Another child sex abuse fiasco

It is incomprehensible that the Government did not know of the "C" case years ago and that a constitutional crisis was likely. This will do lasting damage to the Government parties. By Vincent Browne

Bertie Ahern was foiled in his first attempt to become Taoiseach in 1994 because of child sex abuse fiasco (arising from the Fr Brendan Smith case). This new child sex abuse fiasco will inflict lasting damage on Bertie himself, on Fianna Fáil, on the Progressive Democrats and on Michael McDowell, the minister who carries most responsibility for this debacle.

The specter of seven convicted child rapists being released from jail because of Government incompetence ensures this is no fleeting crisis. The reconvening of the Dáil on Wednesday 7 June will prolong focus on the catastrophe.

The Department of Justice, Equality and Law Reform was informed of the constitutional challenge to Section 1.1 of the 1935 Act in December 2002, three and a half years ago, according to Mary Harney. And, knowing of the challenge, anybody who bothered to review the literature on the act must have known of the possibility (if not the probability) that the Supreme Court would find the section to be unconstitutional.

The leading legal textbook on this is Sexual Offenses, Law, Policy and Punishment by Tom O'Malley of NUI Galway, published in 1996. In terms that are clear to any lay person it raises questions about the constitutionality of Section 1.1 and 1.2 of the 1935 Act. In the chapter dealing with this act there is a heading: "Compatibility with the Constitution". This refers to the possibility that the act may be unconstitutional for two reasons: the absence of a defence of honest mistake and the discriminatory nature of the act in its treatment of males.

How this did not set off alarm bells in the Department of Justice, Equality and Law Reform, the Attorney General's office, the DPP's office and the office of the Chief State Solicitor is surprising – every one of these offices must have known of the constitutional challenge from December 2002.

Questions arise for the DPP, James Hamilton, in connection with the case of "Mr A", the 43 year old man who raped a 12 year old girl, having got her drunk – the man released from prison by Ms Justice Mary Laffoy, following the Supreme Court judgement of 23 May.

The DPP had reason to be concerned that Section 1.1 of the 1935 Act from December 2002 at the latest (the Supreme Court said there was reason to doubt the constitutionality of the act since 1970). Because of that, the DPP might have prosecuted "Mr A" not just under that act but under other acts of the Oireachtas dealing with sexual assault and "ordinary" rape. Had that been done, and had "Mr A" been convicted of these additional offences as well, he would not have been released from prison on 30 May.

Fianna Fáil and the Progressive Democrats were already recording poor opinion poll ratings. This new crisis should see record "lows" in the poll ratings, especially for Fianna Fáil (poll ratings for the Progressive Democrats are not reliable because of their very low base).

The Government has a year to recover but there are difficulties ahead. It is certain there will be interest rate increases in the next few months with the possibility of a further increase before the general election. This will cause hardship to those who have taken on large mortgages to fund inflated house prices. The projected boost from the SSIAs is likely to fall flat for even with cash inflows of €20,000 to €25,000, most people will see this eaten up in increased mortgage payments.

There is then the decentralisation debacle, the memory of having been "hoodwinked" at the last election (immediately after the election the Government announced cut backs), the alarm over crime and the A&E "emergency" will continue to afflict the standing of the Government.

In November 1994 the Fianna Fáil-Labour government, led by Albert Reynolds, fell from office because of delays in the handling of an extradition request concerning Fr Brendan Smith, a child abuser. Albert Reynolds was forced to resign as Taoiseach and an agreement to form a new government was negotiated by Dick Spring and Bertie Ahern, who had become the new leader of Fianna Fáil. However, because of what was seen as a further revelation concerning the handing of the Fr Brendan Smith case, that deal fell though. Labour then negotiated with Fine Gael and Democratic Left and a new government was formed with John Bruton as Taoiseach.

Having been foiled once in becoming Taoiseach because of a child sex abuse scandal, Bertie Ahern may have his prospects of remaining as Taoiseach -- damaged fatally by this further child sex abuse debacle.p