The offence of sexual assault on a person under 15 years seems to be a crude legal device for achieving a laudable purpose, writes Tom Cooney
Yesterday, the Director of Public Prosecutions (DPP) entered nolle prosequi on charges against six men that they had unlawful carnal knowledge of girls under 15 years.
Judge Bryan McMahon accepted that the charges could not go ahead in light of the Supreme Court's decision last May finding unconstitutional the offence of unlawful carnal knowledge.
One of the accused men, Mr C, had successfully made that constitutional challenge.
In the C case, the Supreme Court struck down the offence of unlawful carnal knowledge because it denied the accused the opportunity of invoking the defence of reasonable mistake about the girl's age.
For the offence of unlawful carnal knowledge of a girl under 15 years, the age of the girl was a core element of the definition of the offence.
A mistaken belief that the girl was 15 years or more negated the intent to have unlawful carnal knowledge. We can understand this point if we look, briefly, at how parliament usually defines offence.
Normally, parliament defines an offence by setting down the conditions for finding an accused person culpable. The court must satisfy itself that the accused person (1) voluntarily performed the prohibited act (the actus reus), and (2) had the requisite guilty mind (the mens rea), for example, that he intended to commit the offence. These mental states show that the offender had a fair chance to avoid offending.
The offence of unlawful carnal knowledge of an underage female did not allow for a defence of mistake about the girl's age. It allowed the courts to punish a man who had sex with a girl under 15 years, but who believed that the girl was 15 years or more.
The offence allowed absolutely no defence once the prosecution proved that the prohibited act had occurred. So the offence allowed the courts to punish a mentally blameless person who lacked the mens rea. For the Supreme Court, that feature made the offence unconstitutional.
Judge McMahon had no option but to defer to the Supreme Court's decision. By entering nolle prosequi, the DPP declares that he will not prosecute the charge of unlawful carnal knowledge against the men.
But the judge's acceptance of the DPP's application is not an acquittal. It leaves the DPP free formally to accuse the men of other sexual offences as a preliminary step to prosecution.
And the DPP has charged Mr C and five others with sexual assault. A sexual assault involves offensive sexual contact with another person. It may involve threatened or actual touching with - or of - the sexual parts of the body in indecent circumstances. But an accused may defend himself against the charge on the ground that he made a reasonable mistake about the girl's age. That she was, for instance, more than 15 years.
That sort of mistake would be a mistake about a fact that is material to the conditions of culpability. The accused person would be claiming that he is not mentally blameworthy because he did not intend to have sexual contact with the girl.
It is no defence however to a charge of sexual assault on a person under 15 years to prove that he or she consented to the offensive act. Parliament considers that this limitation is necessary to protect young people against sexual exploitation.
On the face of things, the offence seems to be a crude legal device for achieving this laudable purpose. Normally assault means an unconsented-to touching. But sexual assault includes consented-to touchings. The law simply fixes an age - in this case, 15 years - below which the victim's consent is immaterial. In other words, their consent even if real is void.
Inevitably, the defence here will examine the constitutionality of the offence of sexual assault. Two possible constitutional arguments are: first, that the offence invades the independence of the courts by preventing them from determining all the facts in issue in a trial for sexual assault; and, second, that the offence violates equality before the law because it allows the courts to punish an accused male who had sexual contact with a consenting female who was similarly situated to him in terms of age and development.
Thus, the defence in this case could argue that the offence violates the court's function, which includes determining the truth of the facts at issue in the trial.
Once the prosecution shows that a female was under 15 years at the time of the alleged offence, the court must conclusively presume that that she is incapable of consenting to sexual activity. The defence might say that the presumed fact (incapacity) does not logically follow from the proved fact (under 15 years) on which it hinges. She might have had the functional capacity to consent to sexual activity and she might have done so.
The State would respond that the offence does not operate a presumption at all. What it does is unequivocally prohibit engaging in sexual activity with a girl under 15 years. The absence of consent is simply not an element of the offence of sexual assault.
The substantive law defining the offence categorically says that consent is immaterial. So to further the protective purposes animating the offence, once the prosecution proves that the girl is under 15 years, the defence is precluded from showing that the girl in fact consented because it is irrelevant.
The defence might argue that the offence violates the constitutional principle of equality before the law. It makes the accused male criminally responsible for the alleged assault even when the girl's functional capacity to consent and her actual consent to the sexual activity contradict the offence's presumption that she is too immature to understand the nature and consequences of engaging in sexual activity. The male may in some cases be just as immature as the female or responding to advances that the female made to him, in circumstances where there is no material disparity of power between them. Yet he is liable to punishment while she is protected.
Now the accused must face fresh charges. It bears reminding people that they are entitled to a presumption of innocence. And that the prosecution must prove its case on these charges beyond a reasonable doubt. And if the law is violating their constitutional rights, they are entitled to the shelter of the Constitution.
Tom Cooney teaches law at UCD School of Law