Sex Offence Trials
CRIMINAL LAW (RAPE) ACT 1981
REVISED
Updated to 1 May 2021
AN ACT TO AMEND THE LAW RELATING TO RAPE AND INDECENT ASSAULT ON FEMALES. [6th May, 1981]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Annotations:
Editorial Notes:
E1
Provision for special treatment of child offences under Act made (1.05.2002) by Children Act 2001 (24/2001), ss. 251, 253-256 and sch. 1, S.I. No. 151 of 2002.
Interpretation.
1.—F1[(1) In this Act—
‘aggravated sexual assault’, ‘rape under section 4’ and ‘sexual assault’ have the meanings respectively assigned to them by the Criminal Law (Rape) (Amendment) Act, 1990;
‘complainant’ means a person in relation to whom a sexual assault offence is alleged to have been committed;
‘a rape offence’ means any of the following, namely, rape, attempted rape, burglary with intent to commit rape, aiding, abetting, counselling and procuring rape, attempted rape or burglary with intent to commit rape, and incitement to rape and, other than in sections 2 (2) and 8 of this Act, rape under section 4, attempted rape under section 4, aiding, abetting, counselling and procuring rape under section 4 or attempted rape under section 4 and incitement to rape under section 4;
‘a sexual assault offence’ means a rape offence and any of the following, namely, aggravated sexual assault, attempted aggravated sexual assault, sexual assault, attempted sexual assault, aiding, abetting, counselling and procuring aggravated sexual assault, attempted aggravated sexual assault, sexual assault or attempted sexual assault, incitement to aggravated sexual assault or sexual assault and conspiracy to commit any of the foregoing offences.]
(2) In this Act references to sexual intercourse shall be construed as references to carnal knowledge as defined in section 63 of the Offences against the Person Act, 1861, so far as it relates to natural intercourse (under which such intercourse is deemed complete on proof of penetration only).
(3) In this Act “ man ” and “ woman ” include respectively a male and a female person of any age; F2[…].
Annotations:
Amendments:
F1
Substituted (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 12, commenced as per s. 22(3).
F2
Repealed (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 21 and sch. ref. no. 5, commenced as per s. 22(3).
Meaning of “rape”.
2. — (1) A man commits rape if—
(a) he has F3[…] sexual intercourse with a woman who at the time of the intercourse does not consent to it, and
(b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it,
and references to rape in this Act and any other enactment shall be construed accordingly.
(2) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.
Annotations:
Amendments:
F3
Repealed (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 21 and sch. ref. no. 5, commenced as per s. 22(3).
Modifications (not altering text):
C1
Application of section extended (19.12.1996) by Sexual Offences (Jurisdiction) Act 1996 (38/1996) s. 2 and schedule, commenced on enactment.
Sexual offences committed outside State.
2. —(1) Where a person, being a citizen of the State or being ordinarily resident in the State, does an act, in a place other than the State (“the place”), against or involving a child which—
(a) constitutes an offence under the law of the place, and
(b) if done within the State, would constitute an offence under, or referred to in, an enactment specified in the Schedule to this Act,
he or she shall be guilty of the second-mentioned offence.
(2) Where a person, being a citizen of the State or being ordinarily resident in the State, attempts to commit an offence which is an offence by virtue of subsection (1) of this section (“the principal offence”), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a penalty not greater than the penalty to which he or she would have been liable if he or she had been convicted of the principal offence.
(3) Where a person aids, abets, counsels or procures, in the State, the commission of an offence, which is an offence by virtue of subsection (1) of this section, he or she shall be guilty of that offence.
(4) Where a person, being a citizen of the State or being ordinarily resident in the State, aids, abets, counsels or procures, outside the State, the commission of an offence, which is an offence by virtue of subsection (1) of this section, he or she shall be guilty of that offence.
(5) Where a person conspires with, or incites, inside the State, another person to commit an offence, which is an offence by virtue of subsection (1) of this section (“the principal offence”), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a penalty not exceeding the penalty to which he or she would be liable if he or she were convicted of the principal offence.
(6) Where a person, being a citizen of the State or being ordinarily resident in the State, conspires with, or incites, outside the State, another person to commit an offence, which is an offence by virtue of subsection (1) of this section (“the principal offence”), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a penalty not exceeding the penalty to which he or she would be liable if he or she were convicted of the principal offence.
(7) For the purposes of proceedings for an offence to which this section relates, a person shall be deemed to be ordinarily resident in the State if he or she has had his or her principal residence within the State for the period of 12 months immediately preceding the alleged commission of the said offence.
SCHEDULE
…
3. Section 2 of the Criminal Law (Rape) Act, 1981.
…
Restrictions on evidence at trials for rape offences.
3.—F4[(1) If at a trial any person is for the time being charged with a sexual assault offence to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience (other than that to which the charge relates) of a complainant with any person; and in relation to a sexual assault tried summarily pursuant to section 12—
(a) subsection (2) (a) shall have effect as if the words ‘in the absence of the jury’ were omitted,
(b) subsection (2) (b) shall have effect as if for the references to the jury there were substituted references to the court, and
(c) this section (other than this paragraph) and subsections (3) and (4) of section 7 shall have effect as if for the references to the judge there were substituted references to the court.]
(2) (a) The judge shall not give leave in pursuance of subsection (1) for any evidence or question except on an application made to him, in the absence of the jury, by or on behalf of an accused person.
(b) The judge shall give leave if, and only if, he is satisfied that it would be unfair to the accused person to refuse to allow the evidence to be adduced or the question to be asked, that is to say, if he is satisfied that, on the assumption that if the evidence or question was not allowed the jury might reasonably be satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied.
(3) If, notwithstanding that the judge has given leave in accordance with this section for any evidence to be adduced or question to be asked in cross-examination, it appears to the judge that any question asked or proposed to be asked (whether in the course of so adducing evidence or of cross-examination) in reliance on the leave which he has given is not or may not be such as may properly be asked in accordance with that leave, he may direct that the question shall not be asked or, if asked, that it shall not be answered except in accordance with his leave given on a fresh application under this section.
(4) Nothing in this section authorises evidence to be adduced or a question to be asked which cannot be adduced or asked apart from this section.
Annotations:
Amendments:
F4
Substituted (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 13, commenced as per s. 22(3).
Modifications (not altering text):
C2
Term “jury” construed (7.03.2007) by Criminal Law (Sexual Offences) (Amendment) Act 2007 (6/2007), s. 3(2), commenced on enactment.
Application of certain enactments.
3. — …
(2) References in section 3 of the Act of 1981 to jury shall, in the case of summary proceedings for an offence under section 6 (inserted by section 2), be construed as references to court.
…
F5[
Proceedings under Part IA of the Criminal Procedure Act, 1967.
4.—(1) In a proceeding under Part IA of the Criminal Procedure Act, 1967, relating to—
(a) the dismissal of a charge of a sexual assault offence, or
(b) the taking of a person’s evidence by way of deposition in the case of a sexual assault offence.
then, except with leave of the judge conducting the proceeding, evidence shall not be adduced and a question shall not be asked which, if the proceeding were a trial such as is mentioned in section 3(1), could not be adduced or asked without leave in pursuance of that section.
(2) On an application for leave the judge shall—
(a) refuse leave unless he is satisfied that leave in respect of the evidence or question would be likely to be given at such a trial, or
(b) give leave if he is so satisfied.
(3) Section 3(3) shall apply to an application under subsection (2) of this section.]
Annotations:
Amendments:
F5
Substituted (1.10.2001) by Criminal Justice Act 1999 (10/1999), s. 15, S.I. No. 193 of 2001.
Editorial Notes:
E2
Previous affecting provision: subs. (1) amended (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 17(1), commenced as per s. 22(3); substituted as per F-note above.
F6[
Legal representation for complainants.
4A.—(1) Where an application under section 3 or 4 is made by or on behalf of an accused person who is for the time being charged with an offence to which this section applies, the complainant shall be entitled to be heard in relation to the application and, for this purpose, to be legally represented during the hearing of the application.
(2) Notice of intention to make an application under section 3 or 4 shall be given to the prosecution by or on behalf of the accused person before, or as soon as practicable after, the commencement of the trial for the offence concerned or, as the case may be, the commencement of the proceeding concerned referred to in section 4(1).
(3) The prosecution shall, as soon as practicable after the receipt by it of such a notice, notify the complainant of his or her entitlement to be heard in relation to the said application and to be legally represented, for that purpose, during the course of the application.
(4) The judge shall not hear the said application without first being satisfied that subsections (2) and (3) have been complied with.
(5) If the period between the complainant’s being notified, under subsection (3), of his or her entitlements under this section and the making of the said application is not, in the judge’s opinion, such as to have afforded the complainant a reasonable opportunity to arrange legal representation of the kind referred to in this section, the judge shall postpone the hearing of the application (and, for this purpose, may adjourn the trial or proceeding concerned) for a period that the judge considers will afford the complainant such an opportunity.
(6) This section applies to a rape offence F7[, an offence under the Criminal Law (Sexual Offences) Act 2006], F8[an offence under section 6 of the Criminal Law (Sexual Offences) Act 1993] and any of the following, namely, aggravated sexual assault, attempted aggravated sexual assault, aiding, abetting, counselling and procuring aggravated sexual assault or attempted aggravated sexual assault, incitement to aggravated sexual assault and conspiring to commit any of the foregoing offences.]
Annotations:
Amendments:
F6
Inserted (27.09.2001) by Sex Offenders Act 2001, s. 34, S.I. No. 426 of 2001.
F7
Inserted (2.06.2006) by Criminal Law (Sexual Offences) Act 2006, s. 6(2), commenced on enactment.
F8
Inserted (7.03.2007) by Criminal Law (Sexual Offences) (Amendment) Act 2007, s. 3(1), commenced on enactment.
Trials of juveniles.
5. — Where a person charged with a F9[sexual assault offence] is tried for that offence summarily in pursuance of F10[section 75 (which provides for the summary trial in certain cases of persons under the age of 18 years who are charged with indictable offences) of the Children Act, 2001]—
(a) sections 2 (2) and 3 (2) (b) shall have effect as if for the references to the jury there were substituted references to the court,
(b) section 3 (2) (a) shall have effect as if the words “ in the absence of the jury ” were omitted, and
(c) section 3, subsections (3) and (4) of section 7 and subsections (2), (4) and (5) of section 8 shall have effect as if for the references to the judge there were substituted references to the court.
Annotations:
Amendments:
F9
Substituted (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 17(1), commenced as per s. 22(3).
F10
Substituted (1.05.2002) by Children Act 2001 (24/2001), s. 266, S.I. No. 151 of 2002.
