The Supreme Court has unanimously declared as unconstitutional the "stark" law under which any man is automatically guilty of an offence if he has sex with a girl under 15 years, even where that sex was consensual.
The Court made its decision on several grounds, including the form of "absolute liability" in the law and the failure to allow a defence of genuine mistake about the girl's age.
The decision has major implications and could lead to the termination of outstanding prosecutions on such charges, which carry a maximum sentence of life imprisonment.
Persons already convicted under the relevant law whose names have been placed on the Sex Offenders Register are also expected to speedily apply to have their names removed.
The five-judge Court stressed today that its decision does not prevent the Oireachtas from enacting a different and legitimate criminal law to discourage intercourse with very young girls and pointed out that the Law Reform Commission had proposed another form of law "as long ago as 1990".
The commission had recommended an overall reduction in the age of consent and also recommended a defence of "genuine belief" should be available to any person, except a person in authority over a minor.
The form of law was for the Oireachtas to decide, the Court said. It also noted that, for many years, and at least since 1970, there had been "ample reason" to believe or 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," it said.
The successful challenge to the legislation was brought by Ms Deirdre Murphy SC, with Ms Marie Torrens, for a young man, now aged 23 years, who had admitted having consensual intercourse with a girl whom, he alleged, had told him she was 16 and whom, he also alleged initiated the sexual contact after another encounter between them that had involved no intercourse.
The intercourse was said to have occurred on dates between July 20th, 2001, and August 16th, 2001, when the man was aged 17.
In light of the Supreme Court decision, the man will not now be prosecuted.
The man had challenged the constitutionality of Section 1.1 of the Criminal Law (Amendment) Act 1935 which provides that any person who "unlawfully and carnally knows a girl under the age of 15 years shall be liable on conviction thereof to penal servitude for life or for any term less than three years or to imprisonment for any term not exceeding two years".
Under the Sex Offenders Act 2001, any person convicted of statutory rape would also be registered as a sex offender.
Giving the Supreme Court judgment, Mr Justice Adrian Hardiman said Ms Murphy had argued it was inconsistent with the right to a fair trial to deny her client the defence of mistake, or mistake on reasonable grounds.
The denial of such a defence by Section 1.1 brought about a situation where no mental guilt or "guilty mind" was required and where no defence could be offered at all in circumstances where, as was the situation in this case, the fact of intercourse was admitted.
Mr Justice Hardiman said the offence as set out in Section 1.1 afforded absolutely no defence once the act of intercourse was established, "no matter how extreme the circumstances". Such an absolute offence was rare.
