34 1 min 14 yrs

Wonder what you make of the news that a man has been cleared of sexual assault despite admitting having sex with a 13-year-old girl? The acquitted Mr K slept with the child on Howth Head, Dublin, in October 2001 after the girl had been drinking but was found not guilty by a jury after claiming he made an ’honest mistake’ about her age. Personally,  I think this "honest mistake" line is a paedophiles charter and it must be closed off otherwise every sexual predator out there will use this as their get-out-of-jail clause.

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34 thoughts on ““AN HONEST MISTAKE?”

  1. David

    Thank you for the book it arrived today. I’ll read it on the bus 🙂

    Regards this case.

    1) It’s about rape. And men will always be given the nod and the wink on rape (squillions of citable cases) so when it comes to a burden of proof it’s nigh on impossible and comes down to preconceptions, attitudes and your word against his. It’s ‘gossip judgement’.

    2) The jury system royally sucks in these issues and needs a major overhaul but we are all too lazy to come up with anything else. It is full of the prejudice and nod and wink attitudes that permeate society when it comes to issues between men and women. And in this case men and children where the man made an ‘honest mistake guv’ and isn’t held accountable for having sex with a child.

    Wether he thought she was older or not should be irrelevant. Obviously he tried real damn hard to establish her age before rushing to get his fill of entitlement.

    p.s A BNP MP the other week suggested that "rape was simply sex" and no worse than "force feeding a woman chocolate".

  2. Seriously think about this for a second. In any other case would this happen? If i was caught nicking a car and then said in court i borrowed it and fully intended to give it back Sir. Would a jury buy that? Would they….

  3. I don’t care if he "made a mistake" about her age, he should be put in jail to think about his mistake for a while.

    Let’s hope for the girl’s sake that he didn’t leave any other mistakes behind, like std’s or a baby.

  4. And why was this 13 year old drinking? Who gave her the alcohol? Her mistaken friend, maybe?

  5. In the US we obviously don’t get everything right, but at least our statutory rape laws do not have such a crazy loophole. How sad.

  6. A friend of mine’s just turned 18 year old son was found to have had relations with his 17 y/o girlfriend. Her parents found out and pressed charges and he was arrested (bailed out next day). To my mind, I hope the grand jury cuts him some slack, her being 17, but if she were 13, I think it’d be off to prison. .

  7. Alison –

    This is about the facts of the case, not rape. It’s clear the girl consented, so the question is whether it was reasonable for him to believe she was a few years older. Before you fly off the handle, no it’s not reasonable for him to make that mistake and I have no doubt he was predatory.

    The jury system royally sucks in these issues and needs a major overhaul but we are all too lazy to come up with anything else.

    The jury system is the best we’ll have, so forget about alternatives. I know some believe (rightly or wrongly) that too few alleged rapists are found guilty, and that changes must be made in response. Some of these people aren’t interested in truth and justice, they only want more defendants found guilty.

    Well justice doesn’t work that way. Defendants are tried in court as a way of determining guilt or innocence. Where rape is the allegation, doubt will never be replaced wholly by certainty. I’m not saying that’s just tough so suck it up. I’m saying it’s tough because that’ll always be the case. Of course, we could do away with courts, presumptions of innocence, the weighing of evidence and all the rest of it.

    We could replace all that with processing centres which declare the accused as guilty or innocent according to what we want them to be.

  8. I’m sorry your honor I made an honest mistake I thought the gun was empty when I shot his privates off (said the girls father)

  9. Pete

    She is underage it is therefore statutory rape. All that is required is for a court of law to prove that he had sex with her. Which they did. Not excuse him and try it like an adult date rape case.

    Her hitting puberty and causing him to be all confused and the like is irrelevant.

    The jury system is based on hearsay for rape cases Pete. It is not a question of wishing to find all defendants guilty as you allege but rather finding a system that delivers justice fairly.

