Committee Reports::Report - Child Protection::01 November, 2006::Report

On behalf of the Joint Oireachtas Committee on Child Protection I am pleased to submit the report of the Committee to the Houses of the Oireachtas.

The issue of child protection is perhaps one of the most controversial and complex issues which the Oireachtas has had to deal with during the term of the 29^th Dáil.

The decision of the Supreme Court in the “C.C.” case on the 23^rdof May 2006, striking down a section of the Criminal Law (Amendment) Act, 1935, raised widespread serious concern in the country about the levels of protection being afforded to children in cases of “statutory rape” and sexual abuse.

Acting under considerable pressure of time and with the a real sense of urgency the Oireachtas enacted the Criminal Law (Sexual Offences) Act, 2006. It must be said that the Oireachtas passed this legislation in the knowledge that the pressure of time might prevent an ideal solution from emerging. In these circumstances, the Oireachtas established the Joint Committee to examine all of the issues and to make recommendations.

The Committee has recommended that there should be an “absolute zone of protection” for children aged fifteen and under. The Committee has recommended that the defence of mistake as to age should not be available, in cases involving sexual activity, where a child victim is aged 15 and under. Furthermore, the Committee has recommended that there should be a Constitutional referendum empowering the Oireachtas to enact laws of absolute liability in relation to children.

The Committee has also made sixty two recommendations which it considers are necessary to ensure enhanced levels of protection to our children consistent with modern expectations in this area.

I would like to thank my fellow Committee members for their attention to detail and diligent work over the last number of months.

The complexity of this issue necessitated the retention of a specialist legal team consisting of Mr. Shane Murphy S.C. and Mr. Seán Guerin B.L. On behalf of the Committee, I wish to record our sincere thanks to our legal team for the enormous amount of time which they have committed to this project and to their expert advice at all times.

I wish to thank the Clerk of the Joint Committee, Ms. Mairead McCabe together with her colleagues, Áine Breathnach, Peter Malone and Colm Kennedy for their professionalism and diligence which has enabled the Joint Committee to publish its report within the timeframe laid down by the Houses of the Oireachtas.

Part I
Introduction

1. Establishment and Terms of Reference of the Committee

1.1.1. On the 23^rdMay 2006, the Supreme Court delivered its decision in CC v. Ireland, in which it found that section 1(1) of the Criminal Law Amendment Act, 1935 was inconsistent with the Constitution. That section, and the related provisions of the Act, formed an essential part of the legal regime in this jurisdiction for the protection of children from sexual abuse. The immediate effect of the decision was to reveal a large gap in that regime, which urgently needed to be filled. Naturally, this was a source of immense public concern.

1.1.2. The immediate response of the Oireachtas was to enact the Criminal Law (Sexual Offences) Act, 2006, which was enacted on the 2^nd June 2006. That Act served two important purposes. First, it restored a regime of protection of children against sexual abuse and, secondly, it modernised and brought up to date the law in that area. That said, the law had been enacted as a matter of urgency and without any opportunity to engage in a process of consultation or period of reflection that would be normal in the case of such a significant legislative enactment. This Committee was established by resolutions of both Houses of the Oireachtas, on an all-party basis, to engage in such a process of consultation and to reflect on the issues involved.

-review the substantive criminal law relating to sexual offences against children;

-examine the issues surrounding the age of consent in relation to sexual offences;

-examine criminal justice procedures relating to the evidence of children in abuse cases;

-consider the implications arising from and the consequences of the Supreme Court decision of the 23^rdMay, 2006, in the ‘C.C.’ case;

-examine the desirability or otherwise of amending the Constitution to deal with the outcome of the ‘C.C.’ case and/or provide for a general right of protection for children;

-make such other recommendations on the protection of children as shall to the Committee seem appropriate;

and to report back to each House with recommendations in a final report by 30^th November, 2006;

2.Committee Membership

3.The Work of the Committee

3.1.1. The work of the Committee has been focused from the outset on the issues that arose in CC and other issues concerning the provision made in the criminal law relating to sexual offences against children, as well as issues that arise in the context of the participation of child victims of sexual offences in the criminal justice system. Undoubtedly, this focus has been confined to only a part of the spectrum of issues of concern from a child protection perspective. However, given the importance and urgency of the issues entrusted to the consideration of the Committee, and the limited time available to the Committee to complete its work, such a focus was essential.

3.1.2. The Committee decided at the outset of its work to invite submissions from interested bodies and to advertise publicly for submissions. These invitations and advertisements resulted in the Committee receiving more than 50 detailed written submissions as well as a substantial volume of correspondence. The submissions and correspondence received by the Committee were of enormous assistance in its work. The range of views expressed in the submissions, on all of the issues examined by the Committee, have informed its recommendations. The Committee wishes to record its appreciation of the contribution made to its work by all of those who made submissions to or corresponded with the Committee.

3.1.3. The Committee was also pleased to receive a limited number of oral submissions from relevant experts in the areas of criminal law and child protection law, childrens’ rights, the operation of the criminal justice system, child and adolescent psychiatry, and forensic psychiatry. The occasion of these oral submissions also enabled the Committee to question the relevant experts on the issues arising in the course of the Committee’s work related to their respective areas of expertise. Again, the Committee wishes to record its appreciation of the contribution made by these experts to the work of the Committee.

3.1.4. There are five substantial parts to the report of the Committee. The first part examines the substantive criminal law relating to sexual offences against children, under three headings: the scope of the prohibition on sexual acts with children, the mental standard of guilt and the available defences, and sentencing. The second part of the Committee’s report examines the age of consent, with particular consideration given to fixing an appropriate age of consent, and to making provision for young people. The third part of the Committee’s report deals with criminal justice procedures. The report initially examines the special position of children and their needs within the criminal justice system, and goes on to examine the way in which those needs are met during the criminal investigation and during the criminal trial process. The fourth part of the report examines the implications of the decision of the Supreme Court in CC and the question of constitutional amendment. Finally, the report of the Committee examines issues related to sex offender registration, supervision and treatment, and to education and public awareness.

Part II
Substantive Criminal Law

4.Scope of the Prohibition on Sexual Acts with Children

4.1. Summary of Pre-existing Offences

4.1.1. It may be of assistance, at the outset of the Committee’s analysis of the scope of the prohibition on sexual acts with children, to examine the state of the law relating to sexual offences in general prior to the recent decisions of the Supreme Court. A brief summary of the principal relevant offences is set out below.

4.1.2. Rape is an offence contrary to common law and defined by statute, in particular the Criminal Law (Rape) Act, 1981. Section 2 of the Criminal Law (Rape) Act, 1981 states that a man commits rape if (a) he has sexual intercourse with a woman who at the time of intercourse does not consent to it, and if (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it. Sexual intercourse is the penetration (however slight) of the vagina by the penis. Section 2(2) of the 1981 Act provides that if, at the trial for a rape offence, the Jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the Jury is to have regard, in conjunction with any other relevant matters in considering whether he so believed. The failure or omission by the victim to offer resistance to the act does not of itself constitute consent to the act.

4.1.3. Rape under Section 4 of the Criminal Law (Rape) (Amendment) Act, 1990 is defined as a sexual assault that includes (a) penetration (however slight) of the anus or mouth by the penis or (b) penetration (however slight) of the vagina by an object held or manipulated by another person.

4.1.4. Aggravated Sexual Assault, contrary to section 3 of the Criminal Law (Rape) (Amendment) Act, 1990 means a sexual assault that involves serious violence or the threat of serious violence, or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted.

4.1.5. Sexual Assault, encompasses the previous common law offences of indecent assault upon a male person and indecent assault upon a female person, as provided for by Section 2(1) of the Criminal Law (Rape) (Amendment) Act of 1990. Although the elements of the offence are not defined by statute, it consists of an assault accompanied by circumstances that are objectively indecent. Consent is not a defence to a charge of sexual assault if the victim is under the age of 15.

4.1.6. Buggery, since the enactment of section 3 of the Criminal Law (Sexual Offences) Act, 1993, involves the commission or attempted commission ofan act of buggery (i.e. anal intercourse) with a person under the age of 17 years (other than a person to whom the accused is married or to whom he believes with reasonable cause he is married), a mentally impaired person, or an animal.

4.1.7. Gross Indecency, contrary to section 4 of the Criminal Law (Sexual Offences) Act, 1993 prohibits acts falling short of buggery between a male person and another male person under the age of 17 years. (Provision is also made in respect of such acts committed with a mentally impaired male.)

4.1.8. Incest is committed where (a) a male person has sexual intercourse with a woman who is, and whom he knows to be, his mother, sister, daughter or granddaughter, or (b) a female person over the age of 17, with her consent, permits her father, grandfather, brother or son to have sexual intercourse with her.

4.1.9. Causing or Encouraging a Sexual Offence upon a Child, contrary to section 249 of the Children Act, 2001, is an offence committed by persons having care or control of children who cause or encourage unlawful sexual intercourse or buggery with the child under the age of 17, or who cause or encourage the seduction or prostitution of the child, or a sexual assault upon the child.

4.1.10. Unlawful Carnal Knowledge or Statutory Rape encompassed two different offences defined by reference to the age of the victim. Section 1(1) of the Criminal Law Amendment Act, 1935 provided that the offence was committed by any person who unlawfully and carnally knows any girl under the age of 15 years. Section 2(1) of the same Act provided that the offence was committed by any person who unlawfully and carnally knows any girl of or over the age of 15 years and under the age of 17 years, although in this case the sentence was lower.

4.2. Significance of the Decision in CC

4.2.1. The underlying principle of primary importance re-established by the recent decisions of the Supreme Court in CC and PG is that a guilty mind is a necessary element of any criminal offence. This is particularly so in cases where the offence concerned is considered a true criminal offence, i.e. one where the behaviour concerned may be considered morally wrong to a high degree and where conviction leads to significant social stigma. This principle has a constitutional status so that, where the Oireachtas had intended that there be no requirement to prove a guilty mind in the case of such an offence, such a law would be constitutionally vulnerable.

4.2.2. This also means that, even where the law provides that a person below a certain age is not capable of consenting to certain activities, it is for the prosecution to prove the mental element, i.e. knowledge of age. If an accused raises a defence of mistake as to age, it is for the prosecution to prove that he knew better. This, of course, does not remove the concept of an age of consent; instead it re-affirms that if age is one of the externalelements of a crime, the corresponding internal or mental element must also be present.

4.2.3. Section 1(1) of the Criminal Law (Amendment) Act, 1935, which prohibited unlawful carnal knowledge of a girl under the age of fifteen, was declared to be inconsistent with the Constitution because it purported to permit conviction for a serious criminal offence without proof of mental or moral guilt. Although section 2(1) of that Act was not expressly considered by the Court, the conclusion that it too is inconsistent with the Constitution necessarily follows from the reasoning of the Supreme Court.

4.2.4. The common law offence of sexual assault remains a part of the law and, on a charge for such an offence in respect of a person under the age of fifteen, it is not necessary for the prosecution to prove that the young person did not consent. In such a case, however, where the accused says that he did not know that the victim was under fifteen, it is for the prosecution to prove that he did.

4.3. The Effect of the Criminal Law (Sexual Offences) Act, 2006

4.3.1. The Criminal Law (Sexual Offences) Act, 2006 was enacted by the Oireachtas on the 2^nd June 2006, ten days after the decision of the Supreme Court declaring section 1(1) of the 1935 Act inconsistent with the Constitution. As such, the Act must be seen as a timely response to a pressing and urgent need for legislation. During the course of the Dáil and Seanad debates on the Bill, certain aspects of the Bill which required further consideration or possible amendment were identified. The Committee was established, in part, for the purpose of examining these issues.

4.3.2. Introducing the Bill at the Second Stage in the Dáil, the Minister for Justice, Equality and Law Reform, Deputy Michael McDowell, said that it was

“designed to restore in updated form the offence of unlawful carnal knowledge against a girl of 15 years or under, which was struck down by the Supreme Court. The new offences contained in the Bill protecting children against sexual abuse contain a defence of honest belief that the child had obtained 15 or 17 years as appropriate in accordance with the Supreme Court judgment.”¹

4.3.3. The Act repeals sections 1(2) and 2 of the Criminal Law Amendment Act, 1935, as well as sections 3 and 4 of the Criminal Law (Sexual Offences) Act, 1993. It prohibits any “sexual act” (i.e. sexual intercourse, buggery between persons who are not married to each other, an act described in section 4 of the Criminal Law (Rape) (Amendment) Act, 1990, or an aggravated sexual assault) and any attempt to engage in a “sexual act” with a child under the age of 17 years. If the child is under 15 years the offence ispunishable by life imprisonment. If the child is 15 or 16 years of age, the offence is punishable by 5 years imprisonment or two years in the case of an attempt, but in either case the penalty increases (to 10 years and 4 years respectively) if the offender is a person in authority. Similarly, the penalties are increased for a second or subsequent conviction. In no case will consent be a defence.

4.3.4. However, it will be a defence for the accused to prove that he or she honestly believed that the child had attained the relevant age and, in considering whether the accused had that honest belief, the court shall have regard to the presence or absence of reasonable grounds for so believing and all other relevant circumstances. In this way, the 2006 Act directly addresses the issue of concern to the Supreme Court in the CC case.

4.3.5. The Act effects a significant modernisation of the law, in that sections 1 and 2 of the Criminal Law Amendment Act, 1935 prohibited only sexual intercourse with a girl. The 2006 Act extends the prohibition to other forms of sexual activity, whether with a male or a female child. In general, the 2006 Act is gender-neutral in its terms. The principal exception is that section 5 provides that a female child under the age of 17 years shall not be guilty of an offence under the Act by reason only of her engaging in an act of sexual intercourse.

4.4. Analysis of the 2006 Act

4.4.1. The Committee in its deliberations, which have been guided by the extensive and numerous submissions received from members of the public and experts, has focused its analysis on three distinct areas. First, the Committee has considered the substantive sexual offences designed for the protection of children and, in this regard, has examined both the pre-existing law and the law as it now stands following the enactment of the 2006 Act. In this area of its analysis, the Committee has considered recommendations made over the years concerning the substantive criminal law in this area, innovations in other jurisdictions, and the particular issues arising in the context of the present legislative arrangements. The remainder of this chapter is devoted to this analysis.

4.4.2. Secondly, the Committee has considered in some detail the issues concerning the requirement for proof of a guilty mind and the defences that may be made available to a person charged with the sexual offence against a child. These issues, of course, are at the very centre of the decision of the Supreme Court in CC. Again, the Committee has looked at earlier recommendations in this area, and arrangements made in other jurisdictions. In its consideration of these issues, the Committee has been particularly concerned with an assessment of the existing constitutional limits to legislative action as well as international human rights norms. These issues are considered in the next chapter.

4.4.3. Thirdly, the Committee has considered the issues relating to the question of sentence for sexual offences against children. Again, in its deliberations the Committee has been guided by earlier examinations of the subject, by developments both here and in other jurisdictions in the law relating tosentencing generally, and by the extensive submissions the Committee has received on this subject. These issues are considered in chapter 6.

4.5. The Context of Sexual Offences

4.5.1. As can be seen from the brief summary of the existing sexual offences provided for in Irish law above, there is a range of such offences, involving acts and circumstances of different degrees of gravity. Some of these offences remained entirely Common Law offences, some are Common Law offences that have been defined or redefined by statute, and others are statutory offences that have been enacted at different times because of gaps or defects that have been perceived to exist in the law. Because of the progressive way in which the law has been developed in this area, and because of the variety of sources for that law, the area may generally be seen as lacking somewhat in coherence and consistency. Professor Finbarr McAuley, Jean Monnet Professor of European Criminal Justice at UCD, told the Committee of his experience of the law in this area as chairman of the Criminal Law Codification Advisory Committee in 2004 in the following terms.

“I remember investigating the state of the law on sexual offences and, without too much investigation, my fellow committee members and I discovered that there were no fewer than 12 substantial Acts affecting the issue in this jurisdiction --13 following the 2006 Act. Having examined the matter in the context of codification, I have no doubt that one of the measures needed is the consolidation of the legislation in question into a single Act, if only because in a democracy the issue of access to the law is fundamental, as the Committee will appreciate.”

The Committee accepts the force of this argument, which also featured in a number of written submissions made to the Committee, including those of the Dublin Rape Crisis Centre and Youth Work (National Youth Federation. The Committee considers that the law relating to sexual offences would benefit from a general review, with a view ultimately to codification of the law. Such a review should include an examination of certain issues that have arisen during the course of the Committee’s work, but which have a wider significance. For example, a number of submissions to the Committee have argued that the notion of “consent” should be defined by statute. Furthermore, Senator Geraldine Feeney has argued that the issues arising in relation to the protection of children from sexual abuse need to be considered also for the protection of vulnerable adults, including those who are mentally impaired. These are important issues that the Committee considers merit further analysis.

The Committee recommends that the law relating to sexual offences, against both adults and children, be reviewed, perhaps by the Law Reform Commission, and ultimately codified in a single statute.

4.6. The Scope of the Present Sexual Offences against Children

4.6.1. In general terms, the offences provided for in the 2006 Act prohibit what might be described as “penetrative sexual activity” with children. Such activity is, obviously, the most serious form of child sexual abuse and that of greatest concern to society and the Committee. Although an act that amounts to an aggravated sexual assault need not necessarily involve an act of penetration, such an act is rightly considered, by its nature, as amongst the most serious of offences against children. The Committee thinks it proper that such serious sexual acts should constitute an offence distinct from lesser forms of sexual assault, and should attract a higher penalty.

The Committee recommends that the distinction observed in the present law between penetrative sexual activity and aggravated sexual assault on the one hand and lesser forms of sexual assault on the other hand should be preserved.

4.6.2. That said, the question arises whether there are grounds for drawing a further distinction between different types of penetrative sexual activity. Until the enactment of the Criminal Law (Rape) (Amendment) Act, 1990, the only form of penetrative sexual activity prohibited by law, whether in the case of an adult or child, was penetration of the vagina by the penis. Section 4 of the 1990 Act extended the prohibition to the penetration of the other major bodily orifices, and also extended the prohibition to penetration by inanimate objects (subject to some qualification, as to which see further below).

4.6.3. The change in the law effected by the 1990 Act was certainly necessary, in particular so as to expressly prohibit “male rape” or “homosexual rape”. That need was met in the United Kingdom a short time later, but in a different way. The Criminal Justice and Public Order Act 1994 re-defined the offence of rape by extending the definition of sexual intercourse, so that it included both vaginal and anal intercourse. In that jurisdiction the Sexual Offences Act 2003 again re-defined the offence of rape, so that it includes the penetration of the vagina, anus or mouth of another person with the penis. On each occasion the extension of the definition effectively prohibited the penetration of another orifice. On each occasion, however, the means by which penetration was achieved was confined to penetration by the penis. This is not to say that penetration by other means is not an offence, only that it is a different offence².

4.6.4. There are reasons why the distinction between penile penetration and other forms of penetration ought to be observed by the criminal law. Obviously, in the case of penile penetration of the vagina there is a risk of pregnancy. Apart from that, however, in every case of penile penetration there is the risk of transfer of bodily fluid, with the attendant risk of disease, and a degree of forced intimacy with the body of the attacker that may not be present in the case of penetration by an object. These are differences of quality and significance and it is the view of the Committee that consideration should begiven to recognising these differences in the terms of the offences prescribed by law. The Committee appreciates that this issue has implications beyond the field of offences against children and it may be that further and fuller consideration of the issue may lead to a different conclusion.

The Committee recommends that consideration be given to distinguishing between the offence of rape with the penis and rape by an object.

4.6.5. The Committee notes that one possible gap³ that may be considered to exist in the law as it currently stands relates to the definition of rape under section 4 of the Criminal Law (Rape) (Amendment) Act, 1990. While it is an offence of rape under that section to penetrate the vagina by an object, such penetration of the anus is not an offence. Only penile penetration of the anus is an offence. This issue was considered in the Department of Justice, Equality and Law Reform Discussion Paper on the Law on Sexual Offences of May, 1998, which stated:

“In its 1988 Report on Rape, the Law Reform Commission recommended that the crime of rape should be defined by statute so as to include non-consensual sexual penetration of the major orifices of the body, i.e. the vagina, anus and mouth by the penis of another person or of a person’s vagina or anus by an inanimate object held or manipulated by any other person and in this form the crime should be capable of being committed against men and women.

