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PEOPLE who were facing charges of unlawful carnal knowledge could still be prosecuted for sexual assault, Justice Minister Michael McDowell said yesterday.
But a legal expert said these people would have a defence if they had an honest belief the girl was not under 15.
Mr McDowell said it was still a crime to have sex with a girl under 15 despite the Supreme Court ruling that the offence of unlawful carnal knowledge with a girl under that age was unconstitutional. He said people could alternatively be charged, or convicted, with sexual assault.
“Lets remember this, that every sexual offence of unlawful carnal knowledge of a girl under the age of 15 is in fact also what’s now called a sexual assault and no girl under 15 in our law can consent to a sexual assault on her so the offence of sexual assault is always committed by somebody who has sexual intercourse with a girl of that age.”
Speaking on RTÉ radio, Mr McDowell said the Director of Public Prosecutions and the Attorney General were looking at this issue.
He indicated that those who had been convicted of unlawful carnal knowledge could possibly be recharged with sexual assault.
“People have been prosecuted for effectively an offence which has been found not to have existed and whether people can be re-arrested and recharged is a matter on which I wouldn’t care to hazard a guess at this point, but people who are in the system against whom there is evidence of unlawful carnal knowledge of a girl under the age of 15, there is by definition evidence of sexual assault.”
He agreed it was now allowable for someone to plead they were not aware of the age of the female, but said: “If you’re talking about a 24-year-old man and a 12-year-old girl or whatever, especially if there’s a question of them being related that’s not a runner.”
Barrister Sean Gillane said sex with a girl under 15 was still an offence, but only in cases where the person knew the girl was under 15.
He said a Supreme Court decision a few months ago read a defence into the offence of sexual assault on a girl under 15.
“It found that if someone has a bona fide belief that the girl is older than that, they would have a defence to the sexual assault charge.”
He said it was possible the DPP could indict people, who were facing charges of unlawful carnal knowledge, with sexual assault, but that depended on the case facts.
He said it was “not a runner” to expect the DPP to recharge people who were currently serving sentences for unlawful carnal knowledge with sexual assault.
Barrister Mary Ellen Ring SC said the seven men currently in custody for statutory rape could be released by the High Court.
Mr McDowell said he would look at the necessary legal changes “very, very carefully”, and said there was no need for “an instant response because there was no gaping black hole”.
