I

In 1935, the Oireachtas (Irish parliament) enacted one of the most controversial sources of law in the Irish legal history – the Criminal Law Amendment Act 1935. Until recent decades, this statute was identified principally with the prohibition on artificial contraceptives,Footnote ¹ but in May 2006 the Supreme Court struck down the seventy-one-year-old statutory rape law − which made it an automatic crime for a man to have sexual intercourse with a female under the age of fifteen − due to a failure to provide the accused with a defence of reasonable mistake as to the girl’s age.Footnote ² Yet, despite the diverse range of concerns encompassed in the legislation, the circumstances in which this statute was formulated remained relatively obscure for much of the twentieth century. In 1937, the Irish Law Times and Solicitors’ Journal wrote that: ‘The Government refuse to publish the report of the Commission that investigated moral conditions in the country. The Committee’s conclusions and recommendations are stated to be so startling that they cannot be disclosed. Instead the government passed the Criminal Law Amendment Bill.’Footnote ³ Writing almost sixty years later in his 1996 book, Sexual offences: law, policy and punishment, Thomas O’Malley reaffirmed the clandestine context that accompanied this aberrant process of law reform:

This lacuna has been addressed in a number of important respects by scholars in the intervening period,Footnote ⁵ but little is known about the ‘gross offences’ that were reported to be ‘rife throughout the country’,Footnote ⁶ or the perpetrators who committed these offences ‘under the impulse of violent passion, and with their reason clouded by it’.Footnote ⁷ This article opens up this area of inquiry by examining hitherto restricted archival files on sixty-five offenders who were convicted of unlawful carnal knowledge in the Irish Free State from the establishment of the civilian court system in 1924 until the commencement of the Criminal Law Amendment Act 1935.Footnote ⁸

This article focuses solely on perpetrators who were convicted of unlawful carnal knowledge under the Criminal Law Amendment Act 1885 (1885 Act), and a number of explanations can be offered for this selection. First, there has been a considerable amount of research conducted on so-called historic offences that have been recently reported,Footnote ⁹ but notwithstanding a few notable exceptions,Footnote ¹⁰ comparatively little research has been conducted into historical sexual offences that were investigated and prosecuted contemporaneously in the early decades of Independence. Moreover, little is known about the ‘morally depraved’ offenders who the commissioner of An Garda Síochána (1925–33), Eoin O’Duffy, claimed would have previously been ‘exorcised from society’, but who, reputedly, by 1930, were ‘regarded as rather clever and interesting’.Footnote ¹¹ The importance of focusing on offenders, as opposed to victims, was set out by Joanna Bourke in her seminal book, Rape: a history from 1860 to the present:

Secondly, these legislative provisions provoked the most concern at the time – the Committee on Criminal Law Amendment Acts (1880–5) and Juvenile Prostitution (Carrigan Committee, 1930–1), in particular, was set up to initiate amendments of the Acts of 1880 and 1885 – and thus a sustained inquiry of the extant prisoners’ records is necessary to investigate what appeared to be compelling evidence of the frequency of sexual violence in this period, particularly against young girls.Footnote ¹³ As Mark Finnane acknowledged, the legislative successor to the 1885 Act – the Criminal Law Amendment Act 1935 – cannot ‘be wholly explained without appreciating the serious state of affairs with which relatively high levels of sexual violence were associated’.Footnote ¹⁴ Thirdly, the 1885 Act remains a lasting tribute to moralists and feminists who agitated tirelessly to persuade the political establishment of the need for more effective measures in response to child prostitution and sexual violence against young girls.Footnote ¹⁵ As O’Malley persuasively argues, the 1885 Act ‘continues to exercise a strong influence on legal and political thinking about state regulation of sexual behaviour. It set an agenda which has lasted over a century and which looks set to last for many years to come.’Footnote ¹⁶ Finally, ‘there have been few quantitative or qualitative analyses of sexual offenses against children in the first two-thirds of the twentieth century’.Footnote ¹⁷ This article will thus constitute the first comprehensive analysis of convicted sex offenders during the formative years of the independent Irish state.

II

The Central Registry ledgers of the Department of Justice H234 and 18 Series Files were examined from 1924 until the end of February 1935.Footnote ¹⁸ Details on prisoners who were convicted of offences contrary to sections 4 and 5 of the Criminal Law Amendment Act 1885 were extracted from these ledgers and databases were constructed containing information about the offence, including the name of the perpetrator, the file number, and the year in which the offender was convicted. A list of these restricted files was provided to the staff of the National Archives of Ireland (NAI), who kindly retrieved the records and made them available for consultation in the NAI Reading Room. These files include inter alia Garda reports, judges’ observations, petitions (usually by family members, solicitors, or by the prisoners themselves), medical reports, and a synopsis of this material which was prepared by senior civil servants.Footnote ¹⁹ Record linkage work was then generated by cross-checking a list of prisoners’ names against the extant State Books for the Central Criminal Court and the Circuit Courts of the respective Irish counties.Footnote ²⁰ Where a prisoner’s details on the list corresponded with those recorded in the State Books, the State File, if available, was then ordered. The State Files contain court depositions, medical reports, and the details of an appeal against sentence or conviction, if applicable. National and provincial newspaper reports were also identified from the offence and trial dates, but these crimes, for the most part, only received sparse, coded reporting in the national and provincial press.Footnote ²¹ This type of obfuscatory language was also a recurring feature of the court depositions and offers an insight into how ‘contemporaries understood sex and its relationship to morality’.Footnote ²²

It should also be acknowledged that the surviving prisoner records are of little use in assessing the actual incidence of sexual offences during any era in Irish history and provide only a ‘partial glimpse of the extent of criminal sexual activity’ in the formative years of Irish independence.Footnote ²³ Recent scholarship on sexual violence during the revolutionary period,Footnote ²⁴ and inquiries into clerical and institutional abuse,Footnote ²⁵ have revealed a high level of criminal activity in decades past and that numerous sexual offences went unreported to the authorities or, if reported, did not necessarily result in proceedings.Footnote ²⁶ The so-called dark figure of crime in sexual offences was deemed to be considerable. As far back as the 1930s, the Garda commissioner doubted that the amount of illegal sexual conduct revealed represented more than 15 per cent of the actual crime committed.Footnote ²⁷ This, regrettably, is a statement that cannot be substantiated, but it does serve as a reminder that the range of sexual behaviour that is the focus of this article is only ‘a subset of all illegal sexual activity’ during the fledgling years of the Irish state.Footnote ²⁸

Having set out the methodology used in the study, the following sections provide an overview of the unlawful carnal knowledge provisions – sections 4 and 5 – of the 1885 Act before analysing the nature and extent of these offences in the formative years of Irish independence.

