Single age of consent for gay and straight people would cause ‘backlash’, government advised 30 years ago

Introducing the same age of consent for gay and straight people could “cause a backlash from the general population”, the government was told 30 years ago as it prepared to legislate on the issue.

Legal advice to the Fianna Fáil-Progressive Democrats government in 1993 said a single age of consent of 17 years “implies an acceptance by the State of homosexuality as a perfectly normal human activity” and a higher age of consent would be “optimum”.

The advice from the Office of the Attorney General is contained in newly declassified State papers which are being released today by the National Archives in Dublin.

In 1993, the then coalition government decriminalised homosexuality. It followed a ruling by the European Court of Human Rights in 1988 that Ireland’s legislation, going back to 1861, which criminalised homosexual behaviour was discriminatory.

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The court held that the criminalisation of homosexual acts in private cannot be justified by penal sanctions even for those members of the public who are “shocked, offended or disturbed by the commission of others of private homosexual acts”.

The Gay and Lesbian Equality Network (GLEN) met then minister for justice Máire Geoghegan-Quinn to discuss the options with regard to decriminalisation, records show. The group said the meeting had been “most useful” but it was dismayed at any suggestion that there might not be fully equality with heterosexual people in terms of the law.

The Law Reform Commission (LRC) advised that the change in the law only needed to be for homosexual acts carried out in private. One of its recommendations was that the specific offence of buggery should be abolished separately from the criminalisation of homosexuality.

As part of its reform of the existing law, the attorney general’s office advised that such a move would be “interpreted as marking society’s approval of homosexuality as an acceptable or parallel lifestyle. It would also mean that ‘bestiality’ would cease to be an offence and this might not be acceptable”.

Harry Whelehan SC was the attorney-general at the time. His office sent back an advisory suggesting the government consider three ages of consent.

The first was 17 which was also the age of heterosexual consent. This was the age as advocated by the LRC. The commission’s advice to the Government was that the same legal regime should be obtained for consensual homosexual activity as for consensual heterosexual activity.

However, Whelehan’s office stated that the main argument against such a decision would be that an equal age of consent “implies an acceptance by the State of homosexuality as a perfectly normal human activity as normal as heterosexuality”.

Furthermore, the fact that the gay community in Ireland wanted that age of consent “could, in itself, cause a backlash from the general population”.

The advice was that 17 would be the only age acceptable to the gay community and to “liberal and left-wing groups”. However, it cautioned that having an equal age of consent could be perceived as giving equality to gay people and “might be too low an age for Irish society to accept at this stage”.

The advice also suggested that many boys would be in single-sex boarding schools at the age of 17 “and this could add to pressure on some boys if homosexual activity at this age was legal and, by implication from the equal age of consent, acceptable”.

The age of 18 would be the “optimum age” to meet the criteria of being an adult and could be regarded as a good compromise, the document advised.

“It would maintain a distinction between the age of consent for homosexual and heterosexual acts. Therefore, the principle of normality and equality would not be conceded.”

The age of 21 would be most acceptable to those who did not want decriminalisation of homosexuality “but realise there is no choice”.

This was the age of consent in Britain, the attorney general’s office pointed out, but it was perceived that Britain was outlier in terms of the rest of Europe in terms of the age of majority.

Such a move might portray Ireland as “backwards and out of step” with mainland Europe and also give an impression Ireland was looking to Britain for inspiration on legislation.

The legislation, called the Criminal Law (Sexual Offences) 1993 Bill, was enacted on June 24th 1993.

The government opted for an equal age of consent with the heterosexual population of 17.

In 2015, Ireland became the first country in the world to legalise same-sex marriage through a popular vote.