PROSECUTING THOSE who have sex with under-age girls is “immensely more difficult” under the new 2006 Criminal Law (Sexual Offences) Act, according to the Director of Public Prosecutions. James Hamilton was speaking at an international conference on crimes of sexual violence in UCC yesterday.
The 2006 Act was passed in the wake of the Supreme Court finding that the 1935 Criminal Law Amendment Act, which outlawed sex with girls under 17 and 15 (with varying penalties according to age) was unconstitutional, as it did not permit a defence as to the age of the girl.
This Act was the natural and practical choice for prosecuting such offences even where a charge of rape or sexual assault was appropriate or sustainable, Mr Hamilton said, as it spared the victim from the need to give evidence on the issue of consent.
Pointing out that he had urged the Oireachtas Committee on Child Protection to reinstate the offence of statutory rape through a constitutional referendum, he said: “I believe it is reasonable to require adults to ensure their sexual partners are at least 17.”
Under the 2006 Act it may be necessary to prove the absence of consent if the accused can show that he or she honestly believed that the child had attained the age of 15 or 17 years, he said. This belief is wholly subjective, meaning it has to be an honestly-held, though not necessarily reasonable, belief.
An analysis of cases taken under the 2006 Act showed that the average age of the complainant was 14.25 years, and that of the accused 27.33 years, he said.
Of the 12 files examined, one related to an age gap of five years, four to a gap between six and nine years, five to an age difference of between 10 and 20 years, and two to a difference of more than 20 years. “Accordingly, it is misguided to suggest that the legislation is being used to criminalise the sexual experimentation of teenage peers,” he said.
One result of the fallout from the Supreme Court case was the cases relating to events in 2004 and 2005 have still not reached the sentencing stage, because new charges had to be substituted. This means that an injured party who was 14 at the time will now be 18 and appear in court as an adult.
He said he would be issuing to the Garda a recommendation that a photograph or video-recording of the complainant should be made as soon as possible after the allegation to assist the jury in a subsequent trial.
The DPP also said that his office was assisting in two research projects, one in NUI Galway and one in Trinity, on attrition rates in sexual offence cases. They would both be tracking cases from when the assault was reported through the criminal justice system to identify stages at which they fell out of the system, including why the complainants decided to report or not report the assault to the Garda.
He said he welcomed the opportunity to participate in the study, particularly as it allowed the office correct an erroneous statistic published in the report, Rape: Still a Forgotten Issue, which stated that only 1-2 per cent of cases resulted in conviction between 1993 and 2000. He had learned that the outcome of proceedings were only tracked in the year in which the complaint was made.
“No attempt was made to track the case further at the end of that period,” he said. Accordingly, given the length of time rape proceedings take to conclude in our jurisdiction, one would not expect more than a tiny proportion of rape cases to be prosecuted within the calendar year in which the complaint was made.
While there were no statistics, he said he considered it likely that the true conviction rate was about 7 per cent, similar to that in neighbouring common law jurisdictions.