While the 1990 Act followed to a large extent that recommendation by the creation of an offence of “rape under section 4” it did not include in the definition of the offence penetration of the anus by an object. In favour of amending the definition of rape under section 4 is the argument is that it is somewhat artificial to attempt to distinguish penetration of any of the body orifices because the attack on the dignity and bodily integrity of the victim, and his or her utter and complete humiliation, is the same in all cases of penetration. The reasons given at the time of the debates on the 1990 Act for not including the penetration of the anus by an object in the definition of the offences were --

4.6.6. Given the views expressed above concerning the desirability of giving special recognition in the law to the gravity of penetrative sexual offences, the Committee is inclined to favour the views originally expressed by the Law Reform Commission. In the view of the Committee, the inclusion in the offence of rape under section 4 of acts involving penetration of the anus by an object would make the offence more complete and more coherent. While such acts certainly amount also to a sexual assault or an aggravated sexual assault, this in itself is no reason to exclude such acts from the category of penetrative sexual assaults. The possibility of horseplay between boys accidentally resulting in such an act being committed is not, to the Committee’s mind, a reason to exclude what in other circumstances would be a very serious penetrative sexual assault from the definition of that type of offence.

The Committee recommends that the definition of the offence of rape under section 4 of the Criminal Law (Rape) (Amendment) Act, 1990 be extended to include penetration of the anus by an object.

4.6.7. In the Dáil debate on the 2006 Bill, Deputy Brendan Howlin drew attention⁵ to the fact that a sexual act, falling short of penetrative sex, committed by an adult male with the consenting 15-year-old boy amounted to an offence of gross indecency contrary to section 4 of the Criminal Law (Sexual Offences) Act, 1993, but that the section is repealed by the 2006 Bill, without replacement. This defect in the law was also brought to the Committee’s attention in written submissions, including those of Young Fine Gael, One in Four, and the Director of Public Prosecutions, who described it as a “significant lacuna”.

4.6.8. The identification of this lacuna leads naturally to a consideration of the next most serious level, after penetrative activity, of sexual offending against children. The submissions received by the Committee recommend, in significant number, the enactment of an offence of child sexual abuse and a child endangerment offence. Other submissions, without being quite so specific, have suggested that the protection of children be extended to acts of exploitation and corruption. It has been submitted that the sexual acts prohibited should be defined by law.

4.6.9. Essentially, as the law currently stands, the appropriate offence to be charged in the case of non-penetrative sexual activity with children is sexual assault. This gives rise to two distinct difficulties. The first is that, as the law currently stands, consent is a defence to a charge of sexual assault of a person aged 15 or over. The Committee is concerned that this may notprovide the necessary level of protection to young people. (Issues related to consent are considered in more detail in Part III of the Committee’s report.) The second difficulty is that the necessity to prove the standard elements of the offence of assault, in particular the threat or application of force to another, may mean that certain forms of conduct or sexual activity with or in the presence of children that should be criminalised are not.

4.6.10. These difficulties were considered by the Law Reform Commission in its report on child sexual abuse.⁶ The solution recommended by the Law Reform Commission was that an offence of “ child sexual abuse” or “ sexual exploitation” should be enacted. Such an offence should, according to the Law Reform Commission be based on the Western Australian definition of child sexual abuse. That definition is as follows

4.6.11. The Committee recognises that there is some overlap between an offence of child sexual abuse, based on the Western Australian definition, and the proposed offence of sexual grooming contained in Head 8 of the Heads of Bill for a Criminal Law (Trafficking in Persons and Sexual Offences) Bill, 2006. Each of the proposed offences, however, lacks something which the other would bring. For example, an offence is committed under the Western Australian definition where a sexual act is intentionally performed in the presence of a child for the purpose of sexual arousal. The 2006 Heads of Bill, however, provide that an offence would be committed where the act is done, not only in the presence of a child, but in a place from which the person can be observed by a child. Further provision is made in the same Head of Bill, prohibiting even the preparatory step of arranging to meet a child for the purpose of a sexual offence.

4.6.12. In order to develop a coherent scheme of offences of child sexual abuse, the Committee is inclined to the view that the next most serious offence, after the offence of defilement (i.e. principally penetrative sexual abuse), should be a general offence of child sexual abuse, along the lines recommended by the Law Reform Commission, supplemented by the somewhat broader definition of the offence contained in the 2006 Heads of Bill. The defining element of this offence of child sexual abuse would be that some sexual act, behaviour or contact occurs, which falls short of penetration.

The Committee recommends the enactment, as a legislative priority, of an offence of child sexual abuse, as recommended by the Law Reform Commission, and including in addition other forms of sexual act, contact or behaviour falling short of penetrative sexual activity.

4.6.13. The Committee recognises that the scheme which it has recommended for offences of sexual abuse against children, i.e. an offence of child rape by penile penetration, an offence of child rape by other penetrative or very degrading or humiliating sexual activity, and an offence of child sexual abuse for other forms of sexual act, contact or behaviour, would still fail to criminalise lower forms of grooming or preparatory acts, designed to facilitate child sexual abuse, of whatever form, at some time in the future. Such acts should also be criminalised and an offence of grooming a child for sexual abuse, in that sense, would form the fourth and lowest tier of child sexual abuse offences.

The Committee recommends the enactment of an offence of grooming a child for sexual abuse, prohibiting acts preparatory to, or for the purpose of facilitating, the sexual abuse of a child at some time in the future, or placing a child in danger of being so abused.

4.6.14. The recommendations the Committee has made in respect of offences prohibiting the various forms of child sexual abuse are designed to deal with the situation where an individual is involved personally, whether as principal or accessory, in the abuse of one or more individual children. The Committee recognises, however, the need to enact additional offences related to the trafficking, sale or organisation of children for the purpose of sexual abuse in any part of the world, as envisaged in the Heads of Bill for a Criminal Law (Trafficking in Persons and Sexual Offences) Bill, 2006.

The Committee recommends the enactment of legislation providing for additional offences related to the trafficking, sale or organisation of children for the purpose of sexual abuse in any part of the world.

4.7. The Language of the Law

4.7.1. The terminology employed in legislation or in discussion of the law has featured in a number of submissions to the Committee. According to the Irish Association for the Study of Delinquency, the phrase “statutory rape” is

“outmoded, irrelevant and unhelpful…. Where there is no consent to a sexual act, irrespective of the ages of the parties it is rape.”

4.7.2. A similar view was expressed, although in support of a slightly different submission, by One in Four, who said

“Put simply rape is rape; the same charge should be applied regardless of the gender of the victim. We are acutely aware that many male victims of sexual abuse feel that the application of charges of gross indecency or buggery rather than oral or anal rape somehow imply consent on their behalf and are seen as a lesser crime.”

4.7.3. It was also submitted to the Committee that “defilement” is an inappropriate term, which adversely reflects on the victim. According to the Dublin Rape Crisis Centre, the term “ defilement”

[i]s an archaic term, with psychological, emotional and moral implications, [and should] be replaced with the term ‘sexual abuse’ or ‘sexual assault’”.

4.7.4. While the Committee are sympathetic to the view that the statutory label for a particular offence should not in any way reflect adversely on the victim of that offence, equally the Committee is of the view that it is important for the nature and gravity of the offence to be clear from the label applied to it. For that reason, the Committee would distinguish between the offence of child sexual abuse, as suggested in its recommendation above, and the more serious forms of penetrative sexual abuse. The Committee is open to the idea that there may be a way of describing the latter which is preferable to “defilement”, but it has not received any submissions identifying such a phrase or label. The Committee does not agree that the label “rape” simpliciter should be applied in all cases of penetrative sexual abuse. The Committee considers it desirable to distinguish the gravity of an offence of rape against a child. It may be that “child rape” would be a suitable label.

The Committee recommends that consideration be given to renaming the offence of “defilement” as “child rape” so as to recognise the sensitivities of victims of that offence, but not in any way that would disguise the gravity of an offence of penetrative sexual abuse of a child.

4.8. Summary of Recommendations relating to Offences

4.8.1. It may be of assistance, at the conclusion of this chapter, to summarise briefly the recommendations that the Committee has made in relation to a proposed scheme of offences covering various forms of child sexual abuse. The Committee has proposed, essentially, that the law provide for four different types of offence, as follows:

5.The Mental Standard of Guilt and the Available Defences

5.1. The Basis of Criminal Responsibility

5.1.1. Criminal liability, i.e. the liability of the citizen (or any person) to punishment at the hands of the State for a wrong considered criminal, depends upon the presence of two essential elements, one external and one internal. The external element is the proscribed conduct and is known as the actus reus; the internal element is the state of mind of the accused and is known as the mens rea. The concept of the actus reus is not limited, as the name may appear to suggest, to the doing of prohibited acts. It may also apply to prohibited omissions, e.g. the failure of an employer to provide and maintain a safe place of work. Equally, it must be borne in mind that an act or omission in itself may not be sufficient to establish the actus reus. Criminal liability may depend on the circumstances in which that act or omission occurs. It is for the law (either the common law, where that continues to apply, or the Oireachtas, by way of legislation) to specify with clarity what acts or omissions are prohibited, and in what circumstances. Criminal liability depends on proof of all the factual elements of the offence, i.e. both the prohibited act or omission, and the specified attendant circumstances. But that alone is not sufficient.

5.1.2. It has long been established that “an act does not make a man guilty of a crime, unless his mind be also guilty”. The mens rea is the guilty mind. This principle, long-established, is of obvious merit, given the severity with which the State can punish criminal wrongs. The same act may be done by two different individuals, only their intention differs, but that difference is sufficient to distinguish criminal from non-criminal behaviour.

5.1.3. The law recognises different degrees of guilt in the mind and sets the standard for criminal liability at different levels in different cases. The highest standard of mental guilt is intention, i.e. that the accused acted (or omitted to act) for the purpose of causing the harm prohibited by law or acted to achieve a different purpose knowing that the prohibited harm was a virtually certain consequence. The crime of murder is not committed every time a person is killed, but only if the killer intended to kill or cause serious injury to the victim. Such intent involves mental guilt of a high degree. In law, a person is presumed to intend the natural and probable consequences of his/her acts.

5.1.4. Closely related to the concept of intention is knowledge. Indeed, intention may be thought of as knowledge of the consequences of one’s act or omission. Knowledge plays an important role in criminal liability because such liability may depend, not merely on the commission of some act or on an omission, but also on the circumstances in which that occurs. For example, it is no offence to allow another person to use one’s property, but it becomes an offence if one knows that the property is being used for the manufacture of a controlled drug. Knowledge that those circumstances are present again involves a high degree of mental guilt.

5.1.5. Recklessness is a lower standard of mental guilt and may be applied both to the attendant circumstances of an act or omission and to its consequences. Recklessness involves conscious disregard of a substantial and unjustifiable risk of the material element of the offence existing or resulting, and it involves culpability of a high degree (although not as high as in the case of intention). In other words, although the accused may not have intended the particular harm prohibited by law, he or she has considered the possibility of such harm occurring, but has chosen to act regardless, and run the risk that it will occur. Or alternatively, although the accused does not know that a circumstance exists that would render an act unlawful, he or she has considered the possibility that it does and chosen to act regardless. In Irish law, the question of recklessness focuses on the mind of the individual accused, not on what might be thought objectively to be obvious risks.

5.1.6. The focus on the mind of the individual accused is unnecessary if the standard of mental guilt is set lower, at the level of criminal negligence. Criminal negligence may be said to occur if no normal person would ever be unaware of the danger created. At present, in Irish law, this standard applies only to the offence of manslaughter. As such, it applies only to negligence in respect of consequence (i.e. the death of a person) and not in respect of circumstances.

5.1.7. The ordinary standard of negligence also has some application to criminal law, but only generally in respect of minor offences, e.g. careless or dangerous driving (but including dangerous driving causing death). The ordinary standard of negligence is a failure to take reasonable care in the conduct of one’s affairs to avoid causing foreseeable harm to others. The standard of reasonableness is objective.

5.1.8. Absolute liability is imposed where the law provides that, upon proof of the external or factual elements of the offence, guilt itself is proved, without regard to any mental element. Strict liability similarly does not require proof of any mental element, although the possibility is left open that a defence can be raised by the accused. Offences involving either of these standards effectively forgo any requirement for mental guilt or mens rea. Such an approach has been considered appropriate to deal with regulatory offences (i.e. offences where the conduct is not of a truly criminal character, but has nonetheless been prohibited, usually because this has been considered necessary for the proper regulation of a particular activity or business) or offences contrary to the public welfare. This latter phrase may cause some confusion. Every crime is by definition contrary to the public welfare – that is why the State prosecutes wrongdoers even where the individual victim might also sue them. A public welfare crime is one where, quite apart from the general sense of public welfare, direct harm is done to a significant part of the population.

5.1.9. The main arguments in favour of strict or absolute liability are, first, that the protection of certain social interests requires a high standard of care and attention, which is likely to be promoted by the understanding that a mistake will not be a defence. Secondly, it is argued, that proof of mental guilt insuch cases may be impossibly burdensome on the prosecution, but that this is balanced by relatively low penalties and the absence of the high degree of shame and opprobrium that apply in the case of conviction for true crimes. On the other hand it is argued that such an approach is a departure from the fundamental principles of criminal liability, that the assumption of greater effectiveness has no empirical foundation, that conviction without mental guilt can bring the law into disrepute, that real stigma may nonetheless apply, and that the administrative argument has little weight.

5.1.10. It is, of course, open to an accused person to contest the presence of the necessary external and internal (or mental) elements of a crime with which he is charged. In any event, there is usually an obligation on the prosecution to prove each of these elements beyond reasonable doubt. If it fails to do so, the accused will be acquitted. But even where it appears that the prosecution is in a position to prove all the necessary elements, one or more of the positive defences known to the law may be available to an accused. For example, where the offence involves the use of force on another person, it may be argued that the force was lawful, e.g. to protect the life or health of others. In a murder case, the accused may argue that he was so provoked by the deceased as to have lost his self-control. (This is only a partial defence – the accused will still be guilty of manslaughter.) The accused may admit that he committed the crime but say that he did so under threat of death from another, i.e. duress. Insanity may be pleaded as a defence (now governed by the Criminal Law (Insanity) Act 2006) or automatism, but these may properly be seen as defences based on the absence of the required mental standard. Intoxication is not a defence as such, but it may deprive the accused of the capacity to form the necessary mental element. Mistake may be a defence, but it is perhaps better seen as the absence of the necessary mental element. It should be noted, however, that a mistake may be genuine or honest, without there being reasonable grounds for it.

5.2. Proof of Guilt of Unlawful Carnal Knowledge

5.2.1. The offence of unlawful carnal knowledge, as enacted in sections 1 and 2 of the Criminal Law Amendment Act, 1935, consisted of two external elements. The first was the act of sexual intercourse itself. The second was circumstantial, i.e. that the act of sexual intercourse had occurred with a girl below the relevant age. It had long been thought that, provided the prosecution could prove these two external elements, the offence itself would be proved, without any particular mental element having to be proved. This was the issue considered by the Supreme Court in its first decision in the CC case, delivered on the 12th July 2005. The Court concluded that the traditional understanding of what was required to be proved by the prosecution on a charge of unlawful carnal knowledge was correct, as a matter of interpretation of the legislation.

5.2.2. The accused had argued that the offence should be interpreted so as to allow for a defence of mistake as to age. Such a defence, it was argued, was always available to an accused, even where the statute did not expressly provide for it, because proof of mental guilt was a necessary element of anyserious criminal offence. A majority of the Court concluded, however, as a matter of interpretation of the 1935 Act and its legislative antecedents (in particular, the Criminal Law Amendment Act, 1885), that the Oireachtas had clearly intended to exclude such a defence. It was this offence, then, so interpreted, that the Supreme Court subsequently declared to be inconsistent with the Constitution.

5.3. The Decision in CC on the Constitutional Issue

5.3.1. Having heard further argument in the CC case on the issue of the consistency of section 1(1) of the 1935 Act with the Constitution, the Supreme Court delivered its judgment on the 23rd May, 2006. There was a single judgment on behalf of the entire Court delivered by Hardiman J.

5.3.2. The Court noted that an offence such as this, to which there was no defence once the factual elements (actus reus) were established, was rare, even in the case of offences that society viewed as being very serious. Although it was argued that cases where there was no guilty mind (e.g. because of a genuine mistake as to age) could be accomodated when sentencing the accused, the Court did not accept this approach. A conviction for the offence, whatever sentence was imposed, would carry a social stigma, compounded by the requirement to register as a sex offender, which would bring intense shame on the individual and his family and would lead to his exclusion from certain professions.

5.3.3. The purpose served by such a strictly defined offence the Court presumed to be “the protection of young girls from engaging in consensual sexual intercourse”. This is, of course, a “legitimate end to be pursued by appropriate means”.

5.3.4. The Court noted that in other jurisdictions and in previous decisions of the Supreme Court (e.g. the reference of the Employment Equality Bill) some emphasis has been placed on “the central importance of a requirement for mental guilt before conviction of a serious criminal offence, and the central position of that value in a civilised system of justice”. Accordingly, the Court “cannot regard a provision which criminalises and exposes to a maximum sentence of life imprisonment a person without mental guilt as respecting the liberty or the dignity of the individual or as meeting the obligation imposed on the State by Article 40.3.1° of the Constitution”, which provides: “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.

5.3.5. The alternative view, that such a provision is necessary to provide a deterrent to engaging in sexual intercourse with minors, was considered. The Court concluded that this end could be achieved by legitimate means, including those involving the use of the criminal law, without the manifest injustice of permitting conviction of a serious criminal offence without any requirement of mental or moral guilt.

5.3.6. The Court therefore declared section 1(1) of the 1935 Act to be inconsistent with the Constitution. It declined the invitation from counsel for the State to confine its declaration to saying that the section was inconsistent with the Constitution only to the extent that it precluded an accused from advancing a defence of reasonable mistake. In the Court’s view, that would have involved it in a process akin to legislation. The Court concluded that “more than one form of statutory rape provision … would pass constitutional muster, and it does not appear to be appropriate for the Court, as opposed to the legislature, to choose between them”.

5.4. The Criminal Law (Sexual Offences) Act, 2006 and the Issue of Mental Guilt

5.4.1. Sections 2 and 3 of the Criminal Law (Sexual Offences) Act, 2006 prohibit engaging in, or attempting to engage in, a sexual act, as therein defined, with a person under the age of 15 years and 17 years respectively.

“It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she honestly believed that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 15 years.”

“Where, in proceedings for an offence under this section, it falls to the court to consider whether the defendant honestly believed that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 15 years, the court shall have regard to the presence or absence of reasonable grounds for the defendant’s so believing and all other relevant circumstances.”

5.4.4. A similar provision is made in section 3(5) and (6) in respect of offences committed with children under the age of 17 years. In form, therefore, the 2006 Act maintains the previous position that, in a prosecution for unlawful carnal knowledge or defilement, it is for the prosecution to prove that the prohibited sexual act (which, as stated above, is much more extensive a phrase than merely sexual intercourse) occurred and that the victim was under the relevant age. In principle, that is all that the prosecution is required to prove. The Act does, however, permit the accused to raise a defence of mistake as to age. Furthermore, it appears that it is for the accused, not only to raise the defence, but also to prove it.

5.4.5. In setting the standard of mental guilt of the accused, the Oireachtas has focused on the subjective belief of the accused as to the age of the victim. For the defence to succeed, the jury must be satisfied that the belief asserted was honestly held. Provided that the belief was honestly held, it need not bea reasonable one, although, in determining whether or not the belief was honestly held, the jury must have regard to the presence or absence of reasonable grounds for the belief and all other relevant circumstances.

5.5. The Protection of Children and the Issue of Mental Guilt

5.5.1. On the whole, the primary effect of the Supreme Court decision in CC, i.e. that there must be a defence of mistake as to age, is accepted in the submissions received, although not without qualification. The qualifications vary. Some submitted that the defence should not be available to persons in authority or in cases of a victim below a certain age – 13 or 14. There is significant support for the view that the question should be approached on an objective basis, such as the standard of reasonableness.

5.5.2. Whatever the qualification proposed to the principle that a defence of mistake should be available to a person accused of an offence involving sexual activity with a child, a common thread runs through them all. That is a clear and definite sense of dissatisfaction with the idea that the availability of such a defence will lead inevitably to the cross-examination of children as to how they behaved, dressed or otherwise comported themselves. That result is indeed unavoidable, if the defence is allowed, because the only possible basis for a mistake having been made as to the age of the child is the appearance and/or behaviour of the child. Furthermore, although the defence would be difficult to establish in the case of a person who knows or has responsibility for the child, the position will be quite different with strangers. As the Director of Public Prosecutions submitted,

“In the case of a stranger, or newly-met acquaintance, the defence is far more likely to be successful. A girl going out to a bar or disco, for example, will frequently dress so as to appear older than she is, particularly if she is hoping to buy or consume alcoholic drink, or be let into an establishment with a door policy on age.”

5.5.3. The Committee shares the dissatisfaction expressed in the submissions it has received with the effects of a defence of mistake as to age. Although the Committee has made recommendations elsewhere in this report designed to ease the hardship associated with the giving of evidence in criminal trials by children, it considers that no measure that might be introduced to that end could be a sufficient response to the unacceptable possibility of children being cross-examined as to their behaviour and appearance in the case of an alleged sexual offence.

