New rape offence where accused holds ‘mistaken belief’ of consent being considered

The Law Reform Commission is looking at a separate offence, provisionally described as “gross negligence rape”, which would be applicable where an accused held an honest but unreasonable and mistaken belief that the complainant consented to sex.

A similar offence already exists in Sweden and the commission is also considering potential changes to the definition of rape.

Plans to review the law come after a referral to the commission by the Attorney General, which was prompted by a Supreme Court case from two years ago in which the court dismissed an appeal from a man jailed for raping his mother.

That ruling provided guidance on explaining to juries the law on rape where an accused’s defence is that of consent.

Dublin Rape Crisis Centre thereafter called for a definition of consent to be enshrined in law.

The commission’s paper considers a number of reform options, among them whether the accused’s belief in consent should be objectively reasonable and whether he ought to take steps to confirm consent.