It’s mad that this has been struck down, again. The provision was put in after the original law made no allowance for a genuine mistake as to age – resulting in a man (CC) being jailed for statutory rape of a woman he thought was of age, because he met her in an over 18s club.
He was let out and the entire law on statutory rape (unlawful carnal knowledge) had to be replaced as it all fell due to being unconstitutional. The Supreme Court did some fancy footwork in order to ensure that the jails were not emptied completely of statutory rapists – the test case being of a man who brought a haebus corpus application once the law fell, he had raped the drunk friend of his 12 year old daughter but the law that convicted him was now void ab initio.
The issue with the replacement law now seems to be that they tried to put a requirement on the defence of genuine mistake that went beyond having to prove a reasonable doubt and instead required the defence to prove the mistake as to age on the balance of probabilities.
>In her ruling, Ms Justice Siobhan Stack said her preliminary view was that the subsection in question is invalid and contrary to Article 38.1 of the Irish Constitution, which states that persons can only be tried with criminal offences that are in accordance with the law.
>The judge said she was of the view that it is an aspect of the fundamental fairness of a criminal trial that an accused should not be liable to conviction where there is a reasonable doubt as to his guilt.
> The judge said it was constitutionally impermissible “to impose more than an evidential burden on an accused and the imposition on the accused of a standard of proof to the civil standard, i.e., on the balance of probabilities, is contrary to Article 38.1.”
>She noted that in practice, if the section provided that an accused should only discharge an evidential burden, he or she would be acquitted if the jury at their trial had a reasonable doubt as to whether the accused was reasonably mistaken as to the child complainant’s age.
> She said that because the subsection provides that the accused must establish to the civil standard that he or she was mistaken, the jury may convict even if they entertain a reasonable doubt
2 comments
It’s mad that this has been struck down, again. The provision was put in after the original law made no allowance for a genuine mistake as to age – resulting in a man (CC) being jailed for statutory rape of a woman he thought was of age, because he met her in an over 18s club.
He was let out and the entire law on statutory rape (unlawful carnal knowledge) had to be replaced as it all fell due to being unconstitutional. The Supreme Court did some fancy footwork in order to ensure that the jails were not emptied completely of statutory rapists – the test case being of a man who brought a haebus corpus application once the law fell, he had raped the drunk friend of his 12 year old daughter but the law that convicted him was now void ab initio.
The issue with the replacement law now seems to be that they tried to put a requirement on the defence of genuine mistake that went beyond having to prove a reasonable doubt and instead required the defence to prove the mistake as to age on the balance of probabilities.
>In her ruling, Ms Justice Siobhan Stack said her preliminary view was that the subsection in question is invalid and contrary to Article 38.1 of the Irish Constitution, which states that persons can only be tried with criminal offences that are in accordance with the law.
>The judge said she was of the view that it is an aspect of the fundamental fairness of a criminal trial that an accused should not be liable to conviction where there is a reasonable doubt as to his guilt.
> The judge said it was constitutionally impermissible “to impose more than an evidential burden on an accused and the imposition on the accused of a standard of proof to the civil standard, i.e., on the balance of probabilities, is contrary to Article 38.1.”
>She noted that in practice, if the section provided that an accused should only discharge an evidential burden, he or she would be acquitted if the jury at their trial had a reasonable doubt as to whether the accused was reasonably mistaken as to the child complainant’s age.
> She said that because the subsection provides that the accused must establish to the civil standard that he or she was mistaken, the jury may convict even if they entertain a reasonable doubt
https://courtsnewsireland.ie/law-honest-belief-defence-child-sex-cases-struck-unconstitutional/2022/06/01/
So we know what thd Dail is doing tomorrow.