Derek McDowell (Labour)

I thank the House for agreeing to meet at this time to consider this important legislation. I thank Members for coming here today to participate in the debate. I come, as the House will appreciate, from another House, where we have had a fairly rancorous and difficult time. Nonetheless, valuable work was done there and significant amendment was made to the legislation during the passage of the Bill through that House.

My priority at all times is to ensure the children of our State are adequately protected and that no sexual predator should find solace in any decisions made in the courts or any opportunity to endanger the well-being and the safety of our children.

About midday last Tuesday I became aware of the Supreme Court decision in the CC case. Since I had not been aware that there was a Supreme Court appeal in progress, when I was informed of the decision I immediately sought a copy of the judgment, read through it and realised it was based, in part, on previous conclusions of the Supreme Court last July about which I knew nothing either. In those circumstances, I got all the judgments together in my office and started reading them with a view to trying to find out their implications.

As I read the judgment, three matters occurred to me. First, this will force on the Irish people a new approach to the protection of minors, that is the legislative issue. Second, it might have implications for other sections of the 1935 Act, in particular, section 2 which seems to be structured in roughly the same way as section 1, which had been impugned. Third, what were the implications for people who had been convicted in the past because the 1935 Act, having been passed before the Constitution was adopted, was, under our system of law, only brought forward into Irish law if it was consistent with the Constitution and the Supreme Court, in striking it down as inconsistent with the Constitution, was, in effect, deciding in 2006 that this piece of law, which had existed since 1935 and which had been operated from 1937 until 2006, had never, in one sense, been the law of the State. On one view of its decision that was the implication.

It became immediately apparent to me that the next thing that should happen, apart from summoning my draftsman to get working on remedial legislation — which happened the next day and has been going on constantly ever since — was that there was an implication that some people might interpret the decision as giving them the right to be immediately freed from custody, even though they would not have been able to make the particular arguments made in the CC case but on the general proposition that since the law was now being deemed never to have been part of Irish law that they could not be deemed to have been lawfully convicted. That latter scenario, as one can imagine, was one which would arrest the mind of anybody who started to read these judgments because it was replete with significance for this State.

The decision of the Supreme Court in the CC case created a threefold set of issues, first, for the Legislature, second, for the Executive and, third, for the Judiciary itself because the consequence of its own order had to be thought through by it and applied. It was apparent to me, on reading it through that day, that this would be interpreted by the public as a statement that there was a huge void in the middle of our legislative protection system for children. I was most concerned to establish as best I could in the public mind, that children were not left without legal defence in the aftermath of the CC decision, where, for example, as in one case about which we have been reading recently, drink was given to a six year old who was then the subject of sexual intercourse. That was undoubtedly an old-fashioned rape. Likewise, every act of sexual intercourse with a person under the age of 15 years was, by definition, a sexual assault as I said here the other night. I knew the first thing I had to say in public was that it is still a serious criminal offence to sexually assault or to have sexual intercourse with a child under 15. Some people were expressing the opposite viewpoint, that it was open season on our children. I was anxious to state that there was no black hole because as a matter of moral duty, it was my function to warn any predator that the Garda Síochána and the courts would have sanctions if children were assaulted in the aftermath of that decision. That was my first priority.

My second priority was to attend to the legislative and executive consequences of the decision, to take advice on what to do in respect of those in my indirect custody in the Prison Service and I also had to kick start the legislative consideration of what was necessary to replace the law that had been struck down and sister provisions which looked vulnerable. Some have accused me of complacency in the meantime. I was not complacent but I wanted to create space, within which to assure parents that their children were not now fair game for every sexual predator and within which we could work out exactly the best way to respond in 2006 to the immediate task of replacing the impugned provisions of the 1935 Act.

I was grateful for the hearing I received in this House the other day. It was courteous, as always. As I stated then, the facts are that virtually since then and ending up at lunchtime today, officials in my Department have done nothing else but work on this legislation. While I did state in public that I would like two weeks to achieve it, or words to that effect, and people have stated that proved I lived on a different planet, all of those two weeks have been spent on putting together the Bill before the House and teasing out the implications of every last line of it. Although it looks a relatively simple piece of legislation, it is not and it could not be.

It was put strongly to me that the best approach was simply to re-enact the old legislation and stick in the defence of reasonable mistake to sections 1 and 2 of the 1935 Act, and that such an approach should suffice. As we looked at the matter, however, we suddenly realised that the implication of so doing was that all of the other necessary outworkings of a fair system to protect our children could be put aside for some other date and we could simply put the law back to where it was understood to be.

