New Bill to strengthen laws around consent and character references in court published

The Minister for Justice Helen McEntee has secured government approval to publish a wide-ranging new Bill that strengthens the law around sexual offences and improves protections for victims of sexual offences and of human trafficking.

Among the main provisions of the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 is a strengthening of the law in relation to consent.

At present, a person can be found not guilty of rape if they honestly, but mistakenly, believed that they had the consent of the victim.

The law is subjective. In effect, the alleged perpetrator can claim they are not guilty of rape because they honestly but mistakenly believed they had consent.

The new Bill from Minister McEntee, a key element of her Zero Tolerance Plan to tackle Domestic, Sexual and Gender Based Violence will change this.

The question now will be whether the belief is one that a reasonable person would have held in the circumstances, rather than whether such belief was honestly held.

This belief must be objectively reasonable rather than subjective.

Where the question of reasonable belief arises in a trial, the jury must have regard to the steps, if any, taken by the accused to ascertain whether the victim consented to the intercourse.

Minister McEntee said:

Another change in this Bill is strengthening protections for victims as regards character references in sexual offence trials, another commitment from Minister McEntee’s Zero Tolerance plan.

This Bill will provide that if a person wants to give a character reference for someone who has been convicted of a sexual offence at their sentencing hearing, the reference must be given on oath or via affidavit.

Currently if a witness is called to court to provide character evidence, this evidence is given under oath.

However, written testimonials are not sworn. Minister McEntee’s Bill provides that when a person has been convicted of a sexual offence, character references presented at sentencing must be made via oath or affidavit.

This will ensure that the person providing the reference swears to the veracity of their statement and can be called before the court for cross examination. In effect, it will mean character reference letters will no longer be able to be read out in court unchallenged, if warranted.

The purpose of including this provision in the Bill is to protect the victims of sexual crimes from further traumatisation during the sentencing hearing.

The Minister has now received Cabinet approval for these changes, and she has also worked with Senators Regina Doherty, Lisa Chambers and Pauline O’Reilly on the issue.

Minister McEntee said:

The Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 will also deliver on key reforms in ‘Supporting a Victim’s Journey’ to improve the criminal justice system for victims.

These include:

• separate legal representation for victims of sexual assault if there is an application to question them on their previous sexual experience;If this application is granted, the barrister representing the victim will continue to represent the victim during the questioning
• ensuring anonymity for victims in all trials for sexual offences
• providing anonymity for the accused for certain sexual offences
• updating the definitions for publish and broadcast
• repeal of statutes that provide that the verdict or decision in trials be announced in public

Minister McEntee said:

The new legislation will also implement recommendations by the Defence Forces Independent Review Group (IRG). The IRG recommended amendments to the Defence Act 1954 to ensure that persons subject to military law who commit sexual offences in this jurisdiction will be dealt with by An Garda Síochána and the civilian courts rather than by courts-martial. This Bill gives effect to those amendments.

The Bill will also put a revised National Referral Mechanism (NRM) in place for identification and support of victims of human trafficking.

The National Referral Mechanism is the framework through which the State identifies and supports victims of human trafficking. At the moment, An Garda Síochána is solely responsible for identifying victims of human trafficking.

Under the new NRM, multiple other relevant departments and agencies will be designated as competent authorities to identify victims and will also allow civil society organisations supporting victims of trafficking to be designated as Trusted Partners.

Minister McEntee said:

The published Bill will now be presented to the Houses of the Oireachtas where it will be debated.

O’Malley Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences recommendations

The O’Malley Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences was approved by the government on 4 August 2020. The report details recommendations to improve a victim’s experience during a sexual offence trial. The resulting implementation plan, Supporting a Victim’s Journey, was published in October 2020.

The Bill will implement a number of the legislative reforms recommended in the O’Malley Review. The majority of these recommendations relate to the anonymity of either the victim or the accused as Professor O’Malley had identified gaps in the Statute Book where anonymity was not guaranteed for some offences.

The victim’s right to separate legal representation if there is an application to question them on their previous sexual experience will be extended to include trials for sexual assault, which had not previously been covered under the legislation. The barrister assigned to represent the victim at the application will be allowed continue to represent the victim at the questioning, if the application is granted.

National Referral Mechanism (NRM) for Victims of Human Trafficking

The Bill will provide the legislative basis for a new National Referral Mechanism (NRM) for victims of human trafficking. An NRM – as defined by the European Commission and OSCE – is a framework through which States fulfil their obligations to protect and promote the human rights of trafficking victims, working in partnership with civil society.

Currently, An Garda Síochána is the sole competent authority for the formal recognition of people as victims of human trafficking. It is recognised that having the Gardaí as the sole competent authority for this is not an adequate response.

Some victims of trafficking, because of interactions they may have had with law enforcement officials in other jurisdictions, have a perception that police cannot be trusted.

The new approach provides for other state bodies and NGOs to have a role in identifying victims of human trafficking and referring them to the NRM.

Law Reform Commission recommendations on Knowledge or Belief Concerning Consent in Rape Law

The Law Reform Commission (LRC) published its report Knowledge or Belief Concerning Consent in Rape Law in November 2019 on foot of a request by the previous Attorney General. The Report recommends that the law should be reformed so that the accused’s belief in consent should be objectively reasonable and the steps, if any, that the accused takes to ascertain whether the woman is consenting.

It is important to note that the LRC did not examine sexual assault offences and the new regime will need to be extended to sexual assault as well as rape; however this is a complex area that requires further research. The Department of Justice is developing proposals in relation to sexual assault offences which will be brought forward for government approval at a later stage.

Second Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography

The Office of the Attorney General has advised that in order to overcome one of the last obstacles to ratification of the Second Optional Protocol to the UN Convention on the Rights of the Child, section 3 of the Criminal Law (Sexual Offences) Act 2017 needs to be inserted into the Schedule to the Sexual Offences (Jurisdiction) Act 1996 to provide for extraterritoriality. Section 3 of the 2017 Act creates an offence of obtaining or providing a child for the purposes of sexual exploitation and its addition to the Schedule of the 1996 Act will allow it to be prosecuted where some or all of the offence is committed outside the State.

Amendments to the Defence Act 1954

In March 2023, the Independent Review Group published a report on dignity and equality issues in the Defence Forces. Among other things, the Group recommended that section 169 and section 192 of the Defence Act 1954 should be amended to ensure that specified sexual offences are not dealt with under military law or in the court martial system. Rather, these should be investigated by An Garda Síochána and prosecuted in civilian courts.

These amendments will ensure that sexual assault, aggravated sexual assault, rape and rape under section 4 offences which take place in this jurisdiction will be dealt with by An Garda Síochána and the civilian courts. Military law will continue to apply where such offences take place overseas, where An Garda Síochána does not have jurisdiction.

‘Vouching’ of character evidence

An additional provision has been included in the draft text of the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 around ‘vouching’ of character evidence. Currently if a witness is called to court to provide character evidence, this evidence is given under oath. However, written testimonials are not sworn.

The new provision requires that when a person has been convicted of a sexual offence, character references presented at sentencing must be made via oath or affidavit. This will ensure that the person providing the reference swears to the veracity of their statement. The rationale behind the provision is to protect the victims of sexual crimes from further traumatisation during the sentencing hearing.