It is likely that most of the men against whom charges have been dropped will face other charges, writes Carol Coulter, Legal Affairs Correspondent
The charge of "unlawful carnal knowledge" had been a very convenient one to deal with sexual offences against girls under 15 until the striking down of Section 1 of the 1935 Act five weeks ago. Section 2 of the Act, which had made it illegal to have sex with a girl under 17, is now also questionable.
If it was alleged that a person had sex with a young girl, and also shown that she was under 17, a charge automatically followed under the 1935 Act.
It was, of course, open to the accused to deny that any sexual act had taken place, and the girl could then have faced cross-examination on her allegations, but if the act was admitted, the accused had no option but to plead guilty. This made a prosecution very straightforward in the case of victims under 17, and no defence of consent or of mistake as to the age of the girl could be made.
That has now changed with the striking down of Section 1 of the 1935 Criminal Law (Amendment) Act. However, despite some of the commentary generated by the Supreme Court's decision, this has not legalised sex with girls under 15. Section 14 of that Act still remains in place.
This states: "It shall not be a defence to a charge of indecent assault upon a person under the age of 15 years to prove that such person consented to the act alleged to constitute such indecent assault." The term "indecent assault", has, following a 1990 amending Act, now been replaced by "sexual assault". This, and other sections of the 1990 Act, defining sexual assault and aggravated sexual assault, provide a basis to prosecute men who have sex with girls under the age of 15. A sexual assault on a girl under the age of 17 carries a possible prison sentence of 14 years.
People charged under these Acts can, following the Supreme Court decision, offer a defence that they were mistaken about the age of the girl. They can, as they always could, deny any sexual act at all took place, and it is important to bear in mind that all such accused are innocent until proven guilty. Either defence would mean that the girls would have to give evidence and face cross-examination.
However, as leading criminal barrister Mary Ellen Ring told The Irish Times, children have always been open to cross-examination if the man denied that any sexual act took place, and claimed that the child was making up the allegation. Recent moves to allow children give evidence via video link have been designed to minimise the trauma for children.
It is not known how many of the cases referred to by Taoiseach Bertie Ahern were historical cases, arising out of complaints made by the residents of institutions. Such cases inflated the number of unlawful carnal knowledge cases coming before the courts in the 1990s, but these have started to tail off.
Nor is it known how many might be prosecuted summarily in the District Court, which happens when the offence is not seen as at the serious end of the scale. Of the 17 cases where the proceedings were commenced by the Garda in 2002, 10 were dealt with summarily. This can arise when the age gap between the victim and perpetrator is relatively small, or when the act complained of was less serious. We cannot predict how many such cases will, when they come to court, end in acquittal, though in general the DPP does not bring cases he is not confident of winning, and some 90 per cent of the cases brought end in either guilty pleas or conviction.
But if a sexual act took place between a man and a girl under 17, it is likely that charges can be brought against the man, and he could face severe penalties.