Sex Offenders Act 2001

 

Where offences are not offences for the purpose of the Act where there is a relevant age gap between offender and complainant in relation to the offence of defilement under 17

 

s. 3 (3) Sex Offenders Act 2001

- says that the certain offences won’t be offences for the purposes of the act in certain circumstances.

The offences are:

(3) An offence referred to in— 

(a) paragraph 8 of the Schedule (defilement of girl between 15 and 17 years of 

age), 

(b) paragraph 11 of the Schedule (buggery of persons under 17 years of age), 

(c) paragraph 12 of the Schedule (gross indecency with males under 17 years of 

age), or 

(d) paragraph 18, 19 or 20 of the Schedule in so far as it relates to an offence 

referred to in paragraph (a), (b) or (c),

 

The circumstances are:  

(i) the victim of or, as the case may be, the other party to the offence was aged, 

at the date of the offence's commission, 15 years or more but less than 17 

years, and 

(ii) the person guilty of the offence was aged, at that date, not more than 3 years 

 

When commenced, the Schedule included:

7. An offence under section 1 of the Act of 1935 (defilement of girl under 15 years of age).

8. An offence under section 2 of the Act of 1935 (defilement of girl between 15 and 17 years of age).

 

 

Criminal Law (Sexual Offences) Act 2006

 

The situation was changed by the Criminal Law (Sexual Offences) Act 2006, an Act which replaced the unconstitutional sections of the Criminal Law Amendment Act 1935.

 

-Para 8 of the Schedule was deleted by s. 7 Criminal Law (Sexual Offences) Act 2006

-S. 3 (Defilement of child under 17 years of age) Criminal Law (Sexual Offences) Act 2006 contained its own provision re Sex Offenders Act 2001 under s. 3 (10):

 

(10) A person who—

(a) has been convicted of an offence under this section, and

(b) is not more than 24 months older than the child under the age of 17 years with whom he or she engaged or attempted to engage in a sexual act,

shall not be subject to the provisions of the Sex Offenders Act 2001.

 

Situation after the Criminal Law (Sexual Offences) Act 2017

 

Two sections 3 (9) (Consent of DPP needed to prosecute) and 3 (10) ( Two year age gap  between offender and complainant will not be subject to Sex Offenders Act 2001)  were deleted by s. 17 Criminal Law (Sexual Offences) Act 2017 when it inserted a new section for s. 3 Criminal Law (Sexual Offences) Act 2006; The consent of the DPP under s. 3 (9) was retained in s. 3(7) of the new provision. However, the section in relation to the Sex Offenders Act  2001 was not retained in the provision.

 

While s. 51( c) Criminal Law (Sexual Offences) Act 2017 did amend the Schedule it didn’t add back in anything in relation to para. 8 re defilement. [1]

 

So this mean that that  paragraph 8 didn’t exist in the Schedule anymore because it had been deleted by s. 7 Criminal Law (Sexual Offences) Act 2006 AND  s. 3  of the Criminal Law (Sexual Offences) Act 2006 didn’t contain the ‘two year gap’ provision within itself anymore either, creating a lacuna for defilement. However, the purpose of s. 3 Sex Offenders Act 2001 was still clear in wanting to make sure that defilement, where there was a relevant age gap, would mean that an offender wouldn’t have to be on the sex offenders register.

Tom O’Malley noted this was very unclear:  

 

The offences to which this provision applies are listed as defilement of a girl between 15 and 17 years as referred to in para.8 of the Schedule to the Act, buggery of a person under the age of 17 years, gross indecency with a male under the age of 17 years, as well as certain inchoate forms of these offences and aiding, abetting, etc. Problematically, however, the schedule of offences in the 2001 Act was amended by the Criminal Law (Sexual Offences) Act 2006 (s.7(5)(b)) so as to replace para.7 (defilement of a girl under 15 years of age) with “an offence under the Criminal Law (Sexual Offences) Act 2006”, and para.8 (defilement of a girl aged between 15 and 17 years) was deleted. Therefore, the extent to which a young person convicted of that offence is now exempt from the notification requirement is far from clear.[2]

 

This was the situation up until the Sex Offenders (Amendment) Act 2023;

 

Situation after the Sex Offenders (Amendment) Act 2023

 

In relation to defilement under para (a), the current Schedule as amended by the Sex Offenders (Amendment) Act 2023 now has two new sections – 7A and 8 as sexual offences for the purpose of the Act.

7A. An offence under section 1 of the Act of 1935 (defilement of girl under 15

years of age).

As per Westlaw :

Defilement of girl under fifteen years of age [Declared repugnant to the Constitution by the Supreme Court in CC v Ireland, the Attorney General and the Director of Public Prosecutions, May 23, 2006. New section 1 is contained in the Criminal Law (Sexual Offences) Act 2006.] (2) Repealed by s.8 of the Criminal Law (Sexual Offences) Act 2006 with effect from June 2, 2006.

8. An offence under section 2 of the Act of 1935 (defilement of girl between 15 and

17 years of age).

