There is still much work to be done before the human rights and dignity of victims of sexual violence in Ireland are truly realised.
A persistent barrier to protecting victims’ rights in sexual offence cases is the legal defence based on “honest belief” that is open to those accused of rape. This means a person accused of rape may avoid conviction if the jury accepts that they honestly believed the other person was consenting – even if that belief was entirely unreasonable in the circumstances.
While the Supreme Court has clarified that juries need not accept “obviously false” accounts, the law still permits acquittal based solely on the accused’s subjective perception of events. As it stands, the “honest belief” defence does not require that the belief be “reasonable”, and relies entirely on the accused’s perception of whether the victim was consenting.
This undermines the core principle of mutual, meaningful consent that is enshrined in the Criminal Law (Sexual Offences) Act 2017, which defines consent as “freely and voluntarily given”.
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Some other areas of criminal law measure a person’s actions or beliefs against what a reasonable person would have done. However, when it comes to rape, an accused person can rely on their own interpretation of events, even if there is no reasonable explanation for their belief, and even if they took no steps to establish or confirm consent.
The Law Reform Commission recommended changing to a “reasonable belief” standard in its comprehensive report in 2019. It pointed out that a complainant’s silence – which may have derived from fear and trauma – could be interpreted incorrectly as consent, and that an honest belief on this basis might even encourage people not to ascertain consent. The commission concluded that arguments against the current law far outweighed arguments in favour of it. Prof Tom O’Malley said that the law as it stands “places a premium on ignorance, lack of consideration or insensitivity”.
At the Dublin Rape Crisis Centre, we support a legislative change that introduces an objective reasonableness standard, as well as a requirement that appropriate actions have been taken to confirm consent. Such changes will mean a closer alignment with our existing statutory definition of consent.
For most victims and survivors, this reform would be welcome and necessary. Honest belief as a defence centres the accused’s subjective viewpoint, often at the expense of the victim’s experience and agency.
Reporting a rape takes immense courage and determination, yet survivors must navigate a legal system that is often very challenging. When the law allows the accused to invoke honest belief without any need to demonstrate that this belief was reasonable or based on any concrete steps to establish consent, it can compound survivors’ feelings of disempowerment and erode their confidence that their voice matters. If we truly wish to encourage more survivors to seek justice, this reform would be an important positive step.
In Ireland, we have come close to modernising this law once before. We strongly supported the honest-belief reforms in the Criminal Law (Sexual Offences and Human Trafficking) Bill, published in July 2023. It would have replaced the current defence with a requirement that belief in consent must be objectively reasonable. It also proposed that juries must consider whether the accused took steps to ascertain consent, which might include verbal confirmation or other clear indication of agreement.
In effect, the planned changes enshrined the question: would a reasonable person, in the same situation, with the same knowledge, have believed there was consent?
These reforms were necessary and proportionate. They reflected both public understanding and the legal reality of what genuine consent entails, as well as the lived experience of survivors of sexual violence.
Adopting an objective standard would align Ireland with international best practice. Countries including England and Wales already require a reasonable objective belief of consent, for instance. It would also reflect the principles of the Istanbul Convention, which focuses on whether the alleged victim freely and voluntarily agreed to sexual activity, as assessed in the full context – not just on the accused’s own belief.
Similarly, the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) urges states to eliminate laws that permit subjective or unreasonable interpretations of consent. These international bodies recognise that in matters as serious as rape, subjective belief – no matter how honestly claimed – is not enough.
In recent years, Ireland has taken progressive steps towards addressing gender-based violence and supporting victims. The national strategy on domestic, sexual and gender-based violence sets out ambitious goals and legislative reform is central to achieving them.
So we were very concerned to learn in November 2023 that the honest belief provisions were being dropped from the Criminal Law (Sexual Offences and Human Trafficking) Bill. We warned that removing these provisions weakened the legislation and we urged then-minister for justice, Helen McEntee, to reconsider. She clarified that these provisions were only being cut so as not to hold up the rest of the Bill, while her department addressed considerations on honest belief arising from a recent Supreme Court judgment. McEntee committed to drafting a stand-alone Sexual Offences Bill that would mean the proposed reforms would apply to both rape and sexual assault cases, as flagged by the judgment.
Minister for Justice Jim O’Callaghan is progressing the matter with the Attorney General and should move swiftly to introduce legislation that would ensure belief in consent can only be a defence if it was both honestly and reasonably held.
If the new Bill is the robust piece of legislation it ought to be, it must receive cross-party support from members of the Oireachtas when it is published. It will send a clear, consistent message that consent must be mutual and ongoing, based on communication and not on assumption or a one-sided perception.
Rachel Morrogh is chief executive of Dublin Rape Crisis Centre. Anyone affected by sexual violence at any time can get free, confidential support on the 24-hour National Helpline 1800 77 8888
