People accused of rape must show how consent was obtained under proposed law

People accused of rape will have to show a jury that they took "reasonable" steps to obtain consent in a major reform of laws around rape cases. Minister for Justice Helen McEntee will seek Cabinet approval for the bill today, which will strengthen the law on consent, knowledge and belief in rape cases.

McEntee's proposals come weeks after she launched the ‘Zero Tolerance’ strategy for combating domestic, sexual and gender-based violence. The landmark legislation will mean that those accused of rape will no longer be able to use believing they had consent at the time as a viable defence. This would also remove self-intoxication as a defence to a rape charge, where an accused says that they didn’t have the capacity to understand whether or not they had received consent.

The accused will have to convince a jury they had an "objectively reasonable" belief of consent from the victim. Juries will have to determine if any "reasonable" steps were taken by the accused to check if the other party gave their consent. They will also have to consider any physical, mental or intellectual disability of the accused, any mental illness, as well as their age and maturity.

The new laws will also see anonymity for victims in all trials for sexual offences - not just in rape trials, as is currently the case. Those accused will also remain anonymous in case they are found not guilty. If the accused is convicted of a sexual offence, they may be identified - unless doing so would lead to the victim being identified. Anonymity may also be extended for other offences where vulnerable victims are targeted, including people with mental illness or intellectual disability.

The public will continue to be excluded from the courtroom for sexual offence trials. This will not affect the media’s ability to report the verdict, sentence or proceedings - but the definitions of “broadcast” and “publication” will be changed to ensure that social media is covered in order to protect the victim’s identity.

If victims are to be questioned on their previous sexual experiences, they will be entitled to separate legal representation. This will include trials for sexual assault offences - not solely rape offences.

McEntee is expected to get the green light from Cabinet today to publish the General Scheme of the Bill and begin drafting the full legislation. The new reforms underpin the Department of Justice's aims to protect victims and vulnerable witnesses, and empower them to come forward to seek justice through the courts.