State papers: Government considered older age of consent for sex between gay couples

New legislation was being introduced following the ECHR ruling five years earlier as a result of a long-running campaign led by independent senator and Trinity College Dublin lecturer David Norris to decriminalise homosexuality. Picture: Gareth Chaney/Collins

The Government considered having an older age of consent for sex between gay people than for heterosexual intercourse when it was planning to decriminalise homosexuality 30 years ago.

Newly released State records show the Government looked at setting 21 years as the age of consent for intercourse between two people of the same sex in 1993, although it acknowledged it might result in Ireland being perceived as “backward.” 

The proposal was examined as part of new legislation to address a 1988 ruling by the European Court of Human Rights, which found the criminalisation of male homosexuality in Ireland was in breach of fundamental human rights on grounds of privacy in personal affairs.

The age of consent for heterosexual intercourse at the time was, and still is, 17.

Files from the Department of Justice at the time show the different ages of consent being considered were 17, 18, and 21.

However, one official noted 21 was “probably the age most acceptable to those who do not want decriminalisation but recognise that there is no choice”. 

One document noted that “moving from criminalisation to equality might be too major a change at one go” and might represent going from “one extreme to the other”. 

The new legislation was being introduced following the ECHR ruling five years earlier as a result of a long-running campaign led by independent senator and Trinity College Dublin lecturer David Norris to decriminalise homosexuality.

Officials acknowledged they had “no choice but to legislate in the matter” as they also observed that Ireland’s membership of the Council of Europe “should not be called into question” over the issue.

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The Department of Justice noted the ECHR's decision “did not set down any requirements as to an age of consent and the Government has, therefore, some latitude in this regard”. 

Then justice minister Máire Geoghegan-Quinn was advised all three potential ages of consent for homosexual intercourse — 17, 18 and 21 — had advantages and disadvantages.

The advice continued: “It might be as well to accept from the start that any age will be controversial.”

The document noted 21 years was the age of consent for homosexual relations in Britain at the time.

However, it also noted 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.) 

The memo pointed out an argument for not choosing 21 as the age of consent was because “there would be an attempt to portray this country as backward and out of step with mainland Europe”. 

It added: “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.” 

On the other hand, it observed setting the age of consent at 17 might be “too low an age for Irish society to accept at this time”. 

“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 memo stated.

It continued: “The very fact that 17 is what the homosexual community wants (ie one of the extremes) could, in itself, cause a backlash from the general population.” 

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”. 

Conversely, it said 17 — the age recommended by the Law Reform Commission — would not be “too far out” from the age of consent for homosexual intercourse across Europe.

The document noted choosing 18 “would maintain a distinction between the age of consent for heterosexual and homosexual acts” and could be regarded as discriminatory but might also be seen as a compromise between 17 and 21.

In a letter to the attorney general, Harry Whelehan, in May 1993, the Gay and Lesbian Equality Network called on the government to avoid following the British model, which kept the criminal status of gay sex in place with legislation introduced in 1967 while exempting people from prosecution in certain restricted circumstances.

The government eventually settled on 17 as the common age of consent, and legislation which decriminalised homosexuality was finally passed on June 24, 1993.