THE LAW REFORM Commission has recommended changing current laws regarding consent in rape cases before Irish courts. 

The current law is that a man commits rape if he has sex 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 or not”.

If the accused asserts that he believed the woman was consenting, the test is whether he “honestly” or “genuinely” believed this.

The LRC said they recommend reforming the law by adding that the accused man commits rape if he “does not reasonably believe” that the woman was consenting.

The commission said that this is an objective test, where the accused man knows that the woman is not consenting or is subjectively reckless as to whether she is consenting.

The LRC’s second proposed reform is that, where the question of reasonable belief arises in a rape trial, the jury is to have regard to the accused’s personal capacity.

These are: any physical, mental or intellectual disability of the man, any mental illness of his, and his age and maturity. The LRC emphasised 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. 

The commission’s third proposed reform is that, where the question of reasonable belief arises, the jury is to take into account the steps taken by the accused man to ascertain whether the woman consented to the intercourse.

While it recommended a number of changes, the LRC said that any defendant’s self-induced intoxication should not be a defence for rape. 

Noeline Blackwell of the Dublin Rape Crisis Centre welcomed the recommendations. 

She told TheJournal.ie: “We agree with this proposal, that there must be a recognition that consent must have some element of reasonableness and that you must take a person’s own personal circumstances into account as well. So we think that’s a good thing.”

She added: “We’re delighted that the law reform commission puts a draft bill with it. And we say it’s now up to the Attorney General, and to go forward, bring this into law, because it’s a remnant of a different age, it should not be there and it is, it is an anachronism.”

With reporting by Órla Ryan