The Director of Public Prosecutions told a private session of an Oireachtas committee on child protection that he did not believe it was necessary to change a new law on sexual offences which treats boys differently to girls who engage in underage sex, according to sources at the meeting.
The new Criminal Law Act, which was rushed into law following the statutory rape controversy, provides that while girls under 17 who engage in consensual sex are exempt from criminal prosecution, boys under 17 are not.
Sources at the meeting say the DPP said he did not feel it was necessary to have a gender- neutral version of the law and commented that previous law in the area also differentiated between boys and girls.
The two special rapporteurs on child protection appointed by the Government following the the statutory rape controversy also gave presentations before the committee. Geoffrey Shannon, a solicitor and child law expert, said he believed the Constitution needed to be changed to give additional protection to children at risk of abuse.
He said the main obstacle to any attempt by the State to undertake child protection measures is the presumption that the welfare of the child is best served by its membership of the family unit.
This only allows the State to intervene on behalf of the child in the narrow and limited context of "exceptional circumstances" of parental failure. Children in non-marital families, however, are not affected in this way. "The Constitution's child protection regime falls short of international standards. In particular, the inability of the State to intervene in defence of a child's rights in any situation which does not constitute 'exceptional circumstances' is unacceptable," Mr Shannon said.
He said some form of amendment recognising the need to protect children was clearly desirable. It should also ensure that all arms of the State should consider the welfare of the child in deciding any issue relating to children. Mr Shannon also said about the age of criminal consent that the age of 17, as set in the recent Criminal Law Act, was "especially high" in an international context.
In order to allow flexibility, for the protection of vulnerable minors and vindicate the "exercise of normal adolescent sexual conduct", it may be prudent to allow for a lower age coupled with upward variance. This is currently practised in jurisdictions such as Bulgaria.
The other special rapporteur, Prof Finbar McAuley of UCD, said the issues which needed to be reformed in the area of sexual offences relating to children were so complex that they needed to be systematically reviewed by the Law Reform Commission.
He also said there were 13 pieces of legislation and they needed to be consolidated into a single piece of legislation.
On the age of consent, he said he was "old-fashioned" on the matter and believed it should remain at 17.
In relation to age bands, which provide an exemption from prosecution for engaging in sexual activity with others in proximity of age, he said the current system in which discretion was left to the prosecution had served the State well.
The committee is examining a number of issues, such as whether a referendum should be held on the issue of statutory rape. It is due to complete a comprehensive report before the end of November.
The committee will carry out a review of criminal law relating to sexual offences against children, while the issue of the age of consent will also be examined.
