M.D. (Minor) v Ireland AG & DPP [2012] IESC 10 (23 February 2012)

M.D. (Minor) v Ireland AG & DPP [2012] IESC 10 (23 February 2012)

Section 5 of the Criminal Law (Sexual Offences) Act 2006, which exempts females under 17 from prosecution for engaging in sexual intercourse, is not unconstitutional as the differentiation is justified by objective differences in capacity and social function, specifically the risk of pregnancy. The Oireachtas was entitled to adopt this policy, and the discrimination is not invidious, arbitrary, or capricious. The European Convention on Human Rights does not provide a basis for invalidating the legislation in this context.

Citation
[2012] IESC 10
Parties
Plaintiff/appellant: M. D. (A Minor suing by his Mother and Next Friend S. D.); Defendant/respondent: Ireland; Defendant/respondent: Attorney General; Defendant/respondent: Director of Public Prosecutions
Jurisdiction
Ireland
Judgment Date
23 February 2012
Procedural Posture
Constitutional Challenge / Appeal / Supreme Court Appeal From High Court Decision
Outcome
Appeal dismissed; High Court order affirmed
Legal Topics
Gender Discrimination, Equality Before the Law, Sexual Offences Against Minors, Prosecutorial Discretion, European Convention on Human Rights
Constitutional Law Criminal Law Human Rights Gender Discrimination Equality Before the Law Sexual Offences Against Minors Prosecutorial Discretion European Convention on Human Rights

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Parties

M. D. (A Minor suing by his Mother and Next Friend S. D.)

Plaintiff/appellant

Ireland

Defendant/respondent

Attorney General

Defendant/respondent

Director of Public Prosecutions

Defendant/respondent

Procedural Posture

Constitutional Challenge / Appeal / Supreme Court Appeal From High Court Decision

Legal Issues

  1. 1 Whether s. 5 of the Criminal Law (Sexual Offences) Act 2006 is unconstitutional for gender discrimination under Article 40.1 of the Constitution
  2. 2 Whether s. 3(1) and s. 5 of the Act breach the European Convention on Human Rights (Articles 6, 8, 14)
  3. 3 Whether prosecutorial discretion was exercised in a discriminatory manner

Ratio Decidendi

Section 5 of the Criminal Law (Sexual Offences) Act 2006, which exempts females under 17 from prosecution for engaging in sexual intercourse, is not unconstitutional as the differentiation is justified by objective differences in capacity and social function, specifically the risk of pregnancy. The Oireachtas was entitled to adopt this policy, and the discrimination is not invidious, arbitrary, or capricious. The European Convention on Human Rights does not provide a basis for invalidating the legislation in this context.

Court Disposition

Appeal dismissed; High Court order affirmed

Orders

  • Declaration that s. 5 of the Act of 2006 is not unconstitutional
  • No relief granted to appellant