A constitutional referendum is necessary to guarantee that men are not able to escape rape charges by claiming that they genuinely did not know that their sexual partner was under-age, the Director of Public Prosecutions has indicated. Mark Hennessy, Political Correspondent, reports.
"It is reasonable that there should be an age at which sex with a young person should be an offence, even if that person consents," James Hamilton told the Oireachtas Joint Committee on Child Protection, chaired by Limerick East TD, Peter Power (FF).
His testimony was given in private on September 26th to the committee which is investigating the fallout from the Supreme Court's judgment in May when it ruled that a man could argue that he had genuinely believed that a girl was old enough to offer consent for sex.
Mr Hamilton's submission to the committee has been published on the DPP's website.
Statutory rape charges, Mr Hamilton said, differed from common law rape charges because the State did not have to prove the absence of actual consent.
However, the ruling meant that section 1 of the Criminal Law Amendment Act 1935 was unconstitutional because it afforded no defence to a man charged with having sex with an under-15 girl, or under-17 in some cases.
"The statutory rape law fulfilled a vital place in the scheme of criminal law relating to sexual offences against children," Mr Hamilton said. Most acts amounting to statutory rape of a girl, he conceded, would also amount to sexual assault and could also amount to common law rape.
"However, there were a number of significant advantages in the use of the statutory rape provisions rather than common law rape which made it easier to secure convictions and which were likely to be less traumatic for the girl involved."
Statutory rape charges, he said, meant that there was "no need to prove actual lack of consent" and, while section 14 of the Criminal Law Amendment Act - which provides that consent is not a defence to a charge of sexual assault - would cover some of the ground, it would not stop an accused from arguing that he had believed that a girl was above age.
An age bar is reasonable, Mr Hamilton argued, to ensure an older person did not exploit a younger person's infatuation. "In some cases there can be a degree of ambiguity concerning the question of actual consent, particularly where drink is involved.
"Where consent is an issue, then other questions can become relevant, such as the sexual history of the injured party or her conduct towards the accused.
"For this reason, statutory rape charges could sometimes be regarded as the preferable charge even if common law rape could have been an alternative," he told the inquiry. "For these reasons, it is necessary that there be a replacement law to that struck down."
A new law to replace the Criminal Law (Sexual Offences) Act 2006, enacted hurriedly by the Government after the Supreme Court's ruling in the C case, should fix an age of consent.
Though a referendum would be necessary to return the law to a state where a man could not claim ignorance of a girl's age, Mr Hamilton said such a course might be "worth giving consideration" if there were to be changes to the Constitution to protect the rights of children.
"I believe that a reasonable case can be made for a strict liability offence on grounds of policy, as no matter now tightly an age provision is defined it is likely to be relatively easy to get around it in many cases," he said.
Unlike others who have given testimony to the Oireachtas committee, Mr Hamilton agreed with the decision not to apply the law equally to boys and girls. Girls under-17 cannot be prosecuted under the changes that came into law in June, but boys can.
"In an age which rightly seeks to avoid sex discrimination and gender stereotyping, it seems an obvious approach (to make legislation gender neutral). However, he went on, "equality under the Constitution does not require that all situations be treated alike - indeed that would be inequality."
• The full text of the submission by the DPP to the Oireachtas Joint Committee on Child Protection is available from www.ireland.com