Romeo and Juliette constitutional challenge failure

source

The Supreme Court has dismissed a challenge against the law under which a 15-year-old boy was charged with having sex with a 14-year-old girl.

His lawyers had argued that the law should be overturned because it allowed for the prosecution of teenage boys for having sex with teenage girls but prevented prosecution of the girls.

The High Court ruled against him and this morning, the Supreme Court upheld the High Court decision.

The case was described as a challenge to the so-called "Romeo and Juliet" legislation.

The boy is charged under the 2006 Criminal Law (Sexual Offences) Act, with having sex with a 14-year-old girl in the Donegal Gaeltacht in 2006. He is also charged with buggery.

His trial has been on hold pending the outcome of this appeal.

Section 3 of the Act created an offence of defilement of a child under 17 and provides for a sentence of up to five years in prison.

Section 5 of the Act states a girl under 17 cannot be guilty of such an offence.

The High Court ruled that while the law did amount to gender discrimination, that discrimination was not disproportionate because the risk of pregnancy is born by girls only.

Chief Justice Ms Justice Susan Denham said section 5 of the act excluded the girl from criminal liability when the offence was sexual intercourse.

She said the Oireachtas made a choice and such a legislative decision reflected social policy on the issue.

She said it was an approach the legislature was entitled to take. The danger of pregnancy for the teenage girl was an objective which the Oireachtas was entitled to take account of.

So basically what it boils down to is that a male is guilty of a criminal act by having consensual under-age sex because he cannot get pregnant.

I understand generally what the judge was getting at, but at the same time, for it to get that far the female has to consent to having sex making her guilty of the same offence as the male. The personal risks of the persons involved shouldn't come into determining whether the act is an offence or not.

So what do people think of this judgement? Personally I think it's very wrong, and the judge was way off the mark with this judgement.

Trick of the Tail

What has getting pregnant got to do with it?

Surely the salient point is whether our society feels that sex between people under a certain age is acceptable.

It is the act of intercourse that we're talking about, not its possible results.

I agree that the judge has really got it wrong on this.

Procrastastudy

The Judge has very little say once a statute is passed by the Oirachtas. This is a classic seperation of powers issue. The Judge has done what they are there to do and that is uphold the law. If we don't like the legislation then it's the government that need to be challenged not the courts.

Grolschevik

This is what stands out for me:

The boy is charged under the 2006 Criminal Law (Sexual Offences) Act, with having sex with a 14-year-old girl in the Donegal Gaeltacht in 2006. He is also charged with buggery.

Now, whatever about the possibility of adults catching them in flagrante and calling the cops, that level of detail surely can only come from the girl, which means she must have consented to be a willing and informative party to the complaint.

Which would imply that the "Romeo and Juliet" sobriquet is probably inaccurate in terms of its romantic connotations.

alchemist33

The High Court ruled that while the law did amount to gender discrimination, that discrimination was not disproportionate because the risk of pregnancy is born by girls only.

There are other risks involved in sex these days i.e. fatal transmissible diseases (even if condoms are used), which the boy is at risk from. Why is pregnancy the risk which trumps others?

NoQuarter

GCDLawstudent wrote: »

The Judge has very little say once a statute is passed by the Oirachtas. This is a classic seperation of powers issue. The Judge has done what they are there to do and that is uphold the law. If we don't like the legislation then it's the government that need to be challenged not the courts.

Well that is the whole point of a Constitutional challenge, to get the court to strike down the legislation because it is unconstitutional! You are kind of missing the whole point in the case.

Procrastastudy

NoQuarter wrote: »

Well that is the whole point of a Constitutional challenge, to get the court to strike down the legislation because it is unconstitutional! You are kind of missing the whole point in the case.

Sorry I should have been clearer in my point that this happens only very rarely due to the deference of the courts to the Oireachtas and the separation of powers. I am only basing my assertion on the case as described by the link. I really can't see how this could have possibly gone any other way. The Irish Constitution is inherently sexist, and Irish law of this type of thing very conservative.

I do think its daft but I don't agree that the the Chief Justice got it wrong in the decision she (an presumably at least two more SC judges) made. I know delegated legislation can get struck down but I dont think striking down primary legislation outside of Article 26, regually, is a good thing.

Perhaps I'm missing a basic Constitutional point but with all the qualifications given to equal rights articles in BnaE I'm struggling to think of it.

johnnyskeleton

source wrote: »

So what do people think of this judgement? Personally I think it's very wrong, and the judge was way off the mark with this judgement.

