AnalysisThe Criminal Law (Sexual Offences) Bill extends the range of sexual acts with children that are prohibited and allows for the defence of honest mistake about the age of the victim.
It takes on board some of the proposals in the much-quoted 1990 Law Reform Commission (LRC) report, but not others. In particular, it allows for an aggravated offence where a "person in authority", defined as various family members or a person who is responsible for the education, supervision or welfare of the victim, has sex with a child.
The LRC also suggested that a distinction be made when there was an age gap of five years or less between the the two participants in the sexual act. This has not been carried through into the proposed Bill. It does state that the consent of the DPP must be obtained for the prosecution of any person under 17, and it is likely that such consent will not be lightly given, but it is now an offence for two teenagers under the age of 17 to have various forms of sexual activity with each other.
There is one exception to this: a girl under 17 who has sexual intercourse will not commit any offence.
This has been explained as not punishing single motherhood.
But it could give rise to certain anomalies. Two teenagers who engaged in any of the sexual activity, other than intercourse, described in the Sections 3 (1) and 4 (1) of the 1990 Criminal Law (Rape) (Amendment) Act (including oral and anal sex) would both be guilty of a serious criminal offence, because consent cannot be a defence.
If a 16-year-old girl seduced a 14-year-old boy, and he complained to his parents or to the gardaí, she would not be guilty of any offence, but he would be facing charges carrying a five-year jail term.
Quite apart from the inequality in the treatment of the two sexes, this will do nothing to encourage young men to take responsibility for their children if they are conceived while either parent is under 17.
Difficulties could also arise when the courts come to define further a "person in authority".
If this is a person who is, "for the time being", "responsible for the education, supervision or welfare of the victim", how long or short is "the time being". Could the net take in baby-sitters? Older siblings?
In the earlier stages of this debate the Minister drew attention to the difficulties involved in drawing up legislation that protected children while taking account of the reality of teenage life.
Given that the 1990 Act outlines a range of sexual acts that constitute rape where there is no consent; that the 1935 Act prohibits any sexual behaviour towards a child; and that consent cannot be presented as a defence where the purported victim is under 17, what can teenagers legally do?
This proposed legislation addresses the issue of older sexual predators, but it could expose experimental teenagers to criminal prosecution.