Consent in Sexual Offences

Legislation

• Criminal Law (Rape) Act 1981, s 2(2)

• (1) "A man commits rape if—

• (a) he has sexual intercourse with a woman who at the time of the intercourse does not
consent to it, and

• (b) at that time he knows that she does not consent to the intercourse or he is reckless as to
whether she does or does not consent to it …

• (2) It is hereby declared that if at a trial for a rape offence the jury has to consider whether
a man believed that a woman was consenting to sexual intercourse, the presence or
absence of reasonable grounds for such a belief is a matter to which the jury is to have
regard, in conjunction with any other relevant matters, in considering whether he so
believed.“

• Two alternative mens rea

• Intention, where the accused knew at the time of intercourse that the woman was not
consenting

• Recklessness, where the accused took an advertent risk that the woman was not consenting.

• (1) The Commission recommends altering the mens rea of rape under s.2 of the 1981 Act, by
adding a third potential mental element to the two which currently exist.

• At present a man commits rape if he has sexual intercourse with a woman who does not
consent and (i) he knows that she is not consenting, or (ii) he is subjectively reckless as to
whether she is consenting.

• The recommendation would add (iii) he does not reasonably believe that she is consenting.

• At a rape trial wherein the issue of reasonable belief arises, the jury is to have regard to a
specific and exhaustive list of circumstances related to the accused’s personal capacity.

• Anything beyond the list is not to be taken into account.

• The list includes any physical, mental or intellectual disability of the man; any mental illness
of his; and his age and maturity.

• This is said to introduce a subjective element to the test of reasonable belief.

• Did the accused, given those circumstances (and only those), reasonably believe that the
woman was consenting to sexual intercourse with him?

• Introducing an element of “due diligence”, where the issue of reasonable belief arises, the
jury is also to have regard to any steps taken by the accused man to ascertain whether the
woman consented to the intercourse.

• This aligns with “the concept of communicative sexuality” which was referred to in the
Dublin Rape Crisis Centre submission to the Commission.
•

• Criminal Law (Rape) (Amendment) Act 1990, s.9

• 9.—It is hereby declared that in relation to an offence that consists of or includes the doing
of an act to a person without the consent of that person any failure or omission by that
person to offer resistance to the act does not of itself constitute consent to the act.

• Knowledge or Belief Concerning Consent in Rape Law

• The broad outline of the proposed legislative change is to move from the subjective honest
belief test to a primarily objective test.

• There are three main elements to the proposals:

• Add “not reasonably believe that she is consenting” to s2(2)

• Jury should consider specific circumstances related to the accused’s personal capacity when
considering “honest belief”

• Introduce an element of “due diligence”

• From Subjective to Objective

• The existing law asks the jury to determine a primarily subjective question, through
deliberation which involves objective considerations;

• the proposed new test would flip the approach and ask a jury to determine a primarily
objective question, through deliberation which considers certain, limited, subjective factors.

• Both approaches are mixed, but the recommendation shifts the legal emphasis from
subjective to objective, from honesty to reasonableness.

• Criminal Justice (Sexual Offences) Act 2017 s.48

• Amendment to Section 9 of the 1990 Act

• “9. (1) A person consents to a sexual act if he or she freely and voluntarily agrees to engage
in that act.

• (2) A person does not consent to a sexual act if—

• (a) he or she permits the act to take place or submits to it because of the application of force
to him or her or to some other person, or because of the threat of the application of force to
him or her or to some other person, or because of a well-founded fear that force may be
applied to him or her or to some other person,

• (b) he or she is asleep or unconscious,

• (c) he or she is incapable of consenting because of the effect of alcohol or some other drug,

• (d) he or she is suffering from a physical disability which prevents him or her from
communicating whether he or she agrees to the act,

• (e) he or she is mistaken as to the nature and purpose of the act,

• (f) he or she is mistaken as to the identity of any other person involved in the act,
 • (g) he or she is being unlawfully detained at the time at which the act takes place,

• (h) the only expression or indication of consent or agreement to the act comes from
somebody other than the person himself or herself.

• 3) This section does not limit the circumstances in which it may be established that a person
did not consent to a sexual act.

• (4) Consent to a sexual act may be withdrawn at any time before the act begins, or in the
case of a continuing act, while the act is taking place.

• (5) Any failure or omission on the part of a person to offer resistance to an act does not of
itself constitute consent to that act.

“Honest Belief”

• If the accused believes that the woman is consenting, even though he is incorrect, he has not
committed the offence of rape – Subjective in Nature

• What if “belief” is mistaken

• What if “belief” is unreasona\ble

• Hence S2(2) specifically requires juries in rape cases to have regard to the presence or
absence of reasonable grounds for the accused’s belief in consent, along with any other
relevant matters

• Relevant case Law

• People (DPP) v CO’R [2016] IESC 64; [2016] 3 IR 322

• Background

• Accused convicted of raping his 66-year-old mother on the night of Mother’s Day in March
2008

• Mother had been out socialising all day.

