Some time ago the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, announced that he intended to raise significantly the penalties for sexual assault. Originally it had been intended to do so in any further sex offences Bill that may arise from an analysis of the views received on the discussion paper on the law on sex offences. However, it seemed to the Minister that this was a matter of sufficient importance to warrant including it in this Bill.
To place the amendments in context, I will briefly outline the recent history of the offence of sexual assault and the penalty attaching to it. Prior to 1990, there were two main offences dealing with sexual assaults, that is, apart from specific statutory offences such as unlawful carnal knowledge and incest, the offences of rape and indecent assault. The penalty for indecent assault of a male or female in the Criminal Law (Rape) Act, 1981, was set at a maximum of ten years imprisonment. Prior to that, the penalty for indecent assault on a female was two years for a first offence and five years for a subsequent offence.
The Criminal Law (Rape) (Amendment) Act, 1990, totally reformed the penalty structure for sexual offences. Under section 4, a new offence of rape was created with a penalty of up to life imprisonment. This offence was a sexual assault that included penetration. The other new offence in the 1990 Act was aggravated sexual assault. This offence is a sexual assault which involves serious violence or the threat thereof or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted. The third offence to emerge from the old offence of indecent assault – and, essentially, its continuation – was sexual assault of a male or female, with a maximum penalty of five years imprisonment.
As very serious sexual assault offences could be prosecuted under the provisions relating to rape in section 4 or those relating to aggravated sexual assault, the five years maximum for sexual offences probably seems reasonable, particularly as it would include some relatively minor manifestations of the offence such as unwanted touching of a sexual nature. In retrospect, the gap between sexual assault and the more serious offences is probably too wide and does not allow, in particular, for situations where the assaults continued over an extended period. At the upper level, the assaults could be relatively serious and could have lasting repercussions for the victims, particularly children. Accordingly, the Minister is proposing to raise the maximum penalty for sexual assault of an adult from five years to ten years and for sexual assault of a child from five years to 14 years. These, we suggest, are more reasonable penalties for the type of behaviour that may be involved.
It will still be possible for a case of sexual assault to be dealt with summarily where the assault is at the lower end of the scale of seriousness. Under section 12 of the Criminal Law (Rape) Act, 1981, the offence of indecent assault could be tried summarily. That provision transferred to the offence of sexual assault in 1990 and will also apply to that offence with the higher penalties now proposed. Before the offence can be tried summarily, three conditions must be met, first, the District Court judge must be of the opinion that the facts proved or alleged against a defendant constitute a minor offence fit to be tried summarily; second, the Director of Public Prosecutions must consent; and, third, the defendant does not object to being tried summarily. There is a constitutional right to trial by jury.
Subsection (1)(b) defines child for the purposes of the section as a person under 17 years of age. That is the age generally under Irish law for giving consent to sex. In the circumstances, it is the most appropriate age to distinguish children from adults for the purpose of the penalty. Subsection (2) rules out retrospectivity in relation to the penalty. This is because a person cannot face a higher penalty than that provided for in law at the time an offence was committed.
The second amendment is a technical addition to the Long Title which is necessary if the Bill is to accommodate the increase in the penalties for sexual assault. It provides for the minimum necessary, that is, a reference to section 2 in the Long Title of the Bill.
I commend the amendments to the Seanad.