‘Unreasonable’ belief consent was given is defence to rape, court ruled
Supreme Court ruling in 2016 considered ‘mental element’ of rape
In his Supreme Court judgment, Mr Justice Peter Charleton said the “border between rape and sexual intercourse is consent”. Photograph: Chris Maddaloni/Collins
The issue of consent in a rape trial was examined by the Supreme Court in 2016 in a seven-judge ruling that considered what lawyers call the “mental element of rape” or what was in the mind of the accused.
One of the questions considered was whether “the mental element of rape” excuses a situation where “on unreasonable and irrational grounds a man genuinely believes that a woman has consented to sexual intercourse, whereas in fact she has not so consented?”
The judgment, written by Mr Justice Peter Charleton, also asked whether there was a requirement in law for “a man to ascertain prior to sexual intercourse that: the woman is (a) capable of consenting to sexual intercourse; and (b) that as a matter of fact she does so consent”.
The judgment was concerned with a case where a man was accused of raping his mother, during an occasion when a lot of alcohol had been consumed.
According to barrister Tony McGillicuddy, for a prosecution of rape it must be proved beyond reasonable doubt that a man had sexual intercourse with a woman, and that there was no consent.
It must also be shown that the accused knew there was no consent, or that he was reckless as to whether consent existed. If a man is claiming that he believed consent existed, the jury is allowed consider if there are reasonable grounds for his having that belief.
“They have to access what he subjectively believed. But being reckless by taking a substantial risk that the woman is not consenting, can be a reason to convict.”
In his Supreme Court judgment, Mr Justice Charleton said the “border between rape and sexual intercourse is consent”.
He said that the mental element of rape “requires the accused to know that the woman does not consent to intercourse or for him to be reckless as to whether she does or does not consent”.
The possibility that a woman is not consenting must actually occur in the mind of the accused. It may be claimed at a trial that the accused genuinely believed the woman was consenting, even where the basis for such a belief is totally unreasonable.
“An honest, though unreasonable, mistake that the woman was consenting is a defence to rape.” It is for a jury in the given case to determine whether a claim of honest though unreasonable belief in consent was held by the accused.
No jury is under any obligation to believe an obviously false story, the judge noted.
Mr Justice Charleton said that in the case he was considering, the trial judge directed the jury that if the accused man believed the woman “might be” consenting, then that could be a reason for acquittal. This was a mistake. “No one is entitled under our law to justify any deprivation of the constitutional rights of another person on the basis that they might have been consenting.
“If an accused is aware of the possibility that a woman may not be consenting, any conscious disregard of this advertence to that possibility means that for him to proceed is for him to act recklessly: and thus criminally.”
Consent is defined in law in the Criminal Law (Sexual Offences) Act 2017 and says that a person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act. There are long list of circumstances which mean consent does not exist, such as if there is a threat of force, or the woman is asleep, or is incapable of consenting because of alcohol or drugs.
A failure or omission on the part of the woman to offer resistance does not of itself constitute consent.