Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I thank the Minister for his reply. This is a complex and complicated aspect of our law. Nonetheless it needs to be amended. We need to recognise that at present when it comes to the issue of consent, a man is believed to have honestly and genuinely consented if he believed the woman was consenting. At present that is a subjective test. That was the test that was recognised as being the law by the Supreme Court in the 2016 case of the DPP v. O'R. On foot of that decision the Attorney General requested the Law Reform Commission to prepare a report.

Under the law as it exists, it appears that a man can have an honest, though unreasonable, belief that the woman was consenting and that would be a defence to rape. The Law Reform Commission report seeks to change that subjective test to an objective test, which is preferable. It would obviously still maintain the rights of the accused in such a trial. The report puts a further onus on an individual when having sexual intercourse with another person to ensure that it is reasonable to believe that the other person is consenting.

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