III

Section 4 of the Act of 1885 created a felony of unlawfully and carnally knowing any girl under the age of thirteen.Footnote ²⁹ The offence was gender specific – only a male could be guilty of this crime as the principal offender and only a female could be a victim – by virtue of how the criminal law defined ‘carnal knowledge’.Footnote ³⁰ Proof of penetration of a vagina by a penis was necessary, but not of emission.Footnote ³¹ If the jury were not satisfied that penetration occurred they could have handed down a verdict of attempted carnal knowledge.Footnote ³² If they were not convinced that the act of the offender amounted to an attempt they could have brought in a verdict of indecent assault, or if they found that the girl was over the age of thirteen but under the age of sixteen they could have returned a verdict of unlawful carnal knowledge with a girl between thirteen and sixteen.Footnote ³³ Consent of the victim was immaterial and in no circumstances a defence to the offender, nor was his belief, however reasonable, that the girl was over the age of thirteen.Footnote ³⁴

The raising of the age of consent from thirteen to sixteen was arguably the most important change in the law made by the 1885 statute. Section 5 was also a gender specific offence and created a misdemeanour of unlawfully and carnally knowing any girl above the age of thirteen years and under the age of sixteen years.Footnote ³⁵ This offence, similar to the felony offence, was limited to ‘unlawful’ carnal knowledge and intercourse was rendered criminal within the meaning of the earlier statute, if no valid marriage had existed between the parties and the girl consented to it.Footnote ³⁶ Thus, if one considers that the minimum age at which a girl could lawfully marry was twelve during this period, it can be acknowledged that the raising of the age under which sexual intercourse outside matrimony was to be an offence, irrespective of the consent of the girl, was an extremely significant amendment of the law.Footnote ³⁷ As in other sexual intercourse offences, any degree of penile–vaginal penetration was sufficient for the full offence.Footnote ³⁸

Consent on the part of the female was also no defence to the misdemeanour charge, but in particular circumstances an honest belief based on reasonable grounds that the girl was over sixteen years was a defence.Footnote ³⁹ In such circumstances, if the girl had consented to intercourse, the accused would have been free from criminal liability.Footnote ⁴⁰ If she did not, in fact, consent the crime was then rape and the belief as to her age would have been completely irrelevant. It was held in the English case R v. Banks that, for this defence to avail, the accused must have reasonable cause to believe, and must in fact believe, that the girl was at least sixteen years of age.Footnote ⁴¹ It is evident therefore that the British legislature in enacting the Act of 1885 was not intending to provide a defence of mistake as to age in respect of the offence of unlawfully and carnally knowing a girl under the age of thirteen years, and that this proviso was only applicable to an offence committed against a girl between the ages of thirteen and sixteen years. Crucially, there was never statutory provision for a defence of mistake as to age on a charge of the felony offence: neither when the age was under ten from 1861 nor when under thirteen from 1885.

The legislative context, however, only reveals part of the history. The formulation, interpretation, and implementation of the unlawful carnal knowledge provisions of the 1885 legislation were inter-related activities, and it is now necessary to ‘look in greater detail at the cases themselves and the context in which they emerged’.Footnote ⁴²

IV

The age of the perpetrators ranged between sixteen and sixty-six with the majority, 84.6 per cent of the total sample, aged over eighteen years.Footnote ⁴³ Of the cohort of male offenders aged eighteen years and under, 60 per cent were aged eighteen and 40 per cent were aged between sixteen and seventeen. The average age of the perpetrators in the sample was thirty-two years. However, 70.8 per cent of the perpetrators were twenty-one or over, and if male offenders aged twenty-one or under are excluded, the average age of the perpetrator is increased to thirty-eight years of age. The age range of these victims varied between four and fifteen.Footnote ⁴⁴ The two youngest victims in the sample were both aged four. In Tipperary in 1933, D. H. was convicted of attempting to have unlawful carnal knowledge of four-year-old J. R. When challenged by the child’s mother after she returned home to find her daughter crying,Footnote ⁴⁵ the accused responded ‘Sure I’m not a lunatic to do such a thing.’Footnote ⁴⁶ He subsequently pleaded guilty to the offence and was sentenced to eighteen months’ hard labour. The perpetrator later petitioned for credit for the eighty-three days that he spent in pre-trial custody,Footnote ⁴⁷ but the state solicitor wrote in a letter that ‘If there is any question of mitigation of this sentence I think the reading of the depositions will be sufficient to dispose of it.’Footnote ⁴⁸ The state solicitor also revealed that the medical examination was consistent with the child’s story as told by the mother,Footnote ⁴⁹ and opined that ‘the accused was treated very lightly’.Footnote ⁵⁰ The trial judge unsurprisingly did not consider the accused a proper object of mercy,Footnote ⁵¹ and no remission of sentence was granted. Similarly, in Dublin in 1935, J. S. was convicted of attempting to have unlawful carnal knowledge of four-year-old T. G., a mere fifty yards from a Garda (Police) station.Footnote ⁵² An accurate account of the offence could not be obtained due to the age of the child,Footnote ⁵³ but the accused admitted the chargeFootnote ⁵⁴ and was sentenced to four months’ imprisonment with hard labour.Footnote ⁵⁵ The accused was not considered suitable for modified Borstal treatment due to the nature of the offence, but the Department of Justice wrote that J. S. ‘should be kept hard at work, in the open air as far as possible’ and should receive special attention from the prison governor and chaplain.Footnote ⁵⁶ The belief − that tough manual labour outside in the elements was the optimal means of reforming young offenders − was firmly rooted in the Borstal and the Industrial School system, and would continue to be a feature of Irish penal policy for decades to come.Footnote ⁵⁷ Ironically, the majority of the perpetrators in this sample were rural labourers who would have been clearly accustomed to this type of physical exertion.

In 1930, the Garda commissioner, Eoin O’Duffy, regretted that ‘an alarming aspect’ was ‘the number of cases of interference with girls under 15, and even under 13 and under 11, which come before the courts’.Footnote ⁵⁸ Additionally, O’Duffy intimated in his memorandum that although the 1885 Act made ‘no distinction between the ages under 13’, it could be observed ‘that the number of cases of defilement of girls under 10 years’ was ‘much higher than those of 10 to 13’.Footnote ⁵⁹ The ‘statistically rich’ submission furnished by the Garda commissioner to the Carrigan Committee in 1930 did not correspond exactly with the legal definitions of the offences,Footnote ⁶⁰ but the observation is somewhat confirmed by his abovementioned submission and the surviving prisoner records.Footnote ⁶¹ In fact, there were sixteen defilement offences against girls under ten years in the extant prisoner files in this chronological period as opposed to thirteen against girls aged between ten and thirteen years. Of the cohort of female victims aged under sixteen years, 27 per cent were less than ten and 32 per cent were aged under thirteen. The average age of the female victims of unlawful carnal knowledge across the prisoner files was twelve years. However, 57.6 per cent of the sample victims were aged between thirteen and fifteen, and if female victims aged under thirteen are excluded, the average age of the complainant is fourteen years of age.

