This is an appeal from a decision of the High Court  IEHC 101 (Dunne J., 26th March, 2010) which upheld the constitutionality of s. 3(1) and s. 5 of the Criminal Law (Sexual Offences) Act 2006, which will be referred to as “the Act of 2006”.
The background to the case is that M.D., the plaintiff/appellant, who will be referred to as “the appellant”, is charged that on the 5th August, 2006, he had sexual intercourse, and committed a sexual act of buggery, with a female person under the age of seventeen years, contrary to s. 3(1) of the Act of 2006. At the time of the alleged offences the appellant was 15 years of age and the complainant was 14 years old. The complainant was not charged with any offence.
Section 3(1) of the Act of 2006 states:–
Any person who engages in a sexual act with a child who is under the age of 17 years shall be guilty of an offence and shall, subject to subsection (3), be liable on conviction on indictment –
Section 3(5) provides a defence of mistake as to age. It states:–
It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she honestly believed that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years.
By virtue of s. 5 of the Act of 2006, s. 3(1) does not apply to a female under the age of 17 years in respect of an act of sexual intercourse. It states:–
A female child under the age of the 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse.
The appellant has sought, inter alia, a declaration that s. 5 of the Act of 2006 is repugnant to the Constitution in that it discriminates against the appellant on the basis of gender, contrary to Article 40.1 of the Constitution. The appellant’s case, in essence, is that this provision is gender biased and discriminatory and that it exposes the underage male to the real risk of criminal sanctions based on the traditional sexual stereotype where it is legislatively assumed that the male is the guilty predator and the female is the innocent comely maiden. It is submitted that the fact that the female alone can become pregnant is not a ground which justifies an immunity of this kind.
The Act of 2006 was passed following the decision of this Court in C.C. v. Ireland  4 IR 1, which held that s. 1(1) of the Criminal Law (Amendment) Act 1935, was unconstitutional because of the absence of a defence of mistake of fact as to age. The Act of 2006 replaced the statutory offences of unlawful carnal knowledge under the Criminal Law (Amendment) Act 1935 with two new offences, defilement of a child under 15 years of age and defilement of a child under 17 years of age. It also introduced a defence of honest mistaken belief as to the injured party’s age in the case of both offences.
The appellant’s claim in his plenary summons is for:–
A Declaration that s. 5 of the Act of 2006 is in breach of the Constitution, in that it discriminates against the appellant on the basis of gender, contrary to Article 40.1 of the Constitution.
A Declaration that the Third Named Defendant was in breach of Article 40.1 of the Constitution in charging the appellant, as a male child under the age of 17 years, with an offence contrary to s. 3(1) of the Act of 2006 in circumstances where he did not charge the female with an offence under the Act.
A Declaration that s. 3(1) of the Act of 2006 discriminates against the appellant and is in breach of the Constitution in that on conviction the child appellant would be liable to receive a term of imprisonment of up to 5 years where no penalty would be imposed on a female child under the age of 17.
A Declaration that s. 5 of the Act of 2006 is in breach of Article 38.1 of the Constitution in that the appellant is liable to a disproportionate penalty on the basis of his gender.
A Declaration that s. 3(1) of the Act of 2006 is in breach of Article 8 of the European Convention on Human Rights in that it denies the appellant his right to respect for private life.
A Declaration that s. 3(1) of the Act of 2006 is in breach of Article 6 and Article 14 of the European Convention on Human Rights in that it denies the appellant the right to a fair trial on grounds of gender.
A Declaration that in prosecuting the [appellant], the Third Named Defendant failed to consider and act in accordance with the Constitutional principles of justice and charity and breached Article 40.3 of the Constitution .
A Declaration that the purported consent of the Third Named Defendant to bring a prosecution against the appellant is invalid as the Third Named Defendant acted in breach of Articles 40.1, 38.1 and 40.3 of the Constitution in failing to prosecute the female for engaging in a sexual act with the child appellant contrary to the Act.
An Order staying the First Named Defendant from taking any further steps in the prosecution of these proceedings pending the outcome of the proceedings herein.
Further or other order.
On the 30th April, 2010, the High Court refused the reliefs sought by the appellant in the plenary summons.
