Strict liability for the offence of sex with an under-age girl should be reinstated as part of the criminal law, according to the rapporteur on the legal protection of children appointed to advise the Oireachtas.
Prof Finbar McAuley has also proposed a constitutional amendment to reinstate this offence without permitting a defence of mistake as to the age of the girl.
Prof McAuley, an expert in criminal law in UCD, is one of the two rapporteurs on child protection appointed by the then minister for children, Brian Lenihan, in June 2006, in the wake of the Supreme Court ruling striking down the offence of statutory rape, or sex with an under-age girl, to which she could not legally consent.
The court found the 1935 Criminal Law Amendment Act to be unconstitutional because it did not allow a defence of honest mistake as to the age of the girl.
In his report, which went to the Cabinet yesterday, Prof McAuley proposed that a new law reinstating the offence of statutory rape should be designed in a way that did not criminalise sexual experimentation between children. He also recommended that the offence should apply where the defendant was more than two years older than the victim, or in a position of authority.
If there was no constitutional amendment permitting the removal of the honest mistake defence, he proposed that the defendant have to prove, on the balance of probabilities, that his belief that the girl had reached the age of consent was a reasonable one.
Prof McAuley was critical of the logic in the Supreme Court striking down of the 1935 Act, and also criticised the 2006 Criminal Law (Sexual Offences) Act, hastily introduced to plug the hole this created.
He said the logic supporting the decision of the Supreme Court that found the Act unconstitutional was "debatable". "Contrary to the view repeatedly articulated by the court in the course of its judgment, the doctrine of strict liability does not involve the punishment of morally innocent defendants," he said.
Strict liability relates to an offence where it is not necessary to prove criminal intent for an offence to have been committed. The mere facts of the circumstances (in this case, having sex with an under-age girl) give rise to the offence. The 1935 Act did not allow a girl under the age of 17 to consent to sex.
Strict liability is imposed, Prof McAuley explained, "to protect the public interest in situations where the law would effectively be unenforceable if proof of intention of subjective recklessness were required".
In the case in question, he said: "The defendant can fairly be said to have engaged in an inherently risky activity which might turn out to be unlawful [having sex with a girl who might turn out to be under age]. Viewed objectively, having sex with a young girl who might turn out to be under age is blameworthy conduct, and in that sense is the functional equivalent of a blow or a push in unlawful act manslaughter."
Considering how a judgment with such far-reaching consequences came about, he commented that there was a defect in the way the constitutionality of legislation was examined by the Supreme Court, in that legislation received relatively little attention from the legal profession or legal scholars before this court finally determined them, when such consideration would be too late.
One possible remedy to this would be giving a role to an expert, to be called as an amicus curiae (friend of the court), who could give an impartial analysis of the issues at stake.
Describing the 1935 Act, Prof McAuley said: "It failed to distinguish between two categories of defendant who deserve to be treated differently on moral grounds: older male predators who fully merit the stigma of conviction and punishment for a serious criminal offence, and young boyfriends of sexually active under-age girls who clearly do not," he said.
Referring to the new 2006 Criminal Law (Sexual Offences) Act, Prof McAuley said it extended the range of prohibited sexual activity involving young people, opening up the possibility of the unnecessary criminalisation of children for sexual experimentation. By including non-standard rape (like rape with an instrument) it removed the focus from the essential purpose of the legislation - the prevention of inappropriate sexual relations with young children. The form of defence of "honest mistake" allowed was not based on "reasonable belief", which would have given a higher degree of protection to children.