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SEXUAL OFFENCES

TRIGGER WARNING
This article outlines information that you should know in relation to sexual offences. As young adults, with varying degrees of social awareness and experiences, students, unfortunately, regularly feature in these matters.

Every student should familiarise themselves with the following information.

If you may be triggered by the following information, you can return to the home page now by clicking HERE

Mobirise

"33% of victims of sexual violence crimes reported in 2018 were females aged between 18 and 29 years at the time of the offence, a further 32% were females aged under 18 years, and 24% were aged 30 or above."

"89% of victims of sexual violence crimes reported in 2018...were females." 

"The number of male victims...was significantly lower than the number of females (192 male victims, compared to 1,562 female victims), but within this cohort, the male victim was aged under 18 years at the time of the offence in 58% of cases (compared to 36% for females)." - Central Statistics Office

This article discusses the following topics and may not be suitable for those under the age of 15:
(select one to jump to that topic)
Consent (incl. Age of Criminal Responsibility)
Sexual Assault
Sexting & Revenge Porn
Common Law & S.4 Rape
Prostitution
Help & Support Services

CONSENT 


The above video (©2015 Emmeline May and Blue Seat Studios) will help to explain what consent is.

Under the common law, the Supreme Court of Ireland set forth the following definition of consent in 2016 in the case of DPP v C O'R:

“Consent is the active communication through words or physical gestures that the woman agrees with or actively seeks sexual intercourse."

This may be interpreted as the need for positive consent in that some level of active communication is required.

(Note: This quote refers specifically to Male/Female sexual acts and the consent attached. Some information relating to LGBTQI+ sexual acts as well as straight male/female acts are further discussed under the heading 'Modern Consent Law', and further under 'S.4 Rape' below)

MODERN CONSENT LAW:

With much greater detail than any act previously, the Criminal Law (Sexual Offences) Act 2017 under S.48 (which replaced S.9 of the 1990 Act) set out the current law on consent as being the following:

“Section 9:

(1) A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act. 

(2) A person does not consent to a sexual act if—

(a) he or she permits the act to take place or submits to it because of the application of force to him or her or to some other person, or because of the threat of the application of force to him or her or to some other person, or because of a well-founded fear that force may be applied to him or her or to some other person, 

(b) he or she is asleep or unconscious, 

(c) he or she is incapable of consenting because of the effect of alcohol or some other drug, 

(d) he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act, 

(e) he or she is mistaken as to the nature and purpose of the act,

(f) he or she is mistaken as to the identity of any other person involved in the act, 

(g) he or she is being unlawfully detained at the time at which the act takes place, 

(h) the only expression or indication of consent or agreement to the act comes from somebody other than the person himself or herself. 

(3) This section does not limit the circumstances in which it may be established that a person did not consent to a sexual act. 

(4) Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place. 

(5) 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. 

(6) In this section ‘sexual act’ means— 

(a) an act consisting of—

(i) sexual intercourse, or

(ii) buggery,

(b) an act described in section 3(1) or 4(1) of this [1990] Act, or

(c) an act which if done without consent would constitute a sexual  assault; 

‘sexual intercourse’ shall be construed in accordance with section 1(2) of the Principal [1981] Act. That Act states that: "sexual intercourse shall be construed as references to carnal knowledge as defined in section 63 of the Offences against the Person Act, 1861 , so far as it relates to natural intercourse (under which such intercourse is deemed complete on proof of penetration only)." 

The 2017 Act foregoes the use of male/female specific consent and instead simply refers to "A person...". Male/female pronouns are used in the Act to describe the actors because, quite simply, the actions mentioned in the Act refer to sexual offences that involve male/female sex organs. Unless an alternative sexual organ is recognised under law, this will likely remain the same. 

Failure to resist is not a defence to an accusation of sexual assault. Under S.9 of the Criminal Law(Rape)(Amendment) Act 1990:

"9.—It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of that person any failure or omission by that person to offer resistance to the act does not of itself constitute consent to the act."


THE LEGAL AGE OF CONSENT

The legal age of consent in Ireland is currently 17 years of age.

Under S.3 of the Criminal Law (Sexual Offences) Act 2006 (as amended by S.17 of the Criminal Law (Sexual Offences)  Act 2017) it is a criminal offence to engage or attempt to engage in a sexual act with a child who is under 17 years of age. 

