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Opinio Hiberno 31-05-06 Sex and Justice - It’s Time to Talk
Read more about: Crime, Democracy, Government, Law, Youth
EDIT: Some of the initial post was cut off but its all up now-Cian
Last week the Supreme Court held that the current crime of unlawful carnal knowledge (also known as statutory rape) was unconstitutional leading to a tidal wave of recriminations, worries and hyperbole (judgment). Doubts had been expressed about the constitutionality of this law for some time, and this decision shouldn’t have come as a surprise to anyone in government. As a result it is true that, as Joan Burton argued on Monday’s Q&A, the law should either have been amended at some stage between the 1990 report of the Law Reform Commission identifying this difficulty and the present, or there should have been draft legislation on hand to be introduced immediately should the court reach this (almost inevitable) decision. That emergency legislation would have allowed protection to be introduced for young people as quickly as possible while also creating an enabling environment for debate around the deep moral and social issues this Supreme Court judgment has forced us to consider. As it stands, the lack of any such emergency legislation means that we will now have a Bill before the Dail in two weeks time that will equalise the age of consent at 16 years (RTE News) and allow Ireland to continue to play the ostrich in relation to the sexualisation of young people. Some people never learn…
But let’s return to brass tacks here. The Supreme Court did not, as some people think, hold that it was unconstitutional to criminalise sex with people under a certain age. Rather it held that it was unconstitutional to do so in the previous manner. In order to be convicted of most crimes we require that someone be shown to have carried out the physical act constituting the offence and to have had a certain state of mind while doing so. The basic reason for this is that one should not be said to be morally blameworthy for an action he did not or should not have appreciated was wrong in some sense. There are limited offences that are crimes of strict liability – ones where the guilty mind need not be shown – but these are by and large minor offences that are subject to strict liability for very practical reasons. Environmental river pollution laws are probably the best example. To have, however, a strict liability crime that opens one to a life sentence is and was completely unacceptable – some element of a guilty mind must be shown.
The second common misconception around this case is that it somehow left children with no protection whatsoever. That is not the case. The law of rape simpliciter still applies. The difference between the two – rape and statutory rape – is that to be convicted of rape it must be shown that (a) the woman did not consent and (b) the man was reckless as to whether or not she consented (i.e. did not genuinely believe she was consenting). The offence of rape continues to govern sex with young people; however the presumption in the law that young women were incapable of consenting appears to have been removed for now. (Mrs Justrice Laffoy yesterday held the decision struck down the whole law; the appeal to the Supreme Court will consider whether it left the offence in existence but struck down the strict liability element of it. From a logical perspective it’s most likely that Laffoy J was right, though moral panic may lead to the latter interpretation being adopted by the Supreme Court).
The problem does not lie with that presumption – in fact most people would say the law should retain it in order to protect young adults and children – but with the law’s strict view that every man is deemed blameworthy for having sex with someone we say cannot consent (even if she does, in personal terms, consent) whether they know she falls into that category or not. No defence can be entered.
So where do we go from here? First of all we introduce some law quickly that will reinstate the presumption that young people under a certain age are incapable of giving consent to sexual intercourse. Secondly we figure out what kind of defence should be open to the accused. On this question the defence should focus on the question of age – did the accused know or was he reckless as to whether or not the alleged victim was under the age of consent? Someone who genuinely believes another to be of age and who is given consent for intercourse should not be held liable for an offence, but the law should force people to take care as to the age of those they intend to have sex with. The law therefore says – ’she cannot consent to sex with you but you cannot reasonably be said to have known that so there is no moral blameworthiness on your part’. Instead of criminalising all, then, we should force people to be responsible about their actions.
A formula like this would still leave the paradigmatic case open to criticism – the seventeen year old boy who has sex with his fifteen year old girlfriend would still be guilty of a crime. This is true, but it can be dealt with. For example in cases of closeness of age ( it appearsthe Minister is proposing two years) there could be a requirement that the DPP has special prosecutorial discretion in order to ensure that parents can not force a case where they are unhappy with their daughter’s relationship despite the fact that the parties are close in age and effectively consented. Thirdly, judges should have the discretion – as they almost always do – to take certain issues into mitigation including age, the relationship between the parties, the circumstances in which the intercourse took place etc…
An approach of this nature seems to strike the appropriate balance between respecting individual autonomy, ensuring the rights of the accused, protecting young people and children and allowing judges and the DPP to do their jobs with legislative guidance but without oppressive legislative oversight. It does still leave one tricky question for us to consider: what should that age of consent be?
