Dáil Éireann debate -
Thursday, 27 Mar 1930

Vol. 34 No. 2

Criminal Law Amendment Bill, 1929—Second Stage.

Mr. Little

The Title of this Bill is "An Act to amend the law with respect to offences against persons under the age of eighteen and with respect to penalties under Section 13 of the Criminal Law Amendment Act, 1885." The principle of this Bill is to raise the age of consent. Of course, the Minister will use it as a point against me, I presume, that this is simply an adaptation of the English Act of 1922, which amended a section of the Act of 1885 by raising the age of consent. That is to say by the Act of 1885, a defence could be entered that a person thought a girl was over 16 years of age when she was under 16 years of age and it would constitute a valid defence. This amending Bill removes that.

If the Bill were passed it would be no defence in the case of an offence against a girl of eighteen years of age to say that the person thought the girl was over eighteen years of age. In the English Act it is sixteen years of age and we are putting it at eighteen. Another part of the Bill increases penalties with regard to brothels. The only question, I believe, of controversy between the two sides of this House on this Bill, apart from the political capital which the Minister may find it suits his temperament to show us, is whether the raising of the age of consent should be to seventeen or eighteen years. I think that is a question that could better be dealt with by a Committee than by the whole House. It is a question of psychology. It is a question upon which experts, doctors, and people like that, have strong views, and I would ask the Minister, and I hope he will agree with me in this, that it be dealt with by a Select Committee which could take evidence on the matter from experts.

Mr. Fitzgerald-Kenney

Does the Deputy say that by this Bill he raises the age of consent to eighteen?

Mr. Little

Yes.

Mr. Fitzgerald-Kenney

Because it does not do it.

Mr. Little

It raises it to eighteen. Let the Minister make whatever capital he likes out of the Bill. If he is willing to accept the principle that the age should be raised we could make that the principle of the Bill, and then submit the matter to a Select Committee.

Mr. Fitzgerald-Kenney

I am afraid I must fall again, because this Bill certainly does not make in any way clear what the Deputy was driving at. As a matter of fact, the Bill as it stands is sheer nonsense. I just will have to state very shortly what the law is as far as it exists at the present minute. There are certain classes of crimes against women. There are crimes which may be committed against a woman of any age. There is rape and attempted rape, and if the matter is much less than that it becomes an indecent assault. I think that probably will be understood by every member of the House. That was, roughly speaking, the law up to 1885. There was one exception —if girls under ten were indecently assaulted their consent would not prevent it being an indecent assault. There could not be an indecent assault at common law if the woman assaulted consented. That was the position up to what was called Stead's Act. Stead's Act was passed in 1885 and it made it an offence for a man to have carnal knowledge of a girl under thirteen with very heavy penalties, or to have carnal knowledge of a girl between thirteen and sixteen with a lighter penalty.

Mr. Little

You have left out the Act of 1880.

Mr. Fitzgerald-Kenney

I have mentioned that the Act of 1880 dealt with an indecent assault up to ten.

Mr. Little

Up to thirteen.

Mr. Fitzgerald-Kenney

The position at the present moment is if a girl is assaulted against her wishes no matter what age she is an action lies if it is rape. An action lies if it is attempted rape. If it is less than rape or attempted rape an action lies for indecent assault, and if the girl is under sixteen it is a criminal offence on the part of a man. The Title of the Bill is very doubtful. It says "With respect to offences against persons under the age of eighteen." There is really no law at the present moment dealing with persons under the age of eighteen. The law, so far, is limited to persons under the age of sixteen. What the Deputy now, I understand, means to do is to introduce new legislation dealing with the period between sixteen and eighteen years and he says possibly sixteen and seventeen years. Section 1 states that it shall be no defence to a charge or indietment for an indecent assault on a child or young person under the age of eighteen to prove that he or she consented to the act of indecency. An indecent assault, as I have explained, falls short of carnal knowledge or attempted carnal knowledge. Under Section 5 of what is known as Stead's Act, it is made an offence to have carnal knowledge of a girl under thirteen and, as I say, there is a very heavy penalty indeed for that. There is another offence, to have carnal knowledge of a girl between thirteen and sixteen. The Deputy in this Bill does not attempt to raise that age at all for carnal knowledge; that is to say, he raises it for the lesser offence of indecent assault but, for the much more serious offence of carnal knowledge, he does not raise the age at all. We may take it that there can be a trivial indecent assault with the girl's consent. But, suppose a child is born, that would be, of course, the result of having carnal knowledge, and a person who under this Bill as it stands, could, if he was only guilty of indecent assault be punished, if the girl was between sixteen and eighteen, would if he had carnal knowledge of a girl between sixteen and eighteen go scot free. That seems to be very absurd. It goes on to say that if he thought the girl was over eighteen it shall not be a defence. Therefore the section will remain as follows, if this Bill become law as it stands:—

