D (a minor) -v- Ireland Ors

High Court

Neutral Citation (2010) IEHC 101

Judgment was delivered on March 26th, 2010 by Ms Justice Elizabeth Dunne.

Judgment

Section 5 of the Criminal Law (Sexual Offences) Act 2006, which discriminates between underage boys and girls who have sex in that girls cannot be prosecuted for sexual intercourse while boys can, is not unconstitutional. Section 3 of the same Act, which makes it an offence to have sex with children under 17, is also not unconstitutional, despite the fact that on conviction a boy under 17 would be liable to up to five years imprisonment, while no penalty would be imposed on a girl.

Background

In September 2007 criminal proceedings were instituted against the plaintiff in these proceedings, who at the time of the offences was 15. He was charged with having sexual intercourse with a female person under 17 and with a sexual act of buggery against her. The complainant was 14 at the time.

The plaintiff took judicial review proceedings seeking declarations that sections 3 and 5 of the 2006 Act, under which he was charged, were contrary to the Constitution on the basis that they discriminated against him on the grounds of gender.

Gerard Hogan SC asked what would happen if the girl had been the “predator” in the situation and the boy the “victim”. The boy could be prosecuted but the girl could not. The effect of the provision of the Act was that where an underage male had consensual sex with an underage female, it was solely the male who committed an offence, even if the sexual activity had been initiated by the girl.

While section 3 of the Act was gender neutral, he said that if section 5 was found to be unconstitutional, then section 3 must also be, as it was the section under which prosecutions took place.

Counsel for the State responded that

the fact that a female child under 17 could become pregnant meant that there were different medical and psychological consequences for male and female children who had sexual intercourse. This justified the discrimination.

The parties agreed that a number of statements which made up part of the book of evidence should be made available to the court. These included the statement of the complainant and memorandums of interviews with the plaintiff.

Ms Justice Dunne said it was clear from these statements that prior to the events giving rise to the criminal proceedings, the complainant and the plaintiff were not known to each other. There was some sexual activity which could be described as “consensual”.

However, the complainant alleged that an act of buggery and an act of sexual intercourse, the offences with which the plaintiff had been charged, took place as a result of the use of force and fear. The plaintiff claimed that these acts were consensual.

It was clear that there was an issue as to consent. While here consent was not a defence, it was important to bear in mind that on the complainant’s view of the circumstances, this was not a case about “consensual” sexual activity.

Prof Sheila Greene, professor of childhood research in Trinity College, said it was clear from studies that thousands of young people under the age of consent were engaging in sexual intercourse. She said she did not see any basis for a difference in treatment of boys and girls.

Henry Matthews from the office of the DPP gave evidence on the policy of the office on this issue. Of 24 prosecutions initiated in 2007 under the 2006 Act, only one had no difference in age between the complainant and the accused, and that was this case.

In all other cases, the age difference ranged between three and six years, with one case involving an age difference of 39 years. He said the figures for the years 2008 and 2009 were similar.

He said that when considering the prosecution of a child offender, various steps are taken, including the Juvenile Liaison Scheme. When considering whether to prosecute a male under 17, the office would consider whether there was an exploitative element in the activity.

Among the authorities examined were a number of cases from the US, where there was similar legislation, where young males could be prosecuted for sex with underage girls, but the converse was not the case.

There had been a number of challenges to these laws. For example, in California one such challenge fell on the grounds that the consequences of teenage pregnancy fell on females, thus providing a deterrent to underage sex. In Canada and in the UK, similar challenges to differential treatment of males and females in this area had also failed.

Donal O’Donnell SC, for the State, stressed that section 5 of the Act referred only to sexual intercourse. Elsewhere in the Act “sexual acts” were referred to. This meant that the exemption enjoyed by girls in relation to prosecution referred to the only sexual act that could lead to pregnancy. They did not enjoy immunity in relation to other sexual acts.

He also said that in essence, the plaintiff’s argument was that more people should be at risk of prosecution. Even if section 5, which benefited a narrow class of women, was removed, he would still be liable to prosecution.

Decision

Ms Justice Dunne said that society had to protect children from underage sexual activity. One of the most serious consequences of underage sexual activity for girls was the risk of pregnancy. Early motherhood carried with it may negative consequences.

Section 3 of the 2006 Act was gender neutral and did not make any qualification as to the age of the perpetrator, who could be of the same or the opposite sex. The Act covered a wide range of sexual offences and offenders arising from any number of possible circumstances. There was no apparent constitutional or convention frailty in the provisions of section 3.

In relation to section 5, the different treatment of males and females had to be viewed as discriminatory. The question was whether the differentiation was legitimated by being founded on difference in capacity or difference of social function in a manner which was not invidious, arbitrary and capricious.

Girls and boys were equally liable under the Act to prosecution in respect of sexual activity that fell short of sexual intercourse. The immunity only applied to the one area of sexual activity that can result in pregnancy. This was the one consequence of sexual activity that carried no risk for boys or men.

The adverse consequences of underage sexual activity fell to a greater extent on girls than on 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 such activity.

Thus the discrimination identified in section 5 of the Act was legitimated by difference in capacity or social function, in a manner that was not invidious, arbitrary or capricious.

The full judgment is on courts.ie