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‘A reasonable cause’: the age of consent and the debate on gender and justice in the Irish Free State, 1922–35

Published online by Cambridge University Press:  04 February 2015

Susannah Riordan
Susannah Riordan*
Affiliation:
School of History & Archives, University College Dublin
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Extract

On 23 May 2006 the Irish Supreme Court declared that the Criminal Law Amendment Act, 1935 was inconsistent with the 1937 Constitution. It found that section 1 (1) of the act deprived a man charged with unlawful carnal knowledge of the defence of having made a reasonable mistake as to the age of the girl in question, and therefore of his constitutional right to a trial in due course of law. In his judgment, Mr Justice Adrian Hardiman stated that ‘the Section contains no balance: it wholly removes the mental element and expressly criminalises the mentally innocent. It need not necessarily have done so.’

Type
Research Article
Information
Irish Historical Studies , Volume 37 , Issue 147 , May 2011 , pp. 427 - 446
Copyright
Copyright © Irish Historical Studies Publications Ltd 2011

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References

1 C.C. vs Ireland and others, 2006, IESC 33.

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7 The Contagious Diseases Acts, passed in 1864, 1865 and 1869, were intended to reduce the spread of venereal diseases in the army and navy. They permitted the incarceration and forcible medical examination of women suspected of being prostitutes in the areas to which they applied. For a discussion of the relationship between the repeal movement and protectionism, see M. Roberts, J. D., ‘Feminism and the state in later Victorian England’ in Hist. Jn., 38, 1 (1995), pp 85–110.Google Scholar For the operation of the acts in Ireland, see Elizabeth Malcolm, ‘Troops of largely diseased women: VD, the Contagious Diseases Acts and moral policing in late nineteenth-century Ireland’ in Ir. Econ. & Social Hist., 26 (1999), pp 1–14.

8 43 & 44 Vict., c. 45 (6 Aug. 1880), section 2.

9 48 & 49 Vict., c. 69 (4 May 1885), section 5.

10 12 Geo. V, c. 56 (8 Feb. 1922), section 2.

11 Criminal Law Amendment Act, 1923, c. 8 [N.I.] 1923, section 2.

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13 These discussions are described below.

14 Ibid., pp 96–7.

15 Under the Bastardy (Ireland) Act (26 & 27 Vic. c. 21), it was possible for boards of guardians to take a civil case against the putative father if the child became a charge on the rates. Alternatively, the mother’s parent, guardian or employer could sue for seduction based on an allegation of loss of services.

16 14 & 15 Geo. 5, c. 27 [N.I.].

17 16 & 17 Geo. 5, c. 60 [U.K.] (15 Dec. 1926).

18 Legitimacy Act (Northern Ireland) 1928, c. 5 [N.I.]

19 McAvoy, , ‘Sexual crime & Irish women’s campaign for a Criminal Law Amendment Act’, pp 93–5.Google Scholar These organisations included the Irish Women Citizens’ Association, the Dublin Christian Citizenship Council, the Dublin Council of Women, the Infant Aid Society, the Irish Christian Fellowship, the Irish Women Workers’ Union, the Nursery Rescue and Protestant Aid Society and the Union of Christian Churches.

20 Cited in Ó Frighil to Attorney General Hugh Kennedy, 21 Dec. 1923 (N.A.I., DJ H213/2).

21 Department of Home Affairs memo, n.d. (N.A.I., Jus. H213/2).

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27 Report of the Commission on the Relief of the Sick and Destitute, including the Insane Poor (Dublin, 1927), p. 2.

28 ‘To the electors of County Dublin’ in Irish Times, 24 May 1927.

29 Dáil Éireann deb., xi, 369 (28 Apr. 1925); xviii, 8 (25 Jan. 1927); xxi, 1505 (17 Nov. 1927).

30 Department of Justice memo [14 Oct. 1929] (N.A.I., DT S5931).

31 Dáil Éireann deb., xxxii, 521 (30 Oct. 1929).

32 Ibid., col. 524.

33 Minute of meeting of Fianna Fáil parliamentary party, 31 Oct. 1929 (U.C.D.A., records of the Fianna Fáil party, P176/443).

34 Dáil Éireann deb., xxxii, 524–5 (30 Oct., 1929).

35 Ibid., xxxiii, 131 (12 Feb. 1930).

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38 Minutes of meeting of Carrigan committee, 18 July 1930 (N.A.I., Jus. 90/4/2).

39 Dáil Éireann deb., xxxiii, 123 (12 Feb. 1930).

40 Ibid., 176 (13 Feb. 1930).

41 Ibid., col. 178. He did not identify the membership of the deputation.

42 Irish Times, 12 Feb. 1930. The Good Shepherd Sisters ran four Magdalene asylums in Ireland: see Finnegan, Frances, ‘Do penance or perish’: a study of Magdalen asylums in Ireland (Oxford, 2004).Google Scholar

43 Dáil Éireann deb., xxxiii, 126–7 (12 Feb. 1930).

44 Ibid., 181 (13 Feb. 1930).

45 Ibid., 176 (13 Feb. 1930).

46 Ibid., cols 193–4.

47 Dáil Éireann deb., xxxiii, 202–4 (13 Feb. 1930). Little later admitted that this had been a policy decision, Dáil Éireann deb., xxxv, 926–7 (11 June 1930).

