Mc Dowell's Double Whammy.

by Seán Ryan Thu Jun 01, 2006 14:23

I've said it before, but it bears repeating again, now that McDowell is taking this idiotic approach.

A child cannot sign a contract.

A child's assertation of their age with respect to the above is not a legally binding statement.

A child cannot consent to sex in any way legally, lying about age is not an acception to this.

A child cannot consent to be raped.

The hole in our justice system is about to be enlarged by McDowell's antics. If a rapist is allowed the legal sanctuary of "I thought s/he was of age." Responsibility for the crime is shifted to the child. Children have rights under Article 40 too (same article that was used on Mr. A's behalf). This is bad law and is not acceptable. It is a very cynical ploy I believe, to leave the country in an absolute mess for whatever government takes over next.

McDowell's new legislation will be challenged under Article 40 (at least) by children, parents, and rights groups. This effectively means that the current gaping maw in our 'justice' system is enlarging and will be patched no time soon - irregardless of what spin is unleashed.

Legal tennis. First we look at rapist rights under article 40, thus stripping victims of their rights under article 40. Then we go back to court to take care of victim's rights under article 40 and thus again strip rapists of their rights. And so on. Result is that rape is only illegal when the victim is of age. Irish logic.

This hole is quite easy to repair.

The rapist has responsibility for the crime. The rapist had a responsibility to ensure s/he didn't commit a crime to begin with. At no time should either of these facts be artificially mitigated. Adults must be held accountable for ensuring that they know for certain that those they can legally 'choose' to have sex with are adults. No exceptions.

To make law that looks at this issue in any other fashion, is to put holes in every law that effects children, and is reckless in the extreme.

In what I have said in this comment I consider 'rapist' and 'paedophile' to be the same thing.

I am shocked and disgusted that rape enablement has to be a topic for discussion to begin with, I'm outraged that it is now on the national agenda.

by Willi Munzenberg Thu Jun 01, 2006 14:37

A person can genuinely make a mistake about a 14, 15, 16 yeat old girl believeing that she is 17. That should be taken into account in any trial. Are you also saying that if 2 14 year olds have sex then the boy should face life in prison? Or 2 16 year olds, should that be crime wherby the boy goes to prison?

by Seán Ryan Thu Jun 01, 2006 14:52

Nope.

I'm saying what I said. I didn't deal with sex between children. I dont think sex between kids should be a legal issue, a social issue maybe.

I'm sticking to my main argument too.

Of course a child can look older than his or her age. But a publican will still get busted for selling drink to this child. Why should a publican not benefit from this gaping hole in our law too?

Maybe they will.

by Willi Thu Jun 01, 2006 14:56

A publican is supposed to look for ID. Are you suggesting that I ask a young woman for ID if I meet her and things go well?

by Seán Ryan Thu Jun 01, 2006 15:19

I'm suggesting no such thing as demanding to see an id card.

I'm suggesting that if an adult has sex with a minor it is rape. I'm suggesting that the onus is on the adult not to rape. I'm suggesting that the onus can never be legally placed on a child to begin with.

If you are responsible enough legally to have sex, then you are responsible legally not to rape a child.

That's what I'm suggesting.

If you think asking a lady for proof of age is inconvenient, I suggest you consider the consequences of raping a child.

I don't mean 'you' to refer to you specifically Willi.

I think the idea of consentual sex between two people, where one could be an adult but not more than two years older than the other person, is ok. But a line must be drawn. That's where I'd draw it.

by Willi Thu Jun 01, 2006 15:35

But what about a 19yr old and a 16 yr old, in a consensual relationship, how could that be regarded as rape? IMHO its not.

by Seán Ryan Thu Jun 01, 2006 16:09

Let me put it his way....

A 34 year old and a 16 year old would be a lot worse than a 19 year old and a 16 year old. However either is illegal or rather was illegal up until recently. I think either should be illegal. (When the way the whole law works, is simplified, as opposed to the way it is now, I'd reconsider this view.) I think the law should over-protect the child rather than under-protect. The law is set up to function with a very black & white viewpoint. Until this is changed I think it would be wrong to proceed differently to the way I've outlined.

I understand that some people mature faster than others. I know some kids are more mature than many adults will ever be. The law must never be about perfection and in truth it doesn't even try in this regard. The law should be about protection.

