The age of consent for sexual intercourse will not be lowered under new legislation, Minister for State for Children Brian Lenihan said today.
A draft of the new law is set to be unveiled this afternoon following last week's Supreme Court decision that struck out the 1935 provision for statutory rape. The law was struck out because it did not allow an individuals to claim they genuinely thought a person was above the age of consent.
The Supreme Court decision lead to a 41-year-old man, jailed for the statutory rape of a 12-year-old girl, walking free on Tuesday.
Mr Lenihan said this morning the new legislation will close the loophole in the 1935 statutory rape law and create a "maximum zone of protection for children".
Speaking on RTÉ radio, he said the age of consent for sexual intercourse would not be reduced under the new legislation as "the signal we want to set out is that of the protection of children".
The Dáil and Seanad are to meet tomorrow to rush through a Bill that Mr Lenihan said had already reached the seventh draft. The draft is expected to be made public at 3pm.
Mr Lenihan said the Government's stated aim in introducing the new law was to restate the prohibition on sexual intercourse with persons under the age of 17.
Under the new legislation, those convicted of having sex with individuals under 17 years of age would face jail for periods of up to five years. Those convicted of the more serious offence of having sex with individuals under 15 will face a penalty of up to life imprisonment.
But crucially, Mr Lenihan said that following last week's Supreme Court ruling, the right of accused to defend themselves on the grounds that they genuinely believe that the individual concerned was above the age of consent will be included in the new legislation. However, the burden of proof will remain with the accused, he said.
Mr Lenihan said the new law would be gender neutral unlike the 1935 legislation, which made it illegal for underage males to have sex with underage girls but not vice versa.
Under the new law, in cases of sex between underage persons, it will be up to prosecuting authorities to decide on proceeding with a case or not, he added.
However, the Minister said the issue of consensual sex would not be included in the new law as the Government believed children should not "have to defend their position in court".
Referring to the Law Reform Commission's recommendation in 1990 that the 1935 law should be changed, Mr Lenihan said: "The Government through the Department of Justice, looked at the recommendation and decided not to proceed with [replacing] it.
"The Government took the view at the time that this defence of an honest mistake as to an age shouldn't be allowed and that when you are talking about children that people should be careful . . . children should not be put into a position of being questioned and their credibility undermined in court cases where their protection is at issue," he said
Mr Lenihan said: "Now that argument is over. The Supreme Court has arrived at a different point of view and that's their entitlement. The Government is not always obliged to legislate in accordance with the wishes of the Law Reform Commission. They do actually have to take a view on these issues."
