For a brief period, early in the summer of 2006, the country was convulsed by a Supreme Court decision which found the law on statutory rape between and adult and a minor to be unconstitutional. Campaign groups, the public and politicians looked on aghast as convictions were overturned and prosecutions dropped as a result of the CC case.
For Ellen O'Malley-Dunlop, who had only recently started working with the Dublin Rape Crisis Centre, the decision was huge. "I remember the atmosphere at the time," she recalls. "To think that the law on statutory rape was struck down - it was shock I think, really. People were shocked that it was struck down." She says the decision sent a "shiver of panic" through the organisation.
The finding would have immediate consequences for statutory rape prosecutions. On May 26th, three days after the decision was published, the State discontinued two charges of statutory rape against a 36-year- old man accused of having sex with a 16- year-old girl. The withdrawal of the charges effectively meant any person who had sex with a minor could not be convicted of statutory rape. Any person awaiting trial for the same offence was likely to have the charges withdrawn and any person already convicted could challenge the legality of their detention.
The controversy led to a week of political turmoil which engulfed the minister for justice, the attorney general and the government. It prompted thousands of people to gather outside Leinster House, as well as in towns and cities across the country, to call for legislative change and for better protection for victims.
The whole thing stemmed from the June 2002 trial of three young men, all of whom were over 18 and all of whom had been charged with having unlawful carnal knowledge and/or of the sexual assault of a 13-year old girl. Over the course of the previous summer, each of the three youths had had sex with the girl. All three claimed she consented and told them she was older than she actually was.
In November 2002, they sought leave for judicial review proceedings, claiming the Criminal Law (Amendment) Act and subsequent Acts dealing with sexual assault on girls did not allow for a defence of mistake or reasonable belief that the girl was older than she was.
The case eventually ended up in the Supreme Court where Ms Justice Susan Denham found there was a presumption in common law that a criminal intent was required in criminal offences and that it was not necessary for this to be stated explicitly. She acknowledged it had previously been thought this did not apply to offences concerning girls, where strict liability applied and there was no room for any defence of mistake, but she said this was founded on bad law rooted in a 19th-century English case that should no longer apply.
Three of the judges said further arguments should be heard on the constitutional question. These arguments were put to the court in 2006. In that case there was only one applicant, CC. The judgment, published on May 23rd, 2006, held that the relevant section of the 1935 Act was unconstitutional because it did not explicitly allow for a defence of reasonable mistake about the girl’s age.
The decision, and its consequences, filled the airwaves and the front pages. "It just opened a Pandora's box," recalls broadcaster Joe Duffy, whose Liveline programme was inundated with worried callers that week. "Victims started calling us arguing obviously that the assailants should finish their sentences," he says.
Duffy remembers the mother of one victim making a “very very strong” plea for the courts to adjourn release applications to allow the Oireachtas to introduce legislation to address the matter.
On June 2nd in the High Court, Mr Justice Barry White, dealing with an application for the immediate release of a man serving an 11-month sentence for the unlawful carnal knowledge of a 15-year-old girl, said doing so would be "repugnant to the oath I made in the Supreme Court on my appointment".
Ombudsman for Children Emily Logan wrote to then minister for justice Michael McDowell the day after the decision was published, voicing her concerns. "There is, at present, no statutory offence in relation to sexual intercourse with a girl under 15 years of age," she said. "It is a matter of great concern."
When, on May 30th, the High Court released a 41-year-old man, “Mr A”, who had been convicted for having sex with a 12- year-old girl, the government decided to rush emergency legislation through the Dáil.
By this point, child-protection groups were becoming increasingly alarmed. The ISPCC said society faced a “child-protection crisis” while the Rape Crisis Network said the impact that releasing convicted child sex offenders would have on their victims was “too intolerable to even think about”.
In her letter to McDowell, Logan said measures needed to be taken to “urgently address this matter”. She recommended that certain principles guide thinking on the issue, among them that girls and boys under the age of 17 would be treated equally; that there should be an unambiguous role stating that sexual relations between an adult and a child under the age of consent constituted an offence of absolute liability and children should not be subject to any potentially damaging adversarial procedures brought in respect of a defence of mistake.
On the evening of June 1st, the government referred the Criminal Law (Sexual Offences) Bill 2006 to the office of the Ombudsman for Children. The following day President Mary McAleese signed it into law, hours after the Supreme Court returned Mr A to jail. The court had found that because of the man’s guilty plea and the fact that he did not question the age of the girl, he did not have standing to seek release.
“There was a big concern,” recalls O’Malley-Dunlop. “A new law had to be brought in to play and it had to be brought in very quickly. Would it be robust enough? That was the concern because so often with rushed law, there can be loopholes.”
The new Act allowed for a defence of mistake as to the age of the child. Life imprisonment was reinstated as the maximum sentence available for those convicted of sex, or attempted sex, with a child under 15. It imposed a maximum penalty of five years on a person convicted of having sex with a child under 17, rising to 10 years if the assailant is “a person in authority”.
The legislation put an end to the controversy, but campaign groups still say more work needs to be done. O’Malley-Dunlop wants to see a dedicated sexual offences Act which would, among other things, provide a definition of ‘consent’.
“We have been working [with the Minister for Justice] around this,” she says. “The new sexual offences Bill is going to go a lot further than the legislation that we have in place now – and that’s a good thing.”
