Constitutional right to privacy in the home, in shared houses.

ghost of ireland past · 20-01-2020 11:33AM #1

I'd like to tease out an issue.

People have rights inside their own home which they do not have in public places, for example, the right to wear no clothes.

How does that right work out in shared houses?, or in houses with both adults and children present?, or in houses where adult strangers live together in the same house?

I'm entitled to be naked in my own home, as long as I can't be seen from public places.
Can my house mate make a legal complaint to the police if I am naked in my own home and he or she sees me?

Are my rights inside my own home restricted if I choose to share my home with other people?
In other words, do I have more or less constitutional rights depending on my living arrangements?

Also, can two constitutional provisions combine together to give stronger rights than either of the provisions by themselves?
I am thinking Article 40, personal rights, would combine with Article 40, inviolability of dwelling, to give very strong, 'privacy at home' rights.

Is that correct, do people have more personal rights inside their own home than outside their own home?

Does ability to enforce the law matter?
It's sometimes said that smoking cannot be banned within houses as there would be no way to enforce the law.

Can the police raid your house over the tiniest infringement of a small law?

loyatemu · 20-01-2020 11:37AM

what about your house mates, do they not have rights? e.g. the right not to have to look at your ass?

banie01 · 20-01-2020 11:39AM

Shared accomodation? As in a house-share?

Fairly simple to see that you can be as naked as jay-bird in your private spaces, but have no such right to impose your naked form on others in the shared communal spaces.

loyatemu · 20-01-2020 11:45AM

ghost of ireland past wrote: »

Does ability to enforce the law matter?
It's sometimes said that smoking cannot be banned within houses as there would be no way to enforce the law.

Can the police raid your house over the tiniest infringement of a small law?

so anything you do in your own house is nice and legal? I don't think the law works like that.

ghost of ireland past · 20-01-2020 11:48AM

But the house share isn't a public place and it's fairly likely that the law (on public nudity) only applies to public places.

You can be naked in hotel rooms but not in hotel corridors I don't think.

Imagine if you wait in your hotel room until a cleaner opens the door, and you are naked on your bed.
The cleaner sees you.
Have you committed a crime?
Does it depend on your intention, even if impossible to prove?

ohnonotgmail · 20-01-2020 12:35PM

ghost of ireland past wrote: »

But the house share isn't a public place and it's fairly likely that the law (on public nudity) only applies to public places.

You can be naked in hotel rooms but not in hotel corridors I don't think.

Imagine if you wait in your hotel room until a cleaner opens the door, and you are naked on your bed.
The cleaner sees you.
Have you committed a crime?
Does it depend on your intention, even if impossible to prove?

For the offence of exposing your genitals to somebody you need to note two things:

it is not a requirement that it be in a public place.
Your intention is irrelevant.

So in your house share example if you expose yourself to a housemate and they tell you to stop as it is causing them distress if would be an offence for you if you did not desist or did it again at another time.
http://www.irishstatutebook.ie/eli/2017/act/2/section/45/enacted/en/html

ghost of ireland past · 20-01-2020 01:12PM

Gmail, I'm not sure you read your own links.

ohnonotgmail wrote: »

For the offence of exposing your genitals to somebody you need to note two things:

it is not a requirement that it be in a public place.
Your intention is irrelevant.

...
http://www.irishstatutebook.ie/eli/2017/act/2/section/45/enacted/en/html

http://www.irishstatutebook.ie/eli/2017/act/2/section/45/enacted/en/html wrote:

45. (1) A person who exposes his or her genitals intending to cause fear, distress or alarm to another person is guilty of an offence.

Section 45.1 does require intent, as explicitily stated.

Merely being naked in public is not an offence under that section of law.

ohnonotgmail · 20-01-2020 01:28PM

ghost of ireland past wrote: »

Gmail, I'm not sure you read your own links.

Section 45.1 does require intent, as explicitily stated.

Merely being naked in public is not an offence under that section of law.

you're right, i misread that part. Whether the place is public or not is still irrelevant.

ghost of ireland past · 20-01-2020 05:14PM

It seems it's unlawful for homeless person's to have sex as they are always in public. This is potentially an infringement of their rights. You cannot engage in a sexual relationship unless you have access to a private space.

ohnonotgmail · 20-01-2020 05:16PM

ghost of ireland past wrote: »

It seems it's unlawful for homeless person's to have sex as they are always in public. This is potentially an infringement of their rights. You cannot engage in a sexual relationship unless you have access to a private space.

their is no right to have sex.

