What statutes govern sexual offences in Ireland?
Offences Against the Person Act 1861 (definition of sexual intercourse; defence of honest mistake)
Punishment of Incest Act 1908
Criminal Law (Rape) Act 1981 (S2: rape)
Criminal Law (Rape) (Amendment) Act 1990 (sexual assault; aggravated sexual assault; Section 4 rape)
Criminal Law (Sexual Offences) Act 2006
Criminal Law (Sexual Offences) Act 2017 (deals with consent and sexual acts with children; amends 2006 act)
How and where is rape defined in Irish criminal law?
Rape is defined in S2 of the Criminal Law (Rape) Act 1981.
It is defined in S2(1) as sexual intercourse with a woman without her consent. The accused must have known that she did not consent or been reckless as to whether or not she consented.
Only a man can commit rape (unless a woman does so by operation of the doctrines of innocent agency or common design, or as an accessory), and only a woman can be raped.
Note: there is also an offence called rape under Section 4, which is the most serious form of sexual assault. This offence was created nine years after S2 rape. See further on.
What are the actus reus and the mens rea of rape?
The actus reus is sexual intercourse with a woman without her consent; the mens rea is knowledge that she did not consent or recklessness as to whether or not she consented.
How is sexual intercourse defined for the purposes of S2? Where can this definition be found?
Sexual intercourse is defined as vaginal intercourse only. It is to be construed as a reference to 'carnal knowledge' per s63 of the Offences Against the Person Act 1861. The slightest penetration is sufficient, and proof of ejaculation is not necessary.
Name and quote a case in which it was demonstrated that only the slightest penetration is necessary.
This was shown in AG v Dermody (1956), when the victim gave evidence that the defendant had "put his private part a wee bit into mine".
How is recklessness assessed when it comes to rape?
Recklessness is assessed subjectively: did the accused believe the woman consented?
Where the accused claims that he did, S2(2) provides that the jury will consider whether he had reasonable grounds to do so. (The jury may not believe his claim that he believed the woman consented.)
Name and describe a case in which recklessness was considered in the context of rape.
DPP v Morgan (1976) is a famous UK case in which recklessness was considered in the context of rape. The case concerned three men who had been invited by another man to have sex with his wife. He told them that she would protest and struggle, but that she was 'kinky' and liked that sort of thing. The men claimed that they honestly believed the woman had consented based on what her husband had told them. While the House of Lords held that an honest belief in consent can negative the mens rea, even if such a belief is unreasonable, they were satisfied in this case that the accused could not have honestly believed that the woman consented. Their convictions were upheld.
Name a case that upheld DPP v Morgan (1976).
The decision in Morgan was upheld in DPP v O'R (2016), in which a man was convicted of raping his mother. Charleton J said: "Recklessness means the accused man was aware there was a risk that the woman was not consenting, but nonetheless proceeded." He reiterated that if the accused believed genuinely, albeit unreasonably, that the woman was consenting, then he must be acquitted.
Has the LRC made any recommendations in terms of the Irish approach to recklessness to consent in sexual offence cases?
Yes; in 2019 the LRC recommended that the law be reformed so that the accused's belief in consent was objectively reasonable,* as is the current position in England, Wales and Northern Ireland, following the Sexual Offences Act 2003.
*ie, if an accused had an honest belief that the woman consented, it needs to have been objectively reasonable; if he had an honest belief that was unreasonable, this honest belief would not negative the mens rea.
Can a man be guilty of raping his wife?
Yes; 'marital exemption' was abolished in S5 of the 1990 Act. However, criminal proceedings against a man accused of raping his wife cannot be instituted except by the DPP or with the DPP's consent.
Can a transgender woman be raped? Support with reference to case law.
A transgender woman is considered a woman in this context if she is a post-operative male-to-female transsexual. This was held in R v Matthews (1996).
What are the penalties for rape and where are they provided?
Rape carried a maximum sentence of life in prison. The penalty is provided in S48 of the Offences Against the Person Act 1861.
How and where is consent defined in Irish law, in the context of sexual activity?
In The People (DPP) v C (2001), the Court of Criminal Appeal determined that 'consent' for the purposes of S2 rape meant: "voluntary agreement or acquiescence to sexual intercourse by a person of the age of consent with the required mental capacity".
Sixteen years later, consent was defined and put on a statutory footing by the Criminal Law (Sexual Offences) Act 2017.
S48 of the 2017 Act amends S9 of the Criminal Law (Rape) (Amendment) Act 1990.
It states that a person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.
Further, it states that a person does not consent to a sexual act if they do so under duress, are asleep or unconscious, are incapable of consenting because of the effect of alcohol or some other drug (note: this it not mean that a drunk woman is necessarily incapable of consenting; see further down), have a physical disability that prevents them from communicating whether they're consenting, are mistaken as to the nature and purpose of the act, are mistaken as to the identity of any other person involves or are being unlawfully detained at the time, or if the only other indication of consent comes from somebody other than the person themselves. (However, it does not limit the circumstances in which it may be established that a person did not consent.)
