D (M)(A Minor) v Ireland and Others

JurisdictionIreland
JudgeMs. Justice Dunne
Judgment Date26 March 2010
Neutral Citation[2010] IEHC 101
CourtHigh Court
Date26 March 2010

[2010] IEHC 101

THE HIGH COURT

[No. 1990P./2008]
D (M)(a Minor) v Ireland & Ors

BETWEEN:

M. D. (A MINOR)
PLAINTIFF

AND

IRELAND, ATTORNEY GENERAL AND DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S5

CONSTITUTION ART 40.1

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S3(1)

CONSTITUTION ART 38.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

D (M) (A MINOR) v IRELAND & ORS UNREP CLARKE 21.4.2009 2009 IEHC 206

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S3(7)

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S3(9)

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S3(10)

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S1

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S3

M (S) v IRELAND & ORS (NO 2) 2007 4 IR 369 2007/38/7813 2007 IEHC 280

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S2

M v SUPERIOR COURT OF SONOMA COUNTY 1981 450 US 464

CALIFORNIA PENAL CODE S261.5

DPP, STATE v WALSH & CONNEELY 1981 IR 412 1981/3/388A

DE BURCA & ANDERSON v AG 1976 IR 38

OFFENCES AGAINST THE PERSON ACT 1861 S62

INFANTICIDE ACT 1949 S1(3)

CRIMINAL LAW (RAPE) ACT 1981 S2(1)

CRIMINAL LAW AMENDMENT ACT 1935 S1

CRIMINAL LAW AMENDMENT ACT 1935 S2

LAWRENCE v TEXAS 2003 539 US 558

C (C) v IRELAND & ORS 2006 4 IR 1 2006 2 ILRM 161 2006/9/1721 2006 IESC 33

CRIMINAL LAW (RAPE) (AMENDMENT) ACT 1990 S3(1)

CRIMINAL LAW (RAPE) (AMENDMENT) ACT 1990 S4(1)

CHILDREN ACT 2001 S96

SOMJEE v MIN FOR JUSTICE & AG 1981 ILRM 324

NORRIS v AG 1984 IR 36

CRIMINAL LAW AMENDMENT ACT 1935 S6

ART 26 OF THE CONSTITUTION & EMPLOYMENT EQUALITY BILL 1996, IN RE 1997 2 IR 321 1998/18/6758

BRENNAN & ORS v AG & WEXFORD CO COUNCIL 1983 ILRM 449 1982/14/2701

LAW REFORM CMSN CONSULTATION PAPER ON CHILD SEXUAL ABUSE (CP 2-1989)

LAW REFORM CMSN REPORT ON CHILD SEXUAL ABUSE (LRC 32-1990)

R v HESS 1990 2 SCR 906

CANADIAN CHARTER OF RIGHTS & FREEDOMS S7

CANADIAN CHARTER OF RIGHTS & FREEDOMS S15

CANADIAN CRIMINAL CODE S146.1

CANADIAN CHARTER OF RIGHTS & FREEDOMS S15(1)

R v KIRK 2002 CRIM LR 756 2002 EWCA CRIM 1580

E v DPP 2005 102(14) LSG 26 2005 EWHC 147 (ADMIN)

R v G 2008 UKHL 37 2009 1 AC 92 2008 1 WLR 1379 2008 3 AER 1071

SEXUAL OFFENCES ACT 2003 S5 (UK)

SEXUAL OFFENCES ACT 2003 S13 (UK)

CRIMINAL LAW AMENDMENT ACT 1935 S1(1)

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S2(1)

CONSTITUTIONAL LAW

Statute

Validity - Gender discrimination - Sexual offences - Sexual intercourse with child under 17 years - Immunity from prosecution afforded to female children - Whether discrimination on grounds of gender constitutionally permissible - Whether discrimination justified by reason of differences of physical or moral capacity or social function - Adverse effects of under age sexual activity - Adverse effects borne unequally - Risk of pregnancy - Entitlement of society to deter under age sexual activity - Immunity limited to sexual activity carrying risk of pregnancy - SM v Ireland (No 2) [2007] IEHC 280, [2007] 4 IR 369 followed; R v Kirk [2002] EWCA (Crim) 1580, [2002] Crim LR 756; E v DPP [2005] EWHC (Admin) 147, (Unrep, English HC, Pill LJ, 1/2/2005) and R v G (Home Secretary) [2008] UKHL 37, [2009] 1 AC 92 considered - Criminal Law (Sexual Offences) Act 2006 (No 15), ss 3 and 5 - Constitution of Ireland 1937, Articles 38.1 and 40.1 - European Convention on Human Rights 1950, articles 6, 8 and 14 - Claim dismissed (2008/1990P - Dunne J - 26/3/2010) [2010] IEHC 101

D(M) (a minor) v Ireland

1

JUDGMENT by Ms. Justice Dunne delivered on the 26th day of March, 2010

2

The plaintiff herein is a minor and he commenced these proceedings by plenary summons on the 10 th March, 2008 in which he has challenged the constitutionality of provisions of the Criminal Law (Sexual Offences) Act 2006 (hereinafter referred to as "the Act").