5.5.4. It is the view of the Committee that the existence of such a defence – honest, reasonable or otherwise – amounts to a failure to meet the necessary standard of protection of children. In effect, that defence would allow an accused person to lay the blame for his or her actions at the door of the child victim. In those circumstances, the guilt of the accused is measured by the precocity of the child. Such an approach, in the opinion of the Committee, is erroneous.

5.5.5. Society is entitled to expect that individuals of whatever age should avoid engaging in any sexual activity that might involve a child. This expectation is matched by an individual moral obligation borne by all persons to ensure that their sexual partner is an adult. The discharge of that obligation requires a degree of caution in the conduct of sexual relations. It may sometimes mean that such relations must be forgone, if the individual concerned cannot be certain that his or her intended partner is an adult. The Committee considers that a person who proceeds to engage in sexual relations with a child, and therefore necessarily in the absence of certainty that their intended partner is an adult, voluntarily assumes the risk that their behaviour will harm a child. Such behaviour is not free of moral guilt, and it merits the sanction of the criminal law. The Committee considers that the law must make clear to everyone who assumes the risk of harming a child by their sexual activities, that that risk is matched by the hazard of an appropriate sentence, accompanied by appropriate measures designed to protect society from sex offenders. This, in the view of the Committee, is the necessary standard of protection for children.

5.5.6. The Irish Centre for Human Rights, NUIG, in its submission, having placed the existence of a defence of mistake as to age in the context of international human rights norms, said

“In CC v. Ireland, the Court stated that proof of guilt requires proof of mens rea guilty mind; therefore, the concept of mens rea requires the availability of a defence of an innocent mind, e.g. mistake of fact as to age.”

5.5.7. This view is not, however, shared by all commentators. Professor Finbar McAuley, Jean Monnet Professor of European Criminal Justice, UCD, disagreed with the necessity to prove mental guilt, even for serious offences. He said, in his oral submission to the Committee,

“The claim that, as a matter of descriptive fact, mental guilt is a necessary condition of criminal liability for real crime is not true.”

Furthermore, the view expressed by the Irish Centre for Human Rights, NUIG, appears to the Committee to ignore the degree of moral guilt necessarily involved in the accused’s failure to ensure that his/her sexual partner was an adult. Such a failure amounts to a failure in an essential moral obligation, and a person who has so failed is not possessed of an innocent mind.

5.5.8. This is the view that animated the Oireachtas in the enactment of the Criminal Law Amendment Act, 1935. The Committee considers that the passage of time since that enactment has, if anything, lent further force to this view. Many of the submissions to the Committee have referred to the changing cultural influences that have resulted in an ever earlier sexualisation of young people. This feature of modern society, far fromjustifying provision for a defence of mistake as to age, dictates precisely the opposite course. Because young people are induced and encouraged by media, advertising and other cultural influences to dress, act and behave in a way that is often inappropriate for their age, it is all the more necessary that adults take greater care in their choice of sexual partner. Equally, it is all the less acceptable, given those cultural changes, to enable an accused person to invoke the appearance or behaviour of the victim in their defence. Such things must nowadays be understood as offering little, if any, guidance as to the age of a young person.

5.5.9. The Committee considers it, not only desirable, but essential that the State, by its laws, make proper provision for the protection of young people. The Committee also recognises, of course, that, in all its laws, the State must protect the important constitutional rights of adults, including the right to a fair trial, the presumption of innocence, and the requirement that, before punishment can be imposed, guilt must be proven by the State. There is, to some extent, a tension between these rights. But the Committee considers it essential, in balancing these rights in the context of sexual offences against children, to bear in mind that the accused who has failed to ensure that his/her sexual partner is an adult has failed in an important moral obligation. It remains, of course, for the State to prove this, by proving that the proscribed sexual act(s) occurred and that the victim was below the appropriate age.

5.5.10. While it might be argued that this approach is capable of causing injustice in cases where a genuine mistake occurs, the Committee cannot agree. In the first place, it must be borne in mind that the failure to maintain a regime of adequate protection for children, and specifically one which prevents the cross-examination of child victims of sexual abuse as to their appearance and behaviour, will deter such victims from making complaints. That deterrent, and the consequent impunity of sexual offenders against children, would be a much greater injustice. Secondly, an approach which involves a balancing exercise between the important principle of the presumption of innocence and other important, pressing, and substantial objectives of a free and democratic society, has met with approval in various other jurisdictions and, in particular, in the European Court of Human Rights. The Committee considers that its approach to the issue involves a rational and proportionate response to the important and substantial objective of the protection of children from sexual abuse.

5.5.11. The principal attraction of a regime of absolute protection is that the vast majority of those who are accused plead guilty, thereby sparing the child the ordeal of a trial. Nor does the Committee consider such an outcome to represent any injustice or expression of the futility of defending the allegation. On the contrary, such pleas of guilty are conditional upon the accused’s accepting that the prohibited sexual act had taken place.

5.5.12. The Committee respects the decision of the Supreme Court and must make its recommendations as to how to proceed accordingly. Nonetheless, theCommittee is of the view that there remains a need for legislation enacting a standard of absolute protection for children.

5.5.13. In this regard, the Committee notes the submission of the Director of Public Prosecutions that a “reasonable case can be made for a strict liability offence on grounds of policy” and was further guided by the oral presentation of Dr Imelda Ryan. Asked by the Minister of State at the Department of Health and Children, Deputy Brian Lenihan, about the possibility of fixing an age below which questions of consent or honest mistake should not arise, Dr Ryan said

“We spoke earlier about the different developmental stages throughout childhood. There are different developmental stages throughout adolescence. Using a crude divide, I would suggest there is early adolescence, mid-adolescence and late adolescence. If I were to say where things should be totally forbidden, I would say early adolescence. Mid-adolescence is a greyer area and we come right back to the whole issue of developmental and cognitive abilities.”

5.5.14. Asked by the Committee Chairman, Deputy Peter Power, when early adolescence ends, Dr Ryan said that it ended at the age of 13 or 14. Asked later by Deputy Power about the consequences, not just of precocious sexual activity, but of cross-examination relating to such activity, Dr Ryan confirmed that it had the potential to cause trauma to children, including long-term trauma.

5.5.15. In light of this evidence, the Committee was unanimous in the view that there should be absolute protection for children up to an appropriate age. The Committee has recommended elsewhere in this report that the age of consent should be set at 16, except in the case of sexual activity with a person in authority. As the submissions to the Committee clearly call for absolute protection for children up to an age very close to the age of consent, and so as to avoid any danger of confusion as to what the age of consent is, the Committee considers it desirable to maintain the standard of absolute protection for children up to the age of consent.

The Committee recommends that the defence of mistake as to age should not be available to a person accused of an offence involving sexual activity with a child under the age of 16 years.

5.5.16. The Committee acknowledges that the recommendation just stated requires express constitutional authority in light of the decision of the Supreme Court in CC. This issue is dealt with in Part V of the Committee’s report.

5.5.17. The Committee wishes to record that the foregoing recommendation did not receive unanimous support amongst the members of the Committee. Although all members of the Committee supported the principle of absolute protection for children, there was a minority view, held by the Labour Party, that the defence of mistake of age should be available to teen-aged accusedpersons in respect of offences committed with 14- and 15- year old child victims, provided that the mistake was honest and reasonable, so as to avoid the risk of miscarriage of justice in cases where a genuine mistake had been made.

5.6. Persons in Authority

5.6.1. Adults who are in a relationship of authority with a child, whether it is a family, social, sporting, occupational or religious relationship, and who sexually abuse or exploit that child merit particular opprobrium. An offence in those circumstances is a serious offence, not only because of the nature of the act of abuse itself, but also because of the abuse of the trust that has been placed in the offender. For this reason, persons in positions of authority who offend against children merit more severe sentences than do other offenders. This is reflected in the provisions of the Criminal Law (Sexual Offences) Act, 2006, and is consistent with previous sentencing practice in this jurisdiction.

5.6.2. That, however, is not the end of the matter. The fact that a person occupies a position of authority may have additional significance. Sexual activity with a minor who is of or above the age of consent (assuming that the age of majority and the age of consent remain different), and over whom the offender stands in a position of authority, is an unacceptable breach of trust. This issue is dealt with in Part III of the Committee’s report.

5.6.3. In light of the recommendations made by the Committee in relation to offences committed by persons in authority, it may be desirable, in the interests of clarity in the law, to provide separately for sexual offences against children committed by persons in authority.

The Committee recommends that consideration be given to providing separately in the law for sexual offences against children under the age of 18 years committed by persons in authority.

6.Sentencing

6.1. The Position under the Criminal Law Amendment Act, 1935 and the Criminal Law (Sexual Offences) Act, 2006

6.1.1. The Criminal Law Amendment Act, 1935 distinguished between the offence of defilement of a girl under the age of 15 years and the offence of defilement of a girl who is of or over the age of 15 years but under the age of 17 years. But that was not the only distinction drawn. In the case of the former offence (section 1) the maximum penalty was penal servitude for life. In the case of an attempt to commit the offence, the maximum penalty, in the case of a first offence, was penal servitude for five years, and in the case of a second or any subsequent conviction, penal servitude for 10 years. In the case of the latter offence, the maximum penalty on a first conviction was penal servitude for five years, and in the case of a second or any subsequent conviction, penal servitude for 10 years. In the case of an attempt to commit that offence, the maximum penalty on first conviction was imprisonment for two years, and in the case of a second or any subsequent conviction, penal servitude for five years.

6.1.2. The Criminal Law (Sexual Offences) Act, 2006 preserves a number of the key sentencing distinctions identified in the 1935 Act. First, the distinction based on the age of the victim is preserved, as are the specific age brackets adopted in the 1935 Act. In the case of an offence involving a sexual act with a child under the age of 15 years, the maximum penalty is life imprisonment, and that penalty also applies in the case of an attempt.

6.1.3. In relation to offences committed on a child who is under the age of 17 years, the 2006 Act preserves the distinctions drawn in the 1935 Act between the completed offence and an attempt and between a first offender and repeat offenders. The 2006 Act also introduces a distinction, for the purpose of sentence, between a person in authority and other offenders. A person convicted of engaging in a sexual act with a child under the age of 17 is liable to a maximum term of imprisonment of 5 years, or 10 years if he or she is a person in authority. In the case of a second or subsequent conviction, the maximum terms increase to 10 years and 15 years respectively. A person convicted of attempting to engage in a sexual act with a child under the age of 17 years is liable to a maximum term of imprisonment of two years, or four years if he or she is a person in authority. In the case of a second or subsequent conviction, the maximum terms increase to four years and seven years respectively.

6.1.4. The submissions received by the Committee have contained a number of proposals for reform in the area of sentencing. In addition, the Committee has reviewed and considered certain other issues of interest that have arisen in this area.

6.2. “Penetrative Sexual Offences”

6.2.1. At present, the law provides for a maximum sentence of life imprisonment for a person engaging in penetrative sexual activity or aggravated sexual assault, at least in respect of victims under the age of 15 years. The Committee has previously recommended that consideration be given to the enactment of a specific offence of penetration by the penis. Such an offence would represent the most serious form of penetrative sexual activity and ought to be treated at least as harshly as penetrative sexual activity, in general, is at present.

The Committee recommends that, if a specific offence of penetration by the penis is enacted, the maximum penalty should be life imprisonment.

6.3. Age of the Victim and Sentence

6.3.1. The law distinguishes at present, for the purpose of sentence, between cases where the victim is under 15 and those were the victim is under 17. The Committee has previously recommended that consideration be given to re-enacting an offence of strict liability for the purpose of providing absolute protection to children, and envisaged that this offence would apply below the age of 16 years. In those circumstances, the Committee does not see any justification for maintaining a further distinction based on the age of the victim below the age of 16 years. The removal of that distinction, it should be said, would clearly not be for the purpose of reducing the applicable maximum sentence to the lowest common denominator.

The Committee recommends that a single maximum penalty of life imprisonment should apply to an offence of committing, or attempting to commit, a penetrative sexual act on a child under the age of 16 years.

6.4. First Offenders and Sentence

6.4.1. The Committee considers it proper and desirable to regard the absence of previous convictions, in particular the absence of previous convictions for sexual offences, or other evidence of previous good character as mitigating factors to be taken into account in sentencing a person convicted of a sexual offence against a child. It is open to question, however, whether it is desirable to attempt to achieve this aim by limiting the maximum sentence for a first offender.

“Maximum sentence need not be reserved for second or subsequent offences. We know from research that offenders have generally offended many times prior to any charges being brought. In many cases we see that the convicted person is given a reduced sentence on the basis of first offence — even when thecrime for which they have been convicted is clearly at the most serious end of the spectrum.”

6.4.3. The Committee are satisfied that there are reasons of substance for giving weight to this view. Dr Harry Kennedy, Consultant Forensic Psychiatrist and Clinical Director, Central Mental Hospital, Clinical Professor of Forensic Psychiatry, University of Dublin, drew to the attention of the Committee two particular features of the available scientific evidence concerning recidivism amongst sex offenders that supported this view. In his written submission, he told the Committee that

“Scientific studies indicate that the type of victim chosen and the most recent offence is useful but only an approximate guide to the type of victim in a subsequent offence. Offenders against women may offend also against girls, incest offenders may offend also against strangers and some convicted of indecent exposure go on to be convicted of rape, etc.”

“[u]nlike violent crime or crime against property, sex offence recidivism does not diminish much with age and there are identifiable risk factors which clinicians can describe.”

6.4.5. In short, the possibility that an accused may have offended but not been detected on a previous occasion, the fact that an offence against a child does not mean that an accused is not a danger to other categories of victim, and the fact that the rate of recidivism does not decrease over time, all suggest that a reduced maximum sentence for a first offender may not be appropriate. The Committee is confirmed in this view by the provisions of section 29(2) of the Sex Offenders Act, 2001, which provide that the aggregate of the period of imprisonment imposed on a sex offender and the period of post-release supervision “shall not exceed the duration of the maximum term of imprisonment that may be imposed in respect of the sexual offence concerned”.

The Committee recommends that no provision be made in legislation for a reduced maximum sentence in the case of first offenders. The Committee considers that the position of a first offender is a matter to be taken into consideration by the sentencing judge in mitigation, if appropriate, in any particular case.

6.5. Persons in Authority and Sentence

6.5.1. The Committee considers that, having regard to the breach of trust involved in the commission of a sexual offence against a minor by a person in a position of authority, and considering that the access to children granted to persons in authority is a significant risk factor for sexual offending, it is appropriate to impose more severe sentences on persons in authority who areconvicted of a sexual offence against a child. Obviously, the issue does not arise in relation to penetrative sexual activity, where the maximum sentence recommended by the Committee is life imprisonment. However, in relation to the offences that the Committee has proposed of child sexual abuse and child grooming, assuming that the maximum penalty provided for by law will not be life imprisonment, the Committee considers it appropriate to provide for a higher maximum penalty for persons in authority.

The Committee recommends that the maximum penalty for an offence of child sexual abuse committed by a person in authority should be life imprisonment. The Committee recommends that the maximum penalty for an offence of child grooming committed by a person in authority should be significantly higher than the maximum penalty applicable in the case of other offenders.

6.6. Sentencing Policy/Guidelines

6.6.1. The Committee received a number of submissions suggesting that a clear sentencing policy and/or sentencing guidelines were required in relation to sexual offences against children. Other submissions, without making this point expressly, argued that sexual offences against children are not receiving appropriately severe sentences. The difficulty that the Committee has is the absence of what Sinn Féin describes as “a useful breakdown of statistics relating to sentencing patterns for sexual offences”. In the absence of that information, the Committee is unable to assess the appropriateness of the present sentencing regime or whether any particular features, which might be dealt with in guidelines, are given either undue or insufficient weight in the sentencing process. This is clearly an unsatisfactory situation and one that the Committee would like to see remedied.

The Committee recommends that arrangements be made for the publication of detailed statistics relating to sentencing for sexual offences against children, and continuous review of those statistics to determine whether there is a need for specific sentencing guidelines in the area.

6.7. Mandatory Minimum Sentence

6.7.1. The Committee received some, but not many, submissions arguing that provision should be made in law for the imposition of a mandatory minimum sentence in the case of sexual offences against children. While clearly sexual offences against children are serious, and merit the imposition of severe sentences, the case for the employment of the mechanism of the mandatory minimum sentence has not been fully made out. There are a number of reasons why the Committee is reluctant to employ this mechanism.

6.7.2. The Committee’s primary concern is that, for reasons more fully explained elsewhere in this report, the Committee has opted for simplicity rather than complexity in the law relating to sexual offences against children. Theinevitable consequence of this is that it can reasonably be anticipated that the personal circumstances of offenders, as well as the circumstances in which the offence was committed, will vary widely. In that situation, the imposition of mandatory minimum sentences may lead to injustice.

6.7.3. Another concern is that some of the measures recommended by the Committee, including the shifting of the burden of proof on to the accused and the restriction of the right of cross-examination, interfere with the rights of the accused, albeit in a way that the Committee considers rational and proportionate. The Committee is concerned that the combination of those changes with a regime of mandatory sentencing might be seen as tipping the balance of justice too heavily against the accused.

6.7.4. That said, there may remain scope for a limited regime of mandatory minimum sentencing, in particular, in the case of a person in authority who engages in a sexual act with a child, especially if the child is very young.

The Committee does not recommend a regime of mandatory minimum sentencing in respect of sexual offences against children generally. The Committee does, however, recommend that further consideration be given to applying such a regime in the case of sexual offences committed against young children by persons in authority.

6.8. Discount for Plea of Guilty

6.8.1. The prospect of a criminal trial and undergoing the rigours of cross-examination is a daunting one for any victim of a sexual crime, and particularly for a child. For that reason, the entry of a plea of guilty by an accused person at an early stage in the criminal justice process is especially desirable. Unfortunately, even in cases where a plea of guilty is ultimately entered, this does not always happen at an early stage. It sometimes happens only on the eve or the morning of the trial itself. It has, therefore, been suggested to the Committee that the discount in sentence that is normally applied in the case of a plea of guilty should not be made available to a person who enters a plea at a late stage.

6.8.2. While the Committee is sympathetic to the difficulty thus described, and to the trauma caused to the child victim in those circumstances, it would be reluctant to recommend any measure that would amount to a disincentive to plead guilty at any time. Section 29 of the Criminal Justice Act, 1999 provides that,

“[i]n determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a court, if it considers it appropriate to do so, shall take into account—

6.8.3. The Committee considers that this provision expresses as clearly as can be done the provision that should be made in law for assessing the weight to be attached to a plea of guilty in assessing the appropriate sentence. It may be, however, that the present arrangements for the listing and hearing of cases in the criminal courts are not conducive to focusing the mind of the accused on his plea at a sufficiently early stage.

The Committee recommends that further study be made of the arrangements for listing and hearing trials of sexual offences against children to determine whether any additional measures, including, for example, provision for formal pre-trial plea hearings, would facilitate the entry of pleas of guilty at an earlier stage.

Part III

The Age of Consent

7.What is the Appropriate Age?

7.1. Introduction

7.1.1. The issue of the age at which young people can by law engage in sexual behaviour has a number of facets. First is the question of what age a child must have attained before a person may engage in sexual behaviour with that child with impunity. That is not a simple question. It leads in turn to the question whether the age should be set at different levels for different types of behaviour or for different categories of persons (e.g. persons in authority as opposed to strangers, contemporaries as opposed to persons significantly older). A consideration of the complications inherent is these issues points up the need to adjust the balance between simplicity and clarity in the law on the one hand, and such legislative detail as may be necessary to avoid injustice on the other hand.

7.1.2. There are other facets to the matter. How is the issue of sexual behaviour between minors, without the involvement of adults, to be treated? Can the law adequately achieve the desirable social goal of preserving and prolonging the period of childhood, without enacting laws that might criminalise children for behaviour that does not represent a real criminal tendency? If criminal sanction is unavoidable in such circumstances, is there any justification for distinguishing between male and female children? In that regard, the technical implications, as a matter of the law of evidence, of the current law and of any suggested reforms have also been considered by the Committee.

