FINE GAEL has said the age of consent should remain at 17 years, while those who have sex with under-15s should not be able to claim that they did so by mistake.
Putting forward Fine Gael’s final position on the issue, Dublin South TD Alan Shatter said the party had taken into account all submissions and legal opinions offered.
An Oireachtas committee, led by Fianna Fáil TD Mary O’Rourke, has spent months examining ways of ensuring that minors are properly protected, following the 2006 release from jail of a man who had sex with a 12-year-old.
In a letter sent to Ms O’Rourke, seen by The Irish Times last night, Mr Shatter wrote that absolute liability should be imposed on anyone engaging in sex with an under-15.
“The recreation of this offence of absolute liability will result in a person who does so behave no longer being able to rely on a defence of mistake as to age when charged with such offence. This will provide an absolute zone of protection for children,” he wrote.
Adults found to have had sexual relations with people aged between 15 and 17 would be able to argue in court that they had “reasonable grounds” for believing that the person was over 17.
However, they would not be able to rely on the alleged victim’s dress, or demeanour, since such a defence should “be expressly” excluded in legislation, said Mr Shatter.
In the Dáil yesterday, Taoiseach Brian Cowen rejected Fine Gael claims that the departure of three Fianna Fáil TDs from the Oireachtas committee would delay its findings. Brian Lenihan and Brendan Smith will no be longer be involved, following their transfer from the Department of Justice to the Department of Finance, and from Minister of State for Children to Minister for Agriculture, respectively.
Peter Power, who chaired the earlier Oireachtas Committee on Child Protection, will also no longer be involved now that he has been appointed Minister for Overseas Development Aid.
Fine Gael’s decision to insist on 17 years being set as the age of consent is likely to make it more difficult for a cross-party approach to be agreed.
Mr Shatter wrote that the Director of Public Prosecutions should have discretion to decide whether or not to launch a prosecution – to ensure that teenagers are not jailed for underage sex.
He said it was clear from the committee’s discussions to date that the Constitution will have to be changed if an offence of absolute liability for sex with under-15s is to be introduced.
However, he said Fine Gael “does not believe” that the laws on strict liability need to be protected by a constitutional amendment.
“Consequently, it is our view that a strict liability offence or offences could be urgently put in place by ordinary legislation,” he said.
If, however, legal opinion to the Oireachtas committee believed that constitutional protection is necessary then he said that the changes dealing with strict liability should also be included in the constitutional amendment.
