The Irish Criminal Law: Governing Consent

The introduction of the Criminal Law (Sexual Offences) Act [2017] was significant as it introduced a substantive revision of the law on consent involving sexual offences. In particular, section 48 of the Act is of paramount interest, which governs the law of consent in this area:

9(1) “A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.

(2) A person does not consent to a sexual act if:

a) he or she permits the act to take place or submits to it because of the application of force to him or her or to some other person, or because of the threat of the application of force to him or her or to some other person, or because of a well-founded fear that force may be applied to him or her or to some other person,

b) he or she is asleep or is unconscious

c) he or she is incapable of consenting because of the effect of alcohol or some other drug

d) he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to act,

e) he or she is mistaken as to the nature and purpose of the act

f) he or she is mistaken as to the identity of any other person involved in the act

g) he or she is being unlawfully detained at the time at which the act takes place

h) the only expression or indication of consent or agreement to the act comes from somebody other than the person himself or herself”

Further, section 48(3) states that consent can be withdrawn at any time before or during sexual intercourse, or while the act is taking place. Section 48(5) states that failure or omission on the part of a person to offer resistance to an act does not in itself constitute consent to that act. In the case of DPP v C [2001], the court defined consent as being a "voluntary agreement or acquiescence to sexual intercourse by a person of the age of consent with the requisite mental capacity. Knowledge or understanding of facts material to the act being consented to is necessary for the consent to be voluntary or constitute acquiescence."

Consent & rape trials

The crime of rape is governed by section 4 of the Criminal Law (Rape)(Amendment) Act [1990]. The offences carries a possible life sentence. The section was considered by the Court of Criminal Appeal in the case of DPP v Richey, when Flaherty J noted, "if the alleged offence occurred after the coming into operation of the Criminal Law (Rape) (Amendment) Act [1990], then the penetration (however slight) of the vagina by any object would not constitute rape under section 4 of that act." As such, the Act was amended further to include the use of an object to constitute rape.

Consent in the context of rape has long been in the public sphere of attention. Recently, the report 'Knowledge or Belief Concerning Consent in Rape Law' was sought by the Attorney General after the Supreme Court in 2016 confirmed an "honest, though unreasonable mistake that the woman was consenting, is a defence in rape," a comment which attracted widespread criticism. The report solely deals with the issue of the law on non-consensual sexual intercourse between a man perpetrated on a woman. A further study is to be published concerning the law of crimes involving a male victim and other penetrative sexual assault. The Law Reform Commission in their report on the subject have recommended that men should no longer be allowed to use such a claim of honestly believing a woman consented to sex as a defence. The LRC further recommend that a more objective test needs to be introduced, in order to ensure justice for victims of rape and aggravated sexual assault. The LRC also recommend that the jury in rape trials should be allowed to consider the age and level of maturity of the accused, as children as young as 10 years old can be convicted of the crime.

Moore J in the case of Linekar [1995] noted how "an essential ingredient of the offence of rape is the proof that the woman did not consent to the actual act of sexual intercourse with the man who penetrated her. If the Corwn prove that she did not consent... rape is proved. In this case, the accused had promised payment for sexual intercourse to the complainant, which he failed to do so. The court rejected her argument, expressing that where a woman was induced to have sex by a false promise as to payment, her consent was not impacted by the fact that she never received the payment. Indeed this has been deemed a conservative view that is academically challenged. In the cases of R v Flattery [1877] and R v Williams [1923], the accused men told their victims that the act performed was not sexual in nature, but rather was a necessary medical procedure. As such, both men were found guilty of rape on the ground that the consent given was invalid based on the fraudulent pretence in which consent was given.

In the recent and significant case of DPP v O'R [2016], in which the accused was on trial for raping his mother (he claimed consensually), the Supreme Court were asked the following questions: 1) Does the mental element (mens rea) of rape excuse a situation where on unreasonable and irrational grounds a man genuinely believes that a woman has consented to sexual intercourse, whereas in fact she has not consented and 2) within the definition of rape, is there a requirement in law for a man to ascertain prior to sexual intercourse that the woman is capable of consenting to the sexual intercourse and that s she does not consent. The case was a phenomenal one and led to the introduction of the Criminal Law (Sexual Offences) Act [2017]. Charleton J's comments are of interest, he stated: "where the accused claims to have mistakenly believed that a woman was consenting, then the jury should examine all of the facts which may support or which may undermined that claimed belief. They should consider all of the circumstances and focus on whether there are, or are not, any reasonable grounds for belief."

