A Christian Brother who has succeeded in his High Court challenge to a 19th-century law that provides for substantially higher penalties for indecent assaults on males than for females may yet face trial on charges of indecent assault on a number of schoolboys.
The Christian Brother, who cannot be named for legal reasons, had contended that his prosecution for indecent assault could not continue because the offence and the sentence for the offence were so inextricably entwined that, if one failed, so must the other.
He had been charged with 31 offences under section 62 of the 1861 Offences Against the Person Act, which provides for a 10-year maximum sentence for indecent assault of males and a two-year maximum sentence for a first offence of an indecent assault of a female. It was alleged the Brother had indecently assaulted several boys in a residential school between 1966 and 1976.
In her reserved judgment yesterday, on the man's bid to stop his trial, Ms Justice Mary Laffoy ruled that section 62 of the 1861 Act is discriminatory on grounds of gender and is inconsistent with the Constitution. The effect of that declaration was that there was no statutory penalty for conviction of that offence, she said.
The absence of a statutory penalty had consequences for any penalty which may be imposed if he was convicted, the judge said. It could also have ramifications for the mode of trial and its venue.
However, these were matters for the DPP initially and then the court of trial but with proper regard for the man's right to a trial in due course of law.
It was important to stress that the plaintiff had not been convicted and was entitled to the presumption of innocence, Ms Justice Laffoy added. Issues raised by the DPP about the constitutional rights of others, the interests of victims of crime and considerations of justice had no place in deciding whether the prosecution of the man should continue, she added.
She also noted that under legislation introduced in 2001, a person convicted of a similar offence of indecent assault would face a maximum penalty of 14 years of imprisonment.
The judge said she could find nothing in the Act of 1861, or in an objective consideration of the differences of physical capacity, moral capacity and social function of men and women, that pointed to a legitimate legislative purpose for imposing a more severe maximum penalty for indecent assault on males.