Abstract

The Law Reform Commission of Ireland has recommended altering the law in that jurisdiction in relation to knowledge or belief concerning consent in rape cases. Essentially, the recommendation is to move from a subjective test based on an accused’s honest belief to a primarily objective test based on reasonable belief, taking account of specific subjective aspects of personal capacity and steps taken by the accused to ascertain consent. This article outlines the recommendations of the Law Reform Commission against the backdrop of the existing law and context in Ireland. It compares the newly-proposed law with the existing law in England and Wales, explores the preference for subjectivity in Irish criminal law (and its constitutional dynamic), and considers the potential impact of the recommended change. The effect of rape myths and stereotypes on jury deliberations is a theme which runs through the article.