High Court Judgment
The learned High Court judge delivered judgment on the 26th March, 2010. It was stated that:–
It has to be remembered that the appellant in the present case has been charged with two offences; one is that he had sexual intercourse with a person under 17 years and the second is that he committed an act of buggery. On the facts alleged in this case, the complainant has no immunity in relation to the act of buggery. The immunity from conviction conferred by s. 5 is limited to acts of sexual intercourse.
The statutory provision at issue in this case provides for different treatment of female and male children under l7 years of age and as such it has to be viewed as being discriminatory on grounds of gender. It is then necessary to consider whether, given the lack of equality of treatment, the defendants can rely on the provisions of Article 40 .1 to show that in the words of Laffoy J in S.M. v. Ireland  IEHC 280  4 I.R. 369 referred to above, ‘the differentiation is legitimated by reason of being founded on difference of capacity, whether physical or moral, or difference of social function of men and women in a manner which is not invidious, arbitrary and capricious.’
The High Court referred to the objective of the Act, as follows:–
The objective of the Act as a whole is to protect children, boys and girls, from sexual abuse. As pointed out above, the Act deals with a complex and wide range of sexual activities, circumstances and levels of culpability. Difficult issues such as the issue of consent are dealt with in the Act. Careful consideration has been given to the sentencing regime for offenders – for example, those within a specified age range are not subject to the provisions of the Sexual Offenders Act 2001 while those in a position of authority over a child are liable to longer sentences of imprisonment. This is the legislative framework in which one must view the limited immunity conferred by s. 5. Girls and boys are equally liable to prosecution in respect of sexual activity falling short of sexual intercourse. S. 5 applies only to acts of sexual intercourse. Thus the immunity only applies to the one area of sexual activity that can result in pregnancy. It is the one consequence of sexual activity that carries no risk for boys or men. The risk of pregnancy is only borne by girls.
The High Court concluded, on the issue of the constitutionality of the Act, that there was discrimination in s. 5 of the Act of 2006 but that it was legitimated by being founded on difference in capacity, physical or moral or difference of social function of men and women in a manner not invidious, arbitrary or capricious.
European Convention on Human Rights
The High Court addressed the issue of the European Convention on Human Rights. It was held:–
I want to deal briefly with the arguments based on the ECHR. I agree with the submissions on behalf of the defendants that the provisions of that ECHR do not bring the matter any further than Article 40.1 of the Constitution. The United Kingdom decisions cited above, R v. Kirk  ENCA Crim 1580, E v. Director of Public Prosecutions E.W.H.C. 147 and R v. G  UKHL, 37;  1 AC 92 are persuasive authorities to that effect. Accordingly, I am satisfied that the provisions of the Act at issue in these proceedings are not incompatible with the ECHR.
On the issue of s. 5 the learned High Court judge concluded:–
Finally, I should add that the helpful submissions in relation to the issue as to whether the [appellant], if successful in his arguments, was entitled to the reliefs claimed herein given that striking down s.5 alone could not avail the [appellant], need not be considered in the light of the outcome of these proceedings.
Notice of Appeal
On behalf of the appellant nine grounds of appeal were filed.
The grounds of appeal were:–
The Learned Trial Judge erred in law in finding that the gender discrimination in section 5 of the Act is legitimated by reason of being founded on difference of capacity, physical or moral, or difference of social function of men and women in accordance with Article 40.1 of the Constitution, whereas the true position is that the said differing treatment cannot be justified on objective grounds. Specifically the fact that female children can become pregnant cannot in itself justify legislation which provides that in such circumstances the male child only is guilty of an offence.
The Learned Trial Judge erred in law in holding that where society has determined that certain criminal activity be deterred, it is entitled to place the burden of criminal sanction on those who bear the least adverse consequences of that criminal conduct even though the persons exposed to such adverse criminal consequences (namely, male children) are equally deserving of the law’s protection in circumstances where they have no greater moral guilt than that of the female child.
The Learned Trial Judge erred in law in finding that once discrimination on the grounds of gender is shown that the onus did not shift to the State to justify the discrimination and, furthermore, also erred in law in holding that the legislation in question did not reflect traditional sexual stereotypes.
The Learned Trial Judge erred in law in failing to take account of the evidence given that no female has been prosecuted under the Act when finding that the Act provides only a limited immunity to girls in the one area of sexual activity that can result in pregnancy . In practice no female has ever been or would be prosecuted for such offences.
