Tánaiste Frances Fitzgerald is to seek Cabinet approval on Tuesday to define sexual consent in legislation for the first time.
She will bring a memo to this morning’s Cabinet meeting outlining how she intends to address the anomaly in Irish law.
The changes proposed will make it clear that a person is incapable of consenting to a sexual act if they are asleep or unconscious, as a result of intoxication or if they are mistaken as to the identity of the other person.
The law will also stress that a person cannot consent if they are being unlawfully detained, if they are unable to communicate due to a physical disability or if consent is offered through a third party.
A Department of Justice source said the provisions would provide additional clarity for the legal system in sexual offences cases.
They would also serve “ as a clear reminder to those who would take advantage of persons who, in particular circumstances, are unable to consent.
The changes that the Criminal Law (Sexual Offences) Bill will bring, once enacted, will be far-reaching and will bring additional protections to some of the most vulnerable people in our community.”
Ms Fitzgerald is to introduce the definition of consent through an amendment to the Criminal Law (Sexual Offences) Bill, which is to be heard in the Dáil next week.
Supreme Court ruling
The Tánaiste had signalled her intention to clarify the law last year after a ruling by the Supreme Court.
Mr Justice Peter Charleton was asked by the Director of Public Prosecutions to clarify the law in cases where a man charged with rape claims the woman agreed to sex.
Mr Justice Charleton ruled that consent cannot exist if a woman, for any reason, is not in a condition to give it.
Ms Fitzgerald’s proposed legislative change aims to give guidance to the legal system dealing with such cases.
The Law Reform Commission made recommendations in this area as far back as 1988 and various bodies, including the Rape Crisis Network of Ireland, has pressed for legislative clarity.
The Criminal Law (Sexual Offences) Bill, which is due to be debated in the Dáil on February 1st, will introduce a number of new measures in this area.
It will introduce two new criminal offences targeting online sexual predators, including criminalising adults who contact children with a view to exploiting them.
The Bill will increase the penalty for incest by a female up to life imprisonment. This is in line with the existing penalty for incest by a male.