Though overshadowed by the debate over the Lisbon Treaty, it has been fairly common knowledge for some time now that a children's referendum is in the pipes, though obviously there seems to be little political appetite for such a referendum any time soon. Now I don't know if the contents of such a referendum bill have been in any way finalized (if anyone has more details on that please share) but in a 2007 report commissioned, I believe, for the purposes of guiding the Oireachtas in drafting such a bill Finbar McAuley, professor of criminal law at UCD, has recommended the reintroduction of a strict liability offence of statutory rape.
Briefly put, strict liability means that there is no requisite mental element as part of the offence. For pretty much all serious offences there is some level of
mens rea (guilty mind) that needs to be established, for example, recklessness for rape, gross negligence for manslaughter, intention for murder. So if a defendant has not been proven to at least have been reckless as to whether or not a woman consented to sex he cannot be convicted of rape; if he has not been proven to have at least been grossly negligent he cannot be convicted of manslaughter and if he did not intend to kill (or at least seriously harm) he cannot be convicted of murder, so on. However, a man could be convicted of a strict liability offence despite not intending to commit the act, being reckless as to whether or not the act happens or even negligent in that regard. A man could be completely mentally blameless and still be convicted of the offence.
One such offence was statutory rape pursuant to the Criminal Law (Amendment) Act 1935, whereby a man found to have engaged in sexual intercourse with a girl under 15 would be convicted and severe prison sentences (up to life) and, obviously, social stigma, even if mentally blameless; not even a defence of reasonable mistake was available to him.
This state of affairs, because it could make criminals out of mentally blameless men, was found by the Supreme Court to violate man's personal rights under article 40.3 of the Constitution in the
C case in 2005 and the offence was struck down. It was replaced rather promptly by new legislation outlining a similar offence but with the defence of honest mistake available to a defendant.
McAuley has now criticized this decision and argued that a referendum be held to overturn it, and that the Oireachtas implement legislation to return to a strict liability approach for sex with minors. One of his arguments is that engaging with a girl who
might be underage is "an inherently risky activity which might turn out to be unlawful"; a "course of conduct which [is] inherently dangerous or risky with respect to the occurrence of the prohibited result".
Thoughts on this? Personally I disagree with it. The justification mentioned above about the inherent risk is dangerous, I think, simply because the range of girls who might be underage is so broad and because in today's society the chance of an ordinary man making an honest and reasonable mistake as to a girl who might be underage is all too high. This is because many underage girls frequent places where one would expect to find mostly overage women; pubs, nightclubs etc. Thus, girls and women in nightclubs
might be underage but in a supposedly progressive, liberal society, to classify going out to nightclubs to meet women as "inherently dangerous or risky" seems archaic and repressive, and certainly to expose all who do so to the risk of severe criminal sanctions and social stigma without requiring any further mental culpability on their part seems abhorrent to me.
The report can be found
here.
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