Supreme Court ruling on sexual offences provokes government crisis
Last month, the Irish Supreme Court declared unconstitutional the country’s 1935 law on sexual offences. A loophole in the law led to the release of a serious sex offender (later incarcerated again) and potentially others. The Supreme Court ruling caused a constitutional and government crisis.
On 30 May, the Taoiseach (Irish prime minister) announced the government would rush to draw up new legislation. While Joe Higgins, Socialist Party TD (member of Irish parliament, the Dail), agreed with legislation to protect children from abuse, he condemned the government’s new law, which criminalises young people having consensual sex and does not draw a distinction between this and the abuse and rape of minors by adults.
While all the opposition parties and independent TDs criticised aspects of the new law in the emergency Dail debate, they voted in favour of the new legislation. The only TD to call for a vote on the new law was Socialist Party TD Joe Higgins. Under Dail procedures, two TDs must act as tellers, but Joe was unable to get another TD to agree to be a teller alongside him and, therefore, the vote could not take place.
The following three articles look at the crisis and the position of Joe Higgins and the Socialist Party. The first piece is an editorial from the new issue of ‘The Socialist’, paper of the Socialist Party in Ireland. The second is commentary from the ‘Joe Higgins Column’ (also from the current edition of The Socialist). The final piece is a press statement by Joe Higgins, issued on 2 June.
Joe Higgins TD (MP) condemns criminalisation of youth
Immediate action is needed to remove the criminalisation of young people engaging in consensual sex in the South.
The Criminal Law (Sexual Offences) Act 2006, passed by the Dail [Irish parliament] in response to the crisis provoked by the Supreme Court decision that declared the 1935 Act unconstitutional, means that for example 16 year olds are committing a criminal act by engaging in consensual sex.
This new law does not recognise the reality of young people’s lives in the 21st century. Whilst all of the opposition parties and a number of independent TDs criticised aspects of the new law in the emergency Dail debate, they nevertheless voted in favour.
The only TD [MP] to call for a vote on the new law was Socialist Party TD Joe Higgins. Under Dail procedures, two TDs must act as tellers, but Joe was unable to get another TD to agree to be a teller alongside himself and therefore the vote could not take place. During the Dail debate Joe Higgins agreed that legislation is needed to stop abusers of children, he went on to state: "It is a disgrace that the Government would treat young people in this way. The 15, 16 and 17 year olds of this country are capable of thinking for themselves and engaging in wide-ranging debate. Instead of rushing in here to opportunistically cover over its recent incompetence, the Government should bring these young people and their parents into the debate and listen to their voices…it is a disgrace that young people involved in consensual relations should be placed in the same category.
"In an incredible catalogue of events going back 16 years, during which time the four main establishment parties have been in government, nothing was done to prevent this crisis. In 1990, the Law Reform Commission recommended changing the law, and then in 2002 the Chief State Solicitor told the Department of Justice that a legal challenge was under way. Subsequently, in 2005, the Supreme Court said it would hear a constitutional challenge (this decision was reported in the Irish Times!). Yet, on 23 May 2006, when the Supreme Court ruled the 1935 Act to be unconstitutional, Minister for Justice Michael McDowell and the Attorney General claimed they didn’t know the case was underway!
This has been one of the biggest crises faced by the Fianna Fail/PD coalition in its nine years in government. Bertie Ahern has been damaged not only by the incompetence of his cabinet but because he spent the crisis in New York. The Socialist Party believes it is completely wrong that a law has been passed which equates consensual sex between teenagers with the abuse and rape of minors by adults. Legislation is needed to protect children from abuse but this new law could mean, for example, that in the case of a 16 year old couple having consensual sex the male could be jailed for five years, or in the example of a 15 year old female having consensual sex with a 14 year old male that the male could be imprisoned for life.
Aside from new legislation to protect young people from abuse by adults, it is now essential that a debate opens up in society that recognises the reality of life for young people. This debate must allow young people and their parents to express their views on how the law should be "framed" in relation to consensual sex between teenagers. Young people must receive a progressive sex education in our schools, that also deals with issues such as self esteem, respect for others and safer sex. Young people should also have free access to contraception, i.e., condoms in order to prevent unplanned pregnancies and the spread of HIV and other STDs.
A more open and progressive approach to educating our young people about sex can also give them the confidence and ability to stand up to potential abusers and to speak out to those they trust and respect in their families, to teachers or peers when they have been or feel they potentially could be open to sexual, mental or physical abuse.
Editorial from The Socialist, June 2006 issue
“Arrogant and incompetent government out of touch with people”
Joe Higgins, Socialist Party TD (MP)
By any standards it was an extraordinary ten days in Irish political life, between the striking down by the Supreme Court of sections of the 1935 Statutory Rape Act and the rushing through of the Criminal Law (Sexual Offences) Bill 2006 on Friday, 2 June. The crisis that developed revealed an arrogant and incompetent government quite out of touch with the feelings of ordinary people.
