State to review use of honest belief of consent as rape defence

Frances Fitzgerald secures Cabinet approval to define consent in legislation for first time

October 10th, 2016: Irish college students talk about sexual assault, rape and their thoughts on campus culture and consent. Video: Kathleen Harris


The Government is to review the use of honest belief that a person consented to sex as a defence in rape cases.

Tánaiste Frances Fitzgerald secured Cabinet approval on Tuesday to define consent in legislation for the first time.

Under the proposed legislative changes, consent cannot be given if a person is asleep, intoxicated or mistaken to the identity of the person involved or the nature of the sexual act.

It will also clarify consent can be withdrawn at any time before the act begins, or while the act is taking place.

The legislative change will stress failure to resist the sexual act cannot constitute consent to that act.

The Cabinet also committed to examine further changes to legislation and to ask the Law Reform Commission to assess if the defence of honest belief is still acceptable. This is when an accused can be acquitted of rape if he can persuade a jury and the court that he believed consent was given, even if the person was asleep or unconscious or unable to communicate.

The review was agreed to after a request by Minister for Children Katherine Zappone, who said she hoped legislation could be introduced by the end of the year.

Ms Zappone said the defence of honest belief in the consent of a victim is outdated and this is an opportunity to introduce changes.

“The current practice allows the accused to continue their illogical process of forming beliefs and risks them engaging in the same behaviour again.

“Now we have an opportunity to modernise our laws and introduce a long overdue victim-centred approach.”

This will be separate to Ms Fitzgerald’s clarification of consent in legislation, which will be introduced through the Sexual Offences Bill next week.

The changes proposed will make it clear that a person is incapable of consenting to a sexual act 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.

Supreme Court

The Tánaiste had signalled her intention to clarify the law last year after a ruling by the Supreme Court.

Ms Fitzgerald said the provisions will help provide additional clarity to those dealing with cases involving sexual offences.

She said: “The changes in the Criminal Law (Sexual Offences) Bill are far-reaching and will bring additional protections to some of the most vulnerable people in our community.”

The Cabinet decision was welcomed by interest groups including the Women’s Council of Ireland, the Rape Crisis Network of Ireland and Women’s Aid.

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 woman to up to life imprisonment. This is in line with the existing penalty for incest by a man.