Attempted rape

Section 2(1) of the Criminal Law (Rape) Act governs the offence of attempted rape, which is governed by the common law in Ireland. Case law evidences that mere intent to commit the crime of attempted rape will not suffice for a conviction and that there must be an actual act that goes beyond preparation to rape. This is demonstrated in the case of R v Eagleton [1855]. The case of AG v Thornton is useful in examining how the Irish courts deal with the offence of attempted rape, the mens rea of which is intention to commit the offence.

Offences involving a protected person

The 2017 Act reformed the law on sexual offences involving protected persons, and is provided for under section 21 of the act. Section 21 states that a person who engages in a sexual act with a protected person knowing that they are a protected person, or being reckless as to whether the person is protected, shall be guilty of an offence. It is presumed that the accused knew (or was reckless to) the knowledge of the protected persons status. A person convicted of an offence of this type shall be liable on an indictment conviction to imprisonment for life or a lesser term. A person lacks the capacity to consent to a sexual act if s/he is, by reason of a mental or intellectual disability or a mental illness, incapable of – (such a person is referred to as a ‘protected person’) a) Understanding the nature, or the reasonably foreseeable consequences, of that act, b) Evaluating relevant information for the purposes of deciding whether or not to engage in that act, or, c) Communicating his or her consent to that act by speech, sign language or other. In the case of DPP v XY, the accused was charged with section 4 of the Criminal Law (Rape) Act 1990 as it was alleged that he forced a woman with an intellectual disability into performing oral sex on him. It is significant to note that the act itself did not come under the scope of section 5 of the Criminal Law (Sexual Offences) Act of 1993, yet Justice White noted "It seems to me that the Oireachtas, when they introduced the 1993 Act, did not fully appreciate the range of offences needed to give protection to the vulnerable." Subsequently, the trial judge had to direct the jury to acquit the defendant due to the lack of evidence of a hostile act on the part of the accused. The trial judge reflected that the judiciary could not fill a "lacuna in the law." Further, in the case of Laura Kelly, a complainant with Down Syndrome who alleged that on her 21st birthday she was sexually assaulted. Ms Kelly's family claimed that after she was put to bed, a family member entered her bedroom and saw a man in bed with her. It was alleged that Laura had most of her clothes removed and that the man was naked from the waist down. At court, the complainant was referred to as "having a mental age of four" was deemed incompetent to testify and as such, the case was dismissed.

Sexual Assault

Sexual assault is governed by section 4 of the Criminal Law (Rape)(Amendment) Act [1990] and section 14 of the Criminal Law (Amendment) Act [1935] provides that it is not a defence to a charge of indecent assault under the age of fifteen to prove that the person consented to the act alleged to constitute indecent assault. The assault element of such an offence is governed by section 2 of the Non-Fatal Offences Against the Person Act [1997], the mens rea being intent or recklessness.

In the case of DPP v JMCG [2019], the appellant was found guilty of eleven counts of indecent assault contrary to common law as provided by section 62 of the Offences Against the Person Act [1861] and seven counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act [1990] in respect of four separate complainants. The accused received a sentence of 13 years' imprisonment with the final 12 months suspended. The accused subsequently appealed the decision in 2020 on the grounds that the trial judge inadequately erred in refusing the application to sever the indictment and in allowing evidence to be adduced in relation to all complainants. The High Court dismissed his appeal and the conviction was subsequently held, using the case of DPP v MD [2018] as grounds for the dismissal.

Concluding thoughts

Consent in the Irish Criminal Law is a vital element to any case involving sexual offences and it is particularly important on the part of the prosecution to prove that the accused was reckless and intentionally so as to the consent of the person he assaulted. The recent LRC report alongside various other government-led reports into the subject of consent in the Irish criminal justice system highlights, as reflected in the LRC report, that "as the law currently stands in Ireland, sexual intercourse where consent is not present may be lawful where a jury concludes that the man honestly believes the woman was consenting even if this was not the case." This is because the prosecution must prove beyond a reasonable doubt that the accused either knew that the complainant didn't consent, or else was reckless as to her consent. Further, the 117-page report has stated that the arguments against the current law in this area "greatly outweigh" the arguments in favour of the law and that the current position places "a premium on ignorance, lack of consideration or insensitivity."