S. 3 of the Criminal Law (Sexual Offences) Act 2006, as amended, makes it an offence to engage in a sexual act with a child under the age of 17 years, subject to a defence of reasonable mistake as to age. Consent on the part of the child is no defence unless the child was at least 15 years and the defendant was either younger or less than two years older than the child. This is commonly known as the “young person’s defence”.

In Luke v DPP [2026] IEHC 182, the applicant was charged with with a s. 3 offence allegedly committed when he was 15 years and 4 months and the complainant was 14 years and 9 months. He claimed that this special defence should be available where the defendant was reasonably mistaken that the other party was at least 15 years, and if it was not, the law was unconstitutional.

This point was already largely settled in Oscar v DPP [2025] IECA 278, but in Luke that argument seemed concentrated on the question of whether the current arrangement in s. 3 violated the equality guarantee in Art. 40.1 of the Constitution. The High Court (Simons J) held that it did not, and the application was dismissed. The outcome was reported in Irish Legal News and elsewhere as involving a “Romeo and Juliet” law. In fact, that expression also occurs in the judgment.

This is not an entirely accurate description because in Shakespeare’s play Juliet is just under 14 years, but at no point are we told what age Romeo is. Scholars have debated the point. I once heard Germaine Greer – a good Shakespearean scholar among other things – say that he was probably about 20. Juliet’s age is revealed in Act 1 when the nurse confirms it for Lady Capulet (ladies in those days had better things to do than remember their children’s ages). Lady Capulet then says that she had given birth to Juliet when she was Juliet’s present age.

This gives rise to another contested issue. Back then, some girls were undoubtedly married at very young ages. Margaret Beauford, for example, was 12 when she married and 13 when she gave birth to the future Henry VII, the first of the Tudor monarchs. But some claim that this was exceptional and that the father’s consent was necessary for marriage at such a young age.

Reverting back to the Luke case, Simons J. is really a superb judgment writer, in terms of both content and style. I am a big fan of his in this regard, and I particularly like the practice he instituted of giving the names of the legal representatives at the end of a judgment. This is especially appropriate at a time when the chances of a High Court or Court of Appeal judgment making it into the IRs or ILRMs are vanishingly slight.

Tom O’Malley SC