I don't mean to be rude, but we could stay in 'what if' mode forever. Why not just post your ideas on the topic in their totality?

I'm not sure where you stand on this issue.

by Willi Thu Jun 01, 2006 16:26

There should be a common age of consent of 16.

A defence of genuine belief re age should be allowed (it has to be allowed, it would take a constitutional amendment to change that). I dont think Judges or juries are naive. This defence would only be accepted in reasonable cases.

Where sex takes place between teenagers (13 to 19) I think that it should not be a crime if the age difference is not more than four (4) years.

by chris Murray - the unmanageables Thu Jun 01, 2006 18:48

Got a pass into the public Gallery for the debate. Unfortunately short-hand is crap.

Re, The age of consent. The issue here is the crime of rape. it seems largely to pertain to
older men, and very young girls.(not teenagers). The issue can be clouded by media hype and spin
which is unfortunate. The first argument re Belief or honest mistake was the case involving two teenagers. The section 1(1) was called into question. What happened with MR A is entirely different, he pleaded guilty not alone to rape of a 12 year old, but to knowing that she was 12. Because the
earlier judgement had not been addressed over the intervening 8 days, by statute, Ms Justice laffoy had no choice but to declare the law (incepted in 1937) null, non-exsistent.

The political issue is that the DPP and AG had carriage of the case, but
Mc Dowell claims he had no knowledge of the seriousness of the matter. The Ag claims he did not personally know, but his office were handling it. The problem is specifically legal
in that serial paedophiles are lining up to the test the case made by MR A and there is no legal recourse for the victim, who has essentially been doubly betrayed.

by k.l Thu Jun 01, 2006 19:20

Yes, Michael McDowell should have acted quicker to close this loophole but we'll see what happens anyway with this case of Mr A. But regarding McDowell's previous work at closing loopholes like that in the citizenship ring etc, I hope he'll do equally the same in this case and get these rapists where they belong- in jail. Irish law signed from the 1930's - 1960's possibly needs to be reviewed in order to access any loopholes in them that are unconstitutional.

by anon Thu Jun 01, 2006 19:34

Clifford T for Minister of Justice

The most important Issue

by PD Thu Jun 01, 2006 19:37

But every Minister for Justice since July 1990 bears some degree of responsibility, There is nothing that McDowell, Bertie, Enda, Pat, Trevor, Gerry or anyone could have done to prevent the releases once the Supreme Court had ruled. Now it looks as if there is a reactionary backlash with no chance of reasonable amendments being made to the age of consent. FG actually want to raise the age of consent for males to 17 from the present 15.

by noraflah Thu Jun 01, 2006 19:39 Galway

Were not living in the stoneage anymore. Life expectancy has more than quadrupled since then, people can remain as kids, scholars, workers, and pensioners for a lot longer.. what's so wrong with letting kids remain as kids for as long as possible? I agree the age of consent should be formalised properly.. that being 16. I have a teenager myself and I work with teenagers and frankly they're as confused about sex as I was when I was a teenager - many moons ago - the media rubbish about the crazy sexualised youths is stupid tabloid fodder.
Why not just give Irelands young people, state and society backing for their rights to enjoy their childhood. Anyone who interferes with that right should be dealt with according to their age just like any other offence.
If the state does not protect the rights of children it leaves the arena open to disillusion, anger, and eventually vigilantism if the recent wave of confusion and anger amongst the public is anything to go by

by k.l Thu Jun 01, 2006 19:42

Yes, and when Fine Gael were in Gov't with Labour and the democratic left in the so called 'rainbow coalition' in the 1990's, why didn't they ammend this loophole either?

by The bad one Thu Jun 01, 2006 19:44

.

Lock up your Children!

by Seán Ryan Thu Jun 01, 2006 19:50

Admittedly every minister up until McDowell bears responsibility in this, no question of that. But this issue happened on McDowell's ministry and there was plenty of prior warning. If it had been something good that happened you can be sure he'd have oozed up to take the credit for it.

The day that constitutional protection was removed from children, stories appeared on Indy and said what would happen. McDowell had time to shore this up before Mr. A's case became an issue. Instead he did nothing. He said everything's going to be fine, that there was no hole.

Not only is he responsible for this he is personally responsible for Mr. A's release and any others who use his incompetence to escape.

