The Minister for Justice Helen McEntee has secured government approval to publish the General Scheme of the Criminal Justice (Sexual Violence and Human Trafficking) Bill 2022.

The Bill will strengthen the law on consent, knowledge and belief in rape cases by changing the current situation where a man is not guilty of rape if he honestly believed that he had consent. Under the new proposals, the accused’s defence that he believed she was consenting has to be objectively reasonable; that his belief was one that a reasonable person would have held in the circumstances.

Minister McEntee said, “this a very important and timely piece of legislation that will mean juries should have regard to the steps the accused took to check whether the woman is consenting, as well as the accused’s decision making capacity at that time. Currently the accused’s own subjectively honest but mistaken belief that the woman was consenting is a defence to rape. This needs to change. The changes I am bringing forward today progresses policy commitments I have made in key plans, such as Supporting a Victim’s Journey and Zero Tolerance; the third national strategy on domestic, sexual and gender based violence.”

The new Bill will amend the fault or mental element of the rape offence by adding that the accused commits rape if, at the time of the sexual intercourse, he does not “reasonably believe” that the woman was consenting.

This would be an objective test, and would be in addition to the present definition of rape (i.e. where the accused knows that the woman is not consenting or is subjectively reckless as to whether she is consenting).

The Bill will also provide greater protections and supports to victims of sexual crimes and human trafficking, including putting the National Referral Mechanism on a statutory footing and ensuring anonymity for victims in all sexual offences trials.

It also removes the final legislative barriers to Ireland’s ratification of the Second Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.

Speaking after Cabinet, Minister McEntee said, “this Bill will ensure that greater protections and supports will be provided to victims of sexual crimes and victims of human trafficking. Most of these victims are, unfortunately, women and children. I also believe that these proposals will reduce the risk of re-traumatisation and will ensure that victims have the supports in place to allow the healing process to begin.”

The revised National Referral Mechanism will make a significant difference to Ireland’s capacity to identify and support harder-to-reach human trafficking victims.

It will allow all agencies, both State and civil society, to co-operate, identify and share information about potential victims and facilitate their access to advice, accommodation and support.

Currently, when suspected victims of human trafficking are encountered by, or referred to, An Garda Síochána, they are provided with a wide range of services by both the government and NGOs through the NRM.

Many victims – for very understandable reasons – will not approach the police, but may be much more comfortable approaching a different state body, or an NGO.

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

Minister McEntee added, “this is a clear demonstration of Ireland’s commitment to identifying and supporting victims of this abhorrent crime and it will strengthen our international reputation in this area. Last week’s announcement by the US State Department that Ireland had been removed from the Tier 2 Watchlist in its latest Trafficking in Persons (TIP) report was very positive, and by legislating to put the NRM on a statutory footing, I’m confident that our standing internationally will be further improved in advance of the next report.”

“My department has worked very closely with a number of NGOs that support victims of human trafficking in developing the policy proposals for the new NRM and in developing a new National Action Plan on Human Trafficking. The department will reconvene the working group of NGOs and other stakeholders shortly to get the benefit of their advice on the details of the General Scheme and I look forward to their input.”

As part of the ongoing reform of the criminal justice system to make it more supportive of victims, the new Bill will also introduce additional safeguards for victims of sexual offences as recommended by the Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offence conducted by an expert working group, led by Professor Tom O’Malley. Recommendations from this Review are being taken forward in Supporting A Victim’s Journey: A Plan to Help Victims and Vulnerable Witnesses in Sexual Violence Cases which the Minister launched in August 2020.

The provisions being legislated for through this Bill will ensure anonymity for victims in all trials for sexual offences and will extend the victim’s right to separate legal representation if, for example, they are being questioned about their previous sexual history. This will provide for stronger protections for victims of sexual crime, who are predominantly women and children.