The government considered using Aids as an argument to retain laws that outlawed homosexual acts, in preparation for a case at the European Court of Human Rights (ECHR) in 1985, State papers reveal.
Documents released from the Taoiseach's office under the 30-year-rule show then minister for foreign affairs Peter Barry sought agreement to use the defence in a case taken by David Norris against the State.
In 1983 the Supreme Court ruled Mr Norris's right to privacy was not violated by the 19th-century legislation, and he appealed the case to the ECHR.
A memo to government, dated October 9th, 1985, referred to an “assumption” that reasons for retaining criminal sanctions included that “the laws might help counter the spread of Aids”.
It said retention could be justified by referring to “morals, the rights and freedoms of others and health”.
The memo said indications were that health risks were associated with promiscuity, heterosexual or homosexual, rather than with homosexual activities.
But it was recognised that “all other main lines of defence had been tried without success by the British government” when the ECHR had examined identical laws in Northern Ireland and found them in breach of the European Convention on Human Rights.
It said counsel and the Office of the Attorney General had had discussions with medical experts and had found that while “homosexual acts as such cannot cause the disease”, it was more prevalent among homosexuals in western Europe.
“The fact is that a substantial proportion of homosexuals are now carriers of Aids,” it said.
“It seems to follow from this that a law which prohibits homosexual behaviour is likely to have the effect of reducing the spread of the disease if it prevents or reduces the incidence of homosexual acts,” the memo said.
Criminal
It did acknowledge that criminal sanctions could “reduce the likelihood of possible Aids victims coming forward”, and four of the five medical experts consulted did not consider criminal sanctions an appropriate response to Aids. It also said a doctor’s opinion on policy was “not necessarily any better than an informed layman’s”.
The memo also outlined the downside of mentioning Aids, including that it could add to hysteria surrounding the illness and foster a tendency to see homosexuals as a cause.
The memo said the minister sought authority to raise the issue. But the Department of Health believed it would be "most unwise".
Then minister for health Barry Desmond wrote directly to then attorney general John Rogers on May 14th, documents show. He said the best hope of controlling Aids was through the development of a vaccine, and in the interim countries were depending on valid reporting of cases, health education and counselling of groups at risk.
“It is arguable that our laws relevant to homosexuality are a constraint on both of these measures,” Mr Desmond said.
A note from the Department of Justice to the Department of Foreign Affairs said “the removal of these criminal sanctions, without a firm estimation of the relation between such removal and the Aids danger, would appear to be unwise”.
The statutory provisions should be retained until the “necessity or desirability” of repeal had been demonstrated, it said.
Unacceptable
Mr Rogers’s opinion to the government was also included in the file. On October 8th he advised Aids should not be pleaded as a defence. If it was, it would require enforcing the legislation fully, which would be unacceptable.
The law was only being enforced in the case of minors and non-consensual incidents, he said. There was also “a good chance the State would lose”, he said, and would then be obliged to repeal the existing code in the face of public opinion “confirmed” by the State’s line of defence.
On October 9th the government decided the Aids defence should not be raised.
The ECHR ruled against Ireland in 1988. The laws were repealed five years later, as part of the Criminal Law (Sexual Offences) Act 1993.
