The two reports laid before the Oireachtas provide legislators with a framework of options to consider, writes Carol Coulter, Legal Affairs Editor
Few judicial decisions in recent times generated as much heat as those of the Supreme Court and High Court when Section 1 of the 1935 Criminal Law Amendment Act was struck down. This had made it an offence to have sex with a girl under the age of 15, whether or not she consented.
The challenge was brought by a "Mr CC", who had sex with a 14-year-old girl. He was 18 at the time. He claimed she told him she was older, and he therefore made an honest mistake about her age. The Supreme Court found that, because under the Act this claim was not available to him as a defence, the Act was unconstitutional.
Following this decision, another man, known as Mr A and aged 41, brought proceedings in the High Court challenging his conviction for sex with a 12-year-old girl on the grounds that the Act under which he had been charged was unconstitutional. He had pleaded guilty and served 18 months of a three-year sentence. The High Court ordered his release. A number of other men sought to bring similar challenges to their convictions.
The airwaves were jammed with furious callers to radio stations. A demonstration was called by one such caller outside the Dáil, to which hundreds of people responded. Politicians were urged to act.
Meanwhile, Mr A was rearrested and the State appealed the High Court decision. That case was heard by a five-judge Supreme Court, which found that his claim was ill-founded. The Chief Justice, Mr Justice Murray, said that a distinction could be made between a declaration of invalidity of a law and retrospectively annulling all decisions made under that law.
A number of the men against whom charges under the 1935 Act were dropped were then charged with other sexual assault offences.
The Director of Public Prosecutions, James Hamilton, told the Oireachtas Committee on Child Protection that a constitutional referendum should be held to reinstate the offence of statutory rape.
Meanwhile, a new law was hastily drafted to replace the hole left by the impugned section of the 1935 Act. This was the Criminal Law (Sexual Offences) Act of 2006, which replaced the old offences of statutory rape with two new offences of defilement of a child under 15 and defilement of a child under 17. It introduced a new defence of mistake as to the age of the victim. Unlike the 1935 Act, which only referred to girls, it was also gender neutral.
The new law also detailed a wide variety of sexual contact, short of intercourse, including oral sex, that amounted to offences.
Despite misgivings about the danger of it criminalising sexual experimentation among children, the Bill passed into law.
However, the debate raised broader issues concerning both the criminal law relating to sexual offences against children, and the general capacity of our laws to protect children from exploitation and assault, sexual and otherwise. The then minister for children, Brian Lenihan, asked two experts, Prof Finbar McAuley, a specialist in criminal law in UCD and member of the Law Reform Commission, and Geoffrey Shannon, an international expert on the law relating to children, to act as special rapporteurs on these two aspects of the law.
Their reports now provide a roadmap on how to go forward, and a framework for a calm and reasoned debate on child protection. Prof McAuley's report is very specific, relating to the debacle surrounding the Supreme Court decision and the fallout that followed, including the 2006 Act. He proposes a referendum along the lines already suggested by the DPP, and substantial amendment of the hastily enacted Criminal Law (Sexual Offences) Act.
Shannon's proposals are broader, and address such issues as the vetting of those working with children; child trafficking and the treatment of unaccompanied minors; the treatment of children in the legal system; older children's consent to medical treatment; the system of child care orders; the procedures in family welfare conferences; ensuring children are heard in proceedings affecting them; and tackling the issue of corporal punishment, all in the context of our existing commitments under international conventions.
One of his main proposals is a constitutional amendment to protect the rights of children, which would address the complex issue of vetting those seeking to work with children. While this already takes place, only criminal convictions are registered with the Garda Síochána vetting unit. This means that those against whom allegations of sexual abuse have been made, but where no successful prosecution ensued, do not feature.
Serious issues arise in relation to a person's constitutional right to his or her good name, to be treated equally, and to earn a living. Shannon includes in his report a proposed amendment to Article 42 of the Constitution which would include a subsection permitting the collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse of children.
He stresses that this must be proportionate to the requirement of the protection of children, and with full safeguards of the rights of any person subject to vetting.
The two documents provide a basis for real progress in child protection law.