Alan Shatter (Dublin South, Fine Gael)

I thank Senator van Turnhout for tabling this amendment and all of the Senators who have contributed to this important issue. It was discussed at great length at the Oireachtas joint committee that examined children's rights. In addressing the sexual offences area, the committee recommended that the Government should consider decriminalising consensual sexual activity between young people of approximate age. The approximate age that was suggested was two years. The alternative, as opposed to simply changing the law, was that it should be left to the Director of Public Prosecutions to exercise a discretion not to prosecute where an individual over age has sexual relations with an individual under age. For example, in the case of a 16 year old boy having sexual relations with a 15 year old girl, the girl cannot be prosecuted but the boy could be. It was recommended that where it is consensual and there is an approximate age, there should not be a prosecution.

I share the view that young people are sexually active, whether we approve or not. When I was 15, young people of 15 and 16 years were sexually active. I do not think the world has greatly changed since. The older we get as adults, the more we tend to think we live in a world that is somewhat detached from reality.

As I have informed the House previously, legislation is being prepared to consolidate our sexual offences legislation. It has regard to the very detailed recommendations made by an Oireachtas committee in 2006 and recommendations made by a variety of groups and organisations. I will shortly be bringing before the Government proposals in this area with regard to how we address the law and what reform may be required. It is appropriate we deal with this issue in the context of sexual offences legislation, not in the context of this Bill before us. There is a need to avoid criminalising our young people where they engage in consensual and non-exploitative sexual behaviour with members of their peer group as part of the normal process of growing up. I emphasise my belief this issue would be dealt with more appropriately in the sexual offences Bill which I hope will be published before the end of the year. There are decisions to be made on a number of issues relating to the Bill, while a suite of measures are being brought forward, including legislation being processed by my colleague, the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald. That Bill deals with a particular aspect of these issues and is before an Oireachtas committee. The suite of measures to deal with issues pertinent to young people and sexual conduct will include a sexual offences Bill, although that legislation will not be confined to issues relating to children.

There are provisions in this Bill that have some relationship with the important issue raised by Senator Jillian van Turnhout. For example, section 2(3) provides that the child against whom an offence is committed cannot be guilty of an offence of withholding information. This means the child engaged in sexual relations cannot be deemed to be guilty of an offence of withholding information on the sexual relations in which he or she is engaged.

Senator David Cullinane's comments are relevant to section 4(1), which is important. Where the child makes known his or her view that the offence should not be reported to the Garda, this section provides a legitimate defence for any other person who does not report the offence. The Senator raised the issue in the context of a very interesting analysis of the legislation carried out by the Oireachtas Library and Research Service. There was a reference to this issue, but it seemed to miss the fact that this provision was expressly included in section 4(1).

Since the behaviour referred to in Senator van Turnhout's amendment is consensual, the child would not wish it to be reported to the Garda Síochána. A person who knows this is the child's view on the matter will have the specific defence included in section 4(1). By way of example, a 15 year old girl may have sexual relations with a boy aged 16 and a half years. The girl may not want to have it reported to the Garda by her parents because, although they may not approve, they are girlfriend and boyfriend. The legislation is about making it a criminal offence not to inform the Garda, but if the young person does not want the offence to be reported, there is no offence under the legislation. There may be an issue under current legislation and the boy in my example would be open to prosecution. It is at the discretion of the Director of Public Prosecutions whether a prosecution should take place.

There was a recent prosecution which involved the proximate age issue and there was a judgment of the Supreme Court upholding what was alleged to be discrimination between boys and girls; it indicated that the boy could be prosecuted, even where the girl was exempt, because girls became pregnant. That was a reasonable issue to be taken into account by the Houses of the Oireachtas. Under this legislation, where the act is consensual and we talk about the offence being "non-reporting", the girl will make her wish known that the act is not to be reported. In other circumstances the boy may be the under-age partner and may not want to have the act reported. No one can be prosecuted for not reporting the act in such instances. That is substantially the answer to the issue raised by Senator van Turnhout.

The issue as to what constitutes a reasonable excuse was raised by some and is dealt with in the next section of the Bill. Senator Cullinane raised the issue in the context of the report from the Library, which had received a submission making the point that it might be a reasonable excuse if the victim does not want it reported. Again, section 4(1) addresses that.

The Ombudsman for Children raised the other issue of spelling out all the reasonable excuses, but that is not possible. There could be a litany of reasons it is reasonable not to report abuse, so it would be impossible to produce a definitive list. This operates in the context of a possible criminal prosecution. For example, I am being prosecuted for not reporting that a sexual offence has been committed and I have a reasonable excuse. I could have a range of excuses. My reasonable excuse might be that my life was threatened or the life of a member of my family was threatened if I reported the abuse. Would a court regard that as a reasonable excuse if I managed to establish on the evidence that someone genuinely threatened to shoot me?

There might be some other reason a person would not report. I may be a 17 year old in a family who knows that someone has had sexual relations with my 15 year old sister. My sister might not have told me that she does not want that reported but has said other things to me that make me conclude that I cannot report that. Those other things may or may not be a reasonable excuse, but if we went round this House, we would probably have at least one excuse everyone could think of that had not been thought of by anyone else.

The reasonable excuse provision exists in other, similar legislation and it has not given rise to difficulty, but it ensures an injustice is not perpetrated and someone is not convicted and at risk of a term of imprisonment in circumstances that would be grossly unjust and unfair. It is a protective measure that exists in the 1998 legislation that deals similarly with a failure to provide information but which did not apply to the sexual offences we are addressing here. That is why we did not spell out definitively what are reasonable excuses. There was no point in producing legislation that states a reasonable excuse includes the following list. That would be meaningless because there would be a range of others and it could just well be that something was spelled out that seemed reasonable in abstract but in a particular case should not provide a defence.

There was a range of reasons for not going there, although I thank Senator van Turnhout for tabling the amendment. It was an important issue to draw attention to and the problem that arises is substantially dealt with under section 4(1). When we deal with the sexual offences Bill, which I hope to introduce before the end of the year to be debated next year in the Oireachtas, knowing the burden the Attorney General's office is labouring under at present, it will provide further clarity on the issue of young people of proximate age having sexual relations.