What is the age of consent in Ireland?
The age of consent in Ireland is 17. Note: The penalties for engaging in a sexual act with someone under 15 are harsher than those for engaging with someone aged 16.
If the accused is a person in authority (defined later), the age of consent is 18.
Can consent be withdrawn? Support by way of case law.
Yes, it can be withdrawn at any time before the act begins, or while the act is taking place. This question arose in the case of Kaitamaki v R (1985), where the defendant realised his error after penetration but continued regardless. The Privy Council ruled that the actus reus of rape begins with penetration and continues until withdrawal; the mens rea forms the moment the man realises his mistake. Thus, if he doesn't withdraw immediately, actus reus and mens rea coincide. By extension, if a woman changes her mind during intercourse, the man must stop immediately.
Can a woman consent if she is intoxicated? Support by way of case law.
This depends on the effect the intoxication has on her state of mind: has it made her incapable of exercising judgment? If so, she is incapable of consenting. This was made clear in R v Lang (1975).
Name a case where a woman could not have consented because she was asleep.
This was the case in R v Mayers (1972).
Does submission constitute consent? Support with reference to statute and case law.
No. In R v Olugboja (1982), the defendant was a student at Oxford University. He went to a party, where his friend raped a woman. Olugboja then instructed the woman to take her trousers off, and she did so, out of fear. He proceeded to have sex with her, and she didn't resist. In this case, submission was distinguished from consent; "every consent involves a submission, but it by no means follows that a mere submission involves consent". It is for the jury to look at the particular circumstances and decide if the submission formed part of consent.
S48 of the Criminal Law (Sexual Offences) (Amendment) Act 2017 puts this on a statutory footing, stating: "Any failure or omission on the part of a person to offer resistance to an act does not of itself constitute consent to that act."
Does fraud negative consent? What is meant by this?
Yes, fraud negatives consent. This means that consent would be absent if someone made a woman believe that it was necessary for her to have intercourse, or deceived her as to the nature or purpose of the act, and as a result, she submitted.
Per (DPP) v C (2001), "knowledge or understanding of facts material to the act being consented to" is necessary for the consent to be valid.
Give four examples of cases in which fraud negatived consent to a sexual act.
In R v Flattery (1877), Flattery had sex with a female under the guise of performing surgery on her. The fraud on Flattery's part negatived her consent.
In a similar case, R v Williams (1922), Williams had sex with a female under the pretext that he was going to improve her singing voice by making an air passage. Again, the consent was void by virtue of fraud.
In R v Tabassum (2000), Tabassum persuaded women to allow him to measure breasts by claiming he had medical training and was compiling a database for doctors. Again, fraud negated consent. Tabassum's conviction for indecent assault was upheld.
Papadimitropoulos v R (1957), a man had sex with a woman following a bogus marriage ceremony. It was held that her consent was void because she had been deceived as to the nature of the act.
Give two examples of cases where fraud did not negative consent.
In R v Linekar (1995), sexual intercourse following a false promise to pay a prostitute was not induced by fraud.
In R v Dica (2004), a failure to disclose HIV status was not fraud sufficient to negate consent (however, the accused was convicted of inflicting grievous bodily harm).
S48 of the Criminal Law (Sexual Offences) Act 2017 (amending S9 of the 1990 Act) states that a person does not consent to a sexual act if they are mistaken as to the identity of anyone else involved in the act. Give an example of a case where consent was negated due to mistaken identity.
In the Irish case of R v Dee (1884), a man impersonated another woman's husband and was found guilty of rape.
In cases of mistaken identity, is it necessary to prove an attempt at impersonation? Support with case law.
No, it is not necessary to prove an attempt at impersonation. There is no valid consent if a person has sex with another person believing that person to be someone else.
This was held in The People (DPP) v C (2001). In this case, a woman and her boyfriend went to a birthday party, which C also attended. Between 3 and 4am, the couple retired upstairs to a bedroom, where they had sex. However, the boyfriend decided to rejoin the party. C then went upstairs looking for cigarettes. He saw the bedroom door open, and decided to go in "for a few minutes and get a little bit of rest". There was a conflict of evidence as to whether the woman woke up when he entered the bedroom or woke to find C having sex with her.
What is it called when a defendant claims he honestly believed someone he had sex with was consenting to a sexual act, or was old enough to consent? What should the jury consider when this happens?
This is called the defence of honest mistake (held to be a valid defence in DPP v Morgan (1976), though in that case it was not a successful one). When this defence is raised, the jury should consider, per S2(2) of the Criminal Law (Rape) Act 1981, whether there are reasonable grounds for a such a belief. If there are none, the jury is not likely to believe the accused's claim that he honestly believed the woman was consenting.
