New Irish Sex Legislation

[Alatar]

We have a huge furore going on here at the moment. The Supreme court recently overturned our existing laws on statutory rape as unconstitutional.

Government to draw up new sex legislation

30 May 2006 23:56

The Taoiseach has said the Government will aim to draw up legislation by the weekend to plug the loophole created by last week's Supreme Court ruling.

Under the 1935, Criminal Law (Amendment) Act, it was automatically a crime for a man to have sex with a girl under the age of 15.

Last week, the Supreme Court ruled that the law was unconstitutional because it did not allow a defence of making a genuine mistake about the girl's age.

Mr Ahern told the Dáil that, if possible, the legislation will be brought before the Houses of the Oireachtas next week.

He said the Governor of Arbour Hill will appeal today's decision to the Supreme Court.

Any legislation is likely to introduce a uniform age of consent of 16 for both girls and boys.

A government spokesman earlier said the Minister for Justice, Michael McDowell, was not in a position to bring any specific proposals to this morning's cabinet on the fallout from last week's Supreme Court ruling.

The Minister presented cabinet colleagues with an aide memoire setting out the options.

The spokesman said this morning's discussion centred on the degree of protection needed for young people and the age band at which those protections might be appropriate.

He said that Mr McDowell would now be moving to drafting more detailed proposals with the likelihood of meetings over the weekend ahead of the possible recall of the Dail next week.

The spokesman insisted that the Justice Minister had only heard of the imminent judgment last Tuesday and maintained he was not aware of any earlier contact with government from the Attorney General's office on the issue.

It is understood that the Minister for Justice, Michael McDowell, will propose the new age of consent of 16 - up to now it had been 15 for boys and 17 for girls - while it will also become illegal for women to have sex with underage boys.

However, the minister is also expected to propose that a teenager can have sex with someone between the ages of 14 and 16 as long as they are not more than two years older than the younger person.

Okay, so this seems reasonable, right? Unfortunately, because the law was overturned just had someone released who was jailed under the law, even though his case was not one that would have fallen in the grey area.


In the case of Mr. A. he plied a 12 year old with drink and had full intercourse with her, knowing her age. Yet, because the law was ruled unconstitutional, his sentence was overturned and he has been released.

Naturally, there is war over this. The problem seems to be that many actual rape cases were deliberately tried as Statutory rape to save the victims from having to testify. Because the penalties for Statutory rape are much less severe than those for actual rape, many perpetrators were willing to plead guilty to statutory rape, thus saving the victim from testifying. Now, all of those cases could be overturned.

Details can be found on http://www.rte.ie

[Voronwë the Faithful]

Hmmmmm? That seems really strange to me. My understanding (though it is thankfully not my field) is that in all jurisdictions in the U.S. mistake as to age is not a defense to statutory rape. I'm not aware of any serious constitutional challenge to this. Of course, I know nothing about the Irish constitution, and how similar it is to ours, or even under what grounds this was found to be unconstituional (lack of due process?). I wonder whether it will spark attempts to overturn statutory rape laws here in the U.S. or elsewhere?

[axordil]

Is deliberate misrepresentation of age by the minor in question usable as a defense, Voronwë? I ask because of some incidents I remember from college involving acquaintances who seemed to avoid not only jail time but a trial because of such.

[yovargas]

I've thought the age of consent here should be 16 for ages.
And I've also always hated that people can get charged for this when the "victim" lies about their (let's be honest, her) age. I've known of more then one person to do this quite intentionally and it's brutally unfair to punish the guy for such a thing.

[Lidless]

And I've also always hated that people can get charged for this when the "victim" lies about their (let's be honest, her) age. I've known of more then one person to do this quite intentionally and it's brutally unfair to punish the guy for such a thing.

Agreed. Probably difficult to prove in most cases, but I always thought there should be a range of charges for this, just as there is manslaughter, murder, murder second degree...and never mind the mind-boggling variations on the traffic version when someone is killed.

[Voronwë the Faithful]

Okay, I misspoke (I should know better then to speak of something that I only have vague knowledge about).

Although statutory rape was historically a strict-liability crime, California now recognizes a defense where the perpetrator “participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief.” People v. Hernandez, 39 Cal. Rptr. 361, 364 (1964). This acceptance coincided with the raising of the age of consent. Accordingly, the crime of committing lewd or lascivious acts with a child under the age of 14, Cal. Pen. Code § 288(a), remains a strict-liability offense.

