Simon Harris described issues of consent and sexual violence as ‘a real epidemic in our country,’ while speaking at a meeting with the National Advisory Committee on sexual harassment and violence in third-level education last month. Following this meeting, Harris announced his commitment to tackling this epidemic across third-level institutes with the commencement of immediate actions. The first of these actions require universities to publish an action plan on sexual harassment with compliance to be monitored by the Higher Education Authority.
Since this announcement University College Dublin (UCD) have revealed that incoming first years will now have access to a mandatory module on bystander intervention which will be available online as part of this years remote orientation package. As well as this step in tackling issues of sexual assault on campus, Dr Jason Last, Dean of Students, has also stated that several new policies concerning this issue will be launched later in the year.
In the meantime, it is crucial that students have some knowledge surrounding the current Irish law on issues of consent, rape and sexual assault.
Where is consent found in Irish law and how is it defined?
The starting point for any issue surrounding consent is the Criminal Law (Sexual Offences) Act 2017, s.48. (This can be found freely online at irishstatutebook.ie) This section starts off by describing consent as a free and voluntary agreement to a sexual act. What this means is that consent must be freely given, it cannot be forced, it cannot be given by somebody who is unconscious, who is incapable under the influence of drugs or alcohol, who cannot communicate consent, who is mistaken as to the sexual nature of the act or someone who did not give consent themselves. S.48 does not limit the circumstances in which consent cannot be given but offers a fairly comprehensive list as a starting point on the issue.
What is the current Irish law on rape?
This was considered in great detail by Charelton J in the relatively recent case of DPP v C O’R  3 IR 322, IESC 64. Basically he clarifies that, under Irish law, the absence of consent to a sexual act is objective, any reasonable person could say whether or not there was consent. However, the accused’s view as to whether or not consent was given is subjective and because of this an honest, if unreasonable, mistake of consent is a defence to rape. While this honest belief test ‘places a premium on ignorance’, it is the current law and important to be aware of.
The law surrounding sexual assault in Ireland, how is it established and what does it include?
Sexual assault is dealt with in the Criminal Law (Rape) (Amendment) Act 1990 s.2 (Again, available on irishstatutebook.ie). There is an issue here being that no precise definition of assault is given under this legislation. However, it is held by academic O’Malley that the assault itself doesn’t have to be sexual or indecent if it is accompanied by circumstances that can be considered sexual or indecent. It is also important to know that assault in this context includes the apprehension of assault and, depending on the circumstances, words may also amount to a sexual assault.
Essentially the three elements of a sexual assault are: intention to assault the victim and that the assault itself or the circumstances in which it took place are objectively proven to be sexual or indecent. The difference with the issue of consent between sexual assault and rape is that with sexual assault the consent aspect is still governed by common law. This means that consent is not, strictly speaking, a defence but rather the absence of consent is something that the prosecution must prove to a standard beyond any reasonable doubt.
It remains to be seen what further policies will be implemented by Harris and indeed the university itself, but the most important thing for each student is to have an awareness of the current law on the issues and also of the various services available for any affected by these issues.
If you or someone you know has been affected by the issues in this column, the following supports are available to assist:
Dublin Rape Crisis Centre – www.drcc.ie
Women’s Aid – https://www.womensaid.ie/services/helpline.html
Cosc The National Office for the Prevention of Domestic, Sexual and Gender-based Violence http://www.cosc.ie/
Student Counselling: https://www.ucd.ie/studentcounselling/
Louise Kennedy – Law Columnist