Supreme Court strikes down underage sex law

[Gladstone]

I agree with the reasoning of it, but I'd be interested to know just how you could prove if someone DID know the person they were having sex with was under 18.

Say for example a man has sex with a 14 year old knowlingly, then if charged says he thought they were 17, how does the prosicution prove him a liar?

[CJH]

Is it true that only a man can be charged with statutory rape in this country?

As a perpetrator, yes. I believe a woman could be charged as an accomplice.

I'm a bit confused about all of this. The SC have (I think) struck down the strict liability element of unlawful carnal knowledge, as set out in the 1935 Act. This offence relates to any male having sex with a girl under 17, not 15. Now, the penalties for having sex with a girl under 15 (life) are much higher than having sex with a girl aged 15 or 16, but the basic offence still exists. Yet all the comment has only been about how the decision relates to having sex with a girl under 15. Can anyone explain?

Does this have implications for the whole principle of strict liability? Keane CJ a few years ago suggested that the crime of criminal contempt of court may no longer be one of strict liability. Is this going to be applied across the criminal law?

[CJH]

I agree with the reasoning of it, but I'd be interested to know just how you could prove if someone DID know the person they were having sex with was under 18.

Say for example a man has sex with a 14 year old knowlingly, then if charged says he thought they were 17, how does the prosicution prove him a liar?

Well, obviously that will differ on a case by case basis. The basic rule that is applied in these instances, is that the more unreasonable a belief, the less likely that it will have been honestly held by the accused

[FutureTaoiseach]

I agree with this judgement because the accused may have been lied to by the other party as to her age. Some people look older than they are.

A particular nonsense of this law too is that where you had two people aged 16 having consensual sex, that the male could be jailed for that under this and placed on the sex-offenders register. In recent times there have been calls for this register to be made public. If it were, people would end up regarding such a guy as a paedophile if they didn't know more about the case. A grave injustice and a nonsense. Especially when 40% lose their virginity at the age of 16.

[Libero]

The judgment is now up on courts.ie

Clearly there is a strong argument in favour of allowing "honest belief" to be a defence to the charge. It is based on principles of fairness and all round justice, on the same good reasons why other areas of the law provide for a defence when the accused is "mentally innocent".

Today the Supreme Court has insisted that this principle is mandated by the Constitution, albeit through an expansive reading of what a "fair trial" means.

My worry is that the Oireachtas in all probability considered this argument and decided against it. Over the years, successive Dáils have not chosen to amend the law in this regard.

As I mentioned earlier, it's easy to see the pragmatic reasons why this should be so: to secure convictions for a crime that would otherwise frequently be very, very difficult to prove. This should be clear even when - like the Supreme Court - one feels that the "fair trial" set of considerations outweighs the other.

I don't want to sound like a crusty US Republican, but this is judicial law-making.

[michael1965]

The Law Reform Commission, as long ago as 1990, addressed this issue and manifestly concluded that this could be done without the stark law presently in force. The commission recommended an overall reduction in the age of consent but more relevantly for present purposes recommended a defence of “genuine belief”, available to any person except a person in authority over a minor. It was further recommended that “the test for determining genuineness of belief should be subjective, but the jury is entitled to have regard to the presence or absence of reasonable grounds for such belief”.

Presumably, legislation along these lines is what is needed now.

It's interesting that this law has survived for 70 years without challenge. But on the other hand, I can't help thinking that the judgement is very much influenced by "modern" circumstances. It's surely undeniable that these days (given the greater freedom enjoyed by young women) it is much more understandable for men to claim this kind of defence that it might have been in the past.

So, what would have happened if the law was challenged say thirty years ago, and then found to be constitutional? Would that have meant it was cast in stone, and could never be challenged again?

[stringjack]

My worry is that the Oireachtas in all probability considered this argument and decided against it. Over the years, successive Dáils have not chosen to amend the law in this regard.

I'm not clear on your reasoning here. The Oireachtas was presumably acting on the assumption that the relevant Section was consistent with the Constitution. It is not for the Oireachtas to determine whether or not laws are constitutional, so even if successive generations of elected politicians have been of the opinion that the law should be so, their proper course of action would have been to propose a constitutional amendment. Besides, I'm not sure that the one can reasonably infer approval from inaction. Furthermore, at least one component of the Oireachtas questioned the reasoning underlying the Section ten years ago, in referring the Employment Equality Bill to the Court.

I don't want to sound like a crusty US Republican, but this is judicial law-making.

I think Hardiman would reject that contention:

The difficulty with the form of limitation on a declaration to that effect that Mr. McDonagh proposes is that it appears to involve the Court in a process akin to legislation. Mr. McDonagh posits a “reasonable belief” defence on the basis that the existence of such an offence would save the Section from unconstitutionality. But so too would a defence which left the defendant’s knowledge of age to be proved by the prosecution as part of the mens rea of the offence, very likely a defence based on presumptions, and perhaps other forms of defence. It might, for example, be thought desirable to have a law on this subject along the lines proposed by the Law Reform Commission in 1990. But for present purposes it is sufficient to say that there is, obviously, more than one form of statutory rape provision which would pass constitutional muster, and it does not appear to be appropriate for the Court, as opposed to the legislature, to choose between them.

[Sidewinder]

Don't some countries have either no age of consent at all, or very low ones (like 12 or 13); and major consideration is given to the age gap rather than the actual age of the girl. So a 19 year old sleeping with a 15 year old (who he thought was 17) would be a case of "be more careful next time ya eejit", but if he was 28 then he'd be tried and almost certainly convicted.

Seems a far more sensible approach.

[farnaby]

I heard on Newstalk this morning that the Supreme Court judgement actually prevents any prosecutions based on this law going ahead (and around 7 cases currently in the courts may be thrown out) - but that the Supreme Court had the option to allow those prosecutions to continue, with the 'ignorance' defence allowed.

Can anyone confirm or clarify this?

[michael1965]

Is it true that only a man can be charged with statutory rape in this country?

As a perpetrator, yes. I believe a woman could be charged as an accomplice.

I'm a bit confused about all of this. The SC have (I think) struck down the strict liability element of unlawful carnal knowledge, as set out in the 1935 Act. This offence relates to any male having sex with a girl under 17, not 15. Now, the penalties for having sex with a girl under 15 (life) are much higher than having sex with a girl aged 15 or 16, but the basic offence still exists. Yet all the comment has only been about how the decision relates to having sex with a girl under 15. Can anyone explain?

You're right. They could have charged him under section 2 of the act, since the age of consent is actually 17. But there is a limitation of 12 months in that section, so I think it is too late to charge him now.