    The jury system systematically fails in rape cases for the reasons stated above. It will ‘always be the case’ makes a mockery of justice. It is not beyond the realms of the modern legal system to try these cases fairly.

  10. Alison –

    You’re in error. The Supreme Court struck out statutory rape two years ago. It’s in the link. Right or wrong, that’s the law and courts follow the law.

    The jury system is based on hearsay for rape cases Pete.

    Do you actually believe this? Do you actually believe that prosecutions and trials here or in Ireland have no regard for evidence? This is the problem with rape: he says it was consensual, she says not. In the absence of sufficient evidence you release, acquit or do like they do in banana republics. There’s no way around that until we tap the brain’s memory for court viewing.

  11. No statutory rape law?? So the law of the land is that "if there’s grass on the field, play ball?"

  12. Thanks Pete. As to having sex with a drunk 13 year old girl, well I guess I’m just getting to old for the ways of the world!

  13. Charles –

    There is a statutory rape law in Ireland. The Supreme Court ruled that it was unconstitutional for the ‘honest mistake’ defence to be ruled out.

  14. Yes i have personal experience of it so I don’t need to even try to believe it . What would you define as evidence?

    If they threw out statutory rape, which exists, it merely further underlines the issue regards justice.

  15. Well, one time in my late 20’s I was at the beach chatting a girl up. After a while I asked if she was there on spring break and she said yes, she was in her 2nd year."Which uni" I asked. "No, 2nd year of high shool. My dad’s over there."

    It’s quite hard to run fast in sand!

  16. Alison –

    Statutory rape wasn’t thrown out, I was watching football during my 8.09pm and wasn’t concentrating on what I was writing. Mea culpa.

    Evidence is a corroborated admission, witnesses, physical evidence and all the rest of it. That a defendant is male isn’t enough to declare him a penis-wielding oppressor.

  17. Pete is right. If people want rape to be treated as a serious crime then the standards of criminal prosecution apply, and that is proof beyond a reasonable doubt. Anything less and it will no longer be regarded as a serious crime. Of course that means on conviction, it should be treated as such, and it often isn’t.

    As for this case the guy should probably have been found guilty of an offence honest mistake or not. However it is unnecessarily malicious if mitigating circumstances are never considered and all such cases are treated on a par with assault rape and child abuse.

  18. Funnily enough Pete the penis weilding oppressor angle and having a penis wasn’t the basis for my case. Although as definitions of penis wielding oppression goes you would be hard pushed to convince me rape falls outside it. It involves forcing a female into sex and using your penis?

    You seem to have missed a trick on this one in your bid to have a dig. Think about what you’ve listed as evidence in terms of a rape case and you may work it out.

  19. Rape is of course an awful crime, and the law the prosecution of it has had to evolve. It is an area where the Courts have to protect the rights of the accused and still avoid to the extent possible a further victimization of the victim. In a situation of one person’s word against another this can often be quite difficult.

    In an ordinary statutory rape case, the "he said she said" factor isn’t an issue because the burden has been placed upon the adult to know (not guess) the age of the person he or she is having sex with.

    In the instant case, there appears to have been some defense allowed for an "honest mistake" which seems improper for a statutory rape case, but apparently is allowed under existing Irish law. That law should change and the legislature shouldn’t have to wait for bad cases to revise the law.

  20. Thanks for acknowledging it has had to evolve and there is a need for this Mahons, i agree. And regards the hearsay element. I also agree regards statutory rape that this is wholly wrong here and you are of course right on that. It shows me why the Law is not beyond serious question.

  21. I always thought that ignorance was no defence in law. To say he thought she was above age should not be a permisable defence. even if it was true. If it is against the law to have sex with someone under a certain age you have a duty to make sure you know the age of whoever you have sex with. The ‘honest mistake’ defence is wrong.

    Ps – there is football on ITV4

  22. You’re absolutely right Colm, this Honest Mistake defense is all wrong. She’s a 13 year old girl, he’s an adult. End of story, send him to jail.

