Brian Lenihan Jnr (Dublin West, Fianna Fail)

——rather they are issues that require considerable deliberation. Even to produce legislation which deals with the immediate need to address the shortcomings that exist in our law as a result of the Supreme Court judgment requires a great deal of consideration. I assure Senators that the Government met on numerous occasions and required advice from the Attorney General on quite a range of issues before even arriving at this legislation.

I thank Senators for the co-operative spirit with which they have addressed this legislation. Under Bunreacht na hÉireann, the function of the Seanad is to advise on legislation and to suggest amendment. I appreciate that in the limited time available the scope for amendment is limited but from the contributions I have heard and from a note I have of the earlier contributions made in the presence of the Minister, Deputy McDowell, the spirit of the debate in this House has been constructive. That is in the best traditions of this House.

Our point of departure in this debate must be that as a result of the Supreme Court decision there are a number of individuals in our community who are very disturbed at what is happening. Apart from whatever discussion we have about legislation or the social phenomenon of sex abuse that exists in our country, there are victims who have gone through great hurt and suffering. Whatever we say must take account of their feelings. I know that principle and the feelings of those involved were respected in the Seanad. The Senators appreciated the fact that we must take into account the hurt that is felt even at the prospect of the premature release of very dangerous men. That was respected in this debate and I want to acknowledge that in the first instance before I address the points concerned.

The Government was faced with a very difficult position. First, in matters pertaining to the courts, the courts have sovereignty under our Constitution. They make the final decision on the constitutionality of legislation and also on the consequences of a finding of unconstitutionality. A great deal of political debate in the other House was naturally and understandably devoted to the proposition that if the Government, a Minister or the Attorney General was aware that there was a possible finding of unconstitutionality, that could somehow have enabled the Government to address the issues concerned. It could not. Before, during and since its judgment, the Supreme Court is sovereign in this matter and it made the decisions. There is nothing the Minister for Justice, Equality and Law Reform or the Government could have done in advance of, or since, the decision to prevent the release of the individuals concerned. I am glad to learn that the Supreme Court in the first appeal has decided not to direct the release of the individual concerned. I welcome that decision but it is one for the Supreme Court, not the Government. The court must consider the jurisprudence and decide in light of its interpretation of the Constitution what is appropriate.

Our duty in these Houses is to enact legislation that addresses the issues arising in the context of the Supreme Court decision. Senators made several points on Second Stage which I hope I can address. Several Senators said that section 5 introduces an element of gender inequality into the legislation. When the Supreme Court judgment was pronounced, several political interests, including the Labour Party, although I do not say that in any spirit of criticism, suggested that we should enact simple legislation to re-enact the 1935 legislation with the adaptation, on which the Supreme Court insisted, that the honest mistake as to age should be included.

The Government examined that option carefully and there were Ministers who considered, as any Minister would, that it would be the obvious solution to our problem. When we examined that issue, however, it was not so simple. The social assumptions that obtained in 1935 do not obtain today. When the 1935 Act was enacted the Minister for Justice, Mr. Routledge, and the then Attorney General explored the issues in great detail. A former Attorney General of that period, Mr. Conor Maguire, was later Chief Justice and in the leading decision on the 1935 Act, made in 1960, he stated that the object of the 1935 Act was "to protect young girls, not alone from lustful men, but from themselves". That was the social policy behind the 1935 Act but it does not obtain today.

The modern thinking on child protection is that we must protect all children, irrespective of gender, and the Government had to take account of that in preparing this legislation. It would have been very easy for the Government to go for the simple solution but that was not available to us. We studied the issues involved and we had to consider reports such as the Ferns Report, which I had to address as Minister of State. We decided that we had to provide a comprehensive charter of child protection in any legislation we introduced and that boys must be protected as well as girls. We have restated the 1935 legislation in terms of the protection of boys and girls.

We also had to examine the issue of consent. The Supreme Court has decided that the defence of an honest mistake as to age should exist. We must accept that. It has decided that as a matter of natural justice an accused must be entitled to avail of that defence. Senators have explored the implications of that decision.

In this legislation, however, we say that the issue of consent does not arise. In other words, while an accused person can cross-examine the victim on the basis that the victim gave an impression that he or she was of a different age, we are not prepared to accept the proposition that the victim can be cross-examined on the basis that he or she encouraged, or consented to, the act. There is a zone in which children must be protected.

We must make a difficult decision as legislators here because we know that as children evolve towards maturity things can happen, but the Legislature must send out a signal as to the appropriate age. We have decided not to disturb the arrangement that existed in the 1935 Act and is well-known in Irish culture that the age is 17. While the age is 16 in many jurisdictions, in our neighbouring jurisdiction of Northern Ireland it is 17. We are not departing from an all-Ireland norm in that respect.

If we have legislation that applies to both genders this gives rise to an issue — it has been raised by many Senators — as to why we draw the differentiation in section 5. There are serious practical problems if we omit section 5 from the Bill. If, for example, a 15 year old female is sexually abused by a 25 year old male, and we decide not to have section 5 and to apply the law without regard to both genders, the female becomes an accomplice in the crime committed by the 25 year old. She becomes guilty of an offence. In the context of a criminal trial, this means that the evidential standard which the prosecution must meet would be much higher because an accomplice's evidence requires corroboration. The Director of Public Prosecutions drew the Government's attention to this difficulty and we took it into account in arriving at our decision on the form of the legislation.

Apart from practical and evidential problems, there is an issue of principle. If the female in question conceives and gives birth to a child as a result of sexual intercourse and we decide not to include section 5 in the legislation, that woman is automatically criminalised. I know the Fine Gael Party put forward the proposition in the debate in the Dáil that this should be dealt with by way of minor offence. However, there is an issue of principle at stake. Can we say to any woman who gives birth to a child in these circumstances that the child's birth was a result of criminality? As that pregnancy proceeds, should she be held up before the community as a person who is giving birth to a child as part of criminal conduct? That is a far-reaching proposition. The Government had regard to that issue and took the advice of the Attorney General on it.

Some Senators referred to the possibility of a constitutionality issue. I assure them that we listened to the views of the Attorney General in that regard. He advised us that we were within our rights and that it is a legitimate differentiation we can make in the drawing up of legislation. We have drawn up the legislation on a gender-neutral basis in the context that we will protect boys and girls on an equal basis. However, we are entitled to make the differentiation between them on the issue of criminal liability under the age of 17. It is a differentiation that springs from the facts of nature herself. That is the basis upon which the Government drew that differentiation.

Arguments were advanced in both Houses that we should have taken a different course. However, Senators should consider what that different course would involve, namely, a major change in terms of the practicalities of mounting a prosecution of an offender where there is abuse of a younger woman. It would also involve a significant change in terms of how we view pregnancy and birth outside marriage. We have gone through a revolution on that issue during the past three decades and I would be disappointed if the changes we have seen and the change in attitude that has been effected were undone by legislation that would say to a woman who found herself in that position that she was automatically a criminal. That issue cannot be left to the discretion of the Director of Public Prosecutions.