The Supreme Court has cleared the way for a Christian Brother to bring a challenge to the constitutionality of laws which provide for maximum sentences for indecent assaults of males which is five times higher than maximum sentences for such offences against females.
The 1861 law 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.
The Brother, who is facing trial on 31 charges of sexually abusing several boys in a residential school in Co Galway on dates in the 1960s and 1970s, claims the laws are a manifest discrimination on grounds of gender and are therefore unconstitutional and in breach of the European Convention on Human Rights Act 2003.
In March 2005, the High Court halted the Brother's constitutional claim, which was brought in plenary proceedings, after upholding arguments by the State that it amounted to an abuse of process and should not be allowed go to hearing. However, a three-judge Supreme Court yesterday granted the Brother's appeal against that High Court decision, meaning the Brother's action can now proceed.
If the Brother wins his challenge, his trial on the 31 abuse charges cannot go ahead. He has been charged with those offences under Section 62 of the 1861 Offences Against the Person Act and it is that section he is challenging. He has denied the alleged offences. In 1999, he failed to secure an order in judicial review proceedings to stop his trial on grounds of delay. In 2003, he began his plenary action challenging the constitutionality of Section 62. An amended statement of claim was delivered in 2004 following the introduction of the European Convention on Human Rights Act 2003.
Delivering yesterday's judgment, Mr Justice Nicholas Kearns said the State's defence to the present proceedings, both in its original and amended form, had failed to make any claim that the Brother's action amounted to an abuse of process. The High Court was instead told in November 2004 by the State defendants that the case was ready for hearing and a hearing date was fixed for February 2005.