Any person who unlawfully and earnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of thirteen and under the age of sixteen years shall be guilty of a misdemeanour—

The Deputy leaves this unaltered.

—and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years with or without hard labour.

Provided that it shall be a sufficient defence to any such charge under sub-section (1) of the section if it shall be made to appear to the court or jury before whom the charge shall be brought that the person so charged had reasonable cause to believe that the girl was of or above the age of sixteen years.

That is how it stood. The Deputy still leaves this an offence when committed against a person between thirteen and sixteen years, but says: "if he thought she was eighteen." When I tried to get through the section as it stood, it appeared to me to be really absolute nonsense. That is the reason why I asked the Deputy does he wish to raise the age of consent, because he has not raised the age of consent. He has left the age of consent at sixteen, and simply said that it should be no defence that the girl was aged eighteen. I now see what the Deputy meant, but I again lodge a protest against this bringing in of these crude, undigested Bills without any effort being made to think out or apply even reasonable care before they are brought in.

This gives rise to a very big problem indeed. This question of the age of consent and whether it should be seventeen or eighteen is a very serious problem. Certainly I myself am of the opinion, to begin with, that it should only be seventeen. Deputies will understand that if a girl of eighteen is a loose woman she may become a most terrible blackmailer. She may look to be very much older, and she may become a most desperate blackmailer. I question very much whether this matter can be reasonably or correctly dealt with unless we deal with the other very big question of how to treat the prostitute or street-walker under the age of twenty-one, because if you raise the age to eighteen, and you have, as you may have, a large number of these prostitutes upon the streets, any person might be made the subject of a considerable amount of blackmail. I think if you raise the age of consent even to seventeen, unless you think out the whole problem of how to deal with the prostitute under twenty-one, you are not really grappling with the problem at all. That is another reason why I do not like this hasty, unthought-out legislation being introduced.

I have myself given an amount of time and consideration to a Bill of this nature, but I have come to no very definite conclusion. I had not completely made up my mind as to how this very serious problem should be dealt with. As I say, I do not think it is fair to the House to come in completely unprepared and without having thought out the problem in the slightest. There are other things in this Bill which I do not think are suitable for this country at all. They are copied out of the British Act, and they may be suitable to England. There is one thing which I do not think suitable to this country, and which seems to be the result of a very fantastic compromise. Before I come to that, however, there is another thing I want to say. There is a provision that proceedings shall only be brought within a period of nine months. That was the period in the British Act, I think, but I am not quite sure. I am rather inclined to think that they have now changed it to one year. It most certainly ought to be one year. In these cases very often the fact of intercourse having taken place is not known until after the child is born. The girl keeps the thing secret until the birth of the child. Proceedings may not be able to be instituted within nine months. The girl may not be in a position to swear an information, or her pregnancy may be concealed up to the last minute. I cannot see why it should be limited to nine months, and should not be one year. In the ordinary way, that gives a period of three months for the girl to make the information and for the proceedings to be brought. I cannot see how a charge brought within a year would be harder to meet than a charge brought within nine months.

Another thing which I think is rather fantastic is the provision:

Provided that in the case of a man of twenty-three years of age or under, the presence of reasonable cause to believe that the girl was over the age of eighteen years shall be a valid defence on the first occasion on which he is charged with the offence under this section.

I cannot see any reason for that. If you are going to have the age of seventeen, I do not believe the thought of the man should enter into the matter at all. I do not know how the age of twenty-three was hit on; why it should be twenty-three and not twenty-two or thirty-three. It appears to me that that is a mere fantastic provision and that it should go out altogether. It also says that on the first occasion on which he is charged that would be accepted as a defence. The next time he is charged, even though acquitted on the first occasion, he cannot rely on that defence. As I say, it is completely fantastic in my judgment. At any rate, though I know this is from the British Statute, it is not suited to our conditions and it appears to me to be the result of a compromise over there. I think that that should go out.

