as a standard, but we also need to consider the nuances of verbal consent — for instance, verbal agreement from a partner who is intoxicated or from someone who is compliant rather than consenting, would not equate with ‘verbal consent’.
“When we speak about sex, we may do so in a one-sided way — ‘Can I do this?’ — rather than in a mutual way, or in a way that lacks clarity.”
Dr West welcomed the new legislation, saying that “everyone has a clear responsibility to ensure that they are actively seeking and confirming consent”.
Rape Crisis Network Ireland (RCNI) has also lauded the changes, saying the accused will be held to standards that are “more fair” to society.
“It recognises that if the perpetrator has, for some reason, an honestly held belief but what we would all consider a really unreasonable understanding of consent, for example, we can say, no, that’s just not reasonable. It’s just not reasonable that you thought that,” said chief executive Clíona Saidléar.
“I think it’s about holding the perpetrator to a standard that feels more fair to all of us.”
However, legal experts cautiously welcomed the legislation.
NUI Galway law lecturer Dr Conor Hanly said he does not believe trials will become easier for victims because of the new laws.
“The definition [of rape] is better, and that is obviously better for complainants. It raises the prospect of increased rates of prosecution and increased rates of conviction,” he said.
“It is still going to be an adversarial trial — the complainant will have to give evidence, there is simply no way around it.”
He also believes the new laws could bring about a “shift” in behaviour.
“One of the things that might come from this is that it might encourage men to ask,” he said.
“It may prompt a shift in behaviour. I suspect we would need advertising campaigns and things like that, and if it does, it’s all super-good.
“It might take some of the romance out of some sexual encounters and make it very transactional, but you know, if it avoids incidents of rape, that’s a good thing.”
Speaking privately, one legal source said the legislation will be meaningless for historical rape cases, where juries spend a lot of time trying to determine whether sexual activity took place, not if it was consensual.
“It’s quite rare that a man says we had sex and I thought I had consent,” the source said.
Barrister Garnet Orange said the minister may consider putting in place a “reverse burden of proof”, where the accused has to “prove” they had consent.
However, there must be something in the evidence before the jury can consider the issue.
“A reverse burden of proof imposes a fairly low evidence threshold for a defence to be considered by the jury,” Mr Orange said.
“In short, there is nothing unusual here, and this would not necessarily be a radical change in the law. It would only really be relevant in those rare cases where the accused has said nothing to the police.”
However, he said he would be in favour of defendants being aware of the accusation before them — and if they believe they had consent, to say so, which will mean they will be questioned on that issue.