Underage sex law found to be unconstitutional

A 28-YEAR-OLD man has won his Supreme Court challenge to the constitutionality of a 1935 law under which he was facing trial for unlawful carnal knowledge of a 16-year-old girl. The alleged offence occurred when the man was 20.

The law was inconsistent with the Constitution because it did not allow for the defence of honest mistake as to age, the court found.

The three/two majority decision from the Supreme Court has implications for a small number of other people charged with the same offence since repeal, but legal sources say the Director of Public Prosecutions may explore bringing prosecutions on other bases.

In the man’s case, it was alleged the incident occurred in October 2003 when the then 16-year-old girl was working for the man as a shop assistant. She alleged he raped her. He denied the claims.

The man was tried last year after the High Court, having dismissed his claims of unconstitutionality, refused to grant an injunction restraining his trial pending the outcome of his Supreme Court appeal. The jury failed to agree on a verdict and a retrial is listed for next year.

The man is charged with unlawful carnal knowledge of a girl aged under 17, contrary to section 2.1 of the Criminal Law Amendment Act 1935, as amended by section 13 of the Criminal Law Act 1997.

The 1935 Act created the offences of what was then called unlawful carnal knowledge of girls below the age of 15 (section 1) and between the ages of 15 and 17 (section 2). The 1997 Act purported to amend section 2 so as to apply it to cases of carnal knowledge of all girls under the age of 17.

In the CC case in 2006, the Supreme Court ruled section 1 of the 1935 Act was inconsistent with the Constitution because it did not allow for the defence of honest mistake about the age of the female complainant.

In his action, the man argued that section 2 was unconstitutional on the same grounds. However, the DPP and the State argued that the Supreme Court could save section 2 because the Oireachtas had amended it in 1997 and it could be construed to allow for a defence of mistake as to age. Unlike section 1, section 2 was amended by the 1997 Act with the effect of extending its scope to offences involving all girls under the age of 17, not just those aged between 15 and 17.

The core issue in the man’s case was the implications of that amendment. The court had to decide whether the amendment created a situation whereby section 2, enacted in 1935 prior to the 1937 Constitution, could be rendered constitutional.

Giving the Supreme Court majority decision yesterday, Mr Justice Nial Fennelly, with whom Mr Justice Adrian Hardiman and Mrs Justice Fidelma Macken agreed, said the presumption of constitutionality does not apply to laws passed prior to the 1937 Constitution coming into force.

It was among the “curious ironies” of litigation that the State, having argued in the CC case that section 1 of the 1935 Act allowed for no defence of honest mistake, was now compelled as a result of the CC decision to argue the contrary here, the judge said.

For the same reason, the State also contended section 2 must be considered a post-1937 enactment because of its 1997 amendment. In the CC case, the Supreme Court found the 1935 legislature “quite deliberately” excluded the possibility of any defence based on honest mistake as to age and ruled that form of absolute liability was inconsistent with the Constitution, he said.

Sections 1 and 2 created offences of unlawful carnal knowledge of girls and both excluded the defence of honest mistake, he said. Because it excluded the defence of honest mistake, section 2.1 had no effect after the 1937 Constitution and its purported amendment by the 1997 law had no legal effect.

When it purported to amend section 2, the Oireachtas mistakenly assumed it was still in force when it was not, the judge said.

This situation was highly unusual, “even unique”, and was the consequence of the CC judgment of 2006, which declared “a materially identical” provision to be inconsistent with the Constitution.