Exclusion of the public.
F11[6.—(1) Subject to subsections (2), (3) and (4), in any proceedings for a rape offence or the offence of aggravated sexual assault or attempted aggravated sexual assault or of aiding, abetting, counselling or procuring the offence of aggravated sexual assault or attempted aggravated sexual assault or of incitement to the offence of aggravated sexual assault or conspiracy to commit any of the foregoing offences, the judge, the justice or the court, as the case may be, shall exclude from the court during the hearing all persons except officers of the court, persons directly concerned in the proceedings, bona fide representatives of the Press and such other persons (if any) as the judge, the justice or the court, as the case may be, may in his or its discretion permit to remain.
(2) Subject to subsection (3), during the hearing of an application under section 3 (including that section as applied by section 5) or under section 4 (2), the judge, the justice or the court, as the case may be, shall exclude from the court all persons except officers of the court and persons directly concerned in the proceedings.
F12[(3) Subsections (1) and (2) are without prejudice to the right of—
(a) a parent, relative or friend of the complainant or, where the accused is not of full age, of the accused, or
(b) a support worker chosen by the complainant,
to remain in court.]
(4) In any proceedings to which subsection (1) applies the verdict or decision and the sentence (if any) shall be announced in public.]
F13[(5) In this section, ‘support worker’ means a volunteer of, or an individual employed under a contract of service or under a contract for services by, an organisation which provides support to victims of crime.]
Annotations:
Amendments:
F11
Substituted and inserted (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 11, commenced as per s. 22(3).
F12
Substituted (27.11.2017) by Criminal Justice (Victims of Crime) Act 2017 (28/2017), s. 29(a), S.I. No. 530 of 2017.
F13
Inserted (27.11.2017) by Criminal Justice (Victims of Crime) Act 2017(28/2017), s. 29(b), S.I. No. 530 of 2017.
Anonymity of complainants.
7. — (1) Subject to subsection (8) (a), after a person is charged with a F14[sexual assault offence] no matter likely to lead members of the public to identify a F14[person] as the complainant in relation to that charge shall be published in a written publication available to the public or be broadcast except as authorised by a direction given in pursuance of this section.
(2) If, at any stage before the commencement of a trial of a person for a F14[sexual assault offence], he or another person against whom the complainant may be expected to give evidence at the trial applies to a judge of the High Court or Circuit Court for a direction in pursuance of this subsection and satisfies the judge—
(a) that the direction is required for the purpose of inducing persons to come forward who are likely to be needed as witnesses at the trial, and
(b) that the conduct of the applicant’s defence at the trial is likely to be adversely affected if the direction is not given,
the judge shall direct that subsection (1) shall not, by virtue of the charge alleging the offence aforesaid, apply to such matter relating to the complainant as is specified in the direction.
(3) If at a trial of a person for a F14[sexual assault offence] he or another person who is also charged at the trial applies to the judge for a direction in pursuance of this subsection and satisfies the judge—
(a) that the direction is required for the purpose of inducing persons to come forward who are likely to be needed as witnesses at the trial,
(b) that the conduct of the applicant’s defence at the trial is likely to be adversely affected if the direction is not given, and
(c) that there was good reason for his not having made an application under subsection (2) before the commencement of the trial,
the judge shall direct that subsection (1) shall not, by virtue of the charge alleging the offence aforesaid, apply to such matter relating to the complainant as is specified in the direction.
(4) If at a trial for a F14[sexual assault offence] the judge is satisfied that the effect of subsection (1) is to impose a substantial and unreasonable restriction on the reporting of proceedings at the trial and that it is in the public interest to remove or relax the restriction, he shall direct that that subsection shall not apply to such matter relating to the complainant as is specified in the direction; but a direction shall not be given in pursuance of this subsection by reason only of F14[the outcome of] the trial.
(5) If a person who has been convicted of an offence and given notice of appeal against the conviction, or, on conviction on indictment, notice of an application for leave so to appeal, applies to the appellate court for a direction in pursuance of this subsection and satisfies the court—
(a) that the direction is required for the purpose of obtaining evidence in support of the appeal, and
(b) that the applicant is likely to suffer injustice if the direction is not given,
the court shall direct that subsection (1) shall not apply to such matter relating to a specified complainant and F14[sexual assault offence] as is specified in the direction.
(6) If any matter is published or broadcast in contravention of subsection (1), the following persons, namely—
(a) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,
(b) in the case of any other publication, the person who publishes it, and
(c) in the case of a broadcast, any body corporate which transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
shall be guilty of an offence.
(7) In this section—
“ a broadcast ” means a broadcast by wireless telegraphy of sound or visual images intended for general reception, and cognate expressions shall be construed accordingly;
“ written publication ” includes a film, a sound track and any other record in permanent form but does not include an indictment or other document prepared for use in particular legal proceedings.
(8) Nothing in this section—
(a) prohibits the publication or broadcasting of matter consisting only of a report of legal proceedings other than proceedings at, or intended to lead to, or on an appeal arising out of, a trial at which the accused is charged with a F14[sexual assault offence], or
(b) affects any prohibition or restriction imposed by virtue of any other enactment upon a publication or broadcast.
(9) A direction in pursuance of this section does not affect the operation of subsection (1) at any time before the direction is given.
(10) If, after the commencement of a trial of a person for a F14[sexual assault offence], a new trial of the person for that offence is ordered, the commencement of any previous trial of that person for that offence shall be disregarded for the purposes of subsections (2) and (3).
Annotations:
Amendments:
F14
Substituted (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 17(2)(a)-(c), commenced as per s. 22(3).
Anonymity of accused.
8. — (1) After a person is charged with a rape offence no matter likely to lead members of the public to identify him as the person against whom the charge is made shall be published in a written publication available to the public or be broadcast except—
(a) as authorised by a direction given in pursuance of this section or by virtue of section 7 (8) (a) as applied by subsection (6) of this section, or
(b) after he has been convicted of the offence.
F15[(2) If a person charged with a rape offence applies in that behalf to a judge of the High Court before the commencement of the trial or to the judge at the trial, the judge shall direct that subsection (1) shall not apply to the person in relation to the charge:
Provided that, if it appears to the judge that, if the direction were given, the publication of any matter in pursuance of the direction might enable members of the public to identify a person as the complainant in relation to the charge, the judge shall not give the direction unless he is satisfied that a direction could properly be given in relation to that person in pursuance of section 7.]
(3) If, at any stage before the commencement of a trial of a person for a rape offence, another person who is to be charged with a rape offence at the trial applies to a judge of the High Court F16[…] for a direction in pursuance of this subsection and satisfies the judge—
(a) that the direction is required for the purpose of inducing persons to come forward who are likely to be needed as witnesses at the trial, and
(b) that the conduct of the applicant’s defence at the trial is likely to be adversely affected if the direction is not given,
the judge shall direct that subsection (1) shall not, by virtue of the charge alleging the offence aforesaid, apply to such matter relating to the first-mentioned person as is specified in the direction.
(4) If at a trial of a person for a rape offence another person who is also charged at the trial applies to the judge for a direction in pursuance of this subsection and satisfies the judge—
(a) that the direction is required for the purpose of inducing persons to come forward who are likely to be needed as witnesses at the trial,
(b) that the conduct of the applicant’s defence is likely to be adversely affected if the direction is not given, and
(c) that there was good reason for his not having made an application under subsection (3) before the commencement of the trial,
the judge shall direct that subsection (1) shall not, by virtue of the charge alleging the offence aforesaid, apply to such matter relating to the first-mentioned person as is specified in the direction.
(5) If at a trial at which a person is charged with a rape offence the judge is satisfied that the effect of subsection (1) is to impose a substantial and unreasonable restriction on the reporting of proceedings at the trial and that it is in the public interest to remove or relax the restriction in respect of that person, the judge shall direct that subsection (1) shall not, by virtue of the charge alleging the offence aforesaid, apply to such matter relating to that person as is specified in the direction.
(6) Subsections (6) to (9) of section 7 shall have effect for the purposes of this section as if for references to that section there were substituted references to this section.
(7) If, after the commencement of a trial of a person for a rape offence, a new trial of the person for that offence is ordered, the commencement of any previous trial of that person for that offence shall be disregarded for the purposes of subsections (2), (3) and (4).
F17[(8) If, at any time after a person is charged with a rape offence, the Director of Public Prosecutions applies in that behalf to a judge of the High Court, the judge, if he is satisfied that it is in the public interest to do so, shall direct that subsection (1) shall not apply to such matter relating to the person charged with the offence as is specified in the direction.]
Annotations:
Amendments:
F15
Substituted (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 14(a), commenced as per s. 22(3).
F16
Repealed (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 21 and sch. ref. no. 5, commenced as per s. 22(3).
F17
Inserted (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 14(b), commenced as per s. 22(3).
Trials by court-martial.
9. — (1) This Act applies to the trial of a F18[sexual assault offence] by court-martial with the necessary modifications.
(2) In particular—
(a) for the references to a judge in section 7 (2) or section 8 (3) and for the references to a justice of the District Court in section 8 (2) there shall be substituted references to the convening authority, and
F19[(aa) in section 8 (8) for the reference to the Director of Public Prosecutions there shall be substituted a reference to the convening authority and for the references to a judge of the High Court there shall be substituted references to a superior authority; and, for the purposes of this paragraph, each of the following shall be a superior authority:
(i) the Minister for Defence,
(ii) the Adjutant-General of the Defence Forces,
(iii) any general officer or flag officer (within the meaning, in each case, of the Defence Act, 1954 ) appointed by the Minister for Defence for the purpose, and]
(b) for references in section 3 and for other references in section 7 or 8 to a judge there shall be substituted references to the court-martial.
Annotations:
Amendments:
F18
Substituted (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 17(1), commenced as per s. 22(3).
F19
Inserted (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 15, commenced as per s. 22(3).
Punishment of indecent assault on female.
10. — F20[…]
Annotations:
Amendments:
F20
Repealed (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 21 and sch. ref. no. 5, commenced as per s. 22(3).
Penalty for publication of unauthorised matter.
11. — (1) A person guilty of an offence under section 7 (6) (including an offence under that section as applied by section 8 (6)) shall be liable on conviction on indictment to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding 3 years or to both such fine and such imprisonment.
(2) (a) Where an offence to which subsection (1) relates and which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and be liable to be proceeded against and punished accordingly.
(b) Where the affairs of a body corporate are managed by its members, paragraph (a) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(3) Where a person is charged with an offence to which subsection (1) relates it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or broadcast in question was of such matter as is mentioned in section 7 (1) or section 8 (1), as the case may be.
