There remain compelling reasons for a referendum to put children's rights into the Constitution, writes FIONA NEARY
WE HEARD recently from Minister for Children Barry Andrews that the Government is looking at legislation as an alternative to holding a children's rights and protection referendum. While the Minister did not wish to pre-empt the Oireachtas Committee's recommendations, due in November, he did state that the advice the committee has received is that changes to the Constitution should only be proposed where there are compelling reasons to do so.
In terms of strict liability in statutory rape cases the reason to change the Constitution is that the long standing child protection legislation fell as it was ruled unconstitutional in May 2006. A referendum is the only way to reinstate that protection.
A purely legislative response is a stop gap measure which may, through political lack of leadership and courage, become the "solution". Let us be very clear, legislation short of a referendum is not and can never be a solution to this problem.
Since May 2006 Rape Crisis Network Ireland (RCNI), amongst many others, has felt there were compelling reasons for Constitutional change.
For the RCNI those reasons are the protection of children through the prevention of sexual exploitation and the protection of children through their exemption from cross examination as to their consent.
Strict liability means that the prosecution has to prove that the accused committed the criminal act and that the teenager was under age at the time to gain a conviction.
Children under the age of consent cannot legally give consent. However, without strict liability, if the defence can show that the defendant made a mistake as to the age of the young teenager then it is likely that it will in fact become a case about the child's consent.
The law truly becomes an ass here as the case then hinges on the presence or absence of a "consent" the law does not recognise as possible!
In the absence of strict liability at present that means that the perceptions of the perpetrator, no matter how objectionable those assumptions may be, are what decide the case with no regard to the harm perpetrated on the child. Legislative reform can however demand that the perceptions of the defendant be held to a higher standard of reasonableness. This would be welcome.
The impact for the child and our justice system is that to prosecute a case the child would have to be asked to effectively defend themselves in the witness box from the accusations of the defence team. Strict liability in statutory rape cases is the only way to ensure we do not put that onus on our child victims and as a result we are better equipped to hold perpetrators to account.
Legislation regarding the sexual exploitation of children, which does not contain strict liability, is and will remain insufficient. This is a compelling reason to change our Constitution.
The RCNI would very much welcome a tightening of legislation on what are often referred to as special measures in our court rooms. We have long campaigned for these. Special measures are in effect the exceptional rules, facilities and resources, such as giving evidence by video link, which are afforded to vulnerable witnesses such as child victims of rape.
However, special measures can only ever help a child once they are put in the witness box to be cross-examined regarding their actions, behaviour and "consent" regarding their sexual exploitation.
Strict liability means they do not have to face those victim-blaming questions from the defence team, and that the risk of further trauma to such vulnerable victims is avoided.
Very importantly a law of strict liability in relation to serious sexual offences sends a very clear signal to potential sexual perpetrators that such exploitation will not be tolerated. At a time when childhood is being sexualised in an aggressive manner, strict liability is a clear signal from society naming our children as worthy of a childhood and our protection. The exploitation of their vulnerability cannot be tolerated or facilitated. This is compelling reason.
For the Government to decide on limited legislative reform rather than to show leadership in protecting our children though robust legislation on the back of a constitutional amendment, would be a very significant U turn by Government.
The justification for such a U turn would have to be very convincing. To date we have not seen anything to convince us that strengthening legislation would be a good enough response to this crisis. There are few easy options in terms of child protection; none short of a referendum seems to exist here.
• Fiona Neary is executive director of Rape Crisis Network Ireland