The stumbling blocks in finding a just balance
IN May 2006, Chief Justice John Murray ruled a law was unconstitutional if it punished a person even if they had made an honest mistake.
He issued this ruling in the case of Mr C — a 24-year-old man who had sex with a 14-year-old girl when he was 18.
The Supreme Court ruling said evidence that a person had committed a guilty act was insufficient if they were not aware what they were doing.
It said under the Constitution people had a right to protect their good name and, even if Mr C had escaped jail, the establishment of the Sex Offenders’ Register in 2001 meant his reputation would forever be tarred.
This ruling torpedoed the clause in the 1935 unlawful carnal knowledge act which said it was always a crime to have sex with a minor even if the accused thought they were of or above the legal age of consent.
The Corrigan Report, which formed the basis of the 1935 act, did outline why the honest mistake defence was unnecessary. It said while it impinged on an adult’s freedom, those who chose to have sex with children without asking their age were reckless.
Because this recklessness came at the expense of children it could not be condoned. It said on balance the right of the child to be protected was more important than allowing adults to be negligent.
Campaigners have said if the umbrella of absolute responsibility cannot be restored, the burden of proof should fall on the accused man to prove he did not know the teenager’s age.
In this week’s Mr K case, a man accused of sexual assault became the first person to use the honest mistake defence since the 2006 Supreme Court ruling.
The woman who Mr K had sex with — when she was aged 13 and he was aged 20 — has claimed the honest mistake defence was abused.
She said rather than him having to prove he made a mistake the onus was on her to convince a jury he was aware how old she was — the jury sided with him.
If the Government decides to abolish this clause allowing for honest mistake defence it will have to change the Constitution.
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This aspect of the debate has been particularly divisive and begs the question can the majority of teenagers be protected without making criminals of early experimenters?
It asks if a 15-year-old who has sex with another 15-year-old is guilty of the same crime as a predatory adult who manipulates a teenager. And the dispute does not end there as there is also concern about how children in these situations are treated by the law.
The contradictions in this area were borne out in the cross examination of the Ombudsman for Children Emily Logan at the all-party committee on the children’s constitution.
In her advice document to the Government, she said the law on strict liability was unfair because it required children to endure cross-examination and it necessitated child victims being present in court.
However, the fact that removing strict liability undermined the blanket of protection provided to children was put to her by Deputy Peter Power. She conceded if the court-room aspect was resolved she would support the reintroduction of strict liability.
Earlier in 2006, the Committee on Child Protection was definitive on this issue of teenagers experimenting. It said criminalising children was not a problem and was an everyday occurrence for those with troubled behaviour, it said it could be dealt with under the Juvenile Diversion Programme.
The committee said rather than labelling children as criminals for the rest of their lives, it offered the opportunity for social services to intervene.
Under the law, once-off offences committed by children are wiped from their record when they reach the age of 18.
It was the view of the committee to keep underage sex a criminal offence, with negligible sanctions, to protect children from their own behaviour as well as from predatory adults.
An alternative approach has been adopted in other European countries’ laws where it is not a criminal offence if there is less than a five-year age difference between the parties. This is to ensure experimenting is not an offence.
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This week a case went to the High Court challenging charges brought against a teenager who had sex with a 14-year-old girl when he was 15.
He was charged under the emergency statutory rape legislation enacted to plug the loophole highlighted in the 2006 Mr C case.
Under this new law, teenage boys are considered criminally responsible if they have sex with a girl who has not reached the legal age of consent. However, girls are granted immunity from prosecution until they reach the age of 17.
The Government defended this on the grounds that if a teenage girl became pregnant by a boy her own age this could be used as evidence she committed the crime of statutory rape.
This would not have happened under the 1935 law because it was only a crime to have sex with underage girls and the rape of boys was a different offence.
In the legislation of statutory rape, it was felt underage girls had to be protected or else they may be inclined to conceal or terminate their pregnancy.
However, the 17-year-old Donegal boy has argued this discriminates against him.He is accused of having sex with the girl eight weeks after the 2006 law was enacted.
His case will ask the High Court to decide if this emergency law breaches Article 14 of the European Convention on Human Rights — this outlaws discrimination based on gender.
However, the Government maintains it can rely on a get-out clause which allows discrimination as long as there are objective and justified reasons for doing so.
The pregnancy argument is its justification and in the High Court, and most likely the Supreme Court, it will have the opportunity to put this position to the test.
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Plans to hold a speedy referendum on the rights of the child in 2007 were derailed by a dispute on what should be the age of consent.
