Michael McDowell (Dublin South East, Progressive Democrats)

I thank Senators for their contributions and their welcoming sentiments.

It is provided for in the statute that the Minister can extend the time for the commission without returning to the Dáil so it is not set in stone. Without saying the 18-month period is an abstract ideal, everyone would support the Minister in being reasonable to ensure the work is done with a requisite timeframe and an extension, if necessary. The sooner it is done the better.

Senator Henry was complimentary about the speed with which things have happened. It has taken a long time, however, to get from the original programme on RTE to the stage we are at today. The House will appreciate that I was not in a position to have an inquiry of any kind unless it was a public tribunal of inquiry which at that time required evidence to be given in public. I was absolutely clear that it would be grotesque to force victims of abuse to give evidence in public.

That brings me to Senator Walsh's question of why I did not go down the Ferns route. While I appreciate that Archbishop Martin has said there will be full co-operation with this inquiry, he cannot command co-operation from everyone. The victims' groups were supportive of the idea of establishing a new method of inquiry and it would have been strange if one of the motives for the commission of inquiry was to deal precisely with this sort of case if I then abandoned that model. I have no doubt that Judge Yvonne Murphy will learn lessons from the practical experience of the Ferns inquiry. The mere fact that one possesses powers of a statutory nature does not mean they must always be employed. If it is possible to get from A to B without using statutory powers, that is the way forward.

In regard to the points made by Senator Henry, the investigation by the commission does not preclude criminal investigations. It has been pointed out that many priests in Dublin have been convicted. In using that phrase, I point out that the great majority of priests in Dublin, as elsewhere, are wonderful, decent men who have devoted their lives to their faith and their community. When we generalise on these subjects, let us remember that the great generalisation we should always reiterate is that the clergy are, in general, wonderful people who have given up their lives, including career prospects and everything else, for others. Nothing I say should detract in any way from that fact.

Victims' representatives understand why the representative sample procedure is followed. All cases will be looked at by the commission to allow it determine what is representative. For example, if one is looking for the response of the archdiocese to three cases that are almost exactly the same, an in-depth examination of all three is not necessary. I do not believe that people whose cases are not selected for in-depth examination will feel left out if they believe, as they will have good reason to do, that by bringing their cases to the commission, or having them brought on their behalf, they will influence what cases will be dealt with and in what way. No cases will be wasted or ignored. The Department of Health and Children is looking at the implications of the Ferns Report, including what is needed to increase the powers of community care officers.

I join Senator Jim Walsh in giving my best wishes and warm congratulations to the Minister of State, Deputy Brian Lenihan, on his new appointment. It is very important that the Government's child policy be centralised in one person. It is also vital that this person has a function in each of the Departments with governmental responsibility in this area and is given adequate seniority and clout to make policy, rather than always deferring to others or trying to work out the agendas of persons sitting at the Cabinet table. In the fullness of time, this particular portfolio may become a full Cabinet one. The Taoiseach has indicated that customarily when child issues come before Government, the Minister of State will come to Cabinet and present his policies as his own. It is an important position in this respect.

I did not say I planned to reduce the age of consent. Anyone who reads the text of the interview in question will see I was very careful to say that the anomaly pointed out by the trial judge at the appeal in Galway was a significant one that pointed up important issues and apparent unfairness. I said the present law seemed to be somewhat crude but that it would be just as crude simply to solve it by reducing the age of consent. I fully agree with the points made by Senators Henry and Tuffy that simply removing an anomaly by removing protections for vulnerable people is not the way forward.

Having said that, it is very strange that a 14 year old boy who has intercourse with a 16 year old girl is deemed to commit an offence but the latter is not, while a 19 year old girl who has intercourse with a 14 year old boy, by consent, commits no offence. In the latter case, if the genders are changed so it is a 19 year old male with a 14 year old girl, there is suddenly an offence. This is a difficult issue to handle. In the case in Galway, the parties involved were in a subsisting and enduring relationship. On the other hand, as I emphasised, reducing protections as a way of dealing with anomalies is not a very subtle way of going about it.

Senator Henry queried whether people within a certain age range of each other commit an offence if they engage in consensual sexual activity. There is a popular view that this is the case but it is incorrect. There is no defence in law for a boy aged 15 years on the basis that his female sexual partner is roughly a contemporary. It is an anomalous situation. Such prosecutions are rarely taken but arise on occasion. As a practising barrister, I was somewhat surprised when a young fellow in the Dublin area was prosecuted at the age of 16 for having sexual relations with a girlfriend aged 15. The genesis of it was that they disappeared for some days together and when she got into trouble, it was the usual thing; she said it was non-consensual. After a time, she admitted that it had been consensual all along. In the meantime, however, the boy made admissions to the Garda that intercourse had taken place and he was prosecuted and given a suspended sentence.

In situations like that, I agree with Senators Henry and Tuffy that removing the protections for younger people would be crude. Simply saying the logical answer to this is to select some age above which everybody is fair game for everybody is not the way forward. Is it fair, however, that if a 19 year old woman has sex with a 15 year old boy, there is no offence, but if a 15 year old boy has intercourse with a 16 year old girl, he commits an offence? That offence goes down on his record and will come into play if, for example, he wants to go to the United States. He may be on a sexual offenders register for the rest of his life.

I recall the exact detail of the case to which I referred because it struck me as so unfair in the circumstances that this young man now had a criminal record and had received a two-year suspended prison sentence. He will never under our present law — another issue I intend to deal with — be able to expunge that sentence. He can never go back to the court and argue that he has been an upright citizen ever since and ask for the offence to be removed from his record. If he wants to go the United States, apply for a job or partake of a wide range of other activities, it is always there. There is now the even more frightening prospect that people in these circumstances will be put on a sex offenders register, which has all types of implications for them. This is wrong.

I do not know what is to be done about this. I was glad that the reporter, Eugene Masterson, asked me about this. I said to him that I know there is a problem but do not know the solution. I specifically said that the present law is crude but that reducing the age of consent would be a crude way of dealing with the situation. He quoted me to that effect in his article so I wish to be fair to him also. It is a genuine anomaly.

I said it would have to be studied; there is no point in writing out a solution on the back of a cigarette packet. We must carefully consider whether what we would broadly call underage sexual activity is to be ignored, condoned or disapproved of in some way, without saying that a young boy, as distinct from a young woman, who engages in it should have his life ruined and blighted in circumstances where his consensual partner, even though she may be older than him, has no stain against her character for the rest of her life. In all our concern for gender equality, we should remember that the consequences of underage pregnancy are always unequal. That is the reality.

Lest I stray into political incorrectness, I will simply say that I am pleased Senator Henry raised the issue. I repeat what I said to Mr. Masterson in the Sunday World, namely, that a problem exists and it should be addressed. Lowering the age of consent would be a crude way to deal with the legal crudity that already exists. However, that does not mean we can leave the law exactly as it stands because these cases, although rare, occur. It is very unfair that a young man's career should be blighted for the rest of his life because of activity that no one would consider was morally criminal if the older or contemporary partner in the activity did not commit a crime.

I thank Members for supporting the motion.