High Court rules ‘offending modesty’ offence is unconstitutional

A number of prosecutions of individuals for allegedly exposing themselves in public cannot proceed after the High Court declared unconstitutional the criminal offence of "offending modesty".

Mr Justice Gerard Hogan ruled the relevant part of Section 18 of the Criminal Law (Amendment) Act 1935, as amended by the Criminal Law (Rape)(Amendment Act) 1990, is unconstitutional. His decision means the entire of Section 18 has now been declared unconstitutional.

The offence of “offending modesty” was “hopelessly vague” and uncertain, the section contained no clear standard of conduct prohibited by law and lacked “any clear principles and policies”, the judge found.

He was giving judgment on two separate actions brought against the DPP and the State by Kevin McInerney and Brendan Curtis who were charged with offending modesty. The maximum sentence on conviction of that offence is six months in prison and/or a fine not exceeding €640.

Mr Curtis, from Martry, Kells, Co Meath was awaiting trial before the District Court for allegedly removing his penis from his trousers as groups of females walked past him at Camden Place, Dublin on May 26th, 2013.

Mr McInerney, Whitechurch View, Ballyboden, Rathfarnham, Dublin was alleged to have been observed masturbating while sitting in his car at Rathfarnham Shopping Centre on September 3rd, 2011. He was convicted last year of the offence and sentenced to three months imprisonment. An appeal was adjourned pending his High Court action.

In their High Court proceedings, both men argued the charges against them should be struck out on grounds including Mr Justice Hogan had previously ruled other provisions of Section 18, causing scandal or injuring the morals of the community, were unconstitutional. He found those offences “hopelessly and irremediably vague” and lacking any clear principles and policies in relation to the scope of what conduct is prohibited. The State, opposing the men’s challenge, argued, in contrast to the offences of causing scandal and injuring the morals of the community, the offence of offending modesty contained clear and recognisable standards.

In his judgment, Mr Justice Hogan disagreed and found the offence of offending modesty was also “hopelessly vague,” “subjective in character” and “invited arbitrary and inconsistent application”.

As a result of that decision, he ruled Section 18 “must now fall in its entirety” as unconstitutional.

His decision did not mean  the Oireachtas could not legislate to create new offences that would address the alleged conduct of the two men but any new legislation must contain adequate principles and policies, he said.