A person who engages in a sexual act with a child who is under the age of 17 years shall be guilty of an offence and shall be liable on conviction on indictment (a) to imprisonment for a term not exceeding 7 years, or  (b) if he or she is a person in authority, to imprisonment for a term not exceeding 15 years.

The same punishment is applicable where a person attempts to engage in said conduct also. 

It shall be a defence for persons charged with such an offence if they can prove that, at the time of the offence, they were reasonably mistaken that the child was 17 years of age or older. The courts will have to consider whether a reasonable person would, in the same circumstances, have also concluded that the child was aged 17 years or older. 

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NOTE: Justice Siobhan Stack on June 1st 2022 has ruled in the High Court which may have significant effect on the above. The ruling relates to S.17, which amended S.3(5) of the 2006 Act, wherein it states that where an accused wishes to rely on the defence of honest belief regarding the child's age, the standard of proof in such cases shall be that of the civil standard, i.e., on the balance of probabilities. Justice Stack has ruled that this is unconstitutional as it places an unfair burden on the accused to prove his innocence which is repugnant to Article 38.1 of the Constitution (No person shall be tried on any criminal charge save in due course of law.). 

Update - August 2023:

The Supreme Court has upheld the High Court's finding that the burden of proof for the “reasonable mistake” defence in child sexual offence cases under S.3(5) is incompatible with the Constitution. In a 92-page judgment, Chief Justice Donal O’Donnell and Ms Justice Iseult O’Malley noted: “In an era when young adults are much more sexually active than in the past, a genuine mistake is a realistic rather than a remote possibility, if the parties are not known to each other.”

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Following the Supreme Court's 2023 decision in the appeal of C.W v Minister for Justice [2022] IEHC 336, it remains to be seen how the defence of honest mistake is to be advanced insofar as standard of proof is concerned. I will endeavour to update this section as case law progresses. 


SEXUAL ACTS WITH CHILDREN UNDER 15

Where the child was aged 15 years or less at the time of the sexual act, the punishment for engaging, or attampting to engage, in sexual activities with them is increased to a potential life imprisonment. There is a defence available under S.16 of the 2017 Act which may allow the accused to escape conviction where they can successfully prove that, on the balance of probabilities, they honestly and reasonably believed the child to be aged 15 or greater. This is an objective test based on what the ordinary, reasonable person would have believed in the given set of circumstances.

Consent alone is not sufficient to escape liability in such circumstances. 


SEXUAL ACTS BETWEEN TEENAGERS AGED 15 to 17

Persons aged under 17 cannot legally consent to sexual acts with persons older than 17 and, therefore, it is not a defence to suggest that consent was given. A caveat should be mentioned here for circumstances where the child looked, behaved, and/or claimed to be older, thus leading the accused to believe the child was of legal consenting age. This is referred to as the 'Defence of Honest Mistake' and is addressed later on this page.  

Returning to acts between 15 to 17 years olds, however, S.17(3)(8) of the Criminal Law (Sexual Offences) Act 2017 amended S.3 of the 2006 Act by inserting the following: 

(8) Where, in proceedings for an offence under this section against a child who, at the time of the alleged commission of the offence, had attained the age of 15 years but was under the age of 17 years, it shall be a defence that the child consented to the sexual act of which the offence consisted where the defendant— 

(a) is younger or less than 2 years older than the child,  

(b) was not, at the time of the alleged commission of the offence, a person in authority in respect of the child, and  

(c) was not, at the time of the alleged commission of the offence, in a relationship with the child that was intimidatory or exploitative of the child. 

This provision recognises the reality of teenage, consensual, peer relationships through the introduction of a ‘proximity of age’ defence. Under this provision, a teenager between the ages of 15 and 17 who is charged with an offence of engaging in a sexual act with another teenager, who is or was between the ages of 15 and 17 years old at the time of the sexual act, can use consent as a defence if the defendant is younger than the other party or is less than two years older than them. They must not be in authority over the child or be in a relationship that is deemed intimidatory or exploitative. 