Very few states actually have cut and dried ages of consent. Most of some kind of sliding scale based on the difference in age between the "victim" and the "perpetrator".

[nerdanel]

Unfortunately, I have to care about this nonsense beginning next week, so why not start one week early.

Here's a two-minute overview of US law in this area:

Most states impose strict liability for statutory rape; knowledge of the "victim's" age is not an element of the crime. Strict liability, just as it sounds, means that everything but the act itself (such as the defendant's mistake or the victim's consent) is irrelevant to whether a crime was committed.

In People v. Hernandez (1964), as V notes, California became the first state to break with tradition and hold that the defendant could plead a good-faith/reasonable belief defense to statutory rape. The Model Penal Code allows a defense of reasonable mistake as to age, Section 213.6(1), although the majority of states have declined to follow.

The states that have followed California's and the MPC's lead include:

- Alaska, State v. Fremgen (1996) (strict liability violates the Alaska Constitution, which apparently requires a criminal mental element (mens rea) for criminal liability)

- New Mexico, Perez v. State (1990) (knowledge of the minor's age was not an element of the crime, but could properly be raised as a defense)

- Tennessee, State v. Ballinger (2001) (trial court abused discretion in refusing to instruct jury in mistake-of-fact defense when defendant claimed he believed the victim to be 18 )

Additionally, Oregon, Washington, and Indiana courts entertain limited mistake-of-fact defenses. If anyone wants cites, I can give those; if not, I'm not going to take the time.

Note that the courts in the above seven states have allowed mistake of fact defenses. The MPC provision cited above claims that it has been followed in part by seventeen states' legislatures. I do not know offhand, and do not have time to check, which seventeen states those are, and to what extent they have followed the Code.

FYI - the Model Penal Code was developed in the 1960s and revised in the 1980s by a group of professors, judges, and other interested legal professionals called the American Law Institute. Although it is not actually the law of any state, many state legislatures look to it for guidance in developing their criminal law. It is likely that its proposed mistake-of-fact defense was influential to the states which now have a statutory defense.

My personal view: I oppose all gender-specific statutory rape laws. I support mistake of fact defenses, and believe that Ireland is on track here. I think that there should be an gender-neutral, sexual-orientation-neutral age of consent set at either 15 or 16, and I envy those countries whose national legislatures can easily establish a uniform age of consent. Although I am deeply sympathetic to rape victims who do not wish to testify, I believe that when a defendant's liberty, good name, and - let's face it - entire future is at stake, he should have the absolute right to confront his accuser in open court, notwithstanding any discomfort or anguish thereby caused to the accuser (*feels disturbed to be agreeing with Justice Scalia...again*). Even if that means that fewer victims will come forward. Even if that means that - as much as I hate it - the victims will go through the emotional ordeal of testifying, particularly being cross-examined by defendants' counsel. I am troubled that in Ireland, and probably here, statutory rape laws are or were being used to circumvent that.

[Primula Baggins]

Speaking as a parent, I think 15 is too young. Some boys are still little boys at that point, physically and probably emotionally as well; and many girls are still children emotionally though not physically. I think both offer potential for exploitation by unscrupulous adults.

16 is the age of a lot of transitions in American society—kids can drive, hold jobs, etc. I think 16 is reasonable.

Still speaking as a parent: Allowing a "reasonable mistake as to age" opens the door for he-said, she-said disagreements as to the facts in which the child could lose, and may make adults feel less urgency about actually trying to make sure their partners are old enough.

I realize that this leaves open the possibility of adults being victimized, but if we have to choose, I'd rather protect children.

[The Watcher]

Fifteen year old girls can be vicious, deliberate in their intentions, and quite capable of lying about their ages. While I certainly would like to take into account TRUE victims, the gender bias and extreme symapthy that statutory rape cases get in the US is a shame. Since we now choose to stigmatize these defendants found guilty as "sex offenders" the charges carry a double whammy. I have a 20 year old daughter, a seventeen plus year old son, and both of my kids fully knew what they were doing at age fifteen, not that either of them got into serious trouble, but they certainly knew the view that courts take of such things - kids get off with slaps on the wrist but their word is taken as sacrosanct.

