John Minihan (Progressive Democrats)

I welcome the Minister to the House. I congratulate him on the statements he made in recent days about how the State would lodge a very strong appeal today and the outcome of that appeal. I hope he may notice that the sun is shining outside because he has not seen it for the past few days. The Minister made clear that the circumstances that have brought us to this point are utterly regrettable. I and my party colleagues have rarely, if ever, felt such dismay at the repercussions of problems with the law, and subsequent judgments.

Although this problem emanated from a problem with the law and a judgment of a court, the legal arguments must be distinguished from the moral ones in this case. The debate between the lawyers must also be distinguished from that in the public. It is well and good for legal experts to tease out the intricacies of the law in sections, paragraphs and historical interpretations but members of the public do not care about this and I do not blame them.

The public saw a man who has admitted to raping a child being told by our system that he is free to go. This may be constitutionally or legally right but is it morally right? Is it even common sense? I am glad that common sense has prevailed. I do not say that our statutes must be governed by morality or common sense. The lawyers would no doubt point to the subjective and time-grounded aspects of that approach that make it unadvisable or impractical.

The question remains as to where morality and common sense have been lost when our system tells a man who has admitted to raping a child that he is free to go. Put simplistically if we lived by our morals we would not need the law. The morals of individuals, however, differ but what of those of the people as a collective? The people have expressed a collective moral view in outrage and have called for us legislators to act. We must do so with understanding and compassion. The nature of the offences demands this approach.

I commend the Oireachtas, the Minister and his officials for working towards and facilitating swift action to restore the offence of unlawful carnal knowledge, in a now updated form under section 2. Under section 1, a person in authority who sexually abuses, or attempts to sexually abuse, a child under 17 years of age will be subject to a higher penalty on conviction.

On the substantive issue, section 2 creates a new offence of engaging or attempting to engage in a sexual act with a child who is under 15 years of age. This replaces section 1 of the 1935 Act and other relevant legislation. The new offence is gender neutral. It is right that today's legislation also extends protection to boys for the first time, although the law struck down by the Supreme Court related to girls only.

In response to the Supreme Court's ruling, today's Bill introduces the defence that the defendant may prove that he or she honestly believed that the child against whom the offence was committed had attained 15 years of age. Importantly, it is for the court to decide whether the defendant honestly believed that the child had attained 15 years of age and it will have regard to the presence or absence of reasonable grounds for the defendant's so believing and all other relevant circumstances.

I will use my remaining time to outline some of my concerns. This is a complex legislative area. That is regrettable because the objective is to protect our children. It could not be otherwise. As the Minister made plain, successive Governments have rightly been reluctant to change this legislation because it will create unknown stress for child victims who could be asked questions about their dress, language, reputations, etc., which is regrettable.

The age of consent is now 17. We must have a balance between morality and common sense and the rule we use must be based on good parenting practice. Should consensual sex between 16 year olds be criminalised? This is the question parents must ask themselves. No parent wants to admit that his or her 16 year old is engaging in consensual sexual activity, but they must ask whether they believe their children should be criminalised in such circumstances. The Minister recognises this issue, but we all need to do the same. We need to reflect on and address it. Political, moral and common sense imperatives must be balanced and reflected on in a measured way.

I mentioned the need for common sense in enacting new laws. However, I cannot be critical of a lack of common sense in a court's ruling without questioning legislation that may lack common sense and not reflect reality. If the moral guardians were to raid a teenage disco, should they criminalise our children under this legislation for what occurred there? I do not wish to promote or condone what I see as inappropriate sexual activity between children who are too emotionally immature to deal with such activity and its possible consequences. Equally, however, I am a realist and I do not want to criminalise them.

We do not have consensus on this issue, but we need to discover it in the near future. The complexity of the issue means that today's proceedings will not represent an end to our debate or, most probably, to action on our part or on that of the courts in this area. Concerns and issues will remain and will be challenged. I refer, for example to the effect — despite the general gender-neutral nature of the Bill — of treating boys and girls of the same age engaging in consensual sex differently. In addition, section 5 will protect females under 17 years of age who might be pregnant in order that they will have nothing to fear from the criminal law. We must not deter complaints in this regard. A girl under the age of 17 cannot be found guilty of an offence under section 1 or 2 for engaging in intercourse, but a boy, even if he is seduced, can be found guilty. The section is not without problems.

There are other issues. I and the majority of people would agree that some offences that are acts of sexual abuse against children are not covered by this legislation. No doubt, there will be a challenge to the use of the word "reasonably" versus "honestly" when it comes to judging the age of the young person. No doubt too, there will be a challenge to the definition of who is or is not a "person in authority" or "in loco parentis". I am a legislator, not a legal expert. Mark my words, however, problems will arise as a result of this legislation.

We will again discuss these issues in the House in the future. Senators must expect and not be afraid of this. The Minister will not be afraid to return. He has consistently stated that this is a complex area and indicated his openness to reasonable amendment and suggestion. However, we must address the immediate issues. We must reintroduce the offence struck down by the Supreme Court with the constitutional right to the defence of mistake. We must pass the law. The people demand it. As a father, a citizen and a legislator, I demand it. We must be compassionate towards people's concerns, most especially the victims. They must not be lost in all of this, as so much else has.

I welcome the legislation, albeit with reservations as my contribution makes clear. Even if its enactment raises many other issues that we as legislators and as a society have to address in the not too distant future I hope it will be in a calmer and more reflective manner. We must still pass the Bill today.