The Position Of the 12-17 year old Girl in Irish Statute

by C Murray Sun May 20, 2007 11:49

'The Ombudsman For Children, Emily Logan, is not in favour of what we have to do
constitutionally. If we were doing it in the absence of having to do it constitutionally,
I do not believe we would have proceeded against that strong advice, because people would
have said that we are weakening the Law. We now have no alternative'.

Ms Justice Laffoy acted within the Law.
The Government acted within the Law.
The legislation is on the Statute.

by Mike Sun May 20, 2007 21:10

Why is the title of this story about 12-17 year old GIRLS

Do 12-17 year old BOYS not experience sexual abuse too?

Indeed of all the individuals prosecuted under these law what is the ratio of males to females ?

And why on earth is it a crime in Ireland for a 16 year old girl to perform oral sex on a 16 year old boy yet perfectly legal the other way around?

Finally given that a third of * Irish teenagers besides become sexually active prior to their 17th birthday Is there not something VERY badly wrong with a law that effectively brands a large proportion of the population as sex offenders and paedophiles

* How accurate this figure might be depends on who/where/when one asks but is a moot point in any case

by C Murray Sun May 20, 2007 21:56

Which is at the beginning of the piece, right in the first paragraph.

The section 5 issue commits the legislature to imprisonment of up to five years for boys
if they are found to have committed a crime ,now entitled 'unlawful carnal knowledge'

The issue of 'opinion and analysis' on the indymedia newswire is that:
1. it is an open newswire.
2.It is categorised thusly, 'opinion and analysis'

A fifteen or sixteen year old boy can get a girl pregnant, however, he does not himself get pregnant.
we could go into the whole area of post-partruition dna testing, but the actual pregnancy
and the social consequences therof are carried by the 12-17 year old girl- if she chooses
to continue with that life-changing, life-challenging decision.

In constitutional terms she is not a child with the right to her childhood but a woman
with reproductive ability- she is not entitled to safety, she is not entitled to vote,
she is not entitled to seek abortion advice.
These are adult decisions requiring support , both peer and familial. and yet she is a kid.
(like Miss'D' was)

to add to that:-When Mr Mc Dowell was asked about the constitutionality of section 5
not being gender neutral- i.e, the issue of incarceration of boys for unlawful carnal
knowledge he replied 'I am not going to criminalise a young woman for becoming a
mother' and why should he?

but the supports are not there. There is a gender difference and it is related to
reproductive rights but the legislature refuses to take cognizance of them by
not:

Transposing the rights of the child into law.
-The right to your childhood-
and
-The right to privacy in your childhood.

This is subsumed beneath the primacy of the family and the reality of the 12-17
year old girl being considered adult at 12-17 by virtue of her ability to reproduce.

the comments form is there for people to add in their comments, which you will see
through the links develop the original point.

by Stuart Sun May 20, 2007 22:13

"And why on earth is it a crime in Ireland for a 16 year old girl to perform oral sex on a 16 year old boy yet perfectly legal the other way around? .... Is there not something VERY badly wrong with a law that effectively brands a large proportion of the population as sex offenders and paedophiles"

That is NOT what the law says. The law is that a minor can not consent to sex, not that the sex act is illegal. The act is criminalised only when a complaint is made by or on behalf of the minor. Two minors engaging in sex are not criminals, but anyone engaging in sex with a minor who has not consented (or is subsequently deemed incapable of consent) is open to prosecution. Yes, the law has opened up the possibility of nonsensical prosecutions (especially of boys) and yes, the law is unhelpfully over-endowed with the technicalities of intimate orifices. The limited progress on gender neutrality should be supported.

What is truly unforgiveable is that the impetus of the constitutional crises has been completely forgotten, particularly by the chief perpetrator Michael McDowell, because there are perceived to be no votes in it. Nobody actually wants to get involved in the grime of real sexual abuse blighting thousands of real families every year.

by C Murray Mon May 21, 2007 09:01

The legislation was introduced as a result of the Laffoy judgement.
Instead of a debate on serial sex offence and child abuse the Minister for Justice
suceeded in introducing into the statute a law criminalising girls for any sex act- except
full penetrative sex- and boys for 'unlawful carnal knowledge'
There was no dinstinction made between the crime of rape, the crime of serial sex offence
against children.