I think the legislation was poorly drafted, and the supreme court came to the wrong decision for the right reasons. The big problem is that the legislature have almost made it an article of faith to draft legislation without any legal input, with the result that the supreme court is left with an impossible decision - either uphold a bad law or permit an unfair system to do the best it can.

It's unfair on everyone that no one wants to try and make the law correct.

RandolphEsq

alchemist33 wrote: »

There are other risks involved in sex these days i.e. fatal transmissible diseases (even if condoms are used), which the boy is at risk from. Why is pregnancy the risk which trumps others?

That is a terribly good point. Possibly, I am guessing, that there are things worse than death and as a society we consider having to raise bastard children one of those?

Marcusm

GCDLawstudent wrote: »

Sorry I should have been clearer in my point that this happens only very rarely due to the deference of the courts to the Oireachtas and the separation of powers. I am only basing my assertion on the case as described by the link. I really can't see how this could have possibly gone any other way. The Irish Constitution is inherently sexist, and Irish law of this type of thing very conservative.

I do think its daft but I don't agree that the the Chief Justice got it wrong in the decision she (an presumably at least two more SC judges) made. I know delegated legislation can get struck down but I dont think striking down primary legislation outside of Article 26, regually, is a good thing.

Perhaps I'm missing a basic Constitutional point but with all the qualifications given to equal rights articles in BnaE I'm struggling to think of it.

You do realise that the legislation which is being challenged was introduced to deal with a case where the SC struck down an existing law because the defendants couldn't claim an honest mistake with respect to the age of the other party? This in itself makes it clear that it is within the ambit (indeed the ordinary function) of the courts to test the constitutionality of statutes. What is "delegated legislation"? Do you mean "secondary"?

Marcusm

Grolschevik wrote: »

Which would imply that the "Romeo and Juliet" sobriquet is probably inaccurate in terms of its romantic connotations.

It's also inappropriate as the girl has denied that the intercourse and buggery were consensual; she has apparently agreed that oral sex between them was consensual but that he used force for the other acts. I assume that this is what lies behind the prosecution in the first place. THis is explained by the judge of the High Court.

NoQuarter

GCDLawstudent wrote: »

Sorry I should have been clearer in my point that this happens only very rarely due to the deference of the courts to the Oireachtas and the separation of powers. I am only basing my assertion on the case as described by the link. I really can't see how this could have possibly gone any other way. The Irish Constitution is inherently sexist, and Irish law of this type of thing very conservative.

I do think its daft but I don't agree that the the Chief Justice got it wrong in the decision she (an presumably at least two more SC judges) made. I know delegated legislation can get struck down but I dont think striking down primary legislation outside of Article 26, regually, is a good thing.

Perhaps I'm missing a basic Constitutional point but with all the qualifications given to equal rights articles in BnaE I'm struggling to think of it.

I understand your argument and I understand that the courts must be deferential in their approach toward the dealings of the Oireachtas but that should never mean they should be fully deferential. The point of having a hierarchy of legal sources of which legislation is subordinate to the Constitution is that if there is a confliction, the Constitution should prevail.

seamus

RandolphEsq wrote: »

That is a terribly good point. Possibly, I am guessing, that there are things worse than death and as a society we consider having to raise bastard children one of those?

Because under Irish law women are still considered the untouchable primary caregiver who will tend to their child 24 hours a day whereas men are just philandering automatons who will desert their child at a moment's notice.

There is no regard given for either party's ability to choose their level of involvement in the child's upbringing - it's assumed that the woman will do all the work, that's why she runs the "greater risk".

Procrastastudy

Yes by delegated I mean, secondary.

I can not really argue with your excellent points (both Marc and NQ). I did think this was borne out of that case you mentioned but wasn't sure.

Although I will go and look up the reasons in that case I was wondering if anyone could point me in the direction of the legal argument used in this threads case? As I have mentioned I can't think of a constitutioan reason to strike down the 2006 Act.

Corruptable

It seems that the Act of 2006 was supposed to rectify the unconstitutionality of the 1935 Act which was struck down in CC v Ireland [2006] 4 I.R. 1.

The outcome seems harsh, but again the Court has to follow the lead which has been set down by the Oireachtas in passing the 2006 Act. The Director of Public Prosecutions has discretion in prosecuting this types of cases, and I know for a fact that many go unprosecuted, so there is obviously a wider context to this case, as has been alluded to by others in this thread.

