Against Morality

Bigamy

Bigamy is an offence contrary to the Offences against the Persons Act.  A person who is married and goes through a ceremony or marriage is guilty of bigamy.  The existing marriage must be valid.  This must be proved in the prosecution.  The offence is constituted by purporting to marry or going through a ceremony of marriage.  The later marriage would of necessity be void.

Others aware of the bigamous nature of the marriage may be prosecuted and convicted as accessories.  A clergyman who assists may be convicted as aiding or abetting the bigamy.

It is a defence where the second marriage is contracted outside of Ireland by someone who is not an Irish citizen.

Where a person reasonably believes his or her spouse is dead, it is a defence.  Where a person whose spouse has been continuously absent for seven years and is not known to be living, it is a defence. A mistaken belief that the former marriage has been ended by divorce is a defence. An earnest and reasonable belief that the first marriage was invalid is a defence.

Blasphemy

There are a variety of offences against public morality, many of which are quite antiquated and are rarely prosecuted.  Some may be unconstitutional, on account of their vague scope and potential for subjective criminalisation.  Ironically the vague offence of blasphemy was specifically required by the Constitution until a referendum removed the requirement in 2018.

Notwithstanding Article 44 of the Constitution which makes provision for freedom of practise of religion, Article 40.6.1 formerly provided that the publication of blasphemous seditious or indecent matter is an offence which is to be punishable by law.

It was not blasphemy to publish an opinion on a religious matter unless publication is such as to undermine public order or morality.

The common law crime of blasphemy criminalised attacks on the Christian religion.  The Supreme Court in Corway v Independent Newspapers held that the common law crime of blasphemy was unconstitutional.  It held that the state of the law in the absence of a legislative definition of the constitutional offence made it impossible to state what offensive blasphemy consists of. It was clear that the mere publication of an opinion on a religious matter would not constitute the offence unless the publication was such as to undermine public order or morality which the state is obliged to protect.  Publication of blasphemous material without an intention to blaspheme could not support as a conviction.

Former Statutory Blasphemy

The Defamation Act provided for the offence of blasphemy but in effect made it very restrictive.

A person committed blasphemy and was guilty on conviction on indictment to a fine of up to €25,000.  The offence was committed if a person publicised or uttered matters that are grossly abusive or insulting in relation to matters held sacred by any religion thereby causing outrage amongst a substantial number of adherents of that religion and he or she intends by the publication or utterance to cause such outrage.

It was a  defence for an offence that the defendant proves that a reasonable person would find genuine, literary, artistic, political, scientific or academic value in the matter to which the offence relates.

Religion did not include an organisation or cult the object of which is the making of profit or employees oppressive psychological manipulation of its followers or for the purpose of gaining followers.

A warrant could be issued authorising a member of the Garda Síochána to seize blasphemous materials.  The Gardai could exercise powers of search and entry under the warrant.

Blasphemy (Abolition of Offences and Related Matters) Act 2019 abolished the offences of blasphemy and blasphemous libel.

It also amended the Censorship of Films to provide for the deletion of the reference to blasphemy in relation to censorship.

Indecency

The Constitution provides that the publication or utterance of seditious or indecent matter is an offence that shall be punishable in accordance with the law. There are common law crimes in relation to indecency.  No provision has been made to provide a statutory offence pursuant to the requirements in the Constitution.

It is a misdemeanour at common law to act in public in such a way as to offend modesty, cause scandal or injure the morals of the community.  Older cases held that wilful exposure of a naked person, keeping an indecent or disgusting exhibition which the public can see or are invited to enter, public selling or exposing for sale any obscene book, print or picture or procuring content with the intent to publish an indecent book would constitute the offence.

It is a misdemeanour at common law to show an obscene or indecent performance.  The cases referred to that open lewdness, grossly scandalous conduct as well as that which openly outrages decency or is offensive and disgusting or injurious to public morals by tending to corrupt the mind and destroy morality and good order.

Corrupting Public Morals

It is an indictable misdemeanour at common law to conspire to corrupt public morals.  What constitutes public decency or morality was changed radically over the last 150 years.

This as well as many of the other claims mentioned in this section are notoriously vague and may not pass the constitutional standard of certainty required of criminal offences and modern standards and expectations of freedom of expression.  Many of the constituent elements are subjective and dependent on attitudes as to public morality and standards about which there is no consensus.

The standards,  in the rare cases of prosecution, be largely determined by the judge or a jury.