Name and describe a case in which the defence of honest mistake as to consent was relevant.
In The People (DPP) v Gaffey (1991), Gaffey was asked by a woman he knew for a lift on his motorcycle. He then had sex with her in a graveyard. Gaffey argued that because of certain things the woman had said, he honestly believed she was consenting, and so S2(2) of the 1981 Act should have been included in the trial judge's summary. A retrial was ordered on this basis.
Name and describe a case in which honest mistake as to the complainant's age was relevant.
In PG v Ireland & Ors (2006), the applicant was charged with sexual assault. The complainant was under the age of consent at the time, but the applicant claimed he believed she had reached the relevant age. It was held that the defence of consent was not open to him, but the defence of mistake was.
The following quote from Dixon J in the Australian case Proudman v Dayman (1941) was cited: "As a general rule, an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence."
What is sexual assault and where is it defined in Irish law?
Sexual assault is defined in S2 of the Criminal Law (Rape) (Amendment) Act 1990, which renames the common-law offence of indecent assault. The elements of the offence are an assault accompanied by circumstances of indecency. The victim can be male or female.
What constitutes 'indecency' for the purposes of a sexual assault conviction? Support with case law.
Indecency is determined by an objective standard, per R v Court (1987). In this case, Court, a shop assistant, was charged with the indecent assault of a 12-year-old customer after slapping her a number of times on the buttocks. He argued that the act was not indecent because he had a buttocks fetish. However, Lord Ackner held that the question was whether or not a right-minded person would think the assault was indecent. In answering this question, the following factors should be taken into account: the relationship between defendant and victim; and where, how and why the defendant had started this course of action.
Describe a case that illustrates the importance of the 'assault' element of sexual assault.
In Fairclough v Whipp (1951), the accused invited a child to touch his penis, which she did. The Court of Appeal held that this could not amount to assault in the absence of any force, pressure or threat, and he was therefore acquitted. This lacuna has been addressed in UK statute but not in Irish statute.
What are the penalties for sexual assault?
It depends on the age of the victim.
If they were under 17, the punishment is prison for up to 14 years.
Otherwise, prison for up to 10 years.
How and where is aggravated sexual assault defined?
Aggravated sexual assault is defined in S3 of the 1990 Act as "a sexual assault that involves serious violence or the threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted."
What is the penalty for aggravated sexual assault?
The maximum penalty is life in prison.
What is the mens rea for aggravated sexual assault?
Though it's not spelled out in the legislation, but we can presume the prosecution would have to prove mens rea in respect to causing or threatening injury, humiliation or degradation of a grave nature. Given that the maximum penalty is life in prison, it would be hard to construe the offence as one of strict liability.
What is rape under Section 4? Where is it defined?
Rape under Section 4 refers to the offence defined by S4 of the Criminal Law (Rape) (Amendment) Act 1990.
It is the most serious form of sexual assault, one that includes either: (i) penetration of the mouth or anus, however slight, by the penis; or (ii) penetration (however slight) of the vagina with a foreign object held or manipulated by another person.
Rape under S4 can be committed by or against a person of any gender.
Would penetration of the anus by a foreign object held or manipulated by another person constitute rape under section 4?
No, but such an act could constitute sexual assault or aggravated sexual assault.
What statutes govern sexual offences against children?
This area of law is extremely complicated, but the Criminal Law (Sexual Offences) Act 2017 goes some way to simplifying it.
How is 'sexual activity' defined in the 2017 Act?
'Sexual activity' means any activity that a reasonable person would consider to be sexual (a) because of its nature alone, or (b) because of its nature combined with the circumstances or the purpose of any person in relation to it.
What is meant by a 'person in authority', according to the 2017 Act?
A 'person in authority' can be: a parent, grandparent, aunt or uncle, whether by whole blood, half blood or affinity of the child; a current or former guardian or foster parent, step-parent, partner of the child's parent who lives or has lived in an enduring family relationship with that parent; any person who is or has acted in loco parentis (in place of a parent) to the child; and any other person who is or has been responsible for the education, supervision, training, care or welfare of the child.
Describe a case in which the meaning of a 'person in authority' was relevant.
This was an issue in the case of The People (DPP) v Tulie (2016). Note that it predates the 2017 Act. Tulie had sexual intercourse with a 16-year-old girl he had met while giving a fire safety course to her transition-year class. The trial court was found to have erred by sentencing him on the basis that he was a 'person in authority' at the time of the offence, when in fact he had only been such when he met her. However, the outcome would have been different prior to the commencement of the 2017 Act, which considers someone a person in authority if they are responsible for a child's education or training, or have been in the past.
