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Sinn Féin express concern but facilitate passage of legislation to cover gap in law

2 June, 2006


Sinn Féin Justice, Equality and Human Rights spokesperson Aengus Ó Snodaigh TD has raised concerns with some sections of the Criminal Law (Sexual Offences) Bill 2006 but has said “Sinn Féin is facilitating the passage of this legislation to cover the gap in the law.                                                                                                                                   

Speaking in the Dáil this morning Deputy Ó Snodaigh said, “The Dáil and Seanad are meeting today to fill a very serious legislative gap that has appeared - not because of a Supreme Court judgement but because successive Governments since 1990 have failed to prepare for this eventuality.

“The victims of Mr. A, who has walked free, and of others who may yet walk free, have been devastated. Other victims are now living in fear.

“In common with the other Opposition parties, Sinn Féin is facilitating the passage of this legislation to cover the gap in the law.  We believe the law must be put right immediately to protect children under 15. It must, in line with the Supreme Court judgement, allow for the defence of mistaken belief as to age on reasonable grounds.

“We accept that it is not possible, in what is essentially an emergency Bill, to deal with the wider issues. However, we are very concerned that if this matter is not also dealt with, we will compound the current situation whereby, for example, a 16-year-old boy who has consensual sexual intercourse with a 16-year-old girl is guilty of a crime. That position is untenable and we are seeking to have this and related issues addressed in law as soon as possible. To that end we have pressed for the debate on these issues and the necessary wider public consultation to commence in the coming week. We should use the extra sitting next week for this purpose.

“I am especially concerned about the effect of Section 5 which states that a female child under 17 shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse. That Section negates the overall intent of the Bill which is, presumably, to be gender neutral. I believe that Section would be open to constitutional challenge and could lead us into a further legal quagmire. It highlights the need to address the issue of consensual sex between teenagers. This is a reality in our society and the answer is not to criminalize teenagers.

“The Minister has stated that Section 5 was included so as not to stigmatise single motherhood, as otherwise every 16 year old who was pregnant or had a baby would either have committed an offence or be deemed a victim of rape. But that is illogical. Under this Bill a pregnant 16-year old would be deemed a victim of rape. And the father of the child, no matter what the circumstances of the conception, is deemed a criminal. Section 5 should not be included in the Bill.” ENDS

Full text of speech follows:

Criminal Law (Sexual Offences) Bill 2006

The Dáil and Seanad are meeting today to fill a very serious legislative gap that has appeared - not because of a Supreme Court judgement but because successive Governments since 1990 have failed to prepare for this eventuality.

The chief law officer of the State, the Attorney General, sits at the Cabinet table. Governments have available to them a battery of legal advisors and experts on legislation. The Law Reform Commission report was published in 1990. The present Minister for Justice, Equality and Law Reform Michael McDowell in an article published in 1995 acknowledged the Law Reform Commission’s call for a change in the law. The Tánaiste admitted that the Department of Justice was aware in 2002 of the constitutional challenge to the 1935 law. It is claimed that a breakdown in communications meant that the present Attorney General was not informed of the case. But his office knew, as did the office of the DPP because they were represented in the case.

It has been pointed out, correctly, that other laws – including those covering rape and sexual abuse – are still there to protect child victims and all victims of these crimes. But the 1935 law provided a more ready means of securing convictions and set down stricter sentences. It was seen as a greater deterrent. It is understandable therefore that the DPP continued to prosecute under this law. But it is inexcusable that the Law Reform Commission Report of 1990 was not heeded and that preparations were not made for the contingency that the 1935 law could be struck down. Successive governments failed to grasp the nettle of reform and provide the leadership required.

It is ridiculous for the Minister to claim that nothing could have been done as this would have undermined the State’s case in the High Court and the Supreme Court. The Bill before us was drafted in a few days after the Government came under enormous pressure here in the Dáil and from the general public. The work should have been done already. Since last July when three judges of the Supreme Court ruled on this case, the Government should have seen what was coming down the tracks.

The Minister for Justice, Equality and Law Reform can be accused of many things, but no-one would accuse him of modesty. He is reported today as saying: “I am confident that when the dust settles and the frenzy stops, I will be seen to have acted with good authority and with competence, honesty and courage.”

People are outraged at the lack of good authority, the incompetence, the dishonesty and the political cowardice of this Minister and this Government.

The victims of Mr. A who has walked free and of others who may yet walk free, have been devastated. Other victims are now living in fear. The knock-on effect may well be to prevent victims of abuse from coming forward. Many people are today quite rightly exercising their right to protest outside the gates of Leinster House and in other parts of the country.

In common with the other Opposition parties, Sinn Féin is facilitating the passage of this legislation to cover the gap in the law.

We believe the law must be put right immediately to protect children under 15. It must, in line with the Supreme Court judgement, allow for the defence of mistaken belief as to age on reasonable grounds.  

We accept that it is not possible, in what is essentially an emergency Bill, to deal with the wider issues. However, we are very concerned that if this matter is not also dealt with, we will compound the current situation whereby, for example, a 16-year-old boy who has consensual sexual intercourse with a 16-year-old girl is guilty of a crime. That position is untenable and we are seeking to have this and related issues addressed in law as soon as possible. To that end we have pressed for the debate on these issues and the necessary wider public consultation to commence in the coming week. We should use the extra sitting next week for this purpose.

The neglect of successive Governments has created the situation where this legislation is being rushed through today. We need to ensure that what we are enacting today is but a first step, a temporary measure, pending more comprehensive and wide-ranging legislation.

I am especially concerned about the effect of Section 5 which states that a female child under 17 shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse. That Section negates the overall intent of the Bill which is, presumably, to be gender neutral. I believe that Section would be open to constitutional challenge and could lead us into a further legal quagmire. It highlights the need to address the issue of consensual sex between teenagers. This is a reality in our society and the answer is not to criminalize teenagers.

The Minister has stated that Section 5 was included so as not to stigmatise single motherhood, as otherwise every 16 year old who was pregnant or had a baby would either have committed an offence or be deemed a victim of rape. But that is illogical. Under this Bill a pregnant 16-year old would be deemed a victim of rape. And the father of the child, no matter what the circumstances of the conception, is deemed a criminal. Section 5 should not be included in the Bill.

There should be a time limit on Section 3 of the Bill and we are proposing that it will not stand after 18 months unless a resolution has been passed by both Houses of the Oireachtas to continue that section. This is to ensure that the wider issues are provided for in legislation and the next 18 months should be used to debate the issues and prepare the legislation.

The Minister seems to believe he is infallible, sorry Minister I have to burst your bubble. Not only are you not infallible, but you are human, and you have to suffer the consequences of your actions and your failures.

The honourable actions in this case is that you should resign.

Minister if you weren't so busy running around having cosy chats with private investigators, leaking documents to buddy journalists or in your anti-republican crusade, then, maybe you would have time to deal with the serious issue highlighted by the law reform commission in 1990 and again by yourself Minister in the Sunday rag, the Sunday Independent in March 1995.

If you had one ounce of humility in you Minister, an ounce of decency in relation to your actions or lack of action until now on this issue, you would resign.

I would also question the suitability of the Taoiseach to continue in office when, during the biggest legal crisis facing our society in unfolding, he leaves our shores, leaving the incompetent Minister fo injustice and inequality in charge.

That alone calls into question his judgement.

A aire, bé onórach, éirí as láithreag.

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