JOINT COMMITTEE ON CHILD PROTECTION díospóireacht -
Wednesday, 19 Jul 2006

Business of Joint Committee.

Chairman

The purpose of today's meeting is to carry out a number of tasks, including providing an opportunity for members to make opening statements on the committee's terms of reference and in private session making a number of housekeeping decisions and discussing the proposed work programme for the committee. Is that agreed? Agreed.

I propose that we now proceed to make our opening statements, beginning with mine. I then propose to invite the spokespersons for Fine Gael and the Labour Party to make their statements, to be followed by those of other members. Is that agreed? Agreed.

There can be few issues more important than the protection of the children of the nation against the scourge of predatory sexual abuse and statutory rape. The committee has been tasked by the Oireachtas to examine both the Constitution and the substantive criminal law relating to child protection to ensure our laws and criminal justice system stand up to the most rigorous scrutiny. We are required to ensure the level of protection and safeguards that the children, parents and guardians of these children deserve and expect are properly reflected in our laws and Constitution.

Neither I nor any member should prejudge what our deliberations and recommendations will be but a number of general principles will govern our work. The State has a significant obligation to ensure our laws and Constitution are robust enough to fully protect our children in a rapidly changing world. Virtually every parent laments and abhors the trend towards the premature sexualisation of children in circumstances where their physical maturity outstrips their emotional maturity. Those charged with the protection of children will look to this committee to provide reassurance that our laws are strong enough to deal decisively with those intent upon shattering the lives and innocence of young children through sexual abuse and rape. Where those laws are not strong enough, we will be required to table proposals to make them so.

As legislators, we recognise that one of the key functions of legislation is to set out a statutory framework for what is not acceptable behaviour. This is probably truer of sexual behaviour, particularly consensual sexual relations, than other forms of behaviour. What comes to be regarded as normal and acceptable or at least tolerable is governed by the general moral and social climate rather than threats of criminal sanction. This is an area that we will explore as part of our terms of reference.

Our laws on sexual offences against children also relate to the morals, attitudes and values of our country at a particular time. The law has an important additional societal function and can be used to support society by being seen not to condone certain behaviour, particularly where legislation operates to protect members of society who, by reason of their age or particular vulnerability, require such protection.

The committee has been set up by the Oireachtas in the aftermath of the controversy surrounding the Supreme Court decision on 23 May in the CC case. A principal term of reference requires us to consider the implications arising from and the consequences of that decision, the knock-on effect of which goes far beyond simply providing a new legal defence for adults who engage in consensual sexual activity with under age children. Its ramifications involve complex sociological issues, including the age at which society is prepared to condone consensual sexual relations among its youngest members and the extent to which it will allow victims of sexual offences to go through potentially more harrowing experiences in courtrooms.

Most agree that during the political controversy following the CC case, it was not possible to examine in a considered way the wider implications of the Supreme Court decision. Our terms of reference make this one of our principal duties. For almost 70 years the foundation of our law regarding the protection of children was contained in sections 1 and 2 of the Criminal Law (Amendment) Act 1935. As members are aware, section 1 created an absolute or strict liability on adults who chose to engage in sexual activity with young children. It can be said that the corollary of that section was also simple in that it provided an absolute protection to our children. However, that unqualified protection no longer exists and our committee is charged with dealing with the wider consequences of the changed reality.

In its narrowest sense, the Supreme Court decision in the CC case provided for an additional and potentially fruitful defence for those engaging in sex with under age children, but in its widest sense, the court has unleashed a broad range of complex and fundamental issues, not just for Government or the Oireachtas, but also for parents and society as a whole. The fundamental cornerstone of our child protection laws contained in the 1935 Act is no longer in place. This has tilted the constitutional balance of protection. One of our key tasks is to decide whether the Supreme Court has swung that protection too much in favour of the accused and in a manner not in accordance with society's current views on child protection. It is not for me to say where that balance should lie, but for the committee to carefully consider and to make its recommendations.

Subsequently, our terms of reference request us to specifically examine the desirability or otherwise of amending the Constitution to deal with the outcome of the Supreme Court decision in the CC case. The Constitution has been interpreted by the Supreme Court in a manner probably not anticipated by those who framed the original legislation. We have been asked to consider whether the Constitution, as now interpreted, corresponds with the wider societal views and expectations about the level of protection our children should have. Questions for us to consider are whether the courts are out of sync with the public's expectations of child protection; whether people's expectations cannot be reasonably encompassed within the Constitution; whether the Constitution, as now interpreted, provides better protection for the abuser or the child; whether it can protect both of these conflicting interests equally and if this will require constitutional change.

These are difficult and complex matters for the committee to examine and make recommendations on. This important challenge has been set for us not just by the Oireachtas, but by the wider community. Our conclusions and recommendations will say much about where we are as a society compared to where we were when the law provided an absolute legal protection for children.

Much of the debate, be it in the courts or during the passage of recent legislation, revolved around inserting new rights and defences for people accused of sexual offences. We have concentrated less on the rights of victims, particularly children. This is an area where we have been asked to make general recommendations to enhance the protection of children. During the next week we will decide on how best to inquire into these issues.

