Attempt to stop trials for sexual offences fails

Three men charged with sexual offences against the same girl when she was aged 13 have lost their High Court attempt to stop their trials on grounds based on their claims that they mistakenly believed the girl was older.

All three had claimed they were unaware the girl was under 15 at the time of the alleged offences and further alleged that they had consensual sexual activity with her. They claimed that, because the law prevented them advancing a defence that they were innocently mistaken as to the girl's age, this breached their rights to a fair trial and therefore the statutes in question were unconstitutional.

Alternatively, they sought declarations that a reasonable and/or honest belief that the girl was aged over 15 years was a defence.

The men claimed intention was an essential element of every criminal offence, unless otherwise stipulated by the Oireachtas.

They argued that the relevant law did not expressly exclude the need for the prosecution to prove absence of genuine belief by a defendant as to the age of an under-age complainant. Such intent, they contended, could not be implied.

The men further argued that the public policy objective of protecting young girls could be achieved by other legislative means rather than the imposition of strict liability "unconnected to moral dereliction".

The first man, A, was charged with four counts of unlawful carnal knowledge of the girl on dates between July 20th, 2001, and August 16th, 2001. The second man, B, was charged with two counts of unlawful carnal knowledge of the girl on August 10th, 2001, and one count of buggery, while the third man, C, was charged with two counts of sexual assault of the girl on August 16th, 2001.

All three claimed they believed the girl was aged over 15 years. They had been sent forward for trial in June 2002, but their trials had been deferred pending the outcome of their judicial review proceedings.

In his reserved judgment on those proceedings, Mr Justice Smyth said the Criminal Law Amendment Act, 1935 (the 1935 Act), replaced the Criminal Law Amendment Act, 1885, and thereby removed the statutory defence of reasonable mistake as to the age of a complainant in the offence of unlawful carnal knowledge of girls under a specified age.

In introducing the 1935 Act, the legislature's intent was to exclude mistake as a defence in that offence. The Criminal Law Rape Amendment Act, 1990 (the 1990 Act), did not introduce a statutory defence of reasonable mistake as to the age of a complainant.

The judge said the legislature's intention in introducing the Criminal Law Sexual Offences Act, 1993 (the 1993 Act), was to exclude mistake and/or knowledge and/or reasonable belief as a defence in the offence of buggery of persons under 17 years.

In A's case, A claimed the girl told him she was 16 years old, while she claimed she told him she was 13. In B's case, B said he could not remember the girl telling him her age and claimed that A had told him she was 17 and that he himself thought she was 17. In C's case, C claimed the girl told him she was 17.

The judge said it seemed to him there was a recklessness regarding the girl's age, and the taking of the risk was, in his view, an intent constituting the necessary intent for these offences.

The objective of the legislation was to protect young girls from themselves as much as from lustful men.