Annotations:
Editorial Notes:
E3
A fine of £10,000 converts to €12,697.38.
Summary jurisdiction.
12. — (1) A justice of the District Court shall have jurisdiction to try summarily F21[a sexual assault or an offence to which section 11 relates] if—
(i) the justice is of opinion that the facts proved or alleged against a defendant charged with such an offence constitute a minor offence fit to be tried summarily,
(ii) the Director of Public Prosecutions consents, and
(iii) the defendant (on being informed by the justice of his right to be tried by a jury) does not object to being tried summarily,
and, upon conviction under this subsection, the said defendant shall be liable to a fine not exceeding F21[£1,000] or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both such fine and such imprisonment.
(2) Section 13 of the Criminal Procedure Act, 1967 (which provides for the procedure where a person pleads guilty in the District Court to an indictable offence) shall apply in relation to an offence mentioned in subsection (1) as if, in lieu of the penalties specified in subsection (3) of the said section 13, there were specified therein the penalties provided for by subsection (1) of this section and the reference in subsection (2) (a) of the said section 13 to the penalties provided for in subsection (3) of that section shall be construed accordingly.
(3) F22[…]
Annotations:
Amendments:
F21
Substituted (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 16, commenced as per s. 22(3).
F22
Repealed (18.01.1991) by Criminal Law (Rape) (Amendment) Act 1990 (32/1990), s. 21 and sch. ref. no. 5, commenced as per s. 22(3).
Editorial Notes:
E4
A fine of £1,000 translates into a class C fine of up to €2,500 as provided (4.10.2011) by Fines Act 2010 (8./2010), ss. 3, 6(2) and table ref. no. 2, S.I. No. 662 of 2010.
Short title and commencement.
13. — (1) This Act may be cited as the Criminal Law (Rape) Act, 1981.
(2) This Act shall come into operation one month after the date of its passing.
(3) Section 3 (including that section as applied by sections 5 and 9 ) and section 4 shall not have effect in relation to a trial or preliminary examination which begins before the commencement of this Act and sections 7 and 8 shall not have effect in relation to a charge alleging a rape offence which is made before such commencement.
(4) Section 10 and, in so far as it relates to an offence under section 10, section 12 shall not have effect in relation to an offence committed before the commencement of this Act.
CRIMINAL LAW (RAPE) (AMENDMENT) ACT 1990
REVISED
Updated to 15 February 2022
AN ACT TO AMEND THE LAW RELATING TO RAPE AND CERTAIN OTHER SEXUAL OFFENCES AND FOR THAT PURPOSE TO AMEND THE CRIMINAL LAW (RAPE) ACT, 1981, AND CERTAIN OTHER ENACTMENTS. [18th December, 1990]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Interpretation.
1. — (1) In this Act—
“ aggravated sexual assault ” has the meaning assigned to it by section 3 ;
“ rape under section 4 ” has the meaning assigned to it by section 4 ;
“ the Principal Act ” means the Criminal Law (Rape) Act, 1981;
“ sexual assault ” has the meaning assigned to it by section 2 .
(2) (a) In this Act and in the Principal Act a reference to a section is a reference to a section of the Act in which the reference occurs unless it is indicated that reference to some other enactment is intended.
(b) In this Act and in the Principal Act a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.
(c) In this Act and in the Principal Act a reference to any enactment shall be construed as a reference to that enactment as amended or adapted by or under any subsequent enactment.
Capacity to commit offences of a sexual nature.
6. — Any rule of law by virtue of which a male person is treated by reason of his age as being physically incapable of committing an offence of a sexual nature is hereby abolished.
Corroboration of evidence in proceedings in relation to offences of a sexual nature.
7. — (1) Subject to any enactment relating to the corroboration of evidence in criminal proceedings, where at the trial on indictment of a person charged with an offence of a sexual nature evidence is given by the person in relation to whom the offence is alleged to have been committed and, by reason only of the nature of the charge, there would, but for this section, be a requirement that the jury be given a warning about the danger of convicting the person on the uncorroborated evidence of that other person, it shall be for the judge to decide in his discretion, having regard to all the evidence given, whether the jury should be given the warning; and accordingly any rule of law or practice by virtue of which there is such a requirement as aforesaid is hereby abolished.
(2) If a judge decides, in his discretion, to give such a warning as aforesaid, it shall not be necessary to use any particular form of words to do so.
Alternative verdicts.
8. — (1) A person indicted for rape may, if the evidence does not warrant a conviction for rape but warrants a conviction for rape under section 4 or aggravated sexual assault or sexual assault, be found guilty of rape under section 4 or of aggravated sexual assault or of sexual assault, as may be appropriate.
(2) A person indicted for rape may, if the evidence does not warrant a conviction for rape but warrants a conviction for an offence under F2[ section 2, 3 or 3A of the Criminal Law (Sexual Offences) Act 2006], or under section 3 of the Criminal Law Amendment Act, 1885, be found guilty of an offence under F1[the said section 3 or section 2, 3 or 3A of the Criminal Law (Sexual Offences) Act 2006] as may be appropriate.
(3) A person indicted for rape under section 4 may, if the evidence does not warrant a conviction for rape under section 4 but warrants a conviction for aggravated sexual assault or for sexual assault, be found guilty of aggravated sexual assault or of sexual assault, as may be appropriate.
(4) A person indicted for aggravated sexual assault may, if the evidence does not warrant a conviction for aggravated sexual assault but warrants a conviction for sexual assault, be found guilty of sexual assault.
(5) A person indicted for an offence made felony by F2[section 2 of the Criminal Law (Sexual Offences) Act 2006], may, if the evidence does not warrant a conviction for the felony or an attempt to commit the felony but warrants a conviction for an offence under F2[section 3 or 3A of the Criminal Law (Sexual Offences) Act 2006], or section 3 of the Criminal Law Amendment Act, 1885, or rape under section 4 or aggravated sexual assault or sexual assault, be found guilty of an offence under F2[the said section 3 or section 3 or 3A of the Criminal Law (Sexual Offences) Act 2006] or of rape under section 4 or of aggravated sexual assault or of sexual assault, as may be appropriate.
Annotations:
Amendments:
F2
Substituted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 19(a)(i), (ii), (b)(i), (ii), S.I. No. 112 of 2017, art. 2.
Editorial Notes:
E1
Previous affecting provision: subss. (2), (5) amended (2.06.2006) by Criminal Law (Sexual Offences) Act 2006 (15/2006), s. 7(1), commenced on enactment; substituted as per F-note above.
Consent
F3[9.—(1) A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.
(2) A person does not consent to a sexual act if—
(a) he or she permits the act to take place or submits to it because of the application of force to him or her or to some other person, or because of the threat of the application of force to him or her or to some other person, or because of a well-founded fear that force may be applied to him or her or to some other person,
(b) he or she is asleep or unconscious,
(c) he or she is incapable of consenting because of the effect of alcohol or some other drug,
(d) he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act,
(e) he or she is mistaken as to the nature and purpose of the act,
(f) he or she is mistaken as to the identity of any other person involved in the act,
(g) he or she is being unlawfully detained at the time at which the act takes place,
(h) the only expression or indication of consent or agreement to the act comes from somebody other than the person himself or herself.
(3) This section does not limit the circumstances in which it may be established that a person did not consent to a sexual act.
(4) Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place.
(5) Any failure or omission on the part of a person to offer resistance to an act does not of itself constitute consent to that act.
(6) In this section “sexual act” means
(a) an act consisting of—
(i) sexual intercourse, or
(ii) buggery,
(b) an act described in section 3(1) or 4(1) of this Act, or
(c) an act which if done without consent would constitute a sexual assault;
“sexual intercourse” shall be construed in accordance with section 1(2) of the Principal Act.]
Annotations:
Amendments:
F3
Substituted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 48, S.I. No. 112 of 2017, art. 2.
Trial of persons for certain offences by Central Criminal Court.
10. — A person indicted for a rape offence or the offence of aggravated sexual assault or attempted aggravated sexual assault or of aiding, abetting, counselling or procuring the offence of aggravated sexual assault or attempted aggravated sexual assault or of incitement to the offence of aggravated sexual assault or conspiracy to commit any of the foregoing offences shall be tried by the Central Criminal Court.
Exclusion of the public from hearings.
11. — The following section shall be substituted for section 6 of the Principal Act:
“6.— (1) Subject to subsections (2), (3) and (4), in any proceedings for a rape offence or the offence of aggravated sexual assault or attempted aggravated sexual assault or of aiding, abetting, counselling or procuring the offence of aggravated sexual assault or attempted aggravated sexual assault or of incitement to the offence of aggravated sexual assault or conspiracy to commit any of the foregoing offences, the judge, the justice or the court, as the case may be, shall exclude from the court during the hearing all persons except officers of the court, persons directly concerned in the proceedings, bona fide representatives of the Press and such other persons (if any) as the judge, the justice or the court, as the case may be, may in his or its discretion permit to remain.
(2) Subject to subsection (3), during the hearing of an application under section 3 (including that section as applied by section 5) or under section 4 (2), the judge, the justice or the court, as the case may be, shall exclude from the court all persons except officers of the court and persons directly concerned in the proceedings.
(3) Subsections (1) and (2) are without prejudice to the right of a parent, relative or friend of the complainant or, where the accused is not of full age, of the accused to remain in court.
(4) In any proceedings to which subsection (1) applies the verdict or decision and the sentence (if any) shall be announced in public.”.
Amendment of section 1 of Principal Act.
12. — Section 1 of the Principal Act is hereby amended by the substitution of the following subsection for subsection (1):
“(1) In this Act—
‘aggravated sexual assault’, ‘rape under section 4 ’ and ‘sexual assault’ have the meanings respectively assigned to them by the Criminal Law (Rape) (Amendment) Act, 1990;
‘ complainant ’ means a person in relation to whom a sexual assault offence is alleged to have been committed;
‘ a rape offence ’ means any of the following, namely, rape, attempted rape, burglary with intent to commit rape, aiding, abetting, counselling and procuring rape, attempted rape or burglary with intent to commit rape, and incitement to rape and, other than in sections 2 (2) and 8 of this Act, rape under section 4 , attempted rape under section 4 , aiding, abetting, counselling and procuring rape under section 4 or attempted rape under section 4 and incitement to rape under section 4 ;
‘ a sexual assault offence ’ means a rape offence and any of the following, namely, aggravated sexual assault, attempted aggravated sexual assault, sexual assault, attempted sexual assault, aiding, abetting, counselling and procuring aggravated sexual assault, attempted aggravated sexual assault, sexual assault or attempted sexual assault, incitement to aggravated sexual assault or sexual assault and conspiracy to commit any of the foregoing offences.”.