Firstly a simple statement – it should be the same for girls and boys and for homosexual and heterosexual sex. Secondly a more problematic statement – it should not be lowered to the kinds of young levels we see in some other European countries. Why? Law plays many roles, all of which are complex, but one of these roles is to set out some behavioural markers for us. In areas of personal sexuality those behavioural markers should be set broader the older we get – in other words we should recognise that in most cases emotional growth and physical growth are chronological and the older we get the more able we are to make decisions about our own personal sexuality and morality. However when we are younger there should be a more limited scope available to us in the law.
This is not to say that we should be absolutely prohibited from discovering and exploring and exercising our sexuality – doing so is an important and natural part of growing up. However it does mean that the law should help us with setting our personal limitations in this difficult process. Is this paternalistic? Yes. But these are young people; it’s ok to be paternalistic in some ways. We tell young people not to drink until they’re 18. Why? Because it’s not good for young people to drink (the age could be lowered but nevertheless the idea of having a drinking age is a good one). We tell people not to smoke until they’re 18. Why? Because smoking is bad for us and if we get to 18 without smoking then there’s a chance that we will have resisted some of the peer elements that often lead to people taking up smoking and now be in a more mature position to make a rational decision for ourselves. We tell children not to have sex until they’re a certain age because we want them to wait until they are old enough to make this decision rationally, clearly and with all the available information. That is paternalistic, but it’s not bad.
The problem however is that we’re not going to have time to have a clear and rational conversation about what that age of consent should be. We’re not going to have space to have a proper conversation about helping children to make those decisions rationally and clearly; about equipping them with the necessary information through proper courses of sexual education, the wider and cheaper availability of contraception etc… We are now in panic mode and the reaction to panic is action. So we will introduce some kind of law that protects children; we will probably change the age of consent to 16 for both sexes, but we will lose yet another opportunity to have a dialogue – including the voices of young people who are most affected by this – about how best to use the law and the government through all its vehicles to make Ireland a more sexually responsible country. And that’s where the Department of Justice has got it wrong. Again
(On a related note: NewsTalk FM reports that a date has been set for this Friday (2nd May) for the Supreme Court to hear an appeal from the State against yesterday’s High Court ruling.)
Very good post, and I largely agree with it.
A couple of points I think are important to highlight. In relation to:
“[D]id the accused know or was he reckless as to whether or not the alleged victim was under the age of consent? ”
I’m not entirely sure if I agree - or perhaps it’s that I don’t think it’s necessary to have - a two-stage test: Taking the subjective element (”Did the accused know…”), this reminds me of the horrific (IMO) “honest belief” approach in Ireland to the accused’s intent (mens rea). So, perhaps it’s that experience which makes me recoil from being in any way in favour of any subjective test. Rather, I’d be wholly in support of the objective test (”Was s/he reckess as to whether” or the ‘reasonable person’ approach); particularly where there are children involved.
Still, though, since the second - objective - stage of such a test would serve as an acceptable standard against which to measure the first - subjective - stage, such an approach would be a vast improvement on the current situation in Ireland.
(I don’t know how I’ll act if a broader debate about the laws relating to sexual violence in Ireland doesn’t take place out of the present crisis.)
- objective test
In relationto the behavioural markers points - it is also the case that there is, in practial terms, no sex education in Ireland. That is to say, there is nothing about either the physical or the emotional aspects of sexual behaviour at any level in the Irish educational system; nothing about personal development, self-esteem issues, power issues, gender issues. Sexual politics. Basicially everything that should be discussed is not being discussed.
In that respect, too, I’d agree that a debate is urgently needed around this entire issue.
What ought to be the case, perhaps, is that the proposed bill should be an interim measure, pending an over-arching approach to sexual violence laws and a debate about sexuality generally.
But I’d imagine that the chances of that happening in Ireland is to a fart’s chances in a wind-tunnel.
.
(I’ve rambled a bit over here, too; might get a chance to copy&paste later..)
I think the idea of the Bill they say will be ready on Wednesday being an interim measure is a good one - then there would at least be space to discuss things without the panic and hyperbole (all this ‘paedophile’s charter’ stuff flying around), but I think the beating the government is taking for allowing the gap to arise will probably mean they’ll go for the good PR or swift legal change as opposed to anything else.
