Michael McDowell (Dublin South East, Progressive Democrats)

The Bill is designed to restore in updated form the offence of unlawful carnal knowledge against a girl of 15 years or under, which was struck down by the Supreme Court. The new offences contained in the Bill protecting children against sexual abuse contain a defence of honest belief that the child had obtained 15 or 17 years as appropriate in accordance with the Supreme Court judgment. Section 1 defines expressions used in the Bill. "Persons in authority" is defined so that where a person commits such a sexual act or attempts to sexually abuse a child under 17 years of age, that person will be subject to a higher penalty on conviction than other persons. Defilement of a child under the age of 15 years will carry a maximum penalty of life imprisonment. The offences created in sections 2 and 3 criminalise engaging in or attempting to engage in a sexual act with a child. Section 1 defines a sexual act for that purpose. It includes sexual intercourse and buggery between persons who are not married to each other and any act described in sections 3(1) or 4(1) of the Criminal Law Rape (Amendment) Act 1990. Any such act would be a sexual assault with particularly aggravating circumstances. The law relating to ordinary sexual assault remains unaffected by the Supreme Court decision last week. The definition of "sexual intercourse" is taken from section 1(2) of the Criminal Law (Rape) Act 1981.

Section 2 creates a new offence of engaging or attempting to engage in a sexual act with a child who is under 15 years of age. It replaces section 1 of the Criminal Law Amendment Act 1935 which criminalises carnal knowledge of a girl under 15 years of age and sections 3(a) and (b) of the Criminal Law (Sexual Offences) Act 1993 which criminalises buggery of persons under 15 years of age. The new offence is gender neutral. The defence introduced for this offence, in accordance with the Supreme Court judgment, is for the defendant to prove that he or she honestly believed the child against whom the offence was committed had attained 15 years of age. It is for the court to decide whether the defendant honestly believed that the child had attained 15 years of age and it will have regard to the presence or absence of reasonable grounds for the defendant's so believing and all other relevant circumstances.

This section also confirms that it is not a defence to prove that the child consented to the sexual act. The maximum penalty on conviction on indictment for this offence is life imprisonment, the same as for the offence of carnal knowledge of a girl under 15 years of age, which the Supreme Court struck down.

See this speech in context