The Bill aims to amend the law relating to rape by requiring a man to have reasonably believed that he had the consent of the victim before a jury can find him not guilty of rape. Currently an individual might be acquitted of rape charges if they genuinely, albeit erroneously, believed that they had obtained the victim's consent. The Bill would require an objective assessment of the accused’s position, asking whether the belief is one that a reasonable person would have held in the circumstances, rather than whether such belief was honestly held, which is a subjective consideration. Under the new legislation, a jury must have regard to the steps, if any, taken by the accused to ascertain whether the victim consented to the intercourse.
In a press release, the Minister for Justice Helen McEntee stated:
“One of my key priorities as Minister for Justice is tackling domestic, sexual and gender-based violence and better supporting and protecting victims of crime.
“The Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 is a key piece of legislation to deliver on these priorities.
“It will strengthen the law around consent in rape cases, requiring that an alleged perpetrator must have ‘reasonably believed’ that they had consent and removing the current defence of ‘honest belief’. A subjective belief that a person had consent should not be sufficient to be used a defence.
“This is in line with recommendations of the Law Reform Commission.”
The Bill amends the procedures applicable in proceedings for certain sexual offences including in relation to the adducing of evidence by requiring that if a person wants to give a character reference for someone who has been convicted of a sexual offence at their sentencing hearing, the reference must be given on oath or via affidavit. This measure will guarantee that the individual offering the reference attests to the truthfulness of their declaration and can be summoned to appear in court for questioning by the opposing side. Essentially, this will prevent character reference letters from being presented in court without the possibility of being contested.
Certain elements of the Bill aim to improve the victim’s journey through the criminal justice system. The new law would permit the barrister representing the victim to continue to represent them during the questioning on their previous sexual experience, would ensure anonymity for the victims in all trials for sexual offences and for the accused in trials for certain sexual offences. With the same aim, the Bill will repeal the statutes that provide that the verdict or decision in trials be announced in public.
The Bill also introduces the National Referral Mechanism, thorough which the State identifies and supports victims of human trafficking. Currently, An Garda Síochána is solely responsible for identifying victims of human trafficking. Under the new Mechanism, multiple other relevant departments and agencies will be designated as competent authorities to identify victims and will also allow civil society organisations supporting victims of trafficking to be designated as Trusted Partners. To become a Trusted Partner, a registered charitable organisation which works with or provides services to, people who have been or are being trafficked for the purposes of exploitation may apply to the Minister of Justice under section 21 of the Bill.
Click here to read the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023.