Amendment of section 3 of Principal Act.
13. — Section 3 of the Principal Act is hereby amended by the substitution of the following subsection for subsection (1):
“(1) If at a trial any person is for the time being charged with a sexual assault offence to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience (other than that to which the charge relates) of a complainant with any person; and in relation to a sexual assault tried summarily pursuant to section 12—
(a) subsection (2) (a) shall have effect as if the words ‘in the absence of the jury’ were omitted,
(b) subsection (2) (b) shall have effect as if for the references to the jury there were substituted references to the court, and
(c) this section (other than this paragraph) and subsections (3) and (4) of section 7 shall have effect as if for the references to the judge there were substituted references to the court.”.
Amendment of section 8 of Principal Act.
14. — Section 8 of the Principal Act is hereby amended—
(a) by the substitution of the following subsection for subsection (2):
“(2) If a person charged with a rape offence applies in that behalf to a judge of the High Court before the commencement of the trial or to the judge at the trial, the judge shall direct that subsection (1) shall not apply to the person in relation to the charge:
Provided that, if it appears to the judge that, if the direction were given, the publication of any matter in pursuance of the direction might enable members of the public to identify a person as the complainant in relation to the charge, the judge shall not give the direction unless he is satisfied that a direction could properly be given in relation to that person in pursuance of section 7.”,
and
(b) by the insertion of the following subsection after subsection (7):
“(8) If, at any time after a person is charged with a rape offence, the Director of Public Prosecutions applies in that behalf to a judge of the High Court, the judge, if he is satisfied that it is in the public interest to do so, shall direct that subsection (1) shall not apply to such matter relating to the person charged with the offence as is specified in the direction.”.
Amendment of section 9 of Principal Act.
15. — Section 9 (2) of the Principal Act is hereby amended by the insertion after paragraph (a) of the following paragraph:
“(aa) in section 8 (8) for the reference to the Director of Public Prosecutions there shall be substituted a reference to the convening authority and for the references to a judge of the High Court there shall be substituted references to a superior authority; and, for the purposes of this paragraph, each of the following shall be a superior authority:
(i) the Minister for Defence,
(ii) the Adjutant-General of the Defence Forces,
(iii) any general officer or flag officer (within the meaning, in each case, of the Defence Act, 1954) appointed by the Minister for Defence for the purpose, and”.
Amendment of section 12 of Principal Act.
16. — Section 12 (1) of the Principal Act is hereby amended by—
(a) the substitution of “a sexual assault or an offence to which section 11 relates” for “an offence to which section 10 or 11 relates”, and
(b) the substitution of “ £1,000” for “ £500”.
Miscellaneous amendments of Principal Act.
17. — (1) Sections 4 (1), 5 and 9 (1) of the Principal Act are hereby amended by the substitution of “sexual assault offence” for “rape offence”.
(2) Section 7 of the Principal Act is hereby amended by—
(a) the substitution of “person” for “woman” in subsection (1), and
(b) the substitution of “the outcome of” for “an acquittal of the accused person at” in subsection (4), and
(c) the substitution of “sexual assault offence” for “rape offence” in subsections (1), (2), (3), (4), (5), (8) (a) and (10).
Amendment of section 18 of Criminal Law Amendment Act, 1935.
18. — Section 18 of the Criminal Law Amendment Act, 1935, is hereby amended by the substitution of “ £500” for “two pounds” and “6 months or to both” for “one month”.
Amendment of Defence Act, 1954.
19. — The Defence Act, 1954, is hereby amended by—
(a) the insertion in F4[section 169 (3) (b)], after “rape”, of “, rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990) or aggravated sexual assault (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990)”, and
(b) the substitution in section 192 (3) of “, rape, rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990) or aggravated sexual assault (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990)” for “or rape”.
Annotations:
Amendments:
F4
Substituted (22.07.1997) by Criminal Law Act 1997 (14/1997), s. 13 and sch. 1 para. 9, commenced as per s. 1.
Amendment of Criminal Procedure Act, 1967.
20. — (a) Paragraph (a) of subsection (2) of section 13 of the Criminal Procedure Act, 1967, shall not apply in relation to rape, rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990) or aggravated sexual assault (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990).
(b) Notwithstanding paragraph (a), the offences referred to therein shall be deemed, for the purposes of paragraph (b) of the said subsection (2), to be offences to which the said section 13 applies.
Repeals.
21. — The enactments specified in column (3) of the Schedule to this Act are hereby repealed to the extent specified in column (4) of that Schedule.
Short title, collective citation, construction, commencement and transitional provision.
22. — (1) This Act may be cited as the Criminal Law (Rape) (Amendment) Act, 1990.
(2) The Criminal Law (Rape) Act, 1981, and this Act may be cited together as the Criminal Law (Rape) Acts, 1981 and 1990, and shall be construed together as one.
(3) This Act shall come into operation one month after the date of its passing.
(4) (a) Sections 2, 3, 4, 5, 6, 8, 12, 16, 19 and 21 (insofar as it relates to reference numbers 3 and 4 in the Schedule to this Act) shall not have effect in relation to an offence committed before the commencement of this Act.
(b) Sections 7, 11, 13, 15 and 17 (1) shall not have effect in relation to a trial or preliminary examination that begins before such commencement.
(c) (i) Subject to subparagraph (ii), section 10 shall not have effect in relation to a case in which, before such commencement, a person has been sent forward for trial to the Circuit Court.
(ii) In a case to which subparagraph (i) applies, an application by a person charged or the Director of Public Prosecutions, made before the commencement of the trial concerned, to a judge of the Circuit Court sitting in the circuit where it is to take place for its transfer to the Central Criminal Court shall be granted.
(d) Section 20 shall not have effect in relation to a charge that is made before such commencement.
SCHEDULE
Enactments Repealed
Section 21 .
Reference Number
Session and Chapter or Number and Year
Short Title
Extent of Repeal
(1)
(2)
(3)
(4)
1
24 & 25 Vic., c. 100
Offences against the Person Act, 1861
In section 62, the words “, or of any indecent assault upon any male person”.
2
48 & 49 Vic., c. 69
Criminal Law Amendment Act, 1885
Section 9.
3
1935, No. 6
Criminal Law Amendment Act, 1935
Section 3.
4
1951, No. 2
Criminal Justice Act, 1951
In the First Schedule, the matter at reference number 6.
5
1981, No. 10
Criminal Law (Rape) Act, 1981
In section 1 (3), the words “but this does not affect any rule of law by virtue of which a male person is treated by reason of his age as being incapable of committing an offence of any particular kind”;
In section 2 (1) (a), the word “unlawful”;
In section 8 (3), the words “or the Circuit Court”;
Section 10;
Section 12 (3).
SEXUAL OFFENCES (JURISDICTION) ACT 1996
REVISED
Updated to 1 January 2024
AN ACT TO EXTEND THE CRIMINAL LAW OF THE STATE TO SEXUAL ACTS INVOLVING CHILDREN DONE OUTSIDE THE STATE BY CITIZENS OF THE STATE OR BY PERSONS ORDINARILY RESIDENT IN THE STATE AND TO PROVIDE FOR RELATED MATTERS. [19th December, 1996]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Interpretation.
1. — (1) In this Act “ a child ” means a person under the age of F1[18 years].
(2) A reference in this Act to any enactment shall be construed as a reference to that enactment as amended, adapted or extended, whether before or after the passing of this Act, by or under any subsequent enactment.
Annotations:
Amendments:
F1
Substituted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 41(a), S.I. No. 112 of 2017.
Sexual offences committed outside State.
2. — (1) Where a person, being a citizen of the State or being ordinarily resident in the State, does an act, in a place other than the State (“the place”), against or involving a child which—
(a) constitutes an offence under the law of the place, and
(b) if done within the State, would constitute an offence under, or referred to in, an enactment specified in the Schedule to this Act,
he or she shall be guilty of the second-mentioned offence.
(2) Where a person, being a citizen of the State or being ordinarily resident in the State, attempts to commit an offence which is an offence by virtue of subsection (1) of this section (“the principal offence”), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a penalty not greater than the penalty to which he or she would have been liable if he or she had been convicted of the principal offence.
(3) Where a person aids, abets, counsels or procures, in the State, the commission of an offence, which is an offence by virtue of subsection (1) of this section, he or she shall be guilty of that offence.
(4) Where a person, being a citizen of the State or being ordinarily resident in the State, aids, abets, counsels or procures, outside the State, the commission of an offence, which is an offence by virtue of subsection (1) of this section, he or she shall be guilty of that offence.
(5) Where a person conspires with, or incites, inside the State, another person to commit an offence, which is an offence by virtue of subsection (1) of this section (“the principal offence”), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a penalty not exceeding the penalty to which he or she would be liable if he or she were convicted of the principal offence.
(6) Where a person, being a citizen of the State or being ordinarily resident in the State, conspires with, or incites, outside the State, another person to commit an offence, which is an offence by virtue of subsection (1) of this section (“the principal offence”), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a penalty not exceeding the penalty to which he or she would be liable if he or she were convicted of the principal offence.
(7) For the purposes of proceedings for an offence to which this section relates, a person shall be deemed to be ordinarily resident in the State if he or she has had his or her principal residence within the State for the period of 12 months immediately preceding the alleged commission of the said offence.
Evidence as to a person’s age.
8. — In proceedings for an offence, which is an offence under or by virtue of section 2 or 3 of this Act, the court may have regard to a person’s physical appearance or attributes for the purpose of determining whether that person is under the age of F2[18 years] or was, at the time of the alleged commission of the offence to which the proceedings relate, under the age of F2[18 years].
Annotations:
Amendments:
F2
Substituted (27.03.2021) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 41(b), S.I. No. 112 of 2017.
Double jeopardy.
9. — Where a person has been acquitted or convicted, in a place other than the State, of an offence, that person shall not be proceeded against for an offence under this Act or an offence which is an offence by virtue of this Act, in respect of the act constituting the first-mentioned offence.
Power of search.
10. — (1) Where, on the application of a member of the Garda Síochána, a judge of the District Court is satisfied that there are reasonable grounds for believing that evidence of or relating to an offence under this Act is to be found on premises specified in the application, the judge may issue a warrant for the search of those premises.
(2) A warrant issued under this section shall authorise a named member of the Garda Síochána, alone or accompanied by any other member of the Garda Síochána, to enter, within one week from the date of the warrant, and if necessary by the use of force, the premises named in the warrant, and to search it and seize anything found thereon appearing to be evidence relating to an offence under this Act.