Anyone who believes otherwise is foolish, to say the least.

I am firmly against the exploitation of children, but the laws have become unwieldly and overly harsh here in the US on such matters. Two teens or a teen and a twenty something having sex maybe should be frowned upon, but statutory rape as a charge is NOT at all in the same category as true sexual assault or abuse. I as a woman know from other sources just how badly girls and young women can abuse the system here. Sometimes they do it because they need to establish paternity of a child, etc., it is not always deliberate or malicious, but face it. Fifteen should not be a blanket protection for one party to get the other one thrown into jail and charged for life as a criminal felon.

[Alatar]

The new law being suggested simplifies some aspects but complicates others.

The age of consent will be 16 for both boys and girls, unless both parties are teenagers. It will be permissable for two 14 year olds to have consensual sex, or a 14 y/o and 16 y/o. Basically teenagers with no greater than a two year age gap will be able to have sex, as long as the younger is 14 or older, but it would be illegal for a 17 year old to have sex with a 14 year old.

And this is going to make things clearer?

[yovargas]

it would be illegal for a 17 year old to have sex with a 14 year old.

That seems silly. A junior can't have sex with a freshman?

[Primula Baggins]

A senior can't, yov. Juniors are only 2 years older.

As I recall from high school, there were not a lot of wonderful wholesome reasons why senior boys pursued freshman girls.

[yovargas]

There aren't always a lot of wonderful wholesome reasons why high schoolers have sex, period. But criminilizing high schoolers from being with each other strikes me as overboard.

[axordil]

There aren't always a lot of wonderful wholesome reasons why high schoolers have sex, period.

Hey, hormones are the very definition of wholesome! Natural, organic, essential for life...

[The Watcher]

I will admit here that when I was sixteen, seventeen, etc., I ONLY dated much older guys for the most part, never my age in any case. My first serious boyfriend was 21 when I was 16. At 17, I dated a guy who was 23. When I was introduced to my future husband at 18, he was 21 at the time.

The statutory rape laws are punitive and without true merit. They are an overreaction to this misguided notion that a girl can say yes and mean no after the fact. We were ALL teenagers, and while true abuse DOES take place - far too often, the statutory rape laws are simply ridiculous for the most part. They should not even exist. If a 35 year old has sex with a 14 year old minor, other laws already cover such things.

Maybe when we stop making sex such a huge attractive forbidden thing and just deal with it as we all are sexual beings and take away the allure and the forbidden aspects of it, a good portion of the problem would go away on its own.

Talking to teens about sex is not such a hard thing, after all. They do not want the problems or issues either.

[nerdanel]

I'm not set on 15 vs. 16, Prim, so long as the same age for both boys and girls is specified. I agree that 16 brings somewhat more maturity - and responsibility - than 15. I don't feel that I was ready to have sex at either age; I think most people probably are not...but "readiness" is a different inquiry than "ability to consent legally" in my opinion.

Still speaking as a parent: Allowing a "reasonable mistake as to age" opens the door for he-said, she-said disagreements as to the facts in which the child could lose, and may make adults feel less urgency about actually trying to make sure their partners are old enough.

Actually...I didn't read the entirety of all the cases I cited above, but in Hernandez (the California case), the defendant could still lose on a negligence theory. That is, he could not succeed on a good faith defense - that he had reason to believe that the alleged victim was of legal age - if his ignorance of her true age was due to his negligence. So I disagree that adults would be able to feel "less urgency" - if they even know what the legal standard is. Most adults I know, regardless of state, appear to believe that there is a given age of consent, and it is illegal no matter what to have sex with someone under that age.

I realize that this leaves open the possibility of adults being victimized, but if we have to choose, I'd rather protect children.

I disagree quite strongly. Again, we are not - or should not be - talking about true rape cases, in which the victim was violated without his or her consent. (I say, "should not be," because as Alatar mentions, some true rape cases are apparently prosecuted as statutory rapes for other reasons.) The subset of cases we should be dealing with as statutory rape prosecutions are those in which the "victim" consented in fact, but is deemed incapable of consenting as a matter of law.

