Revised Acts

1

Definitions.

1.— In this Act—

“Act of 1981” means the Criminal Law (Rape) Act 1981;

“Act of 1990” means the Criminal Law (Rape) (Amendment) Act 1990;

F1["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;]

F2[“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;]

“sexual act” means—

(a) an act consisting of—

(i) sexual intercourse, or

(ii) buggery,

between persons who are not married to each other, or

(b) an act described in section 3(1) or 4(1) of the Act of 1990;

“sexual intercourse” shall be construed in accordance with section 1(2) of the Act of 1981.

Annotations

Amendments:

F1

Inserted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 15(b), S.I. No. 112 of 2017.

F2

Substituted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 15(a), S.I. No. 112 of 2017.

2

Defilement of child under 15 years of age

F3[2.— (1) A person who engages in a sexual act with a child who is under the age of 15 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.

(2) A person who attempts to engage in a sexual act with a child who is under the age of 15 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.

(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 15 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 15 years, the court shall consider whether, in all the circumstances of the case, a reasonable person would have concluded that the child had attained the said age.

(5) F4[…]

(6) 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.]

Annotations

Amendments:

F3

Substituted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 16, S.I. No. 112 of 2017.

F4

Deleted (31.08.2024) by Criminal Law (Sexual Offences and Human Trafficking) Act 2024 (28/2024), s. 18(1)(a), S.I. No. 391 of 2024, subject to retrospective application by s. 19, see C-note below.

Modifications (not altering text):

C1

Deletion of subs. (5) applied with retrospective effect (31.08.2024) by Criminal Law (Sexual Offences and Human Trafficking) Act 2024 (28/2024), s. 19, S.I. No. 391 of 2024.

Retrospective application of repeals

19. (1) Subject to subsection (2), the repeals effected by subsection (1) of section 18 and paragraph (a) of subsection (3) of that section shall apply in respect of a relevant offence committed before the date of the coming into operation of this Chapter, including a relevant offence in respect of which proceedings had commenced before that date.

(2) Subsection (1) shall not apply in respect of a relevant offence committed prior to the date of the coming into operation of this Chapter where final judgment was given before that date in the proceedings in respect of the relevant offence.

(3) In this section “relevant offence” means—

(a) an offence to which section 2(5) or 3A(5) of the Act of 2006 applied, immediately before their repeal by section 18 (1), or

(b) an offence to which section 22(5) of the Act of 2017 applied, immediately before its repeal by section 18 (3)(a).

C2

Application of section extended (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 42, S.I. No. 112 of 2017.

Jurisdiction

42. (1) Where a person who is an Irish citizen or ordinarily resident in the State does an act against a child in a place other than the State that, if done in the State, would constitute rape, sexual assault, an offence under section 4A, 5(1)(a) or 5A(1) of the Act of 1998, or an offence under section 2, 3 or 3A of the Act of 2006, he or she shall be guilty of that offence.

(2) Where a person conspires with, or incites, in the State, another person to do an act against a child in a place other than the State that, if done in the State, would constitute rape, sexual assault, an offence under section 4A, 5(1)(a) or 5A(1) of the Act of 1998, or an offence under section 2, 3 or 3A of the Act of 2006, he or she shall be guilty of an offence.

(3) Where a person who is an Irish citizen or ordinarily resident in the State conspires with, or incites, in a place other than the State, another person to do an act against a child in a place other than the State that, if done in the State, would constitute rape, sexual assault, an offence under section 4A, 5(1)(a) or 5A(1) of the Act of 1998, or an offence under section 2, 3 or 3A of the Act of 2006, he or she shall be guilty of an offence.

(4) Where a person attempts to commit an offence under subsection (2) or (3), he or she shall be guilty of an offence.

(5) A person found guilty of an offence under this section shall be liable on conviction to the penalty to which he or she would have been liable had the act that constituted the offence been done in the State.

(6) For the purposes of this section a person shall be deemed to be ordinarily resident in the State if—

(a) he or she has had his or her principal residence in the State for the period of 12 months immediately preceding the alleged commission of the offence,

(b) it is a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act, or

(c) in the case of any other body corporate, it is established under the law of the State.

Editorial Notes:

E3

Offence under section is a serious crime for purposes of European Union (Passenger Name Record Data) Regulations 2018 as provided (25.05.2018) by European Union (Passenger Name Record Data) Regulations 2018 (S.I. No. 177 of 2018), reg. 2 and sch. 2(2), in effect as per reg. 1(2).

E4

Offence under section is a relevant offence which is an extended confiscation offence as provided by Criminal Justice Act 1994 (15/1994), s. 3 and sch. 1A part 2 as inserted (28.11.2017) by European Union (Freezing and Confiscation of Instrumentalities and Proceeds of Crime) Regulations 2017 (S.I. No. 540 of 2017), reg. 18.

E5

Offence under section included in definition of "sexual abuse" for purposes of Children First Act 2015 (11.12.2015) by Children First Act 2015 (36/2015), s. 2 and sch. 3 item 8, S.I. No. 555 of 2015.

E6

Offence under section included in definition of “specified offence” for purposes of Taxi Regulation Act 2013 (37/2013) (6.04.2014) by Taxi Regulation Act 2013 (37/2013), s. 30 and sch. part 1 item 11, S.I. No. 163 of 2014.

E7

Offence under section included in sch. 1 (offences against children for purposes of offence under s. 2) to Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 (24/2012) (1.08.2012) by Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 (24/2012), s. 2 and sch. 1, S.I. No. 281 of 2012.

E8

Offence under section included in definition of “relevant offence” for purposes of Criminal Procedure Act 2010 (27/2010), Part 3, (1.09.2010) by Criminal Procedure Act 2010 (27/2010), s. 7 and sch., S.I. No. 414 of 2010.

E9

Previous affecting provision: application of section extended by Criminal Law (Sexual Offences) Act 1993 (20/1993), s. 6, as substituted (7.03.2007) by Criminal Law (Sexual Offences) (Amendment) Act 2007 (6/2007), s. 2, commenced on enactment; section substituted (27.03.2017) as per F-note above.

3

Defilement of child under 17 years of age

F5[3.— (1) 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.

(2) A person who attempts to engage 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.

(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 17 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 17 years, the court shall consider whether, in all the circumstances of the case, a reasonable person would have concluded that the child had attained the said age.

(5) F6[…]

(6) Subject to subsection (8), 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.

(7) No proceedings for an offence under this section against a child under the age of 17 years shall be brought except by, or with the consent of, the Director of Public Prosecutions.

(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.]

Annotations

Amendments:

F5

Substituted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 17, S.I. No. 112 of 2017.

F6

Declared unconstitutional (28.08.2023) by C.W v The Minister for Justice, Ireland and the Attorney General and the Director of Public Prosecutions [2023] IESC 22 (Charleton J).

Modifications (not altering text):

C3