The consent of the DPP is required for any prosecution of a child under the age of 17 years for this type of offence. A girl under the age of 17 who has sexual intercourse may not be convicted of such an offence on that ground alone.

One final point of particular relevance in this digital era: The distribution of sexually explicit images/videos between teenagers under the age of 18 may be considered the distribution of child pornography, since a child is defined as any person aged under 18. It may be possible that persons aged 17 who consent to the sharing of images/videos with each other, but not with anyone else, may avoid prosecution, though I wouldn't recommend putting that to the test.


THE LEGAL AGE OF CRIMINAL RESPONSIBILITY

(The age at which a child is capable of being charged with an offence) 

Although not exclusively relative to sexual offences, it is worth mentioning in this section that S.129 of the Criminal Justice Act 2006 inserted the following into section 52 of the Children Act 2001: 

“Restriction on criminal proceedings against children.  

S.52.(1) Subject to subsection (2), a child under 12 years of age shall not be charged with an offence.  

(2) Subsection (1) does not apply to a child aged 10 or 11 years who is charged with murder, manslaughter, rape, rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 (see below for more on s.4 rape) or aggravated sexual assault.  

(3) The rebuttable presumption under any rule of law, namely, that a child who is not less than 7 but under 14 years of age is incapable of committing an offence because the child did not have the capacity to know that the act or omission concerned was wrong, is abolished.  

(4) Where a child under 14 years of age is charged with an offence, no further proceedings in the matter (other than any remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions.” 

Therefore, the general age of criminal responsibility for children is 12, but with a special derogation for a child aged 10 or 11 who is suspected of committing a murder, manslaughter, rape, or aggravated sexual assault offence. 



SEXUAL OFFENCES BY PERSONS IN AUTHORITY

S.18 of the 2017 Act amended the Act of 2006 by the insertion of the following section after section 3:

3A. (1) A person in authority who engages in a sexual act with a child who has attained the age of 17 years but is under the age of 18 years shall be guilty of an offence. 

(2) A person who attempts to commit an offence under subsection (1) shall be guilty of an offence. 

(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 18 years. 

(4) Where, in proceedings for an offence under this section, it falls to the court to consider whether the defendant was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 18 years, the court shall consider whether, in all the circumstances of the case, a reasonable person would have concluded that the child had attained that age. 

(5) The standard of proof required to prove that the defendant was reasonably mistaken that the child had attained the age of 18 years shall be that applicable to civil proceedings. 

(6) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she has reasonable grounds for believing that he or she was not a person in authority in relation to the child against whom the offence is alleged to have been committed. 

(7) It shall not be a defence to proceedings for an offence under this section for the defendant to prove that the child against whom the offence is alleged to have been committed consented to the sexual act of which the offence consisted. 

(8) A person guilty of an offence under this section shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.

“sexual activity” means any activity where a reasonable person would consider that—

(a) whatever its circumstances or the purpose of any person in relation to it, the activity is because of its nature sexual, or

(b) because of its nature the activity may be sexual and because of its circumstances or the purposes of any person in relation to it (or both) the activity is sexual.

“person in authority", in relation to a child against whom an offence is alleged to have been committed, means—

(a) a parent, grandparent, uncle or aunt whether of the whole blood, of the half blood or by affinity of the child, 

(b) a current or former guardian or foster parent of the child, 

(c) a current or former step-parent of the child, 

(d) a current or former partner of a parent of the child who lives or has lived in an enduring family relationship with the parent, 

(e) any person who is for the time being, or has been, in loco parentis to the child, or 

(f) any other person who is or has been responsible for the education, supervision, training, care or welfare of the child; 

and 

(b) by the insertion of the following definition: 

“foster parent" means a person other than a relative of a child who is caring for the child on behalf of the Child and Family Agency in accordance with regulations made under the Child Care Act 1991.

In simple terms: Persons who are aged 17 or more may engage in sexual activity with a person who has also reached the age of 17 or above, provided clear consent has been given by the 17 year old and the older person is not in a position of authority over them, or, where the parties are in a relationship, there has not been any level of intimidation or exploitation of the younger person. The mental or physical capacity of both parties is also a relevant factor in such scenarios.