I share your discomfort with the subjective recklessness-type defence, but I suppose there are two things. First of all if someone really did believe the girl to have been of age then I don’t think they should be morally blameworthy. Whether or not the defence is accepted ultimately depends on the jury and I think that defendants in cases of child-related sex are unlikely to enjoy the same benefits of doubt as the accused in cases of adult rape appears to have. Secondly I think we’re more or less abandoned the whole idea of objective recklessness in criminal after R v. G given the intense injustice it can produce. I’d kind of hope that the first element of what I’m suggesting would temper the second like you suggested
To move away from the strictly law (everyone is probably snoring by now) I think you’re absolutely right - we do nothing to create an atmosphere of sexual freedom and responsibility in this country. However I share your pessimism about the chance for any real change in this respect…
P.S. - I really should proof-read before clicking “submit”. Those replies of mine are LITTERED with typos. Apologies to all.
Among the things I don’t understand about the Mr A case is why the prosecution was not based on rape as opposed to statutory rape, as eloquently explained by Fiona. By all accounts the victim was drunk, in addition to being 12 years old — why not just present those facts to a court and let a jury decide whether consent could have been given? If the State was using the now unconstitutional law basically as a dodge out of having to build an actual rape case, then there really is something wrong with the system and the Supreme Court’s decision should force some serious thinking about how “normal” rape cases (wretched terminology, I know) are pursued.
Perhaps the prosecution thought a conviction was more likely under the strict liability law, without the issue of mens rea or consent arising. Also, under the ‘ordinary’ rape laws, the victim (or, so-called witness) can be examined and cross-examined on the stand; whereas this did not happen under the strict liability law. It could have been a consideration that the Gardaí and/or prosecuting team did not want that to take place.
It’s speculation really, though.
What clickhere said. Plus harsher sentences generally
I think P O’Neill might be hitting the nail on the head and setting out the explanation for why the Government is now acting like this is all news to them.
Applying a statutory rape charge will have vitiated the need for the prosecution to show that a) the accused acted with criminal intent and b) that the girl’s consent was vitiated due to incapacity from intoxication, perhaps involuntary.
Off the top of my head, I can think of two reasons for taking that approach - 1) sheer laziness/a rather cynical convenience or 2) the choice may not have been open due to the existence on the books of the statutory rape offence.
In either case, there is no excuse for having permitted such an approach to be taken ever since the 1990 report revealed that convictions obtained under the statutory rape charge would very likely not survive a constitutional challenge.
If someone can put the whole thing to the public in a digestible and understandable form, (re the co-incidence of actus reus and mens rea and the vitiation of consent) it could end up being a very bad day for the Government.
Interesting comments. One of the issues that will have to be confronted at some point is the apparent difficulty in getting convictions for rape. I don’t know any numbers for the Republic but in England & Wales there was recent focus on the declining rate of convictions. The indication was that police focus too much on testing the complainant’s credibility as opposed to gathering evidence. In the A case, click here points to the specific problem of having a 12 year old on the witness stand. So longer term, maybe the thinking will have to be about new evidentiary instruments to get more of the genuine cases to trial in a way that doesn’t deter the victim.
Po Neill I think the rate is 10% of cases.
Fiona great post good to have you back.
Interestingly, P O’Neill, on that very point of testing the complainants credibility there was a recent survey (in the past year, or perhaps two years), a survey of Garda attitudes in taking sexual violence reports was carried out - unfortunately, I can’t recall who carried out the survey, though I do know it was reported in one of the national newspapers (may have been the Examiner).
The survey found that attitudes were very much of the “we don’t believe the veracity of the complaint” type (similar, perhaps to the UK experience).
If I can find a link to the survey or news reports, I’ll post it here. But yes, it is worrying, and is relevant in respect of the fact that few sexual assaults or rapes are reported, fewer reach the courts and fewer still result in a conviction. The laws of evidence in Ireland may have a lot to answer for in this respect, in my view, but Garda attitudes and the absence of hospital sexual assault units (six in total in the 26 counties, as far as I’m aware) must be tackled. Aside from the need to ensure fair trial and due process for the defendant, the system fails the complainant from the outset.
Here is the link to the Examiner article:
Gardaí doubt most rape claims, survey finds
by the way this was the 300th post on this site.
I wonder how many other legal time bombs out there. Any other laws up for supmere court rullings
I think that the idea of charging statutory rape instead of rape nm appropriate cases would have been fine - that’s what the offence exists for after all - were it not for the fact that the offence was thought to be unsound. The fact that the Tanaiste the other day said nobody anticipated losing the Supreme Court case and said there was an “information deficit” in relation to this is one of the most damning things anyone has said about this whole affair. Any first year law student who’s done criminal law could tell you there was a doubt about the soundness of this offence and I’m sure Justice and the DPP’s office were aware of the difficulties. That’s what makes the failure to rethink the offence in the last sixteen years so incredible.
