The Supreme Court has ruled that a genuine mistake about a complainant’s age may be raised as a defence to sexual assault, while reaching a different conclusion in a linked case involving the statutory offence of unlawful carnal knowledge of a girl under 15.
The court considered appeals by two anonymised accused men, C.C. and P.G., whose judicial review cases had been heard together.
C.C. faced four charges under section 1(1) of the Criminal Law (Amendment) Act 1935 involving alleged unlawful carnal knowledge of a female under 15. He wanted to argue at trial that he genuinely believed the complainant was older than 15.
Mr Justice Geoghegan held that the legislative history of the 1935 Act showed that the Oireachtas deliberately intended to exclude mistake as to age as a defence to that offence. However, the court did not finally determine C.C.’s challenge. Geoghegan J said further argument was required on whether section 1(1), construed in that way, was inconsistent with the Constitution.
P.G. faced two sexual assault charges involving a 13-year-old girl. Consent itself could not provide a defence because section 14 of the 1935 Act removed consent as a defence where the complainant was under 15.
The court nevertheless distinguished consent from mistake about age. It held that sexual assault remained an offence requiring mens rea — a guilty state of mind — unless legislation expressly or by necessary implication removed that requirement.
Geoghegan J found no such exclusion. A genuine belief that the complainant was at least 15 could therefore be raised at P.G.’s trial. The judgment indicated that questions such as who bears the burden of proving the mistake could be dealt with by the trial court if they arose.
The Supreme Court allowed P.G.’s appeal, with the precise wording of the declaration to be settled after hearing counsel. C.C.’s statutory argument failed, but his constitutional challenge remained unresolved pending further submissions.