The Government intends holding a referendum on children's rights next year and a joint Oireachtas committee has been set up to consider the wording. The demand for such a referendum, which has been made intermittently by certain lawyers, groups and individuals over a number of years, grew in strength when the Supreme Court struck down Section 1 of the 1935 Criminal Law Amendment Act almost two years ago.
This section had made it an offence to have sex with a girl under 15; there could be no defence of consent or of mistake as to the age of the girl. Section 2 of the Act, which made sex with a girl under 17 a similar offence, though with a lesser penalty, became open to the same challenge.
As a result, a number of men who had been convicted under this Act challenged their convictions. One succeeded in the High Court in his bid for release but this was later reversed by the Supreme Court when the State appealed the decision and the other challenges collapsed. All these events were accompanied by widespread public uproar, matched by intense political activity including the setting up of a special Oireachtas Committee on Child Protection. A new Act was hastily passed reinstating the crime of sex with children, both male and female, but with a much wider definition of prohibited behaviour. It also permitted the defence of honest mistake about the age of the victim.
Many commentators at the time pointed out that the Act was flawed. A boy could be prosecuted for sexual experimentation with his girlfriend if she was under age, or indeed if both were. The defence of honest mistake opened up the prospect of children, especially girls, being cross-examined about their clothing and behaviour. Yet it was passed. The then minister for children, Brian Lenihan, appointed two special rapporteurs on child protection, Prof Finbar McAuley and Geoffrey Shannon, who were charged with reporting back to the Oireachtas on the state of the law, both criminal and civil, with regard to child protection.
They have now laid their reports before the Oireachtas. Prof McAuley proposes a referendum to reinstate the offence of statutory rape but also makes an innovative recommendation to ensure the Supreme Court has access to objective input through the offices of an amicus curiae (friend of the court) when a matter of such grave import is being considered. Mr Shannon's recommendations are wide-ranging, encompassing the proposed referendum on children's rights and examining the rights of unaccompanied minors and children in the care system.
Both have done a great service to the Oireachtas and the public in offering a road map for a public debate on children's rights and how they can be balanced with other constitutional rights. This debate is likely to begin in the joint Oireachtas committee but it should extend to the public at large. The issue is complex and these reports have established the framework for calm and reasoned discussion.