(3) A member of the Garda Síochána acting in accordance with a warrant issued under this section may require any person found on premises to which the warrant relates to furnish the said member with his or her name and address.
(4) Any person who obstructs or attempts to obstruct any member of the Garda Síochána acting in accordance with a warrant issued under this section or who fails or refuses to comply with a requirement under this section shall be guilty of an offence, and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both.
(5) A member of the Garda Síochána may arrest without warrant any person whom he or she suspects of committing or having committed an offence under this section.
Annotations:
Editorial Notes:
E2
A fine of £1,500 converted (1.01.1999) to €1,904.61. This translates into a class B fine, not greater than €4,000, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 5(2) and table ref. no. 2, S.I. No. 662 of 2010.
Short title.
11. —This Act may be cited as the Sexual Offences (Jurisdiction) Act, 1996.
SCHEDULE
Section 2 .
F3[1. Criminal Law (Sexual Offences) Act 2006.]
F5[2. Section 6 (inserted by section 2 of the Criminal Law (Sexual Offences) (Amendment) Act 2007) of the Criminal Law (Sexual Offences) Act 1993.]
3. Section 2 of the Criminal Law (Rape) Act, 1981.
4. Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990.
5. Section 3 of the Criminal Law (Rape) (Amendment) Act, 1990.
6. Section 4 of the Criminal Law (Rape) (Amendment) Act, 1990.
7. F4[…]
8. F4[…]
9. Section 5 of the Criminal Law (Sexual Offences) Act, 1993.
F6[10. Section 3 of the Child Trafficking and Pornography Act, 1998.]
F6[11. Section 4 of the Child Trafficking and Pornography Act, 1998.]
F7[12. Section 5 of the Child Trafficking and Pornography Act 1998.]
F7[13. Section 5A(4) of the Child Trafficking and Pornography Act 1998.]
F7[14. Section 6 of the Child Trafficking and Pornography Act 1998.]
F7[15. Section 5 of the Criminal Law (Sexual Offences) Act 2017.]
F7[16. Section 6 of the Criminal Law (Sexual Offences) Act 2017.]
F7[17. Section 7 of the Criminal Law (Sexual Offences) Act 2017.]
F7[18. Section 8 of the Criminal Law (Sexual Offences) Act 2017.]
F7[19. Section 21 of the Criminal Law (Sexual Offences) Act 2017.]
F7[20. Section 22 of the Criminal Law (Sexual Offences) Act 2017.]
Annotations:
Amendments:
F3
Substituted (2.06.2006) by Criminal Law (Sexual Offences) Act 2006 (15/2006), s. 7(3)(a), commenced on enactment.
F4
Deleted (2.06.2006) by Criminal Law (Sexual Offences) Act 2006 (15/2006), s. 7(3)(b), commenced on enactment.
F5
Inserted (7.03.2007) by Criminal Law (Sexual Offences) (Amendment) Act 2007 (6/2007), s. 4(2), commenced on enactment.
F6
Inserted (29.07.1998) by Child Trafficking and Pornography Act 1998 (22/1998), s. 11, commenced as per s. 1(2).
F7
Inserted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 41(c), S.I. No. 112 of 2017.
Editorial Notes:
E3
Previous affecting provision: para. 2 deleted (2.06.2006) by Criminal Law (Sexual Offences) Act 2006 (15/2006), s. 7(3)(b), commenced on enactment.
Acts Referred to
Criminal Law (Rape) Act, 1981
1981, No. 10
Criminal Law (Rape) (Amendment) Act, 1990
1990, No. 32
Criminal Law (Sexual Offences) Act, 1993
1993, No. 20
Child Trafficking and Pornography Act, 1998
1998, No. 22
Criminal Law (Sexual Offences) Act, 2006
2006, No. 15
Criminal Law (Sexual Offences) Act, 2017
2017, No. 2
CRIMINAL LAW (SEXUAL OFFENCES) ACT 2017
REVISED
Updated to 3 May 2023
An Act to give effect to Directive No. 2011/93/EU of the European Parliament and of the Council of 13 December 20111 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.
[22nd February, 2017]
Be it enacted by the Oireachtas as follows:
PART 1
Preliminary and General
Short title and commencement
1. (1) This Act may be cited as the Criminal Law (Sexual Offences) Act 2017.
(2) This Act shall come into operation on such day or days as the Minister for Justice and Equality may appoint by order or orders whether generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
Annotations
Editorial Notes:
E1
Power pursuant to section exercised (2.09.2019) by Criminal Law (Sexual Offences) Act 2017 (Part 5) (Commencement) Order 2019 (S.I. No. 434 of 2019). Part 5 contains ss. 28-32.
2. The 2nd day of September 2019 is appointed as the day on which Part 5 of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017) shall come into operation.
E2
Power pursuant to subs. (2) exercised (30.05.2018) by Criminal Law (Sexual Offences) Act 2017 (Commencement) (No. 2) Order 2018 (S.I. No. 172 of 2018).
2. The 30th day of May 2018 is appointed as the day on which the following provisions of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017) shall come into operation:
(a) section 33;
(b) section 34;
(c) section 35;
(d) section 36 insofar as it inserts section 14C in the Criminal Evidence Act 1992 (no. 12 of 1992);
(e) section 37;
(f) section 39;
(g) section 40.
E3
Power pursuant to subs. (2) exercised (26.02.2018) by Criminal Law (Sexual Offences) Act 2017 (Commencement) Order 2018 (S.I. No. 45 of 2018).
2. The 26th day of February 2018 is appointed as the day on which sections 46, 47, and 51(b) of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017) shall come into operation.
E4
Power pursuant to subs. (2) exercised (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (Commencement) Order 2017 (S.I. No. 112 of 2017).
2. The 27th day of March 2017 is appointed as the day on which Parts 1, 2, 3, 4, 7 and 8 (other than sections 46, 47, 51(b) and 52) of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017) shall come into operation.
Interpretation
2. In this Act—
“Act of 1908” means the Punishment of Incest Act 1908;
“Act of 1981” means the Criminal Law (Rape) Act 1981;
“Act of 1990” means the Criminal Law (Rape) (Amendment) Act 1990;
“Act of 1992” means the Criminal Evidence Act 1992;
“Act of 1993” means the Criminal Law (Sexual Offences) Act 1993;
“Act of 1995” means the Criminal Law (Incest Proceedings) Act 1995;
“Act of 1998” means the Child Trafficking and Pornography Act 1998;
“Act of 2001” means the Sex Offenders Act 2001;
“Act of 2006” means the Criminal Law (Sexual Offences) Act 2006;
“Act of 2008” means the Criminal Law (Human Trafficking) Act 2008;
“image” means any photographic, film or video representation or any other form of visual representation, and any accompanying sound or any documents;
“sexual activity” means any activity where a reasonable person would consider that—
(a) whatever its circumstances or the purpose of any person in relation to it, the activity is because of its nature sexual, or
(b) because of its nature the activity may be sexual and because of its circumstances or the purposes of any person in relation to it (or both) the activity is sexual;
“sexual exploitation” means, in relation to a child—
(a) inviting, inducing or coercing the child to engage in prostitution or the production of child pornography,
(b) the prostitution of the child or the use of the child for the production of child pornography,
(c) the commission of an offence specified in the Schedule to the Act of 2001 against the child, causing another person to commit such an offence against the child, or inviting, inducing or coercing the child to commit such an offence against another person,
(d) inducing or coercing the child to engage or participate in any sexual, indecent or obscene act,
(e) inviting the child to engage or participate in any sexual, indecent or obscene act which, if done, would involve the commission of an offence against the child, or
(f) inviting, inducing or coercing the child to observe any sexual, indecent or obscene act, for the purpose of corrupting or depraving the child.
PART 6
Criminal Evidence
Amendment of section 1 of Act of 1992
33. Section 1(4) of the Act of 1992 is amended in paragraph (a) by the substitution of “(except sections 14A, 15, 16(1)(b), 18 and 19A)” for “(except sections 15, 16(1)(b) and 18)”.
Amendment of section 2 of Act of 1992
34. Section 2(1) of the Act of 1992 is amended by the substitution of the following for the definition of “sexual offence”:
“ ‘sexual offence’ means rape, sexual assault (within the meaning of section 2 of the Criminal Law (Rape) (Amendment) Act 1990), aggravated sexual assault (within the meaning of section 3 of that Act), rape under section 4 of that Act or an offence under—
(a) section 3 or 6 of the Criminal Law Amendment Act 1885,
(b) section 5 of the Criminal Law (Sexual Offences) Act 1993,
(c) section 6 of the Criminal Law (Sexual Offences) Act 1993,
(d) section 1 or 2 of the Punishment of Incest Act 1908,
(e) section 4A or 5A of the Child Trafficking and Pornography Act 1998,
(f) section 249 of the Children Act 2001,
(g) the Criminal Law (Sexual Offences) Act 2006, or
(h) section 3, 4, 5, 6, 7 or 8 of the Criminal Law (Sexual Offences) Act 2017,
excluding an attempt to commit any such offence;”.
Amendment of section 13 of Act of 1992
35. Section 13 of the Act of 1992 is amended by the deletion of subsection (3).
Amendment of Act of 1992
36. The Act of 1992 is amended by the insertion of the following sections after section 14:
F1[…]
Protection against cross-examination by accused
14C. (1) Where—
(a) a person is accused of an offence to which this Part applies, and
(b) a person under the age of 18 years is to give evidence,
the court shall direct that the accused may not personally cross-examine the witness unless the court is of the opinion that the interests of justice require the accused to conduct the cross-examination personally.
(2) Where—
(a) a person is accused of a sexual offence, and
(b) a person who has attained the age of 18 years (being a person in respect of whom a sexual offence is alleged to have been committed) is to give evidence,
the court may direct that the accused may not personally cross- examine the witness unless the court is of the opinion that the interests of justice require the accused to conduct the cross-examination personally.
(3) Where an accused person is prevented from cross-examining a witness by virtue of subsection (1) or (2), the court shall—
(a) invite the accused person to arrange for a legal representative to act for him or her for the purpose of cross-examining the witness, and
(b) require the accused person to notify the court, by the end of such period as it may specify, as to whether a legal representative is to act for the accused for that purpose.
(4) If by the end of the period referred to in subsection (3)(b), the accused has notified the court that no legal representative is to act for him or her for the purpose of cross-examining the witness or no notification has been received by the court and it appears to the court that no legal representative is to so act, the court shall consider whether it is necessary, in the interests of justice, for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused person.
