Rapist of 12 year old goes free

ODS

If this law hasnt been applied since last summer, WHERE HAS MC DOWELL BEEN???:mad:

Btw How many boards forums are hosting threads on this topic? So far there is on in AH, here, and News/Media! At this rate we'll need a whole new forum to deal with the A case :eek:

flogen

Victor wrote:

And, um the PDophiles.

I'm beginning to question their validity as a political party, but ok... just this once

mike65

And the good news is the Dail is offically on another break from tomorrow until Tuesday week.

Mike.

DublinWriter

flogen wrote:

That's the question no-one within the government seems to have a reasonable answer for; the line is that the AG and Minister for Justice didn't know the law was under scrutiny and didn't expect it to be struck down.

It was flagged for review by the Supreme Court alright, but it was during the same week as ex-U2 stylist case, so I guess it went unnoticed.

bk

eoinmadden wrote:

Correct me if I'm wrong, but I don't think the Green Party were in government during that time.

Sorry, yes they haven't been in government either. But they have been in opposition and they have never brought it up just like all the other opposition parties (including SF) and are therefore equally guilty.

BTW I'm pretty annoyed that this is being turned into a political thing. This is truly awful situation, every single person in the Dail, no matter what party they are in, has failed us on this issue. No one is innocent.

Instead we should be focusing on how to fix this quickly and correctly. If it isn't fixed, then we can complain, but at the moment, everyone is in the wrong.

Munya wrote:

Also if he piled the girl with drinks and took advantage of her isnt that rape not statuatory rape?

IANAL but I believe in such cases the person would be charged with two offences, rape and statutory rape. Statutory rape attracts a lesser sentence, so typically the men plead guilty to statutory rape if the DPP agrees to drop the rape charge.

The DPP would normally agree to drop the rape charge because they would have to go to court otherwise (as the defendant would have nothing to lose by pleading not guilty to rape) and that would mean that the child would need to take the stand and retell the story and be cross examined by the defendants barrister, etc. obviously something everyone would rather avoid for obvious reasons.

gandalf

bk wrote:

Sorry, yes they haven't been in government either. But they have been in opposition and they have never brought it up just like all the other opposition parties (including SF) and are therefore equally guilty.

BTW I'm pretty annoyed that this is being turned into a political thing. This is truly awful situation, every single person in the Dail, no matter what party they are in, has failed us on this issue. No one is innocent.

Instead we should be focusing on how to fix this quickly and correctly. If it isn't fixed, then we can complain, but at the moment, everyone is in the wrong.

Sorry but I have to disagree with you strongly here. While the opposition parties were in power during this 16 year period it was for a fraction of the time that the current Government parties have been in charge of the country.

One of their jobs is to ensure society is protected via legislation. The current Government were informed in 2002 that their was an issue that needed to be sorted, they did not do it and this despite the fact the man who was the minister for justice was previously the AG where he must have been aware of this issue. Its a political issue because they did not do their job. They failed, something this Government excels at (as well as spending money on L'oreal).

Again McDowell should resign over this mess.

constitutionus

flogen wrote:

Where is this revelation from? I can't see it in any news sites, but would love to find it.

hey man, goto rte.ie and the archive section for 31st may 2006(duh!:D ) click on "appeal in MR A case on friday " and bottom of the page the first audio clip refering to exchanges in the dail and about 4.50 in you'll here enda kenny quoting that the DPP hasnt taken any section 1 stat rape cases since summer last year. apparently it was said in the court when they were hearing MR As case. hope this helps

Our man in Havana

gandalf wrote:

Again McDowell should resign over this mess.

I doubt he will though. :mad:

Tricity Bendix

gandalf wrote:

Sorry but I have to disagree with you strongly here. While the opposition parties were in power during this 16 year period it was for a fraction of the time that the current Government parties have been in charge of the country.

One of their jobs is to ensure society is protected via legislation. The current Government were informed in 2002 that their was an issue that needed to be sorted, they did not do it and this despite the fact the man who was the minister for justice was previously the AG where he must have been aware of this issue. Its a political issue because they did not do their job. They failed, something this Government excels at (as well as spending money on L'oreal).

Again McDowell should resign over this mess.

McDowell had not been informed by the AG that there could be problem. The DPP was also under the impression that the law was constitutional. This is a failure of a law enacted in the 1930s. Prosecutors have often sought convictions based on it and defence lawyers have never before questioned its constitutionality.

Our man in Havana

Until Now!

Tricity Bendix

Hence the concern.

I just wouldn't be so quick to call for a head on a plate. It could be argued that the AG should have given the Dept. of Justice a heads up, but it is unclear if the AG even knew of any impending troubles. It is likely that only officials in his office were aware.

axer

Munya wrote:

Why coulnt they have this law ready before they threw out the other one?

I don't think it makes a difference as they would just postpone cases being heard until a new law is introduced.