As for the low rate of convictions in rape claims, it’s a huge problem. How do you balance the rights of the alleged victim with the rights of the accused? Even an accusation of rape can be devastating to someone’s reputation and livelihood, so yes Gardai have to be careful. But they also have to be more welcoming to people who come to report sexually violent crimes. I don’t know how that balance can be perfectly struck but the proliferation of the Sexual Violence Units is a very good start. Once we get past the Garda level then legal professionals - and particularly the office of the DPP - have to become more committed to carrying through the Bull’s Victim Charter and prepare people properly for what court will be like. They will be vigorously cross examined etc… because that is the accused’s right, but judges should be more willing to step in and allo a break where the witness is clearly in some distress.
The big problem, however, is probably with juries. We can’t do jury research here but studies from the US and UK show that there is an automatic bias against the alleged victim in rape cases (which is completely reversed in cases of child sex abuse) which the accused then has to overcome and which is particularly difficult. This emanates from our social attitudes towards rape, sex and sexuality and is once again an area where our abysmal social policies towards sex ed and sexual responsibility and respect is most devastating.
The Bill can be found at http://www.oireachtas.ie/viewdoc.asp?DocID=5763&&CatID=59
Fiona, I don’t remember where I read it but apparently the optimum jury make up for acquittal in man on female rape cases is 8 females and 4 males out of the 12.
The real problem is we don’t do the tiniest bit to stop rapes occuring by educating teenagers about what they should expect and not expect in various situations. It’s probably a discussion for another time.
Fiona,
It’s very amusing the amount of people who just don’t understand the workings of the government, constitution and the judiciary.
I admit that crimes of strict liability and matters involving mens rea (guilty mind) requirements and defences can in-fact confuse even some solicitors, but comment that the recent furore has provided a great battleground for the Kenny and Rabbite brain trust to hurtle comments around the Dail about the 1990 Law Reform Commission Report. What these clowns (elected representatives) fail to remember is that both of their respective parties held office in various guises subsequently.
Let’s just hope that voters remember that, point scoring on serious issues such as this vacuum is not something that should be tolerated by the voting public.
I like your piece on the matter and think that the more informative work like this can in-fact be constructive in educating the masses, who in turn vote in some of the people whose job it is to legislate.
Possibly important to note that there are plenty more ‘open door’ judgements and challenges sitting around the place. Some the LRC have looked at, and others that are ECHR - European Court of Human Rights jurisprudence (JA Pye & Co. v. Graham [& UK], while not being sex related, is land (Adverse Possession and Statute of Limitations, related an equally emotive Irish pastime.)
*Excuse me for stating the obvious above, but well done*
R.
It’s be nice if somebody published this articles in one of the rags. ALmost every op-ed I’ve read has been absolute tosh.
If you want to feel irritated by shoddy editorial guidance and lack of balance read the Sindo (4th June). Absolutely disgusting conflation of teen discos with the issue of child abuse. They forget that the uproar in question was really over the release of Mr. A. The Sindo relishes every opportunity to bash various groups from it’s pulpit with little or nothing of substance to back it up. Yes, kids drinking is very bad, yes, kids having sex is bad, but no it has little to do with child abuse of the Mr. A. case variety.
While one opinion piece on the sexualisation of children, peer pressure and teenage discos might have been helpful, having six articles focus on this aspect was out of proportion to it’s role in the debate, no effort was made to center it within a broader discussion of what age of consent is appropriate in the case of teen sex and to disambiguate it from rape by adults of children and then to explain how these issues were all bundled into one package in the Statutory Rape Law.
Some silver lining is found in the recognition that the Supreme Court is not infalible by one commentator. I’m glad someone finally noticed! Justice Denham had dissented in an earlier part of the CC case. Clearly, the legal argument can go one way or another but the result is about what balance is struck depending on moral preferences.
In an unrelated matter (sorry) does anyone remember when the Sindo proclaimed that single women were now chosing property over men. According to the article, young single women are now buying property in almost the same proportion to young single men. The Sindo regards this as nothing short of a calamity. I’m curious as to how they decided that young women and not young men were abandoning the other sex for property. Do we honestly marry property or just buy it? Very strange. The misogny of the Sindo knows no bounds.
What the Supremely silly Court has done is to abolish the very principle of a stated age below which the law does not recognise consent as having been capable of being given i.e. an age of consent.
Frank - I’m sorry, but I cannot possibly agree: The Supreme Court was asked to decide upon a question of constitutionality, and so decide it did. The crux of that which it had to consider was the issue of whether or not a defendant has the constitutional right to mount a defence to a particular accusation.