The Children Act 2001 interprets a child as being any person under 18. Other pieces of legislation (such as the Sex Offenders Act 2001) may refer to a child as being someone under 17. Where this is the case, the legislation will specifically say "In this section a child refers to any person under 17... etc." In any other case you may interpret "Child" to mean someone under 18.


SEXUAL ACTS WITH PROTECTED PERSONS

Knowingly engaging in sexual activity with a person who, at the time of the sexual activity, is suffering from a mental or intellectual disability or a mental illness is illegal. Such persons are referred to as "protected persons".

S.21 of the Criminal Law (Sexual Offences) Act 2017 sets out that: 


21. (1) A person who engages in a sexual act with a protected person knowing that that person is a protected person or being reckless as to whether that person is a protected person shall be guilty of an offence. 

(2) A person who invites, induces, counsels or incites a protected person to engage in a sexual act knowing that that person is a protected person or being reckless as to whether that person is a protected person shall be guilty of an offence. 

(3) In proceedings for an offence under this section, it shall be presumed, unless the contrary is shown, that the defendant knew or was reckless as to whether the person against whom the offence is alleged to have been committed was a protected person. 

(4) A person guilty of an offence under subsection (1) where the sexual act consisted of sexual intercourse, buggery or an act described in section 3(1) or 4(1) of the Act of 1990 shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment. 

(5) A person guilty of an offence under subsection (1) where the sexual act consisted of an act which if done without consent would constitute a sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years. 

(6) A person guilty of an offence under subsection (2) shall be liable, on conviction on indictment, to imprisonment for a term not exceeding 10 years. 

(7) For the purposes of this section, a person lacks the capacity to consent to a sexual act if he or she is, by reason of a mental or intellectual disability or a mental illness, incapable of— 

(a) understanding the nature, or the reasonably foreseeable consequences, of that act, 

(b) evaluating relevant information for the purposes of deciding whether or not to engage in that act, or 

(c) communicating his or her consent to that act by speech, sign language or otherwise, 

and, in this section, such a person is referred to as a “protected person”.


SEXUAL ASSAULT

BACKGROUND

Historically, sexual assault was referred to as indecent assault and consisted of separate offences upon males and females at common law. These sexual attacks did not amount to rape (which we will address further down this article) and ranged from unauthorised teenage molesting to acts which came close to rape. - R v Court [1998]

It would be fair to say that any act short of rape in which a person achieves some obvious and outward level of sexual gratification without the consent of the victim can be deemed to be a sexual assault. There does not necessarily need to be any physical contact with the person. Even touching someones clothes can be a sexual assault, such as snapping a bra strap or pulling at a pair of shorts or lifting a skirt. 

This was an area of law that lawyers were not satisfied with as not only were the definitions of these offences too vague, but the punishments were inadequate also.

CURRENT LAW

S.2 of the Criminal Law (Rape) Amendment Act 1990 introduced the title of 'Sexual Assault' to these types of offences and applied them equally, regardless of gender. Therefore, sexual assault is not gender specific and can be carried out by both females and males. 

S.2 of the 1990 Act was subsequently amended by the Sex Offenders Act of 2001 with the insertion of the following:

S.37(2)(a) A person guilty of sexual assault (i.e. sexual acts that do not amount to rape and where consent was not provided) shall be liable on conviction on indictment—

(i) in case the person on whom the assault was committed was a child, to imprisonment for a term not exceeding 14 years, and

(ii) in any other case, to imprisonment for a term not exceeding 10 years.

(b) In this subsection ‘child’ means a person under 17 years of age.

Where a person is accused of sexual assault it will be necessary for the prosecution to prove that the accused both possessed the mens rea, and satisfied the actus reus, of sexual assault at the time of the incident. This means that they intended to assault the victim in an objectively indecent way and indeed carried out the particular activity complained of, respectively.


AGGRAVATED SEXUAL ASSAULT

S.3 of the Criminal Law (Rape) Amendment Act 1990 introduced the concept of Aggravated Sexual Assault. This is defined under S.3(1) as:

3.(1) In this Act “aggravated sexual assault” means 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.

(2) A person guilty of aggravated sexual assault shall be liable on conviction on indictment to imprisonment for life. 

(3) Aggravated sexual assault shall be a felony.

