Reform of the law on statutory rape is now urgent, writes Carol Coulter, Legal Affairs Correspondent.
It is now 14 years since the X case, when a suicidal 14-year-old girl impregnated by a much older man was prohibited from travelling abroad for an abortion. The Supreme Court overturned this ruling, giving rise to the existing state of our law on abortion, where a woman may seek an abortion abroad if her life is in danger.
The man in the case came to be know as Z. He was later convicted of statutory rape, that is, of sexual intercourse with a girl under 15, and jailed.
As of yesterday he has a basis for challenging his conviction. Section 1 (1) of the 1935 Criminal Law (Amendment), which prohibits sex with girls under 15, has been found to be unconstitutional. Section 2, which prohibits sexual intercourse with girls between 15 and 17, carrying lesser penalties, remains unchallenged for the moment, but this anomaly will have to be addressed.
Until the law is changed it is now not illegal to have sex with a girl under 15. This leaves the law in an unsustainable position, and reform is urgent.
In its judgment the Supreme Court felt that the Act in its present form was too absolute, providing for no exception, even in the most extreme circumstances.
Laws prohibiting statutory rape have been around for some time, and exist in a number of jurisdictions. The term applies to sexual intercourse with a girl whose young age (in different jurisdictions it has ranged from 14 to 18) is such that the issue of real consent is considered not to arise. Therefore by definition sex with her is rape, and subject to various criminal sanctions.
The justification for this has been obvious - to discourage men from preying on young girls. It is assumed that if the consequences of such behaviour are dire, then men will avoid any sexual contact with young girls.
The laws in question also seem to have been designed with adult males in mind. The Irish 1935 Act, which makes it an offence to have sexual intercourse with a girl under 17, makes no reference to the age of the male.
Therefore, if two 16-year-olds had sex, the boy would be committing a criminal offence while the girl, even if she had initiated the sexual contact, would have been treated as a victim. The penalty for sex with a 15-year-old girl can be life imprisonment.
Changing sexual mores mean that sex between teenagers has become common, and this is not reflected in the legislation.
There is also no provision in the Act for a man or boy who honestly believes that the girl was 17.
This means that a young man who honestly believed the girl he was dating was 17 when in fact she was just under 15 was guilty of a criminal offence and liable to up to life imprisonment.
The penalties in the 1935 Act were supplemented by the Sex Offenders Act of 2001, which stipulated that those convicted of a serious sexual offence should have their names entered on the sex offenders' register.
Their movements would be substantially restricted, and they would suffer the stigma of association with those guilty of violent rapes and the sexual abuse of children.
The Supreme Court clearly felt that such penalties were too severe in a case where a young man, himself a teenager, had consensual sex with a girl he honestly believed to be 17.
Sixteen years ago the Law Reform Commission indicated that there were problems with this legislation. However, it also endorsed the need for legislation to protect young people from sexual predators.
It made a series of recommendations on reforming the law in this area. Some have been enacted but other pieces of legislation, specifically the 1935 Act, have remained unamended.
The Government is likely to dust down this report for help in reforming the law.
Writing on the assumption that it would remain illegal to have sex with a girl under the age of 17, the Law Reform Commission recommended a defence of reasonable mistake as to her age.
This would be available only if the accused genuinely believed, and had reasonable grounds for believing, that she had reached the age of consent.
It also recommended that it should always be an offence for a person to have sexual intercourse, or sexual conduct falling short of intercourse, with a girl under the age of 17 where the man involved was a person in authority.