Minister for Justice, Helen McEntee, announces government approval to publish the General Scheme of Criminal Justice (Sexual Offences and Human Trafficking) Bill 2022. The Bill forms part of McEntee’s third national strategy on domestic, sexual and gender-based violence.
The Bill aims to strengthen the law on consent, knowledge and belief by amending the current state of law where a man is not guilty of rape if he honestly believed he had consent. The new proposal requires the accused to demonstrate that it is objectively reasonable that he obtained consent. The objectively reasonable standard is that the accused’s belief is one that a reasonable person would have in the circumstances.
Current law recognizes that the absence of consent in Irish law is objective but the accused’s view of whether consent was given is subjective. This legislation amends the subjective, mental element of honest and mistaken belief as a defence for the accused and makes the test an objective one.
The objective test accompanies the present definition of rape; “Where the accused knows that the woman is not consenting or is subjectively reckless as to whether she is consenting.” Being under the influence and honest belief will no longer be applicable defences.
The Bill will recognize that the accused commits rape if, at the time of sexual intercourse, he does not “reasonably believe” that the women was consenting. Juries will have to decide if appropriate steps were taken to confirm that the other person consented at the time of sexual intercourse as well as the accused’s decision-making capacity.
The new legislation will also remove existing legislative barriers to Ireland’s ratification of the Second Optional Protocol to the UN Convention on the Rights of the Child concerning the sale of children, child prostitution and child pornography.
A revised National Referral Mechanism will ease Ireland’s ability to identify and support harder-to-reach human trafficking victims. It allows both State and civil society to work together, identify and share information about potential victims and assist with access to advice accommodation and support.
Currently, when An Garda Síochána receives referrals about, or encounters with, suspected victims of human trafficking they provide a wide range of services by the Government and NGOs through the National Referral Mechanism (NRM). Many victims understandably choose not to approach police so the new approach acknowledges the role other state bodies and NGOs in identifying and referring victims of human trafficking to the NRM.
Further safeguards for victims of sexual offences are to be introduced through the new bill. These safeguards are recommended by the Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences conducted by an expert working group, led by Senior Law Lecturer from NUI Galway, Professor Tom O’Malley.
These reforms seek to protect victims and empower them to speak-out through additional laws that will provide anonymity for victims and accused in all sexual offences trials. McEntee expresses that, “This is a clear demonstration of Ireland’s commitment to identifying and supporting victims of [these] abhorrent crimes and it will strengthen our international reputation.”
Danielle DerGarabedian – Editor
