The High Court declared unconstitutional the part of the Offences Against the Person Act 1861 that set a maximum sentence of 10 years’ penal servitude for indecent assault on a male. Miss Justice Laffoy ruled on 12 July 2007 that the provision treated people convicted of the same common law offence differently according to the victim’s gender, without a legitimate justification under Article 40.1 of the Constitution.
The case was brought by S.M., who stood charged with 33 offences, including 31 alleged indecent assaults on a male. The alleged offences spanned 1966 to 1976 and involved eight complainants, all under 17 at the time. S.M. had not been convicted. The proceedings challenged the sentencing provision, not the charges or the underlying offence.
At the time covered by the charges, indecent assault on a male carried a maximum penalty of 10 years, while a first conviction for indecent assault on a female carried a maximum of two years. The court found that indecent assault was a single common law offence that could be committed by or against a person of any gender. It concluded that the different maximum penalties were prima facie discriminatory and that the State had shown no relevant difference in physical or moral capacity, or social function, to justify the distinction.
The court’s declaration was limited to the part of section 62 prescribing the 10-year maximum for indecent assault on a male. It did not strike down the whole section, which also covered other offences, and it did not set a replacement sentence. Laffoy said the court could not extend the higher penalty to all indecent assaults or reduce it to the former two-year maximum: either step would amount to changing the law. The common law offence itself was unaffected.
S.M. also sought relief aimed at stopping the prosecution. The court refused to decide whether it could continue. Laffoy said the absence of a statutory penalty could affect the sentence available after conviction and might have consequences for trial mode or venue. Those issues were for the Director of Public Prosecutions in the first instance and the trial court thereafter, with due regard to the right to a trial in due course of law. The charges remained pending, and the court emphasised S.M.’s presumption of innocence.