M. -v- Ireland & Ors [2007] IEHC 280 (12 July 2007)

M. -v- Ireland & Ors [2007] IEHC 280 (12 July 2007)

Section 62 of the Offences Against the Person Act, 1861, insofar as it provides a higher maximum penalty for indecent assault on a male than for a female, is unconstitutional as it constitutes unjustifiable discrimination on the ground of gender contrary to Article 40.1 of the Constitution. The distinction is not justified by differences of capacity, physical or moral, or social function, nor is it proportionate or rationally connected to a legitimate legislative purpose.

Citation
[2007] IEHC 280
Parties
Plaintiff: S. M.; Defendant: Ireland; Defendant: The Attorney General; Defendant: The Director of Public Prosecutions
Jurisdiction
Ireland
Judgment Date
12 July 2007
Procedural Posture
Constitutional Challenge (plenary Proceedings) / High Court Judgment
Outcome
Declaration granted that s. 62 of the Offences Against the Person Act, 1861, insofar as it provides a higher maximum penalty for indecent assault on a male than for a female, is inconsistent with Article 40.1 of the Constitution and is invalid.
Legal Topics
Sentencing Discrimination, Gender Equality, Unconstitutionality of Statutory Provisions, Article 40.1 of the Constitution, Indecent Assault Sentencing
Constitutional Law Criminal Law Equality Law Sentencing Discrimination Gender Equality Unconstitutionality of Statutory Provisions Article 40.1 of the Constitution Indecent Assault Sentencing

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Parties

S. M.

Plaintiff

Ireland

Defendant

The Attorney General

Defendant

The Director of Public Prosecutions

Defendant

Procedural Posture

Constitutional Challenge (plenary Proceedings) / High Court Judgment

Legal Issues

  1. 1 Whether s. 62 of the Offences Against the Person Act, 1861 is unconstitutional for providing a higher maximum sentence for indecent assault on a male than for a female, contrary to Article 40.1 of the Constitution
  2. 2 Whether the difference in sentencing can be justified under the proviso to Article 40.1
  3. 3 Whether the plaintiff has locus standi to challenge the provision prior to conviction

Ratio Decidendi

Section 62 of the Offences Against the Person Act, 1861, insofar as it provides a higher maximum penalty for indecent assault on a male than for a female, is unconstitutional as it constitutes unjustifiable discrimination on the ground of gender contrary to Article 40.1 of the Constitution. The distinction is not justified by differences of capacity, physical or moral, or social function, nor is it proportionate or rationally connected to a legitimate legislative purpose.

Court Disposition

Declaration granted that s. 62 of the Offences Against the Person Act, 1861, insofar as it provides a higher maximum penalty for indecent assault on a male than for a female, is inconsistent with Article 40.1 of the Constitution and is invalid.

Orders

  • Declaration of inconsistency with Article 40.1 of the Constitution in respect of s. 62 of the Offences Against the Person Act, 1861, as it relates to indecent assault on a male.