Perspective wise:- Section 5 was and is on the statutes. A request for a 'sunset clause'
and a 'Romeo and Juliet clause' was denied.

The A-F people who challenged as a result of the collapse of the 1935 legislation
were all re-tried under this legislation- now called 'unlawful carnal knowledge' by the DPP.

This has not made the media.

The current government was elected after the dissolution of the Dail 9 days after the
FF party supported by Mary Harney signed the Church/State indemnity Bill.

It is an Opinon and analysis. Maybe not straight forward enough- so I will make it
straight:-

A government characterised by a complete failure to address the issue of gender
difference has failed to addres the issue of the sexual abuse of girls within Irish
society because of its moral cowardice in the face of it's relation to the dogmatic
control of the catholic church in our society. This means inadequate sex education
which provides the tools for her safety, this means inadeqaute safe places to
get help on the issues of her rights, this means she is open to exploitation of
her body due to a moral construct of her role in society in the years of her childhood
age 12-17.

The law is on the Statute, it has not been repealed or reversed. It did not address
the issue of rape- it criminalised a generation of Irish Kids- nor will it be reversed
until there is a constitutional referendum on rights- because as Ms Harney said
they all acted within the current legislation, laws that fail to take cognizance of the
woman and the girls gender difference but box her into a construct based solely
within our definition within the constitution as mothers- the primacy of the family
being the article of the constitution which informs the legislation defining the
woman's societal and familial role.
be she 36 or 13.

There will be a referndum on rights and it is promised for after the election.
I have no faith in the main political parties having the guts to confront these issues.

by C Murray Mon May 21, 2007 09:47

ok- inadequacies highlighted. (Criminal Law- Sexual Offences Bill 2006)

The Law was amended in 2007 , cos a solicitation loophole became glaring.
this was related to a case (undergoing investigation) of a ring which used
electronic means to solicit kids for sexual purposes.

So to add to the refusal to recognise the integrity of the 12-17 year old girl (section 5)
The lack of debate on indemnity.
The continuance through the courts of the adult's cases who had raped kids, and was
for some reason not making the media, there were glaring loopholes in the
protection of minors.

but- everything is fine now the whole area of sex is something we do not talk about
in a legislative sense, most parents would do their utmost to protect and inform
their kids about the issues despite the cowardice of the government.

The government has some catching up to do-these laws mitigate specifically
against the poor and those reliant on the State School system.

We educate our kids anyway about everything we can to protect them , and most of us
would not accept a return to the days when a young kid dies in a grotto giving birth,
but the Government has not really caught up with the notion of equality which is
why the useless law was inserted into our statute and another referendum
worded to divide people again shall be one of the first issues confronting the
next government.

by Stuart Mon May 21, 2007 11:44

"The law" is a very brief read at http://www.oireachtas.ie/documents/bills28/acts/2006/A1...6.pdf (criminal law (sexual offences) act 2006) and http://www.oireachtas.ie/documents/bills28/acts/2007/a6...7.pdf (criminal law (sexual offences) (amendment) 2007).

"The law" refers in every clause other than section 5 to children, not specifically to girls. The criminal offence is not committed by the child, but by "any person who engages in a sexual act with a child". Children engaging in sex (and there is no reason whatsoever to catalog sex acts, because "the law" does not distinguish them) are not criminalised unless and until a child makes a complaint or a complaint is made on behalf of a child.

Section 5 in full states "5.—A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse. (Female child under 17 years of age not guilty of offence.)" It is a ridiculous concession to the possibility of convicting a child of an act by which she becomes pregnant, and thus subject to the protections of familyhood in the constitution.

Note that there is no fixed minimum age for marriage with the Constitution or Irish law, although canon law suggests that the church should not perform a ceremony for a girl of 13 or younger. Marriage may be granted at any age provided "its grant is justified by serious reasons and is in the interests of the parties to the intended marriage" (Marriages Act). Married (i.e. heterosexual) couples are exempt from most sexual offences legislation, e.g. “sexual act” means— (a) an act consisting of— (i) sexual intercourse, or (ii) buggery, between persons who are not married to each other" (the 2006 Act). A positive pregnancy test is sufficient justification for "the parties" (are parents and the priest included in that term?) to annul criminal legislation.

