“Romeo and Juliet”: Gender discrimination law challenge rejected

The High Court has today rejected a challenge to the Criminal Law (Sexual Offences) Act, 2006 which was based on a claim of gender discrimination. The case involved a young man, now aged 18, who had sexual intercourse with a girl of 14 when he himself was 15.

The legislation in question provides for the offences of “defilement of a child under 15 years of age” (s. 2) and “defilement of a child under 17 years of age” (s. 3). Under both of these provisions it is an offence to engage in a sexual act with a child under the relevant age. However, s. 5 of the 2006 Act states 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.

The claim before  the High Court was that the 2006 Act involved old-fashioned gender discrimination, which had no legitimate justification.

RTE News reports that Dunne J. in the High Court stated that studies show that the adverse affect of underage sex, such as pregnancy, early parenthood and resulting lower educational and occupational attainment, fall to a greater extent on girls than boys. She then claimed that the distinction between the manner in which girls and boys are treated under the legislation is justified as it provides an immunity from prosecution to girls only in relation to sexual intercourse (not other forms of sexual activity), which is the one type of sexual activity that can result in pregnancy. Dunne J. also said that the law existed to protect children from sexual abuse.

RTE reports that during the original hearing in December 2009, Counsel for the young man, Gerard Hogan S.C., argued that a conviction for a sexual offence for a boy of 15 who engaged in consensual sexual activity was a “savage penalty”.

This legislation, of course, was hastily enacted in the aftermath of the CC v Ireland and A v Governor of Arbour Hill Prison cases in 2006 and the recognition of the unconstitutional nature of the Criminal Law (Amendment) Act, 1935 which allowed for no defence of “reasonable belief” to a charge of statutory rape.

The instant case was an opportunity for the courts to consider the legislation and to, potentially, remove the anomoly provided therein. This was not done by the High Court and it remains to be seen whether the Supreme Court might be given the opportunity to address these issues in this or other appropriate cases.

Several criticisms of the s. 5 immunity for young girls and the prosecution of young men have been raised by various groups, e.g.  Treoir, and include the following:

• young fathers can be very difficult to engage and their prosecution will only serve to further alienate them;
• the legislation creates a somewhat strange distinction between sexual intercourse and other forms of sexual activity such that a young girl will not be prosecuted for sexual intercourse but may be prosecuted for lesser sexual activity; and,
• the main rationale for the section – to avoid stigmatising young mothers – does not really justify the distinction between boys and girls which is inherent in the law as not all instances of underage sex result in pregnancy.

An argument in favour of the immunity for girls is that without such immunity young girls may be afraid to report a sexual offence, due to a fear of being prosecuted. However, in the context of consensual under-age sexual intercourse such a rationale does not as readily apply as it would in the context of a more predatory sexual encounter.

One suggestion for reform has centred on the introduction of a “Romeo and Juliet” clause such that there would be a clear distinction between consensual sexual activity between teenagers and sexual abuse of a child or teenager by an adult. Susan Leahy, for example, has suggested that Ireland should introduce a rebuttable presumption that there is no criminal liability for under-age sexual activity where there is no more than a two-year age gap between the parties involved. (Leahy, S. “Hard Cases and Bad Law – An Overview of the Criminal Law (Sexual Offences) Act, 2006” (2008) 26 Irish Law Times 38) Certain states in America (e.g. Texas) operate such clauses.

Whether or not such change will come about, it is likely that the High Court decision will spark some renewed debate on these issues in the coming days.