Table of Contents
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
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.
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.
Aggravated Sexual Assault
Aggravated sexual assault is a sexual assault that involves serious violence or a threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted. A person guilty of aggravated sexual assault is liable on conviction to imprisonment for life.
Indecency covers a wide variety of circumstances. Some behaviour may be inherently indecent, while other behaviour may be indecent in the circumstances or context. Where there is no indecent contact, English cases hold that there must be evidence of force or compulsion.
Under 15 Years
A person who engages in a sexual act with a child under 15 is guilty of an offence and is liable on conviction on indictment to imprisonment up to for life. A person who attempts to engage in a sexual act with a child under the age of 15 is similarly guilty of an offence liable on conviction on indictment for up to imprisonment for life.
It is a defence to proceedings to prove that the accused honestly believe at the time of the alleged commission of the offence that the child against whom the offence was committed had attained the age of 15 years. If the matter of the defendant’s honest belief arises, the Court is to have regard to the absence of reasonable grounds and other relevant circumstances in so determining the issue. The consent of a child under 15 years is not a defence.
Under 17 Years
A person who engages in a sexual act with a child under the age of 17 years is guilty of an offence and is subject on conviction on indictment to imprisonment up to five years or up to life imprisonment if he or she is a person in the place of authority. In the case of any subsequent conviction, the maximum imprisonment is increased from five to ten years.
A sexual act means an act consisting of sexual intercourse or buggery. Attempting to engage in a sexual act with a child under 17 years is similarly an offence, subject to the same punishment.
A person in authority means a parent, stepparents, guardian, grandparent, uncle, aunt, a person who is in loco parentis or any person who is responsible for the education, supervision or welfare of the victim.
A female child under the age of 17 years shall not be guilty of an offence under the Act by reason only of engaging in an act of sexual intercourse.
Defence
It is a defence to proceeding for the offence for the defendant to prove that he or she honestly believed that at the time of the alleged commission of the offence, the child against who the offence is alleged to have been committed, had attained the age of 17 years.
The reasonableness of the belief is relevant to the decision as to whether the person so believed. The consent of a person of 17 years is not a defence.
Procedural Aspects
Proceedings for an offence under this provision against a child under 17 years shall not be brought except for the consent of the DPP.
A person who has been convicted of an offence and is not more than two years older than the child under the age of 17 years with whom he or she has engaged or tempted to engage in a sexual act, is not subject to the provisions of the Sex Offenders Act.
The District Court may try summarily a person charged with an offence under the foregoing provision if the Court is of the opinion that the facts constituted a minor offence, fit to be tried summarily, the accused does not object to being so tried and the DPP consents. On the summary conviction, the maximum fine is €50,000 or imprisonment for up to 12 months.