Joanna Tuffy (Labour)

I would like to begin by quoting the last sentence of last week's Supreme Court judgment:

I would allow the appeal and grant a declaration that s.1(1) of the Criminal Law (Amendment) Act 1935, is inconsistent with the provisions of the Constitution.

That sentence is unambiguous in ruling unconstitutional an entire section of an Act dealing with the particular offence of statutory rape. It can no longer be said that there is absolute protection of children from sexual predators. If a person who is accused of such a crime starts to raise the issue of consent, there is no guarantee that he or she will be convicted.

The urgency of this situation and the issue which is at stake are clear to anyone who reads the judgment from which I have quoted. I said last week that the Minister, Deputy McDowell, should have anticipated the judgment. I find the Minister's comment that he was not aware this case was coming down the line hard to believe. The State was a party to this action. The Government cannot be a party to that many court cases in which laws of the State may be found unconstitutional. I find it hard to understand why the State and the Government were not monitoring cases of this nature to ensure they were ready for such outcomes. It is obvious that if such a case reaches the Supreme Court, a serious issue is at stake and is being debated.

When last week's judgment was issued, the urgency of the situation was quite clear. I realised the urgency of the situation. An RTE report on the matter was announced with the headline that the offence of statutory rape had been abolished. When I spoke in the Seanad the following morning, I said that this issue should be given priority over all other matters and that legislation should be introduced as a matter of urgency. Other Senators agreed with me.

Bodies like the Irish Society for the Prevention of Cruelty to Children also realised the significance of the Supreme Court decision. The Minister for Justice, Equality and Law Reform did not realise it, however. I read the reports in the newspapers that day and listened to the Minister on "Today with Pat Kenny" that morning. It was clear the Minister did not recognise the urgency of the situation. I reiterate what I have said to the Minister previously, namely, his comments about 15 year old girls and 23 year old men were flippant and missed the point. He spoke about issues like reform, the age of consent and teenagers. Such side issues are irrelevant to the issue at stake, which is the absolute protection of children from sexual predators.

The Minister spoke this evening about the difficulty in finding consensus about the reform of the law, which is irrelevant. The issue we need to address is the lack of protection for children under the age of 15, who are the most vulnerable people in our society. There is a definite consensus that children should be absolutely protected from sexual predators.

I would like to consider the Minister's suggestion that the sexual offences legislation covers cases like those I am worried about because people can be prosecuted under it. I am a solicitor, but I am not an expert on this area of law or on criminal law in general. I have spoken to people who work in this area and I have examined the legislation in question. I refer to section 14 of the 1935 Act, section 2 of the 1990 Act and section 37 of the 2001 Act, which provides for a penalty of 14 years. I have not seen any guarantee that those Acts can be used to prosecute people who have sex with children. There is no direct statement to that effect. I know there is legal opinion that carnal knowledge of a child is automatically a sexual offence, but that is like adding two and two and getting five. It is an issue that needs to be tested by the courts. There is no definition in the legislation that equates "sexual intercourse" with "sexual assault". There is no such wording — I could not find it anywhere. Nobody could tell me there was such a wording. I am aware of the provisions the Minister is using to come to this conclusion, but I do not think they guarantee that a person will be convicted of sexual assault if he or she has sex with a child.

In testing these issues in the courts, children will be put through the mill. It will have to be determined whether they had the capacity to consent and, if so, whether there was consent. Of course those who are accused will allege there was consent. It is in the nature of sexual predators and paedophiles to groom children and manipulate situations to get consent. It is not proper or real consent of the type that we acknowledge as consent. There is no guarantee.

If they can be convicted of sexual assault under the provisions mentioned by the Minister, they will face a maximum penalty of 14 years. It is quite clear that a sexual assault is not considered to be as serious an offence as unlawful carnal knowledge and statutory rape were considered to be. It is not treated as seriously as sexual intercourse with children is treated in other jurisdictions. Consent is not a defence under section 14 of the 1935 Act, which relates to the indecent assault, which is sexual assault, of a person under the age of 15. I wonder whether that provision could be found to be unconstitutional. It is quite possible that the provisions relating to the sexual assault of a child under a certain age could be found to be unconstitutional. It is something we need to address.

The issue at stake is the absolute protection of children from sexual predators. That is the issue. That absolute protection is no longer in place. Many countries throughout the world offer an absolute protection to children under a certain age from sexual predators. Such protection is afforded in the United Kingdom, including Northern Ireland, for example, where statutory rape is an offence. I absolutely accept the point made by those who have said this outcome was not the intention of the legislators or the Minister. We have legislation dealing with statutory rape because we treat that offence with the utmost seriousness. That is why we provide for the maximum penalty, which is life imprisonment. That is the situation in the UK, in Northern Ireland and in many countries throughout the world.

The Minister said last week there was no need to rush any new legislation. He is saying tonight that protections are offered by the sexual assault legislation. By leaving this situation open, he is accepting that this jurisdiction treats the crime of having sex with a child with less seriousness than other countries in all parts of the world. What kind of signal does that send to paedophiles? It was said in one of today's newspapers that, given the way paedophiles tend to communicate with each other and create a buzz on the Internet, we can be sure they are looking at Ireland with interest to see how we respond. That is why it is so important for us to respond speedily on this issue and take it with the utmost seriousness.

The Minister for Justice, Equality and Law Reform should have locked himself away with his experts last Tuesday to draft emergency legislation. He should be doing that now. The Government is giving lots of time to the wages talks, which are important, but this matter is more important, in my view. The type of effort I have mentioned should have been made and should be made now to ensure that legislation is in place to close this loophole as quickly as possible. The longer we take to deal with this urgent issue, the more we are failing in our duty to protect the children of this country.