Most UCD students are familiar with the animated ‘tea’ consent video, often shown in the first days of orientation to newly accepted students. While consent in concept is as easy as tea, the legislation surrounding consent and rape law it is not quite as clean cut. In 2o18, the Law Reform Commission (LRC) published a paper entitled “Knowledge or Belief Concerning Consent in Rape Law,” in which various aspects of current legislation were discussed, and recommendations for reform given. Of reforms suggested, perhaps most controversial is that of implementing a new offence of gross negligence rape, for situations in which the accused honestly, but mistakenly, believed there was consent during the time of the rape, thus resulting in lower penalties. The distinction between rape and gross negligence rape is comparable to that of murder and manslaughter in killings.
Gross negligence rape would be incorporated into the Criminal Law (Rape) Act, 1981; however, strong arguments pervade both sides of the proposed reformation. It must be noted that including the new offence might also result in changing the current test of “honest belief” of consent, to a more objective test of “reasonable” belief; the aforementioned is another suggested reform from the LRC. The primary advantage of including this new offence would be the ability to criminalise non-consensual intercourse in circumstances where the defendant’s belief that consent was given is unreasonable; as well, this lesser offence would recognise “a lower degree of moral culpability associated with that wrongdoing than with intentional or reckless rape,” according to the LRC’s discussion.
However, one could argue that implementing this new offence would only damage an already flawed criminal justice system. One disadvantage of incorporating gross negligence rape into the 1981 Act is wthe risk of compromising rape prosecutions and making them more difficult, with regards to convicting the accused of the lesser rape offence in circumstances where rape, or an acquittal, may be the true verdict. As well, runs the danger of only the most violent rape cases with overwhelming physical evidence being prosecuted as rape. In turn, if this distinction were to be made, each sexual offence with the element of non-consent would require the same distinction, opening the floodgates of sexual offences without necessarily resulting in more convictions.
The chief concern of criminal law is to prohibit acts which attack not only the rights of individuals, but also the fundamental social and moral values of our society. The issues surrounding rape law in Ireland are complex and multifaceted, but one could argue that the introduction of gross negligence rape as an offence has the potential to significantly weaken current rape law.
Molly Greenough – Law Writer