In order to avoid a charge of sexual assault or aggravated sexual assault, both parties to an encounter must ensure that consent has been properly established and subsists right throughout the act in question. Consent can be withdrawn at any point before or during a sexual act by either party and, in the absence of such consent, any continuation of the sexual act in question will amount to a sexual assault.

Furthermore, past consent does not equal future consent. Just because someone consented to sexual activity in the past, regardless of how many times or the nature of the relationship, doesn't mean that consent is a given or can be disregarded in future encounters. 

Always ask the question and always be very sure of the answer. 

SEXTING & REVENGE PORN

Sharing explicit images of someone else without the consent of that person and with the intention of causing harm may be considered harassment. It may also be considered child pornography in some cases. Revenge porn is the popular term for the malicious distribution of intimate images, without consent of the person involved, to gain revenge and cause public humiliation. It usually occurs when a relationship breaks down and the jilted party seeks to gain revenge on the other person. Or, because some people are thoughtless, horrible beings.

UPDATE December 2020:

Minister for Justice Helen McEntee has today announced that the 'Harassment, Harmful Communications and Related Offences Bill' known colloquially as 'Coco's Law' has today passed the Seanad and is on its way to being signed into legislation.  The new law introduces two new offences to deal with the non-consensual distribution of intimate images with a penalty of an unlimited fine and/or up to seven years imprisonment. 

The Bill creates an offence that deals with the taking, distribution, publication or threat to distribute intimate images without consent, and with intent to cause harm to the victim and will carry a maximum penalty of an unlimited fine and/or seven years’ imprisonment.

The second offence will deal with the taking, distribution or publication of intimate images without consent without a requirement that the person intended to cause harm to the victim and will carry an offence of a maximum penalty of a €5,000 fine and/or 12 months’ imprisonment.

It will be irrelevant that a person may have consented to the taking of an image if it is subsequently published or distributed without their consent. 

It will be an aggravating factor for the purposes of sentencing if the perpetrator of the offence is or was in an intimate relationship with the victim of the offence. 

The legislation will update existing harassment legislation by broadening the scope of the offence of harassment to cover all forms of persistent communications about a person, not just indecent images, and to increase the penalty from seven to ten years to reflect the harm that can be caused by most serious forms of harassment.

And it's about bloody time!

GROUNDS FOR HARASSMENT?

S.10 of the Non-Fatal Offences Against the Person Act 1997 sets out that:

10.(1) Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.

(2) For the purposes of this section a person harasses another where— 

(a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and 

(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other. 

(3) Where a person is guilty of an offence under subsection (1), the court may, in addition to or as an alternative to any other penalty, order that the person shall not, for such period as the court may specify, communicate by any means with the other person or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person. 

(4) A person who fails to comply with the terms of an order under subsection (3) shall be guilty of an offence. 

(5) If on the evidence the court is not satisfied that the person should be convicted of an offence under subsection (1), the court may nevertheless make an order under subsection (3) upon an application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interests of justice so to do. 

(6) A person guilty of an offence under this section shall be liable— 

(a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or 

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both.

This law, however, is not entirely reliable for a charge of harassment to succeed in relation to the distribution of such material. If you look at the requirements for the charge again you will notice that the harassment must be persistent and must also be a direct form of communication with the victim. So where does that leave an aggrieved person when the image(s) or video(s) are only shared one time? Or are shared one time each by multiple persons?

Well, under the current law, the once-off non-consensual sharing of of explicit material on a public website might not be considered harassment as the communication would be neither persistent nor a direct form of communication with the victim.

There may however be Data Protection issues that can assist the victim. See below for more on that. 


SHARING OF MATERIAL DEPICTING UNDERAGE PERSONS

Given that the readers of this website are predominantly students aged between 19 and 23, and who are quite likely to frequent a pub or two, you can perhaps see how it is very possible for a student to come into contact with a person who is underage but may look (and may claim to be) much older. There may even be fake ID produced to support this claim. Remember, in any criminal trial where the accused claims to have been certain that the other party was legally old enough to consent (17), it will be up to the accused to be able to show what made them reasonably certain of this fact.

