The Ombudsman for Children has expressed concern that emergency legislation passed last June discriminates against boys and involves the potential criminalisation of young people in respect of consensual sexual behaviour.
Addressing the Oireachtas Committee on Child Protection, Emily Logan also said the Criminal Law (Sexual Offences) Act, 2006, was a "missed opportunity" that failed to incorporate several principles set out in the UN Convention on the Rights of the Child.
Ms Logan said she believed that, in principle, young people should not be criminalised in respect of consensual behaviour among themselves.
"The key element here is consent. Where there is actual consent, criminal proceedings should not be brought.
"Secondly, I do not consider that there are reasonable grounds for the provision which grants immunity to girls in respect of sexual intercourse and which thereby discriminates against boys."
Tackling the stigmatisation which may attach to teenage pregnancies would be better achieved by the removal of the criminal law from the sphere of consensual sex between young people and by introducing awareness measures, she added.
Ms Logan argued that, in the event that a prosecution be brought against a young person, it should be at the discretion of the Director of Public Prosecutions (DPP). She urged the committee to recommend that the discretion of the DPP be extended to children of all ages, not just the 15-17 age group as is currently the case.
"I further consider that the DPP should exercise this discretion in accordance with the best interests principle enshrined in the UN Convention on the Rights of the Child and that the rationale for his decisions should be made public," she said.
Minister for Children Brian Lenihan said an argument had been made that "a strong signal" must be sent out in setting the age of consent, and asked Ms Logan what age she felt would be appropriate with that need in mind.
Ms Logan said: "I'm not going to say 16 or 17. That would be a subjective opinion."
Instead, this decision should be taken after consultation with young people and those working with them, she said.
The ombudsman further recommended to the committee that express rights for children be included in the Constitution, suggesting that this would accommodate the introduction of special measures to protect children involved in court proceedings.
"Without this recognition, I fear that such special measures may be subject to challenge as to their constitutionality," she said.
Ms Logan was concerned that the 2006 Act left open the possibility that child witnesses may be required to attend trial and may be subject to cross-examination, and recommended a series of measures that would protect child witnesses and prevent their appearance in court. These included the use of video evidence; limitations on cross-examination; the presence of intermediaries to support a child; and clarity around the duty to protect children in a courtroom.