On section 2 we come to the whole question of what constitutes lawful or unlawful sexual intercourse. The section says:
—(1) A man commits rape if—
(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it,...
I want to discuss that because it is the word "unlawful" here which must give us pause. I am aware also that this aspect which I am going to discuss now is a difficult and delicate one. However, that is no excuse at all for not discussing it. Of course, what we must get down to is a discussion of whether a man may commit rape on his wife. This is a very vexed question. I have read the Official Report of the Dáil Debates on this and I have listened to the Minister and many other people and still I have not been able to decide what exactly the position is on this matter. We should look at a hypothetical case. Say, for example, a woman of any age is brought into a Garda station and she exhibits all the symptoms of having been raped and is looked after, helped and cared for and the gardaí are treating this as a case of rape. Suddenly somebody notices that she has a wedding ring on her finger and then she is asked, "Who is the man?" And she says, "It was my husband." The whole situation then is completely changed. "Ah, well, that is a different kettle of fish altogether. You have not been raped because you have a wedding ring on your finger. If you had not got that wedding ring or that marriage certificate it would be a crime of rape." If that is the case it seems that we are letting down a huge section of the population, that we have once again failed married women and that we have really taken a very cowardly way out.
I know that there is some discussion about when a husband may or may not be charged with the crime of rape and there are some British precedents. The Minister, I am sure, is as conversant as I am, if not more so, with the much-quoted Criminal Law Revision Committee of Britain and their Working Paper on Sexual Offences published in October 1980 in which they have a lengthy discussion on this whole question. They quote the famous Hale and I am quoting paragraph 29 of the Criminal Law Revision Committee's working paper:
The present law, which is part of the common law, has an archaic flavour to it. It is generally taken to be as stated by Hale in his Pleas of the Crown, which he wrote in the 1650's:
"The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract."
In the opinion of the Criminal Law Revision Committee the present law is based on that statement by Hale. Obviously, times have changed since 1650 although not always as much as one would think, and now the British Criminal Law Revision Committee point out that women nowadays can retract this consent and can get divorces and separation orders. In this country, of course, they can get a different kind of divorce and they can get separation orders. The committee go on to quote another case, Miller of 1954 in which it was held that a husband had a right to sexual intercourse but he was not entitled to use force or violence. In fact a husband can still force his wife to have sexual intercourse with him without being guilty of rape even if she has left him, provided he does so before she gets a protective order from a court.
It seems to me that the whole area is shrouded in confusion and problems which were quite evident to this very distinguished criminal law committee who sat in Britain to discuss it. Obviously, many people feel that the law is better left unaltered because of the much-repeated problems caused by the impression of this kind of problem into the intimacies of private married life. On Second Stage of this debate in the Seanad the Minister quoted from this committee to demonstrate to us their great reluctance to allow the concept of marital rape into the law. The committee in fact in the end came down firmly on the side of getting rid of this anomaly and allowing a charge of rape to be brought against a husband. They felt that it should be referred to the Director of Public Prosecutions for his consent for a prosecution of marital rape. The Director of Public Prosecutions who spoke to the Criminal Law Revision Committee foresaw difficulties, of course, and he felt it would be hard in many cases to exercise his usual function of judging whether the public interest would be served by prosecuting. The committee conclude by saying:
We anticipate, however, that with experience, as in other cases where his consent is required, the Director would be able to form a policy on prosecution for marital rape.
Therefore, the committee came to the conclusion that, despite the difficulties, despite the problems, the requirements of natural justice were that married women cohabiting with their husbands should not be excluded from protection against the crime of rape. If we in this country could actually arrive at some kind of definition of when the crime of marital rape could happen, it would be a great advance. If we could talk about cohabitation, if we could talk about establishing rules when rape might have happened because the husband is not cohabiting or has not been for some particular length of time which we could specify, if we could clear our minds on the problem of common law unions — the woman in a common law union is protected by the law but the woman who has in fact done what Church and State really prefer everyone to do and has got married finds herself unprotected by the law — it would be a great advance.
Perhaps the Minister was not listening to the radio at 2 o'clock today as I was, but in this context the chairwoman of the Council for the Status of Women was asked on the radio today at 2 O'clock what her attitude was towards this Bill, namely, the Criminal Law (Rape) Bill. She professed herself glad that the Bill had actually been brought forward and that so much of the council's submissions had been included in it. She was asked then how did she feel about marital rape being left out of the Bill and she said that they had been assured by the Minister that he would be very quickly looking after that. Her words were that he would be looking after that very soon. It was on the basis of that assurance that marital rape would be provided for in law that they decided to support this Bill and not to object to it. I assure the Minister that I was not hearing the things. I was very pleased to hear that statement of the chairwoman of the Council for the Status of Women who is obviously under a very clear impression — given, she says, by the Minister — that he will look into this very quickly and make sure that the whole concept of marital rape is brought into law. I would be very glad if the Minister could now tell the House what he plans to do in that area.