Michael McDowell (Dublin South East, Progressive Democrats)

I move: "That the Bill be now read a Second Time."

When, last Tuesday, the Supreme Court ruled that section 1(1) of the Criminal Law Amendment Act of 1935 was inconsistent with the Constitution and was not brought forward into law in 1937, an unprecedented and extremely complex set of issues was thrown up for the three arms of constitutional government, the Executive, Legislature and Judiciary, but a far graver set of issues was thrown up for Irish society, in particular for Irish children and their parents and those whose role and duty it is to protect them. It is to address some of those issues that this Bill is being introduced in this House today.

Protecting the vulnerable children of Ireland from cruel and predatory sexual abuse and exploitation has been and will be my first and overriding priority. I will have plenty of time and opportunity to protect and vindicate my own reputation and integrity over the coming days and weeks and I will do so but today my primary focus is on children.

Fashionable though it may be to look back condescendingly at the attitudes and values of the generation of politicians who enacted the 1935 Act, it must also be recognised that they decided by the terms of that Act to cast unambiguously and absolutely on persons accused of sexual abuse, which they correctly termed in their Act "defilement", an absolute liability in respect of the issues of age and consent. Put simply, they made no defence for those who defiled children that they were mistaken as to the age of the child. On these issues, the perpetrator carried all the risk.

In a prosecution once the fact of sexual intercourse with the accused by a child was established, guilt was established. No child was to be exposed to cross-examination in court in support of an argument that the accused had been mislead or had led on or consented to the act of sexual intercourse. For 70 years that was a cornerstone of our law on child protection. While that law was stern — the Law Reform Commission referred to it as harsh — it was effective. When the facts of abuse were established or admitted the child was spared the ordeal of reliving and explaining her behaviour, demeanour and motives in an adversarial court setting.

Now the Supreme Court has told us that we must allow for the issue of honest mistake to be a defence in any child protection law where children are protected by reference to their age. The inevitable consequence is that the issues of appearance, maturity, dress, behaviour, sobriety, truthfulness and credibility are now opened up for challenge in these cases. Young girls who are victims of sexual predators will be challenged on——

See this speech in context