GM228 · 20-01-2020 05:28PM

My girlfriend didn't have sex with me last night, she interfered with my constitutional rights

On a more serious note

ghost of ireland past wrote: »

Gmail, I'm not sure you read your own links.

Section 45.1 does require intent, as explicitily stated.

Merely being naked in public is not an offence under that section of law.

Merely being naked in public is an offence under common law.

Samuel T. Cogley · 20-01-2020 05:36PM

ghost of ireland past wrote: »

Can the police raid your house over the tiniest infringement of a small law?

I vaguely remember something about a having to be very careful with the validity of search warrants in multiple occupancy dwellings.

GM228 · 20-01-2020 05:43PM

Samuel T. Cogley wrote: »

I vaguely remember something about a having to be very careful with the validity of search warrants in multiple occupancy dwellings.

The People (AG) vs O’Brien [1965] IR 142?

ghost of ireland past · 20-01-2020 06:03PM

There might be no individual right to have sex but surely loving couples have a joint right to have sex? A family right?

I have found a loophole in the following law.

www.irishstatutebook.ie/eli/2017/act/2/section/45/enacted/en/html wrote:

45. (1) A person who exposes his or her genitals intending to cause fear, distress or alarm to another person is guilty of an offence.

This is a genuine loophole. (no pun intended)

There is no exemption for legitimate exposure.
What legitimate exposure?

Well, if you expose your diseased genitals to your doctor you are intending to cause alarm in your doctor.
That can be seen most clearly if you consider that the doctor was totally blase and nonchalant, after you had exposed your diseased genitals, saying there was no problem and sending you home. You'd say, 'my intentions have not been met here. I intended that you'd be alarmed and shocked when you saw my genitals, and instead you've been blase and nonchalant'.

I'm intending this as legal analysis. Could this loophole cause a case to fail?

I can analyse it a bit further. The loophole I've highlighted depends on the fact that the law intends that a person be alarmed or shocked 'at the mere sight of the exposed genitals', whereas I've constructed a case where the viewer should be shocked or alarmed because of 'the state of health of the exposed genitals'.

The law criticises both types of being shocked, whereas one of the two types is appropriate and the second isn't. In fact, a lack of shock is inappropriate if you're a doctor, which is the opposite of the law.

The reason this might cause a case to fail is that this law would interfere with a person's constitutional right to receive medical care, by placing an impossible burden on them to keep their genitalia covered at all times, even when receiving necessary treatment, therefore the law is unconstitutional, to at least some degree.

The law is a great thing.

ohnonotgmail · 20-01-2020 07:25PM

ghost of ireland past wrote: »

There might be no individual right to have sex but surely loving couples have a joint right to have sex? A family right?

I have found a loophole in the following law.

This is a genuine loophole. (no pun intended)

There is no exemption for legitimate exposure.
What legitimate exposure?

Well, if you expose your diseased genitals to your doctor you are intending to cause alarm in your doctor.
That can be seen most clearly if you consider that the doctor was totally blase and nonchalant, after you had exposed your diseased genitals, saying there was no problem and sending you home. You'd say, 'my intentions have not been met here. I intended that you'd be alarmed and shocked when you saw my genitals, and instead you've been blase and nonchalant'.

I'm intending this as legal analysis. Could this loophole cause a case to fail?

I can analyse it a bit further. The loophole I've highlighted depends on the fact that the law intends that a person be alarmed or shocked 'at the mere sight of the exposed genitals', whereas I've constructed a case where the viewer should be shocked or alarmed because of 'the state of health of the exposed genitals'.

The law criticises both types of being shocked, whereas one of the two types is appropriate and the second isn't. In fact, a lack of shock is inappropriate if you're a doctor, which is the opposite of the law.

The reason this might cause a case to fail is that this law would interfere with a person's constitutional right to receive medical care, by placing an impossible burden on them to keep their genitalia covered at all times, even when receiving necessary treatment, therefore the law is unconstitutional, to at least some degree.

The law is a great thing.

Jesus. you think you found a loophole because a doctor might be alarmed or distressed by the sight of genitals in the course of their work?

rainbowtrout · 20-01-2020 07:40PM

ghost of ireland past wrote: »

It seems it's unlawful for homeless person's to have sex as they are always in public. This is potentially an infringement of their rights. You cannot engage in a sexual relationship unless you have access to a private space.

Not having a home doesn't mean you don't have access to private space, it simply means you don't have a home.

You also don't have a constitutional right to have sex.

rainbowtrout · 20-01-2020 07:46PM

ghost of ireland past wrote: »

I have found a loophole in the following law.

This is a genuine loophole. (no pun intended)

There is no exemption for legitimate exposure.
What legitimate exposure?

Well, if you expose your diseased genitals to your doctor you are intending to cause alarm in your doctor.

You're not intending to cause alarm, you're hoping to get a diagnosis, for something they are an expert in (hopefully) and nothing they haven't seen before, so shock or alarm wouldn't come into it.

Also the nature of exposure as a criminal offence would be an exposure that not requested by the person who witnessed the exposure. So going to the doctor and saying you had diseased genitals would likely bring a response of 'hop up on the bed and remove your underwear'. That is a request for your to show your genitals to the doctor, not exposure as a violation of the law.

Diceicle · 21-01-2020 01:40PM

ghost of ireland past wrote: »

Gmail, I'm not sure you read your own links.

Section 45.1 does require intent, as explicitily stated.

Merely being naked in public is not an offence under that section of law.

In the case above - if your housemate has clearly told you to stop its makeing them uncomfortable - though you don't intend it to be - but you persist in your naturism nonetheless.........does that not meet the criteria?

poisonated · 21-01-2020 07:13PM

Speaking of smoking. I was talking to someone from a country that wasn’t Ireland(I think it was Singapore) and they were saying that it is illegal to smoke in your own home and that they have ways of checking if you have done so....sounded strange. Anyway I’m just going off on a tangent. Please carry on.

ghost of ireland past · 30-01-2020 11:41AM

rainbowtrout wrote: »

You're not intending to cause alarm, you're hoping to get a diagnosis, for something they are an expert in (hopefully) and nothing they haven't seen before, so shock or alarm wouldn't come into it.

Also the nature of exposure as a criminal offence would be an exposure that not requested by the person who witnessed the exposure. So going to the doctor and saying you had diseased genitals would likely bring a response of 'hop up on the bed and remove your underwear'. That is a request for your to show your genitals to the doctor, not exposure as a violation of the law.

I have thought about this quite a bit. At first I agreed with the above completely. But then I thought some more.

There is no exemption in the Act for the reaction of the viewer, or for the consent of the viewer. The Act speaks only of the exposer, and doesn't mention the viewer at all, other than to say that the viewer should not be alarmed.

When you expose your diseased genitals to your doctor you are intending to cause alarm in your doctor. That is the only required ingredient of this crime, there are no exemptions, therefore you are guilty.

The fact that he is a doctor is irrelevant, as is the fact that he consents, as is the fact that you have a genuine purpose in exposing your genitalia, as is the fact that you don't intend to commit an offence.

None of that matters. The law is clear.

http://www.irishstatutebook.ie/eli/2017/act/2/section/45/enacted/en/html wrote:

45. (1) A person who exposes his or her genitals intending to cause fear, distress or alarm to another person is guilty of an offence.

I know my thinking is very literal on these matters but it isn't a defence to say the person was a doctor, or to say that he consented. Those things don't matter apparently.

You are definitely expecting your doctor to be concerned at your illness.

Is concern the same as alarm?

Concern is perhaps a lower form of alarm but if your illness is very bad and requires immediate treatment then alarm might be a better description than concern.

In other words, there are circumstances when you expect your doctor to be more than concerned, you expect him to be alarmed. Your doctor might also be fearful if your disease is contagious.

I'm giving these arguments as technical type legal arguments based on a literal understanding of words and language. I wouldn't expect a prosecution if you visited a doctor and displayed an illness.

ghost of ireland past · 30-01-2020 11:52AM

I might have my own answer here.

Interpretation Act 2005

http://www.irishstatutebook.ie/eli/2005/act/23/section/5/enacted/en/html#sec5 wrote:

5.—(1) In construing a provision of any Act (...)—
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of ...[the Oireachtas or parliament concerned]...

the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

Could a defendant in court insist that the above text be considered, and ask the court to dismiss the charges, as the circumstances in which you have been charged are obviously not the circumstances intended by the framers of the law?

ohnonotgmail · 30-01-2020 11:54AM

ghost of ireland past wrote: »

I might have my own answer here.

Interpretation Act 2005

Could a defendant in court insist that the above text be considered, and ask the court to dismiss the charges, as the circumstances in which you have been charged are obviously not the circumstances intended by the framers of the law?

your scenario would not even get as far as court. It wouldn't even get as far as the local garda station. On its face it is nonsense.

Esel · 30-01-2020 09:22PM

OSI wrote: »

You read a lot of comments about how the cocaine in this country is really crap quality, and here we have definitive proof.

Hey, what's your problem? It's free, man!

ghost of ireland past · 31-01-2020 02:20PM

We don't have malicious prosecutors in Ireland, like in America for example.

In America the law is often considered far more literally than here, and often in malicious ways. For example, residual quantites of drugs left on instruments like pipes is enough for convictions and long sentences.

When you read about miscarraiges of justice in the US they are often extremely simple circumstances that are blown up to be huge.

People aren't offering legal arguments against what I say. Courts and judges listen to legal arguments. If we had malicious prosecutors in Ireland, and extremely literal judges, then my defence of using the Interpretation Act is correct.

ohnonotgmail · 31-01-2020 02:45PM

ghost of ireland past wrote: »

We don't have malicious prosecutors in Ireland, like in America for example.

In America the law is often considered far more literally than here, and often in malicious ways. For example, residual quantites of drugs left on instruments like pipes is enough for convictions and long sentences.

When you read about miscarraiges of justice in the US they are often extremely simple circumstances that are blown up to be huge.

People aren't offering legal arguments against what I say. Courts and judges listen to legal arguments. If we had malicious prosecutors in Ireland, and extremely literal judges, then my defence of using the Interpretation Act is correct.

this is not the US. we do not have public prosecutors. No legal arguments are required. Your scenario is nonsense on its face.

GM228 · 01-02-2020 06:59PM

ghost of ireland past wrote: »

In America the law is often considered far more literally than here, and often in malicious ways. For example, residual quantites of drugs left on instruments like pipes is enough for convictions and long sentences.

You know very little about the law here, yet alone the US to make such comparisons, but if you must know the jurisprudence of the US legal system has adopted the same statutory interpretation tests as here, with a preference (just like here) to the plain meaning rule of interpretation, or as they call it in the US legal system "textualusm".

The reason why there may be different evidential matters relating to offences in different jurisdictions usually comes down to the fact that statutes are written differently resulting in different procedural and evidential rules, not because one jurisdiction may have a more literal reading of the law.

Carawaystick · 03-02-2020 08:31PM

rainbowtrout wrote: »

You also don't have a constitutional right to have sex.

Mary Mcgee might disagree

Victor · 03-02-2020 10:58PM

ghost of ireland past wrote: »

When you expose your diseased genitals to your doctor you are intending to cause alarm in your doctor. That is the only required ingredient of this crime, there are no exemptions, therefore you are guilty.

Imagine a few scenarios:

* Tom is in a doctor’s office and explains that he seems to have a genital infection and asks what can be done about it. At the doctor's instruction, Tom shows his genitals. Tom just wants to be cured and there is no intention to cause alarm and no alarm is caused. Not guilty.
* Tom is in a doctor’s office and explains that he seems to have a genital infection and asks what can be done about it. At the doctor's instruction, Tom shows his genitals. Tom just wants to be cured and there is no intention to cause alarm. However, there are maggots the size of a 10-cent coin moving around under Tom's skin and the doctor is alarmed for medical reasons. Not guilty.
* Tom sees the doctor who is at Sunday lunch with his family in a nice restaurant. Tom flashes his genitals as he walks by. The doctor is alarmed for his safety and the safety of his family. Despite a not guilty plea and his protestations, Tom is likely to be found guilty, as there is no legitimate reasons he would do that and the only conclusion the court can come to is that the action was intended to was to cause fear, distress or alarm.

ghost of ireland past · 05-02-2020 02:58PM

Victor wrote: »

Imagine a few scenarios:
...the doctor is alarmed for medical reasons. Not guilty.
....

There is no exemption in the law as far as I can recall for 'medical reasons' and so where are you getting the 'Not Guilty' conclusion from here?

All of the ingredients of the crime are met, such as they are. The person exposed his genitals intending to cause alarm. That is a criminal act, according to the statute.

ohnonotgmail · 05-02-2020 03:00PM

ghost of ireland past wrote: »

There is no exemption in the law as far as I can recall for 'medical reasons' and so where are you getting the 'Not Guilty' conclusion from here?

All of the ingredients of the crime are met, such as they are. The person exposed his genitals intending to cause alarm. That is a criminal act, according to the statute.

that is assuming that you can prove they intended to cause alarm. as it happened in a medical setting that would a very high bar to reach. so high that the guards or dpp would not bother.

Victor · 05-02-2020 04:28PM

ghost of ireland past wrote: »

The person exposed his genitals intending to cause alarm.

Even if the person exposed his genitals deliberately, there was no intention to cause alarm.

Constitutional right to privacy in the home, in shared houses.

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