THE government plans to make it legal for 14- and 15-year-olds to have sex as long as the boy and girl involved are within two years of each other.

Michael McDowell, the justice minister, is finalising proposals that would make 16 the age of consent for both males and females, in response to last week’s Supreme Court judgement striking down a 70-year-old rule on unlawful carnal knowledge. The age of consent for boys is currently 15, and 17 for girls.

Under the proposals, teenagers aged 14 and 15 will be able to consent to sex with peers up to two years older without the more senior party being judged to have committed an offence.

The minister for justice will also propose a defence of “honest belief”, allowing people accused of statutory rape to argue that they understood the teenager was in fact older.

The heads of the new bill are due before cabinet on Tuesday. It will replace the Criminal Law Amendment Act, 1935, dealing with underage sex, which was struck down last week by the Supreme Court. A complete bill is expected to be ready to go before the Oireachtas a fortnight later. It will also simplify the definitions of sexual activity and sexual offences.

The case before the Supreme Court involved an 18-year-old who slept with a 14-year-old but believed she was 16. Justice Adrian Hardiman said section 1.1 of the 1935 Act afforded absolutely no defence once the act of intercourse was established “no matter how extreme the circumstances”. The judge said that criminalising in a serious way a person who was mentally innocent inflicted a grave injury on their dignity and sense of worth.

While the government insisted the ruling did not open the floodgates for sexual “predators” to pursue teenagers with impunity, the decision triggered a number of developments in the criminal courts. On Friday, a Romanian man who had pled guilty to having sex with a 14-year-old girl in 2003 when he was 23, and who was due to be sentenced, was allowed to withdraw his guilty plea. Counsel for the Director of Public Prosecutions said the state was not proceeding with the unlawful carnal knowledge charges against Valintan Stan in the light of the judgment.

Stan did not walk free, however. He was sentenced to four years for false imprisonment and robbery in June 2003.

A man jailed in 2004 for having sex with a 12-year-old girl when he was 36 will apply to the High Court tomorrow to be released. Justice Mary Laffoy ordered an inquiry into his detention under Article 40 of the constitution on Friday.

The man is one of seven prisoners serving time for convictions under section 1.1 of the 1935 Act, but the government is expected to adopt a case-by-case approach to any legal challenge from these seven. “There certainly won’t be any blanket release,” an official said.

Under the legislation being drafted, engaging in sexual activity with a child under the age of 14 will carry a maximum sentence of life imprisonment. Shorter sentences will apply to anybody who is more than two years older having sex with a 14- or 15-year-old, if the cabinet accepts the legislative proposals taking shape.

Government sources reveal the legislation will introduce a new defence of “honest belief”. This will allow an alleged offender in a peer-to-peer situation to argue that he or she believed the child was either 14 or 15 at the time of the sexual encounter. Older alleged offenders may argue they believed the teenager was at least 16.

The draft legislation is also expected to simplify the definition of a sexual offence.

The age of consent varies widely across Europe from 13 in Spain to 14 in Italy and Germany, 15 in France and 16 in Britain and the Benelux states.

Last night Kate Mulkerrins of Rape Crisis Network Ireland welcomed that McDowell was recognising sexual activity between older teenagers. “Children are really glad when the laws give them a shield among their peers when they don’t want to do something,” she said. “But we would be most concerned that the defence of ‘honest belief’ is kept as narrow as possible by placing the burden of proof on the defendant not the prosecution.

Paul Gilligan of the ISPCC urged the minister to refer the bill to the Children’s Ombudsman for her observations before it goes before the Oireachtas in two weeks’ time.

Times Recommends

• Michael Jackson: Not the final chapter
• Indian Army spends10m rupees on golf buggies
• Brüno toned down for 15 rating