: I move: " That the Bill be now read a Second Time."
The purpose of this Bill