The fact that behaviour is not illegal or is no longer illegal does not appear to mean that the offence of conspiring to corrupt public morals may not apply.  In a UK case in the 1970s the fact that homosexual acts had been decriminalised did not necessarily mean that it was not an offence to encourage persons to undertake homosexual acts.

Many of the cases in modern times have turned on advertising of sex services whether heterosexual or homosexual.  In Ireland, the advertising of abortion services had been formerly mentioned as possibly coming constituting the offence.

It is an offence to send any post or postal packet enclosing indecent or obscene prints, photographs, engravings, cards or any indecent or obscene article.  It is an offence to have on the packet or the cover, any words, marks or designs of an indecent obscene or grossly offensive character.

The postal authorities may intercept the package and detain it.  Persons who breach the provision are subject to a fine on summary conviction of up to €12.70 pounds or on conviction on indictment to imprisonment up to 12 months.

Censorship

The Censorship of Publications Act provides for the prohibition of obscene or indecent material.  Indecent is defined as including anything suggestive or inciting sexual immorality or unnatural vice or likely in other similar ways to corrupt or deprave.  Obscene has been defined as that which attempts to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.

The Censorship Board may prohibit indecent or obscene material.  It is unlawful to import sell, offer for sale, advertise or distribute for distribution,  any book or periodical subject to a prohibition order.  It is subject on summary conviction to a fine of up €63.50 and imprisonment of up to six months or both.  The Minister for Justice may grant permits to persons to sell,  keep or distribute that which would otherwise be prohibited.

Where a prohibition order is in force, the customs authorities may seize the book or material in the same manner as contraband.  Prohibitions may be made on posting prohibited material.

It is an offence to sell, offer for sale or keep for sale or import any indecent picture.  Persons guilty of an offence are subject on summary conviction to a fine of up to €63.50 and higher fines and with up to six months imprisonments on later convictions.  The material is subject to forfeiture.  A search warrant may be issued in respect of an indecent picture.

Interference with Religious Services

There are some ancient offences relating to religious assemblies and churches.  The Places of Religious Worship Act 1812 provides that it is an offence (subject to fine up to €25.40 to hold a meeting, assembly or congregation or persons for religious purposes behind locked or bolted doors.  It is an offence to disquiet or disturbs a meeting, assembly or congregation of persons assembled for religious purpose or to disturb, molest or misuse any preacher, teacher or person officiating. This latter offence is subject to a fine of €63.35.

It is an offence to disturb worship in any church or chapel of any religious denomination whether during the celebration of service or in any churchyard or burial ground or to molest, vex or trouble by any means disquiet or misuse any preacher duly authorised to preach there same.  This is subject to a penalty of up to €6.35 or imprisonment up to two months.

It is an offence by the threat of force to obstruct, prevent or endeavour to prevent a clergyman from celebrating divine service or officiating in any church, chapel or meeting house, place of divine worship or the performance of lawful burial of the dead in a churchyard or burial place.

It is not permitted under any civil process or pretext of executing civil process to arrest a clergyman or minister engaged in or about to engage in any of the above services or duties. to the knowledge of the person concerned.  It is subject on conviction to imprisonment of up to two years.

Funeral and Corpses

Technically it was not possible to steal a corpse at common law.

It is a misdemeanour to unlawfully remove a corpse from a grave whether in a churchyard or burial ground.  The motivation does not matter.

An undertaker may not sell a dead body for dissection.  Dissection is permissible in limited circumstances under the Anatomy Act 1832.

• An executor or other person having lawful possession of a body not being an undertaker may permit the person to undergo an anatomical examination unless
• to the knowledge of such executor, the person deceased expressed his desire either in writing or any time during his life or verbally in presence of two or more witnesses during the illness of which he died, that the body might not go undergo examination after death or
• the surviving spouse or any other known relative shall require the body to be interred without such examination.

There are certain offences concerning corpses and bodies. It is an indictable offence at common law to leave a person unburied for whom the defendant is bound to provide a decent burial where he has the means of burial.   It is a misdemeanour to prevent a body from being buried without lawful excuse.  The offence may be constituted where a person hides a body even if prevention of burial is not the primary objective.

Any person guilty of riotous, violent or indecent behaviour at a burial or wilfully obstructing a burial, or any such service or delivering an address not part of the religious service and not otherwise permitted by lawful authority or wilfully endeavouring to bring into contempt the Christian religion, belief or worship of any church or denomination is guilty of an offence.