THE LABOUR Party is drafting a Bill to deal with the issue of protecting young people from sexual assault, while allowing for a defence of honest mistake as to the age of the young person, The Irish Timeshas learned.
This is as an alternative to holding a referendum on the issue, as originally proposed by the Government, and which has been under discussion by the Oireachtas Joint Committee on the Constitutional Amendment for Children for six months.
However, discussions at the committee, including submissions from a variety of experts, have shown how difficult the issue is.
The Minister for Children, Barry Andrews, told the committee on June 4th last that the Government hoped it could achieve as much as possible through legislation. It had not yet taken a position on the issue, he said. "The net issue is how we can balance the rights of the child and those of the accused in a criminal trial. We hope we can achieve as much as possible through legislation, but that remains to be seen."
At that meeting Sinn Féin's Caoimhghín Ó Caoláin put forward detailed proposals for legislation. Any Bill to amend the Constitution in this area should focus on sexual abuse of children by persons in authority, he said. It should avoid criminalising sex between young people of comparable age. He also expressed doubt about removing a defence of honest mistake.
Fine Gael remains committed to the need for a referendum. Its spokesman Alan Shatter said: "We believe underage children in the community are at risk from sexual predators and that the laws enacted by the former minister for justice, equality and law reform, following on from the Supreme Court's decision, do not provide adequate protection for children and hamstring the Director of Public Prosecutions in taking prosecutions."
If the Government, the Labour Party and Sinn Féin can agree on legislation to tackle the issue, Fine Gael would be isolated on the committee.
Brendan Howlin of the Labour Party said he had asked the party's legal advisers to draft a Bill that might address these issues without going to a constitutional amendment. The elements it should contain would be to limit the cross-examination of children in relation to any sexual activity, and to create a very high hurdle for entering the defence of honest mistake as to the age of the child.
For example, the accused could have to obtain permission from the judge to mount that defence, he said. Such a Bill, when passed, should also be referred by the President to the Supreme Court to test its constitutionality, he added.
Senator Alex White, the Labour Party spokesman on children and a barrister, said the judgment of Mr Justice Hardiman had suggested that legislation was possible, protecting young girls from sexual contact while maintaining compatibility with the Constitution. This should be explored, he said.
In his judgment in the "C case" Mr Justice Hardiman stated that the State was perfectly entitled to take legitimate means, including those involving use of the criminal law, to discourage intercourse with very young girls. He said that the Law Reform Commission, in 1990, had addressed this issue and manifestly concluded that this could be done without the stark 1935 law then in force.
Members of the committee are now looking at the Law Reform Commission's report, as well as the reports from two experts commissioned to produce proposals on both the criminal law and the general issue of children's rights, Finbar McAuley and Geoffrey Shannon. Prof McAuley favoured the reinstatement of the offence of strict liability.
The latter issue of children's rights generally has been overshadowed by the issue of underage sex. However, the experience of the Lisbon referendum will have dulled the political appetite for another one on a complex legal issue. If the issue of underage sex could be got out of the way with legislation, it would allow a more leisurely, and measured, discussion on a constitutional amendment on children's rights.