7.2. Age and Maturity in Irish Law

7.2.1. The prohibition on engaging in sexual activity with children, which is of long standing in Irish law, serves a vital social purpose. Its purpose is not to interfere with the way children’s lives are to be lived, but to protect them, not just from those who would abuse or exploit them, but also from their own inability to appreciate and negotiate all of the risks -personal, moral, social, health or otherwise - associated with premature sexual activity. The assessment of the point at which the child has attained sufficient maturity to make autonomous decisions in this area is a difficult, indeed a fraught, issue. Historically, the means by which this has been achieved has been to set an age below which sexual activity with a child is not permitted. Because each child is a unique individual, this approach may seem arbitrary or even unfair. It serves an important purpose nonetheless. In the words of the Equality Authority, in its submission to the Committee,

“Ages of majority or ages of consent serve a number of purposes. First, they ensure legal certainty and clarity regarding the age atwhich a person can legally undertake certain activity like leave school, drive a car and get married. Second, they define what is a child for the purposes of certain activity. In particular, by identifying the age below which a child is not permitted to drink alcohol, work or have sex, the law is serving to protect the young and immature from harm and exploitation and from their involvement in damaging behaviour; it is also aiming to protect them from decision-making that is deemed beneath their capacity or competence…. for all of these reasons, it is both legitimate and inevitable that states will set down ages of majority and consent in order to regulate conduct that is harmful to children and young people and to offer protection to those who are deemed to lack maturity to make adult decisions in certain areas.”

7.2.2. At what age then does a child become sufficiently mature to make important decisions on such personal matters as sexual activity by themselves? In principle, the capacity to make such decisions is not one that inheres in the child at all; rather, that capacity is an indication that the child has become an adult. Under the UN Convention on the Right of the Child, every human being below the age of 18 is a child, unless majority has been achieved earlier. In Irish law, majority is achieved at 18 years⁸ and younger persons are expressly stated to be children⁹. The minimum ages for marriage and for access to intoxicants such as alcohol and cigarettes are consistent with this.

7.2.3. The minimum age for engaging in sexual activity has, however, been set lower, at 17 years. Lower still, at 16 years, is the age for consenting to medical procedures¹⁰, leaving school¹¹, and the age at which one ceases to be a child for the purposes of employment legislation¹². The age of criminal responsibility is 12, although it is lower again, at 10 years, in the case of certain offences, including certain sexual offences¹³. It is not entirely clear whether there is a coherent notion of maturity or development which justifies the fixing of these different age brackets. What is clear, however, is that Irish law takes a progressive or gradual approach to the issue of maturity and adulthood. This makes intuitive sense. Rather than seeing the coming of adulthood as a magical process that occurs overnight, the law sees it as developing incrementally. That said, the existence of these different age limits could be a source of practical difficulty. In its submission, An Garda Síochána said

“At present several pieces of legislation refer to young persons and many of these have varying definitions of a child or youngperson, consideration should be given to standardising same, i.e. under 17 years or 18 years.”

The Committee sees the merit in such a re-examination. Although the Committee makes recommendations below in relation to those age limits that are of direct relevance to the Committee’s orders of reference, a wide-ranging review of these issues would go well beyond the Committee’s remit.

The Committee recommends that the different ages of maturity and consent provided for in Irish law be reviewed, and kept under continuing review, in order to ensure consistency and coherence, and to ensure that sufficient recognition is given to the dawning maturity of children at appropriate ages.

7.2.5. The question for the Committee is this: at what point in that gradual and incremental process of development does it become acceptable to consider the child as having matured sufficiently to consent to sexual, including penetrative sexual, activity?

7.3. Proscription and Behaviour – the Impact of “Reality”

7.3.1. In fixing the age of consent, in particular the age of consent to sexual activity, one of the key considerations is the extent to which the chosen age should reflect existing practice or behaviour. The Committee is aware that recently published research suggests, not only that young people are engaging in sexual activity below the age of consent, but that this is becoming a more common occurrence¹⁴. Partly in consequence of findings such as these, a number of submissions to the Committee argued that the age of consent should be realistic, rather than idealistic. The Women’s Health Council

“Believes that the law should define what is legally unacceptable, i.e. an offence, not what is desirable…. setting the legal age of consent at 17 has not stopped teenagers engaging in sexual activity today. On the contrary, research tells us that the age of sexual initiation is now 15.5 years of age and decreasing (Rundle et. al., 2004). The government has invested considerable resources in promoting safe sex messages for young people. Criminalising their sexual experimentation will only serve to make teenagers less likely to engage in responsible contraceptive and sexual health behaviour for fear of recrimination.”

“which merely recognises the reality of 21^st century Ireland where a significant proportion of teenagers are sexually active after that age.”

7.3.3. The Committee found this line of reasoning convincing. It believes that the age of consent, as it currently stands, at 17 years, is so significant a departure from reality that it should be varied.

7.3.4. The Committee recognises, however, that the reality of the sexual activity of young people in modern Ireland can affect the debate as to the appropriate age of consent in a different way. The increasing incidence of sexually-transmitted diseases in young people is a source of very real concern¹⁵. That is but one feature of precocious sexual activity from which children need to be protected. Furthermore, statistical evidence that young people are engaging in sexual activity at increasingly younger ages should not be allowed to obscure the findings concerning their attitudes to sexual activity, and in particular their view looking back on having engaged in such activity. The ISSHR report looked not just at behaviour, but also at attitudes, and concluded, in respect of vaginal sexual intercourse, that

“[t]here is a clear age trend among both men and women. Younger age groups are significantly more likely to say they ‘should have waited longer’.”¹⁶

The most striking finding in this respect was that, in an analysis of the population under 30,

“78% of women who had sex before age 15 expressed regret, compared to 17% among women who had sex after aged 19.”¹⁷

7.3.5. The Committee is led, therefore, by its concern at the effects of precocious sexual activity on young people, to the view that the age of consent should be fixed at a level that reflects its best assessment of the point below which the need for protection of children takes precedence over any desire to reflect the reality of their behaviour, which behaviour they may well come to regret. At the same time, the Committee wishes to avoid adding to the sense of regret that may afflict children who engage too early in sexual activity the anxiety and embarrassment of criminal prosecution.

7.3.6. The Committee also notes that the age of consent to medical treatment is 16 years¹⁸. The Committee considers it illogical to permit children who have attained the age of 16 years to seek and receive medical treatment of whatever nature, including treatment related to sexual health, without parental consent, but at the same time for the law to prohibit their engaging in sexual activity. Such a situation could lead to the situation that a medical practitioner might be facilitating the commission of a criminal offence, while their patient would nonetheless be entitled to expect to be treated.

7.3.7. There was substantial support in the written submissions to the Committee for maintaining a minimum age of consent at 17 years. There were considerably fewer submissions that it be reduced to 16, and one that it be raised to 18 (although in that case it was suggested that it would not be an offence if both parties were below that age and the activity was consensual).

7.3.8. The attention of the Committee has been drawn, in a number of submissions, both written and oral, to prevailing standards in other jurisdictions. The Committee understands that the current age limit in this jurisdiction of 17 years is one of the higher limits by international and European standards. The Committee notes that the age of consent in Northern Ireland remains at 17 years and, as argued by Deputy Jim O'Keeffe, it is desirable that the same age limit shall apply in both parts of this island. Although willing to be guided by the experience of other civilised nations, the Committee considers the fixing of the age of consent to be a matter essentially for the judgment of each people by the light of their own experience, expectations and standards.

7.4. The Question of Capacity

7.4.1. Of course, as stated above, the choice of any particular age limit may seem arbitrary. Undoubtedly, children do not mature uniformly. Some of the written submissions to the Committee suggested that account be taken of the maturity of the individual child by framing a test for consent to sexual relations based on capacity. A number of alternative approaches were suggested. There was one submission to the effect that the key point for legal sexual relations should be puberty. There was another suggestion that a capacity-based approach be adopted, with a presumption of incapacity below a specified age. A number of submissions suggested an approach based on the maturity and understanding of the child.

7.4.2. For all that it may be somewhat arbitrary, the Committee considers it essential, in the overriding interest of the protection of children, to fix an age below which children cannot consent to sexual activity, and it should be an offence to engage in sexual activity, of whatever form, with a child below that age.

The Committee recommends that the age of consent be fixed at 16 years.

7.4.3. The Committee wishes to record that the foregoing recommendation did not receive unanimous support amongst the members of the Committee. Although all members of the Committee supported the principle of fixing an age of consent, there was a minority view, held by Fine Gael, that the age of consent should be retained at 17.

7.5. The Value of Clarity

7.5.1. Whatever the age limit for consent to sexual activity might be, a number of submissions to the Committee called for clarity in the law, asserting that there existed a considerable degree of confusion, including among those working in the area of child protection, as to the legal age of consent. The belief that the age of consent is 16 appears to be widespread, perhaps because that is the position in much of the United Kingdom. The most vivid illustration of this was the statement by the Director of Public Prosecutions that

“it is not uncommon for suspects when asked if they knew the girl’s age to say they believed her to be 16 thereby admitting to the commission of an offence.”

7.5.2. The Committee recommends elsewhere in this report that a public awareness programme, along the lines of a public health campaign, be developed, resourced and launched through media, schools and other appropriate channels in relation to the issue of child sexual abuse. A necessary part of any such programme is clearer and definitive guidance on the age of consent.

The Committee recommends that clear and definitive guidance be given on the age of consent through appropriate public awareness campaigns and educational programmes.

7.6. Different Ages, Different Standards

7.6.1. The prohibition in the Criminal Law Amendment Act, 1935 on sexual intercourse with young girls distinguished between those under the age of 15 and those under the age of 17. That remains the position under the Criminal Law (Sexual Offences) Act, 2006. The Committee has recommended earlier in this report the enactment of a provision providing absolute protection for children under the age of 16 years. If such a provision is enacted, the maintenance of a further distinction between children under the age of 15 years and those under the age of 16 years would appear to serve no useful purpose. There remains, however, another issue. The Committee has made specific recommendations elsewhere in this report in relation to how the law should deal with persons in authority who engage in offences against children. Even children aged 16 or 17 deserve a level of protection and, of course, they may be particularly vulnerable to abuse or exploitation by adults who are in a position of authority. There is, therefore, an argument for criminalising any sexual acts committed by a person in authority with a 16-or 17-year-old child. The Committee notes that this argument is reflected in the Council Framework Decision on combating the sexual exploitation of children and child pornography¹⁹.

7.6.2. The Committee accepts this argument, and would be inclined to recommend that legislation should provide that an offence is committed in thosecircumstances by the person in authority. It might be suggested that such a provision could dilute the clarity of the message the law is intended to send concerning the age children must have reached before they can consent to sexual activity. The Committee believes, however, that because of the special position of responsibility occupied by persons in authority, the provision is unlikely to dilute the clarity of that message.

The Committee recommends that the age of consent to sexual activity with a person in authority should be 18 years.

8.Provision for Young People

8.1. Protection and Inhibition

8.1.1. The discussion of the age of consent heretofore in the report of the Committee has focused on the protection of the child as victim of an offence of sexual abuse or exploitation. The Committee acknowledges, however, that children also engage in sexual activity with other children. Sometimes, when that occurs, it may be difficult to say with confidence which child is the victim and which the aggressor. It may indeed be that neither child has been aggressive towards or manipulative or exploitative of the other. Children sometimes willingly engage in experimental sexual activity with their peers. A number of written submissions to the Committee expressed the view that the prosecution of a child for an offence of under-age sex should be exceptional (at least in the absence of abusive or exploitative behaviour) and should only occur if it is in the best interests of the child.

8.1.2. It is difficult to say whether it could ever be in the best interests of a child to be prosecuted for anything. Offences are prosecuted, after all, because it is in the interest of society to do so. Leaving aside that somewhat theoretical debate for a moment, however, the Committee does consider it undesirable that young people or children be prosecuted for experimental sexual activity that is undertaken willingly by both parties, without any abuse, aggression, manipulation, or exploitation by one or the other. A very substantial body of opinion in the written submissions to the Committee emphasised the need to distinguish between consensual behaviour between teenagers and abuse by an adult. The most common suggestion, in various forms, was to consider implementation of age bands, by reference to proximity in age and, to some extent, the age of the accused. There was one dissenting submission, arguing not to adopt an age differential system on the ground that most sex offenders commence offending at a young age. A number of submissions suggested a 2-year age band, another a 5-year band. Again, some submissions suggested that regard be had to the concepts of maturity and understanding, not merely age.

8.1.3. In this respect it seems that views have not changed substantially since the process of consultation engaged in by the Law Reform Commission prior to its Report on Child Sexual Abuse²⁰, which noted that

“[t]he consensus among those we consulted was that it was unreasonable for the criminal law to intrude on sexual relations between persons of the same age and, consistently with this view, it was urged upon us that sexual intercourse in the case of girls aged 15 and 16 should not be a criminal offence where the other participant was also a young person and was not abusing any position of authority or trust. It was suggested by many that parental guidance, improved sexual education and the greater availability of contraceptives, and not the constraints of thecriminal law, provided in modern circumstances a better framework for the sexual development of the young.”²¹

“in the case of a girl between the ages of 15 and 17, sexual intercourse or sexual conduct falling short of intercourse (as defined [in that report of the Law Reform Commission]) should be a criminal offence where the male participant is a ‘person in authority’ as defined [in that report]. Similarly, it should be an offence to have sexual intercourse with a girl between the ages of 15 and 17 when the perpetrator is, at least, 5 years older than the girl in question.”

8.1.5. One of the features of the law as it now stands, following the enactment of the Criminal Law (Sexual Offences) Act, 2006, and which somewhat complicates the matter, is that the offences provided for in the case of sexual activity with children are gender-neutral (subject to one qualification, which is discussed further below). Therefore, as the law now stands, young children, boys and girls, who engage in sexual activity with others of or about their own age, are liable to criminal sanction.

8.2. Criminality and Sentencing

8.2.1. It is important to note that the fact that a child has committed a criminal offence, of whatever nature, does not necessarily mean that they will be treated in the way one normally expects an accused person, or indeed a convicted offender, to be treated. The law recognises that a child offender may be more in need of help and guidance than punishment and that, in the long run, society will benefit more from the former course than the latter. Extensive provision is made for alternative methods of dealing with child offenders²².

8.2.2. The first such method is the Juvenile Diversion Programme, which has recently been described in the following terms by a leading commentator.

“Essentially, the programme deals with a young person committing a criminal offence by means of a caution instead of a formal charge and prosecution. The net result is that the offender will not acquire a criminal record and will be spared the experience of being processed formally through the full criminal justice system. Central to the operation and development of the programme is the appointment of Garda juvenile liaison officers (“JLOs”). They are selected and specially trained to interact with young people and their families in a crime-prevention capacity. In addition to their role in the operation of the diversion programme they are expected to maintain informal contact withyoung people at risk, support youth work and other preventative activities and liaise with relevant personnel, such as teachers, health board staff, school attendance officers and other Gardaí.”²³

8.2.3. For the juvenile diversion programme to operate²⁴, a child must accept responsibility for his criminal behaviour, consent to being cautioned and, where appropriate, supervised, and be of or over the age of criminal responsibility and under the age of 18 years. The cautioning of a young offender will lead to follow-up supervision by a Juvenile Liaison Officer and, if a formal caution is administered, a period of 12 months supervision by a Juvenile Liaison Officer will follow. The supervision will depend on the seriousness of the criminal behaviour, the level of support from and control by the child’s parents or guardians, the likelihood of further offences being committed, and any directions from the Director of the juvenile diversion programme in any particular case or in cases of any particular class.

8.2.4. The operation of the juvenile diversion programme in any particular case may involve the convening of a conference of persons concerned with the welfare of the child, which can lead to the development of an action plan for the child. Such a course, by bringing together those concerned with the welfare of the child, and by availing of expert guidance and assistance in the future behaviour of the child, offers a means of responding to the concerns arising out of precocious sexual activity by children without punishing or oppressing them. In those circumstances, the continuing prohibition on sexual activity by children under the age of consent should be seen as a means, not just of protecting child victims, but also as a means of providing positive and structured help to child offenders in need of such help.

8.2.5. Even if, in a particular case, the child did go through the full criminal justice system, special provision is made in law for dealing with child offenders and enabling the imposition of community sanctions that are not available to a court in the case of an adult offender. Such sanctions can include conditions relating to supervision, undergoing counselling and medical treatment, prohibiting association with specified persons or persons of a specified class, and other appropriate matters²⁵. As Professor Dermot Walsh of the University of Limerick has written,

“Rehabilitation takes centre stage in the punishment of a child for a criminal offence…. any penalty imposed on a child for an offence should cause as little interference as possible with the child’s legitimate activities and pursuits. It should take the form most likely to maintain and promote the development of the child and should take the least restrictive form that is appropriate in the circumstances. Clearly, the emphasis should be on community sanctions which can be integrated with the child’s normal and healthy development and activities. Equally, any penalty shouldbe positive rather than negative in terms of the child’s development. A period of detention should be imposed only as a last resort.”

8.2.6. A child who is engaging in sexual activity with another child, without manipulating, abusing, or exploiting that other child in any way, is not properly to be considered a serious sex offender in the way that an adult would be. But the law in general does not like to consider children as serious offenders and, for that reason, makes provision for dealing with them in different ways. The law does not, however, ignore children who engage in activity that, if committed by an adult, would be a serious offence. It must be recognised that a child who engages in such activity, whether sexual or otherwise, and whether it is an occasional incident of adolescence or an indicator of more serious problems, is a child in need of help.

8.3. Decriminalisation

8.3.1. The suggestion of decriminalisation, however, presents certain difficulties. The submissions favouring such a solution speak in terms of not criminalising children who engage in consensual sexual activity with their peers. Even the terms of this discussion make clear the difficulty that arises. The reason the law intervenes in the area of sexual activity with children, and renders those who engage in such behaviour liable to criminal sanction, is because the law does not consider children to be capable of consenting to sexual activity. Acts may be willingly engaged in without children having a full understanding of what they are doing and of the possible consequences, personal, social, psychological, and medical, of such activity. This lack of understanding, or lack of maturity, means that willingness does not equate with consent. In the words of Deputy Olwyn Enright, the Committee

“must look at [its] duty to protect young people even with regard to behaviour in which they engage with each other”.

8.3.2. Secondly, to see criminalisation of sexual activity as oppressive of children is inaccurate. On the contrary, the detection of such behaviour, and its identification as criminal, trigger the guidance and assistance mechanisms provided for in the Children Act, 2001. In an ideal world, parental guidance and improved sexual education might together obviate the need for such mechanisms, as those who made submissions to the Law Reform Commission would have liked. Unfortunately, however, the increasing incidence of sexual activity amongst children, and the associated rise in sexually transmitted disease amongst children, suggest that neither such guidance nor education are sufficiently effective.

8.3.3. Thirdly, none of the submissions to the Committee arguing for decriminalisation of “consensual” sexual activity between children and their peers addressed themselves to the implications of such an approach for the trial of offences. For while there may be sexual activity engaged in willingly between peers, there is certainly also abusive and exploitative behaviour. The difficulty with decriminalising the former is that a child victim of thelatter will suffer precisely the type of rigorous cross-examination as to their behaviour, their compliance and their consent that everyone who made a submission to the Committee, and the Committee itself, consider it imperative to avoid. In short, decriminalising “non-consensual” sexual activity between young people would put the consent of the victim in issue. The Committee cannot accept such an outcome.

8.3.4. A substantial number of submissions to the Committee recommended that a means of achieving decriminalisation in an appropriate fashion was the employment of age bands, by reference either to the age of the victim, the accused or both, within which “consensual” sexual activity would be permitted. It will be apparent from the quotation above that the Law Reform Commission made a similar recommendation, although without reference to consent. If consent is not included in such an exception, the provision would decriminalise, subject to the law of rape and sexual assault generally, behaviour which should not be decriminalised. It is preferable, for obvious reasons, not to have to rely on the general law of rape and sexual assault in respect of child victims. On the other hand, if consent is included in such an exception, the proposal produces the difficulties identified above. The Committee cannot therefore recommend the introduction of an age band exception to the sexual offences against children.

The Committee recommends that the existing prohibition on “consensual” sexual activity between children below the age of 16 years should remain in place.

8.4. Mitigating the Harshness of Criminality for Children

8.4.1. There is, undoubtedly however, one obvious difficulty with not decriminalising sexual activity between children who are peers. It was identified in 1990 by the Law Reform Commission and emphasised again to the Committee by the Director of Public Prosecutions and others who made submissions to the Committee. That is that the fear of criminal sanction may be a serious disincentive to reporting by victims. That is quite probably so. But that difficulty must be looked at in context. Such a report need not necessarily lead to prosecution; there is a role for prosecutorial discretion and/or the Juvenile Diversion Programme. The Committee considers that the issue can be minimised by including an explanation of the consequences of reporting in the public awareness campaign that the Committee has recommended elsewhere in this report. The Committee is also conscious that there are other deterrents to reporting, including a sense of confusion, embarrassment and possibly shame on the part of the complainant, and the fear of not being believed. Complainants who conquer those issues sufficiently to be willing to report will be less likely to be deterred by a fear of prosecution if the consequences of reporting are carefully and helpfully explained through a public awareness campaign.

The Committee recommends that the public awareness campaign which it recommends in relation to child sexual abuse should include a careful and helpful explanation of the treatment that complainants can expect, and that they need not fear prosecution.

