HEAD TO HEAD:Allowing defendants to claim a mistaken belief that a child was over the age of consent virtually guarantees acquittal, making it a child abuser's charter, says Alan Shatter. Strict liability failed to protect children for 70 years and imprisoning people for a genuine mistake is an affront to justice, writes Tom O'Malley
YES: Alan Shatter
ANY NEW criminal law concerning sexual offences against children must reflect the reality that there's an age below which a person lacks the capacity to freely consent to sexual intercourse and should have the following objectives; to protect children against sexual predators and paedophiles, to prevent adults from grooming children for sexual acts and to ensure a proper balance in law between child protection and defendants' rights.
For over 70 years, under the Criminal Law (Amendment) Act 1935, intercourse with a child under 17 was a criminal offence. This law was based on two principles. Firstly, that a child of 16 or under is insufficiently mature to make a considered decision to have intercourse. Secondly, we are obliged to protect children and it was reasonable to require adults to ensure their sexual partners were at least 17. Those who didn't, voluntarily and recklessly risked criminal prosecution and imprisonment. The 1935 Act prescribed an offence of absolute liability, ie a mistake as to the child's age constituted no defence.
In the 2006 "CC" case, the Supreme Court ruled that the 1935 Act was unconstitutional. It held that a person who made a mistake as to age lacked "mental guilt" and that the 1935 Act failed to respect "the liberty or the dignity of the individual accused" and to defend and vindicate his personal rights as a citizen.
Subsequently, the Criminal Law (Sexual Offences) Act 2006 was hurriedly enacted prohibiting "any sexual act" (intercourse and other specified acts) with a child under 17.
The Act, however, allows the defence of an accused's "honest belief" that the child concerned was 17 or over. Although it states that in considering the "belief" defence, the court must "have regard to the presence or absence of reasonable grounds for so believing and all other relevant circumstances" a defendant's subjective claim of such 'belief' constitutes the defence.
As juries can only convict if guilt is established "beyond reasonable doubt", using the "belief" defence can virtually guarantee a not guilty verdict. The law against sex with underage teenage children is largely unenforceable unless the prosecution can prove that this defence is totally unbelievable, eg because the teenager is in the accused's 13-year-old child's class.
Otherwise, sexual predators of any age are granted impunity to have intercourse with young teenagers unless the use of force or coercion constitutes rape. The mistake as to age defence in the 2006 Act turns what should be a child protection measure into a Charter for Child Abuse.
What we have learned over the last 20 years about the activities of paedophiles and sexual predators should have taught us that we must provide more, not less, protection for children. It is incredible considering what we now know, that young teenage girls are more at risk today of sexual violation by unprincipled or reckless adults than they were for over 70 years.
There is an urgent need to rebalance our laws. Our legal system should prioritise child protection and deter adults from engaging in intercourse with underage partners.
Fine Gael believes it necessary to restore an absolute legal zone of protection for children and to reinstate an offence of absolute liability to properly protect them from cynical sexual exploitation. Any new law cannot be a blunt instrument but should, whilst providing protection for children, also avoid alleged offenders being unjustly convicted.
The Joint Oireachtas Childrens Committee is considering the Government's Bill to amend our Constitution to include childrens' rights provisions. A provision reversing the impact of the Supreme Court judgment in the "CC" case is under discussion to enable the Oireachtas to recreate a criminal offence attaching absolute or strict liability to those who have intercourse with children.
Most committee members accept that the original constitutional proposal on childrens' rights requires amendment, and that if we are to provide an absolute zone of protection for children, the principles of the new law to be enacted should be agreed and published in advance of any required referendum.
The recent "K" case where a jury found a 20-year-old not guilty under the 2006 Act due to his mistaken belief that a 13-year-old with whom he had intercourse was over 17, highlights the need to reform our law.
However, it is essential that we do not pretend that the legislation required is simple. We must not ignore difficult and complex issues that should be addressed with insight and common sense. For example, any new law enacted should seek to ensure that we do not unnecessarily criminalise children of similar age for sexual experimentation which may attract moral censure, but where application of the criminal law is inappropriate.
