THE GOVERNMENT CONSIDERED making the age of consent for gay people 21 years when it was planning to decriminalise homosexuality in 1993.
The age of consent for heterosexual intercourse at the time was, and still is, 17 years old.
State records released this month show that while preparing the legislation that would decriminalise homosexuality 30 years ago, Government officials considered having an older age of consent for gay people.
In general, State Papers – official documents from Government departments and the President’s Office – are declassified and released to the public 30 years after the fact.
However, some records are released before or after that timeframe for various reasons. For example, records related to the peace process in Northern Ireland are now typically released after 20 years.
In 1993, one of the most debated elements of the legislation that would decriminalise homosexuality was whether or not the age of consent should be 17 or older.
Ultimately, the Government decided to make 17 the age of consent for all sexual relationships – an age that remains in place today.
However, in internal Department of Justice records written in early 1993, the possible ages of consent were listed as 17, 18 or 21 years.
One document noted that “moving from criminalisation to equality might be too major a change at one go” and “one extreme to the other”.
In 1993, the Government was coming under mounting pressure nationally and internationally to decriminalise homosexuality. Ireland was an outlier in Europe and needed to legislate on foot of a decision by the European Court of Human Rights five years previously.
Throughout the 1970 and 1980s, David Norris, first as a lecturer at Trinity College Dublin and later as a Senator, campaigned for homosexuality to be decriminalised.
He began domestic legal proceedings in 1977, stating that such laws contravened the Constitution’s stand on privacy. In 1980, Norris’ case was defeated in the High Court. It was subsequently appealed to the Supreme Court and again defeated – so he turned to Europe.
In 1988, the European Court of Human Rights (ECtHR) ruled in favour of Norris, stating that Ireland’s criminalisation of homosexuality did indeed breach his right to privacy under Article Eight of the European Convention of Human Rights.
Council of Europe
Five year later, homosexuality was still a crime in Ireland and our European neighbours were keeping a close eye on what Ireland would do next.
In internal Department of Justice documents, officials discussed the need to change Irish law on the subject.
One memo noted that if Ireland failed to abide by the ECtHR’s decision, the European Committee of Ministers would “decide what action should be taken”.
The document states: “The Committee does not have power to force a State into compliance but it would, if the need arose, have strong persuasive authority, backed, in the last resort, by the power of suspension from the Council of Europe.
“It is considered that Ireland’s membership of the Council of Europe should not be called into question over this matter and this can only be ensured through enactment of legislation necessary to comply with the judgment.
“For practical purposes, therefore, there is no choice but to legislate in the matter.”
In a separate note written in February 1993, an assistant to Máire Geoghegan-Quinn said the then-Minister for Justice wanted the Bill to be “prepared as a matter of priority to be ready before Easter”.
‘A backward country’
Officials in the Department of Justice noted that the ECtHR’s decision “did not set down any requirements as to an age of consent and the Government has, therefore, some latitude in this regard”.
“There are three ages; 17, 18 and 21 which could be considered.
All have advantages and disadvantages and it might be as well to accept from the start that any age will be controversial.
When making the case for 21 years of age, one document stated that this age is “probably the age most acceptable to those who do not want decriminalisation but recognise that there is no choice”.
The document noted that 21 years was the age of consent for homosexual relations in Britain at the time.
However it was also noted that Britain “was out of line with the rest of Europe” where the age of consent was lower. (The age of consent in the UK has since been reduced to 16 years.)
When considering arguments against choosing 21 as the age of consent, the document noted: “There would be an attempt to portray this country as backward and out of step with mainland Europe.
“We would be accused of looking no further than Britain for inspiration for our legislation. Twenty-one would probably be unacceptable to the campaigners for decriminalisation.”
‘From one extreme to the other’
When considering 18 as the age of consent, officials wrote that 17 “might be too low an age for Irish Society to accept at this time” and that 18 “might be seen as an acceptable (i.e. to people generally) compromise between 17 and 21″.
One memo noted:
Moving from criminalisation to equality might be too major a change at one go – one extreme to the other.
It continued: “Seventeen is an age when many boys are still attending single sex schools – some as boarders – and this could add to pressure on some boys if homosexual activity at that age was legal and, by implication from the equal age of consent, acceptable.
“The very fact that 17 is what the homosexual community wants (i.e. one of the extremes) could, in itself, cause a backlash from the general population.”
The document noted that choosing 18 “would maintain a distinction between the age of consent for heterosexual and homosexual acts. Therefore, the principle of normality and equality would not be conceded”.
However, the document noted that opting for 18 instead of 17 “would be portrayed by homosexual and liberal opinion as being discriminatory”.
“Despite being seen as a compromise, it might still be unacceptable to a large body of public opinion.”
When discussing the merits of choosing 17, the document noted that this was the age recommended by the Law Reform Commission at the time.
“It is likely, therefore, that the Commission’s recommendations will be used by those who advocate equality in this area. Seventeen is the minimum age for heterosexual intercourse and an equal age for homosexual acts would eliminate discrimination.
“It would be the age most acceptable (possibly the only age acceptable) to the homosexual community and liberal and left wing opinion generally.”
The document added that 17 “would not be too far out of line with minimum ages throughout Europe”. In fact, it would be at the higher end of the range.
The age of consent in most European countries at the time ranged from 12 to 18 with the majority of countries choosing 15 or 16 years of age.
One argument against choosing 17 was that having a common age of consent regardless of a person’s sexuality “implies an acceptance by the State of homosexuality as a perfectly normal human activity – as normal as heterosexual activity”.
‘True reform needed, not the British model’
In a letter sent on 2 May 1993 to the then-Attorney General Harry Whelehan, Chris Robson, co-chair of Glen (the Gay and Lesbian Equality Network) noted that while he and others were “naturally extremely pleased that the Government is now to change the law”, they were concerned about some proposed elements of the Bill.
“We hope you will appreciate our concern that, after so many years, the new law should be a true reform. It has been suggested that there are two possible approaches to the necessary changes,” Robson wrote.
There is the “British” model of their 1967 legislation which kept the criminal status of gay sexuality in place, but which exempted people from prosecution in certain restricted circumstances.
“The alternative approach, recommended by the Irish Law Reform Commission in 1990, is in line with European practice.
“This involves the repeal of the old British statutes, and the introduction of a gender-neutral criminal law for heterosexuals and homosexuals alike, which would prohibit abusive and exploitative behaviour.
“There is already in place gender-neutral legislation on sexual assault, and similar laws could be introduced on public sexual conduct.”
Robson wrote that the first approach had “been such a failure in Britain, making criminals of so many young people and leading to such an increase in general prosecution, that all British political parties are committed to further change, and the actual law is now being challenged before the European Court of Human Rights”.
To replace antiquated legislation with an already discredited model would surely be a missed opportunity and a real step backwards.
In terms of the age of consent, Robson noted that the Law Reform Commission had recommended there should be an equal age of consent “which is the rule in almost all European countries”.
“The suggested age was 17 years, which would in fact be higher than any other common age of consent in Europe. Again the Commission’s recommendation is fully in accord with the “Equal Status” commitments in the Programme for Partnership Government.
“Indeed, to follow the Commission’s recommendations in both matters does offer a real opportunity of getting this reform right first time.”
The Government eventually settled on 17 as the common age of consent and legislation which decriminalised homosexuality was finally passed on 24 June 1993.
Norris, who has served in the Seanad since 1987, was the first openly gay person to be elected to public office. He is the longest-serving Senator in Ireland and recently confirmed that he plans to retire in January.
The reference number for these State Papers is 2023/16/8
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