8.4.2. Given the desirability, in appropriate cases, of availing of the Juvenile Diversion Programme and of the Director of Public Prosecutions exercising his discretion not to prosecute, the Committee considers it imperative that the investigative and prosecutorial decision-making process should pay due regard to the possibility of availing of alternatives to the criminal justice system. Similarly, if it is appropriate to prosecute in any particular case, it is imperative that, in the event of a conviction, the full range of age-appropriate sanctions be considered and availed of if possible. Finally, the existing options for dealing with young offenders in the case of sexual offences, whether as alternatives to prosecution or sentencing options in the event of a conviction, may need to be reviewed in light of the Committee’s recommendation that sexual activity between children not be decriminalised. One issue of particular concern, identified by Deputy Jim O'Keeffe, was to ensure that some discretion be available to the sentencing court in considering the application of the requirements of the Sex Offenders Act, 2001.

The Committee recommends that the investigative and prosecutorial decision-making processes be reviewed by the Garda Síochána and the Director of Public Prosecutions, with the assistance of the Department of Justice, Equality and Law Reform and the Ombudsman for Children, respectively to ensure that, in respect of allegations of sexual offences against young people, protocols are in place mandating consideration of ageappropriate alternatives to prosecution in all cases.

The Committee recommends that the Probation Service, with the assistance of the Department of Justice, Equality and Law Reform and the Ombudsman for Children, review the operation of its role in reporting to the sentencing court on young offenders convicted of sexual offences to ensure that protocols are in place mandating consideration of all age-appropriate sentencing options.

The Committee recommends that the law should be amended so that the consent of the Director of Public Prosecutions be required for the prosecution of any child for a sexual offence.

The Committee recommends that consideration be given to the development by the Director of Public Prosecutions of nonbinding guidelines as to the matters that will typically be taken into consideration in determining whether or not to prosecute a child for a sexual offence.

The Committee recommends that existing alternatives to prosecution and sentencing options, in the case of young sexual offenders, be reviewed to ensure that any particular form of guidance, supervision, treatment or assistance that would be appropriate in the case of such offences is available.

The Committee recommends that the provisions of section 3 of the Sex Offenders Act, 2001 be reviewed and, if necessary amended, so that a court sentencing a child offender would have a discretion whether or not to apply the requirements of that Act.

8.5. Gender Equality

8.5.1. Section 5 of the Criminal Law (Sexual Offences) Act, 2006 provides as follows.

“A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse.”

8.5.2. This provision has provoked the largest number of critical submissions, of all aspects of the law relating to sexual offences against children, in the written and oral submissions received by the Committee. This provision effectively decriminalises participation in sexual intercourse by girls under the age of 17 years. Of course, that activity would only have been criminal, in the case of the girl, if her partner is under the age of 17 years. Her partner, on the other hand, whatever his age, will have committed an offence.

8.5.3. To put the provision in its proper historical context, it needs to be understood that, prior to the enactment of the 2006 Act, a young girl who engaged in sexual intercourse did not commit an offence, no matter how young her partner. It must be remembered that the scope of the prohibition contained in the Criminal Law Amendment Act, 1935 was limited to engaging in sexual intercourse with a girl. The extension of the scope of the prohibition on sexual activity with children effected by the 2006 Act was expected to give rise to issues that had not arisen before. Section 5 was an attempt to deal with those issues. Before engaging in an analysis of section 5 itself, it may be of assistance to consider briefly those issues.

8.5.4. The factual context in which these issues arise is that the overwhelming majority of complaints concerning sexual activity with children are made by girls. To some extent, of course, that may reflect the fact that only a girl could be a victim of an offence contrary to the 1935 Act. It must be noted, however, that the offence of sexual assault is and was capable of being committed by a female on a boy, but that there has never been a significant level of reporting of such offences. There are two issues, one a technical legal issue, the other a more practical concern.

8.5.5. The technical legal issue is that it is feared that, if both the male and the female child have committed an offence, each may be seen in law as an accomplice of the other. If that were the case, it would have implications for how their evidence is treated and for the way in which a jury would be told to consider their evidence. Previously, the law was that, because the offence of unlawful carnal knowledge was created for the protection of young girls, they could not be considered an accessory, and therefore and accomplice, in the offence²⁶. Obviously, as there is now an offence designed for the protection of both boys and girls, this approach to the issue is less helpful.

8.5.6. While there must be some doubt as to whether, in the event of sexual intercourse between a boy and a girl who were both under the age of consent, either is in law properly considered an accomplice²⁷, the Committee considers that the technical legal issue can be resolved by the creation of an offence of penile penetration, as previously recommended by the Committee. Clearly, only a male can commit this offence as principal, and, as the offence is created for the protection of the girl, she cannot be considered an accessory or accomplice.

8.5.7. The more difficult, practical issue is a variation of that considered earlier, i.e. the deterrent to reporting caused by the possibility of prosecution. On the subject of the immunity of girls from prosecution under the previous legislation, Thomas O'Malley, wrote

“It is difficult to identify a viable alternative. To make both parties criminally liable would be counter-productive as it would greatly impede the enforcement of the law. If the person who may naturally be expected to report the offence risks prosecution herself, the level of reporting is likely to sink well beneath its present low level. The total abolition of the offence of unlawful carnal knowledge would leave an unconscionable void in the legal regime for protecting very young girls from sexual exploitation. The better option would appear to be a re-assessment of the age of consent and the circumstances in which relations with the teenage girl (or boy) should be a concern of the criminal law.”²⁸

8.5.8. As stated above, it is difficult to see how any re-assessment of the age of consent and the circumstances in which sexual intercourse between teenagers would be a concern of the criminal law could provide a solution to this problem without creating a greater one, i.e. exposing children to cross-examination on the issue of consent.

8.5.9. Is the present law then the best option of a bad lot? The principal objection made in the various written submissions received by the Committee to the present law is that it is discriminatory and that the discrimination cannot be justified as rational and proportionate. The Irish Centre for Human Rights, NUIG, stated in its submission that section 5

“may conflict with the recognised principle that all persons, regardless of gender, are equal before the law, and that laws should not discriminate based on gender. Additionally, this section ignores the possibility that young women may initiate sexual encounters with younger individuals.”

8.5.10. The Irish Human Rights Commission observed that section 5 gives rise to concern in relation to its compatibility with the principle of non-discrimination contained in Article 2(1) of the UN Convention on the Rights of the Child, which provides:

“States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” [Emphasis added.]

“As to whether this difference in treatment can be found to be based on reasonable and objective grounds, it is no doubt arguable that granting favourable treatment of this kind to girls is a legitimate aim for the State to pursue. According to the Explanatory Memorandum to the Bill, the purpose of section 5 is to protect girls in that age group ‘who might be pregnant’ and to reassure them ‘that they have nothing to fear from the criminal law’. In light of the case-law set out above, however, the nature of the explanation -- which admits that this provision is broader in scope than seeking to protect from stigma a child who is pregnant -- is unlikely to provide the necessary weighty reasons required to justify the substantial difference in treatment on the grounds of gender, particularly given the seriousness of the charge faced by the male in question. This is particularly the case given that discrimination on the grounds of gender has been identified as a ‘suspect category’ by the European Court of Human Rights.”

8.5.12. It should be noted that, as pointed out by Mr O'Malley in his book, the corresponding provision of the California Code was upheld by the US Supreme Court in 1981. Giving the judgment of the court, Rehnquist J said

“Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. It is hardly unreasonable for a legislature acting to protect minorities to exclude them from punishment.”²⁹

8.5.13. It is certainly open to question whether this reasoning, and the punitive attitude that underlies it, would find favour with the Supreme Court or theEuropean Court of Human Rights, should either be asked to examine the provision by a boy who had sexual intercourse with a girl of his own age, both under the age of consent, who found that he was the only one of the two prosecuted because she was immune from prosecution.

8.5.14. And there are other substantial policy considerations with which section 5 is in conflict. Barnardos believes that

“When sexual activity is consensual and teenage pregnancies occur, … the State should not make it more difficult for young fathers to be involved in their child’s life.”

“is bound to act as a deterrent for many young men from taking full responsibility in terms of sexual activity and its repercussions.”

“stressed the need to use contraception and attend sexual health clinics for information, and treatment, if necessary. The fear of criminalisation will inevitably deter young men from doing so.

Moreover, the current legislation provision will also undermine the caring role of teenage fathers. When underage sexual intercourse results in pregnancy, the young father will now be liable to prosecution. This situation will discourage them from taking an active role throughout the pregnancy and after the birth as fathers in terms of caring as well as financial responsibility. Again, this situation goes against many government initiatives to try and engage young men in their roles as fathers and will contribute to their further alienation from their young families. Moreover, the provisions further exacerbate societal expectations of women as the main carers, despite extensive research showing that this can cause considerable gender equality in many other spheres, such as work, education and financial circumstances.”

8.5.16. The Report by the Office of the Minister for Children on consultations with teenagers in relation to the age of consent for sexual activity states

“It is fair to say that all two hundred and ten participants were unanimous in their assertion that young boys needed to be treated equally in law. Participants were in fact incensed to learn that young boys could potentially be criminalised for having sex if their female partner was under the age of seventeen. While understanding the reasoning behind the law to protect young girls, all parties felt strongly that the law needed to be equal for boys and girls.”

8.5.17. On the whole, although the Committee understands the reasons for the enactment of section 5, it considers the provision to be constitutionally suspect and liable to be found to conflict with the State’s obligations under the European Convention on Human Rights.

8.5.18. The Committee acknowledges that the only remaining alternative is far from perfect solution. That alternative is to make no exception in law to the offences related to sexual activity with children for underage offenders, male or female, but to trust instead that the availability of alternatives to prosecution, coupled with the operation of prosecutorial discretion, will prevent injustice, and that a public awareness campaign, directed in part to explaining the consequences of reporting, the treatment that complainants can expect, and that they need not fear prosecution.

The Committee recommends the repeal of section 5 of the Criminal Law (Sexual Offences) Act, 2006.

Part IV

Criminal Justice Procedures

9.The Special Position of Children

9.1. Introduction

9.1.1. The Committee, by its terms of reference, is required to “examine criminal justice procedures relating to the evidence of children in abuse cases”. The Committee considers this aspect of its work to be a matter of primary importance. While the determination of the content and form of legislative provisions designed to prohibit the abuse of children in all its forms is the necessary first step in ensuring that the law adequately protects children, if that protection is to be of real practical value, the criminal justice system, at all levels, must be carefully designed so that children and their families will be willing to make a complaint to the proper authorities when abuse has occurred. Furthermore, it is imperative that the way in which children are treated by the criminal justice system facilitates the investigation and prosecution of any such complaint and protects children from unnecessary further trauma.

9.1.2. The justice system operates, in general, on the premise that a person who has been wronged in whatever way will make a detailed complaint to An Garda Síochána, who will investigate it and, in appropriate cases, report to the Director of Public Prosecutions. The DPP will assess the report to determine whether an offence has been committed and whether there is sufficient evidence against the suspect to warrant prosecution. If there is, the suspect will be prosecuted and the case will go to trial before a judge and (in the vast majority of serious cases) a jury. During the course of that trial the person who made the original complaint will give evidence for the prosecution. It is clear, therefore, that the system depends to a significant extent upon the ability of the complainant to give a full and clear explanation during the Garda investigation of what has happened, and to follow up that explanation with a consistent, coherent and convincing account of events to the judge and jury.

9.1.3. At both stages of that process, however, children can have particular difficulty. In any case of child sexual abuse, even the thought of what has occurred can be deeply traumatic for the child. To have to recount those events in the presence of strangers, in unfamiliar, formal and seemingly unwelcoming places, and to have to do so repeatedly, will be all the more traumatic. If this difficulty discourages the making of complaints, or inhibits the child from expressing himself or herself freely, or so intimidates the child that he or she becomes forgetful or confused, then a serious and deeply troubling injustice can be done.

9.1.4. On the other hand, the law has always recognised, and indeed justice requires, that if a person is to be charged with a serious criminal offence,including any form of child sexual abuse, they must be given notice of precisely what is alleged against them and given an opportunity to contest that allegation if they do not admit their guilt. The challenge, therefore, is to reconcile these competing requirements of justice.

9.2. The Special Needs of Children

9.2.1. The difficulty that children may have in expressing themselves clearly about matters they may find deeply embarrassing in unfamiliar adult company is obvious. But there is more to the problem than that. In the course of her presentation to the Committee, Dr Imelda Ryan, Consultant Child and Adolescent Psychiatrist, Director of St Louise’s Child Sexual Abuse Assessment and Treatment Unit at Our Lady’s Hospital for Sick Children, Crumlin, said

“There needs to be awareness that we ask a great deal of children who have been victims of or witnesses to crime to participate in what I believe is a very adversarial system. It is a system designed for adults, not for children. We expect young children and adolescents to take part in a process that many adults find complex, confusing and intimidating…. It is important that the criminal justice system adapts its practice to recognise the developmental stages and the needs of child witnesses so as to ensure they are sensitively treated throughout both the investigative and the trial process. In order to do this, the system must operate from an understanding of children and child development.”

9.2.2. Later, in response to a question from Senator Sheila Terry, Dr. Ryan said

“Some interesting research has been conducted on memory in younger and older children. However, it may be beyond the remit of this forum to consider all the available research on this topic. The fact that young children have a better memory for central, as opposed to peripheral events, is relevant to how investigating Gardaí can be trained to elicit the best quality of evidence. It will never be the case that a seven year-old child will provide evidence that something happened at, for example, 5 p.m. on Thursday but that is how statements are currently constructed. When I read some of these statements, I think there is no way a seven year-old child could have given such accurate evidence because they do not talk or think in that manner. However, they have good memories, so it is perhaps fallacious to assume young children will not remember central events.”

9.2.3. Accordingly, it is apparent that cognizance needs to be taken of the special needs of children from the outset of a criminal investigation. Even at the point when the complaint is first made, there needs to be an understanding of child psychology and of the limits of understanding, memory and expression given the particular child’s age and development. If that understanding isabsent, there would be a danger of forcing the child to commit to a recollection of particular details of which he or she is not confident. This has obvious implications for the perception of that child’s credibility at a later stage.

9.3. Children as Vulnerable Witnesses

9.3.1. Children, of course, are not alone in experiencing difficulties in interacting with the criminal justice system. Similar difficulties may be experienced by adults with intellectual disabilities, the very elderly, and even by adults with physical disabilities. Similarly, whether because of their own particular disposition, or because of the character, notoriety, or behaviour of an accused, adult witnesses without any physical or mental disability may, due to fear or intimidation, be unwilling or unable to participate in the criminal justice system. Needless to say, the concern that a witness might be fearful or intimidated is particularly acute when that witness is a child and the accused is an adult who occupied some position of authority or domination over the child.

9.3.2. Looked at in this light, the special needs of children as witnesses can properly be seen as but an aspect of the need to make provision in the criminal justice system, at all levels, so that vulnerable or intimidated witnesses will be able to avail of that system. The importance of this objective cannot be questioned. In the words of the Committee of Ministers of the Council of Europe,

“it is unacceptable that the criminal justice system might fail to bring defendants to trial and obtain a judgment because witnesses are effectively discouraged from testifying freely and truthfully.”³⁰

9.3.3. During the course of her presentation to the Committee, and in response to a question from Deputy John Curran, Dr Imelda Ryan said

“Apart from decisions of the DPP, many cases do not go forward because parents absolutely refuse to allow children to go before the criminal justice system to give evidence. The reason they give is that they do not want to put the child through a process which they perceive will be hostile and alien.”

It therefore appears to the Committee that child victims of sexual abuse are in fact discouraged from testifying freely and truthfully in Ireland and the Committee considers this entirely unacceptable.

9.3.4. By comparison with measures that have been introduced in other jurisdictions in recent years, the absence of general statutory provision forthe identification and proper care of vulnerable and intimidated witnesses may be seen as a defect in the Irish criminal justice system and one that urgently needs to be remedied. It is, however, beyond the terms of reference of the Committee to consider the general implications of the subject. What can be said is that children, by virtue of their age, immaturity and incomplete intellectual development, can be presumed in all circumstances to be in need of special measures of protection where they complain of or witness a crime. The Committee has considered and proposes to analyse this issue under two headings: first, the investigative or pre-trial stage and, secondly, the criminal trial process itself.

10.The Criminal Investigation

10.1. Statement of Complaint

10.1.1. The taking of the statement of complaint is not just the first step in the criminal justice process; it is one of the most important for a number of reasons. Obviously, the Garda investigative response and the question of referral to other appropriate agencies will be determined, to a significant extent, by the clarity and completeness of the allegations made at this stage. As the process of recounting traumatic events can itself be traumatic for children, it is desirable to reduce the necessity for repeated re-telling of what has occurred. In addition, the giving of an incomplete or partially censored account of events in the first instance can have an impact on the assessment of the complainant’s credibility at later stages, including at trial. For all these reasons, it is imperative that all necessary measures be put in place to enable as complete an account of events as possible to be elicited from a child complainant or witness when a statement is first taken from them.

10.1.2. The Committee received a significant number of submissions relating to the issues arising at this stage of the criminal process. Quite a number of submissions favoured specialist training for Gardaí (and, indeed, for lawyers and judges) on child development, evidence, communication and the dynamics of child sexual abuse. There was also significant support for the investigation of child sexual abuse cases by a specialist corps of Gardaí. It was submitted that social workers be involved in the taking of statements and that there was a role for expert assessment of allegations.

“The conducting of pre-trial interviews with children by social workers and the Gardaí is strongly advised. These interviews can take place at the time of the abuse being reported as opposed to waiting to just before the trial. It also avoids the child being interviewed twice. Although both the social workers or the relevant professionals and the Gardaí would be used to operating from different perspectives, these interviews should be investigative in nature rather than therapeutic.”

“Investigation of all crimes of sexual violence including those against children to be carried out by Gardaí who have received in-depth specialist training. This should include specific training in the interviewing of children who have experienced sexual abuse. Currently it can happen that Gardaí with little or no specialist training are involved in interviewing and investigation. The training should also include the impact of trauma, and the needs and sensitivities of the person who has experienced sexual abuse.”

“[t]he taking of a victim’s statement is a crucial element of evidence gathering in cases of sexual violence. It is vital to recognise that the taking of a statement from a victim of sexual violence, especially if that victim is a child, requires very specific skills and sensitivities.”

and, having noted that the Ferns Report considered that specialist child protection units in Northern Ireland were highly regarded and considered essential by police and social services and could provide a useful model for implementation in this jurisdiction, suggested that specialist Garda units should be established on a regional basis to investigate complaints of sexual crime.

“Children should be interviewed by video. HSE personnel and An Garda Síochána personnel should conduct these interviews jointly. There should be a specialist An Garda Síochána Child Protection Team in each County. The Committee should source the Memorandum of Good Practice Manual as used in the U.K. for interviewing children. There should be a national accredited standard for the interviewing of children. An Garda Síochána are trained in interviewing but not specifically with children. There are different standards and procedures nationally for interviewing children in criminal matters.”

10.1.7. Dr. Imelda Ryan informed the Committee that research undertaken by St Louise’s Child Sexual Abuse Assessment and Treatment Unit suggested that

“A total of 60% of Gardaí who responded to our survey said they had no specialist training in questioning children.”

10.2. The Garda Station

10.2.1. Submissions relating to the interaction between the child victim/witness at this early stage of the investigation were not confined to the mechanics of the conduct of the interview. More comfortable arrangements were suggested for interviewing complainants, and that interviews should be video-recorded. The Dublin Rape Crisis Centre submitted that:

“A comfortable, non-threatening interviewing environment should be provided in all Garda stations. Such facilities are available in a small number of stations, and should be replicated in every station.”

10.2.2. The Committee understands that arrangements currently in place for the conduct of formal identification procedures in Garda stations require thevictim or other identifying witness to be present in the same room with, and in close proximity to, the suspect.

10.3. Recommendations of the Committee

10.3.1. The Committee accepts the view that the interviewing of child witnesses and, in particular, child victims, requires specialist skills. The Committee also considers that, where a child victim or witness is interviewed by a Garda who has not received sufficient training and experience to develop those skills, there is a danger that the child will not be adequately protected from harm by the criminal justice system. The Committee has been informed that the Garda Síochána is arranging for the training of a number of selected officers to enable them to conduct interviews with child victims or witnesses in accordance with good practice and that it is expected that this training will be completed in January 2007.

The Committee recommends the establishment of regional specialist child protection units within An Garda Síochána, which should take responsibility for the investigation of complaints of child sexual abuse from the outset of the investigation.