As I say, this is a very big problem and I think it is really part of a wider question. I cannot completely follow what the Title means or what would be allowed under the Title, because there is not at present any special law dealing with persons under eighteen. The Title seems to imply that there is a special law— there is not. It creates under Section 1, and I understood from Deputy Little it is meant under Section 2 to create a new offence—that is the raising of the age of consent. I do not see that that comes under the Title, and I suggest to the Deputy that he should consider the matter very carefully and that the discussion should be adjourned.

Mr. Gearóid O'Sullivan

I would ask the House to reject this Bill, not upon the grounds that the Minister has put forward as to small technical matters that could be amended in Committee, but on its general principle, in other words on Second Reading. The Bill should not be read a second time and the House should not accept the principle of the Bill. It is not a case of a thing being wrong here or there. The whole thing is against the principles of criminal law which have been accepted in this country for years.

[An Ceann Comhairle resumed the Chair.]

When a crime is committed it is committed by two persons, one of whom happens to be a man and the other a woman. The woman is under the age of 18 and there is nothing in the Bill to say that she who has part in that crime as an accessory—and she must be an accessory in order that the crime should be committed—there is nothing to say that she should be punished but on the contrary she is to go off scot free from punishment. There is nothing to show that a street prostitute should not be in a position to claim under this Bill either punishment or immunity.

The question of blackmail is not as serious as the Minister thinks it is. On the question as to whether the offence should be prosecuted within six months or twelve months that is not a serious matter. What is serious is that two persons commit a crime and that this Bill makes it a crime for one person because of his sex, and makes him liable to be punished and the other person because of her sex and because she happens to be under 18 years of age gets off scot free. That is the principle of the Bill and it is because of that principle that I ask the House to disagree with it and not to give it a Second Reading. There is a good deal to be said about raising the age of consent but not in the fashion in this Bill, namely to the age of 18. There is no sense in that.

Everybody in this House knows, that girls of 16, 17 and 18 years of age are really more responsible for this offence which it is desired to punish under this Bill, than are the persons whom this Bill would punish. Furthermore it would be rather interesting—I do not desire to make any political point about it—to hear Deputy Little say what he would think of those persons even of that sex and under the age of 18 who commit an offence which leads to the death of a person. The principle of the Bill that because a person is under 23 or over 23 he should use particular defence on one occasion, when charged with an offence, is entirely wrong and should not be accepted. The Deputy sitting on my left may be charged with an offence committed at 7.30 this evening although he has been sitting in this House at that very hour. Though he does not happen to be under 23 but if he did put in, as a defence, that he was sitting in Dáil Eireann during the time that the offence was committed and if that were accepted by a jury, on the next occasion that he would be charged with such an offence be could not put up the defence suggested here because it was not the first occasion on which he was charged.

I ask, not only Deputy Little, but the Minister, to really seriously consider the question of the principle of this Bill on these grounds—(1) not raising, as suggested, the age of consent, but putting up an accessory to a crime in order that she may get away scot free because of her sex; (2) the question of a person being charged with an offence although that person may be as innocent of it as any Deputy in this House would be of the offence suggested to be committed at this moment. Although the details are not very serious, and do not go to the principle of the Bill, I seriously ask Deputy Little and the Minister to reconsider this and not to ask the House to give it a Second Reading.

Mr. T. O'Connell

I think that when a measure of this kind is brought in by a responsible Party it should not be sufficient merely to explain the principles that are contained in the Bill. I think it is due to the House to get from the proposer of the Bill some information as to the size of the problem which is to be dealt with, as I said on the occasion of the last Bill. I would expect that Deputy Little, when introducing this Bill, would tell us something of the evil which the Bill proposes to remedy and that that would be the first line he would take to show the necessity for a measure of this kind. I think that that is the first step that ought to be taken in connection with a measure of this kind. For instance, we might have the number of cases he wishes to deal with. After listening to Deputy Little and the other legal Deputies who have spoken on the matter, I, as an ordinary layman, find myself in considerable doubt. I find it difficult indeed to make up my mind on this matter. If it were merely a question of raising the age of consent, and that that were the only principle contained in it, I think it would be an easy matter, but many Deputies will be in the same position as I am with regard to it.