The Learned Trial Judge misdirected herself as to the law and facts in failing to take into account the fact that the [appellant] was not charged with rape, and in taking into account allegations about the issue of consent which are not relevant to the charges before the Circuit Court the subject matter of the case herein.
The Learned Trial Judge erred in law in failing to take account of the evidence given that the Act did not deter underage sexual activity and accordingly the impugned section could not be justified as it was not rationally connected to the objective of the Act.
The Learned Trial Judge erred in fact in determining that the risk of pregnancy was one that carried sole consequences for a girl and failed to have regard to the fact that unwanted pregnancy and early fatherhood were also undesirable consequences for a boy.
The Learned Trial Judge erred in law and in fact in failing to take account of the adverse effects of underage sexual activity on a boy.
The Learned Trial Judge erred in law and in fact in failing to have regard for the fact that a pregnancy would give rise to parental obligations and consequences for a boy.
In essence, this appeal raises several issues:–
The submission that s. 3(1) of the Act of 2006 is contrary to Article 40.1 of the Constitution in giving rise to a charge against the appellant of an offence contrary to that section, in circumstances where the female concerned in the alleged offence was not charged;
The submission that s. 5 of the Act of 2006 is contrary to Article 40.1 as it discriminates on the basis of gender;
The submission that the appellant would be liable to receive a sentence of up to 5 years if convicted, where no penalty would be imposed on a female under the age of 17, and that s. 5 is therefore in breach of Article 38.1 of the Constitution;
The submission that s. 3(1) breaches Article 8 of the European Convention on Human Rights in that it denies the appellant a right to respect for private life.
The submission that s. 3(1) breaches Article 6 and Article 14 of the European Convention on Human Rights in that it denies the appellant a fair trial on the grounds of gender.
The High Court found that this case took place in something of an evidential vacuum as to the circumstances giving rise to the prosecution. No evidence was given by the appellant or the complainant. These proceedings have been taken in advance of an intended prosecution. There are no agreed facts. The High Court judge was given a number of statements from the book of evidence, which she read. They included the statements of the complainant and memoranda of interviews with the appellant, together with statements of a number of individuals who were in the company of the appellant and the complainant at the time of the alleged offences, and also statements from a number of members of An Garda Síochána and other witnesses. The learned High Court judge stated:–
It is clear from those statements that prior to the events giving rise to the criminal proceedings the [appellant] and the complainant were not known to one another. They first encountered one another the previous day. It appears from the account of the complainant that there was some sexual activity which could be described as ‘consensual’, that is, oral sex between the [appellant] and the complainant. She alleges that an act of buggery and an act of sexual intercourse, the offences with which the [appellant] has been charged, took place as a result of the use of force and fear. The account of the [appellant] is different. He accepts that the sexual activity described above took place but he makes the case that the act of sexual intercourse was ‘consensual’ as was the act of buggery.
It is not possible to reconcile the different accounts of the [appellant] and the complainant in these proceedings. Nor is it necessary to do so. It is clear that there is an issue as to the question of consent. When using that term, it is to be used in the ordinary meaning of the word and not the legal meaning. It is important to have regard to the provisions of s. 3(7) of the 2006 Act which is set out above and which provide [sic] that consent is not a defence to proceedings brought under s. 3(1) of the Act. However, I think it is important to bear in mind that on the complainant's view of the circumstances, this is not a case about ‘consensual’ sexual activity as it was sometimes described in the course of these proceedings by counsel on behalf of the [appellant]. I accept that the [appellant’s] view of the circumstances may be different.
Prosecutorial discretion of Director of Public Prosecutions
Before any such prosecution is brought there is required to be a decision by the Director of Public Prosecutions, hereinafter referred to as the “DPP”, to prosecute. In making a decision, the DPP will consider and apply her discretion in each situation. Such discretion will involve an evidential test: is there sufficient evidence to warrant a prosecution? Also, there would be an application of the public interest test: is such a prosecution in accordance with the public interest? The public interest will be informed by the policy of any relevant legislation.
The DPP has a discretion in exercising her power to prosecute. The concept of prosecutorial discretion was addressed in Canada, where the Attorney General was the prosecuting authority. In Krieger v. Law Society of Alberta  3 S.C.R. 372 at paragraphs 46 to 47 the Supreme Court of Canada stated:–
Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following:
While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.
Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.
This general approach described in Canada of the role of the Attorney General is mirrored in many of the aspects of the discretion of the DPP in this jurisdiction.
The width of the discretion of the DPP was considered by Finlay C.J., in State (McCormack) v. Curran  I.L.R.M. 225 where he stated at p. 237:–
In regard to the DPP I reject also the submission that he has only got a discretion as to whether to prosecute or not to prosecute in any particular case related exclusively to the probative value of the evidence laid before him. Again, I am satisfied that there are many other factors which may be appropriate and proper for him to take into consideration. I do not consider that it would be wise or helpful to seek to list them in any exclusive way. If, of course, it can be demonstrated that he reaches a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court. To that extent I reject the contention again made on behalf of this respondent that his decisions were not as a matter of public policy ever reviewable by a court.
In this case there was an exercise of discretion by the DPP in the decision to prosecute. First, the exercise of the discretion resulted in the decision to prosecute the appellant. Second, the decision was taken to prosecute the appellant, but not under s. 2 of the Act of 2006. Under s. 2 of the Act of 2006 a person who engages in a sexual act with a child who is under the age of 15 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment. At the time of the alleged offence the appellant was 15 years of age and the complainant was 14 years of age. So it could have been legally permissible to consider prosecuting the appellant under s. 2 of the Act of 2006. However, the DPP clearly considered the facts, exercised a prosecutorial discretion, and decided to prosecute the appellant for the offence with the lower penalty under s. 3 of the Act of 2006. The basis for the exercise of discretion is not known. However, an additional relevant factor may have been that under s. 3(10) a person who has been convicted of an offence under that section and who is not more than 24 months older than the child under the age of 17 years with whom he engaged in a sexual act, shall not be subject to the provisions of the Sex Offenders Act 2001. There is no similar provision for those convicted under s. 2 of the Act of 2006 and who were close in age to the child with whom the sexual act was engaged. In this case, at the time of the alleged offence, the appellant was 15 years old, and the complainant 14 years old. Consequently s. 3(10) would apply should there be a conviction.
Constitutionality of Legislation
At issue is the constitutionality of legislation. The learned High Court judge pointed out that s. 3(1) of the Act of 2006 creates an offence of defilement of a child under the age of 17 years, and that it is gender neutral. Section 3 also provides for the defence of honest mistake, and that consent of the child is not a defence for the accused. In addition, the section provides that the proceedings may only be brought with the consent of the DPP. Further, there is a special exemption to the requirements of the Sex Offenders Act, 2001, if the person convicted is not more than 24 months older than the child under 17 years of age.
The High Court held that on the face of it there was no apparent Constitutional or Convention frailty in the provisions of s. 3. This Court would affirm that decision.
In the High Court, and in this Court, the appellant mounted his challenge to s. 3 by linking it with s. 5. Section 5 provides that a female child under 17 years of age shall not be guilty of an offence under the Act by reason only of her engaging in an act of sexual intercourse. Thus s. 5 applies only to a female child, under the age of 17, and only in relation to acts of sexual intercourse.
The High Court referred to the different treatment of male and female children under the age of 17 years of age, which it regarded as discriminatory, and queried whether, given the lack of equal treatment, the respondents can rely on Article 40.1 The High Court held:–
As is clear from the Layte study, the younger the age at which first sexual intercourse takes place, the greater the probability of a negative outcome, such as the increased risk of unintended pregnancy and STIs; early parenthood is associated with lower educational and occupational attainment and a greater risk of poverty. The adverse consequences that flow from under age sexual activity fall to a greater extent on girls than on boys. Far from being an example of good old fashioned discrimination against young boys as contended by counsel for the plaintiff or a form of ‘rough equalisation’, the 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. The Act goes no further than is necessary to achieve this object. If it were the case that the adverse effects of underage sexual activity (which are not just confined to the risk of pregnancy as is clear from the studies referred to in the course of this case) were borne equally by boys and girls, there would be no rational basis for the difference in treatment of boys and girls. However, that is not the case. That being so, I have come to the conclusion that the discrimination identified in s. 5 is legitimated by reason of being 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.
To determine this matter it is necessary to consider the Act of 2006 and its context.
