Challenge to underage sex law fails


A 15-year-old boy has lost his High Court action alleging he should not be prosecuted for having sex with a 14-year-old girl under a law that allows for boys to be prosecuted for such offences but not girls.

While the relevant law did amount to gender discrimination, such discrimination was not invidious or capricious, Ms Justice Elizabeth Dunne found.

As the risk of pregnancy as a result of underage sex was borne by girls only, not boys, society was entitled to deter such activity and to place the burden of criminal sanction on those “who bear the least adverse consequences” of it, she said.

The case arose out of the so-called “Romeo and Juliet” provision” in laws introduced in 2006 in response to the Supreme Court “CC” judgment overturning as unconstitutional a 1935 law on underage sex on grounds of the absence of a defence of “reasonable mistake” as to the victim’s age.

In his action, the boy alleged his rights were breached because he has been charged with unlawful carnal knowledge and with committing buggery while the girl was not charged.

As the girl cannot be found guilty of underage sex under the new law but he could, he claimed he was being discriminated against on grounds of gender.

In a reserved judgment yesterday, Ms Justice Elizabeth Dunne ruled there there was no constitutional frailty in the law under which the boy was charged, the Criminal Law (Sexual Offences) Act 2006.

The boy had challenged Section 3 of the Act which created an offence of defilement of a child under 17 and provided for a sentence of up to five years imprisonment. He had linked that challenge to Section 5 of the Act which states a girl under 17 cannot be guilty of such an offence.

The measures provided for different treatment of boys and girls and as such it had to be viewed as being discriminatory on grounds of gender, the judge said.

However, there was case law legitimising discrimination founded on difference in capacity or social

function of men and women once that discrimination was not invidious, arbitrary or capricious. Section 5 did provide for specific immunity from prosecution in a very limited set of circumstances and a similar approach had been taken by law makers in other jurisdictions, she said.

The objective of the 2006 Act was to protect children from sexual abuse and it dealt with a complex and wide range of sexual activities, circumstances and levels of culpability.

It provided that immunity from prosecution applied to the one area of sexual activity that can result in pregnancy and the consequence of such carried no risk for boys or men. The risk was only borne by girls, she said.

A study referred to during the case showed the younger the age of sexual intercourse, the greater the probability of a negative outcome such as the increased risk of unintended pregnancy, sexually transmitted diseases, lower educational and job attainment as well as a greater risk of poverty, the judge outlined.

The adverse consequences that flow from under age sex fell to a greater extent on girls rather than on boys, she said. Far from being an example “good old fashioned discrimination”, as claimed by counsel for the boy, or a form of “rough equalisation”, the 2006 Act provides a limited immunity to girls in the one area of sexual activity that can result in pregnancy.

“Society is entitled to deter such activity and to place the burden of criminal sanction on those who bear the least adverse consequences of such activity”, she said.

The 2006 Act goes “no further than necessary” to achieve this object and if it was the case that the adverse effects of underage sex were borne equally by boys and girls, there would be no rational basis for the difference in treatment of both sexes.

AS that was not the case, she concluded the discrimination identified in Section 5 of the 2006 Act was “legitimated” because it is founded on difference of capacity, physical or moral, or difference of social function of men and women, in a manner which is not invidious, arbitrary or capricious.

The judge also agreed with the State the equality provisions of the European Convention on Human Rights do not bring the matter “any further” than provided for in Article 40(1) of the Irish Constitution which provides all persons are equal before the law.

A stay on the boy’s trial pending the outcome of the High Court challenge will remain in place until next month to allow his lawyers consider the judgment.