Could two underage boys who engage in consensual sex both be charged with rape?

Crock Rock · 11-07-2019 04:17PM #1

Under Irish law, only males can be charged with rape. Even if an adult woman has sex with an underage boy, she will only be charged with the lesser crime of sexual assault (I am open to correction on this one).

If a 17-year-old boy has sex with a 16-year-old girl, the boy can be charged with (statutory) rape. Even if both the boy and the girl are 16, the boy will be charged with statutory rape and the girl will be let off scot-free.

My question is, if two gay boys under the age of 17 both engage in consensual sex, will they be guilty of raping each other?

I would like to have a legal discussion on this issue and I am now seeking legal advice. I am just curious how the law would work with this one.

GM228 · 11-07-2019 04:56PM

Crock Rock wrote: »

Under Irish law, only males can be charged with rape.

A woman can be charged with rape (contrary to common law).

Crock Rock wrote: »

Even if an adult woman has sex with an underage boy, she will only be charged with the lesser crime of sexual assault (I am open to correction on this one).

Defilement is the charge, not sexual assault when there is a child (male or female) under 17.

Crock Rock wrote: »

If a 17-year-old boy has sex with a 16-year-old girl, the boy can be charged with (statutory) rape. Even if both the boy and the girl are 16, the boy will be charged with statutory rape and the girl will be let off scot-free.

As above it's defilement not statutory rape, but there are defences to the charge.

Crock Rock wrote: »

My question is, if two gay boys under the age of 17 both engage in consensual sex, will they be guilty of raping each other?

I would like to have a legal discussion on this issue and I am now seeking legal advice. I am just curious how the law would work with this one.

Defilement as above.

One eyed Jack · 11-07-2019 05:03PM

Crock Rock wrote: »

Under Irish law, only males can be charged with rape. Even if an adult woman has sex with an underage boy, she will only be charged with the lesser crime of sexual assault (I am open to correction on this one).

Mother charged with raping her daughter in Co Galway

If a 17-year-old boy has sex with a 16-year-old girl, the boy can be charged with (statutory) rape. Even if both the boy and the girl are 16, the boy will be charged with statutory rape and the girl will be let off scot-free.

From what I can recall, I think that was changed in 2006 legislation because the previous legislation was determined by the Supreme Court to be unconstitutional -

Statutory rape law ruled unconstitutional

My question is, if two gay boys under the age of 17 both engage in consensual sex, will they be guilty of raping each other?

I would like to have a legal discussion on this issue and I am now seeking legal advice. I am just curious how the law would work with this one.

There’s no way to give an immediate and definitive answer to that question seeing as the idea of statutory rape doesn’t exist in Irish law. They could still both make a complaint to the authorities, or their guardians or another party could make a complaint to the authorities, but it would still be at the discretion of the DPP as to whether or not to proceed with a prosecution taking into consideration the facts of the case and the evidence and so on and whether it was in the public interest to pursue a prosecution.

The easiest answer is there’s simply no way to know one way or the other what the outcome of a hypothetical scenario would be for certain.

Victor · 11-07-2019 10:18PM

Crock Rock wrote: »

Under Irish law, only males can be charged with rape.

If I'm correct, the victim needs to be female for the offence to legally be rape. If the victim were male, a related but different offence would apply.

One eyed Jack · 12-07-2019 12:16AM

Victor wrote: »

If I'm correct, the victim needs to be female for the offence to legally be rape. If the victim were male, a related by difference offence would apply.

I don’t know if that applies though in circumstances where the accused, regardless of their gender, is charged with rape under section 4, regardless of the gender of the alleged victim?

4.—(1) In this Act “rape under section 4 ” means a sexual assault that includes—

(a) penetration (however slight) of the anus or mouth by the penis, or

(b) penetration (however slight) of the vagina by any object held or manipulated by another person.

(2) A person guilty of rape under section 4 shall be liable on conviction on indictment to imprisonment for life.

(3) Rape under section 4 shall be a felony.

S.4 Criminal Law (Rape) (Amendment) Act, 1990

For what it’s worth OP, aggravated sexual assault also carries the same liability as rape under section 4 -

3.—(1) In this Act “aggravated sexual assault” means a sexual assault that involves serious violence or the threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted.

(2) A person guilty of aggravated sexual assault shall be liable on conviction on indictment to imprisonment for life.

(3) Aggravated sexual assault shall be a felony.

S.3 Criminal Law (Rape) (Amendment) Act, 1990

It’s hard to know exactly what point the OP is really making tbh because they’re asking about the circumstances in which two males of the same age were to have consensual sex, how that relates to any charges that could relate to females who are of the same age and not yet of the age of consent, if they were to engage in consensual sexual intercourse. The only thing I can think of is that they couldn’t be charged with an offence under the 2006 act at least -

5.— 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.