(5) If the court decides it is necessary, in the interests of justice, for the witness to be so cross-examined, the court shall appoint a legal representative (chosen by the court) to cross-examine the witness on behalf of the accused.
(6) Where, in a jury trial, an accused person is prevented from cross-examining a witness in person by virtue of this section, the court shall give the jury such warning (if any) as it considers necessary to ensure that the accused person is not prejudiced—
(a) by any inferences that might be drawn from the fact that the accused has been prevented from cross-examining the witness in person, or
(b) where the witness has been cross-examined by a legal representative appointed under subsection (5), by the fact that the cross-examination was carried out by such a legal representative and not by a person acting as the legal representative of the accused.
(7) In addition to the meaning assigned to that expression by section 27 of the Civil Legal Aid Act 1995, ‘legal aid’ in that Act means representation by a solicitor or barrister, engaged by the Legal Aid Board under section 11 of that Act on behalf of the accused in relation to the cross-examination of a witness under subsection (3).”.
Annotations
Amendments:
F1
Repealed (27.11.2017) by Criminal Justice (Victims of Crimes) Act 2017 (28/2017), s. 6(a), S.I. No. 530 of 2017.
Amendment of section 16 of Act of 1992
37. Section 16 of the Act of 1992 is amended in subsection (1) by the substitution of the following paragraph for paragraph (b):
“(b) a video recording of any statement made during an interview with a member of the Garda Síochána or any other person who is competent for the purpose—
(i) by a person under 14 years of age (being a person in respect of whom such an offence is alleged to have been committed), or
(ii) by a person under 18 years of age (being a person other than the accused) in relation to—
(I) a sexual offence, or
(II) an offence under section 3(1), (2) or (3) of the Child Trafficking and Pornography Act 1998, or
(III) an offence under section 2, 4 or 7 of the Criminal Law (Human Trafficking) Act 2008,”.
Amendment of section 17 of Act of 1992
38.— F2[…]
Annotations
Amendments:
F2
Repealed (27.11.2017) by Criminal Justice (Victims of Crime) Act 2017 (28/2017), s. 6(b), S.I. No. 530 of 2017.
Disclosure of third party records in certain trials
39. The Act of 1992 is amended by the insertion of the following section after section 19:
“19A. (1) In this section—
‘Act of 1995’ means the Civil Legal Aid Act 1995;
‘competent person’ means a person who has undertaken training or study or has experience relevant to the process of counselling;
‘counselling’ means listening to and giving verbal or other support or encouragement to a person, or advising or providing therapy or other treatment to a person (whether or not for remuneration);
‘counselling record’ means any record, or part of a record, made by any means, by a competent person in connection with the provision of counselling to a person in respect of whom a sexual offence is alleged to have been committed (‘the complainant’), which the prosecutor has had sight of, or about which the prosecutor has knowledge, and in relation to which there is a reasonable expectation of privacy;
‘court’ means the Circuit Criminal Court or the Central Criminal Court;
‘sexual offence’ means an offence referred to in the Schedule to the Sex Offenders Act 2001.
(2) In criminal proceedings for a sexual offence the prosecutor shall notify the accused of the existence of any counselling record but shall not disclose the content of the record without the leave of the court given in accordance with this section.
(3) An accused who seeks disclosure of the content of a counselling record may make an application (‘disclosure application’), in writing, to the court—
(a) providing particulars identifying the record sought, and
(b) stating the reasons grounding the application, including grounds relied on to establish that the record is likely to be relevant to an issue at trial.
(4) An accused who intends to make a disclosure application shall, not later than the beginning of such period as may be prescribed in rules of court, notify the person who has possession or control of the counselling record, the complainant, the prosecutor and any other person to whom the accused believes the counselling record relates of his or her intention to make the application.
(5) Where no disclosure application has been made by the accused in respect of a counselling record under subsection (3) and the prosecutor believes that it is in the interests of justice that the record should be disclosed, the prosecutor may make a disclosure application in writing to the court.
(6) Where the prosecutor intends to make a disclosure application under subsection (5), he or she shall, not later than the beginning of such period as may be prescribed in rules of court, notify the person who has possession or control of the relevant record, the complainant, the accused and any other person to whom the prosecutor believes the counselling record relates of his or her intention to make the application.
(7) The court may, at any time, order that a disclosure application be notified to any person to whom it believes the counselling record may relate.
(8) The court shall hold a hearing to determine whether the content of the counselling record should be disclosed to the accused and the person who has possession or control of the counselling record shall produce the counselling record at the hearing for examination by the court.
(9) The person who has possession or control of the counselling record, the complainant and any other person to whom the counselling records relates shall be entitled to appear and be heard at the hearing referred to in subsection (8).
(10) In determining, at the hearing referred to in subsection (8), whether the content of the counselling record should be disclosed to the accused under subsection (11), the court shall take the following factors, in particular, into account:
(a) the extent to which the record is necessary for the accused to defend the charges against him;
(b) the probative value of the record;
(c) the reasonable expectation of privacy with respect to the record;
(d) the potential prejudice to the right to privacy of any person to whom the record relates;
(e) the public interest in encouraging the reporting of sexual offences;
(f) the public interest in encouraging complainants of sexual offences to seek counselling;
(g) the effect of the determination on the integrity of the trial process;
(h) the likelihood that disclosing, or requiring the disclosure of, the record will cause harm to the complainant including the nature and extent of that harm.
(11) (a) Subject to paragraph (b) and subsection (12), after the hearing referred to in subsection (8), the court may order disclosure of the content of the counselling record to the accused and the prosecutor where it is in the interests of justice to do so.
(b) The court shall order disclosure of the content of the counselling record to the accused where there would be a real risk of an unfair trial in the absence of such disclosure.
(12) (a) Where an order is made pursuant to subsection (11), in the interests of justice and to protect the right to privacy of any person to whom the counselling record relates, the court may impose any condition it considers necessary on the disclosure of the record.
(b) Without prejudice to the generality of paragraph (a), one or more of the following conditions may be included in an order made pursuant to subsection (11)—
(i) that a part of the content of the counselling record be redacted,
(ii) that a copy of the counselling record and not the original be disclosed,
(iii) that the accused and any legal representative for the accused not disclose the content of the counselling record to any person without leave of the court,
(iv) that the counselling record be viewed only at the offices of the court,
(v) that no copies, or only a limited number of copies, of the counselling record, be made,
(vi) that information concerning the address, telephone number or place of employment of any person named in the counselling record be redacted from the record,
(vii) that the counselling record be returned to the person who owns or controls the said record,
(viii) that the counselling record is used solely for the purposes of the criminal proceedings for which the record has been disclosed.
(13) The court shall provide reasons for ordering, or refusing to order, disclosure of the content of a counselling record pursuant to subsection (12).
(14) (a) Subject to paragraph (b), a disclosure application shall be made before the commencement of the trial of the accused.
(b) Where, upon application by the accused, the court considers that the interests of justice require the making of a disclosure application after the commencement of the trial, the court may direct that such an application may be made.
(15) For the purposes of a hearing pursuant to subsection (8), all persons, other than officers of the court, persons directly concerned in the hearing and such other persons (if any) as the court may determine, shall be excluded from the court during the hearing.
(16) In addition to the meaning assigned to that expression by section 27 of the Act of 1995, ‘legal aid’ in that Act means representation by a solicitor or barrister, engaged by the Legal Aid Board under section 11 of that Act, on behalf of a complainant or witness in relation to a disclosure application that concerns the complainant or witness.
(17) This section does not apply where a complainant or witness has expressly waived his or her right to non-disclosure of a counselling record without leave of the court.”.
Amendment of section 28 of Civil Legal Aid Act 1995
40. Section 28 of the Civil Legal Aid Act 1995 is amended by the insertion of the following subsections after subsection (5A):
“(5B) Notwithstanding any other provision of this Act, where an accused person is prevented from conducting a cross-examination referred to in section 14C of the Criminal Evidence Act 1992, the Board shall grant a legal aid certificate to the accused for the purpose of his or her being represented in relation to such a cross-examination.
(5C) Notwithstanding any other provision of this Act, the Board shall grant a legal aid certificate to a complainant or witness for the purpose of his or her being represented in relation to an application referred to in subsection (3) of section 19A of the Criminal Evidence Act 1992, that concerns him or her.”.
PART 7
Jurisdiction
Amendment of Sexual Offences (Jurisdiction) Act 1996
41. The Sexual Offences (Jurisdiction) Act 1996 is amended—
(a) in section 1, by the substitution of “18 years” for “17 years”,
(b) in section 8, by the substitution of “18 years” for “17 years” in each place that it occurs, and
(c) in the Schedule, in paragraph 1, by the insertion of the following:
“(12) Section 5 of the Child Trafficking and Pornography Act 1998.
(13) Section 5A(4) of the Child Trafficking and Pornography Act 1998.
(14) Section 6 of the Child Trafficking and Pornography Act 1998.
(15) Section 5 of the Criminal Law (Sexual Offences) Act 2017.
(16) Section 6 of the Criminal Law (Sexual Offences) Act 2017.
(17) Section 7 of the Criminal Law (Sexual Offences) Act 2017.
(18) Section 8 of the Criminal Law (Sexual Offences) Act 2017.
(19) Section 21 of the Criminal Law (Sexual Offences) Act 2017.
(20) Section 22 of the Criminal Law (Sexual Offences) Act 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.
Proceedings relating to offences committed outside State
43. Proceedings for an offence under section 42 may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.
Double jeopardy
44. (1) Where a person has been acquitted of an offence in a place other than the State, he or she shall not be proceeded against for an offence under this Act consisting of the alleged act or acts constituting the first-mentioned offence.
(2) Where a person has been convicted of an offence in a place other than the State, he or she shall not be proceeded against for an offence under this Act consisting of the act or acts constituting the first-mentioned offence.
Amendment of Act of 1990
48. The Act of 1990 is amended by the substitution of the following section for section 9:
“9. (1) A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.
(2) A person does not consent to a sexual act if—
(a) he or she permits the act to take place or submits to it because of the application of force to him or her or to some other person, or because of the threat of the application of force to him or her or to some other person, or because of a well-founded fear that force may be applied to him or her or to some other person,
(b) he or she is asleep or unconscious,
(c) he or she is incapable of consenting because of the effect of alcohol or some other drug,
(d) he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act,
(e) he or she is mistaken as to the nature and purpose of the act,
(f) he or she is mistaken as to the identity of any other person involved in the act,
(g) he or she is being unlawfully detained at the time at which the act takes place,
(h) the only expression or indication of consent or agreement to the act comes from somebody other than the person himself or herself.
