Appeal over attempt to stop child defilement trial is rejected
High Court Reporter
A man has lost an appeal to stop his trial for defilement of a child arising from offences that occurred when he was 15.
The offences concern that he had sex with a girl he met on Snapchat, who he believed was 15 but who was in fact 12.
As well as defilement, he was charged with sexual exploitation under the Child Trafficking and Pornography Act 1998.
He sought a declaration that the law under which he was charged with defilement (2006 Criminal Law (Sexual Offences) Act) was unconstitutional. He argued that it should be interpreted to have application where an accused reasonably believed the child complainant to be over 15 years of age and within two years of age of the accused.
The High Court refused his application and he appealed.
Ms Justice Isobel Kennedy, on behalf of the three-judge Court of Appeal, dismissed the appeal.
The judge said the boy and the girl had been communicating through Snapchat and had not met in person.
They arranged to meet and engaged in sexual intercourse.
He made a number of video recordings of the sexual activity on his phone.
Upon their return, they met members of the complainant’s family who were concerned as to her whereabouts.
He sent the video recordings to one of her relatives in an attempt to corroborate his assertion that the sexual intercourse had been consensual.
A complaint was made to the gardaí that same night and the area was searched with a number of items of interest including a condom recovered.
The gardaí took his phone and he gave them the passcode, while her phone and clothes were also obtained. She was examined at a paediatric sexual assault unit the following morning.
In a garda interview, he contended that he believed the girl to have turned 15. His arrest, interview and charge all occurred prior to his 18th birthday.
There was a period of two years and two months between the date of the complaint to the date of him being charged.
The High Court found the only potential prejudice he suffered by this delay was the loss of availing of the reporting restrictions as a child.
The court found the trial should proceed but subject to ad hoc reporting restrictions.
Rejecting the appeal, Ms Justice Kennedy said she found no error in the High Court's analysis of the seriousness of the issues in the case.
The accused's contention that the High Court failed to properly take into consideration the public interest in rehabilitating children was not borne out, she said.
She also said as he will retain his anonymity, this impacts in a significant way on his application prohibiting his trial.
At the relevant time, the girl was 12 years of age. Whatever he may have believed, she could not, at law, consent to the sexual act, Ms Justice Kennedy said.
As observed in the High Court, this was the case irrespective of any mistake, reasonable or otherwise, on his part, she said.
He was also neither younger nor less than two years older than the complainant. Thus, irrespective of what he honestly believed her age to be, he did not meet the requirements of the law in relation to reasonable belief that she was over 15.
She was satisfied that the High Court was correct in dismissing his claim of unconstitutionality.
If you have been affected by any of the issues raised in this article, you can call the national 24-hour Rape Crisis Helpline at 1800-77 8888, access text service and webchat options at drcc.ie/services/helpline/ or visit Rape Crisis Help.
