Shane Ross

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Mr A case: the Supreme Court Decision is a Relief but the New Legislation is Flawed

Posted on: June 2nd, 2006

The Supreme Court judgment is a great relief and will do a great deal to defuse the public unease which was undoubtedly and rightly stirred by the newspaper reports and photographs of rapists who would have been released on what is a technicality, albeit a strong one.

However I have certain reservations about the Bill.

This legislation is flawed, because age-related legislation is, almost by definition, flawed. It is unfashionable to use age as a criterion when deciding on many issues and this applies particularly to older people in relation to driving and so on – ageism is frequently condemned. However, regarding young people, we need to consider the issue. The Minister has a difficulty because we discriminate on the basis of age between 15 year olds and 17 year olds and in this Bill we identify these ages as crucial. There are mature 15 year olds who can make mature and sensible sexual decisions and there are also extremely vulnerable ones.

There is a case for having special courts with special witnesses and special expertise in this area. What Senator Jim Walsh said is right in that the idea of bringing children aged 12 into courts under what is an extraordinarily robust adversarial system is completely unacceptable.

The Minister will know that the rough and tumble of cross-examination in the courts is something for which children are utterly unsuited. Special rules should be introduced in these cases if children have to be asked questions of an extraordinarily delicate nature to which any adult would find it amazingly difficult to respond.

I hope this matter will shake us into a realisation that the behaviour of young people is something about which many of us were out of touch. I heard the Minister say on a radio programme the other day that he thought it was out of date to legislate for people’s sexual behaviour in various matters under a certain age. The reality is that young people are much more sexually advanced than they used to be.

Old men and old women in these Houses are legislating for young people outside these Houses and perhaps the legislators are not in touch with the behaviour which young people find acceptable.