The High Court has ruled that a trial court considering a charge under an amended sexual-offence law must treat the accused’s knowledge of the complainant’s age as relevant. It did not decide whether that knowledge is an element the prosecution must prove or whether the accused may rely on a mistake-of-age defence. That question remains for the trial court.
The plaintiff, identified in the judgment as Z.S., was returned for trial before the Circuit Criminal Court after being charged in August 2004 with unlawful carnal knowledge of a girl under 17, contrary to section 2 of the Criminal Law Amendment Act 1935, as amended in 1997. The provision has since been repealed and replaced. The judgment said the complainant was 16 at the time of the alleged offence and was employed by the plaintiff.
The plaintiff maintained during Garda questioning that he had had no sexual contact with her. In the High Court proceedings, he argued that if intercourse had occurred, he honestly and reasonably believed she was old enough to consent, and that section 2 prevented him from raising that defence at trial. The defendants argued that the challenge was premature and that he could not rely on a hypothetical defence inconsistent with his denial.
Mr Justice Roderick Murphy rejected those objections. He found the challenge was not premature because the constitutional validity of the provision creating the charge could not be left to the trial court in the circumstances. He also found that the plaintiff had standing to make the argument: his denial in interview did not rule out a belief about the complainant’s age, given the understanding that such a belief was immaterial under the law at the time. The court noted there was no evidence that he had seen the complainant’s CV, which he had asked to view.
The defendants accepted that an absolute-liability offence of this kind would be unconstitutional under the Supreme Court’s decision in C.C. v Ireland. The High Court nevertheless declined to invalidate section 2. It held that the 1997 amendment—extending the offence to girls under 15 as well as those aged 15 or 16—meant the amended provision carried a presumption of constitutionality. Applying that presumption, the judge concluded the provision must be interpreted so that knowledge of age is relevant.
The court did not specify what that means in practice. It left the trial court to determine whether knowledge of age is an element of the offence or whether an honest or reasonable mistake about age provides a defence. The High Court’s ruling resolved the constitutional question before it; it did not determine the criminal charge or the plaintiff’s guilt.