Finian McGrath (Dublin North Central, Independent)
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Question 333: To ask the Minister for Justice, Equality and Law Reform the steps he will take to rectify the protection of children here following the recent High Court ruling. [21728/06]

Michael McDowell (Dublin South East, Progressive Democrats)
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On 23 May 2006, the Supreme Court in the case between C.C. and Ireland, the Attorney General and the Director of Public Prosecutions declared that section 1(1) of the Criminal Law Amendment Act 1935 was inconsistent with the provisions of the Constitution in that it did not provide a person charged with an offence under that provision with a defence of honest mistake as to age. Section 1(1) criminalised carnally knowing a girl under 15 years of age. On 1 June 2006, I published a Bill which provides such a defence for any person charged with engaging in or attempting to engage in a sexual act with a child under 15 years of age or a child under 17 years of age. A "sexual act" is defined in the Bill as (i) an act, between persons who are not married, consisting of sexual intercourse or buggery or (ii) an act described in section 3(1) or 4(1) of the Criminal Law (Rape) (Amendment) Act 1990. The Bill passed all stages in the Dáil and Seanad and was signed into law by the President on 2 June 2006.

Billy Timmins (Wicklow, Fine Gael)
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Question 334: To ask the Minister for Justice, Equality and Law Reform if he received representations or submissions from any group, seeking an amendment to the Criminal Law Amendment Act 1935 to include the concept of reasonable mistake, as outlined in a Law Reform Commission Report of 1990; the persons who made the submissions; and if he will make a statement on the matter. [21743/06]

Michael McDowell (Dublin South East, Progressive Democrats)
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Since my appointment as Minister for Justice, Equality and Law Reform in 2002, neither the Department nor I have received any representations or submissions from any group to include the defence of reasonable mistake in the 1935 Act. The only representations or submissions which it has been possible to find in my Department which argued for the introduction of a defence of reasonable mistake as to age were in the context of the views invited from the public to the issues addressed in the Discussion Paper on the Law on Sexual Offences published by my Department in 1998. The Discussion Paper quoted the Law Reform Commission's recommendation that a defence of mistake as to age should be introduced on the ground that "Irish law in this area was unduly harsh and wholly out of step with the law in other jurisdictions". No mention was made in the LRC Report or elsewhere that there might be a constitutionality question mark over the strict liability offences of carnal knowledge of girls under 15 and 17 years of age. And the Report acknowledged that it had been argued with force that persons who have sexual intercourse with young girls should be careful first to ascertain their age and, if in any doubt to abstain from intercourse, and that changing the law could transform girls from being witnesses into exhibits if the defence were admitted.

The issue of mistake as to age elicited no great interest from the public. Of the responses, less than one in ten agreed with the Law Reform Commission on that issue. The Department of Justice, Equality and Law Reform sponsored about 7 important pieces of legislation since 1990 which in the main offered greater protection to children against sexual abuse through the criminal law. The introduction of a mistake as to age defence would have lessened the protection afforded by the criminal law to children against such abuse and as such would have run counter to policy adopted in this regard by successive governments. In the absence of a finding that a defence of mistake was a constitutional necessity there was no compelling reason why this should have been done and no Government, either before of after 1990, was prepared to change the long standing policy on mistake as to age.