TWO TEENAGERS from a remote area of Co Donegal are at the centre of a major constitutional challenge being mounted against a controversial sex law. A boy accused of having sex with a girl when she was 14 and he was 15 is claiming the two-year-old law is discriminating against him.
He is to argue in the High Court that the 2006 Act breaches the Constitution because it permits a prosecution against him for having sex with an underage girl but it does not allow her to be accused in court of a sex offence with an underage boy.
The case is expected to be the first constitutional test of its kind of the law which was pushed through by former minister for justice Michael McDowell in response to public outrage that rapists of children were attempting to exploit a legal loophole at the time.
Lawyers for the boy have prepared a case citing the State, the Attorney General and the Director of Public Prosecutions (DPP) as defendants.
The boy has already been charged before a District Court in Co Donegal and been returned to the Circuit Court for trial although he has not yet appeared there.
The planned High Court action seeks an order preventing any further steps towards a trial until the constitutional challenge is decided.
The boy is accused of having sexual intercourse with a girl under the age of 17 on August 5th, 2006. He is also accused of committing buggery on the same occasion. Neither the boy nor the girl can be identified in any way because of their age.
When the law was going through the Dáil and Seanad, critics warned of a potential challenge on constitutional grounds if both boy and girl were aged under 17 years. But Mr McDowell said the section excluding prosecution of a girl was designed to avoid criminalising motherhood.
He explained at the time he had been persuaded by representations from the DPP that it would not be in the common good to criminalise teenage mothers. He accepted that the approach diverged from notions of gender equality but argued that it was unavoidable.
Now the statement of claim in the challenge before the High Court submits that the boy’s constitutional rights are being breached because of his gender.
It is also being submitted that his prosecution breaches the European Convention on Human Rights because it denies his right to respect for private life.
The boy faces a term of up to five years detention if convicted.