We had to say that such an approach was not satisfactory. For example, whereas the 1935 Act protected girls under 17 to some extent and under 15 to a greater extent, boys were in a different position. I had to bear in mind what has happened since 1935 — the focus of the 1935 legislation was very much to protect girls, as one judge stated, "from young men and from themselves", which was a somewhat stereotyped view of the time — and the reality that in the intermediate years there have been so many assaults upon young boys, including those referred to in inquiries such as that of Ferns. I had to work out in my mind if I could seriously merely stick back a legislative plaster for girls and walk away from the matter stating we will set up an all-party committee to decide what we will do for boys. That would be unacceptable.

The other point I want to make to the House is this. It was suggested that since the Law Reform Commission in 1990 had suggested that there should be a defence of mistake, there was no reason for our hesitation. People have asked why we did not act and why the Department of Justice, Equality and Law Reform seemed to shelve the Law Reform Commission documents received, doing nothing about them. That is effectively common currency on the street and in current newspaper columns.

Nothing could be further from the truth. When the Department of Justice, Equality and Law Reform received the Law Reform Commission paper in 1990, it considered and reflected on that provision under successive Ministers for Justice, Equality and Law Reform. The former Deputy Geoghegan-Quinn, as Minister, brought in the Criminal Law (Sex Offences) Act 1993, which decriminalised homosexuality and provided for other matters — Senator Norris knows that I corrected the record to meet his vociferous objections the other night in that regard.

On a raft of other legislation, as I stated in this House the other night, nobody had ever suggested tabling an amendment to provide this defence. The clear reason for this is that if one departs from the situation that both consent and age are not issues for litigation in a criminal trial, one exposes the child victim to a line of cross-examination in order to uphold the argument that the perpetrator was mistaken as to the child's age at the very least. Subject to what I will state about video recording, that is a necessary consequence of the meaning of the Supreme Court decision. The Supreme Court was telling the Houses of the Oireachtas that if it wants a child protection system based on age bands of any kind, it must provide, as a matter of constitutional law, that anybody who is caught by a particular age band is entitled to plead that he or she did not know the child in question was under the particular age band and held an honest belief that the person was not.

That proposition sounds sterile, but for the girl who is assaulted or seduced at the age of 15 or 16 it means the perpetrator is entitled to state, "Well, you should have seen her the night I met her; she was dressed in a way which did not give me any intimation that she was only 16 or 15; she looked at least 18 or 19 to me; she was in a bar and she was wearing make-up", or that she was wearing one particular kind of clothing rather than another. The accused could allege she had an entrance pass to a disco or he assumed she must be over 18 because she was in a bar. It also exposes the girl, if that becomes a central issue in the case, to cross-examination on the territory of whether she represented herself to be the age of 18, whether by her behaviour or by what she said, whether she boasted or whether she behaved in a way which was much more mature than would be expected. The same applies to girls aged 12 to 15. Recently, I was at an event where I saw many girls of that age group and one striking fact was that I could have put them at any age up to 16 and the fact that I knew they were in a particular class in a school was my only way of knowing their ages. They looked remarkably mature attractive young girls and they looked well above the age of the boys in the same class.

What we must remember is that the Department of Justice, Equality and Law Reform, over all of those years and under successive Ministers, decided that where there were offences against minors alleged, we should stick to the old-fashioned position of 1935, which was that the risk should be always on the alleged perpetrator, that the law should be — as it was intended in 1935 — that the accused could not plead genuine mistake, and as a consequence, all of the risk and absolute liability descended on the accused and the age of the girl and the matter of her consent would not be dealt with in the course of a trial. The accused could not plead genuine mistake and, as a consequence, all risk and absolute liability descended on the accused. The age of the girl and the matter of consent would not be dealt with in the course of a trial. This is not an ex-post rationalisation. This concern was set out in the discussion document of the Department of Justice, Equality and Law Reform. The Department considered changing the law voluntarily to accommodate the notion that the accused could raise this issue in any case. Inevitably, in that scenario, the victim would be under the spotlight and subject to cross-examination to create a reasonable doubt about the state of knowledge of the alleged perpetrator. Mr. Justice Haugh, presiding judge of the Court of Criminal Appeal in 1968, delivered the judgment and stated:

Because the rape count was laid the prosecution took on the onus of establishing that the carnal knowledge of the prosecutrix was had by force and without her consent. This involved calling the prosecutrix as witness. This court is of the opinion that prosecutors in cases involving the carnal knowledge of young girls should seriously consider the possibility of being able to sustain a conviction without the necessity of calling such young girls as witnesses, and thereby exposing them to the ordeal of having to recount in court what must have been for them a terrifying experience.

