The High Court has rejected a 15-year-old boy’s challenge to a law that exempts girls under 17 from criminal liability solely for engaging in sexual intercourse. Ms Justice Dunne held that the exemption in section 5 of the Criminal Law (Sexual Offences) Act 2006 was justified by the different consequences of underage sexual activity, including the risk of pregnancy.
The boy had asked the court to find that sections 3 and 5 of the Act breached the Constitution and the European Convention on Human Rights (ECHR). He argued that the law exposed boys to prosecution while girls of the same age were exempt for sexual intercourse. The State parties argued that the exemption was narrow, addressed the risks borne by girls, and formed part of a wider scheme to protect children.
The boy had been charged over alleged sexual acts involving a 14-year-old girl in County Donegal in August 2006. He faced charges of sexual intercourse and buggery under section 3. The girl’s account was that force and fear were involved; the boy’s account was that the acts were consensual. The judge said the accounts could not be reconciled in the constitutional proceedings and did not determine which was correct. The question of consent remained for the criminal case; under section 3, consent is not a defence.
The judge found that section 3 was gender neutral and covered a wide range of conduct and circumstances. Section 5, by contrast, applied only to girls under 17 and only to sexual intercourse. It did not exempt girls from liability for other sexual acts, including buggery. The complainant therefore had no section 5 immunity in relation to the buggery allegation.
The court accepted that section 5 treated boys and girls differently. It held that the distinction was justified under Article 40.1 of the Constitution, given the risks and consequences of underage sexual activity and the fact that pregnancy is borne by girls. The judge concluded that the exemption was limited and rationally connected to the aim of protecting children. She also rejected the ECHR challenge, finding that it did not take the case further than the constitutional arguments.
The court refused the boy’s claims. It did not decide the criminal charges or order that they be dismissed. The boy remained awaiting trial in the Circuit Court; a stay on that trial had previously been made to allow the constitutional challenge to proceed. Because the challenge failed, the judge did not need to decide whether striking down section 5 alone could have provided the relief the boy sought.