MINISTER FOR Justice Brian Lenihan has described as "defective" current legislation that allows a defence of honest mistake in cases involving sexual contact with minors. CONOR LALLY, Crime Correspondent, reports.
He believes a referendum could help to rectify the difficulties but said the issue could only be put to the people if the public supported such a ballot.
"My own view is that we have to make it less easy to avail of this defence. If the Constitution is a roadblock then it has to be removed," the Minister said.
He was speaking to reporters at a Garda passing out ceremony at the Garda College, Templemore, Co Tipperary.
Mr Lenihan made his comments the day after a 27-year-old Dublin man, known only as Mr K, was acquitted of the sexual assault of a then 13-year-old girl with whom he had sex in Howth, Co Dublin, in 2001.
He was acquitted after putting forward the defence of honest mistake, claiming he believed she was "17 going on 18".
The case was the first of its kind since the Supreme Court ruled in 2006 that the legislation dealing with unlawful carnal knowledge was unconstitutional because it did not allow the defence of honest mistake.
Mr Lenihan believed there was a problem with the Supreme Court decision "insofar as it suggests you can raise subjectively the defence that you made an honest mistake".
"As a minimum a mistake must be a reasonable one, not just an honest one. I think that is a defect that has to be addressed in the law. If the Constitution stands in the way of reforming that, then we will have to amend the Constitution. But that requires a referendum and a referendum requires popular support."
He was surprised by comments yesterday from Fine Gael, which criticised the Government's handling of the issue. Mr Lenihan said Fine Gael was participating in an all-party committee examining how best to address the issues that have arisen.
That committee was "making progress" and any recommendation by it to hold a referendum would be considered.
He defended the current legislation, which was amended to provide for the honest mistake defence after the Supreme Court's 2006 ruling, saying it "was all the Oireachtas could do set down by the limitations" of the court's ruling.
While many people believed a referendum should be held to fully address the legislative situation, the all-party committee had received many submissions which opposed a referendum.
"Clearly we want to ensure the maximum protection possible for kids, but justice has to be observed in the courts as well; that's what the Supreme Court is telling us," Mr Lenihan said.
"There's a balance to be struck here. We can't just say: 'Let's automatically convict people.' People have their rights in all cases.
"You have to look at the facts of any particular case before we rush to judgment on it," the Minister added.