He is the minister for justice. This is his version of justice. It's not mine.

by k.l Thu Jun 01, 2006 19:52

Thought that was obvious.

by k.l Thu Jun 01, 2006 19:58

Sean,
Yes, he does have questions to answer as minister for justice relating to this but we cannot afford to turn this whole game into a series of criticism, rather we should be campaigning to close this loophole. It doesn't matter what Government is in power, but I genuinely doubt that this loophole would be sorted out even if FG/Labour got into Government. Joe Costello seems less aware about our constitution when he attends ant-deportation rallies.

by PD Thu Jun 01, 2006 19:59

"McDowell had time to shore this up before Mr. A's case became an issue. Instead he did nothing."

Nothing that he could have done would have affected the Supreme Court decision which struck down the Act. This decision put the convictions in doubt. No new Act could be made retrospective, that would be unconstitutional. Even if a new Act had been passed on the same day of the decision it would affect whether or not those guys get released.

It does not look as if there will be a sane and rational debate on this issue even on Indymedia. Hysteria and Tabloid headlines are the order of the day.

by Seán Ryan Thu Jun 01, 2006 20:10

You've qualified nothing that you've said. Your's are the tabloid headlines. If you'd read Indy like you hint you do, you'd see plenty of qualification for what's said here.

by Chekov Thu Jun 01, 2006 20:21

We know that McDowell knew there was a problem with the legislation in the area for many years. He has been minister for justice for some years. The job of the minister for justice is to propose legislation where it is needed. Regardless of the decision of the supreme court, he did not carry out his job as minister competently. He failed to produce legislation in an area where he knew there was a problem. If he had brough legislation forward some years ago to fix the problem several of those who are now going to be freed could have been prosecuted under the new constitutional legislation. Trying to blame previous administrations and the DPP is simple buck passing and whataboutery. Just because previous ministers were incompetent does not mean that incompetence should become a precedent and an acceptable standard for a justice minister.

He's got to go.

by Seán Ryan Thu Jun 01, 2006 20:53

I agree with you k.I. This will be a big issue irregardless as to who goes into government. I'd even reckon that all this would have happened irregardless as to who was in government.

This in no way excuses McDowell, it just points out that mostly people who choose to put themselves forwards to rule are not up to the task.

I'll be blunt (as usual):

Our whole constitution is messed up. There are many places within law that disagree with our constitution. Indeed there is much in the constitution that disagrees with itself (Either that or our government regularly commit treason, with those in opposition watching without comprehension).

I think we need to go back to the drawing board. We need to meet up in our communitiy centres across Ireland and discuss what it is that we want. We then need to have our wishes enshrined in the constitution. I'm not talking referendum either.

Re-write!

Will not be an easy task. Will be impossible with any combination of Parties currently in the Dáil. Communitiy leaders need to get vocal and need to start talking to each other. We need a real government.

Of course the chances of this actually happening are so slim that it could be called impossible. Still it's not a crime to dream - yet.

Short of my dream becoming a reality, I'd deal with the law the way I've already said.

by iosaf Thu Jun 01, 2006 20:54

As such he has spent years revising most 1930's and other pre-1922 legislation. His propagandists would have us believe that every Friday he'd pop into his state car buzz down to the Roscommon hideaway & pour over the constitutionality of our older laws till Sunday supper.

If there is one member of the government whose head should roll for this - it is Mc dowell.

The Mr A. test case first attracted attention in Irish legal and constitutional ( & clever people ) circles early last Autumn, and featured in the Irish Law Gazette in October of 2005. In the last weeks the Taoiseach thought to use the phrase "appaling vistas" to describe at first what he thought would not happen . The phrase "appaling vistas" has much resonance. It was used by the late Lord Denning in his 1979 judgement which quashed the appeal of the Birmingham 6.
""If the six men win, it will mean that the police are guilty of perjury, that they are guilty of violence and threats, that the confessions were invented and improperly admitted in evidence and the convictions were erroneous... This is such an appalling vista that every sensible person in the land would say that it cannot be right that these actions should go any further."

