A LEADING CRIMINAL lawyer has warned about heeding the “shrill voices” urging a referendum to reinstate the absolute offence of sex with under-age girls, stating that this is a very complex area requiring reform of the law.
Patrick Gageby SC told a briefing on protecting children organised by the ICCL in Leinster House yesterday that most cases involving under-age sex concerns people of roughly the same age.
“Flocks of paedophiles in dirty macs waiting is not what we see,” he said.
He warned that any proposed new legislation should be careful about restricting the right to cross-examine, which might be unconstitutional.
“If the issue is the age of the girl, how is that to be established without describing how she looked?” he asked.
He said that the cases where a defendant could use the defence of making an honest mistake as to the age of the girl (permitted since the Supreme Court struck down the 1935 Act outlawing sex with under-age girls) were very few.
“People seem to ignore the fact that [these cases] are decided by a jury. Neither judges nor juries believe everything they are told. The gardaí usually investigate these cases quite well, finding out what school the girl attended, what class she was in. It would be quite difficult to establish the belief as to age defence.”
Tom O’Malley, lecturer in law in NUI Galway, said absolute protection of children from sexual exploitation did not come from law but from society.
“We had absolute protection for 71 years and we saw some of the most egregious abuse of children,” he said.
He said we should not rely on prosecutorial discretion to avoid prosecuting children of similar ages engaging in sexual activity.
“People are entitled to know what the law is. Prosecutorial discretion is fine, but it is no substitute for legality. And there is always the possibility of a private prosecution.”
He also said that there was a need for greater legal clarity about sexual relationships between people with an intellectual disability.
It was a crime to have sex with a mentally impaired person, but if two people with disabilities had a sexual relationship, was one or both of them committing an offence?
Róisín Webb BL, who wrote the briefing paper for the ICCL on “Protecting children and respecting the rule of law”, said that the law should make it clear at what age children were capable of giving consent to sexual activity.
There was a need to distinguish between consensual sexual activity between teenagers and the sexual exploitation of children by adults.