It has always been obvious that if consent or belief as to age becomes a live issue in all these cases, it inevitably gives the defendant the opportunity to create a doubt in the minds of the jury by suggesting that it was reasonable at the time to believe the girl was older. This is complicated by the fact that these cases may be prosecuted many years after the event. The jury may not be able to imagine what the female victim looked like ten years earlier when the offence was alleged to have taken place.

The Law Reform Commission's report was not acted upon because it was not self-evidently a major step forward. It may have been fairer to a minority of accused persons but it would have had a chilling effect on the willingness of girls to make complaints in these cases. Prosecutions would be more difficult and court cases would be more of a trial for vulnerable young girls to whom the Court of Criminal Appeal referred in 1968.

Those who believe that the 1990 Act was left on the shelf are incorrect on two counts. In 1998, Deputy O'Donoghue published "The Law on Sexual Offences" that set out both sides of the argument and asked for public submissions. Some 100 were received, seven of which favoured changing the provision along the lines of what we are now obliged to do after the Supreme Court decision. Many child care agencies were opposed to such a development. When the Supreme Court made its decision, it ended the debate on this matter and ensured that, if we wished to retain age-based child protection, we had to introduce a defence of honest belief.

This legislation does not necessarily represent an advance in rights. It is an advance from the perspective of the accused in some cases but is not a great leap forward in the development of child protection law or encouraging children to bring cases to the attention of the authorities. If the Supreme Court had decided otherwise — and I do not criticise its work — and this matter was the subject of an Adjournment debate, I would state that I had no intention of changing the law.

Section 1 contains definitions, the first of which concerns a person in authority. The second deals with the question of sexual acts, confined to sexual intercourse or buggery between people not married to each other. Children can receive permission to marry under the age of 18 in certain circumstances. It could not be a matter for criminal law what married couples do to each other. The third definition is an act described in section 3(1) on aggravated sexual assault. This is assault occasioned by violence or humiliating circumstances, covering sadomasochism. The fourth definition is certain forms of non-penile penetration, including oral sex and penetration with objects under the Criminal Law (Rape) Act of 1981.

Section 2 is a substitute for section 1 of the 1935 Act, providing for a serious offence, visitable by life imprisonment, for a person who engages in any of these sexual acts with a child under the age of 15. It provides in section 2(2) that an attempt carries the same penalty. Section 2(3) provides for honest belief as a defence, while section 2(4) states that, where someone claims to have an honest belief, the court must have regard as to whether there are reasonable grounds to justify that belief in assessing the claim of honest belief. Section 2(5) excludes the possibility that a child in those circumstances can consent to the acts alleged against the accused.

Section 3 is a substitute for section 2 of the 1935 Act. It provides lesser penalties and a similar range of defences, including provisions for honest belief, and deals with those over the age of 14 and under the age of 17. The different elements of section 3 are effectively contained in section 3(9), namely, that the consent of the Director of Public Prosecutions is needed before anyone can be prosecuted under section 3. The Director of Public Prosecutions has discretion not to prosecute in cases where he believes it would be against the public interest or wrong to do so. This is a broad-ranging, unreviewable discretion. Section 3(9) was included to provide for males who have consensual sex with their under age girlfriends. Section 3(4) allows for summary disposal of minor offences.

Section 5 has caused some controversy, stating that a female child under the age of 17 years shall not be guilty of an offence by reason only of her engaging in an act of sexual intercourse. The 1935 Act we are replacing never criminalised the girl. Curiously it has never been an offence in Ireland for a girl to engage in an act of consensual sex since the dawn of time. If we had taken the route of complete gender neutrality in this legislation and provided that a girl should be as guilty of an act as a boy, we would either have to say that a consensual act between 15 and 16 year olds was not an offence at all, which has certain implications, or have some provision along the lines of section 5. This provision is not new, as until last Tuesday a girl never committed an offence by having sex with a boy. Members may ask why a boy was guilty of an offence and a girl was not. Some have attributed it to the different attitude towards the genders in 1935. However, it is not only that. Whatever social stigma attaches to being an unmarried mother, which was very much greater then than now, it was not in legislators' hearts to add the idea of criminal liability to it.

I was faced with the problem that if I made the offence gender-neutral, I either excused all 15 and 16 year olds of criminal liability for consensual sex or made the genders equally liable. The consequence of the latter would be that, for the first time, in the case of any girl who became pregnant, one would have to come to the conclusion either that she had been raped or that she had committed a criminal offence, stigmatising 16 year old mothers as rape victims or as people who had broken the criminal law.

