Taoiseach Bertie Ahern has told the Dáil that 42 men facing charges under statutory rape legislation that was struck down by the Supreme Court last month may be charged with different offences.
The court ruled that Section 1 (1) of the 1935 Criminal Law (Amendment) Act was unconstitutional and should be struck out. It said the legislation did not allow for the defence of reasonable mistake about the victim's age.
Under the 1935 Act, a man was deemed automatically guilty of a crime if he had sex with a girl under 15 years of age.
The decision resulted in the release of a 41-year-old man, known only as 'Mr A', who was jailed for three years in 2004 for having sex with a 12-year-old girl he had plied with alcohol. He was subsequently re-arrested and returned to prison after the Government rushed through new legislation to plug the legal loophole.
Mr Ahern told the Dáil today that 42 people were facing charges before the court under Section 1 (1) of the 1935 Act. Another 12 men face charges under Section 2 (1) of the Act.
Under persistent questioning from Fine Gael leader Enda Kenny and the Labour Party's Pat Rabbitte, Mr Ahern insisted that these men would not escape prosecution.
They could still be charged by the Director of Public Prosecutions with sexual assault or aggravated sexual assault, he said. In certain
circumstances, some may
face
a rape charge.
However, Mr Ahern conceded that new legislation must be introduced to protect victims. As the law stands, children as young as 11 years old can now be cross-examined in court by lawyers for alleged offenders because the defence of making an honest mistake about the victim's age has been wiped from the legislation.
"It creates a real and extra burden for the victim of unlawful carnal knowledge," he told TDs.
"It means the victim can be subject to rigorous cross-examination by counsel for an accused who may transpire to be a sexual predator.
"The idea of an 11-year-old girl being grilled in the witness box as to her make-up, perfume or style of dress or the manner in which she comported herself, will undermine the effectiveness and prosecutions of unlawful carnal knowledge.
"Parents and citizens will be horrified by such a prospect. In those circumstances, I wonder whether the existence of the prospect of such cross-examination by experienced counsel will have an effect on such prosecutions."
A new cross-party Oireachtas Committee has been established to review child protection laws and the issues surrounding new legislation governing underage sex.
It expected to hold a series of hearings and meetings in private and public and will report to the Oireachtas and Government in the autumn.
"The situation cannot be left as it stands. The Supreme Court has made its judgment to strike down the Act and cases are pending on the other section of the Act, which will come up in due course.
"We should reflect on the situation now and not leave it for the whole summer.
"We will not have completed it by the end of September but we should try to do so as early as possible in the autumn. We are anxious to progress the matter as quickly as possible."
Mr Ahern said he wanted to be careful not to comment on individual cases for fear of prejudicing future trials. "I do not want to make any remarks that might constitute prejudicial publicity and result in the trials of accused persons collapsing. They are before the courts.
"It is for the DPP to make his decision on a case-by-case basis as to what, if any, substitute or additional charges be preferred."
