Tuesday, July 13, 2010

Irish Times: 2006 Act which makes underage sex a crime is constitutional, court finds

by CAROL COULTER, Legal Affairs Editor

Mon, Jul 12, 2010

THE 2006 Act which criminalises underage sex is constitutional despite the fact that it discriminates between boys and girls in relation to prosecution for acts of sexual intercourse, the High Court has found.

The Criminal Law (Sexual Offences) Act 2006 was introduced in the wake of the Supreme Court striking a section of the 1935 Act criminalising sex with an underage girl on the grounds that it did not allow for a defence of honest mistake as to the girl’s age.

The 2006 Act does permit such a defence and also redefined the crime of underage sex to include boys and homosexual sex within its remit. Heavier penalties were provided for in cases involving sex with children under 15, and where the perpetrator was in a position of trust or authority.

However, the Act discriminates between boys and girls in that boys can be prosecuted for sexual intercourse with girls under the age of 17, even if the sex is consensual, while girls cannot be prosecuted for sexual intercourse with underage boys, though they could be for other sexual acts.

In September 2007, a 15-year-old boy was charged with having sex with, and buggery of, a female person under the age of 17.

He 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. One section provided for the offence, the other for the prosecution of boys only. The case was heard by Ms Justice Elizabeth Dunne in the High Court and judgment was delivered in March, but has only recently been placed on the Courts Service website.

In it, she found that the Act was constitutional on the basis that, while it was discriminatory, such discrimination was justifiable because the consequences of sexual intercourse (early pregnancy) bore particularly heavily on girls. The case is being appealed to the Supreme Court.

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