As my article in the Law Society Gazette last year explained, the Supreme Court was at that stage seeking submissions on the constitutionality of the statutory rape legislation, writes Edel Kennedy
Last week's unanimous ruling by the Supreme Court that section 1(1) of the Criminal Law (Amendment) Act 1935 is inconsistent with the provisions of the Constitution is one which should be welcomed as a measured and carefully considered appraisal of the importance of the operation of the criminal justice system.
This reasoning is to be found in the text of the judgment as delivered. Essentially, section 1(1) of the 1935 Act was deemed unconstitutional on the basis that it wholly removed the mental element of an offence and expressly criminalised the mentally innocent.
By the absence of a defence as to genuine mistake as to age, the 1935 Act was completely inconsistent with the generally subjective nature of criminal liability in Ireland and was wholly discriminatory.
If for instance, a 14-year-old girl and a 14-year-old boy engaged in sexual intercourse, a possible consequence of such an act was that the boy could face life imprisonment while the girl could never be guilty of such a crime by virtue of the Act. This resulted in the "complete objectification of a whole group of a community - young men - and a disregard for their human and constitutional rights". . . "in the interest of a concept of a social good" (as per Mr Justice Hardiman ). The legislation was seriously flawed and as a consequence, was wholly contrary with the provisions of the Constitution which guarantee the right to a fair and proper trial.
In a civilised justice system, the concept of justice must adhere to fair procedure. By contrast, Section 1(1) of the 1935 Act criminalised and exposed, to a maximum of life imprisonment, a person without mental guilt, contrary to justice guaranteed under Article 40.3.1 of the Constitution. It is possible to frame legislation that is consistent with the Constitution and to afford adequate protection from wholly unacceptable behaviour.
This decision is connected to a unanimous ruling of the Supreme Court on July 12th, 2005 which signified a substantial change in Irish law. The decision of A,B,C -v- Ireland, A-G and DPP on that date, constituted an appeal to the Supreme Court from the High Court by way of judicial review. This case addressed other issues pertinent to last week's case which do not require to be elaborated upon for the purpose of this article; suffice to say that at the conclusion of those arguments, the learned judges of the Supreme Court invited the legal representatives on both sides to advance written submissions on the constitutionality of Section 1(1) of the 1935 Act and the matter was adjourned for this purpose. This also afforded the court the opportunity of considering same, in addition to other oral submissions.
I submitted an article to the Law Society Gazette which dealt with this issue in detail and it was published in the October 2005 issue. This case was also reported in The Irish Times on Wednesday, July 13th, 2005.
It was the appeal in this regard by the A of this case (separate from Mr A in the latest case) which led to the Supreme Court decision last week.
New legislation on sexual activity involving young people will have to address the central issue of the Supreme Court decision, namely a defence based on mistake as to age. The absence of this defence rendered the Act unconstitutional; therefore this should be the focus of reform. The essential ingredient of every serious offence, mens rea or a knowledge of the wrongfulness of the offence, was absent under the 1935 Act. The situation therefore stood that a defendant, even if convinced by a girl that she was above the statutory age, could not plead any such defence. In such a situation, the innocent mind of the defendant, who did not intend to commit harm is irrelevant before the court by virtue of the Act and his right to a fair trial was denied.
New legislation can and should be framed in a manner which is consistent with the Constitution yet entirely protective of the victim. The right to a fair trial will not deprive the victim of a safeguard by the law. Furthermore, the Constitution need not be changed in order for proper protection to be made available.
Edel Kennedy is a trainee solicitor to Ronald J. Lynam at Partners at Law Solicitors.