Maurice Cummins (Fine Gael)

I move amendment No. 2:

In page 2, between lines 20 and 21, to insert the following new subsection:

"(5) Where a person charged with an offence under this section—

(a) avails of a defence under subsection (4), and

(b) believed, at the time of the commission of the offence, that the child with whom he or she engaged or attempted to engage in a sexual act, was under the age of 17 years,

he or she shall be charged with an offence under section 3 in the alternative.".

This is a most important amendment since it plugs a significant loophole pertaining to the defence of mistake in section 2. As the Bill stands, if a male is charged with having sex with a child of 14, and successfully convinces the court that he was mistaken and thought that the girl was 16, he cannot be convicted under section 2, which covers sex with a child under 15.

There is no problem with that, but he could not then be charged with an offence under section 3, which covers sex with a child aged 15 or 16, since charges have already been preferred and cannot be amended. This amendment would mean that the section 2 charge would automatically become a section 3 charge and that the person would be liable to penalties under the latter. We contend that one cannot be charged under both section 2 and section 3, just as one cannot be charged with manslaughter and murder.