There is now little distinction between middle-aged sexual predators and normal teenagers, writes Carol Coulter
A year ago The Irish Times published some of the results of a survey on teenage sexual behaviour carried out by the Crisis Pregnancy Agency. It found that the average age of starting full sex was 13 for a group of "at risk" early school leavers. On the other hand, 70 per cent of university-age young people had not had sex. So sexual activity among children in their mid-teens is a reality, but full sex happens only for a minority under the age of 17.
Yet it does happen. According to the same survey, one in five teenagers between the ages of 13 and 17 has had sexual intercourse. This is usually preceded by kissing and heavy petting.
They are all liable to prosecution under the law passed yesterday by the Oireachtas - all, that is, except girls under 17 who have full sexual intercourse. They can be prosecuted for other sexual acts, but not for that.
The Criminal Law (Sexual Offences) Act of 2006 replaces Section 1 (1) of the 1935 Act, struck down last week, and takes under the umbrella of under-age sex the 1990 Criminal Law (Rape) (Amendment) Act. The rest of the 1935 Act remains in force, though Section 2, prohibiting sex with girls between 15 and 17, is facing a challenge.
It is worth examining exactly what these other laws say. The 1990 Act, dealing with rape both heterosexual and homosexual, makes the following an offence, if there is no consent: "(a) penetration (however slight) of the anus or mouth by the penis, or (b) penetration (however slight) of the vagina by any object held or manipulated by another person."
Section 14 of the 1935 Act states: "It shall not be a defence to a charge of indecent assault upon a person under the age of 15 years to prove that such person consented to the act alleged to constitute such indecent assault." "Sexual assault" is not defined, but there have been numerous successful prosecutions where adults have engaged in the sexual fondling of children.
According to the Act passed yesterday, consent cannot be a defence where the person is under 17. This means that it is a crime, punishable by imprisonment, for teenagers under 17 to engage in fondling, or oral or anal sex, as well as sexual intercourse.
So a 16-year-old girl who performs oral sex on a boy, at his request, is guilty of sexual assault. If he is under 15, she is theoretically liable to life imprisonment. Bizarrely, if she offers him sexual intercourse instead, she is not guilty of any offence - unless he fails. He, of course, is.
What about 16-year-old boys, either gay or confused about their sexuality, who are experimenting with each other? Penetration of the anus "however slight" cannot be consented to by a person under 17 under this new law. Anyone who attempts it commits a crime.
A criminal conviction of this nature will have very serious implications for a young person, who will then have a criminal record. He or she will be unable to travel to the United States. Certain professions will be closed to them.
It has been suggested that there will be few, if any, prosecutions of teenagers. The permission of the DPP will be necessary to bring a prosecution. But it is not impossible to imagine circumstances where an outraged parent, backed by powerful political friends, would campaign for a prosecution to be brought against a young person claiming he or she had pressurised the son or daughter into sexual activity.
Even if there are few prosecutions, the threat of prosecution is likely to bear heavily on some children. Yesterday The Irish Times was told of a case concerning a 14-year-old couple who had a baby. They were 13 when their sexual relationship began.
The boy faced the prospect of prosecution under the section of the 1935 Act struck down last week. That Act contained a clause specifying that a prosecution had to be brought within a year. This has not been carried forward into the new legislation.
This means that a boy in similar circumstances in future would never be free of the threat of being prosecuted. If there was a dispute over the guardianship of the child, for example, and he sought either guardianship or to oppose the child's adoption, as he is entitled to under recent guardianship legislation, he could be threatened with criminal prosecution. Any attempt to assume responsibility for a child born to two teenagers could expose the boy to criminal prosecution. This conflicts with a policy of encouraging single fathers to be more involved with their children.
No one questions the need for stringent penalties for adults who prey on children. But it confounds common sense to treat teenagers in the same way. Yesterday, in opposing any reduction in the age of consent to sex, Enda Kenny thundered that, yes, while teenagers do have sex, just as they do drink vodka, we should not accept it, but indicate our disapproval through the criminal law.
But we do not threaten children with life imprisonment for drinking. It is a crime to sell drink to children, not for them to consume it.
The criminal law is not the way to tackle sex among young teenagers. There are volumes of research on ways in which it can be tackled. None of them suggest criminalisation.