What "the law" fails abjectly to do is provide any support or protection to the thousands of children, girls and boys, sexually abused and raped every year in Ireland, or to the adults living with the consequences of childhood abuse.

by C Murray Mon May 21, 2007 12:45

it is just a long-winded way of saying:

"I was in the Dail for the debate and I was horrified at what I saw, instead of addressing the issues
of child abuse and privacy for kids, the combined and collected minds of the TD's interefered
in the privacy of relationships between teenagers, criminalised sex activity and did nothing
about addressing the legacy of child abuse in this state- prompted by the Laffoy decision
to tear up the 1935 legislation as a result of the 'A' and 'CC' cases"

if you use the newswire you can see that the new law was used in the Ian Horgan case.
he was 16 at the time of the rape and manslaughterof a young Cork girl. he is on the sex
offences register. I know of a case of a man who was in a school position whose name
is not on the register and who is due for release.

The A-F cases were cases of serious sex abuse in the serial re-offending sense
which were challenagable under the huge gap propounded by the failure in legislation.

As to the girl in our society- yes, she is entitled to her childhood.
In poorer communities , if she kept the child the child was brought up as a 'sister'
or 'brother' by extended family- this is how communities work. in wealthier families
the child was given up for adoption. In those between we had the scourge of adoption homes
and the trading of infants to those unable or unwilling to fulfill their duty under constitution.

now- thats just stupidity.

I have the copies of the speeches/legal advice/Logan request and the media coverage
of those weeks. there is no earthly reason for section 5. There is no reason why Irish
people who are family and community orientated to accept the intrusion of a failed
legislature into the decisions they make in the best interests of their kids.

But you will find that the crimes against girls and women that result from overt governmental
interference in their privacy through focus on reproductive abiltiy causes inequality and
hardship across the board.

Section 5 is still on the statute. It criminalises kids with up to five years incarceration for
statutory rape offence.
The A-F cases are still being prosecuted through the courts.
It had to amended due to a solicitation loophole- this means that grooming through
the use of internet etc kids for sexual purposes was not dealt with in those weeks.

FG failed to take on the issue.
FF voted on the legislation.
Labour did not impede its passage through the Dail.

it is a by-product of fear and legislations which have never honestly confronted the issues
of abuse of kids. In Church/state care or through the use of homes for 'erring' young women.

because they happened to get pregnant. aged 12-17 largely 'out of wedlock.'
This is a legacy of attaching shame to sex that led to the death of Ann Lovett.
That is something we do not want to re-visit but creating a situation of fear and
pressure in the area of reproductive ability and sex is one route to re-visiting
that appalling vista.

by C Murray Tue May 22, 2007 09:54

Today's Irish Times is reporting a call by the Rape Crisis Network of Ireland for a
referendum on child protection to be a priority in the first term of the new government.

They held a demo at the GPO yesterday to highlight the serious anomalies in the
legislation of June 2nd 2006 and the amendment on solicitation 2007.

Its in the print version of the paper.

The link to the site which includes the submissions to the all party Oireachtas Committee
is at :-

http://www.rcni.ie/whiteflower.htm

The issue of inequality in a kernel is simple enough, true equality acknowledges
difference and the laws and legislations which addressed the issues of
solicitation, sex abuse and child rape did not recognise or support true equality
because they failed to confront the reality of child protection in any form, through
a persistent refusal to admit of the need for the rights of the child to be transposed
into Irish law- that requires a constitutional referendum. That requires also a recognition
of gender within Irish constitutional law.

I will not vote in a referendum on child protection that does not acknowledge
and protect the human rights of the young girl. (age 12-17).

[something which sucessive legislatures have refuse to confront, we have
one of the highest EU rates of persistent child poverty]

One of the root causes of persistent child poverty is inequality, a direct result
of State abdication of care to the individivual. The question re privatising services
to children (health and education) is who will take up and profit from State
abdication of care?

by Stuart Tue May 22, 2007 10:46

It is also worth reading the submission by James Hamilton, Director of Public Prosecutions, to observe a very different attitudes to gender, sexuality and violence. The following selected extract indicates to me a slavishly politically correct gender neutrality without commitment, a lack of familiarity with the offence of child abuse and a failure to comprehend the consequences for the abused child:

"It seems to me that there are distinctions based on the physical difference between men and women which may validly be made, and arguably ought to be made. It is valid to regard penetrative sex as being of a different degree of seriousness for the woman who is penetrated than for the man who penetrates, even where a man engages in sexual intercourse without his full consent in the sense that his will is overborne. Indeed, for physiological reasons it must be rare indeed that a man is compelled by a woman to engage in sexual intercourse with her against his will. It is for this reason that the law of rape is not gender-neutral; it recognises that it is the woman who is penetrated and the man who penetrates, and it does not indulge in a false equation between the rape of a woman and the fate of a man who is compelled to participate in an act of sexual intercourse. The latter, of course, amounts at least to a sexual assault and is a serious offence although not carrying as serious a penalty as rape or aggravated sexual assault where the minimum penalty is imprisonment for life." (Page 12)
http://www.dppireland.ie/filestore/documents/THE_CRIMIN...6.pdf

This extract goes right to the heart of the distinction between consent and liability - many abused children have verbally and physically consented to sex, and the child's consent is one of the reward factors that abusers seek. Where consent was not obtained the abuse is always an assault or a rape. Strict liability would apply when a child consents or an abuser believes (or claims) they obtained consent.

The law is the very last step in a cascade of failure in which the majority (perhaps 90 per cent) of abusers are never identified, the majority of those identified are not prosecuted, those prosecuted stand a greater than even chance of acquittal and those convicted may have their sentence suspended. The UK Home Office that 655 of 11,766 (5 per cent) allegations of rape resulted in a conviction. Including offences where the victim did not report a crime, maybe between 1 in 300 and 1 in 1,000 offenders are convicted.

The real issue is that people accept and condone assaults on bodily integrity, of adults and children. The UK has been running a "No Consent No Sex" campaign that appears to be having a positive effect. There needs to be an overwhelming change of attitude before society as a whole carries the message that nobody can have sex with someone who has not consented, or is not capable of giving meaningful consent. We need effective laws, but pervasive attitudes condoning abuse are a far greater problem. It is sad that the government has reversed itself right out of the debate and failed to capitalise on public outrage.

by C Murray Wed May 23, 2007 14:38

Ireland is the only country in the EU not to have laws on trafficking and has been
formally asked to do something about it in the Amnesty International annual report.

also concerns are published about the treatment of mentally handicapped children
and children who are in need of psychological care.

will add in link later.

This would be a matter for the Department of Justice, Equality and law reform.
http://www.justice.ie

by hurting Sat Oct 06, 2007 22:49

I suffered (and still suffer) from Child Sex Abuse and am still baffled as to what the legislation really meant last year! The comments of the aforementioned do a more than adequate job on explanations but I still see red when this subject is broached in public. In the plainest of English what EXACTLY did the legislation say?

by C Murray Sun Oct 07, 2007 11:05

The legislation did nothing to help the victims of child abuse. I am sorry. It was limited by
our constitution in the issue of child protection terms and succeeded in introducing laws
which will allow for the imprisonment of kids for statutory rape. This is to do with the
age of consent issue and the insertion of section 5 which is detailed in the links above.
I would suggest that anyone with an interest in Section 5 of the statute would contact the
Ombudsman for Children Emily Logan or Ciaran Cuffe TD who read out her letter
protesting the Section on June 2nd 2006. As regards aid with issues of child abuse,
http://www.drcc.ie

ask Ciaran about
1. The Sunset Clause
2.The Romeo and Juliet Clause.

Also there are advocacy agencies who deal with supports and mediation in the issue.
One in Four.
The history of Church/State indemnity is in the Paddy Doyle blog. There is a lot
of reading and research in it, will add in the link.

by C Murray Sun Oct 07, 2007 18:27

This site deals with many of the issues pertinent to the Church/State indemnity scheme and also to
child abuse in industrial schools :- http://www.paddydoyle.com

Paddy is a writer who for many years has left aside his projects to work tirelessly on publishing the blog
and helping others through the legal miasmas of the indemnity deal, which are again in the news.
A statement by the woman in Cork whom the state is pursuing for legal costs issued yesterday questioned
why her abuser was in recipt of a State Pension (RTE News)

And the Sunday Papers:- are going into the great detail on the fees accrued by lawyers for the tribunals.
(Sunday Business Post).

http://www.drcc.ie