• Son was also out.

• When he got home they started drinking together and started dancing

• Mother didn’t remember much afterwards until she realised son was raping her on the floor.

• Mother claimed she said “leave me alone”

• Son said she only said this after the event when he offered to help her up from the floor

• Questions of law

• whether or not he honestly believed his mother was consenting.

• whether or not there is present or absent reasonable grounds for such a belief

• Should the law be based on objective tests or subjective tests

 • i.e. what a reasonable man believed as to the presence of consent, or what the individual
accused actually believed.

• Decision

• Accused lost his appeal

• Honest Belief

• Where the accused believed genuinely, albeit unreasonably, that the woman was consenting,
he must, even though she did not consent, be acquitted. – Objective Test

• However, no jury is under any obligation to believe an obviously false story.

• A jury is entitled to accept or reject any prosecution or defence evidence.

• In this case the jury were entitled not to believe he had genuine belief – Subjective Test

• Decision (cont)

• Recklessness

• Recklessness means the accused man was aware that there was a risk that the woman was
not consenting but nonetheless proceeded.

• If it is proven that he was aware that there was a real risk that the woman was not
consenting but he proceeded to have, or continue, intercourse with her in spite of this, then
recklessness is established.

• Implications/Impact

• As per Charleton J

• "If sexual intercourse and lack of consent is proven, then the jury should consider the mental
element, in other words, what was the accused’s state of mind at the time…Where…the
accused claims to have mistakenly believed that a woman was consenting, then the jury
should examine all of the facts which may support or which may undermine that claimed
belief.

• They should consider all of the circumstances and focus on whether there are, or are not,
any reasonable grounds for that belief…It needs also to be stated by trial judges, however,
that no jury is under any obligation to believe an obviously false story."

• "In these cases, every jury is entrusted, using shrewdness and common sense, to judge what
the accused claims as to his mistaken belief against their view of what an ordinary or
reasonable man would have realised in the circumstances.

• The defence requires genuine belief.

People (DPP) v McDonagh [1996]

• Background

• Three accused were convicted of the brutal gang rape of a young woman.
 • They alleged not only that the victim had consented to this sexual violence but that she had
offered to have sexual intercourse with the group of which they were part for a money
payment.

• Appealed on the basis that the trial judge had not fully explained the legislation especially
s.2 sub-s.2 of the’ Act of 1981

• Questions of law

• In any rape trial in which the fact of sexual intercourse is admitted and in which the defence
of consent is raised is it necessary that the trial judge should refer to and explain to the jury
the provisions of sub-s. 2 of s. 2 of the Criminal Law (Rape) Act, 1981, and in the particular
circumstances of this case was such a direction requisite?

• Decision

• Lost their appeal

• If the jury concluded that, as a matter of fact, the complainant had not consented to
intercourse in return for the payment of money as alleged by the appellants then there was
on the facts of the case no basis on which it could conclude that the accused had believed
that she had consented to intercourse.

• The issue of consent is ‘a question of fact’ and ‘not a question of belief’

• Implications/Impact

• In every case in which intercourse is admitted and a claim of consent is raised the nature of
the crime of rape as set out in sub-s. 1 of s. 2 of the Act of 1981 must be explained to the
jury.

• The jury must be told not only that it must be satisfied beyond a reasonable doubt that the
complainant had not consented to sexual intercourse, but also that the accused knew that
the complainant had not consented or was reckless as to whether or not she had consented

• Doesn’t have to be explained in every case - only those in which the jury is required to
consider whether a man believed that a woman was consenting

R v Ewanchuk [1999]

• Background

• Accused interviewed complainant for a job in a trailer he owned

• During the interview he became very tactile and began massaging the complainant’s
shoulders. She massaged his shoulders also

• At certain points she said stop, and he stopped

• He started again and ended up touching her intimately. She said nothing for a little while
before saying stop again, and he did
 • She later testified that, although she was extremely afraid throughout the encounter, she
said nothing as she wanted to project a confident demeanour, in the belief that this would
improve her chances of avoiding a violent assault

• Ewanchuk was acquitted as court felt he had believed there was “implied consent” by her
silence and behaviour

• Questions of law

• The crown (the state) appealed on the following grounds:

• Did the trial judge err in his understanding of consent in sexual assault

• Does the defence of 'implied consent' exist in Canadian law

• Decision

• Crown won the appeal and Ewanchuk was convicted

• Three elements to prove the actus reus of sexual assault

• (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent

• Consent is therefore part of the actus reus of the offence of sexual assault

• If the judge believes the complainant when she says she did not consent, then there can be
no “implied consent”

• Implications/Impact

• Any defence offered that…..

• unless a woman protests or resists, she should be "deemed" to consent

• or if a woman is not modestly dressed, she is deemed to consent.

• no longer find a place in Canadian law

• A woman either consents or not, there is no third option of “implied consent”

Other Key Issues

• Sex offender requirements

• Informed consent

• Protected person

• Children

• Person in authority

• Incest

• Soliciting etc.

