Madam, - While nobody can disagree with the representatives of various organisations supporting children and victims of sexual violence (May 23rd) that children must be protected from predation, their repeated support for absolute liability in statutory rape cases is very disappointing. The protection of children need not be at the expense of the rights of accused persons.
The decision of the Supreme Court in the CC case was not the result of some unfortunate loophole in the Constitution, but the logical deduction from a document which protects the right to a fair trial. How can a trial for defilement be fair if the accused is barred from relying on information as to age - the kernel of the offence - given to him by the other party?
Under absolute liability, even the commendably cautious individual who asks for ID prior to sexual intercourse would have no defence if it transpired that the ID were false. Mistake as to age is a defence open to retailers who sell cigarettes to people under 18, yet it is proposed to remove this defence from those charged with a heinous sexual crime. Is it easier to tell someone's age before sex than it is prior to the sale of cigarettes? It also needs to be made clear that the legislation enacted following the CC case does not privilege the claim of an honest mistake by the defendant in defiance of common sense. The legislation states that, in having regard to the honesty of the defendant's belief, the court "shall have regard to the presence or absence of reasonable grounds for the defendant's so believing and all other relevant circumstances".
Absolute liability is an unsophisticated legal instrument with unjust effects. The decriminalisation of sex between teenagers and the incorporation of a meaningful catalogue of children's rights in the Constitution should be the priority for those who want children protected.
An assault on the rights of accused persons - innocent until proven guilty - must be robustly opposed.
- Yours, etc,
MARK COEN, Gort, Co Galway.