(29 October 2006) - MAEVE SHEEHAN

AN OFFICIAL proposal to the Government to keep the age of sexual consent at 17 for both sexes is seriously at odds with public opinion which would like to see it lowered in the face of social reality.

The Oireachtas Committee on child protection is to recommend the status quo while a nationwide telephone poll by the Sunday Independent shows that 65 per cent of the public want the age reduced to 16.

It is also known the Government would prefer to reduce the age to 16, bringing it more in line with what is commonly believed to be the reality of sexual activity among teenage boys and girls.

The issue was discussed at a meeting of the committee last Thursday. Yesterday, committee sources said the volume of submissions in favour of 17 has swayed the 13-member cross-party committee towards recommending it as the legal age of consent in its report to the Oireachtas next month.

The committee was set up to review criminal law relating to sexual offences against children, and the age of consent, in the wake of the debacle last summer, when the Supreme Court struck down the law on statutory rape. A convicted statutory rapist had appealed successfully on the grounds that he had not been afforded the defence of mistake of age.

It is known that Justice Minister Michael McDowell favoured lowering the age of consent to 16. The Minister also advocated sanctioning "peer sex", so that a teenager would not be criminalised for having sex with another teenager who was within two years of their own age.

However, the period of reflection he advocated was ruled out as Fianna Fail backbenchers came under public pressure. Emergency legislation was rushed through.

However, sources said that "Government voices" on the committee are still pushing for the age of consent to be lowered to 16, the age favoured by the Justice Minister and the Labour Party.

That position is supported in a Sunday Independent telephone poll today. Almost two thirds of respondentsfavoured 16 as the legal agefor sex while 35 per cent favoured 17.

However, last week an ESRI study poll of 7,000 people found that the average age of first sexual intercourse in 2006 was 17.

Professor Finbarr McAuley, the UCD criminal law professor and acknowledged expert in this field, said to leave the age of consent at 17 in his recommendations to the committee. The Rape Crisis Centre has also said that the age of consent should remain at 17.

And sources on the Committee, which is chaired by Fianna Fail TD Peter Power, have told the Sunday Independent that they have been receiving numerous submissions favouring the retention of the present limit and that it is now likely their recommendation will be in line with these submissions.

After the enactment of what a Government source described at the time as the "bastardised" June legislation, the Labour spokesman, Brendan Howlin, pointed out that previously it had not been illegal for a 16-year-old boy and girl to engage in consensual sexual acts other thanintercourse.

After the June legislation, this became a crime.

Prior to the legislation, if a 60-year-old man sexuallyinterfered with a consenting 15-year-old boy, but did not perform penetrative sex, he was guilty of gross indecency under section 4 of the Criminal Law (Sexual Offences)Act 1993.

Anomalies in the June legislation meant that if two 16-year-olds engage in sexual intercourse, the boy is guilty of a serious offence, but the girlis not.

If the girl performs oral sex on a boy, they are both guilty of a serious offence. If the boy performs oral sex on the girl, then neither of them is guilty of anything.

Sources said that in addition to public submissions, a further factor weighing the committee in favour of 17 was the need for a common age of consent North and South. In Northern Ireland, the age of consent currently stands at 17. It is understood that Fine Gael, which has persistently argued that 17 should be the age of consent for boys and girls, pointed out the need for a common age of consent with Northern Ireland at last Thursday's meeting.

The 1935 Act set the age of heterosexual consent for girls at 17. It was completely silent as to the age for boys.

The 1990 Criminal Law Rape Amendment Act set the ages at which people could consent to sexual touching. It said that at under 15, it was not permissible to sexually touch a girl or a boy.

By implication, that meant sexual intercourse with a boy under 15 was illegal.

In response to the CC case concerning statutory rape, the 2006 sexual offences act made a common age of consent for boys and girls at 17. So it raised the age of consent for boys to put it on a paritywith girls.

Justice Minister Michael McDowell had wanted to replicate the situation in the UK and have a common age at 16 for boys and girls. If changed to 16, the age of consent for homosexual acts would have to be lowered from 17 to 16. Lawyers for the committee will now draft a report which will recommend an age of consent based on the views of the committee and on public submissions. The committee will discuss the draft report in a fortnight's time before signing off on an agreed age of consent. A final report must be presented to the Oireachtas by November 30.

Sources said while no decision has been made, almost all of the submissions received by the committee were infavour of 17 and "the committee, in fairness, will be guided by that".

One source said: "I think it's reflected by all parties that if this is what the general public is looking for, if this is what they want, who are we to say no, that's not right. That is the whole reason we looked for submissions."

Another source said: "The indications are at this stage that there will be support for maintaining the age of consent at 17."

The age of consent is just one issue being deliberated by the committee, which also includes Michael McDowell and Brian Lenihan, Minister of State for Children. It is also examining whether the Constitution was adequately protecting children.

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