48 17/1930 [Éire] (17 June 1930), section 3 (6). The amendment did not, as a number of its historians have suggested, confer absolute anonymity on either party.

49 Dáil Éireann deb., xxxiv, 240–2 (27 Mar. 1930).

50 Ibid., col. 243.

51 Ibid., col. 255.

52 Section 1 (2) of the bill originally proposed that a person could not be legitimised if one of the parents was married to a third party at the time of birth. This was a direct transcription from the Westminster act. The Irish bill was amended to prohibit legitimisa- tion ‘unless the father and mother of such person could have been lawfully married to one another at the time of birth of such person or at some time during the period of ten months preceding such birth.’ ‘Offcial report of meeting of special committee, Legitimacy Bill, 3 December 1930’ (N.A.I., DT S5999).

53 Dáil Éireann deb., xxxiv, 258 (27 Mar. 1930).

54 Ibid., col. 262. The ‘British Statute’ referred to is the Criminal Law Amendment Act, 1922.

55 Dáil Éireann deb., xxxiv, 260–61 (27 Mar. 1930).

56 Minutes of meetings of Fianna Fáil general committee, 15, 29 Nov. 1929 (U.C.D.A., records of the Fianna Fáil party, P176/453). I would like to thank Professor Eunan O’Halpin for drawing this source to my attention.

57 Minutes of meetings of Fianna Fáil parliamentary party, 5 Dec. 1929, 27 Feb. 1930 (U.C.D.A., records of the Fianna Fáil party, P176/443).

58 Dáil Éireann deb., xxxiv, 270–71 (27 Mar. 1930).

59 Report of the Departmental Committee on the Treatment of Young Offenders, 1927 [Cmd. 2831].

60 Department of Justice memo [29 Apr. 1930] (N.A.I., DT S5998).

61 Secretary to the Executive Council to secretary of the Department of Justice, 13 May 1930 (N.A.I., DT S5998).

62 Irish Times, 4 June 1930.

63 Extract from Cabinet minutes, 3 June 1930 (N.A.I., DT S5998).

64 Kennedy, , ‘The suppression of the Carrigan report’, p. 355.Google Scholar

65 Forexample, Irish Times, 15 Dec. 1927.

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67 Irish Times, 18 June 1930.

68 Ibid., 21 June 1930.

69 Smith to Little, 4 July 1930 (N.A.I., Jus. 90/4/28).

70 Ibid.; Little to Smith, 3 Oct. 1930 (ibid.).

71 Huggard to Smith, 5 Oct. 1930 (ibid., Jus. 90/4/17). Members of the Christian Citizenship Council were reluctant to give evidence and were not called to do so.

72 Paul Gleeson to Smith [Jan. 1931] (ibid., Jus. 90/4/22).

73 Smith to Carrigan, 29 Sept. 1930 (ibid., Jus. 90/4/8).

74 Department of Justice memo, 27 Oct. 1932 (N.A.I., DT S5998), p. 1.

75 Maguire, , ‘The Carrigan committee & child sexual abuse’, p. 93 n. 1.Google Scholar

76 Minutes of meeting of Carrigan committee, 26 June 1930 (N.A.I., Jus. 90/4/2).

77 Gleeson to Smith, 19 Nov. 1930 (ibid., Jus. 90/4/21).

78 Irish Times, 11 July 1930.

79 Several organisations were represented by two or more witnesses giving evidence jointly, making a total of twenty-nine individuals who appeared before the committee.

80 The exceptions were Cussen and Tancred, Miss E., former director of the Scottish School for Policewomen, called to give evidence on that topic, who expressed no views on the criminal laws. Not all witnesses discussed the age of consent when giving oral evidence, but those who did not had already submitted summaries of their evidence stating their recommendation (N.A.I. Jus. 90/4).Google Scholar

81 Summary of evidence of Re Fitzpatrick v. M., 6 Nov. 1930 (ibid., Jus. 90/4/19).

82 Minutes of meeting of Carrigan committee, 20 Nov. 1930 (ibid., Jus. 90/4/2).

83 Memo entitled ‘Handed in by CGS when giving evidence 30/10/30’ (ibid., Jus. H247/41).

84 Minutes of meeting of Carrigan committee, 15 Jan. 1931 (ibid., Jus. 90/4/2).

85 O’Duffy’s stance on this point, and on the age of consent – which he wished to see raised to eighteen – may have carried considerable weight. As Finnane argues, the com mittee’s report was ‘especially infuenced by the advice of the police, above all by the Commissioner of the Garda Síochána, General Eoin O’Duffy’; see Finnane, ‘The Carrigan committee’, p. 520. However, O’Duffy, like the other witnesses, gave no reason for his recommendation that the ‘reasonable cause’ defence be abolished in his written submission. ‘Heads of evidence’ [Oct. 1930] (N.A.I., Jus. 247/41).