Another key area the committee has been asked to review and make recommendations on is that of criminal procedure involving children. I have no doubt that aside from the substantive criminal law or the Constitution there are a number of measures that we can explore to make the criminal justice system more protective of the rights of children. They are among the most vulnerable members of society and are certainly the most innocent. Being charged with providing a legal framework for their protection is a challenge I take seriously as a legislator and a parent. Members would agree that these challenges go beyond politics or political point-scoring. Parents and children would not thank us for that, as they are solely interested in how we can provide the levels of protection commensurate with society's modern expectations of child protection. The name of the committee points to the fact that children are at the core of our work. At all times, this must remain our primary consideration. Our work must be about protecting children's interests rather than political interests or previously held political positions.

The controversy surrounding the CC case presented the Oireachtas with its single greatest challenge and our committee has now been asked to examine in a considered way its implications for child protection. The committee has been given five specific and complex terms of reference by the Oireachtas which have been made all the more difficult by the strict timetable in which to conclude our work. In this respect, I encourage all members to focus on what is relevant to our terms of reference. The Oireachtas and the public will look to us to meet that challenge and provide the level of reassurance our children deserve and are entitled to. I look forward to working with each member impartially, fairly and in a spirit of co-operation to bring our work to a successful conclusion by 30 November.

Deputy J. O’Keeffe

I congratulate the Chairman on his election and wish him well in his work, in which he will receive constructive support from Fine Gael.

The members of the Fine Gael delegation to the committee also include Deputy Enright and Senator Terry. Fine Gael called for the establishment of an all-party committee at the beginning of what became a blistering few weeks in the Oireachtas in which the faith of this country in the ability of the State to protect its children was shaken to its foundations. We welcome that the committee is under way and are proud to be part of it. I look forward to a conclusion to its business that will be united, constructive and effective. I hope we will be able to conduct our business in the absence of political point-scoring and one-upmanship.

I will make a few brief remarks on where I see the committee heading. While we have been given terms of reference drawn up by the Minister and his colleagues in government, I reiterate that Fine Gael has serious concerns about the background issues that have brought us here today. It is vital that the committee considers the issues touched on in the Sullivan report, both to identify flaws in the system that can be rectified and to reassure everyone that the serious and to date unexplained breakdown in communications that occurred in the office of the Attorney General and the Department of Justice, Equality and Law Reform will never be allowed to happen again.

We are all aware that important recommendations were made in the aftermath of the Brendan Smith affair more than ten years ago. As a result of a report on that occasion, all cases of a sensitive nature, including cases concerning extradition and children were to be brought to the personal attention of the Attorney General. We know this did not happen in the CC case. Unfortunately, we still lack many key answers to the questions these events inevitably posed. It is important we learn from the mistakes of the past in order that, leaving aside politics altogether the lacunae in the chain of reporting are not swept to one side in an effort to avoid short-term embarrassment.

In the same vein, I recently spent time reviewing the emergency legislation passed by the Oireachtas on Friday, 2 June. Fine Gael supported this legislation because it was necessary to put in place immediately, protection for young people who might fall victim to sexual predators. The Bill was passed in a climate where the country was suddenly and dangerously left without a specific law to make it a clear offence for someone to engage in sexual intercourse with young children.

At the time Fine Gael raised several issues of concern with the content of the Bill, as did our colleagues in the Labour Party and other Opposition parties. Even the Minister for Justice, Equality and Law Reform admits that the statute passed by the Oireachtas was far from perfect, and a long way short of the standards these Houses should set for writing new laws. Notwithstanding the consensus of doubt, we were voted down on a number of significant amendments that would have made the Criminal Law (Sexual Offences) Act 2006 better and more effective, inclusive and equitable legislation.

Perhaps most prominent of those sections of the Act with which many colleagues and I have difficulty is section 5 which provides for immunity from prosecution for girls under 17 years of age. Crucially, it means the Act is not gender-neutral. It means if a boy and a girl commit the same act, one is liable to conviction and the other is not. It goes against the recommendations of the Law Reform Commission on this subject and it flies in the face of gender equality and common sense. Ultimately, it is the best case for not playing politics with issues such as this. At the time I believe I referred to it as a legislative camel or horse designed by a Government committee. Several other areas of this law are in serious need of review and repeal. It is incumbent on this committee to review the Criminal Law (Sexual Offences) Act 2006 before it is used to perpetrate a serious injustice against someone.

Another area which came under the briefest of examinations was the proposal of the Minister for Justice, Equality and Law Reform, Deputy McDowell, to reduce the age of consent. To say this was discussed in the absence of proper or complete debate is to entirely understate the ham-fisted way in which this important issue was introduced unilaterally as a topic of discussion.

Fine Gael made its position on this issue clear. The case has not been made for a reduction in the age of consent from 17 to 16. However, this is not to say we do not recognise the importance of drawing a clear distinction between consensual teenage sexual intercourse between peers and predatory sexual advances by older adults on teenagers and children. None of us wants to see harsh sanctions for youngsters who experiment or who inadvertently cross the line, but we can all see the difference between a 16 year old teenage couple having sex and a 50 year old teacher engaging in sexual activity with his 16 year old student.

