A “so-called Romeo and Juliet” law permitting prosecution of a boy over allegedly having sex with a 14 year old girl when he was aged 15 is “crude and old fashioned” gender-based discrimination, it was claimed before the High Court today.
The Oireachtas had justified the law on the basis of a “patronising view” girls must be protected from boys who are the guilty parties, Gerrad Hogan SC argued today when opening the boy’s challenge to the 2006 law.
The applicant, now aged 18, claims his right to equal treatment under the Constitution and European Convention of Human Rights has been breached because he has been charged with unlawful carnal knowledge and buggery while the girl cannot be charged at all.
The case arises after the government introduced the Criminal Law (Sexual Offences) Act 2006 in a swift response to a Supreme Court decision in the “CC” case which struck down as unconstitutional the 1935 law on unlawful carnal knowledge on grounds it did not allow for the defence of an “honest mistake” about the girl’s age.
The 2006 law provides a girl under 17 cannot be prosecuted for unlawful carnal knowledge while a boy can and the boy claims he is being discriminated against on grounds of gender.
The trial of the boy is on hold pending the outcome of the High Court case brought against Ireland, the Attorney General and the DPP, who deny the claims.
The boy is charged under Section 3 of the 2006 Act with committing the offences against the girl on August 5th 2006.
Opening the case today, Gerard Hogan SC, for the boy, said the charges amounted to having unlawful carnal knowledge which, on conviction, attracts a penalty of up to five years imprisonment.
However, the girl cannot be convicted of such a charge because the 2006 law provides that females under 17 cannot be found guilty of such an offence.
Central to the 2006 law was that the “boy alone” commits the offence while the girl enjoys “complete immunity”, counsel argued. This law was based on a “crude” traditional sexual stereotype and was “a good old fashioned example of gender-based discrimination for which there is no objective justification.”
Referred to as the “so-called Romeo and Juliet provision” of the 2006 Act, counsel said the Oireachtas had justified the measure on the basis of a “patronising view” that girls must be protected from boys who are the guilty parties.
This “is not the age of Shakespeare” but 400 years on, society was still faced with this “nakedly gender-based legislation”, he argued.
The State took the view girls should not be charged because the penalty for them was the possibility of pregancy, counsel said.
While this was to be the deterrent for girls, there was no comparison between this and the shame, ignominy and other “savage” consequences for a young man facing imprisonment for up to five years if convicted of a sex offence, counsel said.
The reality was boys are made criminally responsible for sexual activity while girls enjoy an immunity and the State had provided no “equalisation of risk” between the two penalties. The law also failed to acknowledge fatherhood does have consequences for the boy and was a societal deterrent to boys engaging in underage sexual activity.
The State was attempting to “level the playing field” by creating this criminal offence, counsel said. However, this was “not like some penalty points system but a serious business which involves a potential five year sentence”.
Professor Sheila Green, psychologist and professor of childhood research in TCD, told the court studies have shown that there has been a major increase in consensual sex between under 17s. Many are unaware boys can be prosecuted for having sex with girls of the same age, she said.
Statistics showed the mean age for children having sex was 15-and-a- half while it was as low as 13-and-a-half in certain areas, she added.
Cross-examined by Donal O’Donnell SC, for the State, Prof Green said there was a need for a criminal sanction for adults having sex with underage children. However, while accepting there should be a deterrent to children having consensual sex, she had a difficulty with it being made a crime.
The hearing before Ms Justice Elizabeth Dunne continues.