THE OIREACHTAS Committee on the Constitutional Amendment on Children is likely to decide next week to recommend legislation rather than a referendum to deal with the issue of sex with under-age girls, The Irish Timeshas learned.
This is likely to be a decision of the majority of the committee. Fine Gael’s spokesman on children Alan Shatter has consistently favoured a constitutional amendment rather than legislation.
It is understood that a submission by the Director of Public Prosecutions James Hamilton last October helped sway a majority of the members in favour of recommending legislation.
The committee will meet on Wednesday next to finalise its report on this issue, which arose from the Supreme Court striking down as unconstitutional Section 1 of the 1935 Criminal Law Amendment Act.
This made it an offence to have sex with a girl under the age of 15. The Supreme Court found that, by making it impossible to put forward a defence of mistake as to the age of the girl, it was unconstitutional.
A new Act, the Criminal Law (Sexual Offences) 2006, was then passed outlawing sex with under-age children, but allowing for a defence of mistake as to their age.
As a result, there were demands for a constitutional amendment to restore the situation that had existed under the 1935 Act. This has been under discussion for over a year by the Oireachtas committee, initially set up to consider a broad constitutional amendment on the rights of children. At the committee Mr Shatter has strongly urged the holding of a referendum to restore a strict liability offence of sex with under-age girls.
The Minister for Children Barry Andrews indicated to it last June that the Government hoped it could achieve as much protection for girls as possible through legislation, and Labour’s Brendan Howlin then asked the party’s legal advisers to draft a Bill that might address these issues without going to a constitutional amendment. Sinn Féin’s Caoimhghín Ó Caoláin also put forward proposals for legislation.
In October last, Mr Hamilton made a presentation to the committee which made a number of proposals for improving the legislation without having recourse to a referendum.
These included creating an offence in relation to people in authority over a young person, and measures to reverse the burden of proof on to an accused asserting his belief as to the age of the child.
A Supreme Court referral under Article 26 could then decisively settle any constitutional issues, he said.
Referring to earlier submissions made to the committee, he said that an amendment to reinstate strict or absolute liability for sex with a young person below the age of consent would in principle criminalise factually consensual non-exploitative teen peer sexual exploration. While prosecutorial discretion had generally kept such cases from being prosecuted, it was not uncommon for parents to seek prosecutions in such cases.
He said he agreed with the need for the codification of the criminal law, particularly in relation to sexual offences, to make it more accessible and comprehensible. He also said the law should be informed by solid empirical research valid in the Irish context.