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	Where Hard Law Makes Bad Law Carol Hunt Believes Justice Would Be Better Served If Juries Were Introduced in Underage Sex Cases By Carol Hunt Sunday Independent December 6, 2009 http://www.independent.ie/opinion/analysis/where-hard-law-makes-bad-law-1965619.html IT'S HARD to take a person who calls a 12-year-old child "promiscuous" seriously. Pathetic excuses from unrepentant paedophiles about how they were seduced into committing crimes by the sexual wiles of children are usually dismissed, rightly, as self-serving nonsense. But what if the person accusing the child is a respected High Court judge? Central to debates about the "rights of the child" is the controversial question of the age of consent. And there's no easy answer. Last week, 41-year-old Nigel Thompson was arrested by the Royal Military Police in Britain and charged with having sexual relations with a 13-year-old girl. His lawyer, in his defence, described the incident as "a meeting of minds" and said that, rather than his client grooming the girl, the reverse had occurred. The incident took place the day after a female officer had warned Private Thompson that the young girl was "dangerous" and only 13 years of age. So he can't invoke the "honest mistake" defence and claim that he thought she was 18. Still, judge Mary Jane Mowat has indicated that Thompson will be treated leniently as it appeared to her that the crime was "a one-off incident with a particularly willing girl". But surely the fact still remains that he was 41 while she was 13? The "honest mistake" defence was cited in another sex case, involving a 12-year-old girl, in Britain last week. Mrs Justice Rafferty, in the court of appeal, declared that Ryan Clelland-Tinsley (18) and another teenage boy who cannot be named, were "foolish, ill-advised lads" who had been "punished enough". They had originally been sentenced to four years each for statutory rape of the 12-year-old. However, Judge Rafferty said that the girl involved was "promiscuous and had lied about her age". Lawyers for the boys said her claim that she was 17 was "fortified by the way she dressed and by an explicit and provocative text she sent". And then the judge pointed to medical evidence which proved that "four men had sexual contact with her only recently before these offences". This is a 12-year-old child they were talking about. Yet one can understand the judge in this case giving the boys the benefit of the doubt while still being concerned for the young girl. Trying to deal with teenage sexuality within the law is a minefield. While children need to be protected from adult predators and early sexualisation, there's a grey area where "consent", "honest mistake", sexual maturity and alleged "promiscuity" collide. Here in Ireland, the new Criminal Law (Sexual Offences) Bill 2006 restored the crime of statutory rape and applied 17 years as the age of consent for both males and females. It also included the defence of "honest mistake" with regard to age in defilement cases. But we all know that there's a huge difference between, say, a 41-year-old male having sex with a 12-year-old and claiming he thought she was 18, and a teenage couple of similar ages indulging in consensual sex. Yet in the first case the adult can walk free, and in the second a young man can face a jail sentence. It's an area where context seems to be everything and hard law makes bad law. It's also an area where the decision of some judges would seem to go against common sense. Is it time to introduce juries into cases such as these? Yes, I would believe so. We've seen two incidents in Ireland recently where young men have been sentenced for having consensual sex with their girlfriends. One case, a few years ago, involved a 15-year-old girl and her 19-year-old boyfriend. The couple had been dating for about five months when the girl discovered she was pregnant. Her mother made a complaint of statutory rape to the gardai. She later retracted it, but the damage was done: the newly proud grandmother begged the judge in the case not to jail her prospective son-in-law (who cared for the child while his fiancee was studying). According to the 2006 law -- amended by Section 1 of the Criminal Law (Sexual Offences Act) 2007 -- this obviously well-meaning young man is a criminal. Yet if the ages had been reversed, or if the boy had just had a one-night-stand, claimed "honest mistake" and never seen the girl again, he could have walked free. So, if a 16-year-old boy has sex with a consenting 16-year-old girl, he's a criminal -- but she isn't? Or if a 60-year-old lothario cajoles a 13-year-old girl into having sex with him and insists, yer honour, that he thought she was 17, it's her fault for dressing provocatively? What sort of justice is that? In another case earlier this year, a 20-year-old Westmeath man was sentenced to 11 months in jail for having sex with a girl who was just three months shy of her 17th birthday. The young man believed, and the judge accepted that he believed, that the age of consent was 16. According to statistics, among the under-25s, 31 per cent of men and 22 per cent of women had consensual full sex before they were 17. Under Irish law, they are criminals. Yet adult men in positions of moral authority, who -- by their desire to protect the power of a religious organisation -- allowed the rape and abuse of children to continue unabated, are considered legally innocent of any wrongdoing. A 20-year-old who has consensual sex with his 16-year-old girlfriend gets a jail sentence. A bishop who knowingly allows a paedophile to continue working with children gets off scott-free. There really shouldn't be any disagreement about who is the criminal in these cases. And it's not the boyfriend.
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