It is arguable that the difference in physical appearance between a 16.5 year old and an 18 year old may not be all that obvious, especially considering the sheer volume of grooming products available to both males and females today and also the effects of a healthy gene pool! If you think I'm waffling then ask yourself why, in the majority of the above mentioned legislation in this article, there are legal defences available to persons who "reasonably believed" that the person they had an encounter with was older than they actually were.

So, now that you are sufficiently warned, you should be aware of the following legislation which relates to the distribution of images or videos of underage individuals:

Child Trafficking and Pornography Act 1998

S. 5.(1) Subject to sections 6 (2) and 6 (3), any person who—

(a) knowingly produces, distributes, prints or publishes any child pornography, 

(b) knowingly imports, exports, sells or shows any child pornography, 

(c) knowingly publishes or distributes any advertisement likely to be understood as conveying that the advertiser or any other person produces, distributes, prints, publishes, imports, exports, sells or shows any child pornography, 

(d) encourages or knowingly causes or facilitates any activity mentioned in paragraph (a), (b) or (c), or 

(e) knowingly possesses any child pornography for the purpose of distributing, publishing, exporting, selling or showing it, 

shall be guilty of an offence and shall be liable— 

(i) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or both, or 

(ii) on conviction on indictment to a fine or to imprisonment for a term not exceeding 14 years or both. 

(2) In this section “distributes”, in relation to child pornography, includes parting with possession of it to, or exposing or offering it for acquisition by, another person, and the reference to “distributing” in that context shall be construed accordingly.

This act was designed to protect children from exploitation. If sexual images or videos of a child (under 18 years of age) are shared or stored on a device then this Act can be invoked, provided the content shared meets the definition of child pornography. Self-produced explicit images exchanged by adolescents, under the age of 18, could be considered as child pornography.

In short, any photo, video or audio recording that shows a child engaged in sexual activity, or that focuses specifically on the genital region of a child is considered as child pornography. It is less clear whether content that is provocative rather than sexually explicit is illegal. The Act could be interpreted so that almost any provocative content produced or sent by a child could be considered as child pornography.

In cases of adolescent self-generated explicit content or ‘nude selfies’, the person him/herself can be the creator, distributor and possessor of illegal content. There is currently no protocol in place to instruct Gardaí on how to handle such situations and, thus, it will differ from Garda station to Garda station. The above Act was created specifically for the purposes of combating child pornography and child exploitation and not with "sexting or revenge porn" in mind. I daresay it wasn't even invented at the time. Nonetheless, the offensive material may, by virtue of its content, fall under the provisions of this Act and therefore the punishments include imprisonment, a fine and also placement on the sex offenders register. 

Certain offences are afforded a discretion as to whether an individual is placed on the register (where the two parties are similar in age, for example). However, for the offences of creation, distribution and possession of child pornography no such discretion exists. Therefore, if a person is convicted of such an offence, that person will automatically be placed on the register for at least 2 ½ years.


DATA PROTECTION LAW

Sharing content that does not fall into any of the underage relevant legislation, mentioned above, between consenting adults is perfectly fine, as long as everyone involved is fully on board and is fully aware of the risks associated. However, before you go investing in a HD camera and a set of tassels, you should know a little about data protection.

I'll make this very brief and crystal clear:

In order to comply with our domestic data protection laws (I'm not even going to get into GDPR), data controllers (such as Snapchat, Whatsapp, Facebook, TikTok, etc.) are legally required under S.3 of the Communications (Retention of Data) Act 2011, to retain data communicated on their platforms for a period of 2 years. This is to allow bodies such as the Gardaí to retrieve such data for the purposes of law enforcement, should such data be deemed relevant to their investigation.

So those snaps that you thought had gone away forever? Not exactly... They're sitting in an archive somewhere readily available for inspection if necessary.

The following video from Watch This Space is a good indicator of why you should be very careful about sending risky material to someone else:

COMMON LAW RAPE & SECTION 4 RAPE

There are two type of rape recognised in Irish law. Common Law rape and what is referred to as 'Section 4' rape. Below I will set out the distinction between the two.

COMMON LAW RAPE

Common law rape is an offence that is governed by section 2(1) of the Criminal Law (Rape) Act 1981.  This Act states that:

2.(1) Under this Act a man commits rape if:

(a) he has sexual intercourse with a woman who was not consenting at the time and 

(b) he knows she was not consenting or was reckless as to whether or not she was consenting .

