Should there be strict criminal liability for adults who have sex with children?
Allowing defendants to claim a mistaken belief that a child was over the age of consent virtually guarantees acquittal, making it a child abuser's charter, says Alan Shatter.
ANY NEW criminal law concerning sexual offences against children must reflect the reality that there's an age below which a person lacks the capacity to freely consent to sexual intercourse and should have the following objectives; to protect children against sexual predators and paedophiles, to prevent adults from grooming children for sexual acts and to ensure a proper balance in law between child protection and defendants' rights.
For over 70 years, under the Criminal Law (Amendment) Act 1935, intercourse with a child under 17 was a criminal offence. This law was based on two principles. Firstly, that a child of 16 or under is insufficiently mature to make a considered decision to have intercourse. Secondly, we are obliged to protect children and it was reasonable to require adults to ensure their sexual partners were at least 17. Those who didn't, voluntarily and recklessly risked criminal prosecution and imprisonment. The 1935 Act prescribed an offence of absolute liability, ie a mistake as to the child's age constituted no defence.
In the 2006 "CC" case, the Supreme Court ruled that the 1935 Act was unconstitutional. It held that a person who made a mistake as to age lacked "mental guilt" and that the 1935 Act failed to respect "the liberty or the dignity of the individual accused" and to defend and vindicate his personal rights as a citizen.
Subsequently, the Criminal Law (Sexual Offences) Act 2006 was hurriedly enacted prohibiting "any sexual act" (intercourse and other specified acts) with a child under 17.
The Act, however, allows the defence of an accused's "honest belief" that the child concerned was 17 or over. Although it states that in considering the "belief" defence, the court must "have regard to the presence or absence of reasonable grounds for so believing and all other relevant circumstances" a defendant's subjective claim of such 'belief' constitutes the defence.
As juries can only convict if guilt is established "beyond reasonable doubt", using the "belief" defence can virtually guarantee a not guilty verdict. The law against sex with underage teenage children is largely unenforceable unless the prosecution can prove that this defence is totally unbelievable, eg because the teenager is in the accused's 13-year-old child's class.
Otherwise, sexual predators of any age are granted impunity to have intercourse with young teenagers unless the use of force or coercion constitutes rape. The mistake as to age defence in the 2006 Act turns what should be a child protection measure into a Charter for Child Abuse.
What we have learned over the last 20 years about the activities of paedophiles and sexual predators should have taught us that we must provide more, not less, protection for children. It is incredible considering what we now know, that young teenage girls are more at risk today of sexual violation by unprincipled or reckless adults than they were for over 70 years.
There is an urgent need to rebalance our laws. Our legal system should prioritise child protection and deter adults from engaging in intercourse with underage partners.
Fine Gael believes it necessary to restore an absolute legal zone of protection for children and to reinstate an offence of absolute liability to properly protect them from cynical sexual exploitation. Any new law cannot be a blunt instrument but should, whilst providing protection for children, also avoid alleged offenders being unjustly convicted.
The Joint Oireachtas Childrens Committee is considering the Government's Bill to amend our Constitution to include childrens' rights provisions. A provision reversing the impact of the Supreme Court judgment in the "CC" case is under discussion to enable the Oireachtas to recreate a criminal offence attaching absolute or strict liability to those who have intercourse with children.
Most committee members accept that the original constitutional proposal on childrens' rights requires amendment, and that if we are to provide an absolute zone of protection for children, the principles of the new law to be enacted should be agreed and published in advance of any required referendum.
The recent "K" case where a jury found a 20-year-old not guilty under the 2006 Act due to his mistaken belief that a 13-year-old with whom he had intercourse was over 17, highlights the need to reform our law.
However, it is essential that we do not pretend that the legislation required is simple. We must not ignore difficult and complex issues that should be addressed with insight and common sense. For example, any new law enacted should seek to ensure that we do not unnecessarily criminalise children of similar age for sexual experimentation which may attract moral censure, but where application of the criminal law is inappropriate.
We must also ensure that such law provides all children with protection from those who abuse a position of trust or authority.
It is critical, however, that the complexity of the issues involved does not unduly delay the vital reform needed.
Alan Shatter is a Fine Gael TD for Dublin South and is the party's spokesman on children
