Criminal Law (Sexual Offences Bill 2006 - Second Stage - 2nd June 2006

Criminal Law Sexual Offences Bill 2006 - Second Stage - 2nd June 2006
Mr. Norris: I am glad the Minister is in the House. We are lucky to have a skilled and brilliant lawyer in the position of Minister for Justice, Equality and Law Reform because he can give us a very clear insight, from his experience as a lawyer, into these matters. Some of the comment in the media about the Minister has been extremely unfair. I regret that his spirited speech in the Seanad the other evening, not all of which I agreed with, was not relayed on “Oireachtas Report”. In fact, there was no mention of it. That was a grave omission because the people of Ireland should have heard what the Minister had to say. He is entitled to have his opinion heard as part of a balanced debate.
There is, of course, a degree of public outrage which is perfectly natural and we all share in it. There was a demonstration outside Leinster House this afternoon, which was part of the whole process. However, such an atmosphere should not be allowed to adversely affect the debate, which should be clear and should examine the principles at stake. Yesterday I passed the Four Courts and saw the Latin inscription fiat justitia, ruat coelum, or let the law prevail, even if the sky falls. That is where we are now. We must act in the interests of the community and not succumb to knee-jerk reactions to understandable public outrage.
The legislation has been prepared hurriedly and undoubtedly defects will be revealed eventually. The Minister cannot do anything about that because he has been put in a difficult situation. As the saying goes, however, legislate in haste and litigate interminably. This is a goldmine for lawyers.
The cases were shocking. One involved a mature adult man feeding drink to a child and then having sex with her when she was obviously not in a position to give consent, not just by virtue of her age but also her condition of intoxication. In the review of some of the other cases, the people involved are named and one extremely shocking element is that it appears entire families were involved in these acts, abusing their own relatives in certain cases. A man in Donegal had unlawful carnal knowledge of his first cousin. In another case, a man assaulted his niece and her brother was also involved. These are very shocking cases and it is very interesting that these acts took place within families.
The Minister said during the debate in the House the other evening that nobody had suggested anything that might have improved the situation. I suggested that we should examine the principle of consent because as Senator Higgins acknowledged, age limits can be arbitrary and prejudicial. After all, Romeo and Juliet were only barely into their teens when they had a relationship and young people are maturing much earlier than in the past.
I deprecate the fact that the main Opposition party took the opportunity to resist any reduction in the age of consent. It may not be popular but we must, if we are to be fair to young people, acknowledge the realities of life. Otherwise the situation will arise where young people are jailed. As pointed out by Ms Carol Coulter in The Irish Times, under the current legislation if a 16 year old girl seduced a 14 year old boy and he complained to his parents or the gardaí, she would not be guilty of any offence but he would be facing charges carrying a five-year jail term. That could not possibly be right and I do not believe anybody in this House believes it to be so.
One must also examine the situation with regard to same-sex relationships. I know the way young gay people form their sexual identity and I do not think it is appropriate ——
Mr. M. McDowell: I am sorry to interrupt Senator Norris, but it might assist the House to know that the State has won its case and Mr. A has been ordered to be re-arrested.
Mr. Norris: Splendid. I congratulate the Minister and the team involved in that case. This is a very good day. I am not a vengeful person but I am glad to hear the good news that this man will pay for his crimes, for crimes they were and of a most loathsome nature.
I brought a case to the attention of the Iranian ambassador recently, which concerned two youths, one aged 16 and the other 17, who were having a consensual sexual relationship in Iran. They were arrested by the religious police, beaten and then hung from the back of a lorry on a crane. That is appalling. Sexuality among people such as those young men should not be criminalised. A gay man who is 16 and a half is capable of giving consent. That is what I have been told by the gay community. It is not just my own lived experience. The Government should take this into account.
On the issue of the question of a defendant making an honest mistake, I have suggested, by way of amendment, that the term should be “reasonable” rather than “honest”. A judge could know what a defendant thought about the age of the other person, but he or she could determine whether the defence is reasonable.
In his speech, the Minister referred to the question of various sexual acts taking place between married couples and said that they could not possibly be of concern to any court. That might be so, mercifully, in this country, but we take a lot of legal precedents from the United States of America and in that country many states presume to interfere and tell married couples what they can and cannot do in the privacy of their own bedrooms.
On the question of language, I do not like the use of the phrase “defilement of a child”. This suggests that a child is defiled and is spoiled goods, so to speak. In the case of, for example, two 16 and a half year old gay people, a consensual sexual act is not defiling. Furthermore, an age of consent set at 17 is too high.
I have mentioned the principle of consent and am not happy that a girl should be held to have no responsibility whatever in the area of casual sexual relations. That is not right. I note that one section of the Bill provides that it should be left to the DPP to decide, in matters involving two teenagers, whether a prosecution should be pursued. That looks to me like an acceptance of the principle of consent, but with one very signal failing. There is no requirement or reason to give an explanation. In a court, however, such a requirement would exist. It is undemocratic for the DPP to decide on a nolle prosequi without providing an explanation. I would prefer it if the Minister re-examined the principle of consent.