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	While Predators Are Safe, Innocent Are at Mercy of Politicians Where Children Are Concerned, Their Welfare Must Always Take Precedence By Emer Kelly Irish Independent January 20, 2008 http://www.independent.ie/opinion/analysis/while-predators-are-safe-innocent-are-at-mercy-of-politicians-1269619.html The Opposition, in the person of Alan Shatter, Fine Gael spokesman on children, wants an immediate "limited" referendum on children's rights. This would be in addition to the full referendum the Government is pledging to amend the Constitution to protect the rights of the child. The terms of that full referendum will depend on the deliberations of the all-party committee set up by the Oireachtas last November under the chairmanship of Mary O'Rourke of Fianna Fail. It is due to report back to the Dail in March. According to the Minister of State for Children, Brendan Smith, the full referendum will be held this year. But not during the run-up to the referendum on the Lisbon Treaty; that might confuse the issues. We can only hope that nobody is holding their breath waiting for the welfare of children to be paramount in our society. Because the time frame just doesn't add up, and at the moment, sexual predators and child molesters are protected by the Constitution; the innocence of children is not. The matter has come back into the headlines because a case collapsed in the Circuit Criminal Court last Tuesday. The man known as "C" had charges of sexual assault against him withdrawn. The charges had been brought because he had sex with a then 14-year-old girl in 2001, and at that time offered the defence that he had believed her to be 15. The DPP had brought charges of unlawful carnal knowledge (commonly described as statutory rape), which were found to be unconstitutional when C appealed to the Supreme Court. The Court found that under the Constitution, the defence of ignorance of the girl's age was permissible. Gamely, the DPP's office pursued him with new charges of sexual assault, but the case collapsed when it came to court on Tuesday. And don't blame the learned judges of the Supreme Court; they merely interpret the law's conformity with the Constitution, a Constitution which makes it possible for a middle-aged man to have sex with a child, consensual or forced, and go unpunished. There was a time when such men were punished if brought to trial. This was under the Criminal Law Amendment Act 1935, specifically Section 1.1, which made sex with a girl under 15 years old punishable by life imprisonment. Under Section 14 of that act, even the defence of consent made it an absolute criminal act to have sex with a boy or girl under the age of 15. We operated reasonably successfully with that law despite many notable horrors such as the Sophia McColgan case, when a man was discovered to have brutalised and raped several of his children over many years, and was only convicted thanks to the almost unimaginable courage of one of his daughters. But then a man known as "A" appealed to the Supreme Court. He was a middle-aged man who had had sex with a 12-year-old girl, and pleaded that he had not known she was under-age. He was convicted of statutory rape in the High Court. Leaving aside both the credibility of such a plea, and the contemptibility of it even if one were to believe it, the 1935 Act was found to uphold this appalling excuse when A appealed against his sentence in the Supreme Court. It had always been full of holes, apparently. An argument began between lawyers and politicians in the now infamous month of May 2006 as to whether action should have been taken earlier to plug the loopholes: some people argued that the Law Reform Commission had pointed out the dangers as far back as 1990, although Michael McDowell, Minister for Justice in 2006, strongly denied this. Political points were scored over the bowed heads of abused children, unsuccessfully disguised as concern for their welfare. Arguments like: how do you define the levels of criminality; is it the same crime for a 35-year-old teacher to have sex with his 12-year-old pupil as it is for a 14-year-old boy and girl to have sex with each other? The answer, to anyone with sense, is that the first should be a crime, the second a social practice not to be encouraged. Yet again, our authoritarian and naively drafted Constitution was found to be culpable in failing to protect vulnerable citizens. But the sexual predators were well protected. It should have been a signal for a serious debate about dumping this unwieldy and hugely incompetent document and replacing it with a minimalist declaration of civil and human rights, which would validate sensible and detailed laws for the future. Instead, politicians scented a popular cause, and rushed to judgement with demands for immediate legislation to block the loophole. Cue the Criminal Law (Sexual Offences) Bill of 2006, passed by the Oireachtas on Friday, June 2, 2006, against the wishes and advice of then Minister for Justice Michael McDowell, himself a lawyer, who claimed it was flawed and inadequate. But action was needed, howled the politicians on all sides, immediate action. They could have acted immediately nine years earlier, over the equally infamous case of the child molester priest Brendan Smyth. Immediate action was needed to protect children from him, but the arguments concerning his extradition went on for seven months; it was politically expedient. At least the State did move against A. On the same day that the new Act was passed, the State successfully appealed to the Supreme Court against the release of A, and the appeal was successful. The politicians went home, presumably feeling smugly that they had done a good day's work, despite the misgivings of the minister. It didn't seem to occur to anyone to suggest simply that where children are concerned, their welfare and protection must always, in natural justice and ethics, take precedence over those of adults. That would have covered it. It would have overturned any and all provisions of a Constitution drafted at a time in Ireland when people believed that children were their parents' property, and the State had no moral jurisdiction over what went on within families. But there were vested political interests to be protected, so the talking continued. What was the hurry? And last November the all-party committee was set up to make recommendations on the contents of a referendum on the rights of the child. No hurry, until the next time the public becomes outraged over some dreadful miscarriage of justice or violation of a child. And then we can rush through another piece of incompetent legislation that will plug the holes for another couple of years. Which is exactly what happened last Tuesday in the Circuit Criminal Court, where presumably the DPP decided that the provisions of the rushed and flawed 2006 Act left him without a leg to stand on. It was not A this time, but C who walked free, the case against him for sexual assault collapsing when the State entered a nolle prosequi. Enter Alan Shatter, also a lawyer, and a man who has proven his commitment to the issue of children's rights and protection over the years. But his solution was another quick fix: a mini-referendum immediately. Then we can have the "real" one later. Ah no, says Brendan Smith, the Minister for Children, that would be irresponsible. We can't have two referenda on the same topic in the same year. Let's proceed with caution and deliberation. In the meantime, there are sexual predators out there, deliberately targeting children. There are sexually precocious little girls telling other men that they are 18, and perhaps because they want to, the men believe it. But the little girls are only 12. They used to be called sluts, deserving everything they got. They're not. They're children, and they deserve protection. At the moment, according to the Supreme Court, interpreting the Constitution of the Republic of Ireland, "the mentally innocent are being punished". The mentally innocent thus described are not the children, but the predators using the argument that they "honestly" believed the children to be of age. We, the people, are the Republic. This is our Constitution. Will we continue to stomach this outrage against innocence while the politicians protect their own bailiwicks?
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