Two referendums in March to change the Constitution - first on a fundamental aspect of the criminal law and then on the rights of children - are being got up to convey the pretence that the Government really cares about children. The reality is different, writes Vincent Browne.
The idea that the defence of honest mistake should be removed from any element of our criminal law is astonishing. Central to the criminal law system we have is the idea of intent or, in legalese mens rea, which conveys the idea of "guilty mind". It derives from another piece of legalese (the legal priesthood likes to rely on Latin verbiage so as to exclude as many as possible from understanding what it is all about), actus non facit reum nisi mens sit rea, which means that "the act will not make a person guilty unless the mind is also guilty". This has been at the core of our criminal justice system for centuries and, manifestly, is only fair.
Now, because of a populist alarm last summer over the release of a sex offender, the political class is as one in deciding that the only way it can convince that same populace is by changing the core of the criminal justice ethos. The proposal is to remove the idea of "guilty mind" from the crime of "unlawful carnal knowledge" (ie a man having sexual intercourse with a girl under the prescribed age).
The fact that a man might genuinely mistake the age of the girl - for instance in cases where the girl shows a false identity card with a false age registered on it - is no longer to be an issue. The man will be guilty, whatever the circumstances.
There is reason to be profoundly cynical about this current proposal and to suspect this is just another piece of strutting by politicians to keep on the right side of the electorate in the run-in to the general election. For there is indeed a very serious problem to do with the sexual abuse of children. I have been going on about the issue of child sex abuse in this column and elsewhere for several years and particularly about the authoritative survey on sexual abuse and violence in Ireland (the Savi report).
One in five women (20.4 per cent) reported experiencing contact sexual abuse in childhood and in a quarter of these cases (5.6 per cent) the abuse involved penetrative sex - ie rape.
One in six men (16.2 per cent) reported experiencing sexual abuse involving physical contact in childhood and in one in six of these cases the contact abuse involved rape. That Savi report made several recommendations. One of the authors of the report, Hannah McGee, says she is unaware of any concerted Government action to implement those recommendations. There is no sense of this being a crisis, requiring concerted governmental action on a range of fronts. Just opportunist strutting every now and again and this proposal to do with abolishing the defence of honest mistake is a cynical part of that strutting.
And as for the constitutional amendment on children. The impetus on this arises from the judgment of the five judges of the Supreme Court in the Baby Ann case. Adrian Hardiman, in his judgment, stated unequivocally that the contention that the Constitution did not already protect the rights of the child was entirely wrong, as was the contention that the rights of the family trumped the rights of the child.
He and the other judges in the case made it quite clear that they based their decisions primarily on the rights of the child in the case. And a feature of the judgments was the acknowledgment that if the child were not returned to her natural parents she would be left in a legal limbo because, since the natural parents had got married before the adoption order went through, there could be no legal adoption.
In other words, even if there were a clause in the Constitution explicitly acknowledging the rights of the child, it would have made no difference whatsoever.
Unless it is proposed to frame an amendment which would stipulate that the adoption of children of married natural parents is now permissible. That might make sense with appropriate safeguards, but, so far as I know, nobody has proposed that as yet.
Just more strutting.
While some elements of the final report of the Oireachtas Committee on Child Protection are still under discussion, well-placed sources say that following meetings this week, the committee is poised to call for: a common age of consent of 16 for boys and girls; a strict "absolute liability" offence that would make it illegal for adults to claim the defence of "honest mistake" for sex with under-15s; a ban on young victims of rape or sexual assault being cross-examined on their "sexual deportment"; training for judges and legal experts in dealing with young people in the justice system; and more resources to allow for the provision of evidence from children via video link. The committee is also considering a "two-year gap" that would allow young people to engage in consensual sex as long as there is not more than a two-year age gap between the partners.