The Fine Gael proposals to deal with this issue laid down clear definitions for these parameters and I regret they did not feature in the final version of the legislation signed by the President six weeks ago. The age of consent is one of the issues to be examined by the committee and I look forward to much more constructive and structured debate on it. I await particularly the opinions of the many professionals and experts who will undoubtedly bring their respective expertise to bear on the work of the committee.

This entire debacle has, if nothing else, shown us the value of being prepared for all eventualities and the importance of not rushing discussion and debate on important and sensitive issues. I hope and believe the committee will give us an opportunity to consider these significant areas and give them the proper considered attention they merit, far from the madding crowd.

Other issues to which the committee should pay particular attention include the logistics and the mechanics of the procedures to be employed in trials under sexual offences legislation in the future. The Minister for Justice, Equality and Law Reform was at pains to point out to us during the Second Stage debate on the emergency legislation that the judgment of the Supreme Court in the CC case would herald a new era of brutal cross-examination by defence counsel as each case of under age sexual intercourse came before the courts. He seemed quite defeatist that this was inevitable and that nothing could be done to safeguard the emotional security of vulnerable young victims that might come before the courts. I do not share his pessimism. As the Legislature, we have a duty not to simply accept what is presented to us as a fait accompli but to enact measures to change that situation for the better.

There are video evidence systems which could be put in place to allow young victims to present their evidence remotely. Measures could be put in place to allow a disinterested third party to adduce evidence from the victim. There is a body of international jurisprudence in this area which would allow us to benefit from the experience of other common law jurisdictions. I am aware of a law in Britain which ensures the alleged abuser cannot personally cross-examine a victim. In theory in Ireland, if an alleged abuser chooses to represent himself or herself, the grotesque scenario could arise in court whereby he or she would directly confront his or her alleged victim. These are all matters that should be carefully examined and considered by the committee.

The committee is to consider potential constitutional amendments which could be made to improve and enshrine greater protection for children in Ireland. Changing the Constitution is not a step to be taken lightly but my Fine Gael colleagues and I will consider any constructive proposal in this regard.

In terms of international comparisons, we have much to learn from other jurisdictions where laws have been put in place to deal with paedophilia related crimes and where measures have been implemented to restrict access to children for certain high risk categories of person. The British House of Commons is considering an adaptation of a US law that would allow communities and law enforcement officials to have access to key information on the whereabouts and backgrounds of persons convicted of sexual offences against children. We should examine this area with a view to possibly introducing legislation along similar lines.

Megan's law is a US federal law in force to varying extents across the United States. It places a duty on police and other law enforcement officials to inform the community of the proximity of a sex offender. I accept this type of law is potentially problematic and would require careful handling. However, I strongly believe it should be considered by the committee as a possible measure that could be implemented not only to protect children but also to give their parents peace of mind.

Megan Nicole Kanka, the little girl after whom the US law was named, was raped and murdered in 1994 in New Jersey by a sex offender who lived across the road from her. After raping her, he killed her by slamming her head on to a dresser and putting a plastic bag over her head. It was a truly horrific act. What was even more horrific was that her parents were completely unaware of his predatory past and were, therefore, not in a position to put protective measures in place or to ensure he did not have contact with their child.

The bigger issue now facing us is that the UK Parliament in Westminster is considering similar legislation. Members of the committee will be aware that Sarah Payne, a seven year old English girl, was murdered in rural England in July 2000. A substantial campaign is under way in Britain to introduce legislation similar to that in existence in the USA, to be called Sarah's law, to also provide local communities with information concerning sex offenders who may live in their midst. This is not academic as far as we in Ireland are concerned. Apart from learning from examples elsewhere, we must bear in mind that if such a law is passed in the United Kingdom, Ireland could then become a haven for sex offenders. It would become all too easy for persons in Britain who had been convicted of sexual offences there to migrate to Ireland and live in our communities and neighbourhoods. In a recent case in County Kerry an Austrian man was convicted of multiple counts of sexual abuse of children in that county. That person was known to Austrian and Interpol police officials but the local residents in Kerry were not aware of his dangerous past, a past that ultimately manifested itself in the most awful way, as described in court. In the light of cases such as the aforementioned and the fact that such laws could be passed in a country with which we share a common travel area, it is imperative that the committee considers this issue, without prejudice, as one of a spectrum of measures that could be put in place to protect children in Ireland.

My colleagues in the Fine Gael delegation and I will contribute in the most constructive way possible to ensure the committee brings its work to a successful conclusion within the time specified by the Oireachtas.

Deputy Howlin

I welcome the first formal session of the committee and congratulate the Chairman on his election. He is competent and will be able to carry out the delicate and difficult work ahead.

Public debate on the issues that make up our agenda has been subverted by distractions and irrelevancies, to some extent. The first distraction was a self-defence mechanism employed by the Minister for Justice, Equality and Law Reform when he disowned his own legislation. In an extraordinary and unprecedented way, he introduced his own Bill as "a measure which has negative consequences for the protection of children in society". He went on to say that "what we are doing today has been forced upon us reluctantly by the Supreme Court against our better judgment".

