Supreme Court strikes down underage sex law

[Libero]

In a major decision, the Supreme Court has today declared as unconstitutional the law providing for strict liability in the case of a man having sex with a girl aged 15 or under ("statutory rape").

RTÉ News link

The decision was a unanimous one and apparently based on several grounds, including an objection to the principle known as strict liability whereby the accused may have acted under a mistake as to the girl's age or been misled as to the circumstances but is still guilty of the offence. Breakingnews.ie states "The five judge court has declared that if a man has consensual intercourse with someone he honestly believes to be of legal age, then he should not be automatically guilty."

The judgment is not yet available on courts.ie but should be reported on widely in the days ahead.

The judgment represents a challenge to the legislative power of the Oireachtas. The law clearly provided for strict liability and there is a sensible policy rationale for doing so: a man who has sex with an underage girl will often be able to raise a reasonable doubt as to his state of knowledge, even when he knew full well what he was doing. In order to avoid making this a near-impossible crime to prosecute, the law does not provide for this defence. Yet under the unanimous Supreme Court decision, our highest court is insisting that this cannot be done, and that 'honest belief' must be provided for as a full defence.

Is the Court correct? Are we on the road to a new Constitutional referendum?

[cyberianpan]

I think discretion ought be left with the Jury

Physically it is very hard to tell if some girls are 15 or 23, I've even thought a 28 year old was 18 !

Also some people are more mentally mature earlier.

It is a blurry area , certainly not one to enshrine in constitution

However perhaps the politicos ought try to draft more detailed laws & criteria in the area.

cYp

[Carrier]

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

[zakalwe]

libero,

is it true that a man is presumed guilty until proven innocent in statutory rape?

[Libero]

libero,

is it true that a man is presumed guilty until proven innocent in statutory rape?

No.

The situation was that until now, a man could not present as a defence the fact that he did not know that the girl in question was underage. Indeed, he could show to the court that he was defrauded into honestly believing she was of legal age, perhaps by the girl herself and fake ID. No matter - the law was clear in the principle of strict liability: you have sex with an underage girl, you are guilty, no matter how old you honestly thought she was.
After today's decision, and until any constitutional amendment, the accused will be able to raise his 'honest belief' as a defence and, I presume, it will be up to the prosecution to 'negative' this defence by disproving it, showing beyond a reasonable doubt that no such honest belief existed.

I hope that makes sense.

Of course the prosecution always had to, and always will have to, prove beyond a reasonable doubt that the man in question actually had sex with the girl in question.

[michael1965]

In a major decision, the Supreme Court has today declared as unconstitutional the law providing for strict liability in the case of a man having sex with a girl aged 15 or under ("statutory rape").

RTÉ News link

The decision was a unanimous one and apparently based on several grounds, including an objection to the principle known as strict liability whereby the accused may have acted under a mistake as to the girl's age or been misled as to the circumstances but is still guilty of the offence. Breakingnews.ie states "The five judge court has declared that if a man has consensual intercourse with someone he honestly believes to be of legal age, then he should not be automatically guilty."

The judgment is not yet available on courts.ie but should be reported on widely in the days ahead.

The judgment represents a challenge to the legislative power of the Oireachtas. The law clearly provided for strict liability and there is a sensible policy rationale for doing so: a man who has sex with an underage girl will often be able to raise a reasonable doubt as to his state of knowledge, even when he knew full well what he was doing. In order to avoid making this a near-impossible crime to prosecute, the law does not provide for this defence. Yet under the unanimous Supreme Court decision, our highest court is insisting that this cannot be done, and that 'honest belief' must be provided for as a full defence.

Is the Court correct? Are we on the road to a new Constitutional referendum?

It's hard to say without seeing the judgement, but I'd be inclined to agree with the others here. Trying to ensure a conviction, by removing what naturally really ought to be a reasonable defense, seems wrong to me. I wonder is the case still sub-judice, because there are clearly interesting apects to the particular case, like the guy was only 2 years older than the girl. Is it right that this guy be tagged as a sex-offender automatically and with no scope for defense? I don't think so.

Maybe as zakalwe asks, the burden of proof should be put on the defendent, but to deny him all possible defense seems wrong to me, but I'm no expert. I'im interested to hear what other people think.

[stringjack]

It's hard to say without seeing the judgement, but I'd be inclined to agree with the others here. Trying to ensure a conviction, by removing what naturally really ought to be a reasonable defense, seems wrong to me.

As you note, it's hard to say anything substantive without the actual text of the judgement - for example, did the court offer any guidance on what standard would have to be met before a person could make a legitimate claim of 'honest belief' (such as that the belief must be one a 'reasonable person' could have held in the circumstances, or a requirement that some effort was made to ascertain the person's age), or did it just throw the whole mess back onto the legislature and the lower courts?

[farnaby]

I think in this case ignorance can be a defence and there should be enough evidence to form a judgement (girl drinking in pub, ok; girl in school uniform, beware). But yes, the burden of proof should in this case be on the defendant.

However, even if the man knows the girl's age, if he is 17 and she is physically and emotionally mature, should he have to be criminalised for this? The facts of birth-date alone do not determine wrong-doing - coercion and exploitation are the wrongs an age-of-consent law tries imperfectly to avoid. In this area moral judgement is needed case-by-case.

[Pidge]

In this area moral judgement is needed case-by-case.

But then you've got a law which isn't clear, meaning people never know if they're breaking the law or not.

[farnaby]

In this area moral judgement is needed case-by-case.

But then you've got a law which isn't clear, meaning people never know if they're breaking the law or not.

True, I just don't think a single age-of-consent law does the job - in this situation we have a law not truly enforced. Maybe the active under-agers need to apply for some kind of licence...!