By Aisling Byrne
The Supreme Court has held that a 1935 law criminalising intercourse with a girl under 15 was unconstitutional because it allowed conviction without any defence based on an honest or reasonable mistake about her age.
The ruling arose from judicial review proceedings brought by C.C., who was charged with four offences under section 1(1) of the Criminal Law (Amendment) Act 1935. The alleged offences occurred between July 20 and August 16, 2001 and concerned the same girl.
C.C., born in December 1982, admitted in Garda statements that intercourse had taken place but said it was consensual. He said the girl told him she was 16 and that she initiated later contact between them.
In July 2005, the Supreme Court had already ruled that the Oireachtas deliberately excluded mistake as to age as a defence under the section. The court then separately considered whether that absolute liability was compatible with the Constitution.
Mr Justice Hardiman said the provision could criminalise a person who was mentally innocent even where the girl had positively and convincingly represented herself as being over the statutory age and that belief was objectively reasonable.
He emphasised that conviction carried potentially severe consequences. The offence exposed an accused to a maximum sentence of life imprisonment under the wording of the 1935 Act and, following later legislation, conviction also brought sex-offender registration requirements.
The judge held that criminalising a person in such circumstances failed to respect and vindicate fundamental rights including liberty, good name and human dignity under Article 40 of the Constitution. He rejected a purely deterrence-based justification for removing every possible mistake defence.
The State suggested that the court could preserve the law by reading in a reasonable-belief defence. Hardiman J rejected that course because several constitutionally permissible alternatives were possible and choosing among them was a matter for the legislature.
He would allow C.C.'s appeal and declare section 1(1) inconsistent with the Constitution.