Someone who has sex with a girl under 15 is by definition committing a sexual assault that carries a very severe penalty, the Minister for Justice has said.
Minister for Justice Michael McDowell
Addressing this week's judgment of the Supreme Court that a 1935 law barring sex with a girl of that age was unconstitutional, Michael McDowell denied there was now a gap in the law.
"It isn't the gaping void that some people are arguing for," he said.
Speaking on RTÉ's Today with Pat Kennyprogramme, Mr McDowell said the 1935 legislation struck down by the Court this week was found to be inconsistent with the 1937 Constitution.
"But let's remember this, that every sexual offence that's unlawful carnal knowledge of a girl under 15 is in fact also what's now called a sexual assault, and no girl under 15 in our law can consent to a sexual assault on her.
"So the offence of sexual assault is always committed by somebody who has sexual intercourse with a girl of that age," he said.
Mr McDowell admitted the State currently has a lot of "strange law" in this area, where, for example, a male having sexual intercourse with a female the same age commits an offence and the girl doesn't.
"And that is an anomaly dating back to the 1930s, and it's obviously unacceptable in this day and age that two people could go to bed together and have sexual intercourse, that one commits a crime even though he might even be younger than the other, and that the other person doesn't commit a crime at all."
The Minister said the law since 1990 was that in any case where someone was charged with these kind of offences they could be convicted of sexual assault.
"So it is an alternative verdict for the Director of Public Prosecutions and the Attorney General now in their respective roles to look at this issue because some people are before the courts, or sent for trial or are awaiting prosecution, and the alternative offence of sexual assault carrying a very serious penalty is available.
"So I just want to stress that there isn't a huge black hole which has suddenly appeared in the law," Mr McDowell said.
The Minister said it was now the case that some people had been prosecuted "for effectively an offence that has been found not to have existed.
"And in those circumstances, whether people can be rearrested and recharged is a matter which I wouldn't care to hazard a guess at this point," he said.
"But certainly for people who are in the system and against whom there is evidence of unlawful carnal knowledge of a girl under 15, there is by definition evidence of sexual assault, and that carries a very severe penalty."
Mr McDowell said the Government had studied proposals put forward by the Law Reform Commission in 1990 and that a discussion paper had been issued in 1998.
"There has been reform of the law in the meantime," he said. However, he said there still remained a division of opinion over how young people should be protected.
"How you protect minors from sexual activity is a very complex issue and one of the issues I now have to look at and bring to Government proposals on is whether we are going to say in future that say two sixteen-year-olds having sexual intercourse consensually commit any offence.
"That's an issue that we have to look at very very carefully and then we have to ask ourselves do we want to protect 15-year-olds from randy 23 -year-olds, if I can use that phrase. It's not an easy one to legislate on the back of a beer mat for, and it doesn't require an instant response because there is no gaping black hole," the Minister said.