Hindsight is normally wryly described as 20/20 vision, while the expectations for foresight, in the sense of predicting the future, are usually much more modest. Yet, according to the Opposition and much political commentary, the Supreme Court ruling which struck down the provision on unlawful carnal knowledge of a girl under 15 was entirely predictable, writes Breda O'Brien.
If these people were gifted with such foresight, where was the public outcry in advance? Where were the outraged analysis pieces 12 months ago? One article by a trainee solicitor in the Law Gazette, and one article in The Irish Times hardly constitute evidence that all of this could have been foreseen.
It may well have been predictable that the strict liability of the 1935 Act would one day be found unconstitutional because it contravened the right to a reasonable defence. However, I doubt if anyone in any political party foresaw that the consequences would be that a man who had plied a 12-year-old with drink and then had sex with her, would walk free from court, entitled to consider himself as guilty of no crime. Or, indeed, that a queue would be forming behind him, including men who abused children as young as six, all seeking to be freed.
The Government has rightly decided not to lower the age of consent to 14 in the case of "consenting" teenagers. Anyone who works with young people will tell you that alcohol is a major factor in early teenage sex.
We are appalled, and rightly so, by a man, who was 38 at the time, getting a child drunk and having sex with her. Yet, what is so wonderful about two 14- or 15-year-olds having sex after four Bacardi Breezers and two vodkas? How real is the consent given at that age, anyway, even when drink is not involved? Recent research on brain development indicates that the parts of the brain involved in mature decision making may not fully develop until the early twenties. It always fascinates me that young people who may be unable to get themselves out of bed in the morning to go to school, or who are incapable of even handing up their homework on time, are suddenly considered mature adults when it comes to sexual activity.
People always say that young people rebel against directive statements. It is true that a certain percentage will always try to do exactly the opposite of what adults wish, but others, and I would even suggest the majority of young people, are more cautious when there is adult disapproval. It was easier for earlier generations not to be sexually active too early because sexual activity at such young ages was clearly against cultural norms and engendered massive social disapproval.
It can only be considered dereliction of our duties as adults to shrug our shoulders and declare early teenage sex to be inevitable.
While it is absolutely necessary to put legislation in place to protect young people, we also need to radically rethink our ambivalent and sometimes even permissive attitude to early sexual activity. The more early consensual activity is normalised, the easier it is for a paedophile to persuade himself that sexual activity is wanted or even encouraged by the victim. Furthermore, while we think of abusers as being substantially older than their victims, the 2002 Sexual Abuse and Violence in Ireland report pointed out that one in four perpetrators of child sexual abuse is another child under the age of 17. Moreover, we cannot take refuge in naivety about early sexual exploration. Young people often become sexually active because of experiencing pressure akin to bullying. Many young women in particular feel that it is impossible to say no to sexual activity, for fear of being stigmatised by peers.
Recent surveys conducted in Donegal indicated, in common with such surveys everywhere, that many girls regret becoming sexually active too young. If sexual activity involving young people under 15 is illegal it gives teenagers a chance to express disapproval of early sexual activity in others by pointing out that it is also a crime.
The law has an educative and normative effect. Certainly, the previous law was flouted, but lowering the age of consent effectively to the age of 14 would only have resulted in people having sex at younger and younger ages. This is not the first era in history where sexual exploitation of young people was rampant. When the Salvation Army campaigned successfully to raise the age of consent in Britain from 13 to 16 in 1885, they did so because so many young, poverty-stricken girls were being exploited. The change in the law managed to affect attitudes, even if it happened slowly at first.
Even so, I have to confess to ambivalence. I find the idea of criminalising and incarcerating teenagers repugnant. Nor does it seem just to criminalise young men for acts or attempted acts of sexual intercourse under the age of 17, but not young women. What message would it send out to criminalise teenage fathers, but not teenage mothers?
Also, under the proposed new legislation, presumably a young man or young woman can now be grilled as to whether they deliberately misled someone as to their age. This could be tantamount to the appalling vista where the victim is interrogated as to whether he or she "led on" the abuser. On the other hand, mistakes about age are easy to make, including in less serious circumstances. Many moons ago, when I was a 21-year-old teacher taking a large group of 16-year-olds to the cinema, the manager confidently addressed one of the fourth year students as if she were the teacher, and ignored me.
Legislating on this issue is not easy. What is needed now is genuine foresight, so that the proposed legislation will not contain unintended consequences that will cause further problems in their turn, by, for example, criminalising young men but not young women. Sadly, the more urgent the issues we have to deal with, the less we seem to have either a common language or public forums in which to really discuss these issues without sensationalising or trivialising them. Without such shared civic spaces to air our differences, we risk letting down young people yet again.