Supreme Court declares under-age sex law invalid

The Supreme Court has unanimously declared as unconstitutional the "stark" law under which any man is automatically guilty of an offence if he has sex with a girl under 15 years, even where that sex was consensual or he believed her to be older.

The court made its decision on several grounds, including the form of "absolute liability" in the law and the failure to allow a defence of genuine mistake about the girl's age.

The decision has major implications and could lead to the termination of outstanding prosecutions on such charges, which carry a maximum sentence of life imprisonment.

Persons already convicted under the relevant law whose names have been placed on the Sex Offenders Register are also expected to speedily apply to have their names removed.

The five-judge court stressed yesterday that its decision did not prevent the Oireachtas from enacting a different and legitimate criminal law to discourage intercourse with very young girls and pointed out that the Law Reform Commission had proposed another form of law "as long ago as 1990".

The commission had recommended an overall reduction in the age of consent and also recommended a defence of "genuine belief" should be available to any person, except a person in authority over a minor.

The form of law was for the Oireachtas to decide, the court said. It also noted that, for many years, and at least since 1970, there had been "ample reason" to believe or apprehend that a statute permitting conviction of a serious criminal offence without any requirement of mental or moral guilt was constitutionally vulnerable. "A finding to that effect cannot reasonably be regarded as surprising," it said.

The successful challenge to the legislation was brought by Deirdre Murphy SC, with Marie Torrens, for a young man, now aged 23 years, who had admitted having consensual intercourse with a girl whom, he alleged, had told him she was 17 and whom, he also alleged, initiated the sexual contact after another encounter between them that had involved no intercourse.

The intercourse was said to have occurred on dates between July 20th, 2001 and August 16th, 2001 when the man was aged 18. In light of the Supreme Court decision, the man will not now be prosecuted.

The man had challenged the constitutionality of Section 1.1 of the Criminal Law (Amendment) Act 1935 that provides that any person who "unlawfully and carnally knows a girl under the age of 15 years shall be liable on conviction thereof to penal servitude for life or for any term less than three years or to imprisonment for any term not exceeding two years".

Under the Sex Offenders Act 2001, any person convicted of statutory rape would also be registered as a sex offender.

Giving the Supreme Court judgment, Mr Justice Adrian Hardiman said Ms Murphy had argued it was inconsistent with the right to a fair trial to deny her client the defence of mistake, or mistake on reasonable grounds.

The denial of such a defence by Section 1.1 brought about a situation where no mental guilt or "guilty mind" was required and where no defence could be offered at all in circumstances where, as was the situation in this case, the fact of intercourse was admitted.

Ms Murphy also alleged Section 1.1 was discriminatory because, in a situation where two persons engaged in consensual sexual intercourse only the male was guilty of a criminal offence.

She argued that, as the law stood, a young man like her client would find himself without a defence even if he were positively convinced by the girl herself that she was over the statutory age and had objective reasonable grounds for believing it.

Mr Justice Hardiman said the offence as set out in Section 1.1 afforded absolutely no defence once the act of intercourse was established, "no matter how extreme the circumstances".

Such an absolute offence was rare. The relatively recent child pornography legislation, for example, dealt with the question of age through a system of presumptions but also permitted such presumptions to be rebutted.

The judge rejected the DPP's argument that the court should take little account of the maximum sentence for the offence but should act instead on the belief that those who were "truly blameless" would suffer only a conviction and a light penalty.

Such an approach clashed with the Supreme Court's finding of unconstitutionality in relation to a provision in the Employment Equality Bill 1996, under which it was proposed that an employer would be liable for certain acts by their employees, irrespective of whether those acts were done without the employer's knowledge or approval.

In this case, mere conviction of the offence, apart from any sentence, carries a social stigma, the judge said.

That stigma was compounded by being placed on the Sex Offenders Register, which was a matter of "intense shame" for any person or their family and a punitive consequence of conviction.

The essential similarity between Section 1.1 and the disputed provision of the Employment Equality Bill was that, in circumstances where a man has sex with a girl whom he honestly believes to be over the relevant age, a "mentally innocent person" is expressly criminalised, the judge said.

Criminalising in a serious way a person who is mentally innocent inflicts a grave injury on that person's dignity and sense of worth, the judge added. This constituted a failure by the State in its laws to respect, defend and vindicate the rights to liberty and to good name of such a person, contrary to the State's obligations under Article 40 of the Constitution.

The right of an accused not to be convicted of a true criminal offence in the absence of intent was "wholly abrogated" by the 1935 Act, he said.

The end to which such a severe sanction was the means was, presumably, the protection of young girls from engaging in consensual sexual intercourse, the judge said. This, of course, was a legitimate end to be pursued by "appropriate" means.

"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," he said.