Be afraid of Juliet …

 

I had such high expectations from the case of MD v Ireland and I feel as though they were crushed. I’m no expert (obviously), but I don’t find Mrs Justice Denham’s judgement very convincing – my apologies in advance for what I have to say, I mean no disrespect.

I will quote part of the judgement:

46. Nonetheless, the natural physiological differences between males and females cannot be entirely assimilated. Rape under s. 4(1)(a) of the Criminal Law (Rape) (Amendment Act), 1990 is defined as a sexual assault including “penetration (however slight) of the anus or mouth by the penis…” can, by definition, be committed only by the male. The crime of rape defined in section 4(1(b) of the Criminal Law (Rape) Amendment Act, 1990 (penetration of the vagina by any object) could be committed by a female.
47. The act of sexual intercourse itself is engaged in by a male and a female. However, each performs a distinct physiological function. The male’s penis penetrates the female’s vagina and may emit the sperm which, relevantly for this appeal, is capable of rendering the female pregnant. Thus some natural and inevitable differentiation of treatment is inherent in the statutory scheme.

48. The appellant challenges, as infringing Article 40.1 of the Constitution, s. 5 of the Act of 2006, which expressly differentiates between the male and the female, but only in the case of the act of sexual intercourse, and only when the female is herself under the age of seventeen. The female under seventeen is not exempted from criminal liability in respect of any of the other sexual acts criminalised by the section, when committed with a person under the age of seventeen.

I would plainly like to ask what happens in the -not so rare- case where teenagers use another, admittedly quite effective, part of the body, other than their genitals; their hands? Is this a sexual act and if so what is it called? In the case that any judge would care to declare this a “non sexual” act because it does not fall into the sexual intercourse, buggery of an under-aged person or sexual assault, as per the definition of the term in the Criminal Law (sexual Offences) Act 2006 (in addition to the 1981, 1990 and 1993 Acts), does that mean that homosexual women have been misled into thinking they were sexually active since the beginning of mankind? What happens in the case of a male who enjoys anal penetration of the hand of a female, especially when he is under the age of 17?

It feels as though the hand is stealing the spotlight, I don’t think the penis will be very pleased.

Going back to the judgement, I agree that a girl under 17 can be held liable for the other acts criminalised by s.5, but it seems to me like she is still in a better position than any poor boy, for she can penetrate and still run free – I’m sure she can do more than that but this is just a mere example. I am convinced the Legislator had pregnancy in mind when enacting the provision (they probably envisioned steaming teenagers, pissed to their ears, recklessly giving into temptation), I won’t disagree with that, but, hold the boy liable if he doesn’t use protection, don’t ruin his life just because he obeyed mother nature’s orders. Coming back to hands, sperm can be successfully transferred in such a manner and result in impregnation; a sexual act does not necessarily occur between a fixed number of people.

Should we go further and touch the “gender-neutral” subject? They don’t follow that route in the US, agreed, but this is EU and we have a charter, not to mention the ECHR (putting it second because its margin of appreciation seem to have broadened substantially lately).

I’m sad, I understand they didn’t want to risk striking it down because it was merely supplementary and it probably wouldn’t cause the commotion CC did, meaning it would take some time until a new provision was added or a new Act surfaced and create a big legal gap – especially if one considers the current legislation on abortions.

If anyone has the answer, I’d like to know!

 

I have a skeleton in my closet (if you know what I mean)

The Human Rights Committee of the Law Society is holding its annual competition for essays in Human Rights – with some kind of secret prize.

End of 2011 I came to the conclusion that EU’s accession to the ECHR will eventually create a loophole in Eire’s immunity on family matters and I’ve been wanting to write about it ever since. The legal persona of the EU will only ratify protocols 1 & 6 to begin with, since they are the “least painful” ones, plus the ones all EU member states have in common. I can see a certain MS dance a jig from a distance once the deal goes down to no 12, even if Ireland manages to maintain its immunity legally, as soon as no 12 spills in the Treaties – if you didn’t know that the ECHR will have the power to interfere with EU’s primary legislation say “aye” and then be a sport and read the latest draft in July 2011, its amendments and inclusions in October and its latest explanatory note in November 2011.

 

Anyway, as I was saying, Dicey Reilly might probably have to “give it up” at some point in the near future as the ECHR will, in all certainty, become the watchdog of EU’s human rights legislation – which is ridiculous since the Charter has copied most of the protocols and the ECJ bluntly cites them in its judgements.

I guess they’re probably waiting for Greece to disintegrate first, they have enough action packed for one year…

The House of the Rising “Son”

The pending paper is haunting me, but seeing how many words I will spend to merely explain the Criminal Law & Sexual Offences soap opera I have decided to write about it here instead, as it is, I reckon, very interesting to all sorts of readers, students or not.

