Jillian van Turnhout (Independent)

I move amendment No. 1:

In page 3, subsection (1), between lines 27 and 28, to insert the following:

" "reasonable excuse" shall include for the purposes of this Act consensual, non-exploitative sexual activity where there is an age difference of not greater than two years between the parties;".

I welcome the Minister back to the House. I also take the opportunity to welcome his decision to raise the minimum age of entry into the Permanent Defence Force to 18 years. It is a hugely positive step in terms of children's rights in Ireland. It will be welcomed on the international stage, given that we are advocating against the use of child soldiers.

I commend the Minister for initiating this extremely important legislation and engaging with and listening to the concerns of Members during the Second Stage debate on 10 May. I commend the Minister on initiating this extremely important legislation and the clear commitment he showed during the Second Stage debate on 10 May to engaging with and listening to the concerns of Senators. As I stated in that debate, I fully understand and support the purpose and intention of the Bill. I have tabled only one amendment on an issue about which I wrote to the Minister on 29 May, namely, consensual, non-exploitative sexual activity involving parties where there is an age difference of not greater than two years. This is a highly sensitive area and one which should be debated. As someone who does not have a legal background, it took me a long time to draft the amendment and I remain open to discussing the possibility of finding a more appropriate means of addressing this issue.

My main concern relates to sections 2 and 3 of the Criminal Law (Sexual Offences) Act 2006 in Schedule 1, which deals with offences against children for purposes of an offence under section 2 of the Bill. The Criminal Law (Sexual Offences) Act 2006, in sections 2(1) and 2(2) and sections 3(1) and 3(2), creates two offences of engaging or attempting to engage in a sexual act with a child, the first of which relates to the defilement of a child under 15 years of age, while the second relates to defilement of a child under the age of 17 years. The Bill creates an offence of withholding information on certain offences against children and explicitly includes the two offences of defilement of a child. Neither the 2006 Act nor the Bill before us makes a distinction between underage consensual peer sexual activity and child sexual abuse. However, section 5 of the 2006 Act provides that a girl under 17 years of age "shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse". The Children First guidance and proposed Children First Bill take a different approach, chiefly by making a distinction between consensual peer sexual activity and child sexual abuse and they provide specific and welcome guidance on the treatment of the former category of cases. Notwithstanding that the Minister has made clear that the Bill before us and the Children First Bill form part of a suite of legislative reform to strengthen child protection and the protection of vulnerable adults, the two Bills are at odds with one another on this specific issue. If a conflict were to arise between them, it is likely that the Bill before us would take precedence over the provisions of the Children First Bill. It is, therefore, critically important that this issue be resolved and the Bills made compatible.

Although the average age of first sex is 17 years, a significant minority of teenagers - approximately 15,500 young people aged 16 years and below - are having sex before the age of consent. The scope for negative sexual health outcomes, including unplanned and crisis pregnancy and sexually transmitted infections, is serious. If this Bill is to impose a mandatory reporting obligation to the Garda on all persons in respect of consensual and non-exploitative peer sexual activity between minors, as distinct from suspected cases of sexual abuse between minors, it will negatively impact upon the right of a young person to access sexual health services, advice and information owing to fear of investigation and possible criminalisation.

In respect of teenage pregnancy, it is both worrying and significant to note that between 2000 and 2010, 7,224 babies were born to girls aged 17 years and under. Many of the girls aged 17 will have conceived at the age of 16, which is below the age of consent. While it is not possible to decipher from the CSO figures the age of the father in each case, we know from the report, The Irish Study of Sexual Health and Relationships, that the majority of underage sexual activity in Ireland is among peers. The Minister spoke on Second Stage about people having an obligation to report to the Garda where they have knowledge of "material evidence" that a serious offence has been committed against a child. In this specific context, what greater "material evidence" can there be than the birth of a child? Are the parents of the boys and girls affected statutorily required under the Bill to report to the Garda the birth of a child as evidence of an offence? Would such a requirement be practical or in the best interest of anyone involved? I was alerted to this issue by anecdotal evidence provided by a number of sources that many young fathers are being advised by solicitors and others not to enter their names on the register of births or apply to become their child's legal guardian for fear of prosecution. In such cases, children may be deprived of their right to identity and to have a relationship with their father and the family life of the young couple may be discouraged.

I am very confident that the intention of this Bill is to protect children, but I feel this particular provision has the potential to jeopardise seriously their safety and well being. I know that the issue of the age of consent for sexual intercourse is divisive, and I am certainly not advocating for the reduction in the age of consent. I would like to believe that no children were engaging in sexual activity, but we need to ensure that the legislative basis accounts for the reality of what is happening and the evolving nature of our society. Our priority must be the welfare of the young people in question, who are traversing their way into adulthood.

I understand that the Garda Síochána and the Director of Public Prosecutions use their discretion and tend to look at the overall circumstances of a relationship before deciding whether or not to prosecute. I wonder whether the discretionary powers of the DPP for such decisions should be placed on a statutory footing, for example, no prosecution of a child under 17 shall proceed without the consent of the DPP.

I would welcome any guidance or advice from the Minister on my amendment if there is a more appropriate way to deal with it. However, I feel we need to make a clear distinction so that this Bill is in line with the Children First guidelines and that we are not sending out messages to young people not to go to a health practitioner for fear that they may be reported.