Rape

Rape

A man commits rape if he has sexual intercourse with a woman who at the time of the intercourse does not consent to it, and at that time he knows that she does not consent or he is reckless as to whether she does or does not consent.

Rape occurs where the penis enters the opening of the complainant’s vagina to any extent. Intercourse is deemed complete on proof penetration only..”Rape under Section 4″ of the 1990 Act comprises either penetration of the anus or mouth by a penis or the penetration of the vagina by a handheld object.

The absence of consent on the part of the complainant must be proved. Consent may mean, agreement or acquiescence by a person of the requisite age and mental capacity.

A person guilty of rape is liable on conviction to imprisonment of up to life. Persons indicted for rape offences or aggravated sexual assault offences are to be tried by the Central Criminal Court. The Supreme Court has stated that any attempt to categorise rape as a minor offence is likely to be unconstitutional.

Consent and Non-Consent

Consent for the purpose of rape and sexual offence does not include implied consent by failure or omission to offer resistance. Consent must be conscious. If the woman is asleep or extremely intoxicated. incapable of consent, then consent may not be given.

Apparent consent obtained by fraud may not be consent. However. the fraud must be such as the complainant is unaware as a result of the fraud that she has participating in a sexual act.

Fraud in relation to an external misrepresentation of circumstances or a promise does not negate consent for the purpose of rape. The fact that the consent by itself is induced by false promises would not generally be enough to negate it for the purposes of rape.

Where a person procures consent by impersonating a complainant’s husband this is deemed rape under the legislation.

Where a woman submits out of fear while not consenting, a conviction for rape is possible. Formerly actual resistance was acquired. This common law principle was removed in 1990. A submission caused by threats would not be consent.

Belief in Consent

The accused must be aware the woman is not consenting or be reckless as to consent. Recklessness is ultimately subjective. It is not enough that the defendant acted unreasonably. However., the reasonableness of the defendant’s actions is highly relevant as to whether the jury concludes that the accused was reckless.

An honest belief, whether based on reasonable or unreasonable grounds, may negate the requisite intention or recklessness. Where a man can show that he genuinely believed that there was consent no rape occurs even if the belief is mistaken and unreasonable.

In a rape trial, the presence or absence of reasonable grounds for the belief is a matter for the jury to have regard to, in considering further the accused so believed.

A “rape offence” includes rape, attempted rape, buggery with intent to commit rape, aiding abetting, counselling or procuring rape and incitement to rape

2017 Act Definitions

The 2017 Act provides

A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.  A person does not consent to a sexual act if—

• he or she permits the act to take place or submits to it because of the application of force to him or her or to some other person, or because of the threat of the application of force to him or her or to some other person, or because of a well-founded fear that force may be applied to him or her or to some other person,
• he or she is asleep or unconscious,
• he or she is incapable of consenting because of the effect of alcohol or some other drug,
• he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act,
• he or she is mistaken as to the nature and purpose of the act,
• he or she is mistaken as to the identity of any other person involved in the act,
• he or she is being unlawfully detained at the time at which the act takes place,
• the only expression or indication of consent or agreement to the act comes from somebody other than the person himself or herself.

This does not limit the circumstances in which it may be established that a person did not consent to a sexual act.

Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place. Any failure or omission on the part of a person to offer resistance to an act does not of itself constitute consent to that act.

A sexual act’ means  an act consisting of—

• sexual intercourse, or
• buggery,
• sexual exploitation
• an invitation to touching
• an act which if done without consent would constitute a sexual assault;

Perpetrators

The former exemption from rape by a husband in respect of his wife was abolished in 1990. The consent of the DPP is required for the institution of such proceedings.

Prior to 1990 boys under 14 years old were presumed conclusively to be incapable of committing rape.

Under general principles, a boy under 7 years old is immune from prosecution and between 7 and 14 years may only be convicted if it can be shown that what he did was seriously wrong.

Under the Children’s Act 2001 a child aged 10 or 11 years may be charged with
rape or aggravated sexual assault.

The rebuttable presumption under any rule of law, namely, that a child who is
not less than 7 but under 14 years of age is incapable of committing an offence because the child did not have the capacity to know that the act or omission concerned was wrong, is abolished.

Sexual Assault

Prior to 1990 indecent assault cover most unconsented sexual activity but did not constitute rape. The offence of indecent assault on a male person or a female person is known as “sexual assault”.

Sexual assault involves an assault together with an element of indecency. An assault has the same meaning as under the Non-Fatal Offences against the Person Act. An assault occurs where there is unconsented to contact or a reasonable apprehension of such contact.

