Under the new law, consent must be clearly and voluntarily expressed.
It represents a shift in the country’s legislation, as it places the consent burden on the accused – rather than the court focusing on whether the victim said ‘no’ or tried to fight back, the accused will have to prove the other person consented.
The legislation passed unanimously in the parliament on 23 March now states that:
Any person who has sexual intercourse or other sexual relations with a person without his or her consent shall be guilty of rape and shall be imprisoned for a minimum of one year and a maximum of 16 years.
Consent is considered present if it is expressed by free will. Consent is not considered present if violence, threats, or other unlawful coercion is used. ‘Violence’ here refers to the deprivation of independence by means of confinement, drugs, or other comparable means.
It is also considered rape and shall result in the same punishment as specified in the first paragraph of this Article to employ false pretences or utilize a persons‘s lack of understanding concerning circumstances, or exploit a person’s psychiatric disorder or other mental handicap in order to have sexual intercourse or other sexual relations with him or her, or the fact that, for other reasons, he or she is not in a condition to be able to resist the action or to understand its significance.
Jón Steindór Valdmarsson, an opposition MP in Iceland’s Reform party, proposed the legislative change. His party only has four seats in the parliament, but his bill received overwhelming support.
He told TheJournal.ie it is an important amendment to Icelandic law as it makes it “clear and explicit that sexual intercourse or other sexual relations with a person without his or her consent is rape”.
“I believe this change will have significant impact and is an important step in reducing sex-related violence against women.”
Sweden is also proposing a radical change of its laws around consent. The government has proposed the introduction of two new offences, ‘negligent rape’ and ‘negligent sexual abuse’, with a maximum prison sentence of four years.
“The negligence aspect focuses on the fact that the other person did not participate voluntarily. This means that it will be possible to convict more people of abuse than at present, for example, when someone should be aware of the risk that the other person is not participating voluntarily but still engages in a sexual act with that person,” the Swedish government said in December last year.
“It sends out the message that everyone is entitled to control their own sexual engagement and no one can be entitled to have sex with another person under any circumstances without her consent expressed by free will.”
It is proposed that the legislative amendments enter into force on 1 July this year.
Burden of proof
Following the public interest and commentary after the Belfast rape trial last month, Minister for Justice Charlie Flanagan launched a review of the legal protection offered to complainants in sexual assault cases.
The Department of Justice said legal representation for victims is one issue that will be examined as part of this review.
“Among the other issues that will be examined are the existing legislation, maintaining the integrity of the trial process in Irish law, what offences might be covered and within what legal aid framework it might be provided,” a spokesperson said.
Chief executive of the Dublin Rape Crisis Centre Noeline Blackwell said the inclusion of legal representation for complainants in rape cases is welcome, as it will provide a more equal opportunity for both sides where consent is contested.
However, she said she hopes the Minister will also take the opportunity with this review to look at legislative changes and initiatives other countries, like Iceland, have introduced to tackle levels of sexual assault.
“This would be shifting the onus of proof and that is quite the stretch for our system as it stands right now,” she said of the Icelandic law.
“Shifting the onus from the prosecution to prove beyond a reasonable doubt that the complainant did not consent to putting the burden on the person accused to prove they got consent.
“That would be a very big step for our common law system to take. Here a person is innocent until proven guilty, in the Icelandic legislation, it moves more towards guilty until proven innocent.”
Blackwell said this would be an “enormous” change to Ireland’s criminal law and could raise constitutional questions.
“But in the review, it’s worth looking at – this is where we could go. Is there a middle ground?”