Changes in the age of consent to sexual activity, legal representation for rape victims and decriminalising incest in certain circumstances are among the issues raised in an official discussion document published yesterday.
The 108-page document is intended to initiate a debate on reforms in the law on sexual offences. The Minister for Justice, Mr O'Donoghue, is currently seeking submissions from interested parties on such reforms. The document was drawn up over a number of months by officials in the Department of Justice, Equality and Law Reform.
In his foreword to it, Mr O'Donoghue points out that, while the overall crime rate has fallen, there has been a steady increase in the number of sexual offences recorded. This might be the result of a greater willingness to report such offences, but it was timely to take stock of our legislative response, he said.
He said he would be drawing up proposals for changes to the law, and would engage in full public consultation before doing so. Advertisements would be placed in newspapers seeking submissions, which must be made by the end of August.
The document does not propose legislative changes, but outlines the present state of the law under various headings; spells out the problems with the law as it stands; and poses questions for members of the public and interested organisations to consider. However, in many cases, especially in areas where there has been a considerable amount of lobbying, it emphasises the difficulties which would arise from changing the existing law.
In relation to the question of legal representation for the victims of rape or sexual assault, for example, the document points out that the Law Reform Commission has already considered this and concluded it might be constitutionally suspect. The Second Commission on the Status of Women also came out against it.
It draws attention to a number of procedural changes which have already been introduced to make the whole trial process easier for the complainant, and asks if "any more can be done legislatively to assist complainants in rape and other serious sexual assault cases."
The document also asks whether the law should be changed to remove any reference to the warning which a judge may give the jury about uncorroborated evidence, and whether the range of sexual offences to be tried in the Central Criminal Court should be extended beyond rape and aggravated sexual assault.
At the moment there are restrictions on publicising the identities of those involved in rape trials, apart from that of the accused when convicted. The document asks whether these restrictions should be extended to other sexual offences, and whether the restrictions should be modified to allow the complainant to go public if she or he wished.
The authors make a number of far-reaching observations on the law relating to incest. At the moment the offence of incest is restricted to a man having "carnal knowledge" of specified female blood relatives: for a woman, the only incest-related offence is consenting to it.
They point out that this excludes the possibility of a female instigator, and does not deal with other forms of sexual activity among adults within a family. The penalties for incest are higher for males than females, reflecting the assumptions made by the law.
The authors suggest that stepchildren and adopted children might be included under this legislation, and that the different treatment accorded to men and women in the legislation be reviewed. They also ask whether other forms of sexual abuse should be included.
More controversially, they ask whether there is anything to be gained by the current law which criminalises sexual activity between two adult relatives, such as brother and sister, where both have given valid consent.
When considering the law relating to sexual offences involving children, the authors note that the age of consent, 17, is high by international standards. Penalties for sexual relations with a child under 15 are higher than for offences with children aged 15 and 16.
They point out that a man who has sex with a girl of 12 is treated the same way by the law as a boy of 14 who has sex with a 14-yearold girl. Both face a possible penalty of life imprisonment, and they suggest some consideration be given to treating consensual sex between young teenagers differently from sex between an adult and a 13- or 14-year-old.
The document suggests a new offence of child sexual abuse, to cover sexual activities in the presence of children without the element of physical assault. In relation to prostitution, it suggests that a child forced to engage in prostitution should be regarded as a victim, not an offender.