ANALYSIS: Very few cases charged under that Act remain in the system
NO OFFENCE committed since 2006 concerning sex with a girl under the age of 17 will be affected by yesterday’s Supreme Court ruling stating that the 1935 law relating to underage sex was unconstitutional. Very few cases, where people were charged under that Act, remain in the system.
The section of the 1935 Act which has been found unconstitutional by the Supreme Court no longer exists in the form in which it was challenged. Geoffrey Shannon, Government rapporteur on child protection, said that the Criminal Law (Sexual Offences) Act 2006 had met the problem raised by the Supreme Court when it struck down the first section of the 1935 Criminal Law Amendment Act in 2006.
The 1935 Act, which was enacted prior to the 1937 Constitution, allowed no defence of “honest mistake” as to the age of the girl when a man had sex with a girl under the age of 17. Section 1 of the Act outlawed sex with girls under 15, and section 2 outlawed it with girls under 17. The penalty for sex with younger girls was heavier.
Prior to 2006 sexual offences involving girls under 17, even where rape was alleged, were regularly prosecuted as underage sex offences, as these were offences of “strict liability”, that is, there was no defence once the age of the girl was established. This meant the question of consent did not arise and she did not have to give evidence.
In 2006 a man charged with having had sex with a girl under 15 succeeded in a constitutional challenge to the 1935 Act, on the basis that it did not permit a defence of “honest mistake” as to the age of the girl, and therefore did not allow an accused to argue that he did not know she was under age. This led to the striking down of section 1 of the Act.
One element in the striking down of this section was that the Act, passed in 1935, did not enjoy the “presumption of constitutionality” which means that legislation passed after 1937 should be read, if possible, as consistent with the Constitution.
A new law was introduced outlawing sex with girls, but permitting a defence of “honest mistake”. That is the law under which such offences are now prosecuted.
However, a few cases remained in the system involving girl victims between the ages of 15 and 17. The section dealing with them was challenged by the man in this case.
Section 2 of the Act differed from section 1 in that it was amended in 1997. The State argued that this amendment enjoyed the “presumption of constitutionality” and so the whole section was constitutional.
The majority of the Supreme Court did not agree and the man won his case.