When the government finally realised the seriousness of the situation, its main reaction was to bring in a rushed and opportunistic Bill, which criminalised the abuse of children, but also scandalously, criminalised young people engaged in intimate, consensual relations.
In the short time available to me in the disgracefully rushed debate on Friday, 2 June, I strenuously protested against taking provisions that were put into law in 1935 and lifting them into the new legislation in 2006. As it happens when the vote was finally called at 2.30pm on Friday, after only four hours of debate, including the committee stage, I was not able to find a single deputy to support my call for a vote of opposition.
I believe that political representatives, including those who know the folly of what has been put into law, were reacting to an element of hysteria that was being formented in some media outlets about the situation that developed. They were also terrified that if they voted against the Bill, they would be accused of being soft on child abusers by unprincipled government representatives.
However, unfortunately, the rights of the youth of this State were trampled over in this situation. Not only could they face years’ imprisonment for what is regarded as normal between many young people, but teenage boys could find themselves put on the register of sex offenders with all the serious consequences that this entails.
The farcical situation that developed with this legislation was shown at committee stage, when the Minister for Justice admitted that he had included Section 5 of the Bill in response to points I had made the day before to the Tanaiste [Deputy PM] on the Order of Business when I pointed out that the legislation which we hadn’t yet seen was likely to make criminals of young teenage mothers.
As a result, Section 5 provided that girls under 17 would not be criminalised for sexual intercourse, but boys would. When I said that, of course, I absolutely agreed that teenage mothers should not be criminalised, but asked the logic in criminalising teenage fathers, there was no reply.
Section 3.9 in the Act provided that no prosecutions would be taken against a person under the age of 17, except by or with the consent of the Director of Public Prosecutions. This represents a desperate attempt by the government to avoid the appalling situation which could arise, when for example; 16 -year- olds would face criminalisation for consensual intimate relations that are normal for very many people at that age. Obviously, the State fears that you could have similar situation to that which developed with the ‘X case’ in 1992. This case occurred not very long after a majority had voted to put an absolute prohibition on the right to terminate a pregnancy into the Constitution.
When the State tried to prevent a young 14 year old girl from availing of such a termination in Britain, following a rape, there was an outcry right around the country to the effect that the girl and her guardians should be allowed to make a free decision. This outcry included many who had voted in favour of the constitutional prohibition. Similarly, we can now have a situation where young people finish up getting prosecuted as a result of this legislation, giving rise to serious public anger.
Obviously, legislating in regard to sexual matters is fraught with difficulties. No decent person in society will want a situation where predatory adults will abuse and prey on children. At the same time, the feelings and views of teenagers under the age of 17 have to be respected and provided for. The sections of the new legislation which criminalise youth should be struck down instantly.
There should now be an immediate and wide-ranging debate in society on all these issues.
Concern over criminalisation of young people
Government’s failure to address loopholes in law, allowing release of serious sex offenders, condemned
Press Statement, 2nd June 2006, Joe Higgins T.D. Socialist Party
Joe Higgins, Socialist Party TD, today condemned the government’s failure to address the loopholes in law which is allowing serious sex offenders to be released.
“The debacle that has led to the release of ‘Mr. A’ and the impending release of others is a blow to their victims. The government has yet to give a credible explanation for how they allowed this to happen. The Minister for Justice, Equality and Law Reform, Michael McDowell, outlined in the Seanad a range of other legislation which still stands and is not unconstitutional. We want an assurance from the government that those adult men, if released under the Supreme Court judgement will be charged under the existing and valid legislation.
“The legislation before the Oireachtas today is not a proper response to this crisis. It is seriously flawed in that it criminalises young people having consensual sex and doesn’t draw a distinction between this and the abuse and rape of minors by adults. We need legislation to protect children but the governments’ bill could lead to the situation whereby in the case of a 16 year old couple having consensual sex the male could be prosecuted and imprisoned for five years and in the example of a 15 year female having consensual sex with a 14 year old male that the male could be imprisoned for life.
“In order to prevent the criminalisation of young people I am proposing amendments but as this bill stands I cannot support it. The current crisis resulted from a constitutional challenge to the 1935 act, but this new legislation could possibly be open to a constitutional challenge on the basis of gender equality.
“This legislation is dealing with very serious issues regarding the rights of young people, but there has been no serious attempt to consult young people who will be affected or their parents. Parties are using this real crisis as a cover to increase the age of consent to 17 for young men. This doesn’t recognise the reality of young people’s lives in Ireland in the 21st century. It is absurd for example that 16 year olds are committing a criminal act by engaging in consensual sex.
“The Socialist Party understands the justified anger that has led many people to protest against the government’s incompetence. However the Criminal Law (Sexual Offences) Bill 2006 doesn’t deal with the concerns of those protesting and is dangerously creating new problems that can affect young people in the future.”