15 August 2023
In Ireland, consent is the principle underpinning the law on sexual offences. Engaging in sexual activity without appropriate consent is a criminal offence. Anyone accused of a sexual offence should be represented by a solicitor with specialist knowledge in this area. If you need to speak to a solicitor, call Daniel Kreith on 086 076 2191 (24/7).
Consent in Legislation
The law on consent in Ireland is set out in the Criminal Law (Sexual Offences) Act 2017. The Act defines consent as a freely given, informed and enthusiastic agreement to engage in sexual activity. It must be given by a person capable of giving it, and must be ongoing throughout. The Act sets out circumstances where consent is not given even without active resistance: where the person is asleep or unconscious, under the influence of drugs or alcohol, has a disability that prevents them giving consent, or is coerced or threatened. The absence of physical resistance or silence does not amount to consent. It is the responsibility of the person initiating activity to ensure they have explicit consent. The Act also introduced offences concerning sexual activity with a person under 15, with a person in a position of dependency, and where the person is incapable of giving consent.
Consent under Case Law
Several Irish cases have clarified the law. In DPP v O'Rourke, the Supreme Court held that the absence of physical resistance or vocal objection did not mean consent was given, the key issue being whether the accused believed the other person was consenting. In DPP v ZC, the Court of Appeal held that the absence of an explicit verbal refusal did not amount to consent, and that the accused must have a reasonable belief in consent based on more than mere silence or passivity.
Conclusion
Consent must be freely given, informed and enthusiastic, and ongoing throughout any sexual activity. The absence of resistance or silence does not amount to consent, and anyone who engages in sexual activity without explicit consent can face criminal charges. Seek legal advice if you have been accused of a sexual offence.