10.3.2. The Committee considers it desirable that facilities should be available, if not in every Garda Station, then at least in every divisional or district headquarters, for the interviewing of child victims or witnesses in comfortable and non-threatening circumstances. Such facilities should include those necessary to enable the taking of a statement from children to be video-recorded with a view to such recoding being admitted in evidence at trial. The Committee has been informed that the Department of Justice, Equality and Law Reform is working on setting up these facilities in conjunction with An Garda Síochána, the Probation Service, the Office of Public Works and the Health Service Executive, and that it is intended to have a network of suitable facilities established at a number of locations throughout the country early in 2007.

The Committee recommends that the provision of comfortable and non-threatening facilities, including video-recording facilities, for interviewing child witnesses/victims should feature in the design and maintenance of Garda stations, especially divisional or district headquarters.

The Committee recommends that there should be facilities in Garda stations, especially divisional or district headquarters, to enable formal identification parades to be conducted without the identifying witness needing to be in the presence of, or visible to, the suspect.

10.3.3. While the Committee can see the benefit of having interviews conducted jointly by Gardaí and social workers, it may be that, if those interviews were conducted by Gardaí with the requisite specialist training, that would suffice.It appears to the Committee that, as it is desirable that interviews be video-recorded with a view to their possibly being admitted in evidence at trial, it may be preferable to have such interviews conducted only by Gardaí, who can be expected to have a better understanding of the limits of what may be admissible in evidence.

The Committee recommends further study, with the assistance of An Garda Síochána and the Health Services Executive, of the submission that social workers participate in Garda interviews of child complainants.

10.3.4. The possibility of the involvement of expert assessment of the credibility of complaints of child sexual abuse in the criminal justice system is one which gives rise to issues of considerable importance in the context of the possible admission of such expert assessment in evidence at trial. Although further study may suggest otherwise, it has not been established to the satisfaction of the Committee that expert assessment of allegations of child sexual abuse will be necessary or desirable in every case. In the absent of any significant cause for concern, a child complainant and his or her family are entitled to expect that such allegations will be taken at face value and thoroughly investigated. The process of investigation and, ultimately, prosecution may, however, be expected to benefit from ensuring that those involved at all levels of that process have a full understanding of the child-centred issues that arise in child sexual abuse cases.

The Committee recommends that a structured programme of training and education on child psychology, child development and the reaction of children to incidents of child sexual abuse be developed and provided to Gardaí, officers of the Director of Public Prosecutions, prosecuting solicitors and counsel and judges hearing cases involving allegations of child sexual abuse.

10.4. Prosecution of Offences

10.4.1. The Committee received a number of submissions concerning the decision to prosecute and related matters. One particular submission made by a number of parties was that, in the event of a decision not to prosecute an allegation of child sexual abuse, the reasons for that decision should be communicated to the complainant and his/her family. While the Committee understands the concerns expressed in the submissions, it is aware that the policy of the Director of Public Prosecutions on this issue has been arrived at for legitimate reasons and also that the policy is currently under review. In those circumstances, the Committee makes no recommendation on this issue.

10.4.2. The Committee also received submissions to the effect that the policy of prosecuting sample or specimen counts should be discontinued. The difficulty is explained by Dr. Imelda Ryan who, in response to a question from Deputy James Breen, said

"The idea that the defendant is charged with specific instances does not make any sense to children because they do not think like that and do not remember in that way.”

10.4.3. The Committee understands that the practice of the Director of Public Prosecutions has been to direct charges alleging that a particular incident occurred within a specific period of time, often some months or more in length. That approach provides some flexibility to child victims in terms of giving their account of the abuse, while at the same time giving an accused person some degree of particularity of the allegation so as to enable them to prepare their defence. The Committee is unable to recommend that the present system be changed, although there may be a need for further study of the issue.

The Committee recommends further study of the extent to which prosecutorial policy, in particular in relation to the framing of charges, may present a difficulty for child victims, having regard to their mental and cognitive abilities, and of the means by which such difficulties can be overcome.

11.The Criminal Trial Process

11.1. Introduction

11.1.1. The criminal trial process is a unique institution in Irish society. While in recent decades various forms of Parliamentary, statutory, quasi-judicial and non-statutory inquiry have become more commonplace, the criminal trial still stands alone. It is, like so many other forms of inquiry, a system which serves a clear public interest and public purpose. However, it is also a system which engages private interests at the most fundamental level. For the victim, especially the victim of serious sexual offences, it is the means by which society expresses its solidarity in the wrong which has been done to them, and its determination that the dignity and personal rights of the victim be affirmed and vindicated. For the accused, on the other hand, it is the means by which society protects their good name and character against false or mistaken allegations. If the criminal trial process fails as a means to achieve either of these ends, it needs to be reformed. The difficulty, of course, has always been that the pursuit of one of these ends may endanger the achievement of the other.

11.1.2. The Committee has received submissions as to how best the balance between these competing ends should be struck, and has considered options for reform at a variety of levels. The very first issue is what sort of criminal justice system the State should have.

11.2. Inquisitorial or Adversarial System

11.2.1. The dominant feature of the Irish legal landscape is undoubtedly the Constitution of Ireland of 1937. While the Constitution created an entirely new legal order, it expressly preserved the pre-existing laws of The Irish Free State (both statutes and Common Law) to the extent that they were not inconsistent with the new Constitution³¹. This approach, in turn, reflects the corresponding provisions in the Constitution of The Irish Free State. As a result, much of the Irish legal system is of ancient and unclear origin, and this is true, to a significant extent, of the rules governing the criminal trial process. The criminal justice system is essentially an evolved, rather than a designed, system.

11.2.2. The criminal trial process in Ireland, like the judicial system generally, is adversarial in nature. Briefly, this means that the judicial determination of disputes, of whatever nature, is conducted as a contest between opposing sides, rather than an inquiry conducted and managed by a judge. It must be remembered, however, that in the criminal trial process the opposing sides are not the victim and the accused, but the accused and the Director of Public Prosecutions, acting on behalf of the People of Ireland.

11.2.3. One of the obvious features of the system, therefore, is that the victim, who has a clear and important personal interest in the outcome of the process isnot personally represented. Why is this? There are number of reasons for this arrangement. First, not every victim is capable of managing a prosecution. This is particularly true where the victim is deceased or has been somehow incapacitated by the crime. Secondly, even if the victim were capable of conducting a prosecution, this is not a burden which should fall on his or her shoulders. A system of public prosecution, which assumes, at public expense, the function of prosecuting criminal charges, expresses society’s solidarity with the victim and its determination to pursue the matter on the victim’s behalf. Thirdly, because the consequences of criminal conviction are so serious, and so damaging in the case of wrongful conviction, it is desirable that the conduct of criminal prosecutions should be defined by standards of independence and impartiality, rather than a determination to secure a conviction at all possible costs.

11.2.4. To say that the Irish criminal justice system is adversarial, in the sense outlined above, is not of course to give a complete account of the operation of the system, and it is beyond the bounds of the Committee’s work to attempt to give such an account. Arguably the essential feature of the Irish criminal justice system is that the finding of facts and the ultimate determination of guilt are matters for a jury, rather than a judge or judges (except in the case of minor offences, those offences which may be tried before the Special Criminal Court, and offences against military law)³². It has been said that

“The linchpin of adversarial systems of criminal justice, at least traditionally, has been the jury.”³³

The Oireachtas Joint Committee on Justice, Equality, Defence and Women’s Rights has recommended that

“the central position that a right to trial by jury has in this jurisdiction be maintained.”³⁴

11.2.5. It should also be noted that, like many systems, the Irish criminal justice system is not purely of one type, and it has features of an inquisitorial nature, not least, for example, the power of a judge in a criminal trial to call a witness who has not been called by either the prosecution or the defence³⁵.

11.2.6. The Committee has received submissions recommending that consideration be given to the idea of changing the criminal justice system to an inquisitorial system, most notably the joint submission from St Louise’s Unit, Our Lady’s Children’s Hospital, Crumlin and St Clare’s Unit, The Children’s University Hospital, Temple Street, which questioned

“whether an adversarial prosecutorial system is the best way to investigate crimes of child sexual abuse and whether an inquisitorial system may not be preferable.”

11.2.7. The Committee has not, however, received any submission containing a detailed analysis of the benefits or implications of such a change. The Committee notes that, as Mr. Geoffrey Shannon said in response to questioning by Senator Jim Walsh, the adversarial approach of the Irish criminal justice system is exceptional in the European Union, as most of the member states have a civil law system. The Committee is mindful also of the common ground shared by adversarial and inquisitorial systems of criminal justice. In the words of the Western Australia Law Reform Commission,

“Both systems share the same goal for criminal process and procedure: to ensure procedural fairness by balancing the rights of the individual against the rights and interests of society as a whole. Although there are significant differences between the adversarial and inquisitorial systems, the inquisitorial system, like the adversarial system, allows the defendant some scope to oppose prosecution by introducing evidence to prove innocence. It is the structure and organisation of the forensic process or investigative method, in particular prior to trial, which essentially distinguish the criminal jurisdiction of the two systems.”³⁶

11.2.8. The Committee is motivated, above all else, to find practical solutions capable of prompt implementation to the problems arising in the areas of its terms of reference. To change the entire structure and make-up of the criminal justice system, from an adversarial to an inquisitorial system, while it might have certain attractions, would have significant and far-reaching consequences, which the Committee is not in a position to access. For that reason, the Committee does not recommend such a change.

11.3. The Role of Cross-Examination

11.3.1. An essential feature of the Irish criminal trial process is the right to cross-examine any witness called by the other side in the proceedings. It should be noted that this feature is also to be found in civil trials and other forms of inquiry, where important personal interests are at stake. Cross-examination is the means by which an accused person tests and challenges the allegation(s) made against him or her. It is therefore, in a very real sense, the essence of the trial, whether civil or criminal. Without such a mechanism, an allegation cannot properly be tested, and a person accused of a criminal offence cannot properly be defended.

11.3.2. The importance of cross-examination has been repeatedly emphasised by the Supreme Court, and it must be considered a central element of the right to afair trial, without which there arises a real risk of injustice. In Kiely v. The Minister for Social Welfare, Henchy J. said

“The dispensation of justice, in order to achieve its ends, must be even-handed in form as well as in content. Any lawyer of experience could readily recall cases where injustice would certainly have been done if a party or a witness who had committed his evidence to writing had been allowed to stay away from the hearing, and the opposing party had been confined to controverting him simply by adducing his own evidence.”³⁷

11.3.3. Even in cases where the complainant or any other witness is a child, the ability of the accused person to challenge the allegation by cross-examination is essential. As Hamilton J. said in Donnelly v. Ireland

“The Court recognises, as did the learned trial judge, that it is an undeniable fact that children may be manipulated by malevolent adults, or in some cases, by over-zealous social workers into making false accusations of sexual abuse and that fair procedures require that there are proper means to assess the credibility of all the testimony in the prosecution case, including the testimony of child witnesses.”³⁸

11.3.4. Cross-examination, however, is not without its flaws. In proceedings where important matters are at stake, cross-examination can be expected to be “hard, detailed, challenging and bruising”³⁹. But this is a most unattractive feature of the criminal justice system. Deputy James Breen said,

“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.”

11.3.5. In the case of child witnesses, there must be a limit to how bruising the process of cross-examination can be allowed to be. In answer to a question by the Committee Chairman, Deputy Peter Power, Dr Imelda Ryan said that hostile cross-examination has the potential to cause long-term trauma to children and that it is the most traumatogenic feature of the criminal justice system. It must be said that the right to cross-examine a witness, even as it currently stands, is not without limit. While the cross-examiner must be allowed much discretion, the trial judge is entitled and expected to supervise and control the process, to ensure that the cross-examination is confined to matters relevant to the issues in the trial and is properly conducted. And theright to cross-examine can be regulated, provided that the essential purpose is served⁴⁰.

11.4. The Need for Protective Measures

11.4.1. The concern is, naturally, that, if appropriate limits are not set on the necessary right of cross-examination, the making of complaints of child sexual abuse will be discouraged. It appears to the Committee that, to some extent, that is already happening. Questioned by Deputy John Curran, Dr Imelda Ryan told the committee that

“[a]part from decisions of the DPP, many cases do not go forward because parents absolutely refuse to allow children to go before the criminal justice system to give evidence. The reason they give is that they do not want to put the child through a process which they perceive will be hostile and alien.”

11.4.2. Questioned further by Deputy Brendan Howlin, Dr Ryan said that this is “very prevalent”. If this refusal to allow children to participate in the criminal justice system was already very prevalent prior to the recent changes in the law, it becomes necessary to examine those changes to see how they may have made the situation worse and, if so, to consider how that can be remedied.

11.5. The Position prior to the decision of the Supreme Court in CC

11.5.1. The prosecution of the offences of unlawful carnal knowledge contrary to sections 1 and 2 of the Criminal Law Amendment Act, 1935 required proof of the identity of the accused, the fact of sexual intercourse, and the age of the complainant. The last of these is a straightforward matter. The other two issues, however, have always been capable of being disputed and might, in any particular case, have led to detailed and possibly uncomfortable cross-examination. That said, the issue of consent did not arise, nor did the issue whether the appearance or conduct of the complainant created the impression that she was over the prescribed age.

11.5.2. In prosecutions for the offence of sexual assault, contrary to common law, consent was not an issue in the case of a complainant under the age of 15 years⁴¹. However, the accused was entitled to raise the defence of mistake as to age, which might put the appearance and conduct of the complainant in issue. This latter point was not established until the decision of the Supreme Court in P.G.⁴², although that decision must be seen as declaratory of, rather than as effecting any change in, the law.

11.5.3. In summary, therefore, the position prior to the recent decisions of the Supreme Court was that in the case of a charge of unlawful carnal knowledge of a girl under 17 or of sexual assault of a person under the age of 15 consentwas not in issue. In the former case the appearance and conduct after complainant were similarly not in issue, although, in the latter case, they might be if the accused raised a defence of mistake as to age. In general therefore, the scope for cross-examination of a child complainant was quite limited.

11.6. The effect of the decision in CC and of the Criminal Law (Sexual Offences) Act, 2006

11.6.1. In determining the question of the consistency of section 1(1) of the Criminal Law Amendment Act, 1935 with the Constitution, the Supreme Court placed emphasis on “the central importance of a requirement for mental guilt before conviction of a serious criminal offence, and the central position of that value in a civilised system of justice.” By refusing to allow an accused to avail of a defence of mistake as to age, that section ignored that requirement, and could not, therefore, be considered by the Supreme Court to meet the “obligation imposed on the State by Article 40.3.1° of the Constitution”, which provides: “[t]he State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.

11.6.2. An accused charged with an offence of defilement, contrary to section 2 or 3 of the Criminal Law (Sexual Offences) Act, 2006, is entitled to avail of a defence of honest (mistaken) belief as to age and the court, in considering that defence, is required to have regard to the presence or absence of reasonable grounds for that belief and all other relevant circumstances. This change in the law, necessitated by the decisions of the Supreme Court, significantly expands the permitted scope of cross-examination of a complainant. Speaking at the Second Stage of the passage of the 2006 Bill, the Minister for Justice, Equality and Law Reform, Deputy Michael McDowell, said:

“Now the Supreme Court has told us that we must allow for the issue of honest mistake to be a defence in any child protection law where children are protected by reference to their age. The inevitable consequence of this is that the issues of appearance, maturity, dress, behaviour, sobriety, truthfulness and credibility are now opened up for challenge in these cases…. Young girls who are victims of sexual predators will be challenged on their clothes, makeup and sobriety, on their presence in pubs, discos and other venues for adults, on what they said, how they appeared and acted, on what they pretended or boasted about their past and about their experience. On all these issues their truthfulness and credibility will be rigorously tested by skilled lawyers acting for perpetrators and alleged perpetrators with a view to creating a reasonable doubt about the private state of knowledge or belief of the accused. That is the consequence of the Supreme Court decision.”⁴³

11.6.3. This change in the law necessarily makes the process of cross-examination significantly more difficult and traumatic for child complainants, and thereby makes the criminal justice system more intimidating for them. The Committee fears that child victims of sexual predators will therefore be less willing to engage with that system and that their parents will be less willing to allow them to do so.

11.7. Existing Provisions in Irish Law

11.7.1. The report of the Law Reform Commission on Child Sexual Abuse made extensive recommendations for the purpose of “Making It Easier for Children to Give Evidence”⁴⁴. These recommendations substantially formed the basis of Part III of the Criminal Evidence Act, 1992. That Act makes special provision in relation to the admission of evidence in the case of a prosecution for a sexual offence, an offence involving violence or the threat of violence to the person, and related offences. That special provision includes the following.

11.7.2. A number of observations may be made about these provisions. The Committee has received a substantial number of submissions recommending that provision be made for video link facilities, and also recommending the admission of video-recorded statements as evidence. There were also submissions recommending the improvement of services for complainants/witnesses in and around court facilities, including separate waiting areas and toilet facilities. Some suggested separate, purpose-built courthouses for child sex abuse cases. There was one submission that all sex abuse cases be dealt with in the Central Criminal Court. What is clear, however, is that many submissions to the Committee have called for the introduction of measures for which provision is already made in legislation.

11.7.3. It appears to the Committee that, although these useful provisions have existed in Irish law since 1992, implementation on a practical level has lagged far behind the legislative reforms. As Mr Geoffrey Shannon stated in response to a question from the Minister of State at the Department of Health and Children, Deputy Brian Lenihan,

“The legislation is good, but we must examine its resourcing and the training in and use of equipment. From a survey, our procedures compare favourably to those of other jurisdictions, but it is in resourcing and usage that difficulties arise.”

11.7.4. There are a number of reasons for this. The necessary physical infrastructure for the full implementation of these provisions is not yet in place. The Committee has been informed by the Courts Service that the necessary practical arrangements are in place in the Four Courts complex in Dublin, the Washington Street courthouse in Cork, and in the recently refurbished courthouses in Nenagh, Co. Tipperary and Longford. The Committee understands that the Courts Service is upgrading the facilities in Dublin and in the process of procuring the provision of facilities in at least one venue in each of the eight Circuit Court circuits nationwide. It must be noted that such a level of service provision might still entail some inconvenience and significant travel for child witnesses and complainants. It must also be recognised that, if full effect is to be given to the provisions for video recording of evidence on deposition, video link facilities will have to be provided in District as well as Circuit Courts.

The Committee recommends that a fully-funded and resourced programme to put in place the necessary arrangements to give practical effect to the statutory provisions for the use of videolink evidence be launched. The Committee recommends that such a programme take account, in the design and construction of all such facilities, of the needs and sensitivities of child witnesses. The Committee recommends that consideration be given to providing this service as widely as possible, and ideally nationwide, in order to give full effect to the existing legislative provisions.

11.7.5. The Committee has previously recommended that Garda stations should be equipped with facilities for video recording interviews with child witnesses. The relevant provision of the Criminal Evidence Act, 1992 has not yet been commenced⁴⁵. The Committee understands that the operation of this provision was awaiting the drawing up of a detailed protocol and guideline between the Health Service Executive, social workers and the Garda Síochána, which has not been finalised. The Committee has been informed by the Minister of State at the Department of Health and Children, Deputy Brian Lenihan, that An Garda Síochána are now undertaking a programme of training Garda interviewers and that this programme can proceed in the absence of a protocol.

The Committee recommends that the necessary arrangements be put in place, as a priority, by An Garda Síochána to enable the video-recording of statements to Gardaí by child complainants, so that such video recordings might be admissible in evidence.

11.8. Comparative and Alternative Approaches

11.8.1. Although, as stated above there was a significant degree of approval in the submissions to the Committee for the existing legislative arrangements, there were some criticisms and there remains scope for improvement. The written submission of the Ombudsman for Children recommended that the Committee look at other jurisdictions to identify best practice and recommend the adoption of best practice in this jurisdiction. During the course of oral submissions to the Committee, Ms Sophie Magennis, Head of Policy and Research at the Office of the Ombudsman for Children, referred the Committee, in particular, to the Vulnerable Witnesses (Scotland) Act, 2004. The Committee has examined this legislation, which amends the Criminal Procedure (Scotland) Act, 1995, and has also considered the English Youth Justice and Criminal Evidence Act, 1999, as well as the Criminal Evidence (Northern Ireland) Order, 1999.

11.8.2. The Committee is of the view that the existing legislative arrangements in this jurisdiction, if properly implemented, compare favourably with those elsewhere. One possible defect in the existing arrangements in this jurisdiction is that the legislation is only enabling, but not mandatory. Thiscontrasts, to some extent, with legislative provisions elsewhere, where special protective measures are automatically put in place unless there is reason to do otherwise. For example, in Victoria, Australia, the court must direct that certain protective measures be put in place unless the court is satisfied that the complainant is aware of his or her right to give evidence with the benefit of such measures, but wishes not to do so, and the court, on the application of the prosecution, directs that the special measures not be taken⁴⁶. Such a provision, coupled with a mechanism whereby the preference of the witness as to what special protective measures should be put in place can be made known to the court in advance of the trial, would, in the view of the Committee, assist potential child witnesses to give their evidence by enabling them to know in advance what measures would be taken for their protection.

