A focused discussion on the issue of protecting young girls from sexual exploitationis needed, writes Carol Coulter
THE DIRECTOR of Public Prosecution's (DPP) outline of the practical difficulties involved in prosecuting those who have sex with young girls should assist in a focused discussion on this issue. The Joint Committee on the Constitutional Amendment on Children has been wrestling with it for months, which has threatened to obscure the wider issues involved in an amendment on the rights of children.
According to the DPP, two issues arise from the 2006 Act: it may now be necessary to prove the absence of consent if the accused can show he (or she) honestly believed the complainant child was over 15 or 17, depending on the charge, and the nature of that belief argued in court - it is subjective, meaning it does not even have to be a reasonable belief.
Proving the absence of consent inevitably exposes a complainant - who, if the prosecution takes place quickly, may still be a child - to the possibility of cross-examination on whether or not she consented to the alleged sexual assault. This is clearly something all those interested in child welfare would wish to avoid.
The existence of the "strict liability" offence of unlawful carnal knowledge under the now unconstitutional 1935 Criminal Law Amendment Act meant that this did not arise. The combination of the child's age with a sexual act automatically made the sexual encounter a crime, and the question of believing the girl to be older only became relevant at sentencing.
Mr Hamilton has previously made clear his views that such an offence should be reinstated by a constitutional amendment. But the Joint Committee is finding it difficult to find a wording for such an amendment that will meet the legal difficulties it has unearthed during its deliberations. In recent weeks, most of the parties in the committee, with the exception of Fine Gael, have indicated a willingness to explore legislative options to sort out the mess.
Two legislative proposals are in the pipeline that might offer a way out of it. Labour is drafting a Bill for the committee that would allow for the defence of honest mistake as to the age of the girl, but establish a very high threshold for such a defence. This could include obtaining the permission of the judge to mount it in the first place and require that the belief be "reasonable" - that a reasonable person would have made the same mistake in the same circumstances.
At the same conference yesterday, the Minister for Foreign Affairs said that the Government was committed to introducing a Sexual Offences Bill. This was flagged in the Programme for Government.
"It will consolidate and modernise all criminal law in the area of sexual offences in a manner which is clear and uncompromising in its objectives of protecting victims - particularly children - from sexual crime and punishing the perpetrators of such crime," he said.
This Bill will contain several new offences, aimed at protecting children and vulnerable adults from sexual exploitation. It is likely it will address the weaknesses in the 2006 Act identified by the DPP. It is not clear if it will incorporate the measures Labour proposed, but, given that an all-party committee is considering these issues, it is likely it will seek as much common ground as possible.
Such legislation will not bring to an end the debate about enhancing the protection of children in the Constitution. But it may provide time and space for discussion on the issue, without undue emphasis on the emotive issue of sexual exploitation which, while of great importance, is not the only area in which children need protection.