Consent section removed from landmark new rape law

Justice Minister Helen McEntee has withdrawn significant proposals around consent in the Government’s major reform of existing rape laws.

A provision in the legislation that has already been signed off by Cabinet sought to change the legal test around consent.

The bill published in July proposed that people accused of rape would have to convince a jury they took steps to get consent from their accuser.

The Irish Examiner has learned that Ms McEntee has now removed the provisions which were set out in amendment of Section 2 of the legislation reforming the 1981 rape laws.

Dublin Rape Crisis Centre CEO Rachel Morrogh has said this will deny protection to victims of sexual violence and has urged the minister to “reconsider this decision.”

A spokesperson for the Department of Justice said a section of the legislation has been removed for a number of reasons including a requirement for the provision to be thoroughly examined “in order to ensure that they are constitutionally sound”.

Dublin Rape Crisis Centre CEO Rachel Morrogh: ‘We believe the removal of these provisions weakens the legislation and we urge the minister to reconsider this decision.’

Dublin Rape Crisis Centre CEO Rachel Morrogh: ‘We believe the removal of these provisions weakens the legislation and we urge the minister to reconsider this decision.’

Ms McEntee revealed the landmark legislation last year and received Cabinet approval in July this year to publish the wide-ranging bill that seeks to strengthens the law around sexual offences and improve protections for victims.

She hailed the now-deleted section of the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 which outlined that honest belief that a victim had given consent would no longer be a defence in rape cases. The question would become whether the belief is one that a reasonable person would have held in the circumstances, rather than whether such belief was honestly held.

Ms McEntee also said changes were needed particularly around juries having regard to the steps the accused took to check whether the woman was consenting.

Fianna Fáil senator Lisa Chambers called on the justice minister to give a detailed explanation as to why the provisions have been dropped.

Fianna Fáil senator Lisa Chambers called on the justice minister to give a detailed explanation as to why the provisions have been dropped. 

Ms McEntee’s department said they hoped a separate piece of legislation addressing the matters would be progressed next year. However, senior government sources have said it would be “difficult” for it to be dealt with before the next general election.

Ms Morrogh said she is “concerned” at the removal of a section since the earlier version of the bill was published. She said:

The original version of the Bill would have been transformative in terms of victims’ access to justice, because it included the provision that consent must be ascertained before and during sex.

“The news today that this will be dealt with in later legislation will deny victims of sexual violence the protection provided in the original bill until a second piece of legislation is passed.

“We believe the removal of these provisions weakens the legislation and we urge the minister to reconsider this decision.

Ms Morrogh added: “We are concerned that it may be a step backwards in an area where there has been so much progress over recent years, where the minister and her department have shown great commitment and focus.”

The provisions included in the initial legislation arise from recommendations of the Law Reform Commission.

A spokesperson for the department said: “The Director of Public Prosecutions has highlighted serious issues with redefining the ‘mental state’ in relation to rape in isolation, as had been recommended, without also extending it to sexual assault.

“The Department is also considering the implications of a recent Supreme Court judgment and how it may impact the proposals.

The provisions need to be thoroughly examined in order to ensure that they are constitutionally sound.

“A separate sexual offences bill, putting sexual assault on a statutory footing, will ensure the law in relation to consent remains consistent across these offences. This will be progressed next year.”

The spokesperson added that other elements of the Bill are “time sensitive”, so it is “intended to proceed with the rest of the Bill without delay.”

Fianna Fáil senator Lisa Chambers has called on Ms McEntee to give a detailed explanation as to why the provisions have been dropped and said it would be helpful for the Oireachtas for the serious issues raised by the DPP to be published.

“There will be a lot of disappointment about this,” she said.

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