Return of the rape laws could cause nearly as much injustice
Saturday June 28 2008
It is frightening stuff, but is it enough to warrant eliminating the defence of reasonable mistake as to age?
TWO years ago the Supreme Court struck down part of Ireland's statutory rape regime because it did not allow a man accused of raping a 14-year-old girl to raise the defence that he had been mistaken as to her age.
For 71 years there had been an unbroken history in Ireland that it was an absolute offence to have sex with an underage girl.
The strict liability offence of unlawful carnal knowledge, part of a range of legislative tools used to prosecute sex crimes, reflected a strong public policy that young girls needed to be protected from sexual predators and their own proclivities.
Unlawful carnal knowledge was the State's preferred method of prosecuting underage sex crimes.
Unlike the charges of rape or indecent assault, prosecution lawyers did not need to prove that there was no consent.
Proof of age and sexual contact was sufficient: the fact that an accused did not know what age his young victim may have been was irrelevant, but was considered by judges when imposing sentence.
That all changed when the Supreme Court struck down part of the statutory rape regime in the C case.
Weeks later another rapist, Mr A, a 41-year-old who admitted having sex with a 12-year-old girl after plying her with alcohol, walked free from jail.
The release of Mr A, the first beneficiary of the C ruling, and the prospect of up to 40 convicted child rapists securing freedom, ignited a public outcry and thousands of people marched on the Dail.
In a blind panic, the Government appealed Mr A's release to the Supreme Court.
The public clamour died down when Mr A was sent back to jail and unsatisfactory, emergency laws to close the gaps were introduced.
But the loophole laws created as many problems as they tried to solve, and parents of defiled minors, appalled at the prospect of their daughters being subjected to hostile cross-examinations in court, withdrew from the criminal justice system.
Public faith in the prosecution of underage sex crimes plummeted, with a 50pc drop in reporting of unlawful carnal knowledge in the immediate aftermath of the C ruling.
Former Taoiseach Bertie Ahern promised a children's rights referendum that would, among other things, restore the offence of statutory rape and address a series of child protection issues.
But the notion of a referendum foundered after the Government failed to secure all-party agreement on a revised age of consent.
Contentious
Two dedicated child rapporteurs were appointed to review child protection policy and an all-party committee was established to map out the planned child referendum.
Post-Lisbon, the appetite for another contentious referendum has been curbed, with all parties except Fine Gael now adopting the mantra that children can be protected from sexual predators without need for a plebiscite.
Yesterday James Hamilton, the Director of Public Prosecutions, upped the political ante by repeating calls for a referendum to restore the offence of statutory rape.
He has pointed to the ordeal of young girls giving evidence; the age difference between defiled girls and their predators and inordinate delays, as reasons to restore the offence of statutory rape.
It is frightening stuff, but is it enough to warrant eliminating the defence of reasonable mistake as to age?
All parents want to protect their children, but their support for a strict liability law wanes when it is their 23-year-old son who is jailed for child rape when he has consensual sex with a 16-year-old girl who tells him she is 18 and looks 21.
Juries know when an age gap is defensible or not: without adequate protections, restoring the offence of statutory rape may create as much injustice as it is intended to prevent.
- Dearbhail mcdonald
