The High Court has reserved judgment on a challenge by a Christian Brother to the constitutionality of laws providing for maximum sentences for indecent assaults on males which are five times higher than maximum sentences for similar offences against females.
The brother is facing trial on 31 charges of sexually abusing several boys in a residential school in the 1960s and 1970s. He has denied the claims and contends the relevant laws are a manifest discrimination on grounds of gender.
He also claims that the sentences provided for are unconstitutional and in breach of the European Convention on Human Rights Act 2003. If the brother wins his claim, his trial cannot go ahead. The State has denied the claims.
In submissions for the brother yesterday, Gerard Hogan SC said indecent assault on a female was just as reprehensible as upon a male and it could not be argued that males were "more worthy of protection".
The laws under challenge were an "archaic hangover from an earlier era" and were written at a time when the laws did not contain a guarantee of equality, he said.
The brother has been charged under section 62 of the 1861 Offences Against the Person Act, which provides for a 10-year maximum sentence for indecent assault on males and a two-year maximum sentence for a first offence of an indecent assault on a female.
Opening the case before Ms Justice Mary Laffoy yesterday, Mr Hogan said the differences in the sentences for the same offence were clearly unconstitutional, "gender biased" and objectively unjustifiable.
Mr Hogan said this challenge was not to the "substance" of the offence but to the penalties, which breached Article 40.1 of the Constitution.
"Discrimination on the grounds of gender is unconstitutional," he said. This was akin to having a 10-year sentence for an offence committed against a person of one skin colour and a two-year sentence for the same offence committed on a person with a different skin colour.
The 1861 Act was amended in 1935 by the Oireachtas, Mr Hogan said.
However, the only material change made then was that the maximum sentence for anyone convicted of a second offence of indecent assault on a female was increased to five years.
The laws were "gender neutralised" in 1981 but all the alleged offences were said to have taken place before 1981 and the alleged victims were males then aged under 17 at an industrial school, he said.
The allegations against his client were made some years ago and the first book of evidence was served in late 1997.
Earlier, Mr Hogan said the High Court had in March 2005 halted the brother's constitutional claim after upholding arguments by the State that it amounted to an abuse of process and should not be allowed go to hearing.
However, earlier this year Supreme Court granted the brother's appeal against that High Court decision, which gave the current challenge the go-ahead.
The brother had initiated the constitutional challenge in 2003. In 1999, he failed to secure an order in judicial review proceedings to stop his trial on grounds of delay.
At the close of submissions yesterday, Ms Justice Laffoy reserved judgment.