Underage sex law has gender bias, court told


A “SO-CALLED Romeo and Juliet” law permitting prosecution of a boy over allegedly having sex with a 14-year-old girl when he was aged 15 is “crude and old-fashioned” gender-based discrimination, it was claimed before the High Court yesterday.

The Oireachtas had justified the law on the basis of a “patronising view” that girls must be protected from boys who are the guilty parties, Gerard Hogan argued yesterday when opening the boy’s challenge to the 2006 law.

The applicant, now aged 18, claims his right to equal treatment under the Constitution and European Convention on Human Rights has been breached because he has been charged with unlawful carnal knowledge and buggery, while the girl cannot be charged at all.

The case arises after the Government introduced the Criminal Law (Sexual Offences) Act 2006 in a swift response to a Supreme Court decision in the “CC” case, which struck down as unconstitutional the 1935 law on unlawful carnal knowledge, on grounds it did not allow for the defence of an “honest mistake” about a girl’s age.

The 2006 law provides a girl under 17 cannot be prosecuted for unlawful carnal knowledge while a boy can, and the boy claims he is being discriminated against on grounds of gender.

The trial of the boy is on hold pending the outcome of the High Court case brought against Ireland, the Attorney General and the DPP, who deny the claims.

The boy is charged under Section 3 of the 2006 Act with committing the offences against the girl on August 5th, 2006.

Opening the case yesterday, Mr Hogan argued that central to the 2006 law was that the “boy alone” commits the offence while the girl enjoys “complete immunity”. This law was based on a “crude” traditional sexual stereotype and was “a good old-fashioned example of gender-based discrimination for which there is no objective justification”.

Referring to the “so-called Romeo and Juliet provision” of the 2006 Act, counsel said that this “is not the age of Shakespeare” but 400 years on, and society was still faced with this “nakedly gender-based legislation”.

The State took the view that girls should not be charged because the penalty for them was the possibility of pregnancy, counsel said. While this was to be the deterrent for girls, there was no comparison between this and the shame, ignominy and other “savage” consequences for a young man facing imprisonment for up to five years if convicted of a sex offence, counsel said.

The reality was that boys are made criminally responsible for sexual activity while girls enjoy an immunity, and the State had provided no “equalisation of risk” between the two penalties. The law also failed to acknowledge fatherhood does have consequences for a boy and was a deterrent to boys engaging in underage sexual activity.

The State was attempting to “level the playing field” by creating this criminal offence, counsel said. However, this was “not like some penalty points system, but a serious business which involves a potential five-year sentence”.

Prof Sheila Green, psychologist and professor of childhood research in Trinity College Dublin, told the court that studies had shown there had been a major increase in consensual sex between under-17s. Many of them were unaware boys could be prosecuted for having sex with girls of the same age, she said. Statistics showed the mean age of children having sex was 15½ while it was as low as 13½ in some areas, she added.

Cross-examined by Donal O’Donnell, for the State, Prof Green said there was a need for a criminal sanction for adults having sex with underage children. However, while accepting there should be a deterrent to children having consensual sex, she had a difficulty with it being made a crime.

The hearing before Ms Justice Elizabeth Dunne continues.