I have a certain amount of blame to put upon the Government for not having handled this question earlier and brought in a Bill if they found there was necessity for doing so. I gather from the Minister's speech that he does believe there is a problem to be dealt with. If there is, it is the duty of the Government to bring forward a measure to deal with it. In this Bill very grave errors have been pointed out in its drafting which certainly appeal to me. There is a good deal in what Deputy O'Sullivan said. While it is necessary to protect our young girls, it is essential that young men should also be protected. They are entitled to consideration and protection as well as young girls. If I might make a suggestion to Deputy Little, I would say this is a matter upon which we ought to have more information and that it ought to be the subject of an inquiry of some kind.

Ordinary laymen like myself and the vast majority of Deputies, would get information, would know the size of the problem to be dealt with, the difficulties that have to be met, and the various matters that have to be considered. Many considerations, I am sure, ought to be taken into account before we legislate on a question of this kind. I would suggest that perhaps Deputy Little would see his way to withdraw this measure, and that the Government, on their part, would give an undertaking to set up as soon as possible some kind of inquiry, committee or commission—call it what you like— that would go into the question, inquire as to the size of the problem and the necessity for legislation and give information as to the lines on which legislation should proceed. I believe that would be the proper line to go on, rather than to press forward this measure. There are many points on which there would be general agreement, but I think we should not be asked to decide until we had a great deal more information.

Mr. Little

I ask Deputy O'Connell to agree with me in this, as I asked the Minister. This is a matter on which we want to come to some agreement. There is nothing controversial about it. What I would like to get is: a select committee with power to make inquiries on the Committee Stage of the Bill. If we agree that the age should be raised, then we can make it a matter of amendment as to whether the age of consent should be raised to seventeen or eighteen, and we should do that with the help of expert advice from people outside who know this problem who would come before us and give first-hand evidence. The reason why I did not go into details was because I thought everybody knew the condition of things as they are at present—the increase in the amount of this kind of crime—and I took it for granted that there was general consent that the age should be raised to at least seventeen years. I find that the Minister agrees with that and also Deputy O'Sullivan.

Mr. O'Sullivan

The Deputy misunderstood me. I do not agree with that.

Mr. Little

I gathered from the Deputy that he said he would be in favour of raising the age to seventeen years.

Mr. O'Sullivan

Oh, no.

Mr. Little

I misunderstood the Deputy. As to the question of treating men and women in the same way, there appears to be in all countries an age to which girls are definitely protected. Boys are also protected, and an English Commission suggested that for offences against boys the age should be raised. But that is not at all the same problem as the problem of girls, certainly up to the age of seventeen and possibly up to the age of eighteen. Social workers, who know the problem and have gone into statistics point out that the age at which girls become prostitutes is mostly eighteen years of age. That is an argument, perhaps, why it would be well to fix the age at eighteen years. On the other hand, it may be argued that persons who become habitual criminals must have commenced about the age of seventeen. Apparently there is an unbalanced condition psychologically up to the age of seventeen or eighteen, and it is to protect persons up to that age that the law deals with the matter. I admit there is a lacuna in the Bill in connection with Clause 5 of the Act of 1885, but it is not a very grave one and we can deal with it by amending the Bill and introducing further words which will apply the principle of the raising of the age all along with reference to the more serious offences, as well as those of indecent assault.

The Title of the Bill, it will be noticed, refers to offences against persons under the age of eighteen years. The word "offences" does not necessarily mean offences according to the law; it means offences of a certain type, and therefore it is not merely because "offences" is a legal term that it cannot be used here. It is used here in the general understanding of ordinary people. This Bill deals with offences against persons up to the age of eighteen years. That is perfectly clear. It might be better to say that it amends the law with respect to certain types of crime, and in particular offences against persons up to the age of eighteen. But I quite agree with the Minister that the period over which proceedings should be taken might well be extended to twelve months. As the Minister knows, the original period was three months and that was extended to nine months. I was pleased to hear him say that he would be willing to extend the period to twelve months.

