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Ireland: Judgment Clarifies Definition of Consent in Rape Cases

(Nov. 21, 2016) As a result of a recent judgment from the Irish Supreme Court, the Irish government will introduce legislation to establish a definition of consent for rape. In the case decided November 11, 2016, the Court held that a woman has a constitutional right to the integrity of her body and that the belief that a woman might be consenting to intercourse is not a defense against an accusation of rape; there must be “an honestly held belief” that the woman was actually consenting, and the jury must consider whether this honest belief of actual consent was reasonably held.  (Director of Public Prosecutions v C O’R [2016] IESC 2012 CA 297.)

The offense of rape is currently contained in section 2 of the Criminal Law (Rape) Act, 1981 (as amended), which provides that rape occurs if a man knowingly has sexual intercourse with a woman when she has not consented or if the man was reckless as to whether the victim did or did not consent. The term consent is not defined in the legislation.  (Criminal Law (Rape) Act 1981, No. 10 of 1981, IRISH STATUTE BOOK.)

This is not the first time that the issue of the lack of definition for the word consent in Irish legislation has arisen. In the 1980’s the Law Reform Commission recommended that a definition be introduced.  More recently, the Minister for Justice and Equality was reported as stating that a statutory definition of consent would be included in the Criminal Justice (Sexual Offences) Bill 2015; however, the bill as it currently stands does not include this provision, and the Supreme Court judgment has led to calls for the bill to be amended to include a definition.  (Criminal Law (Sexual Offences) Bill 2015, No. 79 of 2015, Oireachtas website; Press Release, Dublin Rape Crisis Centre, Supreme Court Judgment Highlights that Sexual Intercourse Without Consent Is Rape (Nov. 11, 2016); Cliodhna Russell, Calls for Legislation on Definition of Consent Following Supreme Court Ruling in Rape Case, THE JOURNAL.IE (Nov. 11, 2016); Mary Carolan, Belief that a Woman “Might” Be Consenting to Sex Is Not a Defence, Court Rules, IRISH TIMES (Nov. 11, 2016).)