Absolute liability has been used sparingly in the past, but it is vital the DPP has this option, writes
BREDA O'BRIEN.
REMEMBER MR A, who plied a child of 12 with Bacardi Breezers and vodka and then had sex with her after she vomited? Remember how the people marched on the Dáil when he was released from prison, and the Supreme Court scrambled to land him back in jail again?
Evidently, we don't. This week, the Joint Committee on the Constitution and Children issued an interim report dealing with the issue that enabled Mr A to walk free, however briefly. The report has generated little discussion, despite the fact Fine Gael issued its own strongly worded minority report disagreeing fundamentally with the official one.
The difficulty arose in 2006 when the Supreme Court struck down part of the 1935 Criminal Law (Amendment) Act that did not allow for the defence of a mistake as to age when a man had sexual intercourse with a girl under 15. As the Director of Public Prosecutions (DPP) stated to the committee, under the 1935 Act the birth certificate of the injured party was the most important piece of evidence. The DPP continued: "This meant that the charge of unlawful carnal knowledge was an attractive one from the prosecutor's point of view." The defence of honest mistake as to age was not open, so scope for cross-examination of the injured party was limited, and often the girl did not have to give evidence, sparing her further distress.
It is important to remember that the DPP has choices on what charges to press, or indeed, whether to prosecute at all after allegations of sexual assault. There were worries that reintroducing absolute liability would mean that consensual sexual intercourse between teenagers would be criminalised.
Not so, the DPP said, because its office has always exercised discretion, and if, say, outraged parents who discovered a child was sexually active sought a prosecution, the DPP could decide that this was not in the public interest. However, the DPP reminded the committee that there are cases of exploitative or abusive sexual behaviour between young people, even where there is no major age discrepancy, and thus having absolute liability as an option could be a useful "tool".
After the "unlawful carnal knowledge" statute was struck down, the Government rushed to bring in legislation which did allow for "honest mistake". It is widely recognised that it is flawed. For example, a 50-year-old man who picks up a 14-year-old and has sex with her can plead that he thought she was 18. If he conducts his own defence, he can cross-examine her himself. Her behaviour and appearance can be dragged up as evidence. It is a major disincentive to children and/or parents to proceed with cases, even when much younger children are involved.
The Government also put in place a proposal for a complex amendment to the Constitution, which included reinstating the provision where "absolute liability", that is, no defence of "honest mistake", could be used.
This last report concentrated on Article 42(A).5.2 of this proposed constitutional amendment, that is, "the proposal to give legal authority to create offences of absolute or strict liability in respect of sexual offences against or in connection with children". The committee recommended many good things, such as restrictions on use of a defence of a mistake as to age in statutory rape cases, and barring a defendant from personally cross-examining a victim.
The only problem is that many of the useful aspects were already recommended in a 2006 report. On the reintroduction of statutory rape where no defence could be offered, it decided against a constitutional amendment, and to rely on strengthening legislation.
Fine Gael is outraged at this volte-face by the Government. Fine Gael believes it is key to have a constitutional referendum to provide absolute protection for under-15s, and to introduce strict liability from age 15 to 17. The latter would mean the current subjective defence of "mistake as to age" would be replaced by an objective defence by which an alleged offender could establish that he/she had "reasonable grounds for believing" the alleged victim to be over 17. Given that the committee simply proposes a variety of possible legislative reforms, Fine Gael believes it has abdicated its responsibility. It is hard to disagree.
It is very important to have the option of absolute liability where an adult has been "grooming" a child, a situation where the child ends up sometimes wishing to defend the abuser. In a Northern Ireland case, a much older neighbour groomed a girl aged 13 and had sexual relations with her for over seven months.
After his conviction, the mother revealed "it took five months for it to sink into her head that he didn't really love her". The child descended into self-harm and suicide attempts when she realised how utterly she had been betrayed and abused.
The framers of the Twenty-Eighth Constitutional Amendment Bill 2007 deserve a lot of blame. As it stands, it could fail for many reasons. For example, Emily Logan, the Ombudsman for Children, advocated strongly that a clause needed to be added to make it clear there was not a clash between children's rights and parental rights, and that parents are the primary defenders of their children's rights and should be supported in that task.
Fine Gael is to be commended for wanting to provide maximum legal protection for abused children, and to protect them from cross-examination. Absolute liability has been used sparingly in the past, but it is vital that the DPP has it as an option.
In contrast, Fianna Fáil is yet again shilly-shallying on children's welfare.