Another question is that concerning boys up to 23 years of age and the first offence. I agree with the Minister that that is an anomaly, and I put it into the Bill because I did not want to take the responsibility without a discussion in the House as to whether it would or would not agree with that. I do not pretend to be a social expert. I have not been in touch with societies that know a great deal about this work, but I have been supplied with a great deal of information by them. I did not come to the House in a dogmatic way about the matter. We all agree that the age should be raised to seventeen, but as far as I can judge from the reading I have done on the subject, I think it would be wiser to make it eighteen. I quite admit that it might be subject to abuse, as the Minister mentioned.

Mr. Fitzgerald-Kenney

Could you reduce it to seventeen in view of the Title of the Bill?

Mr. Little

We could change the Title if the House agrees. The principle of the Bill is the raising of the age. We could easily amend the Title of the Bill. I would be glad to have your ruling on that.

An Ceann Comhairle

It would depend on the view taken by the Chair as to what the principle of the Bill is. If the principle of the Bill is to amend the law with respect to offences against persons under the age of eighteen it might be difficult to amend it, but if the view were taken that it was against young persons, then the age might be made seventeen. That can be argued, of course.

Mr. Little

This is really too serious a matter for people to raise unnecessary difficulties about it. I think if we were to agree upon the principle that we want to raise the age, we could use this Bill with the help of an inquiry by means of a Select Committee. I would be in perfect agreement with Deputy O'Connell that we could, after we had adopted the principle of raising the age by passing the Second Reading of the Bill, deal with the matter in a Select Committee and get information from those who know about this matter. I would ask Deputy O'Connell if he would agree with that.

Mr. Morrissey

I suggest to the Deputy that it would be more satisfactory to have the report of the committee first, and that perhaps he could get a better Bill based on the report. If the Bill is now given a Second Reading and is then sent to a Select Committee, as the Deputy suggests, and evidence is given before that committee, that evidence might be altogether outside the scope of the Bill, and you might have to drop the Bill and introduce a new one. I suggest that it would be much better to have your evidence first and to base the Bill on that.

An Ceann Comhairle

Particularly if there is unanimity on making the age seventeen. It is a very serious amendment of the Bill.

Mr. Little

There is unanimity as to raising the age. There is a difference of opinion as to whether it should be seventeen or eighteen.

An Ceann Comhairle

It is very definitely eighteen throughout the Bill.

Dr. Keogh

I suggest that most of us may not know as much as social workers outside know of these problems, and that the age of consent should not be considered at all to-night but that a commission should be set up to go into the whole thing. This is a matter that is more important than many of the matters for which commissions have been set up, and it should be considered by a commission before it is brought up in the House. It is too important. Some people may consider that even 18 is not old enough. It is a very serious matter, and I would suggest, in common with Deputy Morrissey, that what used to be called a Royal Commission should be set up, that the question should be fully argued out in detail before it, and that we should listen to both sides before we forced our opinions on people without any evidence from outside sources as to the necessity for the Bill.

Mr. Fitzgerald-Kenney

I would be willing, as Deputy O'Connell suggests, to set up a commission to inquire into the matter. It is perfectly obvious that nobody in the House has really given this matter full, complete and entire consideration. I might also point out that it was inquired into by a Commission set up in England some years ago. There, by a small majority the suggestion was made, though it has not yet been embodied in legislation, that the age should be raised to seventeen, but an influential minority took the view that the age of sixteen should be retained, so that it is certainly a very arguable matter and a matter on which I think the House should not be rushed. I would agree to set up a Commission of Inquiry into it. Of course, it is intermixed with other social problems, as I pointed out, that could not be dealt with in this Bill.

Mr. Little

I certainly think that a great deal would be gained if a Commission of this sort were set up to deal with not merely this one matter, which is a comparatively small matter, but the problem which I think it is the Minister's intention to deal with.

Mr. Fitzgerald-Kenney

I said that if you deal with this question of raising the age of consent, the other problem which I mentioned, that is, the problem of the street-walker under the age of twenty-one, is a problem which must be very seriously considered and dealt with also, and it could not be done under this Bill.

Mr. Little

If the Minister would say when he would bring in a motion to set up this commission I would be obliged.

Mr. Fitzgerald-Kenney

I could not mention any specific time.

Mr. T. O'Connell

Is a motion required? Could not the Minister set up the commission himself?