Obviously the Taoiseach was mindful of the death & funeral of one of those 6 men Richard McIlkenny on the 21st of May 2006, and the soundbyte cliche just gurgled out of his capacious mind as being "fit". I have continued to reiterate the phrase "appaling vistas" in everything I've written on this matter since, either here or in correspondence. It is most significant that a justice of the High court in her judgement which released Mr A. this week also chose to use the phrase "appaling vista" . I was privy to letters written before the release of the Birmingham 6, between a writer and Lord Denning over the exact nature of that judgement. That correspondence was continued over many years between an individual who had been at school with Denning and spent most of his life well-liked in international anarchist circles and lived in Dublin - ( I was his secretary ), he was also friend to one of the Guildford 4. The letters from Denning towards his end were typewritten by his daugher, Denning spent the last 13 years of his life with extreme phsyical and neuroligical problems & no-one can say his living to 100 years proved a joy, he rarely seemed coherent, rather he seemed a tortured a unsure man.

There is presently much more at stake than the quality of our legislation or the direction we as a nation take on sexual morality in the future.- The political dimensions which facilitated one of the strongest Dail opposition attacks on an incumbent regime will quickly slip into forgetfulness.
We are all (as political activists & citizens) in a highly managed process of regime collapse . Without boring the reader, an important indication of that process was the air-time given to certain opposition leaders on this affair, and the choice of the first FF member to broach the subject outside of the Taoiseach. I made it clear, as clear as any thinking person interested in the wellbeing of the Irish nation that the solution to what has happened, the "patch" on the "appaling vista" may not only be a legal one.
By its very nature the subject demands socio-economic, educational, cultural, ethnic & health elements. Yet the FF ministers for family and social affairs, or education and science have not made any comment, instead the minister for Finance Brian Cowen was wheeled out to exonerate the government from causing the "appaling vista" . Of all the FF ministers of state, his really has to be the most displeasing phsyiognomy, so one would naturally wonder why he stepped in to the breach..... I suggest that he did so, or was made do so, as he is one of the FF front bench who enjoy the "privelage" of being a touted future leader of FF and his pronouncements were not aimed at the general public but the backbenchers of his own party. Thus we may reflect that the "appaling vista" is not just about sexual offences, the negligence of Mc dowell, or even gender equality - it is yet another phase in the "smooth transfer of power" to an new government led by the FG / Labour parties "with business as usual for the most part".

I urge everyone to continue to demand the resignation of Mc dowell, and also to demand the Taoiseach ask the President for permission to dissolve the Dail and call a General Election. I also urge all deputies of the Dail to consider very carefully the "emergency legislation" put before them, and regardless of "public outrage" consider its true merit for the future good governance of Ireland because this issue will not be "patched" or "solved" or dealt with, if the elements of common directed policy on socio-economic, educational, cultural, ethnic & health grounds are linked.

by Chris Murray - the unmanageables Thu Jun 01, 2006 21:05

Mc Dowell seems confident enough to ask for two special sittings in Dail Eireann on wednesday to push thru the contentious Planning and development bill, (Which excludes the Poolbeg incinerator). I was, until I read your article, convinced that this was an act of political beligerence. This issue is using the victims of rape as collateral in a political game and it sickens me to my stomach.
Tried to report it as dispassionately as possible. The dail debate tomorrow will be the next report, I believe that Indy/revolt will cover the supreme court appeal.

by - Thu Jun 01, 2006 21:30

They could have leaked details of all defendents& allowed for vigiliantes to take them out - but they didn't. We are dealing with a regime, not just a government, which has become so complacent in its abuse of its power, and the collusion of the other estates of society (Media, Security, Academia & the Judiciary) that it has now launched yet another of its "salvage plans". If the government was forced to call a snap election _now_ the electorate would not have been massaged by the media and the outcome favoured by the regime - of majority FG with increased Labour seats would not occur. As an analyst, I tell you - election date called this week - you have a left wing government in Ireland by Christmas. The stakes are very high............ are they not?
Everyone on the left or in social or justice campaigns ought know that the problems of Ireland are not just the result of governments, rather they result from "a regime" & a regime that can quite happily plumb the depths of distortion, provocation & public opinion management. Only two people wrote on this story on indymedia Ireland, Chris :- {you & I} That is a simple indication of how untouchable the subject matter is. But don't think for a moment that our campaign of "regime change" shall end with this depravity, as you & your's never seemed to waver at every other injustice or criminal / un-constitutional manipulation before : we keep going! = we learn everytime.