86 Statement of Kettle, Mrs T. M. [Sept. 1930] (N.A.I., Jus. 90/4/25); summary of evidence of Dermot Gleeson [Dec. 1930] (ibid., Jus. 90/4/21); summary of evidence of Emily Buchanan [n.d.] (ibid., Jus. 90/4/29).Google Scholar

87 Summary of evidence of Richard Devane [June 1930] (ibid., Jus. 90/4/13).

88 Seven witnesses made no mention at all of the age of consent in their written submis sions, and may have developed their views on this topic belatedly also.

89 Minutes of meetings of Carrigan committee, 17 Oct. 1930 (Kettle) and 18 July 1930 (I. Dodd, I.W.C.L.G.A) (N.A.I., Jus. 90/4/2).

90 Minutes of meeting of Carrigan committee, 18 July 1930 (ibid.).

91 Ibid., 18 Dec. 1930.

92 Ibid., 20 Nov. 1930.

93 For a broader discussion of the manner in which the committee ignored challenging evidence, see Smith, , ‘The politics of sexual knowledge’, pp 224–32.Google Scholar

94 Report of the Committee on the Criminal Law Amendment Acts, p. 7.

95 Smith, ‘The politics of sexual knowledge’, p. 214.

96 Report of the Committee on the Criminal Law Amendment Acts, p. 8.

97 Ibid., pp 16–18.

98 Ibid., p. 18.

99 Finnane, ‘The Carrigan committee’, p. 527.

100 Department of Justice memo, 27 Oct. 1932 (N.A.I., DT S5998, p. 1).

101 Ibid., p. 2.

102 Ibid., p. 3

103 Ibid., p. 4.

104 Ibid., p. 3.

105 Ibid., p. 4.

106 Ibid., p. 5.

107 Ibid.

108 See Valiulis, Maryann, ‘Defning their role in the new state: Irishwomen’s protest against the Juries Act of 1927’ in Canadian Jn. of Ir. Studies, 18, 1 (July 1992), pp 43–60.Google Scholar

109 Department of Justice memo, 27 Oct. 1932 (N.A.I., DT S5998, pp 5–6).

110 Ibid., p. 13.

111 Memo to each member of the Executive Council, 2 Dec. 1931 (N.A.I., DT S5998).

112 Brown to Geoghegan, 13 Nov. 1932 (N.A.I., Jus. H247/41B).

113 Canavan to Geoghegan [Nov. 1932] (ibid.).

114 Finnane, , ‘The Carrigan committee’, pp 526–7.Google Scholar

115 Department of Justice memo, 27 Oct. 1932 (N.A.I., DT S5998, p. 14).

116 Finnane, , ‘The Carrigan committee’, p. 527.Google Scholar

117 Ibid., p. 528. The names of members of the Dáil committee were not published, allegedly to avoid ‘lobbying’.

118 Assistant secretary, Department of Justice to secretary to the President, 9 Mar. 1933 (N.A.I., DT S5998). Davin was a member of the Irish Labour Party, Morrissey was a member of Independent Labour, Dillon and Thrift were independents.

119 Smith, , ‘The politics of sexual knowledge’, p. 216.Google Scholar

120 Cited in ibid., p. 217.

121 Ibid., p. 218.

122 Kennedy, , ‘The suppression of the Carrigan report’, pp 354–6.Google Scholar

123 Dáil Éireann deb., liii, 1247–8 (28 June 1934).

124 Ibid., 2401 (9 Aug. 1934). The sole T.D. not to abide by the agreement to withhold amendments was Rowlette, Dr Robert, independent member for Dublin University, who was most immediately concerned with the physical and emotional damage to married women deprived of the possibility of limiting family size.Google Scholar

125 Seanad Éireann deb., xix, 799–800 (12 Dec. 1934).

126 Report of the Special Committee on the Criminal Law Amendment Bill, 1934 (1935), ix (N.A.I., DT S5998). The committee consisted of Sir Edward Coey Bigger; Brown, S. L. K.C.; Browne, Kathleen; Clarke, Kathleen; Douglas, James G.; Foran, Thomas; Lynch, Patrick K.C.; Colonel Maurice Moore and Jennie Wyse Power.Google Scholar

127 Seanad Éireann deb., xix, 1246–1261 (6 Feb. 1935).

128 Finnane, , ‘The Carrigan committee’, p. 529.Google Scholar

129 Report of the Special Committee, v–vi.

130 Seanad Éireann deb., xix, 1216–1261 (6 Feb. 1935).

131 Selfe, David and Burke, Vincent, Perspectives on sex, crime and society (2nd ed., London, 2001), p. 146Google Scholar.