Article 50 of the Irish Constitution provides for legislation drafted before its enactment and gives such laws the power to continue being of force “to the extent to which they are not inconsistent therewith”. A large number of statutes were not altered after the Constitution was drafted in 1937 and continued in force until declared repugnant by the courts. Most of the legislation that hasn’t been blocked by the judiciary, however, has been carried over by way of amendment. This has resulted in an enormous family tree, with parent, grandparent and distant relative laws, all interconnected.

The Criminal Law Act, 1935 is a brilliant example, child of the Criminal Law Amendment Act, 1885 – yet another amending Act drafted in the years of British rule. The former is well known for being questioned in the case of CC v Ireland. In this case the Supreme Court declared s.1(1) of the aforementioned act unconstitutional, on the grounds that it did not provide the defendant with mens rea, the benefit of the doubt regarding knowledge of the age of the person he had sexually engaged with. This act and its provisions, although drafted so close (only two years) before the enactment of Bunreacht na hÉireann, still should not have enjoyed the presumption of constitutionality for the simple reason that its drafters could not have foreseen the context of a future Constitution. Another argument against its compatibility would be the fact that a number of its provisions protected the rights of young female citizens, not including young males; this is grossly repugnant to Art. 40.1 of the Constitution, reading

“ All citizens shall, as human persons, be held equal before the law”.

Surprisingly, the Oireachtas chose to carry a number of its provisions over to the newer Criminal Law Act, 1997. Two facts should be noted here; S.2(1) of the Criminal Law Act, 1935 was identical to s.(1)1, the section declared unconstitutional in CC , all but for the age group stated (although in their defence they had no knowledge of the Supreme Court’s judgement, for CC was held many years later). The named provisions read:

“1. —(1) Any person who unlawfully and carnally knows any girl under the age of fifteen years shall be guilty of a felony, and shall be liable (…)

2. —(1) Any person who unlawfully and carnally knows any girl who is of or over the age of fifteen years and under the age of seventeen years shall be guilty of a misdemeanour and shall be liable (…)”

Secondly, the title of this act does not contain the word “amendment”, leading the reader to the conclusion that it was meant to be a re-enactment of the legislation. Re-enacted statutes are considered “fresh law” and fully enjoy the presumption of constitutionality, along with their post-constitutional counterparts. What the Oireachtas did, therefore, to re-enact this provision was to simply copy S.2(1) and remove the “ who is of or over the age of fifteen years and ” clause, thus obviously broadening the age group under the shield of the law. While one might argue that this is hardly a re-enactment, in the case of ZS v DPP , following that of CC , Murphy J. in the High Court concluded that the provision was indeed re-enacted and therefore, naturally, enjoyed the presumption of constitutionality.

Three years later Murphy J.’s judgement was overturned by the Supreme Court and, in addition, the provision was declared unconstitutional, for the same reason that it was held so in CC : it did not provide for mens rea. It is beyond obvious that such a decision created a gap in the legislative structure, as well as the fact that such a gap could have easily been prevented. In the field of powers the Legislator drew 3 lines; he gave each of his children, the Powers, a piece and installed a sign: “thou shall not cross”. The case of ZS is yet another reminder that it must have been misread for “thou shall not see”.

After the finding of s.1(1) of the Criminal Law Amendment Act, 1935 unconstitutional by the Supreme Court, the Oireachtas swiftly enacted new legislation to prevent for an even bigger legislative gap to emerge. And thus, the Criminal Law (Sexual Offences) Act, 2006 was born, a distant relative of the previous Criminal law Acts and with a family tree of its own.

They amended the gender to apply to both males and females by substituting the word “girl” for “child” and added wording that expressly allowed for the defendant to escape absolute liability. All is well in heaven until fear strikes; nervous that such an amendment might in some cases result in criminal liability of the under-aged girl, the drafters added a clause stating that no female child under the age of 17 shall be guilty of an offence solely for engaging in an act of sexual intercourse. Was that necessary? No. Did it single-handedly annul the gender neutrality in the re-enactment of the provision? Most definitely. Contrary to the fundamental right of equality as provided by the Constitution, it is highly discriminatory and unreasonably presumes that the injured party can only be a female. A boy under the age of 17 is in no way protected by law against a girl under the same age group, nor can a girl under 17 build a solid case against a kindred (should we take this, once more, as a hint that Ireland is inhabited by superhumen that are only attracted to the opposite sex?). The tip of the ice-berg: it is left open to challenge from any male under 17 wishing to argue that it denies him of a defence which would have been available to him had he actually been a female.

Note: This type of “unjustified” presumption was dealt with by the Supreme Court in DPP v Walsh in 1981, in response to the common law defence of the wife being presumed to be coerced by her husband when she committed a criminal offence in his presence; but not vice-versa, as much as one would think it is fairly easier for a woman to push a man into sin.

