Court reserves decision in case considering ‘reasonably mistaken’ defence in sexual act with minor

The plaintiff in this case was convicted of the offence of engaging in a sexual act with a person under the age of 17 and was sentenced to one year and 10 months in prison. The events giving rise to the criminal trial took place about five years ago when the man was 19 years and four months old and the complainant was 15 years and 10 months.

If the Supreme Court rejects, as the High Court did, the State’s contention that this is a constituent of the offence itself then the question arises of whether this burden shift is justified, said David Fennelly BL, who was also representing the Minister for Justice, the Attorney General, the Director of Public Prosecutions and Ireland.

This reversal is justified for this particular offence, Mr Fennelly went on. He pointed to the State’s duty to protect and uphold constitutional rights, a duty which he said is “heightened” when it comes to a child. It is “very difficult”, he said, for the prosecution to prove an accused was not reasonably mistaken as to age.

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