In such cases, my foremost concern is ensuring that the adults charged with such a stigmatic crime, carrying the possibility of jail time, are afforded the utmost protection of law. If a defendant genuinely believes that his (or her) sexual partner is of legal age, then, where there was consent, I find it repugnant to talk of punishing that individual.

Now, when I say "genuinely believes," I don't mean where the defendant says, "Wink, wink, I picked up this 9th grade girl, but she told me she was 16 and I really believed it. Maybe she just failed a grade or two, or something, wink, wink." But, for instance...in Virginia, the age of consent is 18 regardless of gender. A fair number of kids - but not enough to be very visible - are 16 when they begin college, so they are underage for one or even two years of college. Let's say that a 17 year old college sophomore has a sexual partner, who knows of his or her college enrollment and year, to whom he or she misrepresents his/her age, not wanting to stand out. Would mistake potentially be reasonable in this case? Oh heck yes, IMO.

If you drop the age a couple of years lower, the same thing could happen. What about the same student back when he or she was a 15 year old high school senior, if the student holds him/herself out to be 18?

Should people who sleep with upperclassmen/women in high school, or college freshman and sophomores, have to "card" their partners to make sure they are of legal age? And what of the large numbers of students who have fake IDs (even if people started resorting to these extreme measures)?

I honestly don't care very much about "protecting" teenagers who deceive their partners and consent-in-fact to sex. I find it very disturbing that an adult who honestly has reason to believe that he or she is sleeping with someone of legal age could be prosecuted - could lose job, family, friends, reputation - for having consensual sex.

Lest this sound too naive, I'm not saying that your garden-variety 30-year-old who is courting your garden-variety 15-year-old has motives as pure as the driven snow. Nor would I object to viewing his (or in rare cases, her) mistake defense with a fair amount of skepticism.

[Primula Baggins]

I understand your concern, Nel. It's just that I think that lying and manipulation are more likely to be used by the adult to con the child than the other way around. The adult should be wiser and savvier and better able to protect himself or herself.

But if it's possible to show that the adult was negligent in not finding out the child was underage, that mitigates some of my concerns about the mistake defense.

TheWatcher, if statutory rape laws were abolished, exactly what could legally be done about a 35-year-old man having sex with a 14-year-old? You say there are other laws to cover that—and there are, if he beats or physically rapes her. But what if he just takes advantage of her youth and innocence? (I've known many innocent teenagers of both sexes.) If she consents verbally to an act she isn't yet able to understand the meaning of, and to risks she may know nothing about, does that make any harm she suffers her fault? Does the adult man really need more protection under the law than she does?

Edited for clarity.

[MithLuin]

Nor would I object to viewing his (or in rare cases, her)

I know that seems reasonable...that it is dirty old men taking advantage of naive young girls....but is that really true?

I know there have been 3 cases in the news (in the US) within the last few years of female teachers taking advantage of male students under the age of 15. And I have heard other stories that weren't as newsworthy or sensational.

As a young female teacher myself, I have no idea what these women were thinking. While eighth graders may be tall enough, and even good looking...they look like little kids. I mean....seriously.
And teachers shouldn't date students anyway, let alone sleep with underaged ones. 18 year old seniors may be more understandable, but still taboo (in my opinion).

But anyway, I was just pointing this out to mention that we do need a law for dealing with the exploitation of underaged men by adult women, because it does happen, and not even "rarely" - though possibly much less frequently than the reverse.

My introduction to the concept of statutory rape was reading To Kill a Mockingbird, in which Scout (then 8 yrs old?) attends a rape trial. As she explains (she has no idea what rape is, btw; when she asked her dad, he said "carnal knowledge of a woman without her permission" - to which her response was "well, if that's all it is...") the fact that the woman saying she was raped was over the age of 18 meant she had to "holler and scream a lot" whereas if she had been younger, she wouldn't have had to. I guess I was about 12 when I read that book...maybe younger.

I was also teased about it when I started dating my first boyfriend - he was 18, and I was 3 mo. shy of 16. But our friends were just teasing - I would think they knew we weren't having sex (just kissing publically all over the place ) Most people do not trust 18 year old boys with their daughters, just on principle...the previously-mentioned hormones .