Overall it seems like more of the same bad lawmaking, with the passing of the can to the Supreme Court, who are left to make the difficult choices.

yellow hen

Marcusm wrote:

It's also inappropriate as the girl has denied that the intercourse and buggery were consensual; she has apparently agreed that oral sex between them was consensual but that he used force for the other acts. tCourt.

Sorry, I don't know the details of this case but if the sexual acts were not consensual does it not amount to rape? Is the age not irrelevant? Sorry if I've picked this up wrong.

Corruptable

yellow hen wrote: »

Sorry, I don't know the details of this case but if the sexual acts were not consensual does it not amount to rape? Is the age not irrelevant? Sorry if I've picked this up wrong.

I had wondered that too, but the circumstances in terms of the age of the victims, the amount of evidence, usually determine the charge. Nowadays there are specific sexual offences against children, and perhaps a more experienced poster here could shed light on why these are use rather than the existing offences of common law rape, sexual assault, s.4 rape, etc.

Addition: For anyone who is interested, click here for a link to the judgement on the Courts Service website.

NoQuarter

Corruptable wrote: »

I had wondered that too, but the circumstances in terms of the age of the victims, the amount of evidence, usually determine the charge. Nowadays there are specific sexual offences against children, and perhaps a more experienced poster here could shed light on why these are use rather than the existing offences of common law rape, sexual assault, s.4 rape, etc.

Addition: For anyone who is interested, click here for a link to the judgement on the Courts Service website.

Well the 2006 act has no mention of consent so that it the difference I would say. The rape act is all about consent.

I think in this case the acts were with consent. However if the acts were not with consent well the anyone over the age of 9 could be charged with rape. (12 being the age of consent but 10 and 11 you can be charged with rape, murder, manslaughter etc)

Procrastastudy

I thought it was just the case that any child under 17 was unable to give consent therefore it was statutory rape.

NoQuarter

GCDLawstudent wrote: »

I thought it was just the case that any child under 17 was unable to give consent therefore it was statutory rape.

Sounds about right too!

Peregrinus

GCDLawstudent wrote: »

I thought it was just the case that any child under 17 was unable to give consent therefore it was statutory rape.

No. "Statutory rape" is a term that gets bandied about a lot, mostly becasue of the influence of American police shows. In some US jurisdictions it is the name of an offence, and it does indeed rest upon an irrebuttable presumption of inability to consent.

Irish law is different. It does not create any presumption of inability to consent; it frames an offence in terms which makes consent irrelevant, so the question of whether somebody did consent, or could consent, just doesn't come up (so far as guilt or innocence is concerned; it may of course affect either the decision to prosecute in the first place, or the matter of sentencing if convicted).

Sala

Irish law is different. It does not create any presumption of inability to consent; it frames an offence in terms which makes consent irrelevant, so the question of whether somebody did consent, or could consent, just doesn't come up (so far as guilt or innocence is concerned; it may of course affect either the decision to prosecute in the first place, or the matter of sentencing if convicted).

So, consent is irrelevant, but the DPP is unlikely to prosecute if two teenagers have consensual sex? So in this case the individual was prosecuted as the girl said there was no consent, but the lack of consent has no bearing on the actual case or the guilt/innocence of the party?

28064212

I don't see how anyone can decide the Supreme Court came to the wrong conclusion. Their only function was to decide on whether the law was constitutional, not whether it was fair. I can't see anything in the constitution that this law contravenes. The only relevant article would be 40.1, but no reading I can make of it says the law is unconstitutional

40.1 wrote:

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

Peregrinus

Sala wrote: »

So, consent is irrelevant, but the DPP is unlikely to prosecute if two teenagers have consensual sex? So in this case the individual was prosecuted as the girl said there was no consent, but the lack of consent has no bearing on the actual case or the guilt/innocence of the party?

Pretty much. There's always a question as to whether a prosecution is in the public interest. It's pretty much a standard conclusion that, if an offence has been committed, a prosecution should follow, but there are areas where this is not an automatic conclusion, and juvenile justice is one of them. A lot of acts by juveniles which could be prosecuted as offences are dealt with by other means, or (as apparently in this case) are prosecuted as less serious offences than they could be. This could have been prosecuted as rape, but that would have risked a much more traumatic trial for the victim. And if it was two 16-year olds engaged in consensual sex, it probably wouldn't have been prosecuted at all.