The Government has approved a new bill as part of its zero-tolerance plan to tackle domestic, sexual and gender based violence.
The Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 is a strengthening of the law in relation to consent.
Currently, a person can be found not guilty of rape if they honestly, but mistakenly, believed that they had the consent of the victim.
The question now will be whether the belief is one that a reasonable person would have held in the circumstances, rather than whether such belief was honestly held.
Where the question of reasonable belief arises in a trial, the jury must have regard to the steps, if any, taken by the accused to ascertain whether the victim consented to the intercourse.
This bill will also tackle strengthening protections for victims as regards character references in sexual offence trials.
This Bill will provide that if a person wants to give a character reference for someone who has been convicted of a sexual offence at their sentencing hearing, the reference must be given on oath or via affidavit.
Currently if a witness is called to court to provide character evidence, this evidence is given under oath. This will ensure that the person providing the reference swears to the veracity of their statement and can be called before the court for cross examination.
In effect, it will mean character reference letters will no longer be able to be read out in court unchallenged, if warranted.
Speaking on the Bill, Minister for Justice Helen McEntee hopes the changes can help protect victims.
"“One of my key priorities as Minister for Justice is tackling domestic, sexual and gender-based violence and better supporting and protecting victims of crime.
“The Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 is a key piece of legislation to deliver on these priorities.
“It will strengthen the law around consent in rape cases, requiring that an alleged perpetrator must have ‘reasonably believed’ that they had consent and removing the current defence of ‘honest belief’. A subjective belief that a person had consent should not be sufficient to be used a defence.
"The use of character references can often cause further trauma for victims and it is clear to me that we need stronger rules around how they can be used in court.
“This legislation will introduce a requirement for character references in sexual offences cases to be made under oath or affidavit, rather than by an unsworn letter to the Court.
“This means that the person who provides the character reference can be cross examined if necessary
“This is in line with recommendations of the Law Reform Commission.”
