Bertie Ahern (Dublin Central, Fianna Fail)

Issues arise under section 1 of the 1935 legislation for those who have been convicted before the courts of statutory rape and those in respect of whom prosecutions are pending. In the CC case the Supreme Court struck down as unconstitutional section 1 of the Criminal Law (Amendment) Act. In addition, the Supreme Court ensured that Mr. A, who had been convicted of such an offence, remained behind bars. There are 16 persons in custody having been convicted of an offence under section 1 of the 1935 Act. This cohort of persons are those who are likely to be directly affected by the decision of the Supreme Court in the Mr. A case. There are 42 persons on charges before the courts under section 1 of the 1935 Act. In the CC case, it does not prevent the Director of Public Prosecutions from preferring charges of sexual assault or aggravated sexual assault and, in appropriate circumstances, a rape charge.

Other issues arise from section 2 of the 1935 Act under which three persons have been convicted of an offence and no other offence. A total of 12 persons have been charged but not yet tried under this section. The position is that the offence of rape depending upon the factual circumstances can be preferred and the Director of Public Prosecutions is not prevented by the CC case from making such a charge.

The committee will have to deal with the defence of honest belief. It is a result of the decision of the Supreme Court in the CC case that we have had to create a defence of honest belief. No Member would have ever created a defence of honest belief. At no stage in the past 16 years has anyone recommended the creation of such a defence. No Government ever entertained such a notion.

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