Should there be strict criminal liability for adults who have sex with children?

 
Strict liability failed to protect children for 70 years and imprisoning people for a genuine mistake is an affront to justice, writes Tom O'Malley


THE RECENT acquittal of a man charged with sexually assaulting a 13-year-old girl has re-ignited the debate about strict liability for sexual offences committed against minors. Contrary to what is being reported, the availability of a defence of mistake as to age in respect of sexual assault has nothing to do with the Supreme Court's 2006 decision in the case of C v Ireland or the legislation enacted in its wake.

It arises instead from a decision of the same court a year earlier in PG v Ireland where it was held that while the Criminal Law Amendment Act 1935 clearly ruled out consent as a defence to sexual assault when committed against a person under the age of 15 years, it did not preclude a defence of genuine mistake as to age. Yet, this decision appears to have attracted little or no public attention at the time. It was only in 2006 when the Supreme Court struck down an entirely different provision of the 1935 Act, which outlawed sexual intercourse with a girl under 15 years of age without permitting any defence of mistake, that the present controversy arose.

Under the Criminal Law Amendment Act 1885, a man charged with unlawful carnal knowledge of a girl aged between 13 and 16 years could rely on a defence of reasonable mistake as to age.

This was removed by the Criminal Law Amendment Act 1935 which was enacted in response to something of a moral panic about the prevalence of prostitution.

Those who successfully argued at the time for raising the age of consent to 17 years, and for the removal of the reasonable mistake defence, were doubtless well motivated but, as the historical records show, their concerns were grounded on conditions and circumstances far removed from present-day Irish society.

Consent, incidentally, is not an issue in the present debate. It remains the law that consent is no defence to a charge involving sexual intercourse with a person under the age of 17 years or sexual assault of a person under the age of 15 years. The question is whether an accused person should be able to rely on genuine mistake as to age.

The most puzzling aspect of the present debate is the use of the phrase "absolute protection".

If this is meant as a euphemism for strict or absolute liability, it is seriously misguided.

We had strict liability, or absolute protection if you will, for 71 years between 1935 and 2006 and, sadly, we now know that there was more widespread, persistent and callous child sexual abuse perpetrated during this period than we could ever have imagined.

In light of that experience, it is doubtful if the reintroduction of strict liability would save one young person from abuse. Such a measure would also victimise another group of children, namely, boys under the age of 18 years who engaged in sexual activity with willing partners about whose ages they were genuinely mistaken.

Strict liability has indeed a place in criminal law. As a matter of practical necessity, so-called public welfare offences involving environmental damage, pollution, risks to public health and similar harms may be committed even in the absence of proof that the defendant acted with a guilty state of mind.

Significantly, however, such offences are usually punishable with a fine or a short term of imprisonment. But to leave a person liable to conviction of an offence carrying a maximum sentence of life imprisonment, without requiring proof that he was aware of an essential ingredient of the offence, such as the age of the other party, must surely rank as an affront to justice. This was essentially why the Supreme Court struck down the relevant section of the 1935 Act in the C Case.

Towards the end of its judgment in that case, the Supreme Court stated that there was obviously "more than one form of statutory rape provision which would pass constitutional muster".

This completely belies the easy assumption reached by many politicians and commentators immediately afterwards that a constitutional amendment was the only way forward.

Plans for any such amendment should now be put on hold until two things happen.

First, a special commission should be established to review the law governing child sexual abuse and indeed child protection more generally. It should be asked in the first instance to suggest reforms which are compatible with the Constitution as it now stands. Second, we should await the outcome of the pending constitutional challenge to that provision of the Criminal Law (Sexual Offences) Act 2006 which renders females under the age of 17 years immune from liability for an offence involving sexual intercourse.

Should this challenge reach the Supreme Court, it will provide a further opportunity to clarify the scope of constitutionally permissible laws in this area.

Tom O'Malley is a barrister and senior lecturer in law at NUI Galway



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