Act of 2006 and its context
This Court, by its decision in C.C. v. Ireland  4 I.R. 1, declared that s. 1(1) of the Criminal Law (Amendment) Act 1935, was inconsistent with the Constitution. The reason for that decision was that the section did not allow a man to defend himself against a charge of unlawful carnal knowledge of a girl under the age of fifteen on the ground that, at the time he had sexual intercourse with her, he honestly believed that she was more than fifteen. Thus, a person could be convicted and imprisoned for an offence even though the prosecution had not established that he knew he was committing an offence.
Although the decision in C.C. v. Ireland was concerned only with the question of the defence as to honest mistake as to age, the Oireachtas was necessarily driven to reconsider generally the criminal law regarding sexual activity involving young people. The offence of unlawful carnal knowledge of a female under section 1(1) or section 1(2) of the Act of 1935 was framed so that it could only by definition be committed by a male.
The Act of 2006 aims at a more comprehensive and gender-neutral approach to sexual acts with children. According to its long title, it is “an act to provide for offences in relation to the commission of sexual acts with children under the age of 17 years; and to provide for matters connected therewith.”
Sections 2 and 3 of the Act of 2006 provide for criminal offences of what the side note calls “defilement of a child,” respectively under the ages of fifteen or seventeen. The term “defilement” does not appear in either section. The sections speak instead of a “sexual act,” a term which is defined in s. 1 as follows:–
‘sexual act’ means—
Section 1 of the Act of 2006 provides that “sexual intercourse shall be construed in accordance with section 1(2) of the Act of 1981 [Criminal Law (Rape) Act, 1981].” That section provides:–
In this Act references to sexual intercourse shall be construed as references to carnal knowledge as defined in section 63 of the Offences against the Person Act, 1861, so far as it relates to natural intercourse (under which such intercourse is deemed complete on proof of penetration only).
Section 63 of the Offences against the Person Act, 1861 is still in force. It provides:–
Whenever, upon the Trial for any Offence punishable under this Act, it may be necessary to prove carnal Knowledge, it shall not be necessary to prove the actual Emission of Seed in order to constitute a carnal Knowledge, but the carnal Knowledge shall be deemed complete upon Proof of Penetration only.
The Criminal Law (Rape) Amendment Act, 1990 provides:–
Thus, the term, “sexual act,” includes sexual intercourse between a male and a female, buggery, which may be committed between males and committed by a male on a female and sexual acts of violence of the types defined in the Act of 1990. The Act replaces the offence of buggery of a person under the age of seventeen created by s. 4 of the Criminal Law (Sexual Offences) Act, 1993. A “sexual act,” as defined, may, subject to the biological differences between the sexes, be performed by a person of either sex.
The offence of committing a sexual act with a person, a “child” under the age of seventeen, or attempting to do so, is created by s. 3 of the Act of 2006 in the following terms:
Thus, a person of either sex and of any age may be guilty of an offence under s. 3, if he or she engages in a sexual act with a child under the age of seventeen or attempts to do so and does not have a reasonable and honest belief that the child has attained the age of 17 years.
However, s. 5 of the Act of 2006 provides that:
A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse.
This exemption for a female child applies only where she engages in an act of sexual intercourse. Otherwise, subject to biological differences, male or female participants are equally capable of being found guilty of “engaging in” the defined sexual acts, presumably extending to consensual participation in an act of buggery upon a girl.
It is clearly within the scope of the legislative intention that a female above the age of seventeen may be prosecuted for engaging in sexual acts with under-age boys.
Returning to section 3 of the Act of 2006, the following features are of note:
Consent of the child is irrelevant; it is not a defence, even where both participants are under age; thus, consensual sexual activity between persons under the age of seventeen is criminal (save for sexual intercourse in which a girl under seventeen partakes);
Subsections 5 and 6 provide for a new defence of honest belief that the child in question had reached the age of seventeen;
Proceedings for an offence under the section can be commenced only with the consent of the Director of Public Prosecutions;
The penalty provisions are more severe in the case of persons in authority and for subsequent offences;
The provisions of the Sex Offenders Act, 2001 do not apply to a person who is less than two years older than the child with whom he or she engaged in a sexual act.
