Even if it means a delay, the Government should strive for clarity as it formulates new legislation on sexual activity involving younger people, writes Tom O'Malley
The law relating to children is firmly grounded on the concept of variable competence. This means that there is no one age at which people make the transition from childhood to adulthood for all legal purposes. The age of majority for most civil law purposes is 18 years. However, within the area of criminal law, there are several different age limits depending on the issue at stake.
A person may be held responsible for a criminal offence once he or she reaches the age of seven, although provision has been made to increase this to 12 years. Even if convicted, a person may not be sentenced to, say, community service before reaching the age of 16 years and, under the Children Act 2001, may not be imprisoned before reaching the age of 18.
As the law now stands, a female is deemed legally incapable of consenting to sexual intercourse before reaching the age of 17 years. Any sexual touching of a male or female under the age of 15 years amounts to sexual assault, because persons under that age are deemed legally incapable of consenting to such behaviour.
In all of these instances, of course, the age in question is chronological age and it is widely accepted that this is no more than a rough guide to actual competence. One 14-year-old may be more emotionally mature and streetwise than an 18-year-old. However, it would be very difficult to frame legislation that substituted mental or emotional age for chronological age whether in relation to sexual activity or anything else. As a result any chronological age limits established by statute will, of their nature, be somewhat arbitrary.
By most European standards, the Irish age of consent for sexual intercourse (17 years) is rather high. In one or two countries, it is as low as 13 years. Needless to say, each country is entitled to formulate its own policy in this regard. There is little point, however, in pitching the age at a level that has no regard to social reality. Right now, for better or worse, the reality appears to be that many young people in their mid-teenage years are sexually active. It is equally clear that the law is not being rigidly invoked or applied. Otherwise, there would be hundreds, if not thousands, of prosecutions for unlawful carnal knowledge in any one year. The contrast between the number of such prosecutions and the number of teenage births has frequently been remarked upon.
It now appears that the age at which females may consent to sexual intercourse will be reduced to 16 years. However, this will entail an examination of some related issues which could safely be ignored in 1935 when the old law was enacted, but which must now be addressed in the interests of gender equality.
The age of consent to male homosexual acts was effectively set at 17 years in 1993, when new legislation was enacted in response to the European Court judgment in the Norris case. In the interests of equality, and to remain compatible with the European Convention on Human Rights, that age will probably have to be reduced to 16 years as well.
Secondly, the Government will have to consider the situation where an older woman engages in sexual acts with a boy who is under the age of consent. Under the law which has just been struck down, the offence of unlawful carnal knowledge could only be committed by a man who had sexual intercourse with a girl under the age of consent. A woman who had intercourse with a consenting teenage boy could, at most, be charged with sexual assault and, then, only if he was under 15 years at the time. The new law will probably try to remove these anomalies by making it an offence for any person to engage in penetrative sexual activity with another person who is under the age of 16 years.
Such a law could still work harshly if no exception was made for sexual activity between teenagers who were both under 16 years. Consequently, the law will also probably provide that, so long as both parties are aged between 14 and 16 years, no offence will be committed if there is no more than a two-year, or perhaps three-year, age gap between them. Thus, it would be an offence for an 18 year-old to have sexual intercourse with a 14-year-old, even if both parties consented, but no offence would be committed if one party was 15 and the other 17 years, again assuming consent on the part of both.
Finally, of course, the law will have to address the very issue that led to last week's Supreme Court decision, namely a defence based on mistake as to age. The big question here will be whether the test of mistake is to be subjective or objective. In other words, the law could provide that a person would have a defence if he honestly though mistakenly believed that the other party was over the prescribed age (a subjective approach), or it could insist that any mistake as to age had to be reasonable as well as honest (an objective approach). Irish law has traditionally leaned in favour of a subjective test in such circumstances. However, in light of the strong social interest in protecting children from sexual exploitation, the adoption of an objective test would be fully justified.
If there is one quality which the Government should strive to achieve in the new law it is clarity, even if this leads to some delay in the enactment of the legislation in question. What we must avoid at all costs is the type of cumbersome, convoluted and overlapping provisions that were introduced in England and Wales in the Sexual Offences Act 2003. Whatever its faults, our 1935 legislation was crystal clear. Hopefully, any new legislation will equal it in that regard.
Tom O'Malley is senior lecturer in law at NUI Galway, and author of Sexual Offences: Law, Policy and Punishment (Dublin, 1996)