Lesser category of rape offence under review

A NEW category of offence –less serious than rape – is being examined as part of a potential shake-up of the law around rape and consent.

The Law Reform Commission is examining whether a separate offence, tentatively described as “gross negligence rape”, should be introduced to cover a situation where an accused honestly, but unreasonably and mistakenly, believes the complainant was consenting to sex.

Under the law as it stands an accused who knew that the complainant was not consenting, or was reckless as to whether she was or not, is guilty of rape.

Under the reform option being examined, an accused individual would be guilty of the lesser offence if he honestly believed the complainant was consenting, but his belief was unreasonable.

The accused would not be guilty of either rape, or the lesser offence, if his belief was found to have been reasonable.

Sweden has a lesser rape offence similar to the one being considered.

The commission is also examining potential changes to the definition of rape.

The move to review the law follows a referral to the commission by the Attorney General.

This came in the aftermath of a Supreme Court ruling two

years ago where it dismissed an appeal by a man jailed for raping his own mother on Mother’s Day.

The ruling also provided guidance for judges in explaining to juries the law on rape, particularly in cases where the accused mounts a defence based on a mistaken belief there was consent to sex.

However, it led to calls from the Dublin Rape Crisis Centre for a definition of consent to be put in legislation, rather than relying on common law built up over a century of court decisions.

Now the independent commission has published an issues paper on the subject and is calling for submissions on whether the current law should be changed.

The document examines a range of reform options, including whether the accused’s belief in consent should be objectively reasonable, and whether the accused should also be required to take reasonable steps to confirm that the woman is consenting.

It also examines whether an objective or “reasonable belief ” element should be added to the definition of rape.

The inclusion of this element would be in line with the definition of some other serious offences in Irish law, as well the definition of rape across the UK and other common law jurisdictions.

Sweden has lesser offence similar to the one proposed