D (M) (A Minor) v Ireland AG & DPP

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Denham C.J.
• Judgment Date: 23 February 2012
• Neutral Citation: [2012] IESC 10
• Docket Number: [S.C.
• Date: 23 February 2012

D (M) (A Minor) v Ireland & Ors

Between/

M.D. (A Minor suing by his Mother and Next Friend S.D.)

Plaintiff/Appellant

And

Ireland, the Attorney General and the Director of Public Prosecutions

Defendants/Respondents

[2012] IESC 10

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Macken J.

[Appeal No: 176/2010]

THE SUPREME COURT

CONSTITUTIONAL LAW

Statute

Validity - Equality - 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 - Social policy within power of Oireachtas - Entitlement of Oireachtas to have regard to danger of pregnancy for teenage girls - Prosecutorial discretion - Michael M v Superior Court of Sonoma County (1981) 450 US 464 considered; JMcD v PL [2008] IEHC 96, [2009] IESC 81, [2010] 2 IR 199 followed - Status of European Convention on Human Rights - 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 - Appeal dismissed (176/2010 - SC - 23/2/2012) [2012] IESC 10

D(M) (A Minor)v Ireland

Facts The appellant appealed from a decision of the High Court (Dunne J.) which upheld the constitutionality of s. 3(1) and s. 5 of the Criminal Law (Sexual Offences) Act, 2006. The appellant was charged with having sexual intercourse and committing a sexual act of buggery with a female person under the age of seventeen years, contrary to s. 3(1) of the Act of 2006. At the time of the alleged offences the appellant was 15 years of age and the complainant, who was not charged with any offence was 14 years old. By virtue of s. 5 of the 2006 Act, a female under the age of 17 years does not commit an offence contrary to s. 3(1) by reason only of engaging in an act of sexual intercourse. The appellant sought a declaration that s. 3(1) and s. 5 of the Act of 2006 were repugnant to the Constitution in that they discriminated against the appellant on the basis of gender, contrary to Article 40.1 of the Constitution. The appellant also submitted that s. 5 breached his right to trial in due course of law provided by Article 38.1 of the Constitution as no penalty would be imposed on a female under the age of 17 years. It was further submitted that s. 3(1) breached Articles 6, 8 and 14 of the European Convention on Human Rights. Dunne J. in the High Court determined that on the face of it there was no apparent Constitutional or Convention frailty in the provisions of s. 3. However, Dunne J. determined that s. 5 was discriminatory but having regard to the fact that the section only provided immunity in respect of the one area of sexual activity that can result in pregnancy, she decided that the discrimination was legitimated by being founded on differences in capacity, physical or moral or differences of social function of men and women in a manner not invidious, arbitrary or capricious. Dunne J. also held that the European Convention on Human Rights did not bring the matter any further than Article 40.1 of the Constitution and consequently she rejected the appellant's submission that the provisions breached the Convention. The appellant submitted herein that the learned High Court judge erred in law in the findings she made.

Held by Supreme Court: Denham C.J. (Murray, Hardiman, Fennelly, Macken JJ) in dismissing the appeal: That the decision of the learned High Court judge regarding the constitutionality of s. 3 of the Act of 2006 was correct. By virtue of s. 3 a person of either sex and of any age may be guilty of an offence, if he or she engages in a sexual act with a child under the age of seventeen or attempts to do so and does not have a reasonable and honest belief that the child has attained the age of 17 years. However, s. 5 provides an exemption for a female child under the age of 17 years who engages in sexual intercourse. Article 40.1 of the Constitution recognises that perfectly equal treatment is not always achievable and it permits the State, in its enactments to have "due regard to differences of capacity, physical and moral, and of social function". The State justified s. 5 of the Act of 2006 by a social policy of protecting young girls from pregnancy, by creating a law governing under age sexual intercourse. The danger of pregnancy for the teenage girl was an objective which the Oireachtas was entitled to regard as relating to 'differences of capacity, physical and moral and of social function', as provided for in Article 40.1 of the Constitution and consequently s. 5 was not repugnant to the Constitution. Furthermore, the appellant did not formulate any claim based on the European Convention on Human Rights provisions capable of being entertained by this Court.