Hannah Clarke, an inspector for the National Society for the Prevention of Cruelty to Children, argued that men who exploited girls under ten years of age frequently escaped conviction due to a lack of evidence and that it was misguided to intimate that girls over the age of ten years were more susceptible to sexual exploitation than children of tender years.Footnote ⁶² She contended that female children between the ages of ten and fifteen years were ‘more exempt’ from sexual crime than younger and elder girls. ‘Blackguards’, she claimed, were fearful of this age group because they were ‘conversant with the law’ and more likely to tell parents about the assault.Footnote ⁶³ However, the surviving sample prisoner records demonstrate that, in fact, the ‘greatest danger’Footnote ⁶⁴ lay between the ages of fourteen and sixteen years.Footnote ⁶⁵ On the whole, O’Duffy expressed particular regret that the number of ‘offences on children between the ages of 9 and 16’ was increasing,Footnote ⁶⁶ while a 1935 Department of Justice memorandum revealed that ‘offences against very young girls’ showed a ‘deplorable increase’.Footnote ⁶⁷ In this study, the oldest victims were approaching the age of sixteen years and petitioners in these cases pointed to proximity to the age of consent in an effort to prompt decision-makers to show mercy. In the case of J. M., the petitioners maintained that the girl was ‘one month under 16 years of age’,Footnote ⁶⁸ while D. H. claimed that he did not know the girl’s age, but that ‘if she was three months older he would not have committed a criminal offence’.Footnote ⁶⁹ Moreover, in another case, the petitioners appeared to misrepresent the age of the girl to a local priest who wrote to the minister on their behalf in an attempt to seek mitigation of the prisoner’s sentence. This was flatly contradicted by the evidence of the Gardaí who confirmed that the girl’s age was eight years and eleven months at the time of the offence and not thirteen years as stated in the priest’s letter.Footnote ⁷⁰ As the secretary of the Department of Justice, Stephen Roche, put it, ‘It would appear that the Convict’s statement to Father Doyle in respect of the age of this girl was untrue and that it would be absurd to attach any blame to a girl of such tender years.’Footnote ⁷¹

Conversely, it was not just prisoners or petitioners who opined that the complainant looked older than her actual age. B. M., who was a week from turning sixteen at the time of the offence, was described by the Gardaí as ‘a well-developed girl’ who ‘looks about 18 years of age’,Footnote ⁷² and even the trial judge, Justice Sheehy, observed that she looked more than her years.Footnote ⁷³ He also added that the accused did himself a disservice by refuting the act entirely:

Although a Department of Justice memorandum stated in 1932 ‘that the [reasonable belief] defence is very rarely pleaded’,Footnote ⁷⁵ four other offenders in this sample swore that they believed that the girl was over the age of consent.Footnote ⁷⁶ In one Mayo case in 1935, the trial judge, Justice Wyse Power, subsequently wrote to the minister that ‘Had I been on the jury that tried the case I would have favoured the accused’s acquittal on the grounds that any reasonable man looking at the girl in the case would have no doubt whatever but that she was well over sixteen.’Footnote ⁷⁷ He concluded that though the ‘law may have been fulfilled, an injustice was also done’Footnote ⁷⁸ and that he would ‘not only recommend his release’, but ‘venture to press the Minister to order it’.Footnote ⁷⁹ The advice of the trial judge – despite the evident encroachment on the executive branch of government’s authority to reduce or mitigate judicially imposed sentences – was heeded and T. C. was released on 20 April 1935.Footnote ⁸⁰

It is also possible to identify information as to the exact age of both victims and offenders in fifty-seven of the sample cases. The particulars indicate that there was generally a large discrepancy between the ages of the perpetrator and the victim, and that the criminal law was being invoked mainly in circumstances where the sexual activity clearly amounted to sexual exploitation. Of the cases gleaned from the prisoner files, the average offender age was thirty-one years. The average victim age was twelve, a difference in age of nineteen years. The greatest age difference was fifty-eight years, while the lowest age difference was three years. There was no case in the sample where the victim was the exact same age or older than the perpetrator.

V

The evidence gleaned from the prisoner files indicates that the proportion of cases that came before the courts as a direct result of Garda activity was small and that the Gardaí were dependent on victims, their parents, or other responsible people, to come forward and report these offences. This, of course, is understandable given the clandestine nature of many of the crimes, but one Wicklow case provides an example of an offence that came to light directly as a result of Garda initiative. In July 1927, A. M., a labourer, was convicted of the unlawful carnal knowledge of fifteen-year-old G. C. after two Gardaí saw them go into a field together near the local town. After following them into the field, the police officers overheard the couple engaged in conversation ‘of a revolting character’,Footnote ⁸¹ which subsequently became the principal evidence in the case.Footnote ⁸² At trial, it was argued that the young female, who was reputed not to be of good character,Footnote ⁸³ was not only ‘a consenting party’, but induced A. M. – who was ‘under the influence of drink’Footnote ⁸⁴ – to commit the act.Footnote ⁸⁵ A. M. was convicted and sentenced to eleven months’ hard labour, but his sentence was remitted a mere four months later after the case attracted attention from some influential petitioners. The petition, which clearly delineated the social demarcations in rural Wicklow, was submitted by a future minister for justice, James Everett TD, who urged the minister to ‘see your way to exercise clemency in this case’.Footnote ⁸⁶ Denoting only the occupation of the most prominent signatories, the petition also stated that the ‘lapse was a great surprise to many respectable people in the town, who at first refused to believe it’Footnote ⁸⁷ and that the defendant was ‘unable to resist’ due to his inexperience in the world.Footnote ⁸⁸ It further noted that ‘this isolated lapse should be overlooked’ and argued that the time served in prison was already sufficient punishment ‘to purge the crime which the young fellow through the frailty of human nature had the misfortune to fall a victim to’.Footnote ⁸⁹ The Garda superintendent, albeit observing the offence was a serious one that would not normally merit mitigation, recommended release due to the effect that his incarceration was having on his aging mother, his previous good character, the fact it was a first offence, and because he believed that the term served was a ‘sufficient deterrent to him and others, not to indulge in this type of crime in future’.Footnote ⁹⁰ After reading the superintendent’s report, the trial judge, Justice Doyle, wrote that he was ‘in complete agreement with his views and suggestions’ and recommended ‘the discharge of prisoner, as an act of mercy to his dependants’.Footnote ⁹¹

The Garda commissioner stated that parents were frequently unwilling to pursue cases ‘in the interests of their children’,Footnote ⁹² but most of these offences were brought to the attention of the Gardaí by the parent(s) of the victim. In Mayo in 1933, the father of seven-year-old R. F. reported the offence to the Gardaí after the medical examination confirmed that the girl had been ‘outraged’,Footnote ⁹³ while in Sligo in 1934, fifteen-year-old M. B. M.’s father reported to the police that his daughter had been ‘defiled’.Footnote ⁹⁴ Ferriter has noted that it was frequently to their mothers that the victims first turned and this is borne out by the surviving prisoner files.Footnote ⁹⁵ In Tipperary in 1927, for example, eight-year-old M. O’G.’s mother brought her to the Garda station to make a statement after she revealed what happened her.Footnote ⁹⁶ Similarly, in the same county in 1929, fifteen-year-old E. P.’s mother brought her daughter to the Garda station following an examination by the doctor.Footnote ⁹⁷ A breakdown in parental supervision, as the report of the Carrigan Committee revealed, was a contemporary concern,Footnote ⁹⁸ and blamed, on occasion, as a cause not only for the actions of the perpetrator, but also for the exploitation of the victim. Nineteen-year-old M. M., who was convicted of the unlawful carnal knowledge of nine-year-old B. G. in 1935, was described as of ‘reckless disposition’ and it was noted that ‘his father exercised little or no control over him’,Footnote ⁹⁹ while the father of ten-year-old J. D., who was defiled by eighteen-year-old P. M. in Clare in 1931, was ‘known not to be exercising proper control over his children’.Footnote ¹⁰⁰