The Minister gave spurious grounds for his unhappiness with his own Bill. He managed to persuade commentators that successive Governments had considered legislation for a defence of honest mistake but had rejected it because children could be cross-examined and, thereby, further traumatised. This was a newly-discovered argument that was designed to distract. Its purpose becomes clear when one considers that a week previously, the Minister, in a very busy briefing schedule on his original and preferred proposals for law reform involving the creation of a common age of consent of 16, at no time mentioned that issue.

I am also suspicious of another Government distraction in this affair, namely, the call for a referendum to abolish the defence of honest mistake in under age sex prosecutions. The Minister for Foreign Affairs, Deputy Dermot Ahern, was clearly kite-flying on this issue, without official Government sanction. He was seeking to distract attention from the hopelessly inadequate initial Government response to this issue and from the serious flaws the Opposition had highlighted in the Government's legislation. These flaws were not foisted on the Government by anything in the Supreme Court decision but were of the Government's own making.

I agree with my Fine Gael colleague, Deputy O'Keeffe, that we need a credible independent inquiry into the handling of the case that gave rise to urgent legislation and to this committee's establishment. We need accountability as to who knew what and when. If the relevant parties did not know what was happening in good time, we need to know why. The report of the Sullivan review of the office of the Attorney General does not provide an adequate explanation for the events that resulted in a serious and completely unexpected crisis in the criminal justice system, the temporary release of Mr. A, a self-confessed child rapist and that may lead to an inability to prosecute others for similar crimes.

It is stretching credulity to breaking point to suggest that the failure to keep the Attorney General informed of the progress and consequences of such a vitally important case was simply an administrative error. The report shows that the failure took place not just once but six times, that is, at six of the seven points in the handling of the case when the Attorney General ought to have been consulted, he was not. There are a mere three pages in the Sullivan report dealing with that sequence of events. Mr. Sullivan states his outline of these events is "of necessity, very brief". What was the necessity to keep it so brief? Why have we not been given a full account? I hope the committee will be able to pursue these matters further. Given that the report was withheld by the Government in order that it could not be debated or even raised within the House prior to the recess, it must fall to this committee to debate it fully.

Having dealt with the preliminaries, the committee must undertake a proper review of the laws on sexual activities involving young people. Those laws must provide comprehensive protection for children against the vile predations of sexual abusers. However, they should also be framed rationally, not on a clumsy, one-size-fits-all basis and not by reference to specific sexual acts, some legal and others not, depending on the gender of the participants, that seem to have been chosen on a random and incoherent basis.

With regard to the content of replacement legislation, the Labour Party has asserted from the start that our most important and immediate concern was to pass a law to give full and complete protection to children from sexual predation. We consistently indicated that the Bill we published ourselves was a short-term measure and not a medium-term or long-term solution. Another important concern was that the law should protect children rather than criminalising them. A final concern was that, when it comes to framing permanent rather than temporary legislation to deal with this matter, it should as far as practicable be gender neutral.

The Government's Act has failed on all three grounds. The legislation exposes young people, up to the day before they are eligible to join our Defence Forces, to heavy prison sentences for consensual sexual activity with each other. Further, the legislation is not gender neutral. The Government has insisted that, regardless of circumstances or history, an under age boy can be punished for consensual sexual intercourse while an under age girl cannot. The legislation fails to protect young people against sexual predation by those who are older or who are in positions of authority. Laws that were in place to protect boys under 17 years from the advances of older men have been repealed without any replacement.

These are some of the important points related to this issue, but there are others that we must also bear in mind. We should not forget, for example, that the central recommendation of the 1990 Law Reform Commission report on child sexual abuse, so far as the criminal law is concerned, was not only related to the age of consent for sexual intercourse but also to the need for a wider offence of child sex abuse. The main reason for creating such an offence is that many acts amounting to sexual exploitation or abuse of a child do not amount to unlawful carnal knowledge or to an assault, yet the Act passed last month fails to address that basic defect, identified 16 years ago.

We should not ignore a basic principle of criminal law that has not yet been referred to by any Government representative. It should be possible to allow for a defence where there is an honest mistake as to age but to still place an onus on the older individual. This could be done by making someone culpable for "reckless disregard". Let us consider the way property, as opposed to children, is protected under the Criminal Justice (Theft and Fraud Offences) Act 2001. Section 17(1) of that Act says that a person is guilty of handling stolen property if he or she, knowing that the property was stolen or being reckless as to whether it was stolen, dishonestly receives it. Section 16(2) states a person is reckless if he or she disregards a substantial risk that the property handled is stolen. For those purposes, "substantial risk" means a risk of such a nature and degree that, having regard to the circumstances in which the person acquired the property and the extent of the information then available to him or her, its disregard involves culpability of a high degree.

Would not the Constitution be satisfied — without any need for amendment — if the same rules applied in the context of statutory rape, that is, a person is guilty if he or she had sex with an under age individual and either knew or was reckless to whether the individual was under age? I will be asking the committee's legal advisers to consider the concept of reckless disregard and to examine whether the principle can be adapted to our present needs.

