Ruling may see statutory rape law relaxed
Men who have sex with under-age girls should not automatically be deemed guilty of rape, the Irish Supreme Court ruled today.
Turning rules on the age of consent on their head, the five-judge court found it is unconstitutional to convict a man who admits to having sex with a minor if he does not know their true age.
The challenge was brought by a 23-year-old man who admitted sleeping with a teenage girl in 2001 when he was aged just 17.
He claimed the girl told him she was 16.
The Director of Public Prosecutions was preparing a prosecution, with the man facing four charges, the prospect of a long jail term and being shamed for the rest of his life as a sex offender.
But following the Supreme Court judgment he will not stand trial.
In a unanimous decision it found that the Irish criminal justice system failed to allow a defence that the man had made a genuine mistake about the girl’s age.
Mr Justice Adrian Hardiman said that to criminalise the young man, who was mentally innocent, in a such a serious fashion, would inflict a grave injury on his dignity and sense of worth.
“It appears to us that this, in turn, constitutes a failure by the state in its laws to respect, defend and vindicate the rights to liberty and to good name,’ the judge said in the ruling.
The decision could have major implications for future rape trials involving minors and lead to the DPP dropping outstanding charges in such cases, which carry a maximum sentence of life imprisonment.
Those who have been convicted under similar circumstances and whose names have been placed on the Sex Offenders’ Register could also apply to have their sentences overturned and names removed from the list.
According to advice from the Attorney General in 2002 the age of consent for heterosexual sex for boys is 15, but for girls it is 17. The age of consent for homosexual sex is 17 for both boys and girls.
Young women are granted immunity from prosecution where they consent to intercourse under the proscribed age, but no such immunity exists for boys under 17.
The Oireachtas, Irish Parliament, may now be called on to enact new legislation to protect youngsters and discourage under age sex.
As far back as 1990 the Law Reform Commission suggested the same legal regime should apply for consensual homosexual and heterosexual activity and pointed towards a common age of consent of 15 for both sexes.
Its recommendations said an “age differential” provision should be introduced so it should not be an offence to have sex with a girl of 15-17 unless the boy/man is a person in authority or at least five years older.
The Supreme Court ruling stated: “In the case of the offence now under consideration, one must also remark that mere conviction of the offence, apart from any sentence, carries a social stigma.
“Moreover, this stigma is compounded by the consequential enrolment of the person convicted on the Sex Offenders’ Register. It seems impossible to exclude the fact of such registration from the factors to be considered in this case.”
Mr Justice Hardiman went to say that enrolment on the register is a very formalised stigma.
“It would be a matter of intense shame to any individual, and, unfortunately to his family. It is something a person would wish to conceal even after many years,” he said in his ruling.
“There have been tabloid newspaper demands to have the contents of the register published, and persons on the equivalent register in the United Kingdom have been physically attacked. So, unfortunately, have persons erroneously thought to be sexual offenders.”
Mr Justice Harding went on: “If a person has consensual intercourse with another whom he honestly and reasonably believes to be over the relevant age, he is not aware that anything unlawful has occurred.
“The essential similarity between the two measures is that a mentally innocent person is criminalised.”
