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Question

553. Deputy Holly Cairns asked the Minister for Justice if she will extend the definition of consent in law to emphasise that sexual coercion involves more than threats of and actual physical force. [37424/21]

Answer

Minister of State at the Department of Justice (Deputy Hildegarde Naughton): As I am sure the Deputy is aware, the Criminal Law (Sexual Offences) Act 2017 has been widely recognised as a landmark piece of legislation dealing with consent and exploitation in sexual activity. For the first time, it set out in statute what consent actually means - a free and voluntary agreement between people to engage in sexual activity.
The 2017 Act amended the Criminal Law (Rape) Amendment Act 1990, inter alia by setting out certain circumstances where consent is impossible, such as when a person is asleep or unconscious; if they are being held captive; if they cannot communicate their agreement due to physical inability or disability; if they are mistaken or misled about who the other person is, or what the activity is; or for example if they are so drunk or intoxicated that they are in no position to consider the activity and make up their mind.  The list is non-exhaustive, and the Act specifically states that the section concerned does not limit the circumstances in which it may be established that a person did not consent to a sexual act. Coercion other than the threat of physical force is a factor that may be considered when examining whether or not consent was given.
In order for a jury to find a person guilty of rape, three things are necessary.

  1. Sexual intercourse must have taken place;
  2. the person must not have consented; and
  3. the accused person must either have known that person didn’t consent, or been reckless as to whether they consented or not.
During the Oireachtas debate on the Bill, the issue of whether a person’s belief in consent must be reasonably held was discussed in some detail. As the law stands, the mental element of the offence of rape is not present if the accused honestly believed consent was given, so long as that belief was genuine, no matter how unreasonable or irrational. As a result, a person who held a genuine but completely unreasonable belief that the other person consented would not be found guilty of rape. 
It was on foot of those debates that the Attorney General and one of my predecessors as Minister discussed the matter and agreed to refer it to the Law Reform Commission, for detailed consideration. The Commission produced a thorough and expert examination of the complex issue of consent and recommend a change in the law to state that the belief of the accused person in consent must be reasonably held. It also touches on some of the surrounding matters which are being examined elsewhere, such as rape myths and stereotypes, obstacles to prosecution in rape cases, the treatment of victims in rape cases and other related matters.
The Deputy is also aware that my Department is leading on the delivery of a number of important commitments to make sure that we are responding effectively to the needs of victims of domestic abuse and sexual violence. This includes the full and timely implementation of the detailed roadmap for the introduction of the recommendations contained in the O'Malley Review.  Entitled Supporting a Victim's Journey - A plan to help victims and vulnerable witnesses in sexual violence cases this plan will, when implemented, protect and support vulnerable witnesses during the investigation and prosecution of sexual offences. 
Implementing Supporting a Victim's Journey in full will require a number of legislative changes, the first being the Criminal Procedure Act which was signed into law by the President on 24 May 2021. In order to implement the rest of the required changes needed, a scoping exercise is currently being undertaken by my Department for a new Sexual Offences Bill. The Bill will encompass provisions to implement the O’Malley Report recommendations as well as for additional harassment orders to the 2017 Sexual Offences Act and to implement the recommendations of the 2019 Law Reform Commission Report on Knowledge or Belief concerning Consent in Rape Law.  
I envisage that General Scheme of this Bill will be brought to Cabinet by the end of 2021.