Michael McDowell (Dublin South East, Progressive Democrats)

Nobody does. It is not morally minor in that sense. This explains to some extent how the particular section was overlooked. If it had been an indictable offence, it would have leapt out in the drafting process for last year's law that there was a problem in this regard which had to be addressed. However, it looked like a District Court offence and did not look to have all the importance it now does in retrospect. There is no doubt there is now a consensus in the House that it should not be regarded either constitutionally or legislatively as a minor offence. This is the reason it has been made indictable.

Deputy Peter Power raises the good question of why the sentence for solicitation is only five years. The point we must bear in mind is that last year, in the context of legislating for attempts, we set in place penalties which were less than five years. This is why a general upgrading of the penalties is contemplated in this Bill. To make this an arrestable offence in which there was a power to detain for questioning, the maximum penalties for these other offences, which are by definition more serious — an attempt is more serious than pure solicitation — have had to be recalibrated across a number of offences.

Deputy Howlin asked me to explain why, with regard to this particular offence, we are not providing a defence of honest mistake. I go back to the old offence of indecent assault, now called sexual assault. It was in the same 1935 statute and the Supreme Court, for reasons which are quite complicated, held that it did not carry with it an exclusion of the requirement for mens rea in that particular case. Therefore, the offence of sexual assault as we now know it was not comprehended by the finding that portions of the 1935 Act were unconstitutional for the reasons set out by the Supreme Court.

With regard to sexual assault, for example, we did not amend the law last year to provide for a specific defence of honest belief because the Supreme Court had said it exists as a matter of constitutional construction. That is why in regard to these offences——

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