Child rape fiasco: There is no sex register in Ireland

Despite references to a register by the media, by ministers and even by judges, there is no sex offenders' register in Ireland. By Colin Murphy

The Supreme Court thinks there is, the Minister for Justice thinks there is, the media thinks there is. But, according to the Department of Justice and the Garda press offices, no such register exists. The "sex offenders' register" is a "media concoction" and "media shorthand".

The Supreme Court's Adrian Hardiman, in his recent judgement striking out the Criminal Law (Amendment) Act 1935, wrote that the stigma of a sexual offence conviction was "compounded by the consequential enrolment of the person convicted on the Sex Offenders' Register".

"Enrolment on this register is a very formalised stigma. It would be a matter of intense shame to any individual, and, unfortunately to his family," he said.

The Minister for Justice, Michael McDowell, told the Dáil in February: "All sex offenders convicted since the introduction of the Sex Offenders Act 2001 are now placed on the register of sex offenders to assist with future monitoring and to safeguard the public..

But the Sex Offenders Act 2001 makes no reference to a register of sex offenders. Instead, the act places minimal requirements on convicted sex offenders to notify the Garda Síochána of changes to their personal details. The legislation places the onus on the offenders, not on the gardaí, said a Garda spokesman.

Within seven days of being released from prison (or, in the case of a suspended sentence, of conviction), a sex offender must notify the Garda of his name, any other names he uses, and his home address, according to the act. If he subsequently changes address, or stays elsewhere, he is required to notify the Garda of these addresses within seven days of moving.

The act also provides for a court to make a "sex offender order" in certain cases to place "prohibitions" on a sex offender doing anything which could lead to a sexual offence being committed.

Fiona Neary of the Rape Crisis Network Ireland said the term "sex offenders register" was imported from the UK, where there is a specific register of sex offenders, known as the Violent and Sexual Offenders Register (VISOR).

"We have nothing that could make you feel nearly as secure as a register," she said.

She said a register comparable with that in the UK and Northern Ireland would require resources, while the Irish alternative is "the least thing we could have", and is neither properly resourced nor comprehensive.

She said the lack of a sex offenders' register is "another example of our Government's response to sexual violence, which is crisis-driven and minimalist".

She said a properly resourced set-up for monitoring and registering sex offenders would include a "pre-release assessment" of offenders, which would assess the kind of supervision and registration appropriate to each individual sex offender. This would have to be backed up with resources for the probation service and the Garda Siochana, she said.

The UK's sex offenders' register places sex offenders under similar obligations to notify the police of their address and movements as the Irish legislation, but the UK register may contain a greater level of detail and "soft" information on people who have come to the attention of police, or who have received cautions, but not convictions.

A spokesman for the UK Home Office said the register could contain "intelligence" on sex offenders, information on their employment, information on whether they have worked with children in the past and details such as the car they drive.

The Irish legislation means that "Mr A", who recently walked free from the High Court after his conviction for statutory rape of a 12-year-old girl was struck down, will not be monitored or registered by the Garda.

Details of all convictions in Ireland are kept on the Garda Síochána's centralised computer system, Pulse. According to a Garda spokesperson, information received in accordance with the Sex Offenders Act is managed by the Garda's Domestic Violence and Sexual Assault Unit. The unit is responsible for keeping records and making information available to gardaí via Pulse. Information on sex offenders is accessible only to district officers or superintendents, or persons nominated by them, and not to individual gardaí.p

Epidemic of sexual crimes

By far the greatest incidence of crime in Ireland is sex crime and it hardly registers at all on the political agenda. According to an authoritative survey published in 2002, The SAVI Report: Sexual Abuse and Violence in Ireland by researchers of the Royal College of Surgeons, the following are the bare facts on sexual criminality:

• One in five women reported experiencing contact sexual abuse in childhood and in one quarter of these cases the contact abuse involved penetrative sex.

• One in six men reported experiencing contact sexual abuse in childhood and in one in seventy of these cases the abuse involved penetrative sex.

• One in five women reported experiencing contact sexual abuse as adults and in a quarter of these cases this included penetrative sex.

• One in ten men reported experiencing contact sexual assaults as adults and in one-tenth of these cases involved penetrative sex.

The 'C' case

'Mr C" was aged 19 when he had sexual intercourse with a girl aged 14 or younger in July and August 2001. He claimed she had told him she was 16 at the time and he believed her – had she been 16 the consensual sex would not have been unlawful. He was prosecuted with "unlawful carnal knowledge" (or statutory rape) under Section 1.1 of the Criminal Amendment Act 1935.

This section reads: "Any person who unlawfully and carnally knows any girl under the age of 15 shall be guilty of a felony, and shall be liable on conviction thereof to penal servitude for life or for any term not less than three years or to imprisonment for any terms not exceeding two years."

On the face of it this section is saying that irrespective of an honest mistake on the part of the man about the age of the girl, if a man has sexual intercourse with a women under 15, he is guilty of a serious crime. It leaves open the possibility of a man, who is entirely blameless, being convicted.

The Supreme Court held that this was unconstitutional because (in the words of Adrian Hardiman, speaking for the Supreme Court): "I cannot regard a provision which criminalises and exposes to a maximum sentence or life imprisonment a person without mental guilt as respecting the liberty and dignity of the individual or as meeting the obligation on the State (to vindicate that person's good name)".

There were two remedies open to the court: to find the act unconstitutional or to read into the act an assumption that there had to be a "guilty mind" – in other words, no honest mistake concerning the age of the girl. The court held that to read-in an assumption would be to legislate and that is not the function of the court – it is the function of the Oireachtas.

The judgement drew attention to the fact that the Law Reform Commission in 1990 advocated inserting into this act an "honest mistake" defence, which would have made it constitutional. (However, successive governments did nothing.) The judgement also said that there was "ample" reason to believe or at least apprehend since 1970 that the provision was constitutionally vulnerable. "A finding to that effect cannot reasonably be regarded as surprising," according to the judgement.-