By John Spain

IT’S the unexpected things you don’t see coming that get you into trouble, the former Taoiseach (Prime Minister) Albert Reynolds said ruefully back in the 1990s after he had lost power over the Father Brendan Smyth affair (Smyth was a pedophile priest whose case had been delayed and mishandled by Reynolds’ government).

Within a week of that story breaking, public outrage over the case had fatally undermined Reynolds at a time when he was flying high as taoiseach and energetically pushing the economy and pursuing peace in the North. Before long he was gone, consigned to history as a former taoiseach when he was at the top of his game.

The parallel last week with what happened then must have sent shivers down the backs of present Taoiseach Bertie Ahern and his ministers. Another screwed up case involving sex with a child.

As a result, a queue of convicted child rapists were demanding release from prison. Public outrage was sweeping the country. The newspapers and TV were giving blanket coverage to the story.

The whole thing culminated in street protests in towns across the country and a major protest outside the Dail (Parliament). There was open speculation about whether ministers would be fired and derision about Ahern “hiding” at an AIDS conference in New York when he should have been here to deal with the crisis.

And crisis it certainly was. For around 24 hours the government teetered on the brink of disaster as they waited for a critical ruling by the Supreme Court.

The government came within a whisker of completely losing public confidence. Minister for Justice Michael McDowell’s many enemies, mainly of the Republican variety, screamed for his resignation.

It’s the little things that get you — like a court case you don’t give enough attention to — the small things you don’t see coming down the line while you’re busy with matters of state and the complexities of running the Celtic Tiger. For Ahern, already reeling from his poor showing in the opinion polls despite the best performance on the economy ever by an Irish government, this must have seemed like a rerun of what had happened to Reynolds.

Ahern’s government has survived — but only just. The threat to McDowell appears to have receded. It is possible that the Attorney General Rory Brady may yet be dumped because of his failure to bring the matter to the attention of the Cabinet.

One way or another enormous damage has been done to the chances of the present government being re-elected in next year’s general election.

You may well have read about the case at the center of all this in the Irish papers or in the news pages of the Irish Voice. The legal ins and outs of what went wrong were unbelievably complex (that’s lawyers for you). But the core of the problem was straight forward enough.

On Tuesday of last week, a 41-year-old man who had been serving a three-year sentence for the rape of a 12-year-old girl after giving her rum was released from prison after 18 months. He had been convicted of statutory rape.

What happened was that two weeks ago the Supreme Court here decided that this law was unconstitutional. So the man went to the High Court and asked to be released. And even though he had pleaded guilty at his original trial, the High Court judge decided to set him free.

Even worse was to follow when it quickly became known that half a dozen other child rapists were getting ready to demand their release from prison on the same basis. There was even talk that they might sue the state for unlawful detention. The prospect of a succession of child rapists walking free from prisons here suddenly was a reality.

Needless to say the public was outraged. How could such a thing happen? Was the law gone mad?

It soon became apparent that the reason it was happening was because of delay and incompetence in our legal system. It was happening because of the failure by successive governments to update and unify our laws in relation to sex and children, laws which were currently spread over a number of statutes, some of which were very old.

It emerged that my old college mate John Rogers had asked the Law Reform Commission to report on what needed to be done when he was attorney general in the 1980s. But although a report was produced, little or nothing was done over the years since then. And so public fury last week turned on the politicians and lawyers who had let this happen.

The main problem was in relation to the old crime of statutory rape, which requires no evidence to be presented in court in relation to the rape. The simple fact that sex has taken place is enough.

So the child victims in these cases did not have to be cross-examined by defense lawyers, something that can be a horrendous experience for a child. This made it a popular legal route with prosecuting lawyers here and the Statutory Rape Law (1935) remained in use.

Our laws made a distinction between children under 15 and the 15-17-year-olds. Statutory Rape and other laws applied to the under-15s. Other laws like the 1990 Rape Act, were applied for those who had sex with 15 to 17-year-olds, and these allowed cross-examination about appearance, behavior, etc.

The accused could claim that he was led on by provocative dress or misled about age. And this distinction was the problem.

As the Law Reform Commission pointed out 20 years ago, a summary conviction under Statutory Rape did not allow for an “honest mistake” by the accused in relation to the age of the victim. What about a case where a girl looked older than 15 and may even have lied about her age?

So in its decision two weeks ago, the Supreme Court ruled that this 1935 law was unconstitutional because it did not respect the rights of the accused. Allowance had to be made for an honest mistake.

After Mr. A (he could not be identified to protect the child) was released by the High Court last Tuesday and other child rapists began to look for release, the country was outraged and the government appealed the release to the Supreme Court.

As a huge crowd gathered in protest outside the Dail last Friday, the Supreme Court considered the case ... and in contrast to what everyone expected decided that Mr. A’s sentence was lawful, even though the law under which he was jailed was unconstitutional.

Part of their reasoning was that Mr. A had pleaded guilty and had not raised the matter of an honest mistake during at his trial. This seemed to make sense, but by then the Supreme Court and lawyers everywhere here were becoming a laughing stock.

One week the Supreme Court decides that a law is unconstitutional and the next week it decides that a man jailed under that law must stay in jail. Great legal brains indeed!

The general view was that the Supreme Court, which is supposed to be above politics and immune to public pressure, had run scared and done the sensible thing to avoid an even bigger mess.

The government, for its part, introduced a new law to deal with the crisis. This was rushed through the Dail at the end of last week and signed by President Mary McAleese in record time. But like many rushed laws, it raises as many questions as it appears to solve.

The under and over 15 distinction remains, as does automatic conviction for rape for someone who has sex with a child under 15. However, the new law will allow for these children to be cross-examined by defense lawyers.

The age of consent that used to be 15 for boys and 17 for girls is raised to 17 for both sexes, in line with today’s gender neutral PC thinking. This, of course, ignores the consensual behavior of some teenagers in today’s Ireland.

To try to get around this, a clause says an under-17 girl cannot be prosecuted for having sex (otherwise all the young teenage girls of 15 or 16 who get pregnant would be criminalized). And for a 15-17 boy, a clause allows for a two-year mistake in relation to the age of a girl he has sex with, if he can show the court it was a reasonable and honest mistake. So if the boy is 16 and the girl is 15 but looks over 17, he may be found not guilty by the court if he says it was an honest mistake.

This two-year relation between the age of the two teenagers having sex, of course, makes a distinction between them and older men who have sex with young teenagers.

And there is a lot more of this kind of stuff in what is a convoluted and probably temporary piece of legislation. The trouble is that before all of this can really be sorted out there has to be an acceptance of a realistic age of consent, of no differences between straight and gay sex, of how much onus should be put on adults who have sex with teenagers to be responsible for age verification, of whether an adult male of 18 who has consensual sex with a girl of 16 is a criminal, and so on.

It’s a complex area, fraught with electoral danger in a country that still regards itself as Catholic. That is why politicians are so slow about tackling it.

And that is why we ended up in the mess we did last week. This one will run and run ... like the politicians!