THE LAW which says that a teenage boy can be charged with underage sex while a girl of a similar age cannot is designed to protect young people, both male and female, and is not paternalistic, the State has argued before the High Court.
The 2006 law is not a unique piece of gender-specific legislation and was just another piece of legislation where gender distinction is made because it has never been considered that females can perform the same sexual acts as males, Donal O’Donnell SC, for the State, has said.
The Criminal Law (Sexual Offences) Act 2006, introduced in response to a Supreme Court finding that a 1935 law on unlawful carnal knowledge was unconstitutional, would not work if it depended on a girl making admissions which would effectively criminalise her, he also said.
Mr O’Donnell was making submissions on behalf of the State on the second day of a constitutional challenge by a youth to his prosecution under the 2006 Act for allegedly having sex with a 14-year-old girl when he was 15.
The youth, now 18, claims his rights have been breached because he has been charged with unlawful carnal knowledge and with committing buggery, while the girl has not been charged.
The girl, he claims, cannot be found guilty of underage sex under the 2006 law, whereas he says he faces a possible jail term of up to five years if convicted. He is being discriminated against on grounds of gender, he alleges.
His trial is on hold pending the outcome of his High Court challenge, which is against Ireland, the Attorney General and the DPP.
Mr O’Donnell yesterday said the 2006 law was just one piece of legislation where gender distinction was made as it had never been considered that females could perform the same sexual acts as males.
Similar gender-specific legislation applied in other jurisdictions and reflected a pattern repeated throughout our lawmaking and dating as far back as AD760, Mr O’Donnell added.
The 2006 Act simply provided that the offence of unlawful carnal knowledge, like rape, “could only be committed by a man”.
This was not “broad-brush paternalistic legislation” but something which reflected complex and complicated nature. The 2006 law took such complexity into account, as well as the obvious differences between male and female in that the consequences for the female were that she could become pregnant.
That law also took into account the difficulty of obtaining convictions, he added, in circumstances where admissions were being sought from a girl who would herself be criminalised.
Judges and the Law Reform Commission had pointed out the difficulty of obtaining successful prosecutions, mainly because the acts were committed in private.
The court should not be asked to address this complex matter “at the level of crude generalisations” and should not strike down a law which was aimed at protecting young people, both male and female, Mr O’Donnell continued.
Suggestions that the youth faced up to five years imprisonment if convicted were not possible because of the sophistication of the legislation, including protections provided by the Children’s Act, he added.
The hearing continues.