Various Sex Offences
Aggravated Sexual Assault
Aggravated sexual assault is a sexual assault that involves serious violence or a threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted. A person guilty of aggravated sexual assault is liable on conviction to imprisonment for life.
Indecency covers a wide variety of circumstances. Some behaviour may be inherently indecent, while other behaviour may be indecent in the circumstances or context. Where there is no indecent contact, English cases hold that there must be evidence of force or compulsion.
Victorian Legislation
The Offences against the Persons Act 1861 made buggery a crime, subject on conviction, to imprisonment up to for life. Buggery applies equally to males and females. It covered sodomy between males and females and intercourse between people and animals. Consent was not a defence.
Following the famous Norris case, a challenge under the Irish Constitution and later the European Convention on Human Rights, the prohibition of buggery between persons aged 17 years and over was abolished.
There are equivalent offences in respect of persons under 15 and 17 years respectively as apply above in respect of rape and sexual assault. Buggery of a person under 15 is punishable by imprisonment for up to life.
Incest (pre-2017 Act)
There is incest is where the accused has sexual intercourse with certain relations. It is an offence for a male to have sexual intercourse with a female whom he knows to be his granddaughter, daughter, sister or mother. A female aged 17 years or over may not consent to intercourse with her grandfather, father, brother or son if she is aware of the relationship.
Brothers and sisters include half brothers and sisters. Age is not relevant. A consensual incestuous relationship between adults constitutes the offence. A woman under 17 years is not capable of committing the offence.
Consent is no defence in incest cases. The male is deemed the principal and the female is deemed the accomplice.
In a prosecution for incest, it must be proved the accused knew that the person concerned was related within the prohibited degrees.
The maximum imprisonment for incest is life imprisonment. The maximum sentence for females over the age of 17 years is seven years imprisonment.
Incest (2017 & 2019 Act)
The law on incest was governed primarily by the Punishment of Incest Act 1908. Amendments since then twice increased the penalty for incest by males. The Criminal Justice Act 1993 and the Criminal Law (Incest Proceedings) Act 1995 increased that penalty to 20 years and life imprisonment, respectively. The maximum penalty of 7 years imprisonment for incest by a female has remained unchanged since 1908
Any male person who has carnal knowledge of a female person, who is to his knowledge his grand-daughter, daughter, sister or mother, is guilty of an offence and is liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.
Any female person of or above the age of 17 years, who with consent permits her grandfather, father, brother or son to have carnal knowledge of her (knowing him to be her grandfather, father, brother or son, as the case may be), shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.
It shall not be a defence to proceedings for an offence under this section for the defendant to show that the carnal knowledge was had with the consent of the female person.”.
Court Proceedings Incest
The public generally are excluded from the court during incest trials, the verdict and sentence, if any, must be announced to the public. The fact of the trial and its outcome is a matter of public record. It also ensures that persons with a legitimate interest in the outcome of a particular case will be able to establish whether or not the accused has been convicted and sentenced.
There is provision for the anonymity of a person charged with an offence under this part and the person against whom the offence is alleged to have been committed. Formerly , there was no provision permitting the lifting of anonymity.
The 2017 Act extended the anonymity provisions which currently apply in respect of a sexual assault offence to cases where a defendant is charged with both an incest offence and a sexual assault offence but the incest offence either is not proceeded with or the defendant is found not guilty of that offence. Breach of the anonymity provisions is itself an offence.
Indecency Offences
There is a range of indecency offences. Generally, behaviour is indecent if it offends recognised standards of modesty of “right-thinking” people. Given the vagueness of this test, the courts acknowledged that it should not be simply applied so as to criminalise the view of the majority as to proper behaviour.
The standard of what constitutes decency had varied over time. In modern society with a strong principle of respect for privacy and tolerance, it is considerably narrower than might formerly have been the case.
Indecent exposure is an offence, at common law and under statutes. It generally involves exposure by a man of his genitals to a woman in a public place.
Outraging Public Decency & Modesty
Outraging public decency is a common law offence. The accused must have committed a public act of a lewd, obscene or disgusting nature. This is a matter for the jury or court to assess.
The Act need not necessarily be sexual in nature. There have been prosecutions for the offence relating to works of art in the past.
The conduct must go beyond merely shocking or outraging reasonable people. The act(s) must be done deliberately.
If a person commits at or near or inside of any place along which the public habitually pass, an act so as to offend modesty or cause scandal or injure the morals of the community, he or she is guilty of an offence. The offence is constituted if it is proved that the conduct offended members of the public.
Exposure Offensive Sexual Nature 2017 Act
Following a number of judgments of the High Court which struck out offences relating to public indecency and exposure, the 2017 Act provides for new offences to address certain behaviour. There are essentially two types of behaviour to be addressed. The first is exposure of genitalia and the second is inappropriate sexual behaviour which may not involve actual exposure.
A person who exposes his or her genitals intending to cause fear, distress or alarm to another person is guilty of an offence.
A person who, in a public place, engages in—
- sexual intercourse,
- an act of buggery, or
- an act of masturbation,
is guilty of an offence.
A person who intentionally engages in offensive conduct of a sexual nature is guilty of an offence.
Where a member of the Garda Síochána, with reasonable cause, suspects that a person is committing or has committed an offence under this provision, the member may arrest such person without warrant.
A person found guilty of this offence is liable—
- on summary conviction, to a class D fine or imprisonment for a term not exceeding 6 months, or both, or
- on conviction on indictment, to a class C fine or imprisonment for a term not exceeding 2 years, or both.
“offensive conduct of a sexual nature” means any behaviour of a sexual nature which, having regard to all the circumstances, is likely to cause fear, distress or alarm to any person who is, or might reasonably be expected to be, aware of any such behaviour;
A public place” means any place to which the public have access whether as of right or by permission and whether subject to or free of charge;