A MAN WHO has admitted buggery of an underage girl but claims it was consensual, has brought High Court proceedings to prevent his being sentenced on grounds that the law on buggery under which he is charged is unconstitutional.
The man claims the law is unconstitutional because it provides that a person is automatically guilty without any requirement of "mental or moral guilt".
He claims when he was aged 19, he and the then 16-year-old girl were in a relationship, that the sexual activity was consensual and that he did not know it was illegal. The court heard he told gardaí he knew the girl was aged 16.
The man is accused of two counts of buggery of a girl under the age of 17, contrary to section 3 of the Criminal Law (Sexual Offences) Act, in April and May 2002. He pleaded guilty in the Circuit Court and is seeking a High Court injunction prohibiting further prosecution and sentence. The offence carries a maximum two-year sentence.
In proceedings against the Director of Public Prosecutions and the Attorney General, lawyers for the man have challenged the constitutionality of section 3, arguing it is similar in character to the struck-down section 1.1 of the 1993 Act which provided a man is automatically guilty of an offence if he has sex with a girl under 15.
In its judgment on the Circuit Court case in 2006, the Supreme Court struck down section 1.1 as unconstitutional because it did not allow for a defence of genuine mistake as to age. The State is opposing the man's action.
After submissions concluded yesterday, Mr Justice Roderick Murphy reserved judgment. He also ordered that identities and the location of the incidents cannot be disclosed.
Earlier, Colman Fitzgerald SC, for the man, said his client was in "imminent danger" of being jailed and is seeking declarations, including that section 3 is unconstitutional and incompatible with the European Convention on Human Rights.
Gerard Hogan SC for the State argued that section 3 was in conformity with the Constitution. He also argued the man did not have the necessary legal standing to bring the challenge, given his admissions that he was aware of the girl's age.