The issue didn't come up (for real) until one of my high school friends told me that this girl he had dated was in a relationship with her mother's boyfriend (or was it her step-dad?) She was 16, and they had had sex. My friend wanted to know what the age of consent was, and whether or not he should go to the police. (Let's say the man was 35 - though I don't remember his age). I told him he should get his mom to tell the girl's mom what was going on. After all, I thought she should know that her man was taking advantage of her daughter. Even if she didn't believe the story, at least she would have been warned. Since I never knew the girl in question (I hadn't even met her; she lived in a different state), I don't know whatever came of this. But I suspect that my friend calling the cops would not have resulted in a trial, because his evidence was just hearsay.

And as for 15 year old girls being manipulative...there is a reason the term "jailbait" exists. As nel pointed out, it would be easy enough for a girl who 'looks' older and hangs out with older friends to pass herself off as a couple of years older than she is. But if the girl is in her normal age group, mentions that she can't drive, and looks 12....the guy will have less of a defense. In other words "I had no idea she wasn't old enough" only works if he can demonstrate he had reasonable reason to suspect she was older. "I met her in a 200-level college class" would be reasonable reason, perhaps.

But I do not think the concept of "age of consent" should be taken off the books - 13 year olds cannot be said to be old enough to consent to sex, especially not old enough to consent to sex with someone who is, say, 18. No matter how willing or persistent they are, the responsibility to do the right thing sits squarely on the shoulders of the adult. And the chances are that the 13 year old would be a lot more naive (and easily manipulated) than the 18 year old. It would be bizarre circumstances indeed in which the adult was the victim. Not all cases of statutory rape should be prosecuted, perhaps, but there should be some form of the law there, no?

And if it's "true love" - they can wait a couple of years for the minor to grow up. My grandfather was 17 years older than my grandmother - but he wasn't dating her when she was 12!

[Lidless]

I reached the age of consent in the UK before Estel was born. It scares me.

[The Watcher]

I understand your concern, Nel. It's just that I think that lying and manipulation are more likely to be used by the adult to con the child than the other way around. The adult should be wiser and savvier and better able to protect himself or herself.

But if it's possible to show that the adult was negligent in not finding out the child was underage, that mitigates some of my concerns about the mistake defense.

TheWatcher, if statutory rape laws were abolished, exactly what could legally be done about a 35-year-old man having sex with a 14-year-old? You say there are other laws to cover that—and there are, if he beats or physically rapes her. But what if he just takes advantage of her youth and innocence? (I've known many innocent teenagers of both sexes.) If she consents verbally to an act she isn't yet able to understand the meaning of, and to risks she may know nothing about, does that make any harm she suffers her fault? Does the adult man really need more protection under the law than she does?

Edited for clarity.

Prim -

Contributing to the delinquency of a minor comes to mind. How about stalking, harassment, and intent of committing sexual assault? Those are also all crimes. I understand wanting to protect teens. I also am not foolish enough or gullible enough to state that teens are unaware of their special status afforded to them by law and legal treatment.

I do not even know why I am arguing this position, to be honest. Yes, I DO know why - I LIVE in one of those zero tolerence counties, and it is a travesty. The LAW has taken over precedence of the situations, and it stinks. We are not putting pedophiles behind bars, we are not taking out abusive boyfriends or husbands or parents, we are accusing people who otherwise would be innocent. It turns my gut.

I am all for rights of women etc., but this is one arena where I think that the law has it all almost archaic in its weird attitude.

For those of you who say that "the other party" should have known about the underage status -bollocks. Two persons intent upon getting down and dirty do just that. My son is dating a girl two years older than he is, so should I charge her with potential crimes? They have been dating for well over nine months now. I can only assume that the worst will happen - yes?????

So, turn around the situation, and a fifteen year old of either sex has a companion of say 19. They do the dirty deed and even if it was consensual, the older one gets charged with a rape charge and then a "known sexual offender" label for the rest of their life?

You think I am joking? That is the way most of the statutes are worded and enforced, when they choose to be enforced. Enforcement is another issue altogether. We put together the issues that we want addressed, and then what comes of it often is the last thing that we want to see happen. Dirty Old Men, pedophiles, sexual predators - we draft laws to convict these people, but instead, we end up arresting kids who had sex with their younger girlfriends. Stupid idiotic laws, bad outcomes, and we NEVER learn. You cannot EVER legislate morality or sexual desire.