The very judgement sets this out:
“As the case ran, [the defendant's] claims were for:
(a) A declaration that a reasonable belief on the part of a defendant that the alleged injured party was over the statutory age constituted a defence to a charge under s.1(1) of the Act of 1935.
(b) A declaration, in the alternative, that the exclusion of the defence of mistake as to age is repugnant to the Constitution and that if the offence created by s.1(1) of the Act of 1935 is an offence of strict liability, that provision is inconsistent with the Constitution.”
The above comment brings to mind the “hyperbole” mentioned at the beginning of Fiona’s post, and makes me wonder whether or not the Court’s decision has been properly understood.
Click,
The whole point of an age of consent is that the law doesn’t consider as valid the willingness of someone below that age, placing an absolute responsibility on, to keep the argument simple, ‘the older man’. The Supreme Court has abolished the concept and the fact of an age of consent. That is not hyperbole it is actuality.
To say, as the court did, that
‘ since Sweet v. Parsley in 1970, there has been ample reason to believe, or at least to apprehend, that a statute permitting conviction of a serious criminal offence without any requirement of mental or moral guilt was constitutionally vulnerable. A finding to that effect cannot reasonably be regarded as surprising.’
is close to abrogating its own responsibility to decide matters of Irish law by deferring to a majority decision in a Canadian court.
The Supreme Court appears to me to have portrayed our legislature and Constitution as being subservient to international jurisprudence (i.e. ‘experts’), but made the interesting distinction that in the UK it is the construction of the legislation itself that is paramount.
However the Court made very plain its view of the legal system as activist, seeing the Constitution as a vehicle for promoting a rights agenda.
That is an ideological position which I believe the Supreme Court should not be seen to be taking, as it damages its credibility. That is constitutionally worrying.
Frank
No - the Supreme Court did not strike down the notion of an age of consent (in fact they noted that the aim of the legislation was a laudable one), rather they said that a defendant must be able to DEFEND himself against a charge of having sex with someone beneath that age not on the basis that the person consented (the law would continue to say such consent is not possible) but on the basis that he genuinely believed that the person was of age AND had consented.
Your comment that a reference to Sweet v Parsely “is close to abrogating its own responsibility to decide matters of Irish law by deferring to a majority decision in a Canadian court” echoes the ridiculous commentary you hear in America when the US Supreme Court has the audacity to refer to decisions in other jurisdictions. This is a common law state and we have ALWAYS referred to decisions of other common law countries to give us guidance as to issues other jurisdictions have already dealt with. This was not the first time that Sweet was cited in Irish courts - in fact our jurisprudence on strict liability is heavily influenced by Canadian jurisprudence which has been accepted into Irish law.
People have to stop beating courts up for doing their job.
Fiona,
Thanks for taking the care to sraighten me out on those points. I do stick to my view however that the Supreme Court decision, which I respect and which was the right decision for it to make, has effectively outmoded the entire concept of ‘age of consent’, and pointed the way towards a more real-world era of presumptions and norms. I stick to my view that that means the ‘real’ age of consent, below which a court could not accept a belief that consent had been present, will be about twelve.
Should C.C have been prosecuted in the first place, in your opinion?
Honestly I’m not familiar enough with the facts to be able to give an absolute answer but with 3 years between the parties (think they were 18 and 15?) i’d say ‘probably’.
Fiona,
And would you say that international jurisprudence is of the biew that the criminal law is well suited to the end of limiting penetrative sexual acts willingly engaged in in private between friends aged fifteen and over, whether or not their parents know or approve?
Very interesting reading above. Thanks to all. Journalists are so crap in comparison.
Here’s a question. The purpose of the age of consent laws would seem to me to be to protect persons who, by virtue of their age, are vulnerable to be unduly influenced to engage in activities which they are not emotionally, physically or otherwise in a position to deal with (I refer to not only the activities but the consequences of the activities). Assuming that to be accurate (or explain if it is not), why do we accept the idea that “well, it’s ok if it’s a couple of 15 year olds (or a 17 year old and a 15 year old)”?
Insofar as the question is rather pointed, I would make the following observations:
- A person close in age to the complainant (I intend the word in a neutral sense) is far more likely to be able to know (or to know in fact) that the complainant is under age, than somebody who is musch older.
- The damage would not seem to be any less just because the perpetrator (again, meant neutrally) was of a close age - if I am wrong in this, please explain how.
- A person close in age can also unduly influence the complainant (even if he is less “skilled ” at it, see my last point above)
- one wonders whether we are focussing a little too much on stopping the “dirty old perverts” and losing sight of the underlying purpose…