McDowell's loophole in underage sex law removes vital protection from kids
Issued : Thursday 1 March, 2007
Justice Minister Michael McDowell has been desperately seeking to divert
attention to his new plans for new laws and offences to deal with the sexual
grooming of children by paedophile rings. But the fact is that, under his watch,
a fundamental error in the law was made which removed protection from children
and which places them at risk from sexual predators.
Up until last summer, soliciting or importuning children for sexual purposes was an offence under s. 250 of the Children Act 2001. The offence was committed if a child was approached with the intention of committing certain sexual offences - and it was committed without there being any need to prove that a sexual act was committed or attempted.
Of course it remains the law that a sexual act with a child is unlawful and that attempting such an act is also an offence. And it should be pointed out that "aiding, abetting, counselling or procuring" the commission of such an act by another person is also an offence. There are also provisions dealing with distribution of information for such a purpose.
But, in what can only be called an astonishing oversight, the law relating to soliciting and importuning children for sexual purposes was effectively abolished by Minister McDowell's Criminal Law (Sexual Offences) Act of last summer.
It was effectively abolished because the section of the Children Act that prohibited soliciting and importuning was framed by reference to specific sexual offences against children. But those specific sexual offences were repealed by the 2006 Act and replaced by new offences. The end result is that section 250 of the Children Act 2001 now has no effect or meaning.
The events of this week demonstrate how vital it is that we maintain real and effective laws to guard against sexual predators. The provisions dealing with sexual grooming, which were published in draft form last year, are necessary and welcome.
But some of that draft Bill will merely reinsert into law prohibitions on behaviour that would have been illegal if the law on soliciting and importuning had not been repealed last year.
When the new Bill is enacted, a person who, in any place or by any means, solicits or importunes a child for the purpose of unlawful sexual activity will once again be guilty of an offence and will be liable to 7 years' imprisonment in respect of children under 15 and to 3 years for those above that age.
But in the interim no offence is being committed.
Minister McDowell's approach to legislation made it inevitable that mistakes of this sort would inevitably occur. We can only hope that no child and his or her family must suffer the consequence.
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