Because the statutory rape law is deemed unconstitutional does that mean that the person hasn't been technically convicted of anything i.e. they were just falsely imprisioned, thus leaving them open to conviction of a rape charge now instead or how does it work?

flogen

b.ie curious wrote:

This is a failure of a law enacted in the 1930s.

You cannot blame the law, it was valid for the time that it was enacted in; but when modern Governments are unable to come out with a modern solution, they are the ones that failed.
While the constitution in this regard has not changed its context has, and where a supreme court of 1930's Ireland would have said that the male (in all his chivilary) has no reason not to know the age and so has no defence (and that it is always the male that commits the crime), a Supreme Court of today thinks otherwise.

Prosecutors have often sought convictions based on it and defence lawyers have never before questioned its constitutionality.

As has been heard the DPP has been weary of its strenght for some time, as for defence lawyers, just because a law is not tested does not mean there is no reason for it to be changed; the Justice minister should be acting proactively, not reactively.
Since 1990, I would bet, no case brought to the courts could have rightly held the argument of a genuine mistake (that which brought the law down recently); Mr. A could not have made such a claim, nor could Mr. B etc.; the young man on the other hand had a case, after all there was just over a year between himself and the "victim" and this girl was extremely close to age of consent, and told him that she was above it. In other words the situations for each case did not hold a possible Supreme Court appeal, it just so happens that eventually such a scenario is bound to exist.

b.ie curious wrote:

Hence the concern.

I just wouldn't be so quick to call for a head on a plate. It could be argued that the AG should have given the Dept. of Justice a heads up, but it is unclear if the AG even knew of any impending troubles. It is likely that only officials in his office were aware.

It is, IMO, their job to be aware of such threats.

flogen

axer wrote:

Because the statutory rape law is deemed unconstitutional does that mean that the person hasn't been technically convicted of anything i.e. they were just falsely imprisioned, thus leaving them open to conviction of a rape charge now instead or how does it work?

If my understanding of Eu Double Jepordary law is right a person cannot be tried twice for the same crime; that applies if they were convicted or not, imprisoned or not.

spanner

b.ie curious wrote:

Hence the concern.

I just wouldn't be so quick to call for a head on a plate. It could be argued that the AG should have given the Dept. of Justice a heads up, but it is unclear if the AG even knew of any impending troubles. It is likely that only officials in his office were aware.

not to sound to dramatic,
but yes we do need to call for head on a plate, several
removing ourselves from the ins and outs of the law arguement, a convicted rapist, who received a fair trail, who raped a child is now walking the streets this very minute, the book will have to stop with someone.

Legislation will have to catch up to modern society and realise that child abuse in what ever form is one of the most Heinous crimes you can commit.
In my view worst than drug dealing.

I cannot accept that this can happen and nobody is to blame. It is hard enough to get people to put their faith in the justice system when something like this happens to a family, cases like this might mean people will just take the law into their own hands.

axer

flogen wrote:

If my understanding of Eu Double Jepordary law is right a person cannot be tried twice for the same crime; that applies if they were convicted or not, imprisoned or not.

Has Mr. A been acquitted or has he just been released on appeal on the grounds that the first judgement was invalidated by the the unconsitutionality of the law he was convicted on? If he was released because the judgement was invalid then I think they can retry him for rape as it seems to be an exception to the double jeopardy defense. I am not 100% sure though.

edit: the text from the Convention for the Protection of Human Rights and Fundamental Freedoms regarding being tried twice:

1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention.

I don't think he was finally convicted or acquitted and I think there was a fundamental defect in the previous case i.e. attempting to convict a person on a law that was unconstitutional.

trippy30

You know what pissed me off me off about this debate.
There are been a lot of stoking up the fear factor.

That really bothers me to be honest, its all become rather hysterical.
Anyone listen to Joe Duffy, I mean what on earth was the man doing? Encouraging people to protest on Friday and even to the stuff I’ve heard today. Seems to me people are getting off on the hysteria and using it politically.

The whole issue of sexual violence and abuse needs to be dealt with rationally and not in a knee jerk way. If people want to assemble to convey the importance the issue that’s fine, but I suspect it will go mad. Im concerned about this issue too, but I just don’t think people are being constructive enough.

I’m tired of seeing political parties being populist on this issue.

For instance Ill give you an example

Take the Ferns report - FG did nothing, nada on this – either they didn’t think it was important enough or they were probably too afraid to comment for fear of losing their own conservative church going voters.
Yet on this they are out condemning government and letting themselves off the hook despite the small part they played. It just sickens me to be honest.

I also think the DPP have so much to answer for, and how they conduct cases.

For instance statistics are that about less that 1% of sexual violence crimes will lead to prosecution. That’s not good enough frankly.

Here we are getting hysterical about this guy who has served some time and getting off early.
But why are we not freaking out at the people who haven’t, the people who the DPP fail to prosecute against –and now wander free having not been convicted.
Another is the cases the DPP give no explanation for instance.