(2) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.

In cases of common law rape, only a woman can be raped as sexual intercourse means vaginal intercourse only. Other scenarios are dealt with under S.4 rape below.

Common law rape can only be committed by a man. The number one factor in any rape case is the issue of consent. See the graph below for a simple explanation of how consent operates here:


Mobirise

The offence of common law rape is punishable on conviction by up to life imprisonment and is handled exclusively by the Central Criminal Court in Dublin.

TRANSGENDER PERSONS

Since 04/09/2015, under S.23(4) Gender Recognition Act 2015, persons who have undergone gender reassignment surgery and who have been issued with a gender recognition certificate can be the subject of common law rape.
This means, for example, that a person born male but who has a surgically constructed vagina may now be legally recognised as a the victim of common law rape.

SECTION 4 RAPE

One can see the issues with the above requirements for rape. Non-consensual sexual acts, either conducted anally or orally, could be just as traumatising as vaginal rape but are considered in the 1981 Act. The only difference is the absence of the risk of a subsequent pregnancy. It also leaves LGBTQI+ people somewhat unprotected against rape.

Lawyers found that the common law definition of rape was gravely inadequate as it did not deal with anal or oral rape offences or rape with the use of an object which, again, may also be just as traumatising. 

In light of this, Section 4 (1) Criminal Law (Rape) (Amendment) Act 1990 was enacted which sets out the following .

4.—(1) In this Act “rape under section 4 ” means a sexual assault that includes—
(a) penetration (however slight) of the anus or mouth by the penis, or
(b) penetration (however slight) of the vagina by any object held or manipulated by another person.
(2) A person guilty of rape under section 4 shall be liable on conviction on indictment to imprisonment for life.
(3) Rape under section 4 shall be a felony.

One of the important features of this act is that it acknowledges that rape can be committed by a woman or a man, and against either a man or a woman, by virtue of the fact that gender is not mentioned. 

As with common law rape, this offence carries a maximum penalty of life imprisonment.

In conjunction with common law rape then, the two cast a wide net in terms of catching and punishing most sexual assaults which involve sexual intercourse or similar acts and which were not consensual.

ADVOCATING FOR REFORM

Since first studying this topic at 3rd level, I have been of the opinion that S.4 rape should also cover scenarios which involve penetration of the anus or mouth by any object held or manipulated by another person, which is in essence a combination of parts (a) and (b) of the 1990 Act. I see no reason why having an object (which, in theory, could be anything) forcibly inserted into the mouth or anus, without consent and from which the offender derives sexual gratification, should be any less traumatic to the victim than having the same thing forcibly inserted, without consent, into the vagina. 

Ultimately, it is the non-consensual achievement of sexual gratification that the perpetrator achieves that is punishable here as opposed to the actual act itself which, in circumstances where consent is present, may not be illegal.

With many criminal offences, it is the perpetrator's motivation, or reason for doing it, that is offensive as opposed to the actual act itself whiihc may be quite low in the order of severity. This is why so many offences have a mens rea (guilty mind) element attached. 

The Law Reform Commission are constantly suggesting reformative measures to the Óireachtas in relation to sexual offences so perhaps this is something that will be addressed in the future.


LEGAL DEFENCE TO A RAPE CHARGE - HONEST BELIEF or HONEST MISTAKE

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TO BE UPDATED IN LIGHT OF Criminal Law (Sexual Offences and Human Trafficking) Act 2024
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A person may potentially avoid a conviction for rape by invoking the 'Honest Belief Defence'.

This legal defence applies where a person can claim that they honestly and genuinely believed that the victim was consenting to the sexual act at the time when it occurred. In order to rely on this defence, S.2(2) of the 1981 Act sets out that, in such cases, the jury must have regard to the presence or absence of reasonable grounds for such a belief when deciding whether they believe the accused of not.

That is not to say that the belief must be reasonably held, i.e. what would an ordinary person have believed in the given circumstances. In fact it is a subjective test whereby the jury must simply consider all of the factors of the case (including certain mental factors) relevant to the accused's understanding of the situation when deciding whether they believe the accused or not. This was recently confirmed by the Supreme Court in DPP v C O'R [2016] wherein it was stated that an “honest, though unreasonable, mistake that the woman was consenting is a defence to rape”.

