Justice Minister Helen McEntee has announced plans to strengthen laws around sexual consent and change rules around character
references.
Under current laws, a person can be found not guilty of rape if they honestly but mistakenly believed they had the consent of the victim. However, the law has been branded “subjective” and the Government has announced its intention to change it under its domestic violence strategy.
Minister McEntee secured Cabinet approval this week to publish a new bill to tackle the issue. Under the new law, the question now will be whether someone could have reasonably believed that they had consent rather than if they “honestly” believed it.
Speaking on RTE ’s Today with Claire Byrne, Ms McEntee said current laws do fully take the victim into account and are too “subjective”. She said: “It must be an objective test. To me, you or any other member of a jury looking at this, is it reasonable to say that consent was given?
“If you have a situation where somebody was asleep, can you reasonably say even if that person genuinely believed at the time that consent was given? If you hear evidence from the person who is making the accusation who says, ‘Well, at the time I said no. I said please stop. My physical actions show that I clearly didn’t want this to happen’.
“At the moment, that is not taken into consideration when this defence is used. It is important that both sides are listened to, it is important that all circumstances are taken into account.”
Other changes under the proposed new law will include individuals to people being tried for sexual offences. If a witness is called to court to provide a character witness, this must be given under oath. However, this is not the case for written testimonials.
Under the charge when a person has been convicted of a sexual offence, written character references will no longer be allowed to be made unchallenged and must be made via oath or affidavit. This will ensure the person providing the reference swears to the veracity of their statement and can be called before the court for cross-examination.
The legislation will also put a revised National Referral Mechanism in place to identify and support victims of human trafficking.
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