3

The plaintiff seeks, inter alia the following reliefs:

4

1. A declaration that s. 5 of the Criminal Law (Sexual Offences) Act 2006 is in breach of the Constitution in that it discriminates against the plaintiff on the basis of gender, contrary to Article 40. 1 of the Constitution.

5

2. A declaration that s. 3 (1) of the Criminal Law (Sexual Offences) Act 2006 discriminates against the plaintiff and is in breach of the Constitution in that on conviction the child plaintiff would be liable to receive a term of imprisonment of up to five years where no penalty would be imposed on a female child under the age of seventeen.

6

3. A declaration that s. 5 of the Criminal Law (Sexual Offences) Act 2006 is in breach of Article 38.1 of the Constitution in that the plaintiff is liable to a disproportionate penalty on the basis of his gender.

7

A number of reliefs were also sought to the effect that the same provisions of the Act are in breach of Article 8 of the European Convention on Human Rights in that it denied the plaintiff his right to respect for private life and a declaration that s. 3(1) of the Act is in breach of Article 6 and Article 14 of the European Convention on Human Rights (ECHR) in that it denies the plaintiff the right to a fair trial on grounds of gender. Further and ancillary relief is sought.

Undisputed facts
8

It is not in dispute that in September 2007, criminal proceedings against the plaintiff were instituted in respect of criminal offences alleged to have been committed on 5 th August, 2006, in Co. Donegal. The plaintiff was charged as follows:

9

· That he did on 5 th August 2006 at …, Co. Donegal …, have sexual intercourse with a female person under seventeen years, contrary to s. 3(1) of the Act.

10

· That he did on 5 th August, 2006, in Co. Donegal … commit a sexual act of buggery on the aforesaid female person under seventeen years, contrary to s. 3 (1) of the Criminal Law (Sexual Offences) Act 2006.

11

The plaintiff was returned for trial in respect of those charges and presently, he awaits trial before the Circuit Court. An order has been made by this Court (Clarke J.) placing a stay on the conduct of the criminal trial before the Circuit Court in Donegal for the purpose of enabling the plaintiff to make this challenge. ( M.D. (A Minor Suing by His Mother and next friend S.D.) v. Ireland, Attorney General and the Director of Public Prosecutions [2009] I.E.H.C. 206).

12

The plaintiff herein was born in 1990 and at the time of the alleged offence he was fifteen years old. The female person referred to in the charges (hereinafter referred to as "the complainant") was born in 1991 and she was fourteen years old at the time of the alleged offences.

The legislation
13

Section 3 (1) of the Act provides as follows:

"Any person who engages in a sexual act with a child who is under the age of seventeen years shall be guilty of an offence and shall, subject to subsection (3), be liable on conviction on indictment -"

(a) to imprisonment for a term not exceeding five years, or

(b) if he or she is a person in authority, to imprisonment for a term not exceeding ten years.

14

Section 3 (7):

"It shall not be a defence to proceedings for an offence under this section for the defendant to prove that the child against whom the offence is alleged to have been committed consented to the sexual act of which the offence consisted."

15

Section 3 (9):

"No proceedings for an offence under this section against a child under the age of seventeen years shall be brought except by, or with the consent of, the Director of Public Prosecutions."

16

Section 3 (10):

"A person who -"

17

(a) has been convicted of an offence under this section, and

18

(b) is not more than 24 months older than the child under the age of seventeen years with whom he or she engaged or attempted to engage in a sexual act, shall not be subject to the provisions of the Sex Offenders Act 2001.

19

Section 5:

"A female child under the age of seventeen years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse."

20

Section 1 …

21

"Sexual act" means:

22

(a) an act consisting of -

23

(i) sexual intercourse, or

24

(ii) buggery,

25

between persons who are not married to each other, or,

26

(b) an act described in s. 3 subs. 1 or s. 4 subs. 1 of the Act of 1990; "sexual intercourse" shall be construed in accordance with s. 1 (2) of the Act of 1981.

The plaintiff's submissions
27

The plaintiff's case is focussed principally on the provisions of s. 5 of the Act. It is contended that s. 5 is gender based and discriminatory and exposes an under age male to a risk of criminal sanction in circumstances in which an under age female is not so exposed. This was said to be an approach based on a crude, traditional sexual stereotype where it is assumed that the male is "the guilty sexual predator" and the female is an "innocent comely maiden".

28

It was pointed out that a male convicted of an offence under s. 3 (1) of the Act would face a maximum penalty of five years imprisonment in circumstances such as this whereas there is no sanction for females, save for that referred to in the defendants' submissions as the deterrent of the risk of pregnancy.

29

Mr. Hogan, S.C., on behalf of the plaintiff asked the question what would happen if a girl had been the "predator" and the boy the "victim" of an offence under s. 3 (1) of the Act. He pointed out that the boy could be prosecuted for the offence but the girl could not. He disputed the defendants' contention that there is an objective justification for the gender based discrimination to be found in s. 5 of the Act. There was no objective justification or equalisation by reason of the respective deterrents for boys and girls that is, the possibility of imprisonment for the boy...

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