By contrast, there were cases in the sample where parents were vigilant and the girls involved were “keeping company” with the accused against their parents’ wishes. In these circumstances, it is reasonable to assume that some of these offences were reported to the Gardaí against the victim’s own volition. In Dublin in 1928, one mother brought her daughter to the Garda station and complained that she was out all the previous night with J. B.,Footnote ¹⁰¹ while in the same county a year later, the parents of E. O’C. became anxious when she did not return home the previous night.Footnote ¹⁰² A search was commenced for the latter the following morning and E. O’C.’s mother brought her daughter to the Garda station after she was located with the accused.Footnote ¹⁰³ Three months earlier, the girl’s mother had told J. B. that her daughter was too young for him and pleaded with him to stay away, but to no avail.Footnote ¹⁰⁴ Conversely, the fact that her daughter ‘kept good hours’, ‘never mixed with boys’, and that she had ‘never received any complaints with regard to my daughter’s conduct’ was sufficient evidence for another mother to suspect that the offender was closer to home.Footnote ¹⁰⁵ It subsequently transpired that her husband’s step-brother, who lived in the same house as them, was the perpetrator and the father of the child that resulted from the persistent offending.Footnote ¹⁰⁶

Most of these offences were almost immediately revealed to parents or other responsible persons,Footnote ¹⁰⁷ while there were also a number of cases in the sample where the physical or emotional consequences of the offence led to parents discovering and reporting the sexual crimes. In a few cases, the young girls returned home ‘looking excited’Footnote ¹⁰⁸ or with soiled,Footnote ¹⁰⁹ wet,Footnote ¹¹⁰ or tornFootnote ¹¹¹ clothing. Moreover, in a small number of cases the victim was in obvious distress or physically injured, which alarmed the parents, who subsequently brought the victim for medical attention and informed the authorities. Eleven-year-old O. B., for example, was ‘put into terror by the assailant’Footnote ¹¹² and the medical evidence showed that the little girl assaulted was suffering from venereal disease as a result of the attack.Footnote ¹¹³ The trial judge stated that it was one of the worst cases that he had dealt with during his judicial career.Footnote ¹¹⁴

An equally disturbing case came before the Dublin Circuit Criminal Court in autumn 1928. On 8 October, M. J. F. attempted to have unlawful carnal knowledge of seven-year-old N. D., who was left ‘shivering…afraid of her life’Footnote ¹¹⁵ and in a very poor state of health.Footnote ¹¹⁶ During the night, the victim became ‘very agitated’ and was ‘crying and complaining of a pain in her lower stomach’.Footnote ¹¹⁷ Her mother examined her and found her ‘very much swollen and inflamed’ around her private parts.Footnote ¹¹⁸ The subsequent medical examination revealed ‘a diagnosis of venereal disease – syphilis of some standing and the result of carnal connection or attempted carnal connection’.Footnote ¹¹⁹ It appears that the judge considered that the youth of the victim, and the additional trauma caused by the fact that she had been infected with syphilis, aggravated the seriousness of the offence for the purpose of sentence. M. J. F. was sentenced to ten years’ penal servitude: the longest sentence for unlawful carnal knowledge during this chronological period.Footnote ¹²⁰

The Garda commissioner, Eoin O’Duffy, informed the Carrigan Committee that victims – ‘innocent or so shrouded with the shame of the act’ – rarely reported sexual offences to the Gardaí.Footnote ¹²¹ In Ireland, at this time, there was ‘a stringent moral code, which deemed sexual conduct outside marriage to be immoral’,Footnote ¹²² and many children who suffered sexual abuse ‘were terrified to let other adults know what was going on’.Footnote ¹²³ This fear appears to have been amplified where there was a pregnancy involved. For example, in 1931, fifteen-year-old J. McH. ‘did not tell anyone as she was ashamed’,Footnote ¹²⁴ while in Sligo in 1934 B. A. stated that she was ‘ashamed and afraid to tell her parents’.Footnote ¹²⁵ Similarly, in one Tipperary case in 1929, the Garda report revealed that the accused had impregnated other girls in the neighbourhood, one of whom ‘kept it a secret to her parents…her parents finding her in the out-offices of their home the day the child was born’.Footnote ¹²⁶ The perpetrator, who was reported to be addicted to drink and ‘a source of annoyance to women with whom he came into contact’,Footnote ¹²⁷ had allegedly fathered two other illegitimate children in the district.

Other cases were also brought to the attention of the Gardaí by the parents of the girl after the pregnancy became visible,Footnote ¹²⁸ or the suspicions of the Gardaí had been stimulated by a rumour that an under-age girl was pregnant, community surveillance, or reliable information received, from a ‘private source’.Footnote ¹²⁹ A 1932 Department of Justice memorandum emphasized that in the majority of unlawful carnal knowledge cases that ‘come to notice, the reason will be that the girl has become pregnant’Footnote ¹³⁰ and in sixteen of the sixty-five cases it was identified that the complainant was pregnant. At the trial of P. D. in February 1926, fourteen-year-old M. B. K. appeared at the trial with the baby in her arms.Footnote ¹³¹ By contrast, fourteen-year-old A. A. gave birth to a child in November 1934, but the infant was described as ‘not healthy or normal’ and died shortly after birth.Footnote ¹³² Laura Weinstein observed that while in some instances the young girls ‘understood the significance of this change’, it was more often the case that ‘she was unaware that she was pregnant until a parent noticed that she was gaining weight’ or discovered the pregnancy in some other way.Footnote ¹³³ Fifteen-year-old B. A. M.’s mother, for instance, reported the offence to the Gardaí after noticing her daughter looking unwell.Footnote ¹³⁴ The Garda commissioner claimed that the cause of many offences could be found in the ‘wretched housing conditions such as where large families sleep in one or two beds in a common room, clothes barely sufficient to cover their nakedness, and no consideration possible as regards dressing, undressing, sleeping and complying with the demands of nature’,Footnote ¹³⁵ but in one Roscommon case in 1931 it was actually inadequate sleeping arrangements that led to the discovery of a pregnancy. The mother reported that while in bed with her daughter she felt a movement, and after examining her, found that she was pregnant.Footnote ¹³⁶ Fifteen-year-old J. McH. subsequently began to cry when questioned, but after some coaxing revealed that nineteen-year-old R. B., a local farmer’s son, was responsible for her condition. The accused, however, denied responsibility and the mother in question reported the offence to the police after he refused to marry her daughter and ‘save both families from disgrace’.Footnote ¹³⁷

The abovementioned Department of Justice memorandum also emphasized that in the majority of cases ‘the final result will not be a police prosecution, but a forced marriage’,Footnote ¹³⁸ and there were a number of cases in this sample where the girl or her family failed to reach an amicable marriage agreement with the offender, and the girl’s family then reported the matter to the Gardaí. In August 1926, for example, P. Q. was approached by fourteen-year-old M. K.’s people to have a marriage arranged,Footnote ¹³⁹ but he claimed that he was ‘blamed in the wrong’,Footnote ¹⁴⁰ that he ‘never had anything to do with her’, and that ‘she and her mother blackmailed me’.Footnote ¹⁴¹ The spectre of blackmail was candidly introduced into a Dáil debate on the age of consent by the minister for justice, James Fitzgerald-Kenney, in 1929,Footnote ¹⁴² but there was considerable consensus during the deliberations of the Carrigan Committee that the prospect of a young unmarried mother resorting to blackmail was ‘extremely remote’.Footnote ¹⁴³ Evidence submitted by certain women’s organizations affirmed that ‘girls who had been betrayed were very reluctant to disclose the names of their betrayers’,Footnote ¹⁴⁴ while Jesuit R. S. DevaneFootnote ¹⁴⁵ wrote in the pages of the Irish Ecclesiastical Journal that the Good Shepherd nuns – who operated a proportion of the Magdalene Laundries – pointed out that blackmail was ‘so rare as to be negligible’.Footnote ¹⁴⁶ It appears that the jury too was unconvinced by the blackmail claim. The Garda report noted that there was ‘no doubt but that prisoner was guilty of the offence’Footnote ¹⁴⁷ and P. Q. was sentenced to nine months’ imprisonment with hard labour.Footnote ¹⁴⁸

