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High Court strikes down specific section of Irish law that criminalises sexual acts with a child

The High Court has deemed unconstitutional a specific section of Irish law that deals with the ‘honest belief’ defence  for those accused of engaging in sexual acts with a child. 

The court was ruling on a legal challenge which was brought by a man, currently serving a prison sentence, against a specific aspect of the 2006 Criminal Law (Sexual Offences) Act. The law in question makes it a criminal offence to engage or attempt to engage in a sexual act with a child under the age of 17. 

The Act was amended in 2017, and includes a defence where the accused can prove they were unaware that the child was underage at the time the sexual offence occurred, but says that the burden of proof “shall be that applicable in civil proceedings”.

“It was against that subsection that lawyers representing the convicted person brought a High Court challenge asking whether it was constitutionally permissible to impose a legal burden on an accused in a criminal trial, as opposed to an evidential burden only”, Court News Ireland explains.

Announcing her judgement, Ms Justice Siobhan Stack said it was her preliminary view was that the subsection mentioned above, namely subsection 5 of section 3 of the 2006 Act, as substituted by section 17 of the 2017 Criminal Law (Sexual Offences) Act, is “invalid” as well as contrary to Article 38.1 of the Irish Constitution, under which persons can only be tried with criminal offences that are in accordance with the law.

The judge added that she believed it is an aspect of the “fundamental fairness” of a criminal trial that the accused party should not be liable to conviction where reasonable doubt remains as to their  guilt. 

The judge added that it was constitutionally impermissible “to impose more than an evidential burden on an accused who wishes to invoke that defence, and the imposition on the accused of a standard of proof to the civil standard, i.e., on the balance of probabilities, is contrary to Article 38.1.”

Subsequently, a provision such as the subsection in question, which deals with the primary issue of moral culpability of the accused, and which imposes an obligation on him to prove on the balance of probabilities that he is not so culpable, is contrary to Article 38.1 of the Constitution, Justice Stack said.

Consequently, the judge said the court should make a declaration that the subsection in question was invalid.

The legal challenge was opposed by the state, and was brought by a man found guilty of an offence under the 2006 Act by a jury at the Circuit Criminal Court. The plaintiff was jailed for one year and 10 months for the offence, and cannot be named for legal reasons. He is serving that sentence along with another sentence and is not due for release until 2025.

His lawyers made the claim that the subsection of the law, and how it was worded, in effect breached his right to presumption of innocence and his right to a fair trial. 

The man, now 23, was 19 years of age when the offence is alleged to have taken place, while the victim was just 16 years old. The court rejected any implication that the age gap between the two individuals made the offence any less serious. 

Ms Justice Siobhan Stack said that she would hear submissions from counsel at a future date to determine what final order the court should make. 

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