The DPP has offered a way forward on the thorny issue of protecting children from sexual predators
SINCE THE striking down by the Supreme Court of Section 1 of the Criminal Law Amendment Act 1935, outlawing sex with under-age girls, there has been a clamour for a constitutional amendment that would allow this law to be reinstated.
However, the more the Committee on a Constititonal Amendment on Children discussed it, the more difficult
this appeared to be. A raft of experts and lobby groups appeared before it, but no consensus emerged.
Among the difficult questions they raised were – what about the situation where consensual sex took place between two young people where one of them (or, indeed, both) were under the age of consent? A further difficult question was what the age of consent should be.
In the immediate aftermath of the striking down of the relevant section of the 1935 Act, the DPP James Hamilton favoured the reinstatement of an offence of strict liability, pointing out that it was a very useful prosecutorial tool that meant the victim, typically a young girl, did not have to give evidence and did not have to face cross-examination about her style of dress and, possibly, her previous sexual history.
However, in his last presentation to the committee, which has been seen by The Irish Times, he put forward a series of proposals to improve the law without needing a constitutional amendment.
He said that strong arguments had been advanced in favour of not reintroducing absolute liability in respect of an offence that is serious and carries such a high level of stigma and potential punishment, although such arguments were less strong in relation to young children, for example those under-13.
These arguments included the fact that strict liability would in principle criminalise non-exploitative sexual activity between teenagers of similar ages.
In practice, neither he nor his predecessor as DPP had prosecuted such cases, he said, and, of the cases prosecuted since the introduction of the 2006 Criminal Law (Sexual Offences) Act, there was an age gap of six years or more in almost 85 per cent of the cases.
He also said that parents sometimes sought prosecution in cases involving teen sex, and it was also sometimes the case that a girl claimed what was consensual sex was not when a parent found out about it. He added that persons of comparable ages could be involved in abusive and exploitative relationships. However, he did not think that strict liability was the ideal way to deal with such matters.
There were questions as to what extent the law could be strengthened by statute without running foul of the Constitution and the European Convention on Human Rights, he said.
Focusing on the need to protect children from sexual exploitation, he said that it would be possible
to create an offence of strict liability to apply to persons in authority who may be reasonably expected to know the age of their charges.
He asked whether it would be constitutional to reverse the burden of proof on to an accused who sought to assert a belief as to the age of the child. “Would it be constitutional to require such a belief to be objectively reasonable as well as honest?” he asked.
He strongly urged the committee to deny accused persons the right to cross-examine an injured party in person, either by having a lawyer, or, if unrepresented, by putting questions through a judge. The giving of evidence by video-link could also be more widely used.