The recent Supreme Court decision in the case of CO’R is insightful as His Honour Judge Charleton has carefully and helpfully reviewed the question of consent as it arises in Irish law both in terms of the legislation, but he has also helpfully categorized the two types of cases that tend to come before Irish juries. The cases that come to trial are cases where sexual intercourse is not admitted as a fact and cases where sex is admitted or occurred and the principal issue is that of consent (or conversely lack of consent).
He confirms the position, that in our law as it is applied to the facts of any rape case, where consent is the principal issue for a jury to determine the absence of consent to sexual intercourse is an objective fact to be viewed by the jury on the facts of the case as led by the prosecution (which might include any statement made by the Accused in the Garda station). If the Accused gives an account of his belief that the Complainant was consenting then this issue is subjective . That means what was going on in the man’s mind at the time of intercourse, namely that he believed she was consenting.The Accused subjective belief (as long as it’s honestly held and grounded on an engagement with the facts, or even where the accused belief is unreasonable) is still a defence to rape.
Judge Charleton restates the law on recklessness which is in a sex case, is proven beyond a reasonable doubt where the accused casts his mind aside that that the women is consenting or for example is so intoxicated that she is not in a position to consent.
The judgment confirms the sanctity of a woman’s person right to bodily integrity and how really there should be no margin of error in a man’s mind when people have agreed to have sexual intercourse either in conversation or foreplay. There has been a wide debate here about the need for sex education especially around the issue of consent. The stark facts of the CO’R case illustrate this need. Recent furore over this issue in third level colleges in the USA has sparked a welcome debate here also. Proper sexual education in not a matter of law but it’s one law lesson young people ought to be made have.
The judgment is insightful and it shows the very real importance of why in the investigation stage, an accused person should have access to the advice of a solicitor and more importantly how a solicitor advising an accused person in a “consent case” ought to have full disclosure of the facts alleged in terms of consent, or the withdrawal of consent. If a man engages his brain that consent might not be present, then any conscious or deliberate decision by him to disregard this fact is a crime. A possibility that consent is present is a crime and there can be no greater violation of a persons right to bodily integrity.
Where the accused man alleges a reasonable or honest mistaken belief that consent was present the jury must be directed to examine all or any supporting facts which may bolster or undermine the accused belief.
This blog is merely for the purposes of discussion and does not amount to legal advice. If you require advice on any issue arising please contact the writer.