Equality in the Constitution
The principle of equal treatment of citizens, indeed of all human persons, is implicit in the free and democratic nature of the State. It permeates the Constitution. Two explicit examples can be given. Article 40.6.2˚ requires that laws regulating the formation of associations and unions and the right of free assembly shall “contain no political, religious or class discrimination.” Article 44.2.3˚ provides that, whether by its laws or otherwise, “the State shall not impose any disabilities or make any discrimination on the grounds of religious profession, belief or status.” These are but aspects of the principles of freedom, justice and human dignity, which, inter alia, the preamble of the Constitution aims to safeguard. Equality is among the highest and noblest aspirations included in the Constitution of every modern state.
Article 40.1 is both more specific and more general. It is specific insofar as it relates expressly to “the law.” At the same time it prescribes the general principle that citizens are to “be held equal before the law.”
Equality is not, in all cases, an easy principle to apply in concrete situations. People may be equal in some respects but not in others. Aristotle’s oft-quoted definition illustrates the lack of precision in the notion of equality. His definition of the principle of equality is paraphrased as meaning “that things that are equal should be treated alike while things that are unalike should be treated unalike in proportion to their unalikeness.” [Nicomachean Ethics 1131a]. In other words, not only must the law treat comparable situations equally, it must not treat different situations in the same way, in the absence of justification.
Article 40.1 provides:
All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
The central principle of the Article rests, firstly, on the common humanity which we all share and, secondly, on the general understanding that for the State to pass a law which treats people, who are objectively in the same situation vis-a-vis the law, unequally, is an affront to fundamental ideas of justice and even to rationality.
Thus strict equality is the norm laid down by Article 40.1. However, the Article recognises that perfectly equal treatment is not always achievable, rather the Article recognises that applying the same treatment to all human persons is not always desirable because it could lead to indirect inequality because of the different circumstances in which people find themselves.
The second sentence of Article 40.1 recognises that human persons have or may be perceived by the Oireachtas to have “differences of capacity, physical and moral, and of social function.” Some of these differences, particularly of capacity, are inherent, most obviously in the case of the sexes. It is axiomatic that only a woman can become pregnant. Thus, the Maternity (Protection) Act 1994 and the Maternity Protection (Amendment) Act 2004 apply to women, although a father is allowed to take time where a mother has died. Laws prohibiting discrimination on the grounds of pregnancy have justifiably applied to women.
It follows that laws such as these are not an example of the State holding men or women respectively unequal before the law. It follows also that the first and second sentences of Article 40.1 should not be treated as if they were in separate compartments. It is not correct to look at a law to see if it offends against the first sentence before turning to the second sentence to seek justification. The second sentence is concerned with what the first sentence means.
Application to section 3
The ostensible aim of s. 3 of the Act of 2006 is to achieve, so far as is possible, a gender-neutral definition of sexual offences. The section seeks to treat all children under the age of seventeen equally, whether boys or girls. It seeks to define a sexual act in such a way that the offence of engaging in it is committed by any person of either sex with either a boy or a girl under the age of seventeen. What is important, for the purposes of the present appeal is that the offence is also committed by any person, male or female, engaging in it who is himself or herself under that age.
Nonetheless, the natural physiological differences between males and females cannot be entirely assimilated. Rape under s. 4(1)(a) of the Criminal Law (Rape) (Amendment Act), 1990 is defined as a sexual assault including “penetration (however slight) of the anus or mouth by the penis....” can, by definition, be committed only by the male. The crime of rape defined in section 4(1(b) of the Criminal Law (Rape) Amendment Act, 1990 (penetration of the vagina by any object) could be committed by a female.
The act of sexual intercourse itself is engaged in by a male and a female. However, each performs a distinct physiological function. The male’s penis penetrates the female’s vagina and may emit the sperm which, relevantly for this appeal, is capable of rendering the female pregnant. Thus some natural and inevitable differentiation of treatment is inherent in the statutory scheme.
The appellant challenges, as infringing Article 40.1 of the Constitution, s. 5 of the Act of 2006, which expressly differentiates between the male and the female, but only in the case of the act of sexual intercourse, and only when the female is herself under the age of seventeen. The female under seventeen is not exempted from criminal liability in respect of any of the other sexual acts criminalised by the section, when committed with a person under the age of seventeen.