by iosafwatch Thu Jun 01, 2006 22:30

I'm sorry Iosaf that us plebs don't have the oversight to see the importance of this, we failed you again, all knowing one.

by k.l Thu Jun 01, 2006 22:38

What matters most now is rectifying this problem. Even if Fine Gael had won a surprise victory in 2002, god only knows what their justice spokesperson would have done if he 'were the man' in the office today.
It seems that, at present anyway, the opposition are satisfied with the action the Gov't will take legislationwise, to stop people like "Mister A" from walking free.

by iosaf Thu Jun 01, 2006 23:30

It was for the lurkers

I and all the imc regulars, and all those who have worked so hard in Ireland against such odds to campaign for "equality without avarice or hypocrisy" are going to fight whatever minister of Justice "the regime" passes power to, he or she will probably not begin as arrogantly as Mc dowell finished.
Never forget you lurkers! We are neither "the rainbow" nor "FF&PD". We are not playing games with public opinion and outrage to smoothly carry on business as usual. We have not Confused *paedophilia with *teenage sex with *sentancing policies with *sexual crime legilislation with *gender politics with the *age of consent - we have not smudged the constitutional independence of the judiciary and the executive, we have not arranged a public opinion management game to present "strong opposition leadership" of only 2 parties....
That was never going to be "our game".
Sorry if I come across as arrogant to some of you. @ least I will never sit in Cabinet.

But the deputies who do sit in the Dail ought think -
is the emergency legislation - the best solution?

by k.l Thu Jun 01, 2006 23:42

Great, Now we can finally get on with our lives now. And Mister A can get on with his life too- in the clinker

by Seán Ryan Fri Jun 02, 2006 00:00

Brian Lenihan the minister for children has had a look at the 16 page document that constitutes Mr. McDowell's emergency legislation. And has finally opened his mouth.

Here's what he had to say about it: “We’ve received the best legal advice, we applied all our collective minds to it at the Cabinet table, and the outcome is the best solution to the unprecedented situation we were presented with.”

http://www.irishexaminer.com/breaking/story.asp?j=15167...49&x=

Well that's that so.

I'll sleep better tonight.

by con carroll - class war Fri Jun 02, 2006 11:52

lets not forget that these same politicians signed the indemnity deal in June in 2002
which allowed members of religious congregations who raped children in institutions during the 1960s 1970s 1980s to walk free which was signed by the ex minister for education Michael Woods
for compensation to survivors of child abuse which costed the Irish tax payer 128 million
once survivors accepted this and signed for it they were silenced.

youth should not be criminalised for consentual sex
proper sex education with out scare mongering towards youth is needed with adequate funding
the age of consentual sex between youth should be 16
the real issue is that we are looking at the same faces in the Dail for to long

let us not forget pds friend judge Brian curtain is now involved with musical school were children attend

Rabbitte Kenny Howlin haven't got the balls to stand up to the right wing establishment, because they are part oft he problem.

by flanners Fri Jun 02, 2006 18:32

was at the protest today. couldn't believe that Colm O'Gorman the wexford candidate for the PDs spoke at the demonstration. jaysus the cheek. if he was an Independent candidate he'd be calling for McDowell to resign, but nah he chooses to ignore the fact that the Party President, Michael McDowell is responsible for this bloody mess.

by Protester Fri Jun 02, 2006 20:23

I agree with Con on the question of sex education. There is also a need to overhaul the way in which sexual assault is dealt with by the Courts and the Gardaí.

However I disagree on his call for Age of Consent set at 16. (Obviously this would be step in right direction as it reduces number of young people criminalised). I think that Age of Consent should be abolished all together. If someone consents then there should be no crime. If you have any age restrictions you leave yourself open for young people being criminalised for private sexual activities. State should not interfere. With proper sex education young people can make informed decisions about engaging in sexual acts (or not if they don't want to!). With a courts system that is open and sympathetic to victims then rape cases can actually be successful which most are not at moment. This is where change is needed, not by having a Age of Consent law (even if revised).

by sáiteach Sat Jun 03, 2006 00:44

In today's historic debates in the Dail & Seanad, which saw the word "fellatio" entered into the record for the first time in Dail history, (and the 5th time in Oireachtas history) something very interesting emerged -

Mc dowell admitted he had seen the apalling vista but [to qoute RTE] "Justice Minister Michael McDowell told the Seanad that he had not acted to replace the 1935 act earlier because he did not think to do so would be in the best interests of victims of statutory rape."

