What is the legal age of consent?
The law says that a person must be 17 years of age to be able to consent to engaging in a sexual act. This means that a young person under the age of 17 is not legally old enough to consent to a sexual act even if they want to. Remember, it is a crime to engage in a sexual act with someone who has not, or cannot, give consent.
The age of consent is the same for all persons, regardless of gender or sexual orientation.
Does this mean that two young persons are breaking the law if they engage in a sexual act?
Not necessarily. The law recognises that younger people may be engaging in sexual activity with each other and has introduced a ‘proximity of age’ defence. This is sometimes called the “Romeo and Juliet Defence”. This means that if a person has been charged with an offence of engaging in a sexual act with a child who is 15 or 16 years of age he or she can put forward a defence but only if all of these conditions apply:
- he or she is younger or not more than two years older than the child
- agreement was given freely and voluntarily
- neither party felt exploited or intimidated
- neither person is a person in a position of authority
So, for example, this defence may be open to two 16 year olds, or to a 16 year old and an 18 year old, but only if all the conditions above are present. It may ultimately be up to a court of law to decide if there was actually free and voluntary consent in these circumstances.
The law in this area is complex. The consent of the Director of Public Prosecution is always required for any prosecution of a child under the age of 17 years.
It is advised that where any formal charges have been brought around underage sexual activity, even where it does not appear to be abusive, legal advice should immediately be sought.
Persons in positions of authority
It is a serious offence for a person who is, or has previously been, in a position of authority over a child, to engage in a sexual act with a child or young person who is under the age of 18 (regardless of the fact that the legal age of consent is 17). Such a young person can never legally consent to engaging in a sexual act with a person who is, or who has previously been, in a position of authority over them.
A full list of persons considered to be in a position of authority is set out in the law, which includes, for example, family members, carers, teachers and sports coaches.
To read the Criminal Law (Sexual Offences) Act, 2017 on consent and a range of other sexual offences, click here.