Reporter: L.O'S.

D(M) A MINOR v IRELAND & ORS UNREP DUNNE 26.3.2010 2010/10/2237 2010 IEHC 101

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

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S5

CONSTITUTION ART 40.1

C (C) v IRELAND 2006 4 IR 1

CRIMINAL LAW (AMDT) ACT 1935

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

CONSTITUTION ART 40.3

KRIEGER v LAW SOCIETY OF ALBERTA 2002 3 SCR 372

MCCORMACK, STATE v CURRAN 1987 ILRM 225

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S2

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S3

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

CRIMINAL LAW (AMDT) ACT 1935 S1(1)

CRIMINAL LAW (AMDT) ACT 1935 S1(2)

CRIMINAL LAW SEXUAL OFFENCES ACT 2006 S1

CRIMINAL LAW (RAPE) ACT 1981 S1(2)

OFFENCES AGAINST THE PERSON ACT 1861 (UK) S63

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

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

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S4

CONSTITUTION ART 40.6.2

CONSTITUTION ART 44.2.3

CONSTITUTION ART 40.1

MATERNITY (PROTECTION) ACT 1994

MATERNITY PROTECTION (AMDT) ACT 2004

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4(1)(A)

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4(1)(B)

MICHAEL M v SUPERIOR COURT OF SONOMA COUNTY 450 US 464

MCD v P L 2010 2 IR 199

1 Judgment of the Court delivered on the 23rd day of February, 2012 by Denham C.J.

2 1. This is an appeal from a decision of the High Court [2010] IEHC 101 (Dunne J., 26 ^th March, 2010) which upheld the constitutionality of s. 3(1) and s. 5 of the Criminal Law (Sexual Offences) Act 2006, which will be referred to as "the Act of 2006".

3 2. The background to the case is that M.D., the plaintiff/appellant, who will be referred to as "the appellant", is charged that on the 5 ^th August, 2006, he had sexual intercourse, and committed a sexual act of buggery, with a female person under the age of seventeen years, contrary to s. 3(1) of the Act of 2006. At the time of the alleged offences the appellant was 15 years of age and the complainant was 14 years old. The complainant was not charged with any offence.

4 3. Section 3(1) of the Act of 2006 states:-

"Any person who engages in a sexual act with a child who is under the age of 17 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 5 years ...".

5 4. Section 3(5) provides a defence of mistake as to age. It states:-

"It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she honestly believed that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years".

6 5. By virtue of s. 5 of the Act of 2006, s. 3(1) does not apply to a female under the age of 17 years in respect of an act of sexual intercourse. It states:-

"A female child under the age of the 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse".

7 6. The appellant has sought, inter alia, a declaration that s. 5 of the Act of 2006 is repugnant to the Constitution in that it discriminates against the appellant on the basis of gender, contrary to Article 40.1 of the Constitution. The appellant's case, in essence, is that this provision is gender biased and discriminatory and that it exposes the underage male to the real risk of criminal sanctions based on the traditional sexual stereotype where it is legislatively assumed that the male is the guilty predator and the female is the innocent comely maiden. It is submitted that the fact that the female alone can become pregnant is not a ground which justifies an immunity of this kind.

8 7. The Act of 2006 was passed following the decision of this Court in C.C. v. Ireland [2006] 4 IR 1, which held that s. 1(1) of the Criminal Law (Amendment) Act 1935, was unconstitutional because of the absence of a defence of mistake of fact as to age. The Act of 2006 replaced the statutory offences of unlawful carnal knowledge under the Criminal Law (Amendment) Act 1935 with two new offences, defilement of a child under 15 years of age and defilement of a child under 17 years of age. It also introduced a defence of honest mistaken belief as to the injured party's age in the case of both offences.

Proceedings

9 8. The appellant's claim in his plenary summons is for:-

10 (i) A Declaration that s. 5 of the Act of 2006 is in breach of the Constitution, in that it discriminates against the appellant on the basis of gender, contrary to Article 40.1 of the Constitution.

11 (ii) A Declaration...