THE SUPREME Court has been urged to overturn as unconstitutional the laws which 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 15-year-old boy being charged under the Criminal Law (Sexual Offences) Act 2006 with having sex with a 14-year-old girl in the Donegal Gaeltacht.
His trial is on hold pending the outcome of the appeal, which opened yesterday and will resume on a date to be fixed.
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 that a girl under 17 could not 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 that while the law did amount to gender discrimination, this was not invidious, capricious or disproportionate.
As the risk of pregnancy was borne by girls only, society was entitled to deter such activity and to criminally sanction 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 noted.
It provided immunity from prosecution applied to the one area of sexual activity that can result in pregnancy, which was not a risk for males.
The risk was only borne by girls, she said.
A study referred to during the case showed that the younger the age at which sexual intercourse took place, the greater the probability of a negative outcome such as 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 yesterday, John O’Kelly, for the boy, said the kernel of the appeal was that both parties involved were children in law aged under 17, with only about a year between them.
The boy’s case was that the two 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.
Mr Justice Nial Fennelly noted that the 2006 Act was neutral as to whether the act of sexual intercourse was consensual or not, and the court was not getting involved in that issue in the appeal.
Mr Kelly said the case arose from an incident in the Donegal Gaeltacht when the girl was attending there.
He said she and other girls had agreed to enter a deserted house with some local boys. The appellant boy asked the girl to go into a bedroom in the house and she had agreed.
Counsel said a friend of the girl’s, who left the house, returned after a short period when she met the girl outside.
The girl had said the boy asked her for oral sex. She agreed because she did not know what he would think of her if she did not, and claimed he forced intercourse and buggery on her.
Counsel said the boy admitted intercourse and buggery, but denied he forced the girl.
The boy could be jailed for five years and this amounted to gender discrimination, arbitrary and disproportionate to the objective of the Act.
The State justified the discrimination on the grounds that the girl could become pregnant, but the 2006 Act was intended to protect children and both parties here were children, he said.
While he accepted society should discourage underage sex, steps to achieve this, insofar as they intruded on individual rights, must be proportionate and objective, counsel argued.
It was totally disproportionate to compare the effects on a girl of getting pregnant with those arising from putting a young man into a penal institution.
John Finlay, for the State, opposed the appeal and argued that the High Court decision should stand. The disputed provision was a proportionate measure on grounds of pregnancy, he said.