I repeat my insistence that our deliberations must be child centred, not only in terms of protecting children from sexual predation but also with regard to protecting children from prosecution, conviction and imprisonment. We must face up to the reality that a great deal of under age sexual activity, if not most, takes place with others who are also under the age of consent or just over it. A major concern must be the very real likelihood that this legislation, if taken seriously and implemented, will result in children being imprisoned on a sexual discriminatory basis. If it is not to be taken seriously, we should not have passed it.

We know, because the media were extensively briefed on the matter, that the Minister, Deputy McDowell, had originally intended that consensual peer sex between older teenagers would not result in either of them being made liable for a serious criminal offence or subject to lengthy terms of imprisonment. However, panic in the Government forced him to drop that proposal. It falls to this committee to re-examine this important matter. We have a busy, demanding and difficult agenda. I hope we can work in consort to make recommendations appropriate to the needs of 21st century Ireland, while also keeping the needs and protection of children at the centre of our deliberations.

Minister for Justice, Equality and Law Reform (Deputy McDowell)

I congratulate the Chairman on his election and concur with the description of him as a diligent and constructive member of the Joint Committee on Justice, Equality, Defence and Women's Rights. His legal expertise and manifest fairness completely qualify him for the position. On behalf of my Government colleagues, I assure him our full co-operation. I acknowledge the attendance of Mr. Shane Murphy, SC, who is acting as legal adviser to the committee. I have great confidence in his judgment and expertise.

I want to bring a number of significant matters to the immediate attention of the committee. Today, the heads of a Bill on trafficking and sexual offences were approved by the Government on the basis that the necessary drafting work should proceed while having regard for the deliberations of this committee. In effect, a major criminal statute on sexual offences is a train that is about to leave the station and the carriages considered appropriate by this committee in terms of amendments or new substantive provisions can easily be attached. The tight deadline set for this committee coincides with a legislative instrument which should deliver speedy results on any conclusions we reach.

On Sunday, the President signed the Criminal Justice Bill into law. The new Act provides for an offence of reckless endangerment of children, arising from the recommendations of Mr. Justice Francis Murphy in the Ferns inquiry. In the next few days I intend to sign a statutory instrument which will bring that provision into effect.

A number of voluntary bodies have approached the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, and me to express their desire to be heard on these issues. It is important that these bodies have an input, as should the Ombudsman for Children, Ms Emily Logan, and the Human Rights Commission. They all have something to offer this committee. Therefore, despite our tight deadline, we will have to accommodate them as much as we can, either in writing or orally.

A variety of opinions have been expressed by public representatives on the age of consent. I am not going to engage in political banter but it is certainly the case that unity was lacking on the issue when it recently came before the Dáil. Deputy O'Keeffe has reiterated his party's position, which was first expressed in forceful terms by Deputy Kenny, while Deputy Howlin expressed a somewhat different point of view. All parties in Dáil Éireann share a concern about whether the exact age categories set out in the 1935 Act are still appropriate in the 21st century. I hope the committee will address this issue in a non-partisan way and without prejudice to previous positions taken by members.

Insufficient emphasis has been placed on the question of whether the provision of the 1935 Act and reflected in the 2006 Act which creates a separate category of 15 to 17 year old children is capable of defence in the traditional sense, bearing in mind the defence of reasonable mistake. It has been noted that there is an anomaly, whereby contemporaries are more likely to have an accurate knowledge of the age of a sexual partner than those of a different age group. That raises the fundamental question of whether the category in question is viable or sensible to maintain in the context of a revised law. It would be strange if a higher degree of criminal knowledge was imputed to a youngster who was a contemporary of his or her sexual partner than to a person who was 20 or 30 years older.

We should address the issue raised by Deputy Howlin with regard to whether the simple provision proposed by various parties for a defence of reasonable consent is the only response possible to the judgment in the CC case or if it is possible to claw back more territory on a child centred basis. The Deputy's approach proposes recklessness as an issue. There might also be an opening for considering the question of putting a positive obligation on people, particularly adults, who are minded to engage in any form of sexual contact with younger people to assume a positive duty of inquiry and to make the defence of reasonable mistake on their part contingent on excluding the knowledge based on a reasonable inquiry. This would put into law not simply a defence of reasonable mistake, as the Supreme Court in the CC case stated must be constitutionally present, but to circumscribe that either by introducing the notion of recklessness, as suggested by the Deputy, or by going a step further and imposing on anybody who proposes to engage in sexual contact with a young person a positive personal duty to make inquiry and to make the defence of reasonable mistake contingent on excluding knowledge based on what would have arisen if a reasonable inquiry had been made. In this calm, reflective period we should examine carefully whether the defence of reasonable mistake, if that is put on our Statute Book, should be circumscribed or narrowed down, particularly in the case of older people, by a duty to make reasonable inquiry and to inform oneself of the age of a person who might be under age.

I want to avoid political controversy and I will not turn my gaze to the red rags that have been put before me. However, I will make some general comments. In recent weeks it has been constantly suggested that in 1991 the Law Reform Commission suggested either that the law was urgently in need of reform or that it was unconstitutional and that successive Ministers and staff of the Department of Justice, Equality and Law Reform and successive Governments had collectively ignored and failed to act on the advice of the commission due to laziness or fecklessness. That is a black lie.

