State archives: ‘Don’t use Aids as a defence of laws on homosexuality’

The Government was advised 30 years ago that Aids should not be used in the State’s defence of Ireland’s laws which made homosexuality illegal.

The country’s top legal advisor expressed concern that such an approach would be regarded as an attack on Ireland’s gay community.

The advice was issued as Ireland was facing a case at the European Court of Human Rights brought by Senator David Norris. Two years earlier, the Supreme Court ruled Mr Norris’ right to privacy had not been violated by legislation which criminalised buggery and gross indecency.

Legal advice prepared by the attorney general, John Rogers, shows the barrister believed the State should not use Aids as a line of defence.

“A commitment to this line of defence leads logically to a commitment to fully enforce the existing law and it is unlikely this will be acceptable in our community as it would be seen as an attack on homosexuals.”

He reasoned the ban on all forms of buggery did not help to combat Aids. In addition, the laws against buggery were only enforced in relation to minors or where incidents were non-consensual.

Mr Rogers warned there was already a good chance the State would lose the case, not withstanding pleading Aids as part of the defence.

Given the Government’s policy on the treatment of Aids, he informed the cabinet that the retention of the existing laws could inhibit the tracing of Aids victims.

“A practising homosexual who is a blood donor is less likely to admit to his sexual behavioural inclination so long as the present criminalisation continues,” said Mr Rogers.

He also expressed concern that raising the issue of Aids could foster a tendency to see homosexuals as the cause rather than victims of Aids.

Other documents show the Department of Justice said the legislation could not be regarded as a response to the problem of Aids since they had been on the statute books since 1861 and 1865.

However, department officials said the removal of criminal sanctions would appear “unwise” without a firm estimation of the link between their removal and “the Aids danger”.

The European Court of Human Rights ruled in Mr Norris’ favour in 1988 that Ireland’s criminalisation of certain homosexual acts breached the European Convention on Human Rights.