  23. Alison, I’ve sat through rape trials when I was a Judge’s intern knowing (as the jury never did) the prior criminal history of several defendants. I’ve watched small children take the stand in these cases, and i recall one particular jury selection in a case involving three victims so young no one here would beleive me who were provided to their attackers by their own mother (for drugs).

    If someone ever touched my children the police would be the last people to find the remains of the attacker.

    Simply knowing you even just through the ATW community, I will probably be seething tonight thinking about your experience. And I suspect I am not alone among the gang here. I’ve long admired your seeking reforms in this area of the law, while not necessarily agreeing with you on all of them.

    I think we have to develop a better sensitivity in our society, and not just in the legal system. But steps have been made.

  24. Colm,

    "I always thought that ignorance was no defence in law."

    That’s ignorance of the law…i.e. if he claimed that even though he knew she was 13 he didn’t know it was illegal to have sex with a 13 year old that would be no defence.

    (Of course these days that probably makes criminals of everyone as there are so many laws and many of them are so unintuitive that probably nobody could know or keep them all.)

    " If it is against the law to have sex with someone under a certain age you have a duty to make sure you know the age of whoever you have sex with. "

    They should be trying to find out but how do you suggest people would ‘know’ that. What if despite someone’s best efforts to "know" they really do make an honest mistake? Tough shit? Should their life be ruined and they be labelled the same way as someone who assaults and rapes five women?

  25. Frank: I don’t think a sentence for statutory rape is the same as the conventional rapist and certainly not for a serial rapist, but I know you were trying to illustrate a point. There have been prosecutions of a teenager who has reached the age of consent for having sex with a girlfriend who has not (and a difference in age of months) which is obviously not the same situation as a fifty year old and a ten year old.
    What are the best efforts? Asking directly, having one’s eyes checked, checking a driver’s license? Waiting a period of time until one knows the other person? Only dating senior citizens?

    I think we have to place the burden upon the adult in the situation, and the line drawn should be at a reasonable age. Perhaps the factor of intent could come into sentencing, but I don’t think it should matter as to guilt or innocence in this particular crime.

  26. No worries. And I love that expression "crap on about it". I can’t believe my wife hasn’t used that one against me. Of course she finds frying pans, vases and the well-aimed shoe are far more handy in the Mahons control department.

  27. Mahons

    Okay so i’m a bit relieved i came back and checked the comments now because to be honest i felt weird posting that earlier, like a schmuck (isn’t that what you say?).

    But I was just getting a bit fed up with being made to feel like i know sod all about it. It bloody hurts knowing that justice was never even remotely served and i know i come across as a bit hard hitting on this issue and especially where the law and the system are concerned, but that’s the scoop, i suppose. I live with it but it does get to me sometimes.

    I don’t know what reforms i really think are necessary and which are just pipedreams but i would like it if we could work it out more fairly and respectfully. It would be terrfic too if just once in a while i saw a few fellas stand up and get a bit pissed off with it so it’s not all some feminist issue which i’ve had to conclude it is. By default really. Who else lobbies for it.

    There was an interesting week long tv programme where they staged a rape case and invited in people to act as jurors as if they were trying a real case. The amount of preconceived ideas, sexism and prejudice was astonishing and very much highlighted by the experiment.

    Anyway I won’t crap on about it. Just wanted to say thanks Mahons.

  28. Frank

    I know the statement about ignorance is specifically meant to refer to knowledge of illegality but I also believe that it applies to all your actions in relation to breaking the law, particularly clear restrictions on such things as the age of consent. I am not suggesting that someone who has consenting sex with someone they may have genuinely thought was of a legal age should be treated the same as the knife weilding multiple rapist but to be cleared of any offence because of a supposed ‘honest mistake’ is wrong. There was a level of culpability on his part as an adult and he should have been convicted of at least the offence of underage sex , if not statutory rape.

