There will be widespread outrage and dismay at the release of a 41-year-old man, the self-confessed rapist of a 12-year-old girl, having first plied her with drink. The case could not be more stark. The girl was a friend of the then 38-year-old man's daughter. He bought her four Bacardi Breezers and two vodkas and the child fell asleep. She awoke in the night to get sick, when he had sex with her.
The sole redeeming feature of the case was that he pleaded guilty to raping her, contrary to Section 1 (1) of the 1935 Criminal Law (Amendment) Act, which made it an offence to have sex with a girl under 15, sparing her the ordeal of having to give evidence. He made no attempt to claim he thought she was older, or to justify his actions in any way. He was sentenced to three years imprisonment, which he was still serving when he challenged his continued detention earlier this week.
Following last week's Supreme Court judgment, Ms Justice Laffoy had no alternative but to release him. She noted the court was asked by the State to declare this section of the Act unconstitutional only insofar as it did not allow for a defence of "reasonable mistake" as to the age of the child. This would have preserved the essence of the law, but allowed accused people in future to argue that they had made a mistake about a girl's age. The Supreme Court chose to reject such a course, however, stating that it would involve the court "in a process akin to legislation." This is the key point. The Supreme Court declared that the whole section, which established the basis for the law concerning under-age sex, had been rendered void by the enactment of the Constitution in 1937 because it deprived citizens of their basic right to a fair trial in due course of law. This meant that the law under which he was convicted did not, in fact, exist either at the time of his action or of the trial.
The way is now clear for others sentenced under the same law to seek their release. The Prison Service put the number involved at six, with another six serving combined sentences for the now non-existent offence of statutory rape and for another related offence. They could all be released. Others who have served their sentences could seek to have their names cleared. The "appalling vista" referred to in the High Court is a reality.
In its judgment the Supreme Court referred to the Law Reform Commission having addressed the issue of problems with the 1935 Act "as long ago as 1990". While not explicitly criticising the legislature, it clearly implied that a law could have been enacted at any time in the past 16 years. Several governments were in power during that period, including Enda Kenny's party. Any one of them could have legislated on this subject. The distress occasioned by this state of affairs, regrettably, is not helped by the apparent lack of communication within the current Government nor easy and opportunist criticisms by the Opposition parties. This is not the time for point-scoring. The public will want urgent action.