 

Defilement of girl between fifteen and seventeen years of age

Repealed by s.8 of the Criminal Law (Sexual Offences) Act 2006 with effect from June 2, 2006 and deemed to be unconstitutional by ZS v DPP 2013 3 IR 626

 

So, both of these sections have been found unconstitutional and repealed.

 

The Explanatory Memorandum doesn’t assist in relation to why s.1 and 2 Criminal Amendment Act 1935 were put back.

 

But it may have been due to the case of  A v Governor of Arbour Hill Prison [2006] IESC 45; [2006] 4 IR 88; [2006] 2 ILRM 481 where even though someone is imprisoned under an unconstitutional provision, they are not going to be released having pleaded guilty and not raised the issue before the Court.

 

However, in the Dail Debates this is not averted to.

 

Dáil Éireann debate -

Thursday, 18 Nov 2021

Deputy Michael McNamara

 

……………..

 

‘I am not against the legislation. I am talking about specific circumstances, namely, sexual activity between minors. Am I right in saying it is captured by the legislation? If so, is it intended to be captured in circumstances where there is no lack of consent as a layman might understand consent, as opposed to legal consent which, of course, cannot be given? I am not condoning it or saying it is right. I am led to believe that it is not uncommon for there to be sexual relations between minors. One has to be careful in what one says because sometimes people want to mischaracterise what one says and take it out of context. I am not suggesting that sexual activity between a minor and an adult is acceptable or that it should not be punished or fall within the remit of the legislation. I have a more specific caution.

 

I do not have a question about the general intent of the legislation but I question where the impetus for it came from and, in particular, how it will apply to consensual sexual activity between minors. Is that something that will be regarded as a sexual offence under the remit of the legislation that will follow somebody around for a period thereafter? If that is the case, is that a good thing? I thank the Chair for the time.’

 

 

Select Committee on Justice debate - Tuesday, 26 Apr 2022

 

NEW SECTION

Helen McEntee

Deputy Helen McEntee

I move amendment No. 34:

In page 30, between lines 18 and 19, to insert the following:

“Amendment of Schedule to Principal Act

28. The Schedule to the Principal Act is amended by the insertion of the following paragraphs after paragraph 7:

“7A. An offence under section 1 of the Act of 1935 (defilement of girl under 15 years of age).

8. An offence under section 2 of the Act of 1935 (defilement of girl between 15 and 17 years of age).”.”.

 

This proposed amendment seeks to reinsert two offences into the Schedule that were previously removed in error. I thank Deputy McNamara for drawing my attention to this during the Second Stage debate. (emphasis added) I propose inserting an offence under section 1 of the Act of 1935 - defilement of a girl under 15 years of age - and an offence under section 2 of the Act of 1935 - defilement of a girl between 15 and 17 years of age - into the Schedule of the 2001 Act. This amendment is on foot of legal advice received by the Department arising from the identification of a lacuna in the Sex Offenders Act in which both of these offences had been removed from the Schedule through the Criminal Law (Sexual Offences) Act 2006. Neither offence now appears in the Schedule to the 2001 Act and this amendment will restore both to the Schedule.’

 

Conclusion

 

So the current situation remains unclear because s. 3 (3) Sex Offenders Act 2001 still refers to an unconstitutional section and while that might still apply to people who were imprisoned under it and will be released under that section (although how many of those now exist after 18 years is questionable), the situation is still that  a)  no one could have been imprisoned under that section since it was found unconstitutional or since it was repealed on 2nd June 2006  b) there was a period between 2nd June 2006 and 13th  November 2023 (before the Sex Offenders Amendment Act 2023 put the sections back in) when that paragraph 8 in the Schedule didn’t even exist so even if the Criminal Law Amendment Act 1935 was constitutional, an offender who was eligible in terms of the age time gap wouldn’t have it to avail of.

Ultimately, Marc it seems to be a bit of an ongoing fuck up.

 

 

 

 

 

[1] S. 51 (c) Criminal Law (Sexual Offences) Act 2017  in the Schedule to the Act of 2001— (i) in paragraph 16 by— (I) the insertion of the following subparagraph after subparagraph (b): “(ba) section 4A (child prostitution and child pornography);”, (II) the insertion of the following subparagraph after subparagraph (c): “(ca)section5A(participation of child in pornographic performance);”, and (ii) the insertion of the following paragraph after paragraph 17: “17A. An offence under the following provisions of the Criminal Law (Sexual Offences) Act 2017: (a) section 3 (obtaining, providing etc. a child for purpose of sexual exploitation); (b) section 4 (invitation etc. to sexual touching); (c) section 5 (sexual activity in presence of child); (d) section 6 (causing child to watch sexual activity); (e) section 7 (meeting child for purpose of sexual exploitation); (f) section 8 (use of information and communication technology to facilitate sexual exploitation of child); (g) section 21 (sexual act with protected person);

[2] Tom O’Malley, Sentencing 2013 para. 27-12