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Tuesday 25 April 2017

Businessman in challenge over underage sex law

Dearbhail McDonald Legal Editor

A BUSINESSMAN accused of having sex with an underage girl is seeking the right to claim in court that he didn't know her age.

The lawsuit is the second major challenge to Ireland's statutory rape laws in the past five years.

The Supreme Court challenge is similar to the infamous CC statutory rape case, which caused a crisis in the Fianna Fail/Progressive Democrats government in 2006.

In that case the Supreme Court found that a 1935 law -- which made it an offence for a man to have sex with a girl under the age of 15 -- was unconstitutional because an accused could not use the defence that he didn't know the age of his alleged victim.

The decision led to a public outcry as it raised the prospect that up to 40 convicted rapists would have to be automatically released from prison.

And it forced the government of the day to introduce the 2006 Criminal Law (Sexual Offences) to plug the gap in Ireland's statutory rape laws.

This allows defendants to argue they do not know alleged victims' real ages.

Now another man, who is facing trial for allegedly having sex with a 16-year-old female employee, has taken a case to the Supreme Court to be allowed to argue at his trial that he was mistaken about her age.

The man, known as Mr S, is claiming his constitutional rights are being violated by another section of the 1935 law, which prohibits him using the defence that he believed the girl was over the age of consent at the time.

Mr S was charged in 2003 -- three years before the statutory rape law was changed -- with unlawful carnal knowledge of the young woman, now 24.

As Mr S was charged before the 1935 law was set aside, he is currently denied the defence that he was honestly mistaken about the girl's age. But owing to the Supreme Court's ruling in the CC case, the man says he, too, should be allowed to plead mistake as to age if he admits at any future trial that he had sexual contact with the girl.

In the CC case, suspects bound by the 1935 law were not able to claim they did not know the victim was under 15.

However, a second section of the 1935 law, relating to girls under the age of 17, also banned suspects from claiming that they did not know the girl was under the age of 17.

It is the constitutionality of this second section that is being challenged by Mr S.

If successful, the convictions of at least five men currently in jail after being prosecuted under the same law, may be thrown into doubt.

At an initial trial, the jury could not agree whether Mr S was innocent or guilty.

The case is now set to be retried, pending the outcome of his constitutional challenge.

Irish Independent

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