Both rape and sexual assault are subject to imprisonment for up to ten years. If the victim is under 17 years, the maximum penalty is 14 years.A sexual assault offence may be tried summarily if the judge is of the opinion that the facts proved to constitute a minor offence fit to be tried summarily, and the  DPP and the defendant consent. The maximum fine is €1,270 or 12 months imprisonment or both.

See the other chapters on 2017 Reforms.

Consent

Consent may be a defence. However, below a certain age, a person is deemed not to be capable of consenting. A person under 15 years of age may not consent to a sexual assault. Over the age of 15, the consent may be deemed inoperative if the person does not have sufficient maturity to understand what he or she is consenting to.

For the consent is to in a minor assault that does not cause harm, consent may be a defence. However, where serious harm is caused, consent would not be a defence. It is not permissible to consent to the infliction of serious harm.

Cross-Examination of Victim

In a  trial for a rape offence or a sexual assault offence, [when a person pleads not guilty] evidence is not to be allowed other than with the consent of the judge and no questions will be asked in cross-examination, about the sexual experience of the complainant with any person.

The Judge shall not give leave other than in an application in the absence of a jury and then only if he has satisfied that will be unfair on the accused person to refuse the evidence to be adduced.

He or she must be satisfied that the evidence might reasonably be such as to be critical to acquittal, which would not otherwise occur. Even if leave is given, the judge may direct that a question may not be asked or that it may only be asked with a fresh specific application.

Where an application is made,  the complainant/victim is entitled to be heard and may be legally represented. Notice of intention to make the application must be given on behalf of the accused person as soon as practicable after the commencement of the trial.

The prosecution must notify the complainant of his or her right to be legally represented. The case may be adjourned to allow an opportunity for representation.

Exclusion of Public

Generally, the public is excluded from rape and sexual offences proceedings. Officers of the court, persons concerned in the proceedings and bona fide the representatives of the press and such other persons as the court may permit, may be permitted to remain.

Where a person is charged with a sexual assault offence, no matter that may allow members of the public to identify the person as the complainant in relation to the charge may be published in the press or broadcast media other than as authorised.

The accused may apply to the court for a direction that the publication is required to induce persons to come forward who are likely to be needed as witnesses and the conduct of the defence would be likely to be adversely affected otherwise.

The judge, if satisfied that the effect of the above is to impose a substantial and unreasonable restriction on the reporting of proceeding at the trial and that it is in the public interest to remove or relax the same, may direct but the restriction shall not apply in so far as specified.

After a person is charged with rape, no matter likely to leave members of the public to identify him as the person against whom the charge is made shall be published in a written publication, except as authorised by a direction of the Court or after conviction. If the person applies to the judge that this provision should not apply the Judge shall direct otherwise, provided that the complaint is not thereby identified.

Publications in breach of the above provisions are an offence. There is provision by which a company individual or the management and/or directors of a company or business may be convicted.

Corroboration of Evidence

Formerly, it was the case that the uncorroborated evidence of the complainant would not generally be sufficient to convict the accused in a sexual offence case, in the absence of warnings as to the danger of the conviction on uncorroborated evidence. This rule was amended so that it is the matter for the judge having regard to all the circumstances of this case whether or not to give such warning.

A person accused of rape may have if the evidence does not so warrant a conviction for rape, be convicted of sexual assault or certain other alternative offences. Similarly, persons charged with certain categories of sexual offences may be convicted of other categories of offences.

Many sexual offences arise from an incident of which only the accused and the complainant have first time knowledge. At common law, a practice developed of requiring corroboration in respect of sexual offences. Corroboration means independent evidence in respect of the material facts required to be proved.

Judges determined whether the evidence was capable of amounting to corroboration and instructed the jury to determine whether corroboration, in fact, existed in the circumstances.

Corroboration must implicate the accused in a material respect in relation to the commission of the crime and the accused being the person who committed it. It is not sufficient that it merely bolsters evidence. It must link the accused to the crime. If the evidence equally supported the defendant’s position, it would not be deemed capable of being corroborative and the jury should not consider it as such.

A judge/ jury could convict in the absence of corroboration, but the judge was obliged to warn the jury of the danger of so doing. This principle applied to all sexual offences that were not corroborated. The failure to give the requisites of warning could mean the jury’s verdict being satisfied by the Court of Criminal Appeal.

A jury could convict an accused in the absence of corroboration. However, the trial judge had to warn of the dangers of conviction without corroboration.

Under the above-mentioned 1990 Act requirement for corroboration is now discretionary. It is not given only if there is a reason to believe that the complainant’s evidence may not be reliable.