Sexual Offence: Constitutionality
| Author | Laura McGowan |
| DOI | 10.1350/jcla.2006.70.5.406 |
| Date | 01 October 2006 |
| Published date | 01 October 2006 |
| Subject Matter | Irish Supreme Court |
Irish Supreme Court
Sexual Offence: Constitutionality
CC vIreland, Attorney-General and Director of Public Prosecutions
[2006] IESC 33
The applicant was 24 and charged with four offences contrary to s. 1(1)
of the Criminal Law (Amendment) Act 1935. This section made it an
offence to have sexual intercourse with a girl under the age of 15 years.
There was no defence available to the defendant that he believed or
reasonably believed the complainant to be over 15 years. The applicant
admitted having consensual intercourse with the complainant but
claimed that she told him that she was 16 years old.
The applicant sought relief by way of judicial review: first a declara-
tion that a reasonable belief on the part of a defendant that the alleged
injured party was over the statutory age constituted a defence, and
secondly a declaration, in the alternative, that the exclusion of the
defence of mistake as to age was repugnant to the Constitution.
H
ELD
,
REFUSING THE FIRST DECLARATION
,
THERE WAS NO DEFENCE OF
MISTAKEN BELIEF AVAILABLE
;
BUT GRANTING THE SECOND DECLARATION
THAT S
. 1(1)
OF THE
C
RIMINAL
L
AW
(A
MENDMENT
) A
CT
1935
WAS
INCONSISTENT WITH THE PROVISIONS OF THE
C
ONSTITUTION
,this offence
was absolute in nature in that it affords absolutely no defence once the
actus reus is established, no matter how extreme the circumstances.
Therefore there was no doubt that s. 1(1) of the Criminal Law (Amend-
ment) Act 1935 was capable of criminalising, and of leading to the jailing
of the mentally blameless. By criminalising such a person the State did
inflict a grave injury on that person’s dignity and sense of worth and
treated him as little more than as a means to an end. As such there was
a breach of Article 40.3.1 and Article 40.3.2 of the Constitution in that
the State failed by its laws to defend and vindicate the personal rights of
the applicant and in particular failed in its laws to respect, defend and
vindicate the rights to liberty and good name of the applicant.
It followed therefore that s. 1(1) of the 1935 Act was inconsistent
with the provisions of the Constitution and ceased to have force and
effect.
C
OMMENTARY
The Irish Supreme Court is superior to the Irish Parliament (Oireachtas)
in that it can strike down laws enacted by the Oireachtas if they are
found to be unconstitutional. Ireland has a written Constitution and
challenges can be made to Acts of the Oireachtas on the ground of being
inconsistent with the Constitution. In summary the Irish Supreme
Court, in this regard, operates broadly in the same way as the US
Supreme Court. Section 1(1) of the Criminal Law (Amendment) Act
1935 was a law of the Irish Freestate (Saorstat Eireann) and, subject to
the Constitution, continued to be of full force and effect after the
406
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