A couple of weeks ago on a radio programme a man was reminiscing about how, when he was 14 he was at a disco when a girl sent her friend over to inform him that she wanted to “shift” him. I gathered from what he went on to say that she did, indeed, “shift” him.
It struck me, as I listened, that under our current Romeo and Juliet law he could have been charged with an offence while the girl who was determined to “shift” him could not.
Shortly before hearing the interview I had read a statistic in The Irish Times which stated that 37 per cent of males and 26 per cent of females have had sex before the age of 17, the age of consent.
This figure, even allowing for youthful exaggeration, is high enough to underline the objectionable nature of that Romeo and Juliet law, enshrined in the 2006 Criminal Law (Sexual Offences) Act.
As explained on the official citizensinformation.ie website, the Act makes it “a criminal offence to engage or attempt to engage in a sexual act with a child under 17 years of age. It is not a defence to show that the child consented to the sexual act.”
But what if a teenager under 17 is having sex by consent with another teenager under 17 and they have not had their judgement impaired by alcohol or drugs?
"The consent of the Director of Public Prosecutions is required for any prosecution of a child under the age of 17 years for this offence," says citizensinformation.ie. "A girl under the age of 17 who has sexual intercourse may not be convicted of an offence on that ground alone."
In other words, the boy can be prosecuted and convicted of an offence but the girl can not.
Sex by consent
This
strikes me as grossly discriminately but actually that’s not the point. The point is that no young teenager should be prosecuted for having sex by consent with another young teenager.
I expect the Director of Public Prosecutions would be slow to prosecute a young boy under this Act but imagine the strain of waiting for that decision to be made? Imagine the strain of being brought in for questioning by the Gardaí?
But how are young teenagers (boys and girls but in most cases, I expect, girls) to be protected from predatory older people, mainly males?
In some countries, the solution is to take the age gap into account. This can range from two years to five years depending on the particular legislation. So to take the most conservative approach – in some of the Australian legislation – a 15-year-old boy who has sex by consent with a 15-year-old girl or even a 14-year-old girl, could make the defence that the age gap between them is below two years.
Such a provision would, of course, need to be qualified. For instance, in New York no age gap, however short, would mitigate the offence of first degree rape where one of the children is under 11 years of age. A person who is over 21 who has sex with a person who is under 17 can be charged with third degree rape.
These and other laws which make use of age gaps attempt to take into account two principles. One is that young teenagers having sex by consent should not automatically be guilty of an offence. The other is that young people need to be protected from those who are significantly older than them. And, of course, they take into account the need for young children to be protected.
Wickedly unfair
Our existing law is wickedly unfair. Will we wait until some young teenager loses his mental health while waiting for a decision from the DPP before we do something about it? There is an alternative: figure out a way, in consultation with organisations that work with rape victims, to make the law both fair and effective without waiting for such a tragedy to take place.
Padraig O'Morain (pomorain@yahoo.com) is a counsellor accredited by the Irish Association for Counselling and Psychotherapy. His book,
Light Mind – Mindfulness for Daily Living
, is published by Veritas. His monthly mindfulness newsletter is available free by email.