Liability for underage sex

ANYONE READING today's HeadToHead debate between Alan Shatter and Tom O'Malley may well experience the uncomfortable feeling of agreeing with both sides of the argument. To the question of whether adult defendants accused of having sex with a child should be able to claim an "honest mistake" as to the age of the victim, there are no black-and-white answers.

Most people find the outcome of the recent K case in which a jury found a 20-year-old man not guilty due to his mistaken belief that a 13-year-old with whom he had intercourse was over 17 deeply troubling. Many, however, will also worry about the potential for injustice involved in denying accused persons the right to argue that a mistake has been made, and about the danger of criminalising sex between two teenagers.

The current legislation, introduced in 2006 as a rushed response to the Supreme Court ruling that a defence of "honest mistake" must be available, tilts the balance too far in favour of defendants. At the very least, children need protection from invasive court procedures, and the defendant should be required to prove that the alleged "mistake" was a reasonable one. This does not mean, however, that the answer is to shift the law to the other extreme of absolute liability. In this regard, the view of Ombudsman for Children Emily Logan that absolute criminal liability for sex with anyone under the age of 17 is a "blunt instrument" which would not "be the answer to all our problems" should carry significant weight.

There is a balance to be struck between, on the one hand, the urgent need to protect children from sexual predators and, on the other, the reality that the sexual behaviour of young people does not always fall within neat legal categories. The striking of that balance is the task of the Oireachtas Joint Committee on the Constitutional Referendum on Children chaired by Mary O'Rourke.

It is no insult to the diligent work of the committee to wonder whether this is the right place for such a nuanced question to be decided. Amendments to the Constitution, as we have learned to our cost in other areas, can have unintended consequences. It would be far better to leave the Constitution to general principles and for an issue like this one to be dealt with by way of legislation, where justice could be done to its complexities. If possible, this would also have the welcome effect of disentangling the broader question of a children's rights amendment to the Constitution for the specifics of the law on statutory rape.

The key question, therefore, is whether the issue could be dealt with satisfactorily within the current constitutional framework. It is notable that the Supreme Court judgment acknowledged that there is "more than one form of statutory rape provision which would pass constitutional muster", suggesting that there may be legislative solutions available within the confines of that judgment. In this light Tom O'Malley's call for a special commission to look at legislative options seems worthy of support.

This article appears in the print edition of the Irish Times