Seanad report:The non-inclusion of an honest belief defence in emergency legislation facilitating the prosecution of adults for soliciting sexual acts from children did not render the measure infirm, Minister for Justice Michael McDowell stressed.
The Criminal Law (Sexual Offences) (Amendment) Bill passed all stages and was referred to the President for early signature.
Mr McDowell said the Attorney General had come to the view that it would be wrong to insert in the Bill a particular formula based on such a defence. This was because the CC case which they had had to deal with last year had been based entirely on the particular legislative history of the defilement of females and the Supreme Court had held that it was the clear intention of the Oireachtas to rule out the defence of honest belief.
However, in the very same Act the offence of indecent assault on a young person was completely silent as to honest belief. The court had said that in that case there was no problem at all since it was capable of a constitutional construction and they would apply the ordinary rules of mens rea.
This doctrine of the guilty mind applied to all serious offences with very few exceptions.
Where there was no mention of honest belief in legislation which formed a major plank of our law to protect children, it would be construed by the courts as requiring a guilty mind to be shown by the prosecution, as was normal in all such cases.
"If you make it an offence to commit a sexual offence against a person of a particular age then nobody should be in prison as the law and the Constitution now stand if there is a reasonable doubt as to whether that person actually knew the age of the person they were dealing with."
If the Oireachtas agreed to put before the people a referendum to provide for cases of absolute or strict liability in relation to sexual offences against young persons, and if that was adopted and a category of offences was introduced to provide a zone of absolute protection, reversing the CC decision, it would then be possible for the Oireachtas to enact laws which cast on the accused all the risk of engaging in any sexual behaviour with a young person.