Sexual offences in Ireland | Criminal Defence Rape
Have you been accused of rape or any other sexual offence? We are here to help.
Phelim O'Neill has extensive experience defending clients accused of varying degrees of sexual offences. Phelim has successfully represented clients accused of sexual offences at District Court, Circuit Criminal Court and the Central Criminal Court.
Phelim offers solid advice to clients accused of sexual offences in relation to dealing with state agencies including the HSE, TUSLA (the Child and Family Agency) and an Garda Siochana.
If you have been accused of a sexual offence, Phelim can offer you immediate non judgmental advice over the telephone and can apply for Free Criminal Legal Aid on your behalf. Phelim works with some of Ireland's best known criminal defence barristers and offers special attention to each and every criminal case.
"Your case is as important to me as it is to you. I have built my reputation by working for my clients diligently, and researching every possible avenue of defence through investigations and case law, building a defence that is solid and thorough to provide my clients with the best possible outcome for their situations".
IF YOU HAVE BEEN ACCUSED OF A SEXUAL OFFENCE YOU MUST TREAT THIS MATTER AS SERIOUS, THE RESULT OF MISHANDLING SUCH A CASE CAN HAVE LIFE CHANGING CONSEQUENCES.
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A range of sexual offences in Ireland are prohibited by law. The following information sets out the most important of those offences. The precise charge for these offences depends on all the circumstances of the case, the age of the victim and the evidence available. The current penalties for sex offences in Ireland include:
- Being placed on the Sex Offenders Register
- Sex Offenders Orders
Post release supervision.
Sex offenders must tell certain prospective employers in Ireland that they have been convicted of such offences. (Garda clearance for employees.)
The crime of rape may be charged under the Criminal Law (Rape) Act 1981 or the Criminal Law (Rape) (Amendment) Act 1990. The circumstances of the case, age of the victim and evidence will decide which legislation will apply.
The maximum penalty in Ireland for a rape offence is life imprisonment. There are related offences under the law of attempted rape, and separately of aiding and abetting a rape. (That is, assisting another person to commit a rape).
Sexual Assault/Aggravated sexual assault
Section 2 of the Criminal Law (Rape) (Amendment) Act 1990 sets out the law in Ireland on sexual assault. A sexual assault is an indecent assault on a male or a female. The maximum sentence is 10 years imprisonment or 14 years if the victim is aged under 17 years.
Aggravated sexual assault is sexual assault involving serious violence or the threat of serious violence. In common with rape offences, the maximum sentence for aggravated sexual assault is life imprisonment.
In 2006 the Department of Health published a National Review on Sexual Assault Treatment Services (pdf). The report identifies some key areas for the development of sexual assault treatment services. The HSE together with the Department of Health and Department of Justice and Equality work to ensure implementation of the recommendations in the report.
Sexual offences relating to children
There is no specific offence in law of child sex abuse. A person may be charged with rape, sexual assault, aggravated sexual assault or with one of the specific offences relating to children. The law in this area changed significantly in 2006 – further information is set out below. THE CRIMINAL LAW (SEXUAL OFFENCES) ACT 2017 gives effect to Directive No. 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA, for that purpose to amend certain enactments; to amend the Punishment of Incest Act 1908 ; to amend the Criminal Evidence Act 1992 ; to repeal certain provisions of the Criminal Law (Sexual Offences) Act 1993 ; to repeal the Criminal Law (Incest Proceedings) Act 1995 ; to amend the Criminal Law (Sexual Offences) Act 2006 ; to provide for offences relating to sexual acts with protected persons and relating to payment for sexual activity with prostitutes, offensive conduct of a sexual nature and harassment of victims of sexual offences; and to provide for related matters.
The term statutory rape is not used in the legislation but it is the term that is commonly used for unlawful sexual contact with a person aged under 17 years. Until June 2006, charges for this offence were brought under the Criminal Law (Amendment) Act 1935. In the case of CC v Ireland, the Attorney General and the Director of Public Prosecutions, the Supreme Court held that Section 1 of the Criminal Law (Amendment) Act 1935 Act was unconstitutional. Read more about what happens when law is found to be unconstitutional here. View the judgement of the Supreme Court in the case of CC v Ireland here.
The effect of the Supreme Court decision is that Section 1 of the 1935 Act is no longer a part of the Act. The rest of the Act was not affected. A new Act, the Criminal Law (Sexual Offences) Act 2006 (pdf) was passed to replace the unconstitutional provisions in the 1935 Act. It also repealed and replaced Section 2 of the 1935 Act. The original 1935 Act has now been amended many times.
Defilement of a child aged under 15 years
The Criminal Law (Sexual Offences) Act 2006 makes it a criminal offence to engage or attempt to engage in a sexual act with a child under the age of 15 years. This is what is meant by the term ‘defilement’. The maximum sentence for this offence is life imprisonment.