In the UK, the Honest Belief Defence has been replaced by S.1 Sexual Offences Act 2003 which requires that a 'reasonable person' would also have believed that consent had been given in the circumstances. This is an objective test which places greater obligations on the accused to prove the basis for their honest belief. 

The Law Reform Commission has advised (view the report here, see page 45) recently that Ireland should adopt a similar test in our legislation. The Óireachtas considered including it into the 2017 Criminal Law (Sexual Offences) Act however they decided instead to revert to the LRC for further clarification on the matter. It is likely that in the near future we will see a similar model to the English one being applied here.

On a side note, S.5 of the same Act also abolished the old exemption of Marital Rape whereby a husband could not be convicted for the rape of his wife. This was only in 1990 !

PROSTITUTION

Prostitution in Ireland is, technically, legal. It's the person who is paying for the sex that is committing the crime and who may be charged by the Gardaí if caught.

THE LAW

Part 4 of the Criminal Law (Sexual Offences) Act 2017 created two new offences of paying for sexual activity with a prostitute and paying for sexual activity with a trafficked person.

The Act criminalises the purchase of sex and decriminalises sex-work. It is still an offence, however, for more than one person to carry out sex work under the one roof as this would be regarded as a brothel-keeping. Offences related to the advertisement of a brothel are covered under S.23 of the Criminal Justice (Public Order) Act 1994.

The thought behind the 2017 legislation was to attempt to reduce the demand for the purchase of sexual services. To date, however, very few people have been charged under this Act as the majority of such services in Ireland are now performed indoors or are advertised over the internet, making it almost impossible for Gardaí to mount a successful operation. 

Furthermore, many sex workers in Ireland feel unprotected by the legislation since it prevents such workers from 'keeping an eye on each other' by virtue of the fact that having more than one worker under a single roof qualifies as brothel keeping. This has led to numerous instances of sexual assaults taking place behind closed doors. Some sex workers see this legislation as an opportunity for the Gardaí to use them as bait for catching male suspects.

In many instances sex workers also feel as though the current legislation reduces their worth and independence in that they are treated as victims as opposed to autonomous, self-employed workers. 

ONLINE SEX WORKERS

Worthy of note is the fact that none of our current sex-work based legislation is equipped to handle the increasingly popular realm of online sex-work. Sites like Onlyfans, Patreon and even private Snapchat subscriptions allow subscribers to chat with individuals, including the ability to pay for 'private performances' and 'personalised content' with total legal impunity.

Individuals can earn thousands per month on their own time and have full control of who they interact with and for how much. This has ruffled the feathers of many traditional sex workers who feel they are being marginalised by virtue of the fact that their clients are criminalised whereas customers of their online counterparts are not. 

I suspect this area of law may be revisited again in the near future. The problem faced by the legislature, however, is that the digital world is constantly evolving and it is very difficult to contain such a fluid entity in a written script. There's also the issue of the fact that the internet has no borders and is a global entity and so what laws are applicable and where?

HELP & SUPPORT SERVICES
For immediate assistance dial 112 or 999

Mobirise

An Garda Síochána

Anyone who has experienced any form of sexual offence, no matter how trivial, may wish to contact the Gardaí who will support you, hear you out and, if appropriate, bring charges on your behalf. You may not be the only one victim and your testimony could be vital.

Contact
Mobirise





Rape Crisis Network

RCNI is a specialist information and resource centre on rape and all forms of sexual violence. They are the representative, umbrella body for the member Rape Crisis Centres who provide free advice, counselling and support for survivors of sexual abuse.

Contact
Mobirise


HSE Sexual Assault Treatment Unit

A SATU is a safe place to go if you have been raped or sexually assaulted. SATUs can help by offering a forensic exam and medical care. You may need help for a possible pregnancy or sexually transmitted infections (STIs). 

Contact
Mobirise

One in Four

One in Four offers support, a refuge, and a lifeline and provides professional counselling to adult survivors of childhood sexual abuse. For those difficult days in court, they can advocate for you. They also work with offenders through their unique intervention programme.

Contact

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