The Government has indicated that it will move legislation within weeks to fill the gap created by the Supreme Court judgment when it struck down the law prohibiting sexual intercourse with girls under 15 years of age. Reform of the law on statutory rape is long overdue.
The 1935 Criminal Law (Amendment) Act is 71 years old, rooted in a time when sexual mores were very different to what they are today. However, its fundamental premise - that young girls should be protected from sexual predators - remains valid, and a law providing for such protection and extending it to boys, needs to be on the statute books as soon as it can be drafted.
As of now, the perception of the age of consent for young girls has changed. Any new law will have to take account of the modern reality of teenage sexual mores and the fact that girls can sometimes be the initiators. We could end up having a more liberal sex law than most of our European partners.
As well as providing for the defence of innocent mistake or honest belief that the girl was older than 15, as stipulated by the Supreme Court, such a law will also need to address certain anomalies in the previous legislation. One of the most obvious is the fact that it made it a crime, punishable by life imprisonment, for a boy of 14 years and 11 months to have sex with a girl of the same age. The girl, however, would have committed no offence, and would have been treated by the courts as a victim. Teenagers two years older would have participated in a similar offence, though the penalties risked by the boy in the situation were less severe. The discriminatory aspects of this law will have to be addressed.
This is a different issue from the protection of young people, girls and boys, from older sex abusers. The existence of an offence of statutory rape removed the possibility of a defence of consent if an older man was found to have had sex with a young girl. Quite simply, the very fact of the sexual contact made him a criminal. It removed the possibility of him escaping punishment by claiming a consensual relationship with the girl.
This was an important protection for girls, and one that should be extended to boys. Teenagers raised on a diet of popular culture and sexually explicit television programmes may be easily manipulated into believing they have consented to sexual activity, particularly if alcohol is also involved.
The Law Reform Commission examined this law 16 years ago. While favouring the retention of the law making it an offence to have sexual intercourse with young girls, it recommended that the defence of honest belief on reasonable grounds that the girl was older, should be available to the accused. This would not be a full defence, but could allow for a lesser penalty. The LRC also said that a position of authority or an age difference of more than five years should attract heavier penalties. A framework exists for reform of the law. The Supreme Court's decision has profound implications for our society.