Cabinet has approved a proposal tabled by Tánaiste and Minister for Justice Frances Fitzgerald to define sexual consent in legislation for the first time.
The proposal is part of the Criminal Law (Sexual Offences) Bill, which is in its final stages. The proposed changes to the law surrounding consent and sexual offences are expected to clarify that a person is not capable of giving their consent to sexual acts if they are asleep or unconscious, if they are intoxicated or if they are mistaken as to the identity of the other party. Similarly, no valid consent can be given if the person is unlawfully detained, if they are unable to communicate due to physical disability or if consent is offered through a third party.
The Tanaiste undertook to provide a legislative definition of consent after a Supreme Court ruling on the issue of consent last year. The Criminal Law (Rape) Act 1981 Act stipulates that the mental element of rape is satisfied either where the accused knows that the woman is not consenting or is reckless as to whether she is consenting. Mr Justice Charleton emphasised that there can be no consent where the woman is in no condition to give consent, including situations of “insensibility”, where the woman is in an intoxicated or drugged state, and as such is unable to actively communicate her consent.
The Law Reform Commission has called for legislation to define consent since 1988, when the Commission recommended that the Oireachtas clarify the law so as to put it beyond doubt that consent obtained by force or fraud is not consent. Its 1988 report also recommended that a definition of consent should also require that consent be “freely and voluntarily given”, and that consent is not freely given if it is obtained by force, threat, intimidation, deception or fraudulent means. The Law Reform Commission has noted that the Irish Association for Victim Support had voiced concerns that the lack of legislative definition of consent created a real danger of juries equating a failure to offer physical resistance with consent.
Additionally, the Criminal Law (Sexual Offences) Bill creates two new offences targeted as sexual conduct online, including criminalising adults who contract children online with a view to exploiting them. The Bill also provides for a maximum life sentence for females convicted of incest, in line with the maximum sentence for men.
Click here to view the Criminal Law (Sexual Offences) Bill.
Click here to read the statement issues by Tanaiste and Minister for Justice and Equality Frances Fitzgerald TD.