A referendum on children's rights should not be confused with what happened in the Mr C case, writes Carol Coulter, Legal Affairs Editor
If a referendum had been held last week, or indeed last year, to reinstate the offence of statutory rape it would not have made a whit of difference to what happened in Dublin Circuit Criminal Court yesterday, when charges against "Mr C" of sexual assault of a 14-year-old girl were dropped.
Such a constitutional amendment would permit new legislation which would outlaw sex with children under a specific age, but not allow for any defence of a mistake as to the age of the child. It would affect those who might commit such offences in the future.
It would not, and could not, have retrospective effect on old offences committed under other Acts. Still less could it recreate an offence that was ruled unconstitutional by the Supreme Court when it decided in 2006 that it was unconstitutional that a person be deprived of an opportunity to plead that he had made an honest mistake as to the age of the girl with whom he had consensual sex.
This was the case put forward by Mr C. When he won his Supreme Court case, the DPP charged him with sexual assault. This related to offences allegedly committed in 2001. There were long delays in the charges coming to trial, due to the other legal proceedings. When eventually the case came to court yesterday the DPP entered a nolle prosequi, that is, a decision not to proceed. The DPP cannot give reasons for making such a decision, but we can speculate that the seven-year delay, and its likely impact on witnesses, would not have strengthened the prosecution case.
It must be stressed, however, that the only link this case has with the children's rights referendum currently under discussion is that it focuses the political mind on what is involved. Such a referendum can have no bearing whatsoever on any historic cases left in legal limbo as a result of the Supreme Court ruling.
The all-party Oireachtas committee, which meets in public later this month, will consider two possible ways forward. It can either reinstate the offence of statutory rape of a minor, which was abolished by the Supreme Court, or it can suggest an amendment to the Constitution that covers the right of children not to be sexually exploited, but also a number of other rights, like the right to be adopted even if the child's parents are married.
Following the Supreme Court ruling and the resultant setting up of the committee, two rapporteurs on child protection were appointed, criminal law specialist Prof Finbar McAuley and child law specialist Geoffrey Shannon. Prof McAuley proposed the reinstatement of the offence of statutory rape, without a defence of mistake as to the age of the child, by way of referendum. He proposed making a distinction between older sexual predators and teenagers experimenting sexually.
Mr Shannon proposed an amendment that would permit the adoption of children where parents have failed in their duty towards them, and the collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse of children.