16 years of warnings, maybe they’ll act now (update 1)

RTE News

The High Court has ordered the immediate release of the man known as Mr A who was serving a three-year sentence for the unlawful carnal knowledge of a 12-year-old girl.

Ms Justice Mary Laffoy said his detention had been rendered unlawful by last week’s Supreme Court decision striking down the law on statutory rape.

The Law Reform Commission has, for the past 16 years, been warning successive governments (of which only one, which lasted 3 years, was led by a party other than Fianna Fail) on the questionability of Statuatory Rape law in Ireland, so why has it taken the release of a self-confessed rapist to get the parties moving?

Seamus Brennan on last nights Questions and Answers made the excuse of it being a contentious issue for the in-action, frankly there are no excuses.

What I can’t understand is how statuatory rape law and rape law are so connected; surely the man in question admitted to rape and even if the girl in this case was 39 herself it would be no different; why does this law cover all sex with children under the age of consent, and why doesn’t general rape law cover all rape cases, regardless of age?

Update: The Blame Game begins.

“I believe in this case it was agreed between the Attorney General’s office and the Director of Public Prosecution’s office that the DPP’s office would have carriage of the appeal,” he told RTE.

“It is strange perhaps that the Department of Justice, which has channels of communication, wasn’t aware of this but that’s the situation, they weren’t and there is no point in me pretending that they were.”

Mr McDowell also revealed that the DPP, up until the last few weeks, had continued to lay charges under the now defunct Section 1.1 of the Criminal Law Act 1935, apparently unaware of the frailties of such cases.

So the DPP are at fault for not not telling the Justice Department and Attorney General about a possible legal precident being mulled over by the Supreme Court? I may be ignorant, but surely the Minister and AG would take some interest in any Supreme Court actions which attempts to strike down legislation, regardless of its validity.

And he refuted allegations that the Law Reform Commission flagged up the dangers of statutory rape legislation over a decade ago warning that it was unconstitutional.

“People are now arguing that the 1990 Law Reform Commission paper was a warning that it was unconstitutional, that’s not so,” he said.

“I mean why would the Director of Public Prosecutions have continued to use the section for all the years since if he thought it was infirm.

“And the other point is why would no defence lawyer in the 16 years since 1990 have challenged it if they thought that the Law Reform Commission’s proposal in 1990 was based on a proposition that this was unconstitutional.”

I’ve yet to see anyone claim the LRC paper called the legislation un-constitutional, but it did explicitly put forward suggestions for reforms; onces that would have halted this disaster we’re in now.

Anyone interested can find the Report and Consultation papers (both extremely long, as you can imagine) here and here. On page 59-60 of the Consultation paper we find the follow:

In the area of consensual offences, there would doubtless be general agreement that the objective of the existing criminal law, i.e. to protect the young against premature and potentially damaging sexual experience where the consent of at least one of the participants can be regarded as immature and uninformed, should be maintained. The present law is, however, also arguably in need of reform on a number of fronts.

(c) In the area of consensual offences, there would doubtless be general agreement that the objective of the existing criminal law, i.e. to protect the young against premature and potentially damaging sexual experience where the consent of at least one of the participants can be regarded as immature and uninformed, should be maintained. The present law is, however, also arguably in need of reform on a number of fronts.

Pages 65-68 break down the various possible legal changes that could be made, and argue for and against various tactics.
I’m not legally minded, but from what I can see the LRC recommended a number of changes, including the one now urgently needed; it is also said to have described the now defunct law as out-dated (a legal expert may be able to tell us if it was updated in 1993 after acts of homosexuality were legalised as in the 1990 report it makes clear that only heterosexuality is covered in this law).
The fact is, Mr. McDowell, this Supreme Court case should never have happened, you and many before you (John O’Donoghue, Máire Geoghegan-Quinnand Ray Burke) had plenty of warnings and plenty of time to fix this law and you have waited for the Supreme Court to make the decision for you.

3 Comments

  1. I believe the high court argument goes like this. Since the (now valid) defence of ignorance about the girl’s age was not allowed by the court at the time, he was denied a fair trial since he could not make recourse to such a defence.

    Sick, but that’s the way the law works.

    Reply

  2. Administrator 30/05/2006 at 10:52

    That makes sense alright, sad to see the law tested in such extreme circumstances though, especially as it could have been avoided.

    It seems as though a second trial is also a non-starter under EU law, regardless of any new legislation so now he walks free and will not be back behind bars unless he acts and is caught again.

    Reply

  3. especially as it could have been avoided.

    Indeed. I hadn’t realised that the government was aware of the problem until I saw your post. A huge piece of flagrant incompetence with fairly sickening consequences.

    Reply

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