What offences concerning sexual acts with children are provided in the 2017 Act, and in what sections? How are the offences defined and what penalties are provided?
S16 concerns sexual acts with a child under 15, and S17 concerns sexual acts with a child under 17. (Remember: 2017-17-17.)
S16 provides that it is an offence to engage or attempt to engage in a sexual act with a child under 15. The penalty for either on conviction on indictment is up to life imprisonment.
S17 provides that it is an offence to engage or attempt to engage in a sexual act with a child under 17. The penalty for either depends on whether the accused is considered a person in authority. If they are not a person in authority, it's up to seven years in prison; if they are, it's up to 15 years.
Note: these sections of the 2017 Act replace S2 of the 2006 Act.
In the 2006 Act, S5 provides that a female under 17 cannot be charged with an offence under the act by reason only that she engaged in sexual intercourse.
Is consent a defence when it comes to sexual acts with children?
No, except in very particular circumstances; see next question.
Where sexual acts with children are concerned, is it a defence if the accused is close in age to the complainant?
It can be; the 2017 Act recognised the reality of underage consensual relationships by introducing a ‘proximity of age’ defence. Under this provision, a person charged with an offence of engaging in a sexual act with a child can use consent as a defence if the person charged is younger or is less than two years older. They must not be in authority over the child or be intimidatory or exploitative.
Aside from age, what else might exclude someone from being able to consent to a sexual act?
A person lacks the capacity to consent if they are what's considered a 'protected person'. This means that because of a mental illness or disability, or an intellectual disability, they are incapable of: (a) understanding the nature or the reasonably foreseeable consequences of the act (eg pregnancy); (b) evaluating relevant information in order to decide whether to engage in the act; or (c) communicating their consent to the act, whether by speech, sign language or otherwise.
Note: this is not about a person's general mental or intellectual capacity, but about their capacity to consent.
It's an offence under S21 to engage in a sexual act with a protected person, either knowing or being reckless as to whether they were a protected person.
Under S22, similar rules apply concerning anyone who is a 'relevant person' to a person contractually responsible for their education or care. A 'relevant person' here is someone who has a mental illness or disability, or an intellectual disability, that severely restricts their ability to guard themselves against serious exploitation. (They need not lack functional capacity to the extent required in S21.)
What can happen if someone invites a child to touch them in a sexual manner?
Such a person could be prosecuted under S4 of the 2017 Act, which deals with invitations to sexual touching, making it an offence to invite, incite, induce or counsel a child to touch your body with part of their body or with an object, for sexual purposes. This offence is punishable by up to 14 years in prison.
What can happen if someone engages in sexual activity in the presence of someone under the age of 17?
Such a person could be prosecuted under S5 of the 2017 Act, but only if they did so intending to (a) obtain sexual gratification from doing so or (b) corrupt or deprave the child.
The child must have been able to observe the activity, and the accused must have known they were aware of it, believed they were aware of it, or intended for them to be aware of it.
It doesn't matter whether the person was acting alone or with someone else.
If a couple had sex in the same room as a child, believing the child to be asleep and therefore unaware of what they were doing, they would not be guilty of an offence.
What other offences are covered by the 2017 Act?
S6 makes it an offence to cause a child (under 17) to watch sexual activity.
Sections 7 and 8 cover grooming offences, eg arranging to meet a child for the purposes of sexual exploitation.
S8 also deals with offences involving the use of information technology, eg using it to communicate with someone to facilitate the sexual exploitation of a child. Sending a child sexually explicit material, for whatever purpose, is also an offence. This is a hybrid offence. For a child to be charged under this section – eg say a 16-year-old sent explicit images to another 16-year-old – the DPP's consent would be required. This provision was likely made with the prevalence of 'sexting' in mind.
S45 deals with indecent exposure, making it an offence to expose one's genitals to someone with the intention of causing fear, distress or alarm. This can happen in public or in private.
This section also makes it an offence to engage in sexual intercourse, buggery or masturbation in public, regardless of whether anyone actually witnesses the act.
Finally, S45 makes it an offence to engage in 'offensive conduct of a sexual nature', meaning any behaviour of a sexual nature likely to cause fear, distress or alarm to someone in the circumstances.
What statute deals with incest, and what does it provide?
Incest is dealt with by the Punishment of Incest Act 1908.
S1 says a male of any age is guilty of incest if he has sexual intercourse with a woman he knows to be his mother, sister, daughter or granddaughter.
S2 says a woman over 17 is guilty of incest if she has sexual intercourse with a man she knows to be her father, brother, son or grandfather.
Consent is not a defence.
The penalties are different for men and women: up to life imprisonment for a man, but up to seven years in prison for a woman.
Note: aunts and uncles, cousins, grandmothers and grandsons are excluded, so a grandmother and grandson can legally have sex but a grandfather and granddaughter can't.