GIVEN A decision that was taken by the Irish Supreme Court recently, it may be prudent that we seek assurance from the Government that our law in Jamaica is not similarly vulnerable. The issue relates to Section 1.1 of the Irish Act of 1935, which governs rape.

The Supreme Court accepted the argument that in as much as the law did not allow for any defence to be offered, once intercourse had taken place, the law was inconsistent with constitutional provisions for the right of defence.

The case which brought down the law in question was one in which a boy of 17 had sexual relations with a girl of 14. Under the law, the boy was automatically guilty of rape, since the age of consent is 15. The fact that the girl consented was of no consequence, since under the law she was not of the age to consent - which is why it is called statutory rape.

Lawyers for the boy argued, though, that the boy honestly believed that the girl was 16, as she said she was.

However, the law denied him the right of defence even though he, in effect, made an honest mistake. The Supreme Court upheld that the law was unconstitutional, which meant that the law had to be repealed.

NO PROTECTION

The issue has proven quite embarrassing for the government for a number of reasons. First, suspicions about the constitutionality of the law were raised several months ago because of cases brought before the Supreme Court. The court had in turn invited submissions on the issue, but the Minister of Justice, the Attorney-General and their team seemed to have turned a blind eye or missed the moment, being preoccupied with other less crucial matters.

In a discussion paper a few years ago, 'The Ministry of Justice, Equality and Law Reform' referred to the very law as "the bedrock of protection given by the law to girls under 17 years of age." One must then conclude that with the removal of that law, the bedrock of protection for girls under 17 has been removed. No wonder there was a serious outcry, especially from organisations concerned about the protection of children.

Another reason for the embarrassment is that, within a week of the striking down of the law, persons who were incarcerated on the heels of it began appealing their conviction. At the time of this article, the Irish government was appealing the ruling of a case in which a prisoner was released after successfully challenging his incarceration on the basis of the unconstitutional law. It is is feared that as many as 12 imprisoned rapists are lining up to make a case for their release on the same basis. The government was hastening to draft legislation to plug the legal loophole.

SEXUAL RELATIONS AND THE LAW

Our legal luminaries in Jamaica may want to satisfy us that the constitutionality of our law governing statutory rape is foolproof. My suspicion is that the law has not yet been tested on that basis. As far as I am aware also, the discussion on the Charter of Rights has not yet thrown up any question of this nature. It would be a great tragedy if after knowledge of this unfortunate development a similar thing were to happen in Jamaica.

While the government is seeking to give us the assurance concerning the strength of our law on statutory rape it may also assure us that it does not intend to go the way of several countries in Europe in legalising sex among early teens. The argument in support of legalising sex among early teens in Ireland is largely predicated on the fact that early teens are involved in sexual activity anyway.

A survey in one county revealed that statutory rape is happening all the time, as a large percentage of teenage mothers were involved in sexual relations well before the age of consent. Proponents argue that given the incidence of sexual activity among early teens, the law will not only lower the age of consent but ensure that early teens whose partners are only two or so years older need not face prosecution for rape. However, the argument to move towards legalising sexual relations among a certain age group of early teens simply because it is occurring will end in absurdity. From that position it will be hard to make a case for outlawing any sexual activity and, in time, any union at all.

SEXUAL UNIONS ­ THE DILEMMA

The dilemma faced by those who want to proceed on the basis of 'if it is happening then we must legalise it' is similar to the dilemma in which the Government finds itself with respect to the issue of same-sex unions. In a few days hence, lawyers representing a section of the religious community will return to Parliament to urge lawmakers to think carefully about how they proceed in the matter of same-sex unions. If the situation in Ireland is anything to go by, the society must be prepared to make the notion of marriage null and void when one argues that any union between two consenting individuals can, in effect, be treated as a marriage. According to the Irish Justice Minister: "If we are to offer them [same-sex union] something with all the rights and entitlements of a valid marriage, it should also have the same duties attaching to it - indeed, the rights of one partner are often the duties of the other. In effect, it is marriage, albeit by another name."

The serious consequence of this position may only occur to some people when we arrive at a place where we are forced by the logic of present attitudes to relationships to regard the union between two 15-year-old females or males as a formal union. This is not as far-fetched as it seems. Already the link between age of consent for sexual relations and the legal age for proposing cohabitation is being made. Disaster, thou art afoot!

Dr. Livingstone Thompson is a Jamaican theologian working in the Republic of Ireland. He may be contacted at lthompson@citc.ie.