We don’t seem to be concerned about this as an issue (comprehensively and seriously).
No-way! We are more interested in calling for someone’s head on a plate, rather than all parties working together to tackle one of the most serious issues society faces.

Im worried if this is the direction media and political parties take on this, it wont be long before the public will think the death penalty sounds appealing. God help us!

democrates

Double jeopardy may not be a problem. Of course they can't be retried under a section that has been found unconstitutional. But they can be retried under a different law, that is a different crime, albeit relating to the same physical act. Double jeopardy as I understand it, refers to retrying the same law transgression for the same physical act. If either change another trial is possible, ie, it''s not a retrial, it's a different trial.

flogen

democrates wrote:

Double jeopardy may not be a problem. Of course they can't be retried under a section that has been found unconstitutional. But they can be retried under a different law, that is a different crime, albeit relating to the same physical act. Double jeopardy as I understand it, refers to retrying the same law transgression for the same physical act. If either change another trial is possible, ie, it''s not a retrial, it's a different trial.

But of course, any new law will not act retrospectively and so even disregarding doube jeopardy, they cannot try him under new legislation for an old crime.

I don't think your understanding of Doube jeopardy is accurate though, democrates. If it was then Mr. A would have been rearrested and charged with rape, but that seems to be impossible.
I think it's simply that you cannot be tried twice for the same crime (or incident), except in the case of a fundamental defect, as axer points to.
@axer, he was convicted and AFAIK he was not aquitted, just set free... he is still guilty of the act but would have been held illegally otherwise.

Frank Grimes

hallelujajordan wrote:

Also, in the Dail yesterdary Enda Kenny was talking about a Mr B who had been convicted of the 'statutory' rape of a 6 yr old . . surely this is just Kenny whooping up the crowd and not a real case.

It's mentioned in today's Irish Times too (Link).
For anyone who doesn't have access here's the relevant bit:

As the Government flails about trying to remedy legal defects which should have been addressed decades ago, what may happen next is even worse. John Adams was convicted three years ago of the unlawful carnal knowledge of three little girls, aged six, eight and 10.

Described in court as the worst case ever seen, he raped them over a period of years, while forcing them to take photographs of each other being defiled.

Adams received four life sentences. Should he apply to the courts - and he has already appealed once - it is perfectly possible, even likely, that he will secure early release.

At that point, if they have any semblance of decency left, Michael McDowell and the Government of which he is part should fall on their swords.

Our man in Havana

If that cnut gets out there will be riots and civil unrest.

metrovelvet

trippy30 wrote:

We don’t seem to be concerned about this as an issue (comprehensively and seriously).
No-way! We are more interested in calling for someone’s head on a plate, rather than all parties working together to tackle one of the most serious issues society faces.

Im worried if this is the direction media and political parties take on this, it wont be long before the public will think the death penalty sounds appealing. God help us!

Absolutely. No one takes it seriously enough to think it through, make convictions that stick and really put it out there that this is a devastating crime.

What is it going to take? Fearns didnt do it. The sex scandals didnt do it. I fear what it will take to get people to take this seriously.

lostexpectation

is there no possibility of these people being rejailed are they not even in the probation service??


I read the gov is blaiming the supreme court, it wasn't something that the gov did or didn't do, but the gov knew about it, its duty was to do something about it and prepare for both possibilites of the court ruling either way, they must of had a pretty good idea that the judge would rule this way, the gov is bs'ing


Im confused now, so they are bringing back in statutory rape of under 15s but with a opportunity for some defense by the accused?

and McD says

“And the other point is why would no defence lawyer in the 16 years since 1990 have challenged it if they thought that the Law Reform Commission’s proposal in 1990 was based on a proposition that this was unconstitutional.”

well which lawyer brought it up now/recently, where did he get this brainwave form?

he says the DPP and AG wer not made aware of this problem, one would think that these men take a personal and professional interest in looking for these issues for themselves!


are all these guys really being set completely free with no more police/legal scrutiny

" O'Rourke is due for release next January but could face new charges of sex abuse."

lostexpectation

maybe there shold be more focus on AG rory brady?

Pal

Freudian slip on the radio this morning.
He was accidentally named.

lostexpectation

Pal wrote:

Freudian slip on the radio this morning.
He was accidentally named.

really by who?

Pal

Newstalk 106

lostexpectation

Bertie on yesterdays news said that nobody whatsoever had heard anything wrong about law and its constitutionality in 70 years ???

but later in the same stream he says that they were confident they were going to win so that didn't do anything about it

Our man in Havana

Roll on comtempt of court for Newstalk 106.

lostexpectation

Joe Duffy for Teaseach, covering the protest

whats happening,

he seems to broadcasting live to the crowd...?

350 in Ennis
350 in Waterford
1000 at Dail