A new bill proposed by Minister for Justice Helen McEntee will remove ‘honest belief’ of consent as a defence under new laws.
The accused in a rape trial will have to convince the jury they took steps to get consent from the accuser.
The Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 was proposed to strengthen sexual offences laws and improve protection for victims of human trafficking.
Under these new laws, the jury must now consider what, if any, steps were taken by the accused to garner consent. A person can currently be found not guilty of rape if there was an ‘honest belief’ they had the consent of the victim.
It also proposes that a person providing a character reference for someone accused of a sexual offence such as rape can be cross examined in court. References must be given on oath or via affidavit (written sworn testimony) meaning character reference letters “will no longer be able to be read out in court unchallenged, if warranted,” according to the Department of Justice.
The bill will ensure anonymity for victims in all trials for sexual offences and for the accused for certain sexual offences. The law currently only allows anonymity under certain conditions such as a relation between accuser and accused or the victim being underaged.
“The proposed changes in trials in the draft legislation published today include removing some anomalies about the meaning of consent, strengthening the capacity to identify victims of human trafficking and providing anonymity and some limited extension of legal aid to victims of sexual offences in court. These changes should make it somewhat easier for victims of sexual crime to come forward and be supported in accessing justice.”
The bill will also put a revised national referral mechanism (NRM) in place for identification and support of victims of human trafficking.
“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,” Helen McEntee said.
“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 as a defence.”
DRCC CEO Noeline Blackwell says these measures are “welcome,” but “it is disappointing to see that there is still no provision to ensure that a key party to proceedings, the victim, has access to legal advice from the outset and as they need it during the investigation and trial process. ”
“This was recognised as a necessary part of supporting victims in their journey through the justice system and its absence denies victims the right to be fully informed and equipped to deal with the system, where they play such a crucial part in their own cases, and on behalf of all society.”