The fundamental constitutional question is whether it falls to the Court or to the Oireachtas to make the judgment as to whether the risk that the female will become pregnant justifies exempting her, but not her male counterpart, from prosecution. The framing of sexual offences in such a way as to protect young people from the dangers of early sexual activity is a matter of notorious difficulty. States have, for centuries, wrestled with questions of great sensitivity concerning the appropriate age to set, whether to differentiate between males of different ages, or to differentiate on grounds of difference in age between the persons, not to mention the more recent liberation of same-sex activities from the stigma of criminality.
Decisions on matters of such social sensitivity and difficulty are in essence a matter for the legislature. Courts should be deferential to the legislative view on such matters of social policy.
United States Supreme Court: Michael M v Superior Court of Sonoma County
The decision of the US Supreme Court in Michael M v Superior Court of Sonoma County 450 U.S. 464 was cited in argument and is of some interest.
In that case a seventeen and a half year old male was charged with violating California’s “statutory rape” law. That law, similarly to our offences of unlawful carnal knowledge under the Criminal Law (Amendment) Act, 1935, made it unlawful for a male to commit “an act of sexual intercourse with a female not the wife of the perpetrator, where the female is under the age of 18 years.” The appellant claimed that the law violated the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. The Court rejected the constitutional challenge in a five/four decision. A plurality of four justices joined in the judgment of Rehnquist J.. Blackmun J. concurred in the judgment. Brennan J., supported by White and Marshall JJ., filed a dissent, and Stevens J. filed a separate dissent. The majority judgments are relevant to the present case. Notably, in a footnote, it is stated that lower federal and state courts had almost uniformly concluded that statutory rape laws were constitutional. It cites some 28 cases from many states decided during the 1970’s. Rehnquist J. delivered the principal judgment. Although he noted that the Court had had some difficulty in agreeing “upon the proper approach and analysis in cases involving challenges to gender-based classifications,” he explained that “[u]nlike the California Supreme Court, we have not held that gender-based classifications are ‘inherently suspect’ and thus we do not apply so-called ‘strict scrutiny’ to those classifications.” The Equal Protection Clause did not, he said, "demand that a statute necessarily apply equally to all persons" or require "'things which are different in fact . . . to be treated in law as though they were the same." Thus, the Court had “consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.” The Californian Supreme Court had accepted, as a justification for the statute “that the legislature sought to prevent illegitimate teenage pregnancies.” “That finding,” in the view of Rehnquist J. was “entitled to great deference.” The State had “a strong interest in preventing such pregnancy.” He continued:
We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity.
Explaining that a gender-neutral statute may not be as effective as the actual statute, he said that it was not “unreasonable for a legislature acting to protect minor females to exclude them from punishment. On the effectiveness of the statute, he said:
The State persuasively contends that a gender-neutral statute would frustrate its interest in effective enforcement. Its view is that a female is surely less likely to report violations of the statute if she herself would be subject to criminal prosecution. In an area already fraught with prosecutorial difficulties, we decline to hold that the Equal Protection Clause requires a legislature to enact a statute so broad that it may well be incapable of enforcement.
Stewart J. delivered a concurring judgment, noting, inter alia, that the Court was dealing with the most basic of the differences between males and females: “females can become pregnant as the result of sexual intercourse; males cannot.” He thought that “in certain narrow circumstances men and women are not similarly situated; in these circumstances a gender classification based on clear differences between the sexes is not invidious”, California had “attempted to protect teenage females by prohibiting males from participating in the act necessary for conception.”
The above case was decided 30 years ago, strong dissents were written by Justice Brennan and Justice Stephens, the existence of gender neutral laws in other States were noted, and the statute at issue in that case has since been altered. However, it represents a useful analysis of legislation in seeking a balance on a sensitive social issue, and the approach by the Supreme Court of the United States of America in considering that legislative balance.
The legislation in California recognised the innate differences between males and females participating in the act of sexual intercourse. To recognise this difference is not necessarily to discriminate. The exemption of a very young female from prosecution for an offence of taking part in an act of intercourse was regarded by the legislature as justified by the need to deter the male from having sexual intercourse with her, protecting her from the risk of pregnancy, and encouraging her to report the case. A similar approach was taken by the Oireachtas.
In considering s. 5 of the Act of 2006, the State justified the legislation by a social policy of protecting young girls from pregnancy, by creating a law governing anti-social behaviour, i.e. under age sexual intercourse. This was a choice of the Oireachtas. Even in a time of social change, it is a policy within the power of the legislature. The issue of under age sexual activities by young persons involves complex social issues which are appropriately determined by the Oireachtas, which makes the determination as to how to maintain social order. The Oireachtas could have applied a different social policy. But s. 5, the policy which they did adopt, was within the discretion of the Oireachtas, and it was on an objective basis, and was not arbitrary.
