Statutory Rape Crisis

• Author: Shannon Haynes
• Pages: 99-107

Cork Online Law R eview 2007 9

Haynes, Statutory Rape Crisis

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STATUTORY RAPE CRISIS

The Statutory Rape Crisis: A judgment too far or a judgment that could have

gone further?

Shannon Haynes

AINTRODUCTION

Several people are being deprived of their liberty right now on the basis of

this Section 1(1) which, according to the Supreme Court, is not a law. How

can this be?1

Thus wrote a perplexed Vincent Browne in the aftermath of the

statutory rape crisis which befell our ‘impeccably constitutional Republic’ in

the summer of 2006. The writer continued

There is something very serious here, if my contention is correct. It would

mean that the Supreme Court was playing around with the law to fit the

circumstances. And one of the safeguards w e supposedly have of our

liberties is that the Supreme Court will always stand by th e law, at all

times, irrespective of how unpopular or difficult.2

Section 1(1) of the Criminal Law (Amendment) Act, 1935 (“1935 Act”)

created the offence of unlawful carnal knowledge of a girl under the age of 15,

otherwise known as the offence of statutory rape. The offence was silent on

the question of mens rea – the mental element of a crime – and when charged

under s.1(1) the applicant in CC v. Ireland3 (“CC”) sought to put forward a

defence of reasonable mistake as to age. The Supreme Court in its judgment of

12th July, 2005 held by a majority that the offence was intended to be one of

strict liability and therefore precluded the applicant from pleading any such

defence. The applicant thus proceeded to challenge the constitutionality of

allowing such a stigmatic offence to be one of strict liability. On the 23rd of

May, 2006 the Supreme Court held s.1(1) to be unconstitutional. To deny an

accused the opportunity of a defence of reasonable mistake as to the age of the

girl with whom he was charged of having carnal knowledge, the Court said,

constituted a failure by the State in its laws to respect, defend and vindicate

the rights to liberty and to good name of the person.

The CC case provoked widespread consternation4 when it became

known that persons previously convicted under s.1(1) were preparing to

challenge the continuation of their detention hoping to ‘piggyback’ on that

declaration. The first such challenge was brought on 26th May in a habeas

corpus application by a man to become known as Mr A. Laffoy J in the High

Court ordered the release of Mr A four days later.5 Fortunately, the story does

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1 The Sunday Busin ess Post, 16th July, 2006.

2 ibid.

3 [2005] IESC 48 a nd [2006] IESC 33.

4 Hardiman J was l ater to criticise the “rather breathl ess, and intentionally alarmist” co verage

of the case: A v. G overnor of Arbour Hill Prison [2 006] IESC 45, p. 36 of the printed

judgment.

5A v. Governor of A rbour Hill Prison [2006] IEHC 1 69.