Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I warmly welcome the publication of the Law Reform Commission’s report on knowledge and belief concerning consent in rape law. As the Deputy may recall, the report was prepared by the commission in response to a reference from the then Attorney General, on behalf of the Government. The report is a thorough and expert examination of this complex issue. I assure the Deputy that my Department is closely examining its recommendations with a view to bringing forward amending legislation.

It is important to understand the context of the report. The Criminal Law (Sexual Offences) Act 2017 has been widely recognised as landmark legislation dealing with consent and exploitation in sexual activity. For the first time, it set out in statute what consent actually means, namely, a free and voluntary agreement between people to engage in sexual activity. The 2017 Act also set out a non-exhaustive list of circumstances where consent is impossible, such as when a person is asleep or unconscious; if a person is being held captive; if a person cannot communicate his or her agreement due to physical inability or disability; if a person is mistaken or misled about who the other person is, or what the activity is; or, for example, if a person is so drunk or intoxicated that he or she is not in a position to consider the activity and make up his or her own mind. In order for a jury to find a person guilty of rape, three things are necessary: sexual intercourse must have taken place; the person must not have consented; and the accused person must either have known that person did not consent or must have been reckless as to whether he or she consented.

During the Oireachtas debate on the Bill, the issue of whether a person’s belief in consent must be reasonably held was discussed in some detail. It was on foot of those debates that the Attorney General and my predecessor as Minister discussed the matter and agreed to refer it to the Law Reform Commission for detailed consideration. That is the report the Deputy has mentioned.

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