Oireachtas Committee on the Constitutional Amendment on Children Proposes Measures to Enhance the Protection of Children from Sexual Exploitation and Abuse

7 May 2009

There is an urgent need for a comprehensive, codified scheme of sexual offences, and such a scheme should include a specific offence of child sexual abuse.

This assessment comes from the The Joint Committee on the Constitutional Amendment on Children in its Second Interim Report on the Twenty-eighth Amendment of the Constitution Bill 2008, which is published today.

The report presents the Committee’s opinion on the proposal to amend the Constitution to provide for the creation of absolute1 or strict liability2 offences in respect of sexual offences against or in connection with children.

Mary O’Rourke T.D. Chairperson of the Committee said:

"Sexual abuse of a child is a most horrific crime and one that causes lasting harm to the young victim. Sadly, statistics show that, in the vast majority of reported cases of child sexual abuse, the abuse is committed by someone the child knows or trusts.

Child protection is everybody’s business. Children are the most vulnerable members of our society. We must therefore do all we can to protect them from those that would harm them.

The recommendations made by the Committee in this report seek to ensure the highest protection of children from sexual exploitation and sexual abuse, facilitate the appropriate prosecution of perpetrators and enhance the protection of child victims of sexual offences in the criminal justice process."

The report is the conclusion of the Committee’s deliberations on this matter, during which it received over 175 written submissions, received evidence from a range of individuals and agencies in the area of child protection, and considered expert opinion from persons with expertise in fields of direct relevance to the matters under consideration.

The report makes thirty-nine recommendations. Key recommendations include:

• Undertaking a complete review and codification of the law relating to sexual offences, including the creation of a specific offence of "child sexual abuse"
• The creation of an offence for adult persons in authority to engage in sexual acts with children under the age of 18 years
• Amendment of the definition of "person in authority" contained in the Criminal Law (Sexual Offences) Act 2006 to include a person who is responsible for the "training" of the victim; and also to include persons who, while not acting in a position of authority at the time of the offence, have become acquainted with the victim as a result of having occupied such a position
• Placing the onus of proving a mistake as to age on the accused. The Committee further recommends that the standard of proof required of an accused in that respect should be proof “on the balance of probabilities”
• Making provision by law to enable an adverse inference to be drawn from the failure of the accused to mention the alleged mistake as to age or the grounds therefor when questioned by Gardaí
• Making provision by law to exclude reliance by a person accused of a sexual offence against a child on the dress and/or demeanour of the child, on consent by the child to sexual activity, or on evidence of previous sexual history of the child to establish or support a defence of mistake
• Raising the level which the accused must reach in proving the existence of a mistake as to age in cases of prosecutions for sexual offending against children
• Non-discrimination in the law relating to sexual offences against children on grounds of gender or sexual orientation
• Further consideration to be given to the role of prosecutorial discretion as a means of preventing the criminalisation of young people engaged in consenting, non-exploitative sexual activity with their peers.

Today’s report is the Committee’s Second Interim Report. The Committee presented a First Interim Report to the Houses of the Oireachtas in September 2008. That report addressed the proposed amendment of the Constitution to give legal authority for the collection and exchange of information in relation to the protection of children. The Committee concluded that a constitutional amendment was not required to permit the exchange of “soft information” by An Garda Síochána and other Statutory Agencies for the purpose of child protection and recommended that legislation be enacted for this purpose.

The Committee’s work continues in relation to the remaining proposals on the acknowledgement and enhancement of children’s rights under the Constitution. At the conclusion of this process it will present a final report setting out its opinion to the Houses of the Oireachtas and the Government.

A full copy of the report is available at www.oireachtas.ie

ENDS

Please click on the link to view details on the the Joint Committee on the Constitutional Amendment on Children

Note to editors

1. There is a general understanding that absolute liability means the impossibility of defending a charge on the basis of mistake as to age where the physical acts involved have been proved.
2. There is also a general understanding that strict liability permits such a defence in those circumstances, but with a heavy onus of proof, on objective criteria, on the accused.

Background

The Joint Committee on the Constitutional Amendment on Children was established by Dáil Éireann and Seanad Éireann to consider and report to the Houses of the Oireachtas on the proposals set out in the Twenty-eighth Amendment of the Constitution Bill 2007.

The Bill proposes amending the Constitution to provide—

(a) An acknowledgement by the State of the natural and imprescriptible rights of all children.

(b) A restatement of the existing protection of children and parents contained in the current Article 42.5 and the extension of this provision to all children.

(c) Legal authority for the adoption of children who have been in care for a substantial period of time if it is in the best interests of those children.

(d) That all children are eligible for voluntary adoption.

(e) Legal authority to secure the best interests of children in any court proceedings relating to adoption, guardianship, custody or access.

(f) Legal authority for the collection and exchange of information relating to the risk or actual occurrence of child sexual abuse.

(g) Legal authority to create offences of absolute or strict liability in respect of offences against or in connection with children.