THE OIREACHTAS Committee on a Children’s Amendment to the Constitution will today outline proposals both for new legislation on sex with children, and a possible constitutional amendment on the matter. In its second report, to be published today, it acknowledges it has been unable to come to an agreed position on the way forward.
The Irish Timesunderstands that a majority of the committee favours legislation to deal with the matter.
The committee was asked to consider an amendment to the Constitution, proposed by the Government, that would overturn a Supreme Court ruling that had struck down the law outlawing sex with under-age girls.
In 2006 the court found that, by not allowing an accused person to offer a defence that he honestly believed the girl to be over the age of consent, the law conflicted with the Constitution.
This led to the enactment of the 2006 Criminal Law (Sexual Offences) Act, which restored the offence, but provided for a defence of honest belief as to the age of the child.
However, calls continued for a constitutional amendment to restore the previous offence of strict liability, which would allow for no defence, once the facts of age and sexual contact were proven.
The issue has been discussed in the Oireachtas committee for months, with a majority of the committee, made up of Fianna Fáil and Labour members, favouring amending legislation, while Fine Gael has continued to promote a constitutional amendment.
In October last the Director of Public Prosecutions, James Hamilton, made a presentation to the committee in which he said that there had been no fall-off in the number of prosecutions or convictions of those accused of sex with under-age girls since the striking down of the old Act.
He also made a number of proposals for improving the legislation without having recourse to a referendum.
These included creating an offence in relation to people in authority over a young person, and measures to reverse the burden of proof on to an accused asserting his belief as to the age of the child.
A Supreme Court referral under Article 26 could then decisively settle any constitutional issues, he said.
These proposals are among the 39 recommendations of the committee to be published today.
The report also recommends that, if an amendment to the Constitution is to be proposed, the legislation to be enacted on foot of the legislation should be published prior to the referendum.
It also recommends an alternative form of wording to that proposed by the Government, with the wording of text confined to “sexual offences of absolute or strict liability committed against a child under 18”.
The report also makes a number of recommendations relating to criminal procedure, with regional specialist child protection units within the Garda Síochána, and special measures to interview child witnesses, including extensive use of video-link and special training for those involved in the questioning of child witnesses.
The DPP told the committee that an amendment to reinstate strict or absolute liability for sex with a young person below the age of consent would in principle criminalise factually consensual non-exploitative teen peer sexual exploration.
While prosecutorial discretion had generally kept such cases from being prosecuted, it was not uncommon for parents to seek prosecutions in such cases, he said.
The report now contains a section on the problem of peer relations, in order to avoid criminalising consenting, non-exploitative sexual activity among young people.
This includes considering an age below which a person might not be prosecuted for sexual activity with another child, and the development of a range of age-appropriate and non-penal responses to under-age sexual activity.