Even without the law struck down by the Supreme Court, many provisions existed to act against sex abusers of children, writes Tom O'Malley
Yesterday's events should go some distance towards assuaging public disquiet over last week's Supreme Court decision striking down an unlawful carnal knowledge provision of the Criminal Law Amendment Act, 1935, and this week's High Court decision to release a man serving a prison sentence for that offence.
Following yesterday's Supreme Court decision, few offenders serving prison terms for unlawful carnal knowledge can expect to be released, while the new Sexual Offences Bill fills the gap created by last week's constitutional decision.
While the new law will not, of course, apply retrospectively, it provides a reasonably effective range of criminal sanctions for any future sexual abuse of persons aged under 17.
Even in the absence of this new legislation, there was in any event a fairly comprehensive range of statutory provisions outlawing the sexual abuse or exploitation of children and young persons, and those provisions remained unaffected by last week's Supreme Court decision.
The Garda and the DPP were by no means left powerless to deal with any allegations of child sexual abuse that came to their attention in the meantime.
If, for example, a man has sexual intercourse with his daughter or sister, he may be convicted of incest, which carries a maximum sentence of life imprisonment. This applies irrespective of the ages of either party, and consent provides no defence.
In any other case where vaginal, oral or anal intercourse occurs, the perpetrator may be charged with and convicted of rape as long as there is sufficient evidence that the complainant did not consent. This applies irrespective of the ages of the parties involved.
Granted, in a contested case, the defence would be free, within certain limits, to cross-examine the complainant as to whether she consented.
However, it is difficult to imagine any jury nowadays accepting that an adult male seriously or honestly believed that, say, a 10-year-old child was consenting in any meaningful way to penetrative sexual acts. Oral or anal rape may be committed against a male as well as a female.
A person who touches another in a sexual way, without that other person's consent, is guilty of sexual assault.
The sentencing arrangements for this offence were revised in 2001 so that it now carries a maximum sentence of 10 years' imprisonment, but if the victim was under 17 at the time, it carries a maximum sentence of 14 years.
Moreover, a person (male or female) under 15 is deemed incapable in law of consenting to behaviour constituting sexual assault.
Since, by definition, an act of sexual intercourse with a person under 15 involves sexual touching, it would amount to sexual assault as well.
This offence could therefore be charged even in the temporary absence of an unlawful carnal knowledge offence.
Since 1990, there has existed a further offence of aggravated sexual assault which consists of an assault committed in circumstances of indecency, and which is particularly violent or degrading in nature. It carries a maximum sentence of life imprisonment.
The law relating to homosexual acts between males was revised in 1993 in the wake of the European Court of Human Rights decision in the Norris case. In effect, this outlaws all homosexual acts with males under 17. Some of that law is now superseded by the Bill passed yesterday which makes sexually penetrative acts with all minors, male or female, under the age of 17 subject to the same range of sanctions.
Contrary, therefore, to the impression that might have been created by some of the political and media comment over the past few days, there was no shortage of legal measures to deal with the sexual abuse of minors, even in the wake of the first Supreme Court decision.
Granted, an unlawful carnal knowledge offence or some similar offence to outlaw sexual intercourse with minors is a very important part of the armoury of the criminal law in combating child sexual abuse.
The new Bill seems reasonably effective and, on the face of it, does not appear to pose any constitutional problem.
Admittedly, it remains biased in favour of young women to the extent that a female under the age of 17 years cannot be convicted for engaging in sexual intercourse with a man, while a man of any age is guilty if he has sexual intercourse with a girl under 17 unless he can show that he honestly believed she was older. This may be challenged in the future, but the apparent discrimination may well be found justified in light of other compelling social interests.
However, this new legislation should be regarded solely as a stop-gap measure and should not inhibit the Government from undertaking, as a matter of urgency, a comprehensive review of our sexual offences law followed by the introduction of a new codified sexual offences statute.
Tom O'Malley is senior lecturer in law at NUI, Galway