Liz O'Donnell (Dublin South, Progressive Democrats)

It has been a gruelling week for the country, for parents, for legislators and for the victims of child sexual offences. Decisions of the superior courts have catapulted all of us into a constitutional, legal and moral crisis which it falls to this Chamber to address as a matter of urgency.

Such urgency is not the best way to grapple with such grave matters as human deviance on the one hand and child vulnerability and protection on the other. We are required to balance competing constitutional imperatives in circumstances of acute public anguish, arising from the court's removal of a child protection measure in law which has served society well over approximately 70 years and which put the presumption of innocence of children over the presumption of innocence of the accused.

Section 1(1) of the 1935 Act denied a defence of reasonable mistake as to age to an accused who had carnal knowledge of a child. Hundreds of men have been convicted under the section, many of whom pleaded guilty to the crime and were jailed on foot of those convictions and admissions. This has now been found to be unconstitutional.

The State, on behalf of the people, will argue today in an appeal on the Laffoy judgment that although section 1(1) as an offence has been struck down as inconsistent with the Constitution, things done under it are not retrospectively made unlawful. We will argue on behalf of the people that, while a provision stands part of our law, is accepted by all, goes unchallenged for over 70 years and provides a protection for children against rape, it should, in justice, attract the protection of the courts at least to the extent that convictions obtained under it are not rendered meaningless in law, which is the appalling vista which presents itself.

Crucial to the State's argument in defending the lawfulness of the detention of those in custody having been convicted under the now unconstitutional section of the Act is that judicial review and not habeas corpus be the way any challenge to custody should be dealt with. Judicial review would allow other relevant issues to be considered by the court, such as the compelling fact that a person seeking release pleaded guilty to the crime or avoided other serious charges by trading a plea under section 1(1). Today the Supreme Court must grapple with the real life implications of its earlier decision to strike down section 1(1) of the 1935 Act. This is not a hypothetical legal conundrum.

Men who pleaded guilty to defiling children face certain release and retrospective acquittal. That has the country in a state of torment and disbelief and flies in the face of justice and morality as we understand them as human beings. The Supreme Court must listen to the arguments made by the State team on behalf of the people. It must consider the real-life implication of rendering the section unconstitutional — that men who defiled children will be released into the community. As the Supreme Court grapples with that decision, all we in this House can do is grapple with how to handle offences involving carnal knowledge of children in the future. There are compelling reasons for the court not to authorise the release of such people. It should weigh the risk to the public of any such release, the gravity of the offences committed, the number of victims concerned and the impact of such release on the community.

All law cases are essentially about balancing rights, and a fundamental tenet of our law is the presumption of innocence within the right to a fair trial. That tenet has served us well but has also made prosecutions for child abuse very difficult for victims and has been used successfully by generations of child abusers to avoid prosecution by claiming lapse of time. That should also be studied by the Legislature.

There are legitimate concerns and this is not the best way to legislate on serious issues for society. I hope it will just be the start of a framework of protection for children.

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