1/17/2007

Rape referendum makes for bad law

I see that the Dublin government are set to hold a referendum in March in order to address the fallout from the Supreme Court decision last year which related to the defences available in cases of statutory rape.



The case of Mr A led to great public outcry on the issue as the man had been convicted of having sex with a 12 year old child. The reason for his release was because the High Court believed it was following the ruling in the C.C. v Ireland case.

The Supreme Court held that Section I(1), of the Criminal Law (Amendment) Act of 1935 was inconsistent with Bunreacht Na hÉireann because the applicant had been denied the opportunity of pleading that he had reasonable grounds for believing the girl was over the age of 15.

The court considered that to deny the applicant in that case the opportunity to put forward such a defence was an abuse of his constitutional rights.

Now in this forthcoming referendum the government are suggesting that people should not be allowed to mount a defence of honest belief.

In my view this is a short sighted and naive, I do however accept that a defence of "honest belief" would not offer enough protection to potential rape victims. That is why I would suggest a test of "Honest and Reasonable" belief.

With "Honest and Reasonable" belief you get the subjective and objective elements that are part of most legal defences, the denial of this defence may lead to miscarriages of justice.

I have worked in nightclubs and pubs since I was 14 and I know how hard it is, sober never mind drunk, to assertain the age of certain girls. Now if I am in an over 18's disco I don't think it's unreasonable to believe that all the girls are over 18.

That is not always the case and I personally have seen 13 year olds and 14 year olds in discos. Now the only way that I could tell they were that age was because I knew their people.

This is a balancing act, like most area's of the law where you have competing interests however if this referendum is passed it may just tip the balance and so distort justice.

Why am I surprised though, McDowell is the Minister for Justice!

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