Jim Walsh (Fianna Fail)

I welcome the Minister and the provisions in the Bill, which are necessary to deal with implications of the Supreme Court decision. The court's conclusion that a young person who had sexual intercourse with a girl he genuinely believed to be over 17 should be allowed to put forward the defence of having made an honest mistake is quite right. That is reasonable and logical. The fact that the Supreme Court struck down section 1(1) of the Act seemed unnecessary to me, although I am not a lawyer. This has led to the early release of a paedophile, which is unacceptable to society.

The High Court decision to release a 41 year old person who was convicted of having sex with a 12 year old girl may conform with the law, but it defies natural law. I am glad the case is being appealed and while I welcome this Bill, the appeal in the Supreme Court is more important as the ramifications are far more serious in the immediate term. The arguments canvassed by the State will hopefully find favour with the Supreme Court, but we must await its decision. An argument was made by those opposing the State's case that it would be a defeat for justice over common sense, but I do not see it that way. This is a case of logic, common sense and justice over the law. We need to come back to basics in this respect.

From an early stage, society felt the need for laws to protect people from physical assault and to protect property from theft. These ideas go back to the Brehon laws. As more laws were added to the Statute Book over the centuries, an academic approach was taken which favoured argument of interpretation over the basic premise, which is that the guilty should be found guilty and should pay a penalty while the innocent should be free.

Although I am not a lawyer, I wonder if there should be an overarching law that states that judges must apply common sense and logic in making decisions. That would weigh against the abuse of technicalities which give rise to miscarriages of justice. I am aware that we must also safeguard against innocent people being incarcerated, but it is an appalling vista that guilty people walk the streets due to technicalities. People who are released due to this technicality might also seek compensation, which is a further offence to the victims. If there is any likelihood of that, we should consider legislating to ensure it does not happen.

There is insufficient counselling for victims. Many people have stated that and there is an onus on the State in this respect. There was a political and legal imperative to this Bill, which I recognise, but I hope that we revisit this issue. Apart from sentencing by way of imprisonment, those who abuse young, innocent people should be heavily fined. Those fines could be used to partially fund a programme of counselling for victims of sexual abuse. The early release of prisoners guilty of sexual abuse should be conditional on undergoing treatment for their particular predilection. I was alarmed to hear that only 3% of those who are in prison for sexual offences are undergoing treatment. I am not sure if that figure is correct, but if it is in that order then it is too low. Undergoing such treatment should be a condition of early release.

There should be some provision in law for an offence of reckless endangerment for parents who fail to exercise their responsibilities. Bringing a child into this world is not just a pleasurable act for a short period but an important and long-term responsibility. That responsibility must be discharged and the State must ensure there is an onus on parents who do not do so.

In the Lower House the Minister rightly made much play with regard to the cross-examination of minors. It will happen. Where a case is contested with a serious cross-examination and the individual is subsequently found guilty, the sentence must reflect the fact the victim was put through a trial for a second time. I also believe a skilled lawyer cross-examining a 12 or 13 year old creates an uneven playing field. The Minister must monitor this provision closely. He is a strong proponent of the current adversarial system. However, I have reservations that an adversarial system may not be an appropriate mechanism for dealing with this issue. I would prefer an inquisitorial system where questions are put by the judge to establish the truth. The Minister has kept the sentences in line with what was already there, except in the case of those described as "persons with responsibility". I believe the maximum sentences are too low. The provision concerning a person 24 months older than the child under the age of 17 sets the age too low. It is an arbitrary figure and I accept no matter what figure is put there, it can either be right or wrong. I would favour a provision for 36 months in that regard. Section 3(9) states:

No proceedings for an offence under this section against a child under the age of 17 years shall be brought except by, or with the consent of, the Director of Public Prosecutions.

This should also apply to section 10. I have great difficulty with the provision concerning an individual who is marginally over the age of 17 having sexual intercourse with a person just under the age of 17 years and that person, as a consequence, finding he or she has no defence because the age of the child was known to him or her. It is a complex situation. In that regard we may end up with situations where a boy of 17 has consensual sex with a girl of 16. The girl may well have initiated the sexual act.

Let us say they fall out some time afterwards and she decides, in revenge, to make a report to the Garda Síochána. The boy will automatically be taken to court. I know one cannot legislate for every anomaly and the area is a difficult one, but it should be examined further.

The age of consent should be 16 and if we are serious about having an age of consent, any sexual activity below that age should be an offence for boys and girls. I am not saying they should be imprisoned. Perhaps they could be compelled to undergo counselling and their parents could be held to account. Equalisation should be applied and we should endeavour, in so far as we can as a State, to prevent underage sex, without necessarily resorting to imprisonment. The age of criminal responsibility is 12, from which a corollary can be drawn.

I compliment the Minister for introducing the Bill. He has taken considerable flak from the media, much, if not all, of which was unfair. Any objective analyst would recognise two facts. First, the Minister could have done nothing, through legislation, to deal with the implications and ramifications of the Supreme Court decision and cannot do so now. Second, the fact that legislation is before the House only eight working days after that decision is testament to the commitment of the Minister and his officials, who have worked extremely hard, late into the night in order to reach this stage today. That should be recognised.