The Committee recommends, subject to the necessary resources and facilities being put in place, as previously recommended by the Committee, that consideration be given to amending the Criminal Evidence Act, 1992 so as to ensure that at least some special protective measures for witnesses be automatically applied to all child complainants unless they prefer otherwise or the court, in the interests of justice, decides otherwise. Arrangements should be developed, whether by rules of court or in the form of a practice adopted by the prosecution, to elicit the views of the complainant on this issue and organise the necessary measures well in advance of the trial.

11.8.3. One additional special protective measure for child witnesses provided for in other jurisdictions is the use of a screen to enable the complainant to give evidence out of sight of the accused. At first glance such a measure may seem unnecessary when the law provides for evidence being given by live television link. There will, however, be cases where the complainant would prefer to give evidence in court in the presence of the jury, but may be reluctant to do so if this means giving evidence in sight of the accused. Although, as stated, such a measure is not provided for in the Criminal Evidence Act, 1992, Irish law does provide, in strictly limited circumstances, for “the giving of evidence in the hearing but not the sight of any person”⁴⁷. Such a measure would be a useful addition to the existing range of options open to child complainants.

The Committee recommends that consideration be given to amending the Criminal Evidence Act, 1992 to introduce the possibility of giving evidence behind a screen or with the benefit of another mechanism to enable witnesses entitled to the protections of Part III of that Act to give evidence in the hearing but not the sight of the accused.

The Committee recommends that consideration be given to requiring the removal of wigs and gowns by counsel in the event of any child victim or witness giving evidence, regardless of whether or not they do so by live television link.

11.8.4. As stated above, the general age limit applied by Part III of the Criminal Evidence Act, 1992 is 17 years, although this is reduced to 14 years for the purposes of the provisions relating to the admission in evidence of a video-recorded statement. The former age limit compares favourably with those applying in neighbouring jurisdictions. The latter, however, is below the norm. As, in law, a person remains a child until they attain the age of 18, it appears to the Committee to be more logical to apply a single age limit of 18 years in respect of all special protective measures for child witnesses.

The Committee recommends that consideration be given to amending Part III of the Criminal Evidence Act, 1992 by applying a single age limit of 18 years for all special protective measures for child witnesses.

11.9. Measures relating to Cross-Examination

11.9.1. In light of the special needs of child witnesses, in particular child complainants, and of the concerns expressed in relation to cross-examination of children, it is natural to expect that, where other arrangements are made in this regard in other jurisdictions, they would be of particular interest to the Committee. Without doubt, this area was of particular concern to many of those who made submissions to the committee. A number of submissions recommended the prohibition of personal cross-examination by the accused (to be effected by removing the right of an accused in such cases to represent himself). It was also suggested that the scope of cross-examination be limited in different ways, in particular in a number of cases by preventing cross-examination as to previous sexual history. It was also suggested that good-practice guidelines for cross-examination be introduced. There was one suggestion that the Criminal Law (Sexual Offences) Act, 2006 be reviewed and that safeguards be added to avoid inappropriate cross-examination.

11.9.2. The prohibition on personal cross-examination either of a child complainant or a witness to the offence who is a child by an accused in cases of alleged sexual offences has now been enacted in a number of common law jurisdictions. The relevant legislative provisions tend to follow a common scheme⁴⁸. The prohibition specifies the witnesses, including child witnesses, and the offences to which it relates. Provision is made for informing the accused of the prohibition so as to enable him to make arrangements to have the cross-examination conducted by counsel of his choice. Where the accused fails or refuses to instruct counsel for this purpose, provision is madefor the appointment of counsel by the court and, if the accused fails or refuses to instruct the court-appointed counsel, the latter is required to act in the best interests of the accused. The court is required to explain these provisions to the jury and to warn them of the general applicability of the rules and that no inference adverse to the accused should be drawn from the conduct of cross-examination in this manner. While such a provision would be a significant departure from existing practice in this jurisdiction, it is not, in effect, different from the use of an intermediary, as provided for in section 14 of the Criminal Evidence Act 1992. Commenting on its proposal which led to the enactment of that section, the Law Reform Commission said:

“While we have naturally had regard to the constitutional dimensions of such a proposal, we are satisfied that the guarantees of a trial ‘in due course of law’ do not necessarily preclude a restriction of some nature on an accused person’s general right to cross-examine his accuser without an intermediary.”⁴⁹

11.9.3. The Law Reform Commission did not recommend the use of an intermediary in all cases where the giving of evidence by live television link was authorised. The Committee considers, however, that the arguments in favour of a restriction on personal cross-examination of child complainants and witnesses by an accused have greater force and more general application. By virtue of their age alone, and in many cases also by virtue of their relationship with the accused, child witnesses and, in particular, child complainants, will be especially susceptible to intimidation, even if unintentional, should they be cross-examined personally by the complainant.

The Committee recommends that personal cross-examination of child complainants and of child witnesses to the offence by the accused be prohibited in the case of a sexual offence against a child, and that the necessary ancillary provisions be made in legislation and/or rules of court along the lines of those made in other jurisdictions.

11.9.4. As far as the conduct of cross-examination in general is concerned, although submissions to the committee argued for the scope of cross-examination to be limited, with one exception, specific limits were not suggested. The one specific suggestion, made by both the Dublin Rape Crisis Centre and the Ombudsman for Children, was that the sexual history of the complainant should be inadmissible. The former argued that there should be a presumption to this effect and the latter argued for a prohibition. At present, Irish law prohibits the asking of any question and the adducing of any evidence on this issue by or on behalf of the accused without the leave of the court. The judge shall not give leave except on an application made to them in the absence of the jury, and may only give leave if he is satisfied that it would be unfair to the accused to refuse to allow the question or admit the evidence. The test of fairness is whether the jury might convict if thequestion were not asked or the evidence not adduced, and whether the effect of allowing the evidence for question might reasonably be that they would not convict.⁵⁰

11.9.5. The Committee considers that the existing provisions of Irish law make it unlikely that evidence concerning the sexual history of a child could be admitted, or that a question on that subject could be permitted in cross-examination on behalf of the accused. Furthermore, it appears to the Committee that the test for admitting such evidence or permitting such a question is set at the right level, i.e. whether allowing such a course would be reasonably likely to lead a jury, which would otherwise convict, to acquit. The Committee does not therefore recommend any change of the law in this regard.

11.9.6. As for the regulation or control, in more general terms, of cross-examination, the Committee notes that “cross-examination by counsel is expected to be conducted with restraint and appropriate courtesy and consideration for the witness” and that “a trial judge exercise as a general supervisory jurisdiction in relation to the cross-examination of witnesses and may disallow questions which he or she considers to be improper”⁵¹. The Irish Centre for Human Rights, NUIG, said in its submission that

“Children, like defendants, have a right to privacy under human rights legal norms. In the use of children as witnesses in sex offence trials, states should recognise limits to the types of evidence that may be introduced at trial, as well as the depth of questioning allowed during cross-examination, e.g. history of sexual activity, clothing, etc. As a central pillar of international human rights law, these fundamental principles should play a role in any consideration of statutory rape laws.”

“experience [of cross-examination] could be highly traumatising for a child and needs to be handled in the most sensitive of ways.”

11.9.8. In Victoria, Australia, questions or inquiries which the court regards as scandalous or indecent are prohibited, although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed⁵². The law also provides that the court shall forbid or disallow any question which appears to it to be intended to insult or annoy, or which though proper in itself appears to the court needlessly offensive in form⁵³.

11.9.9. The Committee accepts that the special position of child witnesses in cases of alleged sexual offences, and in particular child complainants, may necessitate an unusually vigilant approach from the trial judge, to ensure that the legitimate means of cross-examination does not become a mechanism for oppressing the witness. The Committee has no firm view as to whether such vigilance needs to be supplemented by statutory provisions or codes of conduct.

The Committee recommends further study of appropriate ways of ensuring that cross-examination of child witnesses and complainants is properly and fairly conducted.

11.9.10. Whatever rules are made for the conduct of cross-examination, numerous submissions to the Committee have suggested that specialist training is required for lawyers and judges who are involved in cases of child sexual abuse. Naturally, such specialist training could and should include instruction on good practice guidelines for cross-examination.

The Committee recommends that all lawyers involved in the prosecution or defence of cases of child sexual abuse or sexual offences against children, and all judges hearing such cases, should be required to undergo a specialist programme of training to enable them to perform their respective functions in the manner least traumatic for a child complainants and witnesses.

The Committee recommends that consideration be given to the development of an on-going training programme for all lawyers involved in the prosecution or defence of cases of child sexual abuse or sexual offences against children, and all judges hearing such cases, to take account of developments in knowledge relating to child development and children’s responses to the criminal justice system.

11.10. Other Practical Measures

11.10.1. The Committee received submissions recommending various alternative means of ensuring that a child witness’s or complainant’s participation in the criminal justice system should be a source of as little trauma as possible. These submissions concerned measures to be taken to deal with the vulnerability of complainants, such as an accompaniment service, and the need for improved provision of information concerning the trial process and the rights of complainants. Some submissions suggested the appointment of an advocate/guardian for child witnesses, more suggested separate legal advice and representation for complainants, including, in one case, the granting of legal advice to a complainant before the initial statement is made. An alternative submission was that there be some means to protect the good name of a complainant in the course of/following trial.

11.10.2. Clearly, because the criminal justice system is alien and may appear hostile to children, it is essential that children be provided with as much information as possible to enable them to understand what will happen in court and why things happen in that way. Some submissions recommended an accompaniment service for complainants, others the appointment of an advocate or guardian for child witnesses. The Committee was particularly impressed, however, by the proposal developed by St Louise’s Unit, Our Lady’s Children’s Hospital Crumlin and St Clare’s Unit, The Children’s University Hospital, Temple Street for the development of a Child Witness Support Service. The Committee also notes the assistance provided by the Office of the Chief Prosecution Solicitor in this regard. Such a service would involve preparation for court and court accompaniment undertaken by a Court Witness Supporter, an independent person not involved with the child or the case, whose focus would be solely on the child’s welfare throughout the legal process. While such a person could not discuss the substance of the case with the child, they would provide education on the roles of the various parties, including the child witness, assists the child and understanding how to answer questions in court, identify the child’s worries and develop strategies for managing them. The Court Witness Supporter would also co-ordinate arrangements for the child during the trial.

The Committee recommends the development, as an urgent priority, of a Child Witness Support Service along the lines of the proposal developed by St Louise’s Unit, Our Lady’s Children’s Hospital Crumlin and St Clare’s Unit, The Children’s University Hospital, Temple Street. The Committee recommends that the research necessary to design and implement such a service be carried out as soon as possible and that whatever resources are necessary be made available.

11.10.3. In addition to the service that might be provided by a Child Witness Support Service, a number of submissions to the Committee indicated the need for improved provision of information to complainants as the prosecution proceeds, in particular, by way of consultation with prosecuting counsel or solicitor. The Committee notes that the Guidelines for Prosecutors issued by the Office of the Director of Public Prosecutions deal with these issues. Those Guidelines provide that the solicitor handling a criminal prosecution is responsible for facilitating, at the victim’s request, a pre-trial meeting between the victim and the solicitor and counsel dealing with the case to discuss the case⁵⁴. Furthermore, “[w]hile the victim is entitled to have his or her views heard and considered, the victim is not entitled to give instructions to the solicitor or counsel for the prosecution concerning the conduct of thetrial”⁵⁵. Those Guidelines also noted that the Garda Síochána have given a number of commitments to victims of crime to assist them in understanding the criminal justice process and to keep them informed of relevant developments at all stages. The Committee is of the view that the combination of a Child Witness Support Service and the full implementation of the Guidelines for Prosecutors would substantially satisfy the concerns expressed in submissions received by the Committee on these issues.

The Committee recommends further study by the Office of the Director of Public Prosecutions, in conjunction with the Commissioner of An Garda Síochána, of the practical implementation of the measures provided for in chapter 12 of the Guidelines for Prosecutors. The Committee also recommends the development of formal protocols, where necessary, to ensure the full implementation of those measures. The Committee also recommends that whatever resources are required to enable the full implementation of those measures, and any such protocols, be provided.

11.10.4. Finally then, the Committee turns its attention to the question of the granting of full legal representation to victims of crime, and specifically child victims. In its submission to the Committee, the ISPCC said

“The obvious fear and anxiety of the victim/witness is increased by not having their own separate legal counsel to interpret the proceedings for them and to ensure that their evidence is as clear and effective as possible. Such an independent legal representative would also have the knowledge and standing to raise clear objections to the introduction of inadmissible evidence or to the inappropriate treatment of the victim/witness.”

11.10.5. A different approach was adopted by One in Four, which did not seek for legal representation for victims of sexual crime, but which recommended that

“Where a victim’s good name or character is called into question during a criminal trial, the Court should act to repair any damage to the victim’s good name. If the victim believes that the Court has failed to do so they should be granted legal advice to seek such a remedy from the court.”

11.5.6. In essence, there are three distinct issues here. First, there is the need to keep victims fully informed of developments in the prosecution, and the need to ensure that they understand what is happening at each stage. As stated above, the Committee believes that this issue can be adequately dealt with by the development of a Child Witness Support Service and the full implementation of the Guidelines for Prosecutors.

11.10.7. The second issue is the need to ensure that the conduct of the criminal trial itself is not unnecessarily adverse to the interests of the victim, who is entitled to special protection. The Committee believes that the recommendations it has made in relation to improved special measures of protection for child witnesses, and in relation to the provision of specialist training to Gardaí, lawyers and judges, should be sufficient to deal with this issue.

11.10.8. The third issue concerns the protection and vindication of the good name of the victim. During the course of a criminal trial, particularly of a sexual offence, questions may be asked, evidence adduced, and submissions made on behalf of the accused that are adverse to the interests of the victim. The conviction of the accused will in most cases be sufficient to vindicate the victim. It may not be understood, however, that the acquittal of the accused is not in itself an endorsement of anything that was said adverse to the interests of the victim. On the contrary, an acquittal may leave the victim with a lingering sense, not just of defeat, but of having been discredited. Given the standard of proof beyond reasonable doubt in a criminal trial, this sense would very often not be justified. The submissions received by the Committee do not provide a satisfactory solution to this difficulty, and the Committee is not convinced that the appointment of legal representation for the victim would provide such a solution.

The Committee recommends further study of victim responses to the criminal justice system and of the means that might be available to alleviate any unnecessary hardship caused to victims by the operation of the criminal trial process.

11.10.9. Numerous submissions received by the Committee argued that cases involving allegations of child sexual abuse should be heard and disposed of as expeditiously as possible. The Committee accepts, without reservation, this submission. Naturally, given the seriousness of the subject matter and the importance of child protection, it would be desirable that such cases be heard promptly. Furthermore, the difficulty that children, especially young children, may have in recollecting matters that go back many years necessitates an early hearing.

The Committee recommends that the arrangements for the listing and hearing of cases involving allegations of child sexual abuse, whether criminal trials or judicial review applications, be reviewed so as to ensure that such cases receive as prompt a hearing as possible, consistent with the rights of the accused.

Part V

The Implications of the Decision of the Supreme Court in CC and the question of Constitutional Amendment

12.The Decision of the Supreme Court in CC

12.1. The Effect of the Decision of the Supreme Court in CC

12.1.1. The Supreme Court delivered its judgment in the CC case on the issue of the consistency of section 1(1) of the Criminal Law Amendment Act, 1935 with the Constitution on the 23rd May, 2006. There was a single judgment of Hardiman J. on behalf of the entire Court. The effect of that decision has been discussed earlier in this report and it is not intended at this stage to repeat that material in detail.

12.1.2. Suffice it to say that the Supreme Court, having examined in detail the relevant legislative provisions, properly interpreted in accordance with its previous decision on that issue, expressed its views on the legal effect of those provisions in no uncertain terms. The Court said that it

“cannot regard a provision which criminalises and exposes to a maximum sentence of life imprisonment a person without mental guilt as respecting the liberty or the dignity of the individual or as meeting the obligation imposed on the State by Article 40.3.1° of the Constitution”

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.

12.1.4. The Court considered the alternative view, that such a provision is necessary to provide a deterrent to engaging in sexual intercourse with minors. The Court concluded that this end could be achieved by legitimate means, including those involving the use of the criminal law, without the manifest injustice of permitting conviction of a serious criminal offence without any requirement of mental or moral guilt. The Court therefore declared section 1(1) of the 1935 Act to be inconsistent with the Constitution.

12.2. Implications of the Decision

12.2.1. The Supreme Court declined the invitation from counsel for the State to confine its declaration to saying that the section was inconsistent with the Constitution only to the extent that it precluded an accused from advancing a defence of reasonable mistake. In the Court’s view, that would have involved it in a process akin to legislation. The Court concluded that “more than one form of statutory rape provision … would pass constitutionalmuster, and it does not appear to be appropriate for the Court, as opposed to the legislature, to choose between them”.

12.2.2. By enacting the Criminal Law (Sexual Offences) Act, 2006, the Oireachtas, acting under considerable pressure of time and with a real sense of urgency, made its choice as to the appropriate form of legislative provision for “statutory rape”. The provisions enacted were considerably wider in effect than the previous legislative scheme. It must also be said that the choice made by the Oireachtas was made in the knowledge that the pressure of time may have prevented an ideal solution emerging. For that reason, this Committee was established to further review the issues arising.

12.2.3. The 2006 Act repeals sections 1(2) and 2 of the Criminal Law Amendment Act, 1935, as well as sections 3 and 4 of the Criminal Law (Sexual Offences) Act, 1993. It prohibits any “sexual act” (i.e. sexual intercourse, buggery between persons who are not married to each other, an act described in section 4 of the Criminal Law (Rape) (Amendment) Act, 1990, or an aggravated sexual assault) and any attempt to engage in a “sexual act” with a child under the age of 17 years. If the child is under 15 years, the offence is punishable by life imprisonment. If the child is 15 or 16 years of age, the offence is punishable by 5 years imprisonment or two years in the case of an attempt, but in either case the penalty increases (to 10 years and 4 years respectively) if the offender is a person in authority. Similarly, the penalties are increased for a second or subsequent conviction. In no case will consent be a defence.

12.2.4. However, it will be a defence for the accused to prove that he or she honestly believed that the child had attained the relevant age and, in considering whether the accused had that honest belief, the court shall have regard to the presence or absence of reasonable grounds for so believing and all other relevant circumstances. In this way, the 2006 Act directly addresses the issue of concern to the Supreme Court in the CC case.

12.2.5. The Committee, having examined this legislative scheme and considered the issues arising from the decision of the Supreme Court in CC, in particular with the assistance of the written submissions to the Committee and the oral submissions of a number of experts, has made certain proposals for reform, as outlined elsewhere in this report. Naturally, these recommendations have involved decisions on issues that are close to the boundaries of what is constitutionally permissible and consistent with international human rights norms.

13.The Constitutional Implications of Proposals for Reform

13.1. The Committee’s Recommendations

13.1.1. On the issue of mental guilt, which obviously was at the heart of the decision of the Supreme Court in CC, the Committee has recommended that the defence of mistake as to age should not be available to a person accused of an offence of sexual activity with a child below the age of 16 years. The Committee has also recommended that the defence of mistake as to age should not be available to persons who occupy positions of authority over a child below the age of 18 years.

13.1.2. In the submissions received by the Committee, there were few express calls for the effect of the decision of the Supreme Court to be reversed. There were, however, calls for a closer examination of the possibility of implementing an objective standard of knowledge in relation to the question of mistake as to age, and there was some criticism of the effect of that decision in that it exposed children to the possibility of cross-examination. The Committee, having examined these issues has, as outlined above, recommended that a standard of absolute protection for children be established. In making these recommendations, the Committee was conscious that, if the law were to be amended as recommended, the resulting legislative provisions would be liable to constitutional challenge.

The Committee recommends the amendment of the Constitution to permit the Oireachtas to enact laws providing for absolute criminal liability in respect of sexual activity with children.

13.1.3. Lest such a proposal seem too radical, or capable of causing injustice in any individual cases, the Committee considers it desirable that, before the People are called upon to express their approval or disapproval of such an amendment of the Constitution, the legislation that it is proposed to enact on foot of the authority granted by such an amendment should be drafted and available for examination.

The Committee recommends that the legislation intended to be enacted on foot of the authority of the proposed amendment of the Constitution, should be drafted and available for examination by the People before the referendum on the proposed amendment.

14.The Welfare of the Child and the Criminal Justice System

14.1. The Rights of the Child and the Constitution of Ireland

14.1.1. A very substantial number of the written submissions received by the Committee addressed themselves to the question of the adequacy of the standard of protection for children contained in the Constitution. There were numerous calls for Constitutional recognition to be given to the rights of the child. Indeed, this was one of the most common of all submissions received by the Committee. There were a number of suggestions as to the text for such a statement of rights, based on international or comparative models or previous reviews or reports in this jurisdiction.