S.5 Criminal Law (Sexual Offences) Act 2006

There is also proposed legislation being brought forward to equate sentencing for both males and females in cases of incest, where previously maximum liability was life imprisonment for males, and 7 years for females -

The Criminal Law (Sexual Offences) (Amendment) Bill 2018 introduces presumptive minimum sentences for repeat sex offenders.

It also corrects an anomaly in the law of incest by equalising the penalty for incest where it is committed by a man or a woman.

The maximum penalties for both male and female offenders will now be 10 years for those who commit incest.

Stricter penalties for sex offenders pass all stages of the Oireachtas

igCorcaigh · 12-07-2019 12:20AM

Victor wrote: »

If I'm correct, the victim needs to be female for the offence to legally be rape. If the victim were male, a related by difference offence would apply.

Is that true?
Does the law discriminate on gender in cases like this?

igCorcaigh · 12-07-2019 12:24AM

igCorcaigh wrote: »

Is that true?
Does the law discriminate on gender in cases like this?

Apologies.

Ooj seems to have corrected the case.

GM228 · 12-07-2019 10:51AM

igCorcaigh wrote: »

Is that true?
Does the law discriminate on gender in cases like this?

No, there can be discrimination on grounds of gender when the "differentiation is legitimated by reason of being founded on difference of capacity, whether physical or moral, or difference of social function of men and women in a manner which is not invidious, arbitrary and capricious" as per the Supreme Court in LM vs Ireland [2007] 4 IR 369.

When such gender specific offences are in accordance with the above there is no case of being unconstitutional, also such offences give no incompatibility to the ECHR (the charter) as shown by the High Court in D vs Ireland & Ors [2010] IEHC 101, and the subsequent Supreme Court appeal D vs Ireland & Ors [2012] IESC 10.

There are also a few cases direct from the ECHR which show that such measures are not incompatible with the charter.

It's also worth noting that the law isn't limited to gender specific offences for rape or defilement, we also have a female only offence known as the offence of infanticide, an offence which I'm sure very few have heard of - where a mother kills her child (under 12 months) and depending on the facts she is tried and punished for manslaughter as opposed to murder.

GM228 · 12-07-2019 11:01AM

Victor wrote: »

If I'm correct, the victim needs to be female for the offence to legally be rape. If the victim were male, a related by difference offence would apply.

Only a man can be charged with rape under the Criminal Law (Rape) Act 1981, however both man and woman can be charged with rape contrary to common law.

A woman can also be chared with "rape under Section 4" under S4 (1)(b) of the Criminal Law (Rape)(Amendment) Act 1990 in relation to an offence against another woman as opposed to a man for penetration of the vagina only using an object. Penetration of anything else or actions against a man is sexual assault under that Act.

hullaballoo · 13-07-2019 10:23AM

GM228, I'm just not sure you are correct regarding the definitions here around the liability of women for rape.

(In saying this, I know there's a fair chance I will eat my words but...) My understanding has always been that women are not capable of rape simpliciter. Rape is a male only offence. S. 4 rape is different but clearly only sub section (b) is an offence that can be committed by a woman.

There are of course other sexual offences in the gamut that can apply irrespective of gender.

My understanding is that the common law definition also only applies to men.

GM228 · 13-07-2019 10:56AM

hullaballoo wrote: »

GM228, I'm just not sure you are correct regarding the definitions here around the liability of women for rape.

(In saying this, I know there's a fair chance I will eat my words but...) My understanding has always been that women are not capable of rape simpliciter. Rape is a male only offence. S. 4 rape is different but clearly only sub section (b) is an offence that can be committed by a woman.

There are of course other sexual offences in the gamut that can apply irrespective of gender.

My understanding is that the common law definition also only applies to men.

I specifically said only S4 (1)(b).

However, a woman can be charged with rape contrary to common law, it is extremely rare but can happen, the most famous and only case of such was Nora Wall who was charged and convicted of rape contrary to common law (as well as indecent assault contrary to common law).

Obviously there was a miscarriage of justice in that case but that had nothing to do with the charge or conviction. To date she is the only woman to have been charged with the offence contrary to common law since the formation of the state.

From the Court of Criminal Appeal DPP vs Nora Wall [2005] IECCA 140 case:-

On 10 June, 1999, the applicant was convicted by the Central Criminal Court of rape contrary to common law and of indecent assault contrary to common law as punishable by s.10 of the Criminal Law (Rape) Act, 1981

I didn't make it entirely clear, but strictly speaking the actual act of rape contrary to common law can only be carried out by a man, however at common law aiding and abetting rape is also rape contrary to common law, it is not gender specific which is how Nora Wall was charged and convicted with rape contrary to common law.

Could two underage boys who engage in consensual sex both be charged with rape?

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