• Exposure, offensive conduct etc

Sex Offender Requirements

• Sex offenders Act 2001

• Section 10 - Person required by this act shall within 7 days of conviction or date of
commission of Act, shall notify Gardaí of; Name(s) & Address(s) D.O.B. Any change of name
or address Any address for periods of at least 7 days in last 12 months. If a person intends
leaving state for more than 7 days, must notify Gardaí of new address

• If person stays longer than 7 days, must notify state within next 7 days of that fact and notify
address. If person returns within 2nd, 7 days, not necessary to notify.

• Notification can be made at any Garda Station which is Divisional or District H.Q. and made
either Orally or in Writing. Does not apply to prisoners serving time or on temporary release.

• “Home Address” means Sole or main residence or last or most usual place of abode

• “Qualifying Period” means Period of 7 days or more periods in 12 mts, which amount to 7
days

Protected Person

• Criminal Law (Sexual Offences) Act, 2017

• Section 21 (1) A person who engages in a sexual act with a protected person knowing that
that person is a protected person or being reckless as to whether that person is a protected
person shall be guilty of an offence.

• (2) A person who invites, induces, counsels or incites a protected person to engage in a
sexual act knowing that that person is a protected person or being reckless as to whether
that person is a protected person shall be guilty of an offence.

• Unless contrary is proved, it is assumed accused knew the victim was a protected person

• If the sexual act consisted of sexual intercourse, buggery – life imprisonment

• If the act was a sexual assault – 14 years

• If subsection 2 (invites, induces etc) – 10 years

What is a protected Person

• Criminal Law (Sexual Offences) Act, 2017

• Section 21(7) For the purposes of this section, a person lacks the capacity to consent to a
sexual act if he or she is, by reason of a mental or intellectual disability or a mental illness,
incapable of—

• (a) understanding the nature, or the reasonably foreseeable consequences, of that act,

• (b) evaluating relevant information for the purposes of deciding whether or not to engage in
that act, or
 • (c) communicating his or her consent to that act by speech, sign language or otherwise,

• and, in this section, such a person is referred to as a “protected person”.

Offences against children

• Section 1 Criminal Law Amendment Act 1935 (as amended by Section 2 Criminal Law (Sexual
Offences) Act, 2006 and Section 16 Criminal Law (Sexual Offences) Act, 2017

• Sexual act with child under 15 years of age

• Section 16 - A person who engages in a sexual act with a child who is under the age of 15
years shall be guilty of an offence and shall be liable on conviction on indictment to
imprisonment for life or a lesser term of imprisonment.

• (2) also includes attempt

• (3) It is a defence if the defendant claims he was reasonably mistake as to the age of the
child

• (4) in considering this defence court will consider if a reasonable person would conclude the
child was that age

• (5) standard of proof for defence – balance of probabilities

• (6) not a defence to say the child consented

Person in authority

• Criminal Law (Sexual Offences) Act, 2017

• Section 3A. (1) A person in authority who engages in a sexual act with a child who has
attained the age of 17 years but is under the age of 18 years shall be guilty of an offence.

• Same provisions for defence of “honest belief” as in S.16

• Cannot use defence of “consent

• Penalty on indictment – 10 years

• “person in authority”, in relation to a relevant person against whom an offence is alleged to

have been committed, means any person who as part of a contract of service or a contract
for services is, for the time being, responsible for the education, supervision, training,
treatment, care or welfare of the relevant person;

• “relevant person” means a person who has—

• (a) a mental or intellectual disability, or

• (b) a mental illness,

• which is of such a nature or degree as to severely restrict the ability of the person to guard
himself or herself against serious exploitation.
Incest

• Criminal Law (Sexual Offences) Act, 2017

• Section 28 - (1) Any male person who has carnal knowledge of a female person, who is to his
knowledge his grand-daughter, daughter, sister or mother, shall be guilty of an offence and
shall be liable on conviction on indictment to imprisonment for life or a lesser term of
imprisonment.

• (2) It shall not be a defence to proceedings for an offence under this section for the
defendant to show that the carnal knowledge was had with the consent of the female
person.”.

Soliciting

• Criminal Law (Human Trafficking) Act, 2008 (As Amended)

• Section 2 Trafficking of children for the purposes of the exploitation

• Section 5 Soliciting or importuning for purposes of prostitution of trafficked person

Exposure, offensive conduct etc

• Criminal Law (Sexual Offences) Act, 2017

• Section 45. (1) A person who exposes his or her genitals intending to cause fear, distress or
alarm to another person is guilty of an offence.

• (2) A person who, in a public place, engages in (a) sexual intercourse, (b) an act of buggery, or
(c) an act of masturbation, is guilty of an offence.

• (3) A person who intentionally engages in offensive conduct of a sexual nature is guilty of an
offence.

• Power of arrest where a member of An Garda Siochana, with reasonable cause, suspects that
a person is committing or has committed an offence under this section

• Summary Class D fine and/or 6 months, on indictment 2 years