The Law Reform Commission paper was carefully examined by successive Ministers. It was examined by my predecessor, Deputy O'Donoghue, to the extent of issuing a discussion paper on its exact content. I presume that before him former Deputy Máire Geoghegan-Quinn who was a strong reforming Minister in the Fianna Fáil-Labour Party Government and former Deputy Nora Owen were conscious of the proposals. However, successive Governments decided not to follow the advice of the Law Reform Commission for reasons set out in its paper. I would like to draw the attention of this group to the fact that the 1998 discussion document clearly set out the reasons against accepting the commission's proposal as well as the arguments in favour. The Department's 1998 discussion paper asked whether a defence of reasonable belief should be introduced and came to the following conclusion:

A defence of reasonable belief existed in this country until 1935. The advantage in maintaining the present position is that it affords protection to girls whose physical maturity has outstripped their emotional maturity. It also discourages reckless behaviour by men who, if there were such a defence available, might take a chance as to the age of the girl in the hope of putting forward a defence of reasonable belief later. The Law Reform Commission also made the point [this is in 1998 referring back to 1991] that in court the girl's appearance would become relevant, so that she would be an exhibit as well as a witness.

Members will find this point on pages 66 and 67 of the discussion document circulated today.

Of the almost 100 submissions made to the Department of Justice, Equality and Law Reform on foot of the discussion document brought forward by Deputy O'Donoghue, only a small handful of submissions favoured the introduction of a defence of reasonable belief. We must bear that point in mind and I make it because many people have laboured under the illusion that the Law Reform Commission warned us that the law was unconstitutional, which it did not, and that nobody paid attention to the commission's paper or if they did they negligently avoided coming to the same views. That was not the case.

Successive pieces of criminal justice legislation have dealt with the sexual area. In booklet No. 1 I count Acts from 1992, 1993, 1996, 1997 and two in 2001. In these successive pieces of legislation nobody from either side of any House suggested this defence should be imported into Irish law, although the Labour Party was among the handful who suggested in 1998 a reasonable defence exception in response to Deputy O'Donoghue's paper.

We must examine the criminal liability of under age girls and boys. There has been a degree of misleading commentary on this issue. Paragraph 8.4 on page 67 of the 1998 discussion paper reads:

Where a person is charged with having carnal knowledge of (or another sexual offence with) a girl under 17 years of age, the girl is not subject to any criminal liability. On the face of it, this seems to portray males as always being the instigators of sexual activity and girls as passive participants. The reality is that girls can be the instigators or — a more likely scenario — two young persons simply consent to have sexual intercourse with one another.

The Law Reform Commission examined this issue of criminal liability and put forward a compelling argument for retaining the present law [the law which does not criminalise the girl]. A person charged with rape can, on acquittal of that charge, be found guilty of having carnal knowledge of a girl (where she is under the age of consent), even though such a finding would not imply consent by the girl. If the law was altered to provide for criminal liability for under age girls, the girl could be regarded as being guilty of the same offence. This could have undesirable consequences. It could, for example, discourage rape victims from reporting the rape to the gardaí. The underlying argument, however, would seem to be that the purpose of the law is to protect young girls even if that means, on occasion, protecting them from themselves.

The arguments for a change in the law are, as already mentioned, that the girl may be the instigator and it could be argued that the law is discriminatory in its different treatment of both boys and girls of the same age. The Law Reform Commission recognised the potential anomalies in the present position but considered that these could be coped with by the use of prosecutorial discretion [which was inserted by the 2006 Act recently passed by both Houses]. Views on this issue are invited.

For completeness on this issue I draw the committee's attention to the original paragraph on which that commentary was based, on page 45 of the Law Reform Commission paper before the committee this afternoon. At paragraph 4.23 the following appears:

We also pointed out in our consultation paper that the imposition of equal criminal liability where, for example, the girl is very young and the man significantly older, might be considered unfair and unduly severe on the girl. An equally high premium would also be placed on the use of prosecutorial discretion. Since that discretion appears to cope reasonably well with the anomalies that undoubtedly arise from time to time under the present law we recommend that there should be no change in the present law that where a person is charged with having sexual intercourse or sexual activity falling short of intercourse with a girl under a specified age the girl is not subject to any criminal liability.

It goes on to state the same should apply to any offence of anal penetration when committed by a person in authority over or five years older than the boy in question or other sexual activity with a boy under a specified age. Parts of this are mirrored in the legislation the Oireachtas passed recently which extended for the first time some of these protections to young boys.

The issues of age of consent and gender neutrality were carefully considered and it is not correct to deny that there are two sides to the argument. It is a matter for fine political judgment. Rather than say anything divisive, I look forward to debating all these issues with objective, open minds to determine whether the existing law is desirable. There are strong arguments on both sides.

We now have a pressing deadline and a challenging agenda. The constitutional issue is not being offered as a distraction, as may have been implied. If we were to arrive at a view that a new form of protection for children required constitutional licence or underpinning and that the present guarantee for trial and due course of law was considered by this committee to be excessively oriented towards the perpetrator or the accused, we should not necessarily feel bound by the existing constitutional framework, if we find it inadequate. There have been calls for a general statement of the rights of a child to be enshrined in the Constitution. Perhaps something more specific could be inserted in that regard, and we should consider that objectively.

