The Supreme Court has dismissed an appeal challenging the constitutionality of legislation that exempts girls under 17 from criminal liability when they engage in sexual intercourse. The Court held that the exemption was a legislative policy choice justified by the risk of pregnancy and was not arbitrary. It also rejected the appellant’s European Convention on Human Rights claims because they had not been put forward on a legal basis the Court could entertain.
The appellant, identified in the judgment as M.D., was 15 at the time of the alleged events. He had been charged under section 3(1) of the Criminal Law (Sexual Offences) Act 2006 with sexual intercourse and an act of buggery involving a 14-year-old girl. The judgment records that she was not charged. The allegations had not been tried: the proceedings concerned a challenge brought before the intended prosecution, and there were no agreed facts.
The judgment describes differing accounts in statements considered by the High Court. The complainant alleged that force and fear were involved; the appellant’s account was that the acts were consensual. The Supreme Court did not resolve that dispute or determine the criminal charges.
Section 3(1) makes it an offence for any person to engage in a sexual act with a child under 17. Section 5 provides that a girl under 17 is not guilty of an offence under the Act solely by engaging in sexual intercourse. The appellant argued that this treated boys unequally, exposing them to prosecution and a possible prison term of up to five years while girls in the same age group were exempt for intercourse.
The Court said the Act generally adopted a gender-neutral approach to sexual offences involving children, but section 5 made a specific exception for girls and intercourse. It concluded that deciding whether the risk of pregnancy justified that exception was a matter for the Oireachtas in a socially sensitive area. The Court found the policy choice to be objective and within the legislature’s discretion, and rejected the claim that section 5 was unconstitutional.
The appeal also raised claims under Articles 8, 6 and 14 of the European Convention on Human Rights. The Court said the Convention does not have direct effect in Irish law and that the appellant had not sought a declaration of incompatibility under the 2003 Act. It found no adequately formulated Convention claim capable of being entertained.
The Supreme Court therefore dismissed the appeal. The judgment did not determine whether the appellant was guilty of either alleged offence.