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[19 December 2007] - Two constitutional amendments are proposed in the reports of the special rapporteurs on child protection in Ireland.
One would reinstate the offence of statutory rape (sex with a child under the age of consent) without permitting a defence of mistake as to age; the other would be a general amendment on the rights of children, which would include a clause permitting the vetting of those working with them.
The reports could be used as a blueprint for the children's rights amendment already planned by the Government.
Prof Finbar McAuley of UCD and Geoffrey Shannon, a child law expert and senior lecturer in family law in the Law Society, were appointed as special rapporteurs on child protection by then minister of state for children, Brian Lenihan.
This followed the striking down of section 1 of the 1935 Criminal Law Amendment Act, which made it as offence to have sex with a girl under 15, by the Supreme Court in 2006.
Furore
In the furore that followed, including the release by the High Court of a 41-year-old man serving a three-year sentence after pleading guilty to having sex with a 12-year- old girl, the question of the protection of children, and the need for a constitutional amendment to guarantee their protection, took centre stage.
Mr Shannon's report includes a proposed constitutional amendment to protect the rights of children. He proposes replacing section 5 of article 42, which states: "In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child," with a new article 42 A.
This would begin: "The State acknowledges and affirms the natural and imprescriptible rights of all children," and continue with most of the old section 5. It would contain two new clauses permitting the adoption of children where the parents have failed in their duty towards the child, or the voluntary placement of children for adoption.
The article would also allow for "the collection and exchange of information relating to the endangerment, sexual exploitation or sexual abuse" of children.
Mr Shannon stresses in his report the need to balance any such measure with the existing constitutional guarantees of a person's right to his or her good name, to equality of treatment and to earn a living.
Prof McAuley's report focuses on the striking down of the 1935 Act and the enactment of the 2006 Criminal Law (Sexual Offences) Act which sought to plug the gap.
He describes the logic of the reasoning behind the Supreme Court decision striking down the statutory rape offence as "debatable" and questions whether a man having sex with a girl who might be under age, even if she lies about her age, is not culpable. He describes such behaviour as "inherently risky", which may turn out to be unlawful.
The crime of statutory rape, where sex with an underage person is an offence to which there cannot be consent on the part of the victim, and where there can be no defence about mistake as to the victim's age, should be reinstated through a constitutional referendum, according to his report.
Prof McAuley says in the absence of a referendum, an accused person claiming the defence of mistake as to age should have to prove that the mistake was reasonable.
Further information
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Commissioner for Human Rights concludes assessment visit to Ireland (30 November 2007)
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More information on children in Ireland
pdf: http://www.ireland.com/newspaper/frontpage/2007/1219/1197996976876.html