We must also ensure that such law provides all children with protection from those who abuse a position of trust or authority.
It is critical, however, that the complexity of the issues involved does not unduly delay the vital reform needed.
Alan Shatter is a Fine Gael TD for Dublin South and is the party's spokesman on children
NO: Tom O'Malley
THE RECENT acquittal of a man charged with sexually assaulting a 13-year-old girl has re-ignited the debate about strict liability for sexual offences committed against minors. Contrary to what is being reported, the availability of a defence of mistake as to age in respect of sexual assault has nothing to do with the Supreme Court's 2006 decision in the case of C v Ireland or the legislation enacted in its wake.
It arises instead from a decision of the same court a year earlier in PG v Ireland where it was held that while the Criminal Law Amendment Act 1935 clearly ruled out consent as a defence to sexual assault when committed against a person under the age of 15 years, it did not preclude a defence of genuine mistake as to age. Yet, this decision appears to have attracted little or no public attention at the time. It was only in 2006 when the Supreme Court struck down an entirely different provision of the 1935 Act, which outlawed sexual intercourse with a girl under 15 years of age without permitting any defence of mistake, that the present controversy arose.
Under the Criminal Law Amendment Act 1885, a man charged with unlawful carnal knowledge of a girl aged between 13 and 16 years could rely on a defence of reasonable mistake as to age.
This was removed by the Criminal Law Amendment Act 1935 which was enacted in response to something of a moral panic about the prevalence of prostitution.
Those who successfully argued at the time for raising the age of consent to 17 years, and for the removal of the reasonable mistake defence, were doubtless well motivated but, as the historical records show, their concerns were grounded on conditions and circumstances far removed from present-day Irish society.
Consent, incidentally, is not an issue in the present debate. It remains the law that consent is no defence to a charge involving sexual intercourse with a person under the age of 17 years or sexual assault of a person under the age of 15 years. The question is whether an accused person should be able to rely on genuine mistake as to age.
The most puzzling aspect of the present debate is the use of the phrase "absolute protection".
If this is meant as a euphemism for strict or absolute liability, it is seriously misguided.
We had strict liability, or absolute protection if you will, for 71 years between 1935 and 2006 and, sadly, we now know that there was more widespread, persistent and callous child sexual abuse perpetrated during this period than we could ever have imagined.
In light of that experience, it is doubtful if the reintroduction of strict liability would save one young person from abuse. Such a measure would also victimise another group of children, namely, boys under the age of 18 years who engaged in sexual activity with willing partners about whose ages they were genuinely mistaken.
Strict liability has indeed a place in criminal law. As a matter of practical necessity, so-called public welfare offences involving environmental damage, pollution, risks to public health and similar harms may be committed even in the absence of proof that the defendant acted with a guilty state of mind.
Significantly, however, such offences are usually punishable with a fine or a short term of imprisonment. But to leave a person liable to conviction of an offence carrying a maximum sentence of life imprisonment, without requiring proof that he was aware of an essential ingredient of the offence, such as the age of the other party, must surely rank as an affront to justice. This was essentially why the Supreme Court struck down the relevant section of the 1935 Act in the C Case.
Towards the end of its judgment in that case, the Supreme Court stated that there was obviously "more than one form of statutory rape provision which would pass constitutional muster".
This completely belies the easy assumption reached by many politicians and commentators immediately afterwards that a constitutional amendment was the only way forward.
Plans for any such amendment should now be put on hold until two things happen.
First, a special commission should be established to review the law governing child sexual abuse and indeed child protection more generally. It should be asked in the first instance to suggest reforms which are compatible with the Constitution as it now stands. Second, we should await the outcome of the pending constitutional challenge to that provision of the Criminal Law (Sexual Offences) Act 2006 which renders females under the age of 17 years immune from liability for an offence involving sexual intercourse.
Should this challenge reach the Supreme Court, it will provide a further opportunity to clarify the scope of constitutionally permissible laws in this area.
Tom O'Malley is a barrister and senior lecturer in law at NUI Galway