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Criminal Law (Sexual offenses act) 2006 - Constitutionality of article 5

  • 30-01-2012 8:03pm
    #1
    Registered Users, Registered Users 2 Posts: 12,619 ✭✭✭✭


    Hey guys, I am arguing in a class moot the constitutionality of section 5 of the Sexual Offenses act.

    The section reads.
    "A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse."

    In the moot my client is a 16 year old boy charged with the act because he had consensual intercourse with a 16 year old girl. I am arguing the act is unconstitutional because it breaches article 40.1 of the constitution.
    “All citizens shall, as human persons, be held equal before the law.

    This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

    Now if I get that struck down because its unconstitutional surely it will just be severed from the act and my client will still go to jail under section 3 (and presumably so will his partner).

    Instead of arguing that the act is unconstitutional because women shouldn't have that right, could I instead argue that it is unconstitutional because men should have that right. If so would the court have to strike down the whole act because it is not able to put in positive rights?

    The issue is in interpretation. Apparently women are given this extra right because of the risk of pregnancy. I was instead going to argue that the reason the right is given is because no girl would report statuatory rape if they could be prosecuted for it too. And so this article prevents boys from ever reporting statuatory rape committed on them by someone between the age of 15-17.


Comments

  • Closed Accounts Posts: 6,224 ✭✭✭Procrastastudy


    "This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

    Well that gives you a problem straight away!

    Also

    (9) No proceedings for an offence under this section against a child under the age of 17 years shall be brought except by, or with the consent of, the Director of Public Prosecutions.

    I'm assuming for the purposes of the moot you have a w*nker of a DPP :)


  • Registered Users, Registered Users 2 Posts: 12,619 ✭✭✭✭errlloyd


    Yeah, but the DPP seems to have been a bit of a tool in the A Minor case. Apparently thats literally one of the only cases ever a boy under 17 has been charged with statuatory rape, and it seems it was only because it was probably unconsenual buggery and intercourse.

    The fun part of this moot is that the 16 year old boy was having relations with his twin sister. So we have to argue that constitutionality of the incest act too, but thats a piece of piss. It took me ages to come up with a way to win this, and I don't even know if it will work.


  • Closed Accounts Posts: 6,224 ✭✭✭Procrastastudy


    Not done criminal yet myself although my lack of being able to help on the constitutional front has me looking back at my notes!

    I can see next year being fun.

    EDIT: Also what sick twisted ... makes up your moots! :P


  • Registered Users, Registered Users 2 Posts: 4,632 ✭✭✭NoQuarter


    There was a very recent ruling with facts similar to yours. The constitutionality of the section was upheld but you should read the case and develop the arguments used for your side.

    D (M) (A Minor) v Ireland & Ors [2009] IEHC 206 is the original.

    M.D. (an infant) v. Ireland [High Court] [2009] 3 IR 690 is the appeal.

    D (M)(a Minor) v Ireland & Ors [2010] IEHC 101 is the ECHR appeal.

    They are definitely available on Justis. If you don't have access check courts.ie


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