A sexual act for the purposes of the law includes sexual intercourse and buggery between people who are not married to each other and any sexual act which could constitute aggravated sexual assault.
The 2006 Act provides that the accused may argue they honestly believed the child was aged 15 years or over. The court must then consider whether or not that belief was reasonable. It is not a defence to show that the child consented to the sexual act.
Defilement of a child aged under 17 years
Section 3 of the Criminal Law (Sex Offences) Act 2006 (pdf) as amended by Section 5 of the Criminal Law (Sexual Offences) (Amendment) Act 2007 (pdf) makes it a criminal offence to engage or attempt to engage in a sexual act with a child under 17 years. The maximum sentence is five years, ten years if the accused is a person in authority. A person in authority means:
- A parent, step-parent, guardian, grandparent, uncle or aunt of the victim, or
- any person acting in loco parentis (in place of parent or parents) to the victim, or
- any person responsible for the education, supervision or welfare of the victim.
The maximum sentence is greater for a second or subsequent offence.
The accused may argue that he or she honestly believed that the child was aged 17 years or over. The court must then consider whether or not that belief was reasonable. It is not a defence to show that the child consented to the sexual act.
The consent of the Director of Public Prosecutions is required for any prosecution of a child under the age of 17 years for this offence. A person who is convicted of this offence and is not more than two years older than the victim is not subject to the requirements of the Sex Offenders Act 2001. This means they will not have their name placed on the Sex Offenders Register.
A girl aged under 17 years who has sexual intercourse may not be convicted of an offence on that ground alone.
Reckless endangerment of children
The Criminal Justice Act 2006 provides for a new offence of reckless endangerment of children. This came into effect on 1 August 2006.
This offence may be committed by a person who has authority or control over a child or an abuser and who intentionally or recklessly endangers a child by:
- Causing or permitting any child to be placed or left in a situation which creates a substantial risk to the child of being a victim of serious harm or sexual abuse or
- failing to take reasonable steps to protect a child from such a risk while knowing that the child is in such a situation.
This offence may be prosecuted only by the Director of Public Prosecutions. The penalty is a fine (no upper limit) and/or a maximum of 10 years imprisonment.
The term incest refers to sexual intercourse occurring between close relatives. Close relatives include a child, a sibling or a parent. This is a criminal offence and charges are brought under the Punishment of Incest Act 1908 as amended by the Criminal Law (Incest Proceedings) Act 1995.
There are no age limits. However, a girl under 17 years cannot be prosecuted for incest. The maximum sentence is life imprisonment for males and seven years for females.
Sexual Offences involving people with disabilities
There are specific provisions in Ireland for sexual offences involving people with disabilities. A person who engages in unlawful sexual activity with a person with a disability may, of course, be charged under any of the provisions described above. The specific provisions for people with disabilities are contained in Section 5 of the Criminal Law (Sexual Offences) Act 1993.
This provides for the following specific offences:
- Sexual intercourse or buggery with a mentally impaired person (other than a spouse); the maximum penalty is ten years imprisonment
- Gross indecency by a male with a male who is mentally impaired; the maximum penalty is two years imprisonment.
Mentally impaired refers in law to a person suffering from a disorder of the mind, whether through mental disability or mental illness, which is of such a nature or degree as to render a person incapable of living an independent life or of guarding themselves against serious exploitation.
Child Trafficking and Pornography Act 1998
The Child Trafficking and Pornography Act 1998 ,which is amended by Section 6 of the Criminal Law (Sexual Offences) (Amendment) Act 2007 (pdf), deals with a number of offences involving children under the age of 17. These include:
- Child trafficking and taking a child for sexual exploitation; the maximum penalty is life imprisonment,
- Meeting a child for the purpose of sexual exploitation; the maximum penalty is 14 years imprisonment,
- Allowing a child to be used for child pornography; the maximum penalty is a fine of up to €31,000 and/or 14 years imprisonment
- Producing, distributing, printing or publishing child pornography; the maximum penalty for a summary offence is a class C fine and/or a year’s imprisonment; if charged on indictment, the maximum penalty is an unlimited fine and/or 14 years imprisonment. View further information on the censorship of video and telecoms recordings here.
- Possession of child pornography; the maximum penalty for a summary offence is a class C fine and/or a year’s imprisonment; if charged on indictment, the maximum penalty is €6,350 and/or five years imprisonment.
Employment of Sex Offenders
It is an offence in Ireland for a sex offender to apply for work or to perform a service (including state work or service) which involves having unsupervised access to, or contact with, children or mentally impaired people without telling the prospective employer or contractor that he/she is a sex offender. State work or service includes work done by civil servants, Gardai, Defence Forces, local authority and HSE staff.
There is limited Garda vetting of applicants for employment.