It did not take long for the ice-berg to be hit. In 2009 a 16 year-old boy was under trial in Letterkenny for engaging in sexual deeds with an under-aged girl (we shall discuss buggery in a following post). Two senior counsels represented him in the High Court (MD v Ireland) successfully obtaining an order for a stay of the proceedings, until its validity could be argued in the Supreme Court. The hearing took place on April 14th, 2011 under a 5 judge formation, two of which ladies: Mrs Chief Justice Denham, incredibly sympathetic to children – no doubt, she has quite a few of her own- and a history of leaning the interpretation of the law to their side (see for example Sinnott v Minister for Education and TD v Minister of Education), and Justice Macken who can seem quite intimidating with her penetrating stare and solid status quo, yet quite fair and sensitive in her judgements.

Impatiently awaiting the judgement.

The King is dead …

… long live the King! Question is, what will the extent of his powers be?

Some souls wish for the abolition of the Seanad, it is convenient no doubt, but please don’t claim recession and budget cuts to justify your purpose.

If anybody knows who brought Greece to the financial and political state of today, please raise your hands; it’s the uncensored, unscrutinised, uncontrolled Parliament. One would be a fool to think that the Irish apple would fall far, should the Seanad be abolished. I will put it bluntly, the Seanad keeps any half-wits on a leash, if the lower house wakes up one day with the desire to play poker, the upper house shakes the finger and says “no Tommy, you shouldn’t do that Tommy”. Of course the Oireachtas, as the untamed teenager that it is, will probably jump off the window as soon as mammy Seanad closes the door behind her, but at least there is the probability of making the immature child reconsider.

It doesn’t constitute a barrier, but at least it’s a filter, a well educated one for the matter. And do we need filters!

John Coakley (UCD) and Michael Laver (Trinity) provided the All-Party Oireachtas Committee with a brilliant report back in 1996 with reform suggestions and historical information in favour of the importance of its role,  which could easily be the foundation for an actual reform.

Per the Committee,  the hazards of today can be bypassed following simple steps, the first being the legislative procedure; should bills reach the Seanad first and go through their first three stages inhouse, then it will make matters much simpler for the Dáil, especially if one takes into account the abundancy of social layers and educational backgrounds that form the lower house. The Seanad could greatly assist the Dáil in drawing up reports for statutory instruments, carrying out reviews of proposed programmes, in other words, take a huge burden off the shoulders of the TDs, giving them more time to deal with the everyday problems of their constituencies.

I am amazed that this might sound unreasonable to some. I’d like to point out that part of the Seanad is indirectly elected. I would also like to quote the Constitution Review Group some 15 years ago, especially since many claim Ireland is now reliving the 90s:

“The rationale for having two houses of parliament in a unitary state is based on two important features of any mature democracy. The first is the need to take account of political interests that may not be adequately represented in the main house; the second is the need for some final review of legislative proposals before they become binding on all.”

I rest my case.

EU Fiscal Treaty, Referendum: The Bets are On

I keep hearing people say a referendum will probably not be necessary for Ireland to ratify the 2012 Treaty, I read academics’ opinions on the Irish Times and elsewhere and I can’t help but wonder .. what has driven them to such a conclusion?

With my poor knowledge of legal matters I know the following:

1. Financial matters of the State are a very touchy subject in the State, so touchy in fact that the Courts would rather abstain – in the name of separation of powers of course
2. Money Bills are exempt from Article 26
3. In the 3rd Draft of the Treaty it read that every Member State would have to hand over their annual Budget to the Council, and that although the Council cannot alter it, they need to make sure it complies with the terms of the Treaty and that it results in a surplus of a certain percentage BUT
4. If the Member State does not end up in such a surplus will be penalised
5. The Member States that refuse to ratify the Treaty will be excluded from the financial aid/bailout system.
6. There are no opt-outs, there is no discretion of the State.
7. Ireland has no realistic choice in the matter, it’s do or die.

I strongly feel like bringing up Crotty here, as bets are on an individual to question the ratification because the opposition is too weak to get the gears of Article 27 turning and the President, as good as his intentions seem, would probably not shake the waters.

This Treaty lays the grounds for the EU to walk all over this country’s economy, if not in 2012, it will be soon enough. Henchy J was right in Crotty, we have gone from an economical Union to a political one, a federal one with communistic traits for the matter, I reckon – I have a soft spot for Henchy’s rulings.

Click here to download the freshest compact version of the Treaty. I should note that Article 1.1 brings us back to pillars (and just when we thought we got rid of them!), so now we have a new “economy” pillar and the Constitutional insertion is gone (or supreme law of the the States), as long as the Member States implement the measures and provide for legislation immediately post-ratification.

The bet is a double one and I take offers:

i) Where will the Treaty be ratified? (I vote for Brussels)

ii) Who will challenge it first?