The Law Reform Commission published an Issues paper in August 2018 in response to a call from the Attorney General to look at the Honest Belief defence in the law on rape.
The Attorney General requested the commission:
“To examine and make recommendations on whether changes should be made to the on whether changes should be made to the element of knowledge or belief in the definition of rape in Section 2 of The Criminal Law (Rape) Act 1981 as amended.”
Section 2(2) of the 1981 Act adds that if in a trial for rape the jury has to consider “whether the man believed a woman was consenting” the jury is to have regard to the presence or absence of reasonable grounds for such a belief” as well as any other relevant matters in considering whether the man so believed.
The LRC then published their Issues paper and called for submissions from the public. The paper contained four questions to which they requested answers. The questions were based on what the LRC reckoned were the options. The closing date for submissions was Oct 26 2018.
What was striking about the Issues paper was the bias which permeated the whole discussion
MVI, knowing from past experience that there would be a strong lobby in favour of tightening the law or striking out this defence, decided to make a submission. We also knew that there would be few if any groups taking an opposite tack.
What was striking about the Issues paper was the bias which permeated the whole discussion. The paper is quite lengthy, over 50 pages, but it seemed pretty clear that it was informed by a particular ideology, with few observations from a neutral standpoint.
We expected that this ‘Issues Paper’ would be a balanced discussion document which would analyse the various options in the context of whether or not they would serve the cause of natural justice i.e. acquit the innocent and convict the guilty. Instead the ‘Pros’ and ‘Cons’ of the various measures are discussed on the basis of whether or not they will result in more convictions, regardless of innocence or guilt.
The measures put forward for discussion:
- impose all responsibility on the male party and absolve the female party for all responsibility for making any efforts to bring the encounter to an end if she does not wish it to proceed to its natural culmination ( a corruption of the concept of equality)
- are designed to either inhibit the accused in presenting certain matters in his defence and/or prevent the jury from considering certain matters which may be of assistance to the defence ( a corruption of the concept of ‘audi alteram partem’)
- contain nothing that would in any way enhance the protections for the innocent accused ( contempt for the presumption of innocence)
- reverse the burden of proof in some instances
- appear to be based on the presumption that all accused are guilty (a presumption of guilt).
The average sentence on conviction now stands at ten years
People are by now familiar with the attempt to make convictions easier to secure along with a widening of the definition of rape to the extent that a great many men now stand in danger of being accused. The average sentence on conviction has increased in length in the past two decades and now stands at ten years and the trend continues to make convictions easier to secure.
We give just two examples from the paper followed by our comments:
In 1.45 they note: that it could be difficult to convince a jury that there was no way in which the accused honestly believed that the complainant had given consent.
Complaining about the difficulty of securing a conviction is a decidedly partisan attitude to take.
And in 1.46: Because no evidence is required to substantiate the assertion, it may be relatively easy for the accused to lie…
Here is a moan that a bogus defence may convince a jury and allow a defendant to escape justice. Because of this there is also the attempt to shift the burden of proof on to the accused, an ominous move.
Our submission may be consulted here: Submission to the Law Reform Commission on knowledge or belief concerning consent in rape law.