A constitutional amendment to restore the offence of statutory rape is highly unlikely following the publication of the second report of the Oireachtas Committee on an Amendment on Children.
The majority of the committee, comprising members of Fianna Fáil and the Labour Party, does not recommend the holding of a constitutional referendum, favouring amending the law instead.
Minister of State for Children Barry Andrews said today at the launch of the report that this was also his personal view, but the matter would have to be discussed by the Cabinet before a decision would be made.
However, Alan Shatter said Fine Gael believed it was urgent that a constitutional referendum be held to allow the people decide whether there should be new legislation to reinstate a statutory rape offence, to which there could be no defence of "mistake as to age".
Fine Gael published its own minority report on the issue today, outlining legislative proposals which would provide for "an absolute zone of protection" for all children under 15 and for children between 15 and 18 where the sexual contact came from someone in authority, including a sports coach or babysitter.
Sinn Féin committee member Caoimhghín Ó Caoláin said that he also favoured a constitutional amendment to reinstate a "zone of absolute protection" in all cases where the child was under 14.
Introducing the report, committee chair Mary O'Rourke said that the view of the majority was to proceed on a legislative basis. The report also suggests that the President should refer any such new law to the Supreme Court to ensure its compliance with the Constitution, in the light of the Supreme Court having struck down the offence of statutory rape in its ruling in the case.
Labour's Brendan Howlin said that, in the light of the evidence given to the committee and a careful reading of the Supreme Court judgment, particularly where it stressed the importance of "mental guilt" in Ireland's criminal law system, the Labour Party group had come to the conclusion that there was no compelling reason to set that aside. They therefore supported the majority position that a constitutional amendment should not proceed.
Senator Alex White added that the committee was recommending that the circumstances in which a defence of mistake about the age of a child victim could be used should be very, very circumscribed.
The onus of proof would be on the accused, who would have to indicate to the gardaí when questioned he intended to rely on it, he could not refer to the dress or demeanour of the child, or his or her alleged consent, or to any evidence of the child's previous sexual history.
The majority of the committee also recommended that the age of consent be reduced to 16. Mr Shatter said that Fine Gael favoured keeping it at 17.
The committee unanimously recommends a complete review and codification of the law on sexual offences, including creating a specific offence of "child sexual abuse"; the creation of an offence for adult persons in authority, including those involved in training, to engage in sexual acts with children under the age of 18, and non-discrimination in prosecution on grounds of gender or sexual orientation.
The Irish Society for the Prevention of Cruelty to Children said it "broadly welcomes" the recommendations and called for any legislation to be "clear and robust". However, it said it was disappointed at the failure to recommend the reinstatement of the offense of statutory rape and to hold a referendum.
The society said the concept of absolute and strict liability would ensure children are better protected. "An offence of absolute liability is one for which a defense of mistake as to a child's age is not allowed. Offences of strict liability require proof by the accused of reasonable mistake," it said.
The Iona Institute also welcomed the committee's recommendations and argued that a referendum would not be justified.
Institute director David Quinn said the Constitution already allows the State to protect children where they are being abused or neglected. "Expanding its powers of intervention beyond this would represent an unacceptable increase in the power of the State to interfere in the lives of families and this would ultimately be detrimental to the interests of children."