Mandatory reporting law requires wisdom of Solomon

AS DAVID Norris has now retired from the race for the presidency, there are many lessons to be learned from his bruising experience. Some of them have been well-rehearsed, such as the need to reform the candidate selection process and make it more democratic. Some others may be less obvious. For example, when allegations are made against a person, the important question is not, “Who is behind it?” But “Is it true?”

There have been suggestions that David Norris was targeted because he was gay, and because he represented the liberal agenda. Both of those motives are reprehensible. In a democracy, people have the right to represent reasonable viewpoints and to place them before the electorate.

However, ultimately it does not matter whether it was the reincarnation of Attila the Hun who publicised the infamous letter seeking clemency for Senator Norris’s former lover, Ezra Yitzhak Nawi.

The central focus must be whether or not an allegation is true. If an allegation is untrue, or partly untrue, attempt to correct the record. If it is true, take the consequences, no matter who exposed it or for what motivation.

The second lesson is closely tied to the first. If wrongdoing has occurred, do the right thing because it is the right thing to do. Do not do the wrong thing on the grounds that others who have also done wrong have not reaped the same grievous consequences.

We might call this the “Trevor Sargent” principle. Attention has been drawn to others like Kathleen Lynch who wrote letters as official representatives, and did not suffer as drastically as Norris. However, Sargent wrote a letter on behalf of a constituent who had been assaulted when he pointed out to their father an act of vandalism carried out by children. The constituent had also been charged with assault, which unsurprisingly, he felt was unjust.

When the letter emerged, even though Sargent had done nothing that hundreds of other public representatives had not also done, he resigned promptly.

It is to Norris’s credit that he retired from the race, and that he acknowledged that he had failed to show adequate compassion for the 15-year-old boy involved.

The controversy may also shed light on the difference between a principle of consent, and an age of consent. It is acknowledged that the boy consented to the sexual activity. However, that does not make it less wrong.

There is a modern squeamishness about being prescriptive or repressive, which means that highly important boundaries are no longer respected. The younger a person is when engaging in sexual activity, the more likely they are to regret it.

Having an age of consent is one way of deterring young people from entering relationships they may later wish bitterly had never happened. It is admittedly an imperfect protection. Israel’s age of consent is 16, which is too low, particularly when there is a great discrepancy in age.

Adults have greater responsibilities than teenagers. If a teenager seems willing to engage in sexual activity, the responsibility lies primarily with the adult to refuse or to walk away, no matter what the age of consent is. As a result, it was imperative to hear Norris describe as “disgraceful” his former partner’s involvement with a teenager, particularly given his previously expressed views on pederasty. However, once again this week we showed far more interest in the blood sport we call politics than in the fact that as a state we are failing young people.

Yet again (thanks to fine reporting by Carl O'Brien in The Irish Times) we see that social workers are overwhelmed and unable to cope. They are facing all sorts of challenges, from families where young teens are being prevented from attending school, to 10 year olds at risk of sexual abuse, and are unable to respond adequately. When the Dáil returns, important legislation will be enacted for the safeguarding of children. It is vital that we get it right.

It is also vital that people do not split along a so-called liberal and conservative divide. There are people with expertise who believe that mandatory reporting is a vital step forward, and others who have reservations. It is notable that Minister for Children Frances Fitzgerald has avoided using “mandatory reporting” about the proposed legislation. Even if she had, mandatory reporting means very different things in different jurisdictions. The first thing we need to do is to establish that we are all talking about the same thing.

For example, in some countries it means that only certain categories of people, such as social workers and teachers, are obliged to report. In others, there is a legal obligation on everyone with any knowledge, often with derogations for attorney-client and clergy-penitent relationships.

Cabinet Ministers Alan Shatter and Frances Fitzgerald have suggested the only exceptions will be when a victim is too distressed to allow reporting. However, this immediately raises the question, what about if other children are left at risk because of this?

I am someone in favour of mandatory reporting for child abuse, in the sense that in any instance where a child (or vulnerable adult) has been harmed, is at risk of harm or other children are at risk from a perpetrator, the relevant statutory authorities must be informed. As such, I am still keenly aware of two factors.

One relates to the nature of sexual crime. It renders a person utterly vulnerable and powerless. To insist on reporting when the victim is unwilling is to risk violating the person once again.

The second one is pragmatic. In other jurisdictions, mandatory reporting overwhelmed the system, making it impossible to do preventative and supportive work, which in turn led to more instances of neglect and abuse.

Prof Patricia Casey revealed the frightening statistic that in every adult psychiatric clinic of say 50 patients, five or six are there due to sexual abuse.

In an ideal world, every such instance should be reported and followed up. In our real world, we cannot even cope with the level of reporting we have.

Perhaps our only comfort is that we have started so late as a state that we can learn from the mistakes of others.

It will still require the wisdom of Solomon to frame legislation.