I assure doubting members that the constitutional issue is not included in the terms of reference as a distraction but for the purpose of completeness. If we arrive at a view that there is a constitutional constraint on doing the right thing then we should at least consider a constitutional amendment. I agree with Deputy O'Keeffe that it should not be considered lightly or as a short-term measure. A constitutional amendment, by definition, is a matter of long-term consequence.

Article 40 of the Constitution requires the State to protect the rights of the individual citizen, including children, regardless of whether they are citizens. It also obliges the State, in the case of injustices done, to vindicate those rights. In the context of the protection of children from sexual predation the Constitution obliges the State to put into effect a fair system of vindication of those rights which, subject to the opinions of Mr. Shane Murphy SC and the several other lawyers present, provides a substantial constitutional authority for special measures taken in the criminal sphere to afford children additional necessary protections in court, or to load onto those who interfere with them additional obligations and duties of the kind described by Deputy Howlin and me. We can return to these issues.

I ask all members to bear in mind that this is an all-party committee and includes at least one person of no party. Previous party positions taken during the passing of the emergency legislation should be set aside because the electorate and both Houses of the Oireachtas have asked us to use our cold, objective judgment on the issues in the interests of children, and not in those of vindicating past positions.

Minister of State at the Department of Health and Children (Deputy B. Lenihan)

I congratulate the Chairman on his election and wish him well. I have no doubt he will successfully discharge the duties of his office. I thank the Opposition parties for the constructive way in which they have worked on the terms of reference and their undertaking to work to find a solution.

I will not go over the ground already covered by previous speakers. We should bear in mind that child sexual abuse is widespread in our society. Prior to the enactment of the 1935 legislation the Carrigan committee found it to be widespread in Saorstát Éireann. The 1935 Act was introduced in response to this. We know from the Ferns Report, the Kilkenny incest report and much public debate and analysis that it is a widespread social phenomenon.

Given our somewhat limited terms of reference and the nature of the subject matter, we are not examining sexual abuse in its entirety but the response of the criminal justice system. Many aspects of child sexual abuse cannot be dealt with through the criminal justice system. The requirements of proof, however defined, preclude the prosecution of many offences. The nature of family relations, the nature in which information is volunteered and the lapse in time before many issues come to light all result in a large amount of activity which does not come within the purview of the criminal courts. That is not unique to this jurisdiction but is common to many throughout the world. An examination of the terms of reference will show that they focus on the relationship between the criminal justice system and the phenomenon of child sexual abuse.

There are many other ways in which the phenomenon of child sexual abuse can be tackled, some of which were touched upon in the Ferns Report last year. Were we to embark on that type of inquiry at this stage we would have a very far-reaching inquiry. We must consider the criminal justice system. It is important to realise that the substantive law is very closely related to questions of procedure and evidence and the two cannot be split in the course of argumentation. A classic instance is that recently given by the Minister for Justice, Equality and Law Reform on the subject of why the Government found it necessary to propose in the Oireachtas that section 5 should retain a residual element of differentiation between boys and girls. It was not just a theoretical issue concerning the possible criminalisation of pregnant women but a practical one for the prosecution of such offences. The Director of Public Prosecutions communicated to the Government at the time his clear view that the prosecution of offences involving a young woman who was abused would become immensely more difficult without that differentiation.

We must consider practical issues and I look forward to discussing the work programme, a draft of which I understand the Chairman has and which we will, I presume, discuss in private session. It is important to analyse the work programme and seek any practical advice we can obtain as we proceed.

Reference has been made by all speakers to the notion that the legislation, which was signed by the President on 2 June, is emergency legislation. In fact, it is an Act of the Oireachtas and not specifically in the nature of emergency legislation. It was born of an emergency in so far as, until early May, the Director of Public Prosecutions still applied sections 1 and 2 of the Criminal Law (Amendment) Act 1935 to prosecute in these cases. The device in sections 1 and 2 is convenient to the prosecutor because it obviates the need to prove consent. Such counts, however, were still being preferred against individuals as late as May this year. Clearly, the Oireachtas faced an emergency as, following the Supreme Court decision, there was no longer any basis to prosecute under one of those sections. It was essential that the Oireachtas, as speedily as possible, enabled prosecuting authorities to prove such cases in the absence of consent.

The Minister and the Government were determined to plug the gap with all due expedition. It was an emergency and was addressed. Neither the Minister for Justice, Equality and Law Reform, Deputy McDowell, nor the Government claimed to anyone that our legislative attempts represented perfection but they were the best that could be achieved in the circumstances. We were always anxious to consider the wider issues on a non-partisan basis. That is what I hope we can do now. The Act has been law since 2 June and it is open to the director and prosecuting authorities to use that law in the prosecution of particular offenders.

I return to the point I made that we can look at the substantive legislation and the appropriate categories such as what the age of consent and the nature of offences should be and whether the onus of proof can be reversed in some way with the defence of honest mistake. This has been recognised by the Supreme Court.

