Sometimes the courts get it right. In the Supreme Court last week, Judge Adrian Hardiman decided that Section 1 (1) of the 1935 Criminal Law (Amendment) Act – the law which held that any man who had sex with a girl under the age of 15 was automatically guilty of statutory rape – was unconstitutional.
Judge Hardiman’s decision was made on the basis of a case brought by a man of 18, who had sex, by consent, with a 14 year old girl, who told him that she was 16.
It was a bad law that should never have been allowed to linger on the statute books. It is obvious that an individual who has been misled in this way is entitled at least to the opportunity to mount a defence. It wasn’t as if the Government’s attention hadn’t been drawn to the fact. In its 1990 report, the Law Reform Commission specifically recommended that the law needed to be changed. For all of the bluster, bullshit and worse that we’ve heard from various Ministers for Justice during the intervening period, including from the present incumbent Michael McDowell, not one of them saw fit to act on this entirely sensible recommendation.
It is an indictment of our legislators that it takes the courts to force them to get off their arses and do something. It is an indictment that we have been put in a position where certain genuinely guilty individuals may now be released because they were convicted under Section 1 (1). And it is a further indictment that other unbalanced and unjust features of the act have also been allowed to stand. Well, change is required now and there’s no hiding from it.
To get it on the record, there are few things more stomach-churning than the thought of a 50 year old man preying on, say, a twelve year old girl. It is right that ‘consent’ should not be a defence, where that kind of gross manipulation or exploitation is concerned. But there is a complete difference if the male is 15 and the girl 14 and if she confirms that she did indeed consent to having sex. Or indeed if the male is 13, and the girl 14.
What sort of legislators would allow a situation to persist where the boy involved in that kind of scenario would automatically have to be found guilty of statutory rape? It has happened and the politicians know it. But it would have taken a bit of guts to independently say: this is an absurd and unfair law that discriminates against men and it must be changed. The fear that the Minister involved in attempting to change the law might be depicted as encouraging teenage sex was too great. Better to hide our collective heads in the sand. Better to let innocent boys be found guilty. And so, that is what happened.
Fine Gael’s reponse to the Supreme Court decision is ludicrously knee-jerk. They want to rush a bill through that deals only with the implications of the Hardiman judgement. Their proposals, according to reports, would make it a criminal offence, punishable with three years in jail, for two sixteen year olds who are in a relationshp to have sex together.
How fucking stupid is that?
Of course there is a concern that 16 year olds may not take the necessary precautions to avoid pregnancy. Of course, it is a fact that they are not ready to have children. Of course, it might be preferable for them to wait. But put the emphasis on teaching them properly about sex. Put the emphasis on making them aware that they always have a choice. Put the emphasis on making sure that they know about contraception, and how to use it. Put the emphasis on the fact that there’s lots of good sex they can have together without risking pregnancy.
But don’t turn them into criminals for having sex.
At least the noises now being made by the Government suggest that they will bring a sense of realism to the whole area. While I may not have a lot of time for his politics in general, in relation to this, I suspect it isn’t a bad thing at all that Michael McDowell is the Minister responsible. A lily-livered craw-thumper he is not.
- For a start, he should rid the law of the anti-male discrimination it currently enshrines.
- He must also reflect the reality that sex between consenting teenagers of a similar age cannot be considered a crime and legislate accordingly.
- And finally, he should equalise the age of consent for boys (currently 15) and girls (17). The age of 16 has been suggested for both – and this would also apply where homosexual sex (currently 17) is involved. This is a difficult area, in that there can be a huge gap in the relative maturity of teengers of the same age – but to pitch the age of consent at 17 would clearly be anachronistic. 16 has the appearance of a sensible compromise, but if I was a 15 year old boy, I would greatly resent the idea that I was now being told that I couldn’t consent to sex.
Similarly, there may be a few men who as young teenagers were the recipients of older female attentions, who will consider the introduction of an offence for females who have sex with under-age boys thoroughly daft.
The law isn’t good at calibrating subtleties. When it comes to legislation about sex and sexuality, there is no such thing as a law that is absolutely right. There is no such thing as a law that cannot be accused of ‘encouraging’ this or that at the expense of the other. In the end, apart entirely from what it says on the statute books, it is important that good sense should prevail, at the human level, in relation to how parents and guardians respond if teenagers are involved in sex together. And, of course, it is important that teenagers should treat one another kindly and decently and well, in all aspects of their friendships.
Be careful out there.