The Joint Oireachtas Committee recommended the age of consent be lowered to 16. It said this should happen to reflect modern realities and in doing so it could abolish the graded scale of sanctions under the 1935 law. For example, having sex with a child aged under 15 carries a potential life sentence compared with a maximum of five years for those who have sex with children under 17.
Both the Rape Crisis Network Ireland and Fine Gael were vehemently against any attempt to lower the age of consent from 17. The RCNI said this was never flagged in the past and would in no way serve the interests of children.
However groups like the Women’s Health Council said setting the age at 17 was criminalising what had become normal.
The committee agreed and said sticking to the cut off of 17 was such a departure from reality it needed to be changed.
The Government has stressed it wants all-party consensus before publishing the wording of the referendum but it remains to be seen if this sticking point can be overcome. If this is not resolved it could be the battleground on which the referendum is fought.
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May 23, 2006: A 24-year-old man, Mr C, wins his Supreme Court challenge against the 1935 unlawful carnal knowledge law.
He claimed he had not known the girl he had sex with four times between July 2001 and August 2001 was under age.
He successfully argued since the creation of the sex-offenders’ register he could be convicted and have his name tarnished despite him never even realising he was committing a crime.
Chief Justice Murray said this anomaly was unconstitutional.
May 30, 2006: A 41-year-old man, Mr A, who was jailed for getting a 12-year-old girl drunk so he could have sex with her was released by the High Court.
Ms Justice Mary Laffoy said the Mr C case had made the 1935 law he was prosecuted under unsafe. Five other men in jail for the same offence apply for release.
June 2, 2006: Supreme Court sat in special session to hear the Mr A case. It decided Mr A was not entitled to release because he did not argue the honest-mistake defence from day-one.
The Oireachtas passed emergency legislation to plug the loophole and rushed it to Áras an Uachtaráin where it was signed into law to restore calm.
November 2, 2006: The DPP dropped the charges against Mr C and five other men. It told the court it would charge the men with sexual assault instead.
November 3, 2006: Taoiseach Bertie Ahern informs Fianna Fáil Ard Fhéis he wants a referendum on the rights of the child — which would include a clause to plug the Mr C loophole.
November 30, 2006: Joint Oireachtas Committee on Child Protection presents report to the Oireachtas after five-months’ deliberation. It recommended:
* The age of consent be lowered to 16.
* The defence of honest mistake should not be available.
* The gender differences introduced in 2006 be abolished and it should still be a crime for young teenagers to have sex with each other.
December 10, 2006: Minister Seamus Brennan dismissed the suggestion the children’s referendum will take place quickly because there was no consensus on lowering the age of consent.
March 7, 2007: Emergency legislation was passed in the Dáil after the then leader of the Labour Party Pat Rabbitte identified a loophole created by the 2006 attempt to deal with the Mr C case.
In passing the special law in June 2006 the government accidently removed the crime of grooming a child for sex.
This was solved but some warned it could criminalise teenagers cajoling each other to go for a snogging session.
November 29, 2007: The DPP showed its reluctance to charge men under the emergency legislation when six men go on trial for raping a girl when she was aged 12 and 13.
The girl, who was 17 at the time of the trial, had to enter the witness box and argue the sex was not consensual.
The trial collapsed within days because of an issue with a jury member.
December 6, 2007: The all-party Oireachtas committee met to discuss the constitutional amendment on the rights of the child. It received 175 submissions.
Its chairwoman, Mary O’Rourke TD, has said it expects to deliver its report in November of this year.
January 16, 2008: The DPP dropped all charges against Mr C, saying it would not pursue charges of sexual assault.
March 4, 2008: A 26-year-old Donegal man was cleared of the rape of a 14-year-old girl.
He had claimed he did not know her age and she had consented. Because he claimed he made an honest mistake the case was taken on the basis he forced himself on the girl. April 21, 2008: A 17-year-old boy began a High Court challenge preventing a case being taken against him for having had sex with girl when she was underage.
He was aged 15 at the time and she was aged 14 — the emergency law enacted in 2006 absolves girls from prosecution.
His cases cited Article 14 of the European Convention on Human Rights which prohibits discrimination on the basis of gender.
April 22, 2008: A man charged with sexual assault becomes the first man to be found not guilty strictly on the basis of the honest mistake defence.
He admitted having sex with a girl when she was 13 and he was 20 years old.
He said he thought she was aged 17 or 18 but after the jury’s announced its verdict the woman claimed he had known her real age and what year she was in school.
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