The Law Reform Commission has called for a change in the way consent is considered in rape trials.

Those accused of rape can currently be acquitted if they can prove they “honestly believed” they had secured consent.

The Law Reform Commission (LRC) is calling for a more objective test – which would see juries asked to consider whether ‘any reasonable person’ would believe consent had been given in the circumstances.

It also wants juries to consider the accused ability to make decisions and the steps that were taken to find out whether consent had been given.

The Attorney General asked the LRC to consider the matter after the Supreme Court found that an “honest, though unreasonable mistake that the woman was consenting, is a defence in rape.”

The Criminal Law (Rape) Act was passed in 1981 and the language used in it is gender-specific. The Law Reform Commission is expected to address this in a future programme of legal reforms.

On Newstalk Breakfast, the chair of the National Women’s Council Ellen O'Malley Dunlop explained the proposed changes.

“They want an objective definition of whether a person knew that the person they were having sex with was giving consent,” she said.

“I understand that the Law Reform Commission’s recommendation now is for an objective definition of reasonable belief.”

On The Pat Kenny Show this morning, the Law Reform Commissioner Raymond Byrne said misconception of consent should not be allowed in court.

“It should not be just going back to totally unreasonable circumstances where somebody finds themselves thinking that there is consent,” he said.

“Where there might be a total misconception that, just because somebody is out for a drink or somebody has agreed to go back to somebody’s flat, that that is consent.

“Those kinds of misconceptions about consent should not be allowed into the picture.”

The LRC is calling for the law to be changed so that a person can be convicted of rape if:

• They know they have not secured consent.
• They are “subjectively reckless” about whether they secured consent.
• Their belief that they secured consent is not objectively reasonable.

The commission is also recommending that where the question of “reasonable belief” arises, the jury should consider what steps the accused took to find out whether consent had been given.

In situations where it is argued that the accused lacked the capacity to understand whether consent had been given, the LRC said the jury should consider a “specific list of circumstances.”

These are:

• Whether the accused has any physical or mental disability
• Whether the accused has any mental illness
• The age of the accused
• The maturity of the accused