The court has been urged to overturn as unconstitutional the “Romeo and Juliet” laws that allow the prosecution of teenage boys for having sex with teenage girls but prevent prosecution of the girls.
The five-judge court is hearing an appeal arising from a boy being charged under the Criminal Law (Sexual Offences) Act 2006 with having sex with a 14-year-old girl in Donegal. The boy is also charged with buggery.
The trial of the boy, who cannot be named for legal reasons, is on hold pending the outcome of an appeal.
Section 3 of the 2006 Act created an offence of defilement of a child under 17 and provided for a sentence of up to five years imprisonment. Section 5 of the Act stated a girl under 17 cannot be guilty of such an offence.
The Act arose in response to the Supreme Court’s “CC” judgment overturning as unconstitutional a 1935 law on underage sex on grounds of the absence of a defence of “reasonable mistake” as to the victim’s age.
In the High Court in March 2010, Ms Justice Elizabeth Dunne ruled, while the law did amount to gender discrimination, that discrimination was not invidious, capricious or disproportionate.
As the risk of pregnancy as a result of underage sex was borne by girls only, not 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 it, she said.
The objective of the 2006 Act was to protect children from sexual abuse, and it dealt with a complex and wide range of sexual activities, circumstances and levels of culpability, she also noted.
It provided immunity from prosecution applied to the one area of sexual activity that can result in pregnancy and the consequence of such carried no risk for boys or men. The risk was only borne by girls, she said.
A study referred to during the case showed the younger the age of sexual intercourse, the greater the probability of a negative outcome such as the increased risk of unintended pregnancy, sexually transmitted diseases, lower educational and job attainment and a greater risk of poverty, she noted.
Outlining the boy’s appeal against that decision today, John O’Kelly SC said the kernel of the appeal was that both parties involved in this sexual act were children in law aged under 17 with only about a year between the two of them.
The boy’s case was they engaged consensually in an act of sexual intercourse but under the Act, one of them was liable to be convicted and possibly jailed for up to five years while the other was guilty of no criminal offence at all.
Mr Justice Nial Fennelly noted the 2006 Act is neutral as to whether the act of sexual intercourse is consensual or not and the court was not getting involved in that issue in the appeal.