(3) This section does not limit the circumstances in which it may be established that a person did not consent to a sexual act.
(4) Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place.
(5) Any failure or omission on the part of a person to offer resistance to an act does not of itself constitute consent to that act.
(6) In this section—
‘sexual act’ means—
(a) an act consisting of—
(i) sexual intercourse, or
(ii) buggery,
(b) an act described in section 3(1) or 4(1) of this Act, or
(c) an act which if done without consent would constitute a sexual assault;
‘sexual intercourse’ shall be construed in accordance with section 1(2) of the Principal Act.”.
Amendment of section 249 of Children Act 2001
49. Section 249 of the Children Act 2001 is amended by the deletion of the definition of “child”.
Amendment of Bail Act 1997
50. The Schedule to the Bail Act 1997 is amended by—
(a) the insertion of the following subparagraph after subparagraph (a) of paragraph 12A:
“(aa) section 4A (organising etc. child prostitution or production of child pornography);”,
(b) the insertion of the following subparagraph after subparagraph (b) of paragraph 12A:
“(ba) section 5A (participation of child in pornographic performance);”,
and
(c) the insertion of the following paragraph after paragraph 12B:
“12C. An offence under the following provisions of the Criminal Law (Sexual Offences) Act 2017:
(a) section 3 (obtaining, providing etc. a child for purpose of sexual exploitation);
(b) section 4 (invitation etc. to sexual touching);
(c) section 5 (sexual activity in presence of child);
(d) section 6 (causing child to watch sexual activity);
(e) section 7 (meeting child for purpose of sexual exploitation);
(f) section 8 (use of information and communication technology to facilitate sexual exploitation of child);
(g) section 21 (sexual act with protected person);
(h) section 22 (offence against relevant person by person in authority).”.
Amendment of Act of 2001
51. The Act of 2001 is amended—
(a) in section 29, by the insertion of the following subsection:
“(6) In addition to the conditions referred to in subsection (1)(b), a sentence involving post-release supervision imposed after the commencement of this subsection shall include a condition requiring the sex offender to attend all appointments with the probation officer whose supervision he or she is under and to comply with the lawful instructions of that officer.”,
(b) by the insertion of the following section after section 30:
“
Power of court to amend conditions or include new conditions
30A. (1) In any case where a court has imposed on a sex offender, for an offence committed after the commencement of this section, a sentence involving post-release supervision, the court may, on the application of a probation officer not more than one month before the date of the offender’s intended release from prison or any time during the supervision period, amend any condition for securing that supervision referred to in section 29(1)(b) or additional condition referred to under section 30 or include one or more further conditions pursuant to either of the aforesaid sections.
(2) In any case where a court has imposed on a sex offender, for an offence committed before the commencement of this section, a sentence involving post-release supervision, the court may, on the application of a probation officer not more than one month before the date of the offender’s intended release from prison or any time during the supervision period, amend any condition or include one or more further conditions pursuant to section 29(1)(b) where such conditions are necessary for securing that supervision.
(3) Subsection (2) shall apply in respect of post-release supervision orders extant at the time of the commencement of this section.
(4) Any condition referred to in subsection (1) or (2), whether an amended condition or a new condition, shall have the same effect as a condition included in a sentence involving post-release supervision.
(5) In this section “the date of the sex offender’s release from prison” means the date on which the sentence of imprisonment imposed on the sex offender expires, or as the case may be, his or her remission from the sentence begins.”,
(c) in the Schedule to the Act of 2001—
(i) in paragraph 16 by—
(I) the insertion of the following subparagraph after subparagraph (b):
“(ba) section 4A (child prostitution and child pornography);”,
(II) the insertion of the following subparagraph after subparagraph (c):
“(ca) section 5A (participation of child in pornographic performance);”,
and
(ii) the insertion of the following paragraph after paragraph 17:
“17A. An offence under the following provisions of the Criminal Law (Sexual Offences) Act 2017:
(a) section 3 (obtaining, providing etc. a child for purpose of sexual exploitation);
(b) section 4 (invitation etc. to sexual touching);
(c) section 5 (sexual activity in presence of child);
(d) section 6 (causing child to watch sexual activity);
(e) section 7 (meeting child for purpose of sexual exploitation);
(f) section 8 (use of information and communication technology to facilitate sexual exploitation of child);
(g) section 21 (sexual act with protected person);
(h) section 22 (offence against relevant person by person in authority).”.
Amendment of Criminal Procedure Act 2010
52. The Schedule to the Criminal Procedure Act 2010 is amended by the insertion of the following paragraph after paragraph 9:
“9A. An offence under section 2 of the Punishment of Incest Act 1908 (incest by females of or over seventeen).”.
Amendment of Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012
53. The Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 is amended—
(a) in Schedule 1—
(i) by the insertion of the following paragraph after paragraph 12:
“12A. An offence under section 3A of the Criminal Law (Sexual Offences) Act 2006 (offence by person in authority).”,
(ii) by the substitution of the following paragraph for paragraph 13:
“13. An offence under any of the following provisions of the Child Trafficking and Pornography Act 1998—
(a) section 3 (child trafficking and taking, etc., child for sexual exploitation),
(b) section 4 (allowing child to be used for child pornography),
(c) section 4A (organising etc. child prostitution or production of child pornography),
(d) section 5A (participation of child in pornographic performance).”,
and
(iii) by the insertion of the following paragraph after paragraph 20:
“21. An offence under any of the following provisions of the Criminal Law (Sexual Offences) Act 2017—
(a) section 3 (obtaining, providing etc. a child for purpose of sexual exploitation),
(b) section 4 (invitation etc. to sexual touching),
(c) section 5 (sexual activity in presence of child),
(d) section 6 (causing child to watch sexual activity),
(e) section 7 (meeting child for purpose of sexual exploitation),
(f) section 8 (use of information and communication technology to facilitate sexual exploitation of child).”,
and
(b) in Schedule 2, by the insertion of the following paragraph after paragraph 11:
“12. An offence under any of the following provisions of the Criminal Law (Sexual Offences) Act 2017—
(a) section 21 (sexual act with protected person),
(b) section 22 (offence against relevant person by person in authority).”.
Amendment of Taxi Regulation Act 2013
54. The Taxi Regulation Act 2013 is amended—
(a) in section 30, by the substitution of the following definition for the definition of “sexual offence”:
“ ‘sexual offence’ means an offence referred to in paragraphs 5 to 11A of Part 1, or paragraphs 4 to 7A of Part 2 of the Schedule;”;
(b) in the Schedule—
(i) in Part 1, by the insertion of the following paragraph after paragraph 11:
“11A. An offence under section 21 of the Criminal Law (Sexual Offences) Act 2017.”,
(ii) in Part 2—
(I) by the substitution of the following paragraph for paragraph 5:
“5. An offence under section 4, 4A, 5 or 5A of the Child Trafficking and Pornography Act 1998.”,
(II) by the substitution of the following paragraph for paragraph 7:
“7. An offence under section 3 or 3A of the Criminal Law (Sexual Offences) Act 2006.”,
and
(III) by the insertion of the following paragraph after paragraph 7:
“7A. An offence under section 3, 4, 5, 6, 7 or 8 of the Criminal Law (Sexual Offences) Act 2017.”.
Amendment of Children First Act 2015
55. The Children First Act 2015 is amended—
(a) in section 2, by the deletion of paragraphs (b) and (c) of the definition of “sexual abuse”,
(b) in Schedule 3—
(i) by the insertion of the following paragraph after paragraph 9:
“9A. An offence under section 3A of the Criminal Law (Sexual Offences) Act 2006 (offence by person in authority).”,
(ii) in paragraph 10, by the substitution of the following for subparagraph (b):
“(b) section 4 (allowing child to be used for child pornography);
(c) section 4A (organising etc. child prostitution or production of child pornography);
(d) section 5A (participation of child in pornographic performance).”,
and
(iii) by the insertion of the following paragraph:
“14. An offence under any of the following provisions of the Criminal Law (Sexual Offences) Act 2017:
(a) section 4 (invitation etc. to sexual touching);
(b) section 5 (sexual activity in presence of child);
(c) section 6 (causing child to watch sexual activity);
(d) section 8 (use of information and communication technology to facilitate sexual exploitation of child).”.
Amendment of Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016
56. Schedule 1 to the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 is amended—
(a) in Part 1, by the substitution of the following paragraph for paragraph 4:
“4. An offence referred to in—
(a) paragraph 8 of Part 2 (defilement of child under the age of 17 years), or
(b) paragraph 23, 24 or 25 of Part 2 in so far as it relates to an offence referred to in subparagraph (a),
committed prior to the commencement of section 17 of the Criminal Law (Sexual Offences) Act 2017 shall not be a sexual offence for the purposes of Part 2 of this Act if the person who is convicted of the offence was at the date of the commission of the offence, not more than 24 months older than the child with whom he or she engaged or attempted to engage in a sexual act within the meaning of section 1 of the Criminal Law (Sexual Offences) Act 2006.”,
(b) in Part 2—
(i) in paragraph 17—
(I) by the insertion of the following subparagraph after subparagraph (b):
“(ba) section 4A (organising etc. child prostitution or production of child pornography);”,
(II) by the insertion of the following subparagraph after subparagraph (c):
“(ca) section 5A (participation of child in pornographic performance);”,
and
(ii) by the insertion of the following paragraph after paragraph 22:
“22A. An offence under any of the following provisions of the Criminal Law (Sexual Offences) Act 2017:
(a) section 3 (obtaining, providing etc. a child for purpose of sexual exploitation),
(b) section 4 (invitation etc. to sexual touching),
(c) section 5 (sexual activity in presence of child),
(d) section 6 (causing child to watch sexual activity),
(e) section 7 (meeting child for purpose of sexual exploitation),
(f) section 8 (use of information and communication technology to facilitate sexual exploitation of child),
(g) section 21 (sexual act with protected person),
(h) section 22 (offence against relevant person by person in authority).”.
Offences by bodies corporate
57. Where an offence under this Act is committed by a body corporate and is proved to have been so committed with the consent or connivance of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
F3[
Commission of another offence specified in Schedule within specified period
58. (1) Subject to subsections (2) and (3), where a person (other than a person under the age of 18 years)—
(a) has been convicted on indictment of an offence specified in the Schedule (in this section referred to as “the first offence”),
(b) has been sentenced to imprisonment for a term of not less than 5 years in respect of that offence, and
(c) is convicted on indictment of an offence specified in the Schedule (in this section referred to as “the subsequent offence”) that is committed—
(i) during the period of 10 years from the date of conviction of the first offence and, for the purpose of determining that period, there shall be disregarded any period of imprisonment in respect of the first offence or the subsequent offence, or
(ii) during any such period of imprisonment,
(in this section the total period comprising the periods referred to in subparagraphs (i) and (ii) is referred to as “the specified period”),
the court shall, in imposing sentence on the person in respect of the subsequent offence, specify as the minimum term of imprisonment to be served by the person a term of not less than three quarters of the maximum term of imprisonment prescribed by law in respect of such an offence and, if the maximum term so prescribed is life imprisonment, the court shall specify a term of imprisonment of not less than 10 years.
