Law of Consent

In a recent interview the new Minister for Children, law lecturer Roderic O’Gorman referenced the inconsistency in the law around consent in Ireland: “a lot of confusion was brought in, I’d say maybe in 2004-2005…I think that whole are needs to be examined again”. Indeed, the law of consent has had a contentious history in the state and although it reached fever pitch in 2006, the debate has not subsided.

Prior to 2006, the law on consent in Ireland was governed by the Criminal Law Amendment Act 1935, which itself was an alteration of an earlier British act from 1885. This original act criminalises “carnal knowledge” of a girl under 16 and made sex with a girl under 13 a more serious offence. Only the older age bracket permitted a defence of honest mistake; the accused had to provide the court with reasonable cause that he believed the girl was over 16. Consent also offered no defence if the girl was under 16. When the Saorstát amended the law in 1935 it increased these two age brackets to 15 as the lower limit and 17 as the age of consent. Controversially however it discontinued the honest mistake defence. The act also only covered vaginal intercourse and only punished the male participant in sex. The law was based on a paternalist view of sex and procreation, “designed to protect young girls, not alone against lustful men, but against themselves”.

The Oireachtas felt that as the only available defence a mistake clause would be abused and prove effective on the male juries of the era. Notably, many feminist and women’s organisations agitated against the defence, as did many Catholic groups. Garda Commissioner O’Duffy feared the defence encouraged perjury and would be advised as a post facto tactic by legal teams. The existence of an honest mistake defence was also feared for discrimination against more mature looking girls. Jesuit social worker Richard Devane summed up the paternalist argument; “… the only hardship placed on the young fellow is to make him take care that before he seduces a young girl he should make reasonably sure that she is of legal age. It is far better that a young man should suffer, even in prison, than that a girl should be ruined for life.”

The intention of the Irish legislators was admirable, but the equity of the law is questionable. It does not prove difficult to conceive of situations where this would result in injustice such as cases where the girl instigated sex or indeed lied about her age. In these cases, the boy would be held criminally responsible and the girl exempt. However, the absence of an honest mistake defence (and consent defence) creates a legal problem: it essentially creates a ‘strict liability’ offence. Strict liability is a concept that arose in law in relation to highly dangerous situations and can convict culprits despite them essentially doing nothing wrong. The philosophy behind these laws is that you can only partake in a particular dangerous activity, such as setting explosives off or owning a lion, by taking responsibility for any consequences of such activity, even should they arise through no fault of your own. This type of law raises a problem in criminal law however: Under Common Law a crime must have two constituents: an actus reus, or guilty act and a mens rea, or guilty mind. Put simply, you must commit a guilty act and intend to do it. However, the 1935 statute was with odds with this concept and most Irish criminal law, as no mens rea was required.

The case of CC v Ireland shattered the established law. The case arose after a 13-year-old boy had sex with a 15-year-old girl he believed was older. He contended he would plead honest mistake if it were not prohibited under the 1935 Act and sought a judicial review of his case to declare the existence of the defence and its absence repugnant to constitutional and human rights to fair trial. He also claimed a breach of his personal rights and equality under the law. The Supreme Court eventually ruled that the 1935 Act was repugnant to the Constitution and struck it down. This necessitated the Oireachtas to introduce the emergency CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 ten days later to shore up the hole the Supreme Court had just blown in the law. Minor changes were brought to the hasty legislation in a 2007 Amendment, but the act remained largely unchanged.

The 2006 Act seems to have been influenced by the 1990 Law Reform Commission (LRC) report on statutory rape law in Ireland. The act retained the age brackets of below 15 and 15-17, the former implicating a maximum life sentence and the latter 5 years in prison or 10 for an authority figure. A ‘figure of authority’ is defined as a relative or a teacher, social worker, etc. The act ruled out consent as a defence and broadened “carnal knowledge” to “sexual acts”. However, it did provide for honest mistake, which was to be judged on “reasonable grounds”. This was an attempt to compromise between an objective test and a subjective test. The act also relieved girls of any liability for underage intercourse, justified by Minister for Justice Michael McDowell as a protection for young mothers. The LRC also noted that the possibility of criminal liability for girls would serve as an unwelcome deterrent to coming forward and would be “unduly severe” in cases involving an older man. The act also leaves it to the DPP's discretion to convict those below 17 and under which section of the act to prosecute. For example, she might choose to only prosecute under a lesser charge if the offender was close in age even if the victim was below 15. The act also made the visionary move of exempting those prosecuted within 2 years of the other participant from the sex offenders register.

While generally hailed as an improvement, this hasty legislation has been criticised for perpetuating inconsistencies. Firstly, the unequal treatment of sexes has come under fire. It has been argued that this provision does not make sense if the girl is older or indeed if she seduced the boy. Furthermore, some critics have pointed out that this inconsistency disincentives men from acknowledging paternity and thus will have the cobra effect on its intention of holding men responsible for fathering children. The act also criminalises girls under 17 for sex acts but exonerates them in regard intercourse, thus sending a pernicious message that vaginal sex is more acceptable.

The High Court defended the gender inequality of the act in D(M) v Ireland on the grounds that Article 40.1’s right to equality is qualified: ”the State shall…have due regard to differences of capacity…and of social function.” The capacity of women to become pregnant and their heavier burden in rearing children was deemed sufficient to allow the Oireachtas to legislate accordingly. The Supreme Court supplemented this view on appeal by ruling that the legislature can tackle the social issue of teenage pregnancy however they see fit. The view of the courts however has been criticised as pregnancy is not a long-term capacity difference and child rearing is a shared social function of both parents. Critics argue that the failure of some boys to fulfil social obligation in this regard should not criminalise all boys who have sex at this age. They also argue the blanket approach is unfair given not all sexual encounters result in pregnancy.

The age of consent is also accused of not reflecting reality and that Ireland is out of step with Europe. Many feel the UK’s age of consent at 16 would be more appropriate given that it is the age of medical consent in Ireland already. A presumption of consent has also been mooted when sex involves a 15-year-old and someone no more than 3 years older. It then must be shown on the balance of probabilities that the older participant took advantage of the younger, thus rebutting the presumption.

The defence of honest mistake continues to serve as a flashpoint in the debate. McDowell noted that under the existence of such a defence, “issues of appearance, maturity, dress, behaviour, sobriety, truthfulness and credibility are now opened up for challenge”. An objective test for mistake of age defence has been suggested but this has been criticised as unfair on the accused and could run aground of the same constitutional issues that sank the 1935 Act. Further muddying the waters, Mr O’Gorman has recently rejected accusations that he sought to lower the age of consent: ”I don’t wish to lower the age of consent, the Green Party doesn’t wish to lower the age of consent and this Government doesn’t wish to lower the age of consent”. Since its first conception the law on consent has proven a sensitive and controversial area of the law and whatever changes are brought about in the near future, that does not look set to change.