The Mother and Baby Home Report (2020) noted that ‘when a single woman was known to be pregnant the most common response in all countries was to try and arrange a marriage between the woman and the father of her child’ and the prisoner files contain details of other failed attempts at arranging what Fr. Fitzpatrick, of St Michael’s Parish, Limerick, termed ‘marriages of necessity’.Footnote ¹⁴⁹ The Garda commissioner observed that it was frequently ‘the clergy who informed the police’ of such offences,Footnote ¹⁵⁰ and in one Roscommon case in 1931, the mother in question first reported the matter to the parish priest prior to informing the Gardaí of the offence when the accused refused to marry her daughter.Footnote ¹⁵¹ Unsuccessful efforts were also made to arrange a marriage between nineteen-year-old E. C. and fifteen-year-old M. O’N. – who at the time of trial was expected to give birth ‘very shortly’ – in Kilkenny in 1930.Footnote ¹⁵² The Gardaí believed that the former was not only responsible for the girl’s pregnancy,Footnote ¹⁵³ but another mother came forward and blamed him for the condition of her daughter (over sixteen years of age), who was pregnant too.Footnote ¹⁵⁴ On the other hand, eighteen-year-old P. W. had previously asked the complainant to marry him, but when she became a mother he refused to do so as he alleged that she was ‘carrying on’ with other men.Footnote ¹⁵⁵ This case does not appear to be an outlier. Dr Delia Moclair Horne and Dr Dorothy Stopford Price, at the behest of the Irish Women’s Doctor Committee, told the Carrigan Committee that Irish girls were ‘of a more trusting nature’ and that ‘seduction was very frequently brought about by a promise of marriage which the girl believed to be genuine’.Footnote ¹⁵⁶ The Carrigan Committee would subsequently conclude that it was impossible to ‘estimate even approximately the annual number of illegitimate births’,Footnote ¹⁵⁷ but it seems reasonable to surmise that cases involving single mothers and their babies were atypical in ending up before the courts. Many of these girls had to resort to ‘shotgun’ weddings, institutional confinement, pregnancy emigration, infanticide,Footnote ¹⁵⁸ or simply residing with their children within families and communities just as married mothers and their ‘legitimate’ children did.Footnote ¹⁵⁹

VI

In ‘popular imagination’, as O’Malley points out, the ‘typical rapist is a stranger who emerges from a dark alley way to attack his unsuspecting victim’.Footnote ¹⁶⁰ The image of the sexual offender that emerges from this sample does not correspond with this stereotype, but there are a number of offences that remind us that this stereotype should not be dismissed as a mere figment of the popular imagination. On 11 October 1933, P. D. was found guilty of assaulting fourteen-year-old C. D. The complainant alleged that the accused – ‘whom she did not know at the time – forcibly took her from a road over a ditch to a spot about 30 yards along a canal bank, and that, knocking her down, he had connection with her’.Footnote ¹⁶¹ Similarly, in the case of thirty-one-year-old H. B., the complainant, eight-year-old L. G., stated that she ‘didn’t know him before’.Footnote ¹⁶² There were also a number of cases where the victim was not acquainted with the accused prior to the offence, but who subsequently recognized him immediately, or identified him in an identity parade. As soon as nine-year-old A. D. saw the perpetrator again, she pointed to him and said ‘there he is, that’s the man’.Footnote ¹⁶³ She also observed that the perpetrator had ‘horrid teeth’ and that ‘she would never forget him’.Footnote ¹⁶⁴ In the case of R. R., who was convicted of unlawful carnal knowledge at the Trinity sitting of Monaghan Circuit Criminal Court in 1932, the victim, eleven-year-old O. B., told the police that she was ‘assaulted and raped’ by an ‘unknown man’.Footnote ¹⁶⁵ The girl also described his clothing and later pointed him out in an identity parade after he was apprehended in Northern Ireland.Footnote ¹⁶⁶ Likewise, seven-year-old M. D. identified twenty-three-year-old M. J. F. in an identity parade without hesitation,Footnote ¹⁶⁷ despite the fact the accused exchanged different colour coats with another man in the line-up ‘with a view to baffling the little girl in the identification’.Footnote ¹⁶⁸

More commonly, however, there was a previous association between the victim and the offender prior to the offence and in a number of cases it was possible to discern the nature of this association. Typically, the parties involved were neighbours, keeping company or casual acquaintances. On 19 November 1925, E. O’B. was found guilty of the attempted defilement of ‘a neighbour’s child’,Footnote ¹⁶⁹ while prisoner M. M., convicted in the Limerick Circuit Criminal Court in 1934, wrote:

Similarly, in Roscommon in 1926, twenty-seven-year-old M. C. was convicted of the attempted unlawful carnal knowledge of an eight-year-old girl, C. T. The latter told the Gardaí that she had been assaulted that evening by ‘some unknown man’,Footnote ¹⁷¹ but the perpetrator later wrote that ‘they [her family] were very good neighbours to me always’.Footnote ¹⁷² As Ferriter points out, these cases, ‘particularly in such small communities, must have had serious consequences for relationships between neighbours and friends, as the victims were almost always known to the perpetrators, and the making of statements and giving of evidence involved so many different members of the community’.Footnote ¹⁷³

A number of cases also involved situations where the accused person and the complainant were engaging in intimacies in the period prior to the offence. In Dublin in 1930, J. B. was charged with the unlawful carnal knowledge of E. O’C. According to the court transcripts, the perpetrator had been ‘keeping company with the girl for about 3 months’Footnote ¹⁷⁴ and they were reported to be on ‘very affectionate terms’.Footnote ¹⁷⁵ Other complainants were also reasonably well known to the perpetrators and some of the dramatis personae knew each other from childhood. In Westmeath in 1934, at the trial of P. F., the complainant and defendant were reported to be ‘neighbours, living very near to each other’,Footnote ¹⁷⁶ while at the trial of J. H. at the Tipperary Circuit Criminal Court in 1929, it was pointed out by the complainant that ‘I know the defendant as long as I remember – he lives three miles from me and works around the district.’Footnote ¹⁷⁷ Similarly, in Roscommon in 1931, at the trial of R. B., the complainant said that she had ‘known the accused all my life’.Footnote ¹⁷⁸ Her mother also told the court: ‘I know the accused since he was a week old. He grew up with J. and went to the same school.’Footnote ¹⁷⁹