(2) Subsection (1) shall not apply where the court is satisfied that it would be disproportionate in all the circumstances of the case to specify as the minimum term of imprisonment to be served by the person concerned the term of imprisonment referred to in that subsection in respect of the subsequent offence.
(3) Subsection (1) shall apply to a person in respect of the subsequent offence only if that offence is committed after the commencement of this section and that subsection shall apply to a person whether the first offence is committed before or after such commencement.
(4) If, in relation to a sentence of a term of imprisonment imposed on a person in respect of the first offence—
(a) the operation of the whole term is suspended, then subsection (1) shall not apply to that offence, or
(b) the operation of a part of the term is suspended, the part of that term the operation of which is not suspended shall be regarded as the term of imprisonment imposed on the person in respect of the first offence for the purposes of subsection (1).
(5) Subsection (1) shall not apply to a person if the conviction in respect of the first offence is quashed on appeal or otherwise.
(6) A reference in this section to a sentence imposed on a person in respect of the first offence shall—
(a) if the sentence is varied on appeal, be construed as a reference to the sentence as so varied, or
(b) if, on the application of the Director of Public Prosecutions under section 2 of the Criminal Justice Act 1993, the sentence is quashed by the Court of Criminal Appeal or the Court of Appeal, as the case may be, and another sentence is imposed in place of it by that Court on the person, be construed as a reference to that other sentence.
(7) For the purposes of subsections (1)(c) and (9), a period of imprisonment means any time when the person concerned is—
(a) remanded in custody,
(b) serving a sentence F4[in prison,]
(c) temporarily released under section 2 of the F5[Criminal Justice Act 1960,]
F6[(ca) conditionally released under section 2A of the Criminal Justice Act 1960, or]
F7[(d) released on parole within the meaning of the Parole Act 2019.]
(8) References in this section to the subsequent offence shall include references to a second or subsequent offence specified in the Schedule of which a person (other than a person under the age of 18 years) is convicted on indictment during the specified period.
(9) The specified period in relation to a person to whom subsection (1) applies shall expire only when the person has not been convicted of an offence specified in the Schedule—
(a) during the period of 10 years from the date of conviction of the subsequent offence and, for the purpose of determining that period, there shall be disregarded any period of imprisonment in respect of the first offence or the subsequent offence, or
(b) during any such period of imprisonment.
(10) If, following the application of subsection (1) to a person in respect of a conviction on indictment of an offence specified in the Schedule—
(a) his or her conviction in respect of the first offence is quashed on appeal or otherwise, or
(b) the sentence imposed on the person in respect of the first offence is varied on appeal so that it no longer falls under subsection (1)(b),
the person may apply to the court that imposed the sentence on him or her in respect of the subsequent offence to review it and the court may, if it considers it appropriate to do so, vary that sentence.
(11) (a) If a sentence imposed on a person in respect of a conviction on indictment of an offence specified in the Schedule does not fall under subsection (1)(b) but the sentence is—
(i) varied on appeal, or
(ii) on the application of the Director of Public Prosecutions under section 2 of the Criminal Justice Act 1993, quashed by the Court of Criminal Appeal or the Court of Appeal, as the case may be, and another sentence is imposed in place of it by that Court on the person,
so that the sentence then falls under subsection (1)(b), subsection (1) shall apply in respect of an offence specified in the Schedule (“the subsequent offence”) committed by the person within the specified period.
(b) If, in the circumstances referred to in paragraph (a), a sentence has, at the time of the appeal referred to in subparagraph (i) of that paragraph or, as the case may be, the application referred to in subparagraph (ii) of that paragraph, been imposed on the person concerned in respect of the subsequent offence, the Director of Public Prosecutions may apply to the court that imposed the sentence to review it and the court shall apply subsection (1) to that person in respect of the subsequent offence and, if appropriate, vary the sentence accordingly.
(12) The power conferred by section 23 of the Criminal Justice Act 1951 to commute or remit a punishment shall not, in the case of a person serving a sentence of imprisonment imposed in accordance with subsection (1) in respect of the subsequent offence, be exercised before the expiry of the minimum term of imprisonment specified by the court in accordance with that subsection less any reduction of that term arising under subsection (13).
(13) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence imposed in accordance with subsection (1) in respect of the subsequent offence and the minimum term of imprisonment specified by the court in accordance with that subsection shall be reduced by the amount of any remission so earned by the person.
(14) Any power conferred by section 2 of the Criminal Justice Act 1960 to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence imposed in accordance with subsection (1) in respect of the subsequent offence, be exercised during the period for which the commutation or remission of his or her punishment is prohibited by subsection (12) unless for grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by that reason.
(15) The reference in subsection (14) to section 2 of the Criminal Justice Act 1960 shall be construed to include that section as applied by section 4 of the Prisons Act 1970.
(16) References in this section to an offence specified in the Schedule shall include—
(a) references to participation as an accomplice of a person who commits such an offence, and
(b) references to an offence of attempting or conspiring to commit, or inciting the commission of, such an offence.
(17) In this section “imprisonment” includes—
(a) detention in a place provided under section 2 of the Prisons Act 1970, and
(b) detention in a place specified under section 3 of the Prisons Act 1972,
and “prison” and “sentence of imprisonment” shall be construed accordingly.]
Annotations
Amendments:
F3
Inserted (2.09.2019) by Criminal Law (Sexual Offences) (Amendment) Act 2019 (4/2019), s. 4, S.I. No. 436 of 2019.
F4
Substituted (30.07.2021) by Parole Act 2019 (28/2019), s. 40(a), S.I. No. 405 of 2021.
F5
Substituted (3.05.2023) by Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023 (3/2023), s. 79(a), S.I. No. 213 of 2023.
F6
Inserted (3.05.2023) by Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023 (3/2023), s. 79(b), S.I. No. 213 of 2023.
F7
Inserted (30.07.2021) by Parole Act 2019 (28/2019), s. 40(c), S.I. No. 405 of 2021.
Editorial Notes:
E8
Previous affecting provision: substituted (30.07.2021) by Parole Act 2019 (28/2019), s. 40(b), S.I. No. 405 of 2021; substituted (3.05.2023) as per F-note above.
F8[SCHEDULE
Offences for the purposes of section 58
Section 58
1. An offence under section 1 of the Punishment of Incest Act 1908 (incest by males).
2. An offence under section 2 of the Punishment of Incest Act 1908 (incest by females of or over the age of 17 years).
3. A rape offence within the meaning of section 1 of the Criminal Law (Rape) Act 1981.
4. An offence under any of the following provisions of the Criminal Law (Rape) (Amendment) Act 1990:
(a) section 2 (sexual assault);
(b) section 3 (aggravated sexual assault);
(c) section 4 (rape under section 4 of that Act).
5. An offence under any of the following provisions of the Sexual Offences (Jurisdiction) Act 1996:
(a) section 2 (sexual offences committed outside the State);
(b) section 3 (offence of transporting person for purpose of enabling offence to which section 2(1) of that Act relates to be committed);
(c) section 4 (offence of publishing information likely to promote etc. commission of offence to which section 2(1) of that Act relates).
6. An offence under any of the following provisions of the Child Trafficking and Pornography Act 1998:
(a) section 3 (child trafficking and taking, etc., child for sexual exploitation);
(b) section 4 (allowing child to be used for child pornography);
(c) section 4A (organising etc. child prostitution or production of child pornography);
(d) section 5 (producing, distributing, etc. child pornography);
(e) section 5A (participation of child in pornographic performance);
(f) section 6 (possession of child pornography).
7. An offence under section 249 of the Children Act 2001 (causing or encouraging sexual offence upon a child).
8. An offence under any of the following provisions of the Criminal Law (Sexual Offences) Act 2006:
(a) section 2 (defilement of child under 15 years of age);
(b) section 3 (defilement of child under 17 years of age);
(c) section 3A (offence by person in authority).
9. An offence under section 5 of the Criminal Law (Human Trafficking) Act 2008 (soliciting or importuning for purposes of prostitution of trafficked person).
10. An offence under any of the following provisions of this Act:
(a) section 3 (obtaining, providing etc. a child for purpose of sexual exploitation);
(b) section 4 (invitation etc. to sexual touching);
(c) section 5 (sexual activity in presence of child);
(d) section 6 (causing child to watch sexual activity);
(e) section 7 (meeting child for purpose of sexual exploitation);
(f) section 8 (use of information and communication technology to facilitate sexual exploitation of child);
(g) section 21 (sexual act with protected person);
(h) section 22 (offence against relevant person by person in authority).]
Annotations
Amendments:
F8
Inserted (2.09.2019) by Criminal Law (Sexual Offences) (Amendment) Act 2019 (4/2019), s. 5, S.I. No. 436 of 2019.
District Court Rules
Certificates and applications under Sex Offenders Act 2001 (as amended)
- Certificate
(1) A certificate for the purposes of section 14 of the Sex Offenders Act 2001 shall be in the Form 38.14, Schedule B and shall be signed by a District Court clerk.
Order imposing post-release supervision
(2) An order imposing post-release supervision pursuant to section 29 of the Sex Offenders Act 2001 may be in the Form 38.15 Schedule B and a copy of such Order shall be transmitted to the Governor of the Prison to which the accused is committed.
Application under section 30A
(3) An application to the Court pursuant to section 30A of the Sex Offenders Act 2001 (inserted by section 51 of the Criminal Law (Sexual Offences) Act 2017) for an order amending any condition attached to, or for the inclusion of any new condition in, any order of the Court providing for post-release supervision may be made at any sitting of the Court for the court area in which the order providing for post-release supervision was made. Notice of the application shall be served on the sex offender concerned at least seven days before the date of hearing. A copy of the notice of application together with a statutory declaration as to service thereof shall be lodged with the Clerk at least 48 hours before the date of hearing.
Indorsement of new terms
(4) Where the Court amends a condition or includes any new condition attached to, or includes any new condition in, the order providing for post-release supervision, the terms of any such change may be indorsed upon the original or a copy of the order and re-signed by the Judge.