In addition, the Director of Public Prosecutions, who was consulted regarding this legislation, was strongly of the view that it would be deeply counterproductive in social terms, and deeply damaging to the way in which he carried out his functions, if we criminalised young girls who had sexual intercourse. He said that they would be afraid to come forward and give evidence in case it was ultimately determined that the acts were consensual, making them criminals. Second, they would be treated by the courts as accomplices and their evidence discounted unless corroborated. He strongly advised the Attorney General and me not to take the route of gender neutrality, for the first time criminalising girls in that situation.

The remaining sections extend several provisions of the ordinary criminal law, including those relating to the anonymity of the injured party, the right not to be cross-examined about one's sexual past which was inserted as an amendment in the Dáil today, the law on the sex offenders' register and so on. All those must be extended to the new offences we are creating today. In the Dáil, several amendments were made, including one from Fine Gael to allow that teenage sex should never be recorded on the sex offenders' register. That is reasonable, since people should not be stigmatised for long periods or even the rest of their lives as a result of consensual acts.

That is the Bill, which is intended to restore the situation in a manner that for the first time in the main brings about equal treatment of boys and girls. One might ask, in view of section 5, what equality it brings to young boys. The degree of equality is extremely significant. Curiously, if a male 35 year old teacher had seduced a 15 or 16 year old girl, he would have committed an offence under the 1935 Act. However, if a female teacher had done the same, no offence would have been committed at all.

For the first time, subject to the exception in section 5 that I mentioned, the Bill introduces broadly gender-neutral protection for children in two age categories: 14 and under; and 15 and 16 year olds. It provides for the defence of honest belief and that it is never a defence in either category to say that a person consented. It makes the distinction in section 5 that I have mentioned.

I commend the Bill to the House, hurried though its preparation may have been. I would have preferred, as I publicly stated, to have had weeks to think about this, conferring widely and giving the Houses that time to consider it too, with weeks between each Stage in both cases. However, I was told by those whom we must obey, the columnists, that I was living on another planet if I thought I had weeks to do this. I was told by those whose views we must respect that my reluctance to make law in a matter of days showed that I was somehow unfit for office.

I would have preferred more time and broader consultation. In the circumstances, the Government, in authorising me to pilot this Bill through the Houses of the Oireachtas, has also authorised me to move in both Houses the establishment of a joint all-party Oireachtas committee on this subject so that the broader implications not being dealt with, such as the question of consensual sex among teenagers, the section 5 asymmetry in the Bill, and many others, might be considered.

What the Bill contains is only a small fraction of what the State must now do. We must put resources into the Office of the Director of Public Prosecutions so that it can have a proper relationship with victims. We must put more into the State laboratories so that DNA evidence can be furnished. We must give gardaí resources to provide specialised training to deal with all the issues arising from the law on sexual offences. We must resource the Health Service Executive so that it delivers decent services across Ireland to those affected by sexual abuse. Those are but a small selection of the programmes now necessary for a decent and humane pro-child policy in Ireland.

Today I humbly ask the House to recognise this as a genuine, honest and decent effort to act on the view that the Supreme Court decision on section 1, and the threat to section 2 must be addressed in the short run. It attempts to implement a decent system of protection through a new provision to guarantee anonymity to injured parties and also that they will not be inappropriately questioned in court regarding their sexual past.

It is not a great leap forward that children will now be cross-examined in such cases by barristers on legal aid whose job it is to shred their credibility, creating a reasonable doubt that the perpetrator may have been confused regarding their age. Members can read my views on that in the Irish Independent. They can imagine the ordeal to which some young people may be exposed as a result.

We will do our level best to implement video-recorded primary statements of evidence in full. In the final analysis, our constitutional system of fair trial must allow an accused person, if he has a defence, to test it on the primary witness in the case. No matter how it is done, our Constitution will always confer on an accused person the right to cross-examine the main witness on the other side to establish that it was reasonable for the accused to believe that person was older. That process will not be kind to young sexual offenders. The change that has been forced upon us will make the task of prosecutors more difficult. It will also make the fears and anxieties of victims more pronounced and may be a chilling factor with regard to the number of these cases brought to court in future.

People who said in 1935 that the risk was entirely on the perpetrator's side may not have got it entirely wrong. The Supreme Court has informed us, however, that if we want age-related protections for children, we must allow that issue to be ventilated in court proceedings. I regret that we have been obliged to make provision in that regard in the legislation.