The Supreme Court has unanimously ruled that a man charged with sexual assault of a 13-year-old girl may claim at his trial that he was mistaken as to the age of the girl. The man claims he had consensual sexual activity with the girl.
However, by a majority of four to one the court rejected a claim by a second man charged with unlawful carnal knowledge of the same girl, that a similar defence was open to him and that he was entitled to plead that he "reasonably believed" the girl was over 15.
The court left aside for another day a challenge to the constitutionality of a section of the Criminal Law (Amendment) Act, 1935, related to persons who are alleged to have engaged in sexual activity with under-age girls.
Both men claimed to have had consensual sexual activity with the girl and also claim they were unaware at the time that she was under 15.
Their cases were before the Supreme Court via appeals against the High Court's refusal to stop their trials on grounds that they honestly believed the girl was older.
A third man has also been charged with sexual offences concerning the same girl. All three had failed in their High Court attempt to stop their trials on grounds that they honestly believed the girl was older. Two appealed the High Court findings, and the third appealed a costs order made against him by the High Court judge.
In the case of the man A who won his appeal yesterday, he had been charged on two counts of sexual assault of a girl aged 13 contrary to Section 2 of the Criminal Law (Rape) Amendment Act, 1990, as amended by section 37 of the Sex Offenders Act, 2001.
In the case of the man B who lost his appeal, he was charged with four offences under different legislation, Section 1 (1) of the Criminal Law Amendment Act, 1935. That section reads: "Any person who unlawfully and carnally knows any girl under the age of 15 years shall be guilty of a felony and shall be liable to conviction."
The Supreme Court was unanimous in its finding in relation to case A. Mr Justice Hugh Geoghegan, in one of two written majority judgments, said the concept that mens rea (a person's understanding) was metaphorically thrown out the window in the case of sexual offences with young children, notwithstanding a genuine mistake as to age, derived in the main from an 1875 English case, Reg v Prince, which had held that a genuine belief as to a girl's age was no defence. That case had since been heavily criticised.
Mr Justice Geoghegan said he accepted principles set out by an English and Irish judge that mens rea was applicable to the offence of sexual assault. He allowed A's appeal.
In B's case, which related to offences of unlawful carnal knowledge, he said he would dismiss the appeal unless the court was to hold that Section 1 (1) of the 1935 Act was inconsistent with the Constitution. He believed further argument on this aspect of the appeal should be adjourned for this purpose.
In B's case, having regard to the structure and legislative antecedents of the 1935 Act, a bona-fide error as to age in a prosecution for carnal knowledge of a girl under 15 years could not have been intended by the legislature to be a good defence.
Mr Justice Nial Fennelly in his supporting judgment said that for a very long time it had been assumed by courts and legislature in Ireland and England that the offence of unlawful carnal knowledge of a girl under a specified statutory age was one of "strict liability". It was to the effect that, if the man believed the girl was over age when she was not, he was committing a crime.
The judge said it was clear that the Oireachtas did not intend that a defence of mistake should be available in the case of a charge of unlawful carnal knowledge of a girl under 15.
Mr Justice Adrian Hardiman and Mr Justice Brian McCracken agreed with the decisions of Mr Justice Geoghegan and Mr Justice Fennelly in relation to both men. Ms Justice Denham agreed in the case of man A but said she would have allowed the appeal of man B.