VII

In his 2009 book, Occasions of sin, Diarmaid Ferriter observed that children ‘were prey to the designs of older men who offered them inducements of sweets or small amounts of money’Footnote ¹⁸⁰ and this modus operandi was adopted by a small number of the perpetrators convicted of unlawful carnal knowledge.Footnote ¹⁸¹ Most typically, money was used by these offenders to persuade young girls to engage in unlawful sexual activity or to lure them to secluded areas for the purposes of sexual exploitation.Footnote ¹⁸² In Monaghan in 1927, J. C., who had his person exposed at the time, offered two eight-year-old girls, M. C. and M. F., money if they permitted him to have sexual intercourse with them.Footnote ¹⁸³ M. F. refused the money, but the forty-eight-year-old tailor caught M. C. and knocked her down onto a bench in his workshop where it was alleged that he had ‘connection with her’.Footnote ¹⁸⁴ M. C.’s mother refused to allow her child to ‘come forward to prove the case’,Footnote ¹⁸⁵ but during investigations it was discovered that J. C. had exploited four other children of a similar age over an extended period both in his workshop and in the belfry of the local Catholic church where he was employed as a sexton.Footnote ¹⁸⁶ The statements of the first three victims revealed that ‘when they raised alarm and began to cry he gave them money in order that they would not tell any other person’, while the fourth additional victim told the Gardaí that J. C. ‘gave her money also (sixpence in silver) and told her not to tell her father or mother of what happened’.Footnote ¹⁸⁷ The parents of the children, like M. C.’s mother, were hesitant to permit their children to testify at trial due to the ‘immoral nature’ of the offence.Footnote ¹⁸⁸ Such concerns were reminiscent of sentiments subsequently expressed by the Garda commissioner to the Carrigan Committee in 1930:

J. C. was ultimately convicted on the strength of the children’s evidence,Footnote ¹⁹⁰ which to use the words of the district court judge, Dermot Gleeson, was ‘really a question for the Jury, after direction, to make up their minds’ as to whether the children could be relied upon or not.Footnote ¹⁹¹ The crimes provoked shock in the local community and it was reported that if the Gardaí had not instituted proceedings ‘the people of Ballybay would have dealt with [the] prisoner in their own way’.Footnote ¹⁹² Such an approach does not appear to have been an anomaly. As Hannah Clarke informed the Carrigan Committee, certain communities ‘protected their children by taking the law into their own hands’.Footnote ¹⁹³ Almost five years after the commission of the offences, the level of public hostility towards the defendant does not appear to have abated. In May 1932, the Garda superintendent opined that the sentence should not be mitigated as the ‘prisoner’s release would not be in his own interest or in the interests of peace’.Footnote ¹⁹⁴

J. C. was not the only perpetrator who used money to encourage the child to remain secretive about the offence or to repeat the act on another occasion. In Mayo in 1933, T. C. gave seven-year-old R. F. two pence after ‘satisfying his lust’ and told her not to tell anybody,Footnote ¹⁹⁵ while sixty-five-year-old T. D. gave varying amounts of money to the three young girls that he abused in Wicklow between 1928 and 1931 – ranging from one pence to half a crown – and warned them not to tell their parents.Footnote ¹⁹⁶ These two offenders also isolated their victims by sending them on errands before exploiting them on their return.Footnote ¹⁹⁷ Other offenders falsely promised to pay or compensate the child. In Roscommon in 1926, M. C. gave eight-year-old C. T. a ‘two shilling piece’ to stop her from crying,Footnote ¹⁹⁸ told her ‘to buy sweets’ and not to tell anyone what had occurred.Footnote ¹⁹⁹ He subsequently took the two-shilling coin back from the little girl,Footnote ²⁰⁰ and significantly that was all that was found in his possession when he was later arrested.Footnote ²⁰¹ Similarly, in a Tipperary case in 1927, eight-year-old M. O’G. stated that J. P. told her that ‘he would give me a penny and he never gave it to me’.Footnote ²⁰² Described as ‘a moral degenerate of a vicious type’,Footnote ²⁰³ J. P. also said that he would buy her sweets in a local shop, but he reneged on that promise too.Footnote ²⁰⁴

The varied ways in which offenders allegedly induced their victims included fictitious requests inviting them to go on errands.Footnote ²⁰⁵ In May 1929, T. W. asked fourteen-year-old E. C. to go get him ‘a packet of fags’ before dragging her down a lane,Footnote ²⁰⁶ while similarly T. C. sent seven-year-old R. F. on an errand for cigarettes before luring her to the inner apartment of his mother’s egg store where he placed her on top of some meal bags and had carnal knowledge of her.Footnote ²⁰⁷ There were also cases where young girls were exploited when isolated en route with errands for parents, neighbours,Footnote ²⁰⁸ and relatives.Footnote ²⁰⁹ In a Limerick case in 1934, six-year-old M. E. was in the process of fetching milk when she was induced to cross the wall into a field where she was sexually abused,Footnote ²¹⁰ while other children were also exploited when returning from ‘gathering nuts’,Footnote ²¹¹ and ‘bringing home milk’.Footnote ²¹² Many of these offences were crimes of opportunity and the majority were perpetrated in outdoor locations.Footnote ²¹³

Moreover, in Roscommon in 1926, eight-year-old C. T. was assaulted after being sent by her parents to bring home the cows from a field some distance from their house. When she was driving the cows out onto the road, an unknown man appeared and caught hold of her,Footnote ²¹⁴ brought her behind a hedge, and attempted to have carnal knowledge with her.Footnote ²¹⁵ The defendant, a twenty-seven-year-old labourer, was convicted and sentenced to two years’ imprisonment with hard labour, with the trial judge, Justice Wakely, stating that he was ‘sorry that the law did not allow him to give a longer sentence’.Footnote ²¹⁶ In a subsequent letter to the Department of Justice, he explained the rationale for what he termed ‘a very severe sentence’:

The judge also wrote that ‘the little girl was not precocious & seemed to me to give her evidence naturally & I don’t think she could have invented what she said’.Footnote ²¹⁸ Although one government memorandum stated that ‘many competent authorities’ had ‘grave doubts as to the value of children’s evidence’,Footnote ²¹⁹ other legal professionals did not share such concerns. In one Tipperary case in 1929, the state solicitor wrote that the statements of the witnesses, ‘[t]hough youthful…were absolutely clear’,Footnote ²²⁰ while in another Monaghan case ‘it was on the children’s evidence that the Judge directed the Jury, and on which the latter found the accused guilty’.Footnote ²²¹ Indeed, Judge Gleeson told the Carrigan Committee that personally he would ‘prefer to convict on the unsupported evidence of an intelligent child of ten or eleven, than on some of the type of evidence one hears from adults’.Footnote ²²²

