The Supreme Court has been urged to overturn the so-called ‘Romeo and Juliet’ laws which allow the prosecution of teenage boys for having sex with teenage girls but prevent the prosecution of the girls.
The five-judge court is hearing an appeal arising from a 15-year-old boy being charged with having sex with a 14-year-old girl in the Donegal Gaeltacht.
The boy is also charged with buggery and his trial is on hold pending the outcome of the appeal. It opened today and will resume on a date to be fixed.
Section 3 of the Criminal Law (Sexual Offences) Act 2006 created an offence of defilement of a child under 17 and provided for a sentence of up to five years imprisonment. Section 5 of the Act stated a girl under 17 cannot be guilty of such an offence.
The Act arose in response to the Supreme Court's ‘CC’ judgment overturning as unconstitutional a 1935 law on underage sex on grounds of the absence of a defence of ‘reasonable mistake’ as to the victim's age.
In the High Court in March 2010, Ms Justice Elizabeth Dunne ruled, while the law did amount to gender discrimination, that discrimination was not invidious, capricious or disproportionate.
As the risk of pregnancy as a result of underage sex was borne by girls only, not boys, society was entitled to deter such activity and to place the burden of criminal sanction on those ‘who bear the least adverse consequences’ of it, she said.
The State opposed the appeal and argued the High Court decision should stand. The disputed provision was a proportionate measure on grounds of pregnancy, the Court was told.