The new legislation on sex crimes against minors was signed into law by President Mary McAleese last night, hours after the Supreme Court returned to jail a convicted child rapist released by the High Court earlier this week. Mark Brennock, Carol Coulter and Carl O'Brien report.
The legislation passed all stages in the Oireachtas yesterday and while the President had the option of asking the Council of State for advice on whether to refer it to the Supreme Court for a test of its constitutionality, she opted not to.
A spokesman for the Minister for Justice said Mr McDowell was confident the new legislation would survive any constitutional challenge. He said there were precedents in US and Irish law in which legislation which contained some discriminatory aspects was seen as acceptable by the courts because the discrimination involved has the aim of achieving some other social good.
The Supreme Court allowed the State's appeal against a High Court ruling that the 38-year-old man, who had raped a 12-year-old girl, should be released because the section of the Act under which he was convicted was unconstitutional.
The court found that because of his guilty plea and the fact that he did not question the age of the girl, he did not have standing to seek his release. Within two hours of the ruling, the Garda Press office announced that gardaí had "arrested the man identified as Mr A and he is being returned to prison".
Three other cases were adjourned in the High Court yesterday. Two were attempts by two convicted sex offenders to secure their release, and the third was a challenge to the section of the 1935 Act that outlaws sex with girls
between 15 and 17.
The passage of the Bill and the Supreme Court's decision comes at the end of a week of political turmoil which has engulfed the Minister for Justice, the Attorney General and the Government. The court's decision was greeted in Government circles with enormous relief, and with a round of applause in the Seanad when it was announced by Mr McDowell, minutes after the court made its ruling.
The mother of the girl who was sexually abused by Mr A said she was "absolutely over the moon" that he had been rearrested. "I'm just off the phone to my daughter and she's overwhelmed. She's so happy. It's been a very frightening few days for her," she told The Irish Times.
Earlier, some 2,000 people gathered outside Leinster House in Dublin to call for change in the legislation on statutory rape and greater protection for victims of abuse. Hundreds of people attended gatherings in Galway,
Wexford, Kilkenny, Dunboyne, Castlebar, Waterford, Tralee, Ennis and Limerick.
Mr McDowell said he was confident "the great majority" of those whose release was feared would now serve their full sentences. He said the Supreme Court would not outline its reasoning in detail until next week.
The new legislation spent just four hours in the Dáil and three in the Seanad before being sent directly to the President for signature last night. It makes engaging in a sexual act with a child under 15 an offence punishable by a prison sentence of up to a life term. Engaging in a sexual act with a child between 15 and 17 would be punishable by up to five years in jail, or 10 years where the accused was a person in authority.
The Bill allows for a defence in which the defendant could prove that he or she honestly believed that the child was above the age to which the offence applies. It was the absence of such a defence that led the Supreme Court to strike down the old legislation.