  29. Colm,

    Well, it is not possible for someone to have consensual sex with someone underage because they cannot consent. It is however possible for someone to have a reasonable belief that the person they are with is not underage and that they did consent. I think this is completely different, morally, from someone who knows or who isn’t really sure that the person is underage or not, or whether they consented. If possible then some allowance should be made in the law for such a belief, but they should have to prove it.

    Regardless I agree someone in that situation should have been found guilty of an offence (indidentally there is no mention of his age, so it’s not clear that he was an adult). Currently someone in that situation would I assume also go on the sex offender’s register automatically though, which is a terrible price to pay, and if it happened often enough and the standard of proof was diluted sufficiently then people would possibly stop regarding any such convictions seriously. Maybe there should be degrees of rape in the same way as there are degrees of murder. I don’t know.

    Any way you look at it the criminal justice system is really ill suited to prosecuting rape and there doesn’t seem to be an easy solution. At the very least people who are convicted should receive really punitive sentences, given the high standard of proof needed. Similarly anyone convicted of a false allegation of rape should have the book thrown at them, as they are also part of the reason that many rapists go free.

  30. they are also part of the reason that many rapists go free.

    They do get the book thrown at them. One woman was give a 2 year sentence which was one under the sentence handed down to a rapist, a known "woman hater" (a quote by the judge) who cut his victim up. Using the tiny nos if lie cases as a reason that attitudes towards rape are handled so badly shows up the issues alright though. The media go nuts over those cases. If they reported every rape case with the same headline screaming hysteria they do when a woman is caught lying the papers would be full for months.

  31. Alison, such sentences are ridiculously light…both of them, unless there are mitigating circumstances I don’t know about for the woman’s case. Anyway someone convicted of rape should get a punitive sentence and if they are ever let out they should be monitored closely and their identities known.

    However I don’t see how anyone can know that there are tiny nos of lie cases as it is just as hard to prosecute a false allegation as a true one.

    I personally know of one guy who was accused of rape, and the whole basis for her case was that she couldn’t remember what happened. According to him they never even had sex. The case never came to court. But he still got arrested at work, lost his job, had his house searched and computer seized, spent a night in the cells, had his life turned upside down for a couple of years, and received a large bill for legal advice (on top of the money lost due to losing the job). Nothing ever happened to her as a result (not that it should have necessarily in this case). However is it really acceptable for someone to be able to do that to someone from cover of anonymity and without even proving anything in a court? At the very least there should be serious consequences if it is shown to have been done maliciously and knowingly false.

  32. Without diminishing the seriousness of your friends case, and of course it is hard to judge who is telling the truth frankly, why did he not pursue it through the courts? I fail to understand this. Would that it were possible to have the perpetrator of a crime right there to be able to secure justice. A friend of mine was involved in a date rape case and never reported it last year and the guy, a student, walks around free and she has moved three times to avoid him. I don’t understand her either. Once again though it is harder to judge the circumstances of the case but quite simply it comes down to the legal system. If both victim and the alleged criminal are given anonymity then some of the problems would abait. However it is equally impossible to say whether all rape cases are reported. It is however accurate to state that convicted lie cases get a whole bunch of publicity versus cases of rape convictions. You just need to type rape into a rolling newsfeed to bring up any number of vicious cases which rarely make any major headlines. Type ‘rape + woman who lied’ and the Daily Mail is all over em.

  33. I think there are big differences between the moral and the legal positions here.

    The law has to draw the line somewhere, and I suppose 18 is just as good as any other age.
    But there is little a-priori justification for the 18-yrs threshold. The threshold has been higher and lower in times past, and no doubt future generations will smile at our naivety in thinking 18 years is what it takes for someone to be able to decide.

    Some 16-yr-olds are more capable of making a mature decision than some 25-yr-olds.
    The difference between the ages is also an essential factor. IMO the case mentioned by Charles doesn’t involve a crime at all.

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