14.1.2. Particular reference was made in a substantial number of submissions to the UN Convention on the Rights of the Child, and it was frequently argued that the Convention, which was ratified by Ireland on the 21^st September 1992, should be fully implemented in Irish law. It must be said, however, that the stated justification for this particular course of action frequently related to issues arising outside the orders of reference of the Committee. The Committee, in its work, has been focused on a very specific aspect of the range of issues that arise in a child protection context, i.e. making proper provision in the criminal law for offences of sexual abuse and exploitation against children.

14.1.3. The Committee is conscious that the wider range of child protection issues have previously been examined in other contexts, e.g. The Oireachtas All-Party Committee on the Constitution and the Constitution Review Group. The Committee considers that, given the narrower focus of its work, it is not in a position to express any view as to the form of wording or structure that might be desirable in any amendment to the Constitution designed to give greater effect to the rights of children. The Committee therefore confines itself to professing itself to be favourably inclined to an amendment of the Constitution, so as to include an express statement of children’s rights and to raise the standard of child protection, and to drawing attention to two aspects of this issue that were highlighted by its work.

14.1.4. The first of those relates to the suggestion in some of the written submissions received by the Committee that the presence of a children’s rights clause in the Constitution would have made a significant difference to the decision of the Supreme Court in the CC case. This is not necessarily so. As Geoffrey Shannon remarked, in his written submission to the Committee,

“The perception that the outcome of this case was unsatisfactory from a child protection perspective seems to be underpinned by a desire to ensure that the courts adequately reflect the particular importance of ensuring that children are protected from abuse.

The Court in CC came to its decision having already acknowledged the importance of the public policy objective behind section 1(1). Hardiman J. expressly adverted to the factthat the protection of young girls was ‘of course a legitimate end to be pursued by appropriate means’. The interest of the State in child protection was thus already a factor in the Court’s conclusion in this case.”

14.1.5. The second is simply to draw attention to the need to carefully consider the form and intent of any amendment to the Constitution. A number of the submissions to the Committee have suggested that such an amendment should provide that the interests or welfare of the child should always be paramount. While recognising the desirability of including an express statement of the rights of the child in the Constitution, the Committee would be cautious about recommending a statement in that form. One obvious difficulty is that such a provision could interfere with the prosecution of children, even in the case of very serious offences. At the very least, as argued by Mr. Shannon in his written submission to the Committee,

“The acceptance by the courts of children’s rights as a supra-constitutional value would, however, have profound implications for a range of other issues. The existing law on deportation and the provision of education facilities would have to be revisited. Issues would arise in respect of the sentencing and detention of juvenile criminals. A constitutional requirement that the courts always treat the rights of the child as automatically pre-eminent would have a host of unforeseen effects.”

Part VI

Other Issues and Recommendations

15.Sex Offenders Registration and Supervision

15.1. The Sex Offenders “Register”

15.1.1. The notification requirement imposed by the Sex Offenders Act, 2001, enacted on the 30^th June, 2001, was one of a number of novel arrangements introduced into Irish criminal law by that Act. The Act also make provision for the making of a sex offender order (a form of restraining order), post-release supervision of sex offenders, and a requirement, in certain circumstances, to notify an employer of a conviction for a sexual offence.

15.1.2. Part 2 of the Act deals with what is commonly referred to as the sex offenders register, although that is a misnomer. It is an automatic consequence of a conviction for a sexual offence (listed in the Schedule to the Act) that a person becomes subject to the requirements of this Part of the Act. The period of time a person is subject to those requirements varies from 5 years (in the case, for example, of a suspended sentence) or an indefinite period (in the case of sentence of more than 2 years). On conviction, the court issues a certificate to the Gardaí, the offender and, if appropriate, the relevant prison governor or probation service, and there is provision for the re-issue of a certificate if necessary. A person coming to Ireland who has a similar notification obligation in another jurisdiction is subject to the notification obligation in this jurisdiction.

15.1.3. The obligation on a sex offender is to notify to the Gardaí the offender’s name and home address, and any change in either, as well as any address within the State where he has stayed (during the period of the notification obligation) for a period of 7 days. Similarly, a person with a notification obligation must notify the Gardaí when leaving the jurisdiction for a period of 7 days, and of his return from outside the State after such a period. Notification can be in person at a Garda Divisional or District Headquarters, by post or by any other way that may be prescribed. To date, no other way has been prescribed.

15.1.4. Nowhere in the legislation is the expression “register” used. It was intended that the obligation to notify the Gardaí of names and addresses would result in a “mark” of some type appearing beside the offender’s name on a computerised criminal record. This would have been available to members of the An Garda Síochána. However, because the necessary software could not be used by the Gardaí, it was decided to proceed instead with a manual record.

15.1.5. The penalty for failure to notify the Gardaí, or to give the Gardaí false or misleading information, is a maximum fine of €1,905 and/or 12 months imprisonment. The Criminal Law (Trafficking and Sexual Offences) Bill2006 will increase the maximum fine on summary conviction to €3,000 and also provides for conviction on indictment with a maximum fine of €10,000 and/or a maximum prison sentence of 5 years, thus making it an arrestable offence.

15.1.6. The Committee has been informed of the arrangements that are currently in place for the management and dissemination of information notified to the Gardaí under the Sex Offenders Act, 2001, through the Garda Sexual Assault Unit in Harcourt Square and the Garda Central Vetting Unit in Thurles, Co Tipperary. The Committee is concerned that the absence of a system of computerised recording of this information presents an obstacle to its proper management.

The Committee recommends that the management and dissemination of information received in accordance with the Sex Offenders Act, 2001 be reviewed and that a system for computerised storage and dissemination, on an appropriate and limited basis, of that information be developed as soon as possible.

15.1.7. The Committee is also conscious that, in an age of freedom of movement across borders, there is a need to ensure that persons convicted of sex offences abroad, who move to this jurisdiction, may pose as much of a threat to children here as those convicted in the State. Similarly, those convicted here of such offences may pose a threat to children abroad. In those circumstances, it is desirable that there be co-operation between the relevant authorities in the State and in other jurisdictions, especially our near neighbours. The Committee welcomes the signature of a Memorandum of Understanding between the Government and the UK government on Information Sharing Arrangements Relating to Sex Offenders.

The Committee recommends that the existing legislative scheme concerning the notification requirement for sex offenders be reviewed, to ensure that adequate provision is made in respect of persons convicted of offences against children in other jurisdictions, and to enable any appropriate information-sharing arrangements to be put in place with authorities in other jurisdictions.

15.2. Access to the Information contained in the Sex Offenders “Register”

15.2.1. The attention of the Committee has been drawn to developments in other jurisdictions relating to the issue of access to the information contained in the sex offenders “register”, such as the use of the internet to develop a Child Exploitation and Online Protection Centre. The fact that a person has been convicted of a serious sexual offence that gives rise to the notification obligation contained in the Sex Offenders Act, 2001 is a very grave matter and one which, in appropriate circumstances, may need to be notified to certain interested parties. In particular, any person who wishes to be employed in circumstances where they may be in close proximity, andperhaps have unsupervised access, to children must expect that their potential employer will be entitled to know whether they have been convicted of such an offence. The Garda Central Vetting Unit currently operates a system for providing such a service.

15.2.2. However, there may be circumstances not falling within the context of an employment relationship, where there would be unsupervised access to children, and where there may be a legitimate need to have access to such information. Where this is necessary for the protection of children, this need should be satisfied.

15.2.3. On the other hand, making widely available the information contained in the sex offenders “register” might be undesirable for other reasons. It is an essential principle of any civilised and democratic society that the determination of guilt and the imposition of sanctions are matters for the proper authorities of the State, and not matters for individual action by aggrieved citizens or their friends or associates. There are, in short, competing interests in the debate concerning access to the information contained in the sex offenders “register”.

15.2.4. The Committee considers that this is an issue of importance, which merits further study. On the basis of the written and oral submissions made to the Committee, it is not in a position to make any specific recommendation as to how the balance should be struck between these competing interests.

15.2.5. One possible solution is to adopt an approach to the issue modelled on the law relating to freedom of information. Such a model would operate on the assumption that individuals are entitled to apply for access to information where they have a genuine and legitimate interest in such access, but also on the assumption that the individuals to whom the information relates have certain rights, including privacy rights, that may inhibit or prevent disclosure. The mechanism for reconciling any disputes that might arise between these interests would be an independent statutory body operating within the confines of a legislative scheme, which sets out the applicable principles, but leaves the application of those principles in any specific case to the discretion of the independent statutory body.

The Committee recommends further study of the circumstances in which, and the persons to whom, information contained in the sex offenders “register” might be released, the development of proposals to put in place the necessary statutory and institutional framework, and the provision of resources for their implementation.

15.3. Vetting

15.3.1. As previously stated, there exists a system for vetting applicants for employment and other persons through the offices of the Garda Central Vetting Unit. In the submissions made to the Committee, and its analysis of those submissions, two areas of concern emerge. The first is that the system operates on a voluntary basis, which, of course, will usually not present a difficulty in the employment context, and the second is that the system is designed to identify risk by reference to previous criminal convictions. Naturally, there may be a basis for concern about the suitability of any particular person for employment or other positions involving unsupervised access to children, even in the absence of a previous conviction. Such a concern may become apparent from a consideration of what is sometimes referred to as “soft information”, i.e. information arising from previous investigations or inquiries or the experiences of others who have dealt with the individual in question, which gives rise to concern, but which was not or would not be a sufficient evidential basis for prosecution and conviction.

15.3.2. Both of these issues may rightly be seen as symptoms of one problem. That problem is the perception that the individual’s legitimate right to the protection of his privacy and good name may, in the case of a small number of unscrupulous and dangerous individuals, prevent other persons or organisations from discovering the risk that those individuals present to children.

15.3.3. The Committee notes that efforts have been made in other jurisdictions to incorporate soft information into the vetting process, and considers it desirable that similar efforts should be made in this jurisdiction. The Committee does not consider that the constitutional protection of the good name of the citizen is an insurmountable obstacle to achieving this aim. In other contexts, e.g. the regulation of medical practitioners, the State has established procedures for assessing the ability of individuals to practise certain occupations which require particular characteristics or competence. The operation of such procedures can lead to findings adverse to a particular individual and to the publication of those findings to the detriment of that individual and his good name. The Constitution does not prohibit this; what it requires is that the good name of the individual be protected from unjust attack and, in the case of injustice done, that the State, by its laws, should vindicate the good name of the citizen⁵⁶. There is no injustice in the State’s putting in place the means to assess the suitability of individuals to engage in occupations or become involved in situations where they may have unsupervised access to children, and providing the means for publishing that assessment.

15.3.4. The Committee notes the implementation in Northern Ireland of the Protection of Children and Vulnerable Adults system, which is designed to enable a list to be maintained of persons who are unsuitable for working with children, and to assess such suitability by reference to information other thancriminal convictions, including information coming to light from a person’s previous employment history.

The Committee recommends further study of the means by which a comprehensive vetting system incorporating “soft information” might be established, the development of proposals to put in place the necessary statutory and institutional framework, and the provision of resources for their implementation.

The Committee recommends that consideration be given to establishing a statutory framework including provision for:

-a register of persons unsuitable for employment with children, based on “soft” as well as “hard” information, especially information arising out of previous employment

-an obligation on child-care organisations to vet employees and volunteers

-an obligation to report dismissal or other disciplinary proceedings related to allegations of harming a child or inappropriate behaviour towards a child

-disqualification from working with children of persons found unsuitable for such work, and

-an offence of working with children while disqualified from so doing.

15.4. Treatment of Sex Offenders

15.4.1. The question of post-conviction assessment and treatment of sex offenders is one which featured in a number of submissions received by the Committee, including those of the Rape Crisis Network Ireland, and the ISPCC. The desirability of having in place comprehensive arrangements for such assessment and treatment is without question. In his written submission to the Committee, Dr Harry Kennedy, Consultant Forensic Psychiatrist, told the Committee that studies of research findings indicated that prior to, and even into, the 1980s, treatments did not reduce recidivism among sex offenders. Since that time, however, a new approach to “treatment” (cognitive-behavioural treatment for adults, family-systemic treatment for adolescents) has produced better results. “Treatment”, however, is not always the right term. As Dr Kennedy told the Committee during his oral presentation, in response to a question from Deputy Brendan Howlin,

“Even in relation to the addictions that most people would see as a disorder, it is more useful and more successful to think of the approaches to prevent relapse in that area as being almost more like coaching rather than treating.

Medicalising a problem can have a bad effect on the concept of responsibility. People will find that very often if strong arguments have been made that their responsibility was impaired in some way and they were not responsible for what they did, this is very anti-therapeutic. The goal of what are termed‘treatments’ is to encourage somebody to recognise, develop and strengthen their sense of responsibility.”

15.4.2. There are a number of ways in which medical or psychiatric expertise can be availed of for the purpose of reducing recidivism. In the first place, expert risk assessment can assist the sentencing judge in determining the appropriate sentence and the requirements for post-release supervision under the Sex Offenders Act, 2001. Secondly, there is the role for treatment, however described, of sex offenders in custody and following their release. Dr Kennedy told the Committee that there is evidence that treating large numbers of people in prison reduces the recidivism rate, compared to similar people who do not receive treatment. It must be noted, however, that he also told the Committee that such treatment

“is only effective if one follows on with long-term supervision and support after release.”

“All the evidence is that obligatory treatment is not terribly helpful. Motivating people by offering them rewards for engaging in treatment is useful.”

15.4.4. The Committee is convinced of the need to put in place structured programmes for the assessment and treatment of sex offenders at all stages of the criminal process, beginning upon conviction and prior to sentence and continuing, through the period of imprisonment, if any, into the period following release. Such programmes may need to be supported by rules relating to the earning or a loss of remission and/or the prohibition of temporary release.

The Committee recommends the development of a comprehensive and fully-funded programme for the assessment and treatment of convicted sex offenders, beginning upon conviction and continuing for as long as necessary through any period of imprisonment and after release.

The Committee recommends a review of the rules governing remission of sentence and temporary release in the case of convicted sex offenders so that the same may be operated in such a way as to provide incentives for undertaking and completing treatment programmes.

The Committee recommends a review of the operation of the post-release supervision regime under the Sex Offenders Act, 2001, to ensure participation in treatment programmes for as long as necessary. In that regard the Committee recommends that consideration be given to amending the 2001 Act to enable the imposition of a requirement to participate in such programmes for a period longer than the maximum sentence that may be imposed for the offence in appropriate cases.

16.Education and Public Awareness

16.1.1. The Committee has recommended at different stages throughout its report the implementation of a strategy for increasing public awareness of issues relating to child sexual abuse. Such a strategy would reflect the fact that the problem of child sexual abuse is one which requires a response that is broader and more sophisticated than a purely criminal justice response. There would be a number of elements to such a strategy, including increasing awareness of the age of consent and increasing awareness of the problem of child sexual abuse and of the resources available to help victims and their families. The means by which such a strategy might be implemented would include relationship and sex education programmes in schools and the national media campaign.

16.1.2. One of the striking features of the consultation engaged in by the Office of the Minister for Children with teenagers on issues related to the age of consent for sexual activity was the criticism of existing sex education programmes. The recommendations emerging from that consultation process included a recommendation that sex education be mandatory in schools, that it should be covered every year in school, and that it should be delivered by a specialist person, independent of regular staff teachers. It is also clear that the young people consulted felt that there was a need for a much more information on the avoidance and treatment of STIs.

16.1.3. The Committee is aware that a public awareness campaign on issues related to child sexual abuse is being developed at present by the Health Services Executive, and would hope that that campaign would be used as a means of dealing with the public awareness issues identified by the Committee in its report.

The Committee recommends that a comprehensive programme designed to raise public awareness of all aspects of the issue of child sexual abuse, including the age of consent, health issues, and available resources should be developed and implemented through schools, youth organisations and the national media.

The Committee recommends that the content and delivery of existing sex education programmes in schools should be reviewed, to ensure that the needs of children are met.

Table of Recommendations of the Committee

17.1 Substantive Criminal Law

17.2 The Age of Consent

17.3 Criminal Justice Procedures

17.4 The Implications of the Decision of the Supreme Court in CC and the Question of Constitutional Amendment

17.5 Other Issues and Recommendations

Appendix A. Orders of Reference of the Joint Committee

Dáíl Éireann on 6^th July 2006 ordered:

Seanad Éireann on 6^th July 2006 ordered:

Appendix B. Orders of Both Houses

Appendix C. Submissions and Correspondence

C.1 Submissions received by the Committee

C.2 Correspondence received by the Committee

Appendix D. Meetings of the Joint Committee

Ms. Sophie Magennis, Head of Policy and Research, Office of the Ombudsman for Children.

Mr. Bernard McDonald, Head of Participation, Office of the Ombudsman for Children.

Detective Chief Superintendent Noel White, National Bureau of Criminal Investigations.

Detective Superintendent John Fitzpatrick, National Bureau of Criminal Investigations.

Dr. Imelda Ryan, Consultant Child & Adolescent Psychiatrist, Director St. Louise’s Child Sexual Abuse Assessment &Treatment Unit, Our Lady’s Hospital For Sick Children, Dublin.

Table of Contents

CHAIRMAN’S FOREWORD

Part IIntroduction

1. Establishment and Terms of Reference of the Committee

2.Committee Membership

3.The Work of the Committee

Part IISubstantive Criminal Law

4.Scope of the Prohibition on Sexual Acts with Children

4.1. Summary of Pre-existing Offences

4.2. Significance of the Decision in CC

4.3. The Effect of the Criminal Law (Sexual Offences) Act, 2006

4.4. Analysis of the 2006 Act

4.5. The Context of Sexual Offences

4.6. The Scope of the Present Sexual Offences against Children

4.7. The Language of the Law

4.8. Summary of Recommendations relating to Offences

5.The Mental Standard of Guilt and the Available Defences

5.1. The Basis of Criminal Responsibility

5.2. Proof of Guilt of Unlawful Carnal Knowledge

5.3. The Decision in CC on the Constitutional Issue

5.4. The Criminal Law (Sexual Offences) Act, 2006 and the Issue of Mental Guilt

5.5. The Protection of Children and the Issue of Mental Guilt

5.6. Persons in Authority

6.Sentencing

6.1. The Position under the Criminal Law Amendment Act, 1935 and the Criminal Law (Sexual Offences) Act, 2006

6.2. “Penetrative Sexual Offences”

6.3. Age of the Victim and Sentence

6.4. First Offenders and Sentence

6.5. Persons in Authority and Sentence

6.6. Sentencing Policy/Guidelines

6.7. Mandatory Minimum Sentence

6.8. Discount for Plea of Guilty

Part III

The Age of Consent

7.What is the Appropriate Age?

7.1. Introduction

7.2. Age and Maturity in Irish Law

7.3. Proscription and Behaviour – the Impact of “Reality”

7.4. The Question of Capacity

7.5. The Value of Clarity

7.6. Different Ages, Different Standards

8.Provision for Young People

8.1. Protection and Inhibition

8.2. Criminality and Sentencing

8.3. Decriminalisation

8.4. Mitigating the Harshness of Criminality for Children

8.5. Gender Equality

Part IV

Criminal Justice Procedures

9.The Special Position of Children

9.1. Introduction

9.2. The Special Needs of Children

9.3. Children as Vulnerable Witnesses

10.The Criminal Investigation

10.1. Statement of Complaint

10.2. The Garda Station

10.3. Recommendations of the Committee

10.4. Prosecution of Offences

11.The Criminal Trial Process

11.1. Introduction

11.2. Inquisitorial or Adversarial System

11.3. The Role of Cross-Examination

11.4. The Need for Protective Measures

11.5. The Position prior to the decision of the Supreme Court in CC

11.6. The effect of the decision in CC and of the Criminal Law (Sexual Offences) Act, 2006

11.7. Existing Provisions in Irish Law

11.8. Comparative and Alternative Approaches

11.9. Measures relating to Cross-Examination

11.10. Other Practical Measures

Part V

The Implications of the Decision of the Supreme Court in CC and the question of Constitutional Amendment

12.The Decision of the Supreme Court in CC

12.1. The Effect of the Decision of the Supreme Court in CC

12.2. Implications of the Decision

13.The Constitutional Implications of Proposals for Reform

13.1. The Committee’s Recommendations

14.The Welfare of the Child and the Criminal Justice System

14.1. The Rights of the Child and the Constitution of Ireland

Part VI

Other Issues and Recommendations

Part I
Introduction

Part II
Substantive Criminal Law

Dáíl Éireann on 6^th July 2006 ordered:

**Seanad Éireann on 6^th July 2006 ordered:**