The law should not be used to brand one half of sexually consenting 16-year-olds a rapist, argues Derek McDowell, a member of the committee that said the age of consent should be lowered.
The age of consent to sex in Ireland is 17. Most teenagers in Ireland do not know this. Many, probably most, teenagers do not care what the age of consent is and a good many of those who think they know the age of consent do not. They think it is 16, which it is not - at least not yet.
These are just some of the uncomfortable facts that were considered by the Oireachtas Committee on Child Protection before it recently recommended that the age of consent be lowered to 16.
There are more such facts. Many teenagers are having sex much earlier than would have been the case just a few years ago. And it is almost always a bad idea. Many of them regret early teenage sex and some are traumatised by it, even if it does not lead to an unwanted pregnancy.
Why then lower the age of consent? For me it came down to one simple proposition: I do not believe a teenage boy of say 16 or 17 who has consensual sex with a girl just shy of her 17th birthday should be forever branded a rapist. For that is the effect of the current law.
Even if the couple concerned have sex in the context of a caring relationship; even if the girl takes the lead, nonetheless the boy is automatically guilty of rape. The child born out of intercourse between consenting teenagers is forever a child born out of rape even if his/her parents subsequently marry and live happily together.
It is important to stress that this is not the "hard case scenario". Most underage girls who have sex do so with boys of more or less the same age. Only a minority will have sex with older men and many of these fall into the category of "people in authority" In cases involving such people (teachers, sports coaches, clergy and others in loco parentis), the committee has recommended that the legal age of consent be raised from 17 to 18, a recommendation with which I agree.
The argument against lowering the age of consent has been made most vocally by the Catholic bishops, who spoke about the need for morality to play a greater part, and by the leader of Fine Gael. Enda Kenny invoked that phrase much beloved of politicians on the political right when he said that Fine Gael's case was grounded in "values".
The trouble with the position put forward by the bishops and Fine Gael is that the age of consent is an instrument of the criminal law and the criminal law and sexual morality are difficult bedfellows.
I am happy to say that I think it is a bad idea for two 16-year-olds to have sex but I do not believe that the criminal law should be used to enforce my view - particularly if it entails branding one of them a child rapist.
There are other reasons why we should be slow to criminalise teenagers in this way. A boy is unlikely to admit to fatherhood and take on the responsibilities of fatherhood if by doing so he exposes himself to a possible charge of rape.
Both boys and girls may well be slow to seek help with sexually transmitted infections if by so doing they admit to a serious criminal act.
It is said that lowering the legal age of consent would send out the wrong messages and would encourage teenagers to have sex at an earlier age.
The evidence suggests otherwise: teenagers are largely oblivious to the law and to the possibility of criminal sanction. Maybe this is because they know or believe that the law is unlikely to be enforced. It is indeed tempting to pursue the classic Irish style solution by retaining the age of consent at 17 and ignoring it when it suits.
This seems to be what Fine Gael and the bishops are proposing. But this would also mean that we would have to continue to turn a blind eye to other anomalies. For example, it is possible for 16-year-olds to access contraception without the consent of their parents. Bizarrely, it is illegal for them to use the contraception thus procured.
The age of consent has stood since 1935. Surely, it is time to accept changed social reality and to seek means other than the criminal law to persuade teenagers to wait a few more years before having sex. It is interesting that a survey recently carried out on behalf of the Minister for Children found that many of them were concerned about the lack of information and sex education.
It is important that we have a real public debate about this issue and to that extent I welcome the statement of the Catholic bishops. I take a rather less benign view of the Fine Gael position.
I confess that when I heard Enda Kenny on the radio last week I asked myself, not for the first time in recent weeks, if we are really on the same side.
Senator Derek McDowell is a member of the Oireachtas Committee on Child Protection and is Labour Party Seanad spokesman on finance, transport, enterprise, trade and employment
