THE DIRECTOR of Public Prosecutions told a conference on sexual violence yesterday that prosecuting people for sex with young girls was now "immensely more difficult" under the 2006 Criminal Law (Sexual Offences) Act.
Prosecutors find themselves equipped with a far more limited range of legislative tools, James Hamilton said, at the conference at University College Cork. He called for the codification of the law on sexual offences, to make it accessible and comprehensible. It was essential the law was clear and easily understood, and not just by lawyers, he said.
This would "offer unique contexts for debates on such difficult matters as whether we ought objectively or subjectively to analyse consent", he said. It would also allow discussion on "the appropriateness of retaining the current ages of consent and the measures necessary to protect the vulnerable from sexual exploitation, while endeavouring to leave outside the scope of criminal culpability non-exploitative sexual exploration", he said.
The 2006 Act was introduced in the aftermath of the Supreme Court striking down strict liability in the offence of unlawful carnal knowledge of girls under the age of 17. In the "CC" case, the court found that it was unconstitutional that an accused could not even enter a defence that he honestly believed the girl to be more than 17 (or 15, where the offence carried a heavier sentence).
Previously, the very fact of having sex with a girl under 17 was automatically a crime, and the man could be prosecuted without any issue of consent arising. Prosecutors now have to bring prosecutions for rape or sexual assault, where the issue of consent could arise if the accused claimed he honestly believed the girl to be over 17, Mr Hamilton said.
Such a belief did not even have to be "reasonable", provided he held it honestly. This could expose the girl to cross-examination about whether or not she consented, which had been avoided under the 1935 Act.
These issues have been under discussion in the Joint Committee on the Constitutional Amendment for Children for many months. An amendment on children's rights, which would address such issues as the rights of children in non-marital as well as marital families, was one of the commitments in the programme for Government.
The heads of a new Sexual Offences Bill are to be published later this year. It will introduce several new offences aimed at protecting both children and vulnerable adults from sexual exploitation.