The Act, as set out earlier, makes both sexes liable for breaches of the offences created. However, s. 5 excludes the girl from criminal liability when the offence is sexual intercourse, but not for other sexual acts.
The Oireachtas made a choice, and such a legislative decision reflects a social policy on the issue. While the legislature could have enacted another social policy, it was an approach the legislature was entitled to take, it was an issue in society to which the legislature had to respond. The danger of pregnancy for the teenage girl was an objective which the Oireachtas was entitled to regard as relating to “differences of capacity, physical and moral and of social function”, as provided for in Article 40.1 of the Constitution. The Court would dismiss the appeal and reject the claim that s. 5 of the Act of 2006 is invalid having regard to the Constitution.
European Convention on Human Rights
The appellant included in his pleadings a number of claims that s. 3 of the Act of 2006 “is in breach of” certain articles of the European Convention on Human Rights. (see paragraph 8 above). These were repeated in the statement of claim and have been reproduced in the notice of appeal to this Court. In his written submissions to this Court, the appellant says that the Court is “under a duty, pursuant to section 2 of the European Convention on Human Rights, 2003 to apply statutory provisions and rules of law in a manner which is compatible with the Convention,” adding: “In this regard it is submitted that the plaintiff is entitled to respect for his private life and his private life includes his sexual life.”
The first claim concerned Article 8 of the Convention on the grounds that the section denies the appellant his right to respect for private life; and the second claim invoked Article 6 and Article 14 together on the grounds that the section denies the appellant the right to fair trial on grounds of gender. The High Court dealt briefly with the arguments based on the Convention, as set out earlier in this judgment. The learned judge agreed “with the submissions on behalf of the defendants that the provisions of that ECHR do not bring the matter any further than Article 40.1 of the Constitution.”
In reality the Convention claim has been presented as subsidiary to the constitutional claim. The claim, as pleaded, is simply that s. 3 is “in breach of” the Convention. That formulation is not acceptable. It treats the Convention as if it had direct effect and presumes that the Court has the power to grant a declaration that a section is in breach of the Convention. It is clear from the judgments of this Court in McD v L  2 I.R. 199 that the European Convention on Human Rights Act 2003 did not give direct effect in Irish law to the European Convention on Human Rights. As Murray C.J. stated at page 248, “The Convention does not of itself provide a remedy at national level for victims whose rights have been breached by reference to the provisions of the Convention.”
The appellant has not explained how the statutory provisions at issue in this case can be applied by the Court, by virtue of the Act of 2003 “in a manner which is compatible with the Convention.” Section 2 of the Act places an obligation on the courts in “interpreting and applying any statutory provision or rule of law.... in so far as is possible, subject to the rules of law relating to such interpretation and application, [to] do so in a manner compatible with the State's obligations under the Convention provisions.” Section 5 of the Act could not be interpreted, and counsel for the appellant has not suggested that it could, so as to render a female criminally liable in the same way as a male, thus removing the difference in treatment of which the appellant complains.
The appellant has not, in these proceedings, sought a declaration pursuant to s. 5 of the Act of 2003 that either s. 3 or s. 5 of the Act of 2006 is “incompatible with the State's obligations under the Convention provisions.”
Although the appellant refers in written submissions to the essence of the Convention and states that it guarantees respect for human dignity and freedom and the notion of personal autonomy, the appellant has not formulated any acceptable legal basis upon which these Convention principles could enable this Court to grant the declarations sought. Moreover, it is unclear how the claims made by the appellant relate to his case. The plenary summons did not make a claim linking Article 8 with Article 14. Thus, there was no viable claim based on Article 8 as the appellant was raising an issue of unequal treatment. Even if the appellant had raised a plea on Article 8, in conjunction with Article 14, there was no adequately formulated claim. There is no free standing right under Article 14, and Article 8 relates to respect for family and private life.
The Court is not satisfied that the appellant has formulated any claim based on the Convention provisions capable of being entertained by this Court.
Consequently, for the reasons given, the Court would dismiss the appeal.
all rights reserved