Quite something. no?

My favourite moment of the Senate emergency debate was the moment at the beginning of the minister's statement when he said " I am pleased to confirm the Supreme Court have found against Mr A" (or something to that effect). Senator David Norris jumped to his feet and shouted "splendid!".
I noted the absence of certain Senators and also of deputies in the Dail, & await with impatience the publishing of the record - just to see what magical collusion the party whips managed to get up to.

Of course the Irish establishment and "Regime" want us all to forget this as quickly as possible nothing upsets them more than sex abuse victims practising the right to nationwide public assembly, & they really needed to convince themselves they've "righted the wrong". So I feel a bity wicked in warning you all, that the new legislation is seriously flawed and will see serious challenges and cause very difficult and traumatic prosecutions within the next 2 years. & we may then look back at Mc dowell's warning of same earlier today. http://www.rte.ie/news/2006/0602/sex.html
Another interesting little titbit to emerge today came in the Supreme Court - the fact that there have been 87 laws sucessful challanged and found to be unconstitutional.
(To my mind an bunreacht has long outlived its usefulness & proved itself so flawed we really desperately need to write a new one & its not the first time I've said it. c/f http://www.indymedia.ie/article/25255 ) But the regime lack the imagination or willpower I suppose, and thus are happy to patch it constantly. They also appear to do their best to stop any swing to political ideologies which would write a new constitution amongst the electorate of the legislature and executive or those lawyers who are raised to the judiciary. That's really why they deserve to be called a "regime".....Let's see how long today's laws last as a solution.

Meanwhile :-

Happy Holidays all you hardworking deputies of Dail Eirinn and Senators of the Seanad!
We hope you weren't traumatised by the use of the word "fellatio" and we really hope one of you can squeeze in the first utterance of "cunnilingus" soon. Maybe some day you'll rush through emergency legislation on hospital beds, free school books & free school dinners.

by namesandfaces Sat Jun 03, 2006 10:39

Name and shame, should McDowell take all the flak.

DPP James Hamilton

by c murray Sat Jun 03, 2006 12:45

and share it with the justice spokespersons of the opposition
who failed to address the issue of child predation and paedophilia
and suceeded in punishing the people they say they wish to protect.

by Chris Murray - The Unmanageables Sat Jul 15, 2006 17:46

Source - disclaimer/discussion document in Today's Irish Times. (www.ireland.com)

" Those who demanded 'emergency legislation' loudest are now pointing out the implications
of legislating in a hurry"

(well that will happen won't it).

Mr Mc Dowell, whom we are informed at the end of the article is Minister for Justice, Equality and Law Reform, today published a rejoinder and explanation of a period of time in the run up to the 'double whammy' (details at the top) which attempts to address his critics, regarding the constitutional crisis provoked by the 'CC' and 'A' cases.

He states that " two issues in particular have been raised as a result of the rushed legislation:
"in relation to the age of consent, Labour argues for changes whilst Fine gael threatened non-co-operation if there was any change"

and...

"in the matter of consensual underage sex, labour tendered an emergency bill which would have criminalised the boy but not the girl (both are presently criminalised in relation to section 5 of the Criminal Law (saexual offences Bill) 2006.-just as was done in 1935. So did Fine gael in its separate bill. But Labour later objected to the same outcome in the government bill, even though the government bill introduced a prosecutorial veto for the DPP".

Which we all got anyhow.

The questions raised (largely alone in indymedia,given the silence of the NGO's on the issue of lack of female Td voice, the insertion of section 5 and the retention of amongst other things the 'honest belief mechanism of defence, which A did not utilise, as well as putting a victim of rape on the stand to describe clothing and behaviour at the time of the assault) were to do with why the issue of Laffoys decision was not addressed at the time and why the democratic defecit operating amongst the opposition only led to one Td objecting to the Bill in toto (Joe Higgins TD). all parties did not impede the passage of the legislation through the Dail, despite stated reservations.

Surely the debate was the time and place to raise questions on the issue of statutory rape and not a croo-party sub-committee post the bill moving through the Oireachtas?

Awaiting therefore the right of reply by (hopefully) some female TD, who will clarify the issues raised in relation to criminalisation of children and excessive state control of private morality issues.