Wednesday, January 28, 2009

Gender proofing legislation - a one way street?

I'm coming to this late but it is interesting to consider that the mother in the Roscommon abuse and neglect case could only be sentenced to seven years for her crimes because the legislation as it pertains to women is over a century old. This despite legislation for the same crimes having been updated in the last ten years but only it appears it was only updated as it applies to male perpetrators.

I had understood, perhaps incorrectly, that when new legislation was being proposed that the relevant department engaged in what is termed 'gender proofing'. Such gender proofing is supposed to work so as to ensure that any new laws don't unduly affect one gender over the other. Yet it would appear from this example at least this works primarily in one direction when it comes to the criminal justice system, new legislation must not impact negatively on women but it can do so on men. In fact when revising the law it doesn't occur to anyone to check that it applies equally to men and women.

It does make one wonder if the state (or those working for the state) realises that both genders are capable of committing crimes. Even if the incidences of particular crimes may be more prevalent in one gender than the other, both are still able to commit them. There again looking at the response to the C case should we really be all that surprised at the distinction?

As Brendan Howlin noted at the time "That is above and beyond the bizarre and absurd position that girls will be criminally liable for foreplay but not for sex. To put it bluntly, the incoherence behind the present proposals is demonstrated by pointing to three conflicting propositions, each of which the Government is seeking to advance in this Bill. Each of them relate to consensual acts between two 16½ year olds.

· If they engage in sexual intercourse, the boy is guilty of a serious offence but the girl is not.
· If the girl performs oral sex on the boy, they are both guilty of a serious offence.
· But if the boy performs oral sex on the girl, then neither of them is guilty of anything.
Most bizarrely of all, where a boy attempts sexual intercourse with a girl but fails, she is guilty as well as him. But if he succeeds in sexual intercourse with her, she is innocent of any offence.

The Minister is, for reasons that defy logic, on rewarding a girl who insists, in order to protect her legal innocence, on proceeding to full penetrative sexual intercourse." And we're coming up on the third anniversary of that piece of sexist legislation.

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