It would be a great mistake to view all these questions in isolation from the practical questions of procedure. Many children are reluctant to give evidence in court and it is very difficult to produce the evidence of a child in court in this type of case. That is the reason the criminal legal system has such a limited application in the context of the whole phenomenon of child sexual abuse.

In addition to the issues of substantive legislation, I welcome that the terms of reference seek an examination of the issue of procedures and how we make court procedures more child friendly. That question is of equal if not greater importance in the context of this debate.

I agree with the Minister for Justice, Equality and Law Reform when he states that if, as a result of our examination of the substantive legislation and court procedures we conclude that a constitutional change is required, we should recommend such a change. It seems there is a case to be made that, at least in the context of court proceedings involving children, the welfare of children should be of paramount consideration in court.

Where we speak of criminal proceedings, that paramount consideration may in certain circumstances have to give way to establishing guilt or innocence of particular persons in a criminal trial. Even in the context of criminal proceedings, some weight must be given to the interests and welfare of children. We will examine these matters. I look forward to analysing the work programme which the Chairman will propose. I hope it will open our minds and that as a result, we can come to good conclusions which will give the people a working modern statute protecting children in the context of the criminal legal system of which we can be proud.

Chairman

I thank the Minister of State. Before proceeding with other speakers, I should have mentioned in my opening remarks that we are in an almost unique situation. Although my experience is limited, I believe it is the first time an Oireachtas committee has been asked to inquire into certain issues of public importance at which two Cabinet level Ministers contribute. That is unique. The presence of members of the Executive to help us in our work is an expression of the weight which the Oireachtas has given to the work of this committee in the coming months.

Although we may come from very different positions arising from recent legislation, our focus must surely be on the protection of children, as the name of the joint committee suggests. That is where our focus should lie in the coming months.

Deputy J. Breen

As an Independent member of the committee, I congratulate Deputy Peter Power on his election as Chairman. I have serious reservations about the Act passed some time ago. We should stop looking at what successive Governments have done and mistakes which were made. We should move forward and table a Bill that will ensure the safety of our children and guarantee that what happened in the past will never happen again to any child.

I have serious reservations about a boy or girl having to give evidence in court. It will prevent young people coming forward to report cases. When a person aged 16 years comes up against a seasoned lawyer in court, it will be difficult for him or her to protect his or her innocence.

I look forward to working with the committee. I hope we can work together, bringing something to the Houses which will have all-party support. We should stop looking at the actions of successive Governments and move forward in a positive manner. I am sure we can do the work laid out for us.

Chairman

Are there any further contributions from members?

Senator McDowell

I wish to ask a question, but perhaps I should wait until we go into private session. The Chairman has rightly pointed out that we are in an almost unique situation in having two Cabinet members on the committee. I get the sense from the Minister and Minister of State that they intend to take an active part in the committee's deliberations.

Although that is generally positive, it raises some questions. In particular, I wonder to what extent the Minister for Justice, Equality and Law Reform feels he is representing the Government in the deliberations of the committee? To what extent does he feel constrained by decisions already made in Cabinet, or that he has a reporting responsibility to Cabinet?

I am not intending to be obstreperous or difficult. On balance, with the Minister's experience within his Department and as a former Attorney General, he brings a positive weight to the committee. Is there a possible difficulty in how he might relate with Government members of the committee? Has the Minister reflected on this or does he envisage any difficulty?

Chairman

Before I call on the Minister to reply, it should be clarified that the convention with issues such as conflict of interest would be that people can either disclose or raise matters involving such conflict of interest. It will be the first point on the agenda in private session.

Senator McDowell

I do not intend to imply a conflict of interest. It would be fine if the Minister replied now, but it may also be dealt with in private session.

Chairman

I will leave it open to the Minister, although I would like to go into private session.

Deputy McDowell

The terms of reference of the committee were considered by the Government, as was the question of my participation and that of Deputy Brian Lenihan, a Minister of State. He is charged with the statutory protection of children as part of the Executive's responsibility. It was the Government's considered opinion that the committee would be strengthened by the presence of principals rather than if principals retired from the process and proxies were put forward. That was seen to devalue the effectiveness of the committee.

I am conscious, with the Minister of State, Deputy Brian Lenihan, of obligations to the Government under the collective responsibility rubric. Although it may be difficult in theory to balance collective responsibility to the Government with full-blooded participation on an objective basis in this committee, both the Minister of State and I are determined to perform that task. The alternative scenario of us loitering in offices while others appeared to do our bidding would not be as effective. I am not discounting the Senator's point.

Senator McDowell

I was moved to ask because the Minister's nameplate includes the words "Progressive Democrats". I was wondering to what extent the Minister was representing his party or the Government.

Deputy McDowell

It is a good point. I had not noticed it myself. The committee is broadly reflective of the composition of the two Houses of the Oireachtas. Neither the Minister of State nor I is on a solo mission.

Chairman

I thank all those present for attending the public session of the committee. As agreed, we will convene in private session to hold further discussions and initiate a work programme. Public hearings will be held in September and October, details of which will be provided nearer to those dates.

The joint committee went into private session at 5.50 p.m and adjourned at 7.05 p.m until 2 p.m. on Tuesday, 25 July 2006.