An Ceann Comhairle

He could, of course. There are several ways of setting up commissions. They can be composed of members of the House or of non-members of the House, to report to the Minister or to report to the House.

Mr. Little

That being so, would the Minister specify which kind of a commission he thinks it should be?

Mr. T. O'Connell

Would not that be a matter for discussion and agreement in the Department?

Mr. Little

The only thing I am afraid of is delay. I would like the Minister to say when the commission would be appointed.

Mr. Fitzgerald-Kenney

I will not be guilty of avoidable delay.

Mr. T. O'Connell

It is not his first offence.

Mr. Little

I would like to press him further, because when matters crowd on each other, unless certain pressure is used from outside a thing which would not mean avoidable delay might be pushed aside. What I mean is that the Minister may have to give way to the greatest amount of pressure and put one thing in front of another. For that reason, I would like him to give the period of time—to say if the commission would be set up within two months or one month.

Mr. Fitzgerald-Kenney

I assure the Deputy that pressure leaves me unmoved.

Mr. Little

I feel uneasy about the matter, because the Bill as it is affords an opportunity of just as good an inquiry as any other. The House itself could under the Bill appoint a Select Committee, and for that reason I think that unless the Minister is prepared to go a little further than he has done I shall have to press this Bill.

An Ceann Comhairle

If the House passes the Second Reading of the Bill and sets up a Select Committee, the Bill itself will be the terms of reference of the Select Committee, and as Deputy Morrissey, who is familiar with circumstances of this kind, has pointed out, the chairman of the committee might rule out certain matters. The scope of the inquiry in the Select Committee would be absolutely determined by the Bill and by the view that the chairman would take of the terms of the Bill. If it were held that the principle of the Bill was to amend the law with respect to offences against persons under the age of eighteen, then the age could not be touched.

Mr. Little

I would agree with the Ceann Comhairle if it were the other way about, if the age in the Bill were seventeen.

An Ceann Comhairle

The Deputy must understand that I am not giving my own view. I am not arguing it at all, but am merely stating that a Select Committee might be set up and that the chairman of that committee could rule in that way. He might not, but he would have power to do so, and a very good case could be put up to him to rule in that way.

Mr. Little

If the age in the Bill were seventeen, then obviously the chairman would have to rule out evidence which dealt with offences against persons of the age of eighteen. But where you have the age of eighteen, evidence as to offences against persons up to the age of eighteen is inclusive of offences against persons up to seventeen, and therefore the whole evidence could be brought before the committee. I think that that would be the most natural way for the chairman of the committee to deal with it.

An Ceann Comhairle

The Deputy has the experience of the Leas-Cheann Comhairle and of myself on the question of chairmanship, and that is all we can do.

Sir James Craig

I think Deputy Little would be well advised to adopt the suggestion that the Minister for Justice should set up an inquiry, because I can assure him that even those of us who know a good deal about this matter have not come to a definite conclusion as to what the age limit should be, and I would be very sorry to vote on it at the present stage.

Mr. Fahy

Perhaps the Minister could say whether he would set up the committee within two months or one month. Would it be in twelve months' time or two years' time, or what? Let us know within a few months.

Mr. Fitzgerald-Kenney

I have already told the Deputy that I will be guilty of no avoidable delay.

Mr. Fahy

Could the Minister interpret that? Would that mean six months?

Mr. Fitzgerald-Kenney

The Deputy has quite sufficient ability to interpret that simple statement for himself.

Mr. Fahy

I am afraid I have not —not where the Minister is concerned.

Mr. Davin

Would it not be quite possible that the Deputy himself might be asked to decide this matter?

Mr. Little

Like Deputy Sir James Craig, I do not wish to rush this thing at all. The only difficulty I have in the matter is that there may be too much delay. We have questioned the Minister, and he has dealt with us in a semi-flippant manner which is really not consonant with the subject, but if he could say definitely whether the committee could be set up within three months——

Mr. T. O'Connell

If he does not do so you could re-introduce your Bill and we will vote for it.

Mr. Little

You cannot introduce a Bill twice in the same session.

Professor Thrift

Oh, yes. It has not been rejected.

Mr. Little

I wish the Minister would commit himself a little more.

Motion, by leave, withdrawn.

Ordered: That the Bill be withdrawn.