VIII

Consent was no defence to a charge of unlawful carnal knowledge under sections 4 and 5(1) of the 1885 Act. This was explicitly captured by Justice Sheehy in the case of W. M. in 1929 where he pointed out that ‘[t]he consent of the girl was (owing to her age) immaterial for the purposes of proving the crime charged’.Footnote ²²³ Put otherwise, sections 4 and 5(1) of the 1885 Act, stricto sensu, were only applicable in the event that the intercourse took place with a young girl who factually consented or where there was insufficient evidence to establish the absence of consent on the part of the female complainant. As Justice Davitt observed in a Wexford case in 1929, ‘if there were not consent, the offence would be rape’.Footnote ²²⁴ Accordingly, there were a substantial number of cases in the extant files where the sexual activity appears to have been consensual.Footnote ²²⁵ In Mayo in 1934, fourteen-year-old B. S. was reported to be ‘without doubt a consenting party’,Footnote ²²⁶ while in Sligo in 1934, fifteen-year-old J. G. ‘fully consented to the acts complained of’.Footnote ²²⁷ This was also exemplified by the case of J. M. that came before the Offaly Circuit Criminal Court in 1926, in which fifteen-year-old C. McC. gave evidence that ‘it was with my own full consent the misconduct took place on the different days’.Footnote ²²⁸ She also attested that the ‘accused asked my mother to let me marry him’, but that her mother refused stating that she was too young to get married.Footnote ²²⁹

J. M., who was described by the trial judge, Justice Wakely, as a ‘thorough bad character’, was not perturbed by the rejection.Footnote ²³⁰ The Garda report revealed that the accused reputedly told the girl at a later meeting that if her parents would not consent to the marriage that there was ‘only one way out of it’.Footnote ²³¹ This was confirmed by the fifteen-year-old-girl who testified that J. M. told her that he would have to ‘put me in the family way to get me’Footnote ²³² and that her parents would then have no choice but to consent to the marriage.Footnote ²³³ J. M. subsequently succeeded in both endeavours – impregnating and marrying C. McC. – but the girl’s mother ‘in a fit of temper’ got him arrested,Footnote ²³⁴ and it would appear that his ‘callous and indifferent’ attitude in court, not to mention his previous character, were aggravating factors at the sentencing stage where he received eighteen months’ imprisonment.Footnote ²³⁵ J. M., for instance, admitted in open court that ‘his own sister charged him with attempting to rape her’,Footnote ²³⁶ while two of his daughters from his previous marriage endured the stigma of being placed in an Industrial School after the elder girl was ‘indubitably assaulted and more than likely ravished by him’.Footnote ²³⁷ Unlike the leniency that was afforded to defendants who were willing to enter into matrimony with their victims in the nineteenth century,Footnote ²³⁸ the judge considered ‘imprisonment the only punishment & safeguard’ for the accused’s dependants.Footnote ²³⁹

Identifying the extent to which consent had been forthcoming from the information provided in the prisoner files is laden with difficulties. In only a small number of cases did the extent of the injuries sustained by the victim remove any reasonable doubt about her lack of consent. Although a number of offences involved the perpetrator ‘knocking’ the victim to the ground,Footnote ²⁴⁰ there were only a small number of cases – excluding those involving pregnancy – where the physical harm to the victim was considerable. In October 1923, for instance, a mother found her four-year-old child crying and bleeding from her private parts,Footnote ²⁴¹ while in Tipperary in June 1929, fifteen-year-old E. P. was defiled while unconsciousFootnote ²⁴² after falling and hitting her head off a stone.Footnote ²⁴³ The extant archival evidence also reveals that a small number of very young victims were not only physically injured, but emotionally disturbed by the offences. In the case of M. M. in Limerick in 1934, the six-year-old victim was flushed, her hair was tossed, and she displayed signs of distress when she returned home.Footnote ²⁴⁴ The child also complained of a pain in her stomach, and notwithstanding that there was no injury to prove penetration or semen traces, the doctor observed that she ‘displayed an unusual fear in regard to her private part’.Footnote ²⁴⁵ Likewise, in a Dublin case in 1925, the nine-year-old victim was ‘overcome with terror’ and ‘shaking her clothes and crying’ in the aftermath of the attack.Footnote ²⁴⁶ The medical evidence confirmed the extent of the physical injuries inflicted, which included forcible distension of the vagina consistent with the physical signs of an attempted rape.Footnote ²⁴⁷ The child was subsequently found to have contracted gonorrhoea, which necessitated hospital treatment due to her tender age.Footnote ²⁴⁸ She was one of the four victims in this sample who contracted venereal disease.Footnote ²⁴⁹

Notwithstanding the use of force, consent may have been vitiated by fear, intimidation, or fraud, and thus the fact that the majority of these offences appear to have been committed in non-violent circumstances does not necessarily imply that these victims consented to the sexual act. The varied materials gathered by the Department of Justice when these prisoners’ petitions for release were being considered ranged from correspondence from prison authorities, trial judges, doctors of varying expertise, petitioning letters from various institutions and individuals, court depositions, and Garda reports (which frequently tend to offer a more punitive assessment of convicted sex offenders that directly contradicted the claims of petitioners).Footnote ²⁵⁰ Officials in the Department of Justice usually drafted a summary of these materials which was then presented to the minister for justice. From the historian’s point of view, these documents, taken collectively, offer composite yet often contradictory narratives of individual cases,Footnote ²⁵¹ but they are the only available sources that enable one to investigate whether or not the victims consented to the sexual intercourse. However, in certain cases, there are obvious limitations in taking the statements of the victims solely as the basis for determining whether the sexual act was consensual or non-consensual. For instance, one difficulty associated with reliance on these statements, as a source to establish de facto consent, was the partiality of the evidence and the ensuing effect this had on objectivity given that a substantial proportion of the cases almost invariably involved a direct conflict of evidence.

Reliance on these statements is fraught with difficulties in a number of other respects. It is possible that some of the young females would not admit to their parents that they had consented to the conduct. Indeed, although the detail contained in the prisoner files is quite limited in this respect, it was possible to discern that a number of complainants delayed reporting both exploitative offences and consensual transgressions due to fears of parental opprobrium. Moreover, in a Roscommon case in 1931, resentment seems only to have arisen due to the reluctance of the prisoner to marry the girl after it emerged that ‘she was in the family way’.Footnote ²⁵² Significantly, the Irish Women’s Medical Association contended that it was their experience that girls of ‘14 to 17 years of age who have been assaulted or who have been acting immorally do not make any statements to their parents unless they become pregnant’.Footnote ²⁵³ Therefore these factors, although they escape any precise assessment, may possibly have had a direct bearing on the amount of crime recorded, and the number of offenders brought to justice.

Many of the victims in this sample were too young to have the capacity to consent,Footnote ²⁵⁴ but it is possible to determine whether the female actively resisted in some of the cases.Footnote ²⁵⁵ This, of course, is not to suggest that a failure to put up some level of resistance or opposition in such circumstances can be equated with consent, and there is evidence in the prisoner files to demonstrate that a number of victims submitted to the sexual acts due to threats of serious violence or detriment to themselves. J. McH. testified in 1932 that she ‘did not know what he was doing to her and that she endeavoured to shout but he prevented her by placing his hand on her throat’.Footnote ²⁵⁶ In another case from Offaly in 1933, N. M. resisted and shouted, but J. K. put his hand over her mouth and threatened her ‘if you don’t shut up I will kill you’.Footnote ²⁵⁷ The victim later testified ‘I thought I would die, it was terrible.’Footnote ²⁵⁸ Moreover, it was reported that R. R. defiled eleven-year-old O. B. ‘partly by threats’.Footnote ²⁵⁹ Other offenders also used threats to pacify the victim. Nine-year-old A. D., for example, began roaring when she heard a car pass during the attack, but the perpetrator, T. K., warned her to ‘shut up for Christ’s sake or “I’ll put it down your neck”’.Footnote ²⁶⁰ The victim began roaring again when she heard another car passing which provoked the accused to respond ‘for Jesus’ sake will you shut up or I will choke you’.Footnote ²⁶¹ As the oft-quoted dictum of Justice Coleridge elucidated in 1841, there was a considerable distinction between consent and submission: ‘it by no means follows that mere submission involves consent’.Footnote ²⁶² The decision to under-charge these offenders could possibly have been attributed to the stringency of evidence required for the graver offence of rape,Footnote ²⁶³ or perhaps charging these perpetrators with the lesser offence of unlawful carnal knowledge was preferable, as a matter of policy, because there was no need for cross-examination of the girl on the crucial issue of consent.

It is also evident that some of the victims did not properly understand the nature and implications of the conduct because of their age. At the Easter sitting of the Dublin Circuit Criminal Court in 1931, eight-year-old L. G. attested during the trial of H. B. that ‘I wasn’t crying or didn’t tell him to stop because I couldn’t he was lying on top of me.’Footnote ²⁶⁴ In the same court in 1925, nine-year-old A. O’B. told the court that thirty-three-year-old W. McG. ‘didn’t hurt me’ and that she ‘didn’t call out’ when the defendant attempted to have intercourse with her.Footnote ²⁶⁵ Similarly, in Cork in 1929, fourteen-year-old B. D. gave evidence that ‘I made no outcry and I made no struggle against him. I did not know he was doing me any harm’,Footnote ²⁶⁶ while in Offaly in 1929 fourteen-year-old E. C. stated that when T. W. knocked her down she did not cry because she ‘didn’t know what he was going to do’.Footnote ²⁶⁷ Furthermore, it was clear that other victims, by virtue of their age, ‘did not appreciate the seriousness of the conduct’.Footnote ²⁶⁸ Certain civil servants, on occasion, scarcely fared any better. For instance, one senior official wrote that the young female ‘voluntary permitted the accused to have connection with her on five occasions’,Footnote ²⁶⁹ but little consideration appears to have been given to the fact that she was a mere ten years of age at the time. In another particularly disturbing case in 1933, seven-year-old R. F. returned to the street to play with her friends after the offence,Footnote ²⁷⁰ but was encountered by a neighbour who observed blood streaming down the child’s leg to her wellington boots.Footnote ²⁷¹ The perpetrator, twenty-year-old T. C., was sentenced to two years’ hard labour with the trial judge, Justice Wyse Power, stating that only for his youth he would have sentenced him to five years’ penal servitude.Footnote ²⁷²

Conversely, in a small number of cases, there was evidence of some objection or resistance by the victims at the time of the offence. The resistance in most of these cases could be best described as vocal protestation. In Kilkenny in March 1931, twelve-year-old K. C., a school girl, gave evidence to the court that she cried out when she was being assaulted but ‘no person came to her assistance’,Footnote ²⁷³ while in Dublin in 1930, sixteen-year-old B. M. testified that ‘she did not consent to his having connection with me. I told him to stop. I told him to stop. I did not struggle. He had a hold of my hands.’Footnote ²⁷⁴ Similarly, in Cork in 1931, eleven-year-old C. L. screamed, but the perpetrator put his hand on her mouth and said ‘hush’.Footnote ²⁷⁵ Other victims actively resisted and made unsuccessful attempts to escape the perpetrator. In Cork in 1934, eight-year-old M. K. ‘endeavoured to make her escape, but failed’,Footnote ²⁷⁶ while in Cavan in 1931, J. McH. stated that she ‘tried to get away from him but he was too strong’.Footnote ²⁷⁷ There were, however, some examples of positive physical resistance. In Roscommon in 1934, thirteen-year-old S. K., who was described as ‘big and strong for her years, resisted’ her assailant successfully,Footnote ²⁷⁸ while in Sligo in 1934, fifteen-year-old B. A. M. told the court that ‘she did not shout for help’, but that she ‘struggled’ with the accused, ‘ordered him away’, and that she ‘resisted for a considerable time’.Footnote ²⁷⁹ Physical resistance was also evident in the aforementioned case of J. K. in 1929, where fourteen-year-old N. M attempted to physically resist the accused by picking up his walking-stick and hitting him with it. She testified that she was ‘going to hit him again’, but he took it from her before proceeding with the assault.Footnote ²⁸⁰ The defendant, who was described as ‘a bit below normal intelligence’ but ‘by no means an idiot’, was convicted and sentenced to eighteen months’ hard labour.Footnote ²⁸¹ The trial judge, Justice Gleeson, described him as a ‘menace to young girls’ and stated that the ‘proper place for him was a mental home’.Footnote ²⁸²

IX

Writing in 2013, Tom O’Malley observed that it is occasionally claimed that child sexual abuse was unknown or at least unrecognized until relatively recently.Footnote ²⁸³ True, there was little open discussion of sexual violence in Ireland until the 1970s, but what can be stated with some certainty is that children were abused, sexually and otherwise, throughout the formative years of Irish independence, that only a fraction of this abuse was reported, and that some of the perpetrators who were apprehended for these offences were tried and convicted.Footnote ²⁸⁴ Moreover, it is clear that there was some public awareness of child sexual abuse.Footnote ²⁸⁵ Newspapers reported on over half of these cases – albeit often in a coded fashion that obscured the precise nature of the offenceFootnote ²⁸⁶ – and parents warned their children to stay away from predatory individuals within their communities.Footnote ²⁸⁷ In one case, for instance, it was stated that the perpetrator had ‘the reputation for interfering with young girls in the locality’,Footnote ²⁸⁸ while in another case it was revealed that accused’s presence in the community was ‘a perpetual source of worry to parents of young female children and the Gardaí found it necessary to keep him under special observation for some time prior to his arrest as a result of complaints that had been received regarding his conduct’.Footnote ²⁸⁹ Child sexual abuse, as a recent body of literature reveals, was not quite as hidden as oft-perceived.Footnote ²⁹⁰

What is also notable about the findings of this study is the degree of similarity with more contemporary contextual and situational studies of sexual crime.Footnote ²⁹¹ The majority of the victims were exploited in childhood by someone who was known to them; the offences were predominantly exploitative in nature; many of these offences were crimes of opportunity; occasionally the offence included some type of threat, bribe, or inducement to silence the victim; and proceedings were not instituted simply as a corollary of the wider concern about the perceived increase in illegitimate births. Furthermore, the evidence that emerged from extant prisoner files challenges the contention that invariably it was ‘girls and women rather than boys and men who were seen as sexual deviants’.Footnote ²⁹² Men and boys were also seen as deviant and culpable, and the convictions secured in these cases may call for a reappraisal of the view that ‘many of these girls were simply not believed or that offenders were given the benefit of the doubt’.Footnote ²⁹³ Finally, these findings, to use Sinéad Ring’s words, leave us with a question that is very difficult to answer: ‘why did the sexual abuse of children go unrecognised as a societal problem for so long?’Footnote ²⁹⁴ It was not that there was no awareness of sexual crime in the early years of Independence: parents, police, priests, doctors, judges, juries, journalists, women’s organizations, and social workers were all aware of sexual crime during this period, even if they were, perhaps, unaware of the psychological and emotional suffering it caused victims, particularly young children.Footnote ²⁹⁵