A Supreme Court judge has concluded that a man facing sexual-assault charges involving a 13-year-old girl can rely on a genuine belief that she was at least 15 as part of his defence.
Mr Justice Geoghegan reached that conclusion in linked judicial review appeals brought by anonymised applicants P.G. and C.C. Both sought rulings before their criminal trials on whether an honest mistake about a complainant's age could provide a defence.
P.G. faced two counts of sexual assault. Ordinarily, consent can prevent conduct amounting to assault, but section 14 of the Criminal Law (Amendment) Act 1935 provides that consent is no defence where the complainant is under 15.
The judge held that this did not also remove the separate requirement of mens rea, meaning the necessary guilty state of mind. Sexual assault was a common-law offence, and there was no statutory wording expressly or by necessary implication excluding a genuine mistake about age as a defence.
Mr Justice Geoghegan therefore said P.G.'s appeal should be allowed. He was firmly of the view that the belief did not have to be objectively reasonable so long as it was genuinely held, although he left questions concerning the precise burden of proof for determination at trial if necessary.
C.C.'s position was different. He faced four charges under section 1(1) of the 1935 Act of unlawful carnal knowledge of a girl under 15. Examining the history of that legislation and its predecessor, the judge concluded that the Oireachtas deliberately excluded mistake as to age as a defence to that statutory offence.
He would therefore dismiss C.C.'s appeal on the interpretation issue. However, C.C. had also challenged the constitutionality of that result. Mr Justice Geoghegan considered further argument necessary and said that part of the appeal should be adjourned.
The judgment did not determine the guilt of either applicant. Both underlying criminal cases remained to be tried.