Statutory Rape Crisis

Author:Shannon Haynes
Cork Online Law R eview 2007 9
Haynes, Statutory Rape Crisis
The Statutory Rape Crisis: A judgment too far or a judgment that could have
gone further?
Shannon Haynes
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
1 The Sunday Busin ess Post, 16th July, 2006.
2 ibid.
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
5 A v. Governor of A rbour Hill Prison [2006] IEHC 1 69.

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