European Court of Human Rights

Information Note on the Court’s case-law No. 178

October 2014

M.D. v. Ireland (dec.) - 50936/12

Decision 16.9.2014 [Section V]

Article 14

Discrimination

Difference in criminal liability between underage boys and underage girls engaging in sexual intercourse: inadmissible

Facts - At the age of 15, the applicant engaged in sexual acts with a 14 year-old girl. He was subsequently convicted under Section 3(1) of the Criminal Law (Sexual Offences) Act 2006, which made it an offence to engage in a sexual act with a child under the age of 17, there being no defence of consent. In his application to the European Court, the applicant effectively complained of discriminatory treatment in that, by virtue of Section 5 of the Act, girls under the age of 17, unlike boys, could not be guilty of an offence under the Act by reason only of engaging in an act of sexual intercourse. The rationale for this difference in treatment was explained by the domestic courts as being to protect young girls from pregnancy, as they were only relieved from criminal liability in respect of intercourse, not in respect of other sexual activity with underage children.

Law - Article 14 in conjunction with Article 8: The State must be allowed a margin of appreciation in determining whether different treatment is justified between two similar situations. Unlike the usual position in cases concerning sex discrimination, in the specific circumstances of the applicant’s case, which concerned a weighty matter of public interest - protecting the integrity and well-being of children - that margin was not to be narrowly confined.

As to the question of objective and reasonable justification for the difference in treatment, the Irish legislature had objective reason to criminalise all sexual activity involving children (to protect them from physical and psychological harm) and to make special provision for girls only in respect of sexual intercourse (because of the added hazard for girls of pregnancy). Accordingly, it could not be said that Section 5, which provided a limited exemption from criminal liability for girls in respect of one form of sexual activity - sexual intercourse - was arbitrary or motivated merely by traditions, general assumptions or prevailing social attitudes in the respondent State. The Court did not consider that the exemption from criminal liability applied to young girls in respect only of sexual intercourse was so broad as to raise a doubt about its proportionality to its intended and legitimate aim. Instead, the legislation achieved an accommodation between the need to deter and punish sexual acts involving children and the reality that it was not uncommon for young people to be engaged in underage sexual activity. Just as the penalties were increased where the perpetrator was a person in authority over the child, so the consequences were lessened where the parties were close in age. Moreover, where the persons concerned were underage, the Director of Public Prosecutions (DPP) examined each case in the light of its individual facts, paying particular regard to any element of exploitation but also taking account of any genuine emotional relationship between the parties, in order to determine whether the public interest required prosecution.

The difference in treatment was, therefore not lacking in justification, and fell within the State’s margin of appreciation.

Conclusion: inadmissible (manifestly ill-founded).

Article 6 and Article 14: The applicant argued that it was unfair that he alone should face a criminal charge and that the 2006 Act specifically excluded the defence of consent even though the offence of defilement through sexual intercourse was essentially akin to a rape charge. He also submitted that the fact that the DPP was vested with discretion under the Act did not cure the unfairness or act as any sort of safeguard as the DPP was not required to give reasons for taking proceedings or to have regard to the fact that the accused was himself a child at the material time.

The Court rejected these arguments. The discrimination complaint was essentially a reiteration of that already examined under Article 14 in conjunction with Article 8. Referring to its decision in the similar case of G. v. the United Kingdom, the Court found no reason to impugn the choice of the Irish Parliament to exclude the defence of consent in respect of offences perpetrated upon children. Indeed, this was entirely consistent with the Act’s important purpose. Nor did the applicant’s criticism of the DPP’s discretion add anything to his complaint of unfairness. In some jurisdictions prosecutorial discretion was a feature of the criminal law. Moreover, the applicant appeared to have benefitted in several respects from the DPP’s discretion as he had been charged with the lesser (Section 3) offence which meant a lighter range of sentences and his not being registered as a sex offender, and he had also avoided prosecution on a separate count of buggery.

Conclusion: inadmissible (manifestly ill-founded).

(See, for a case on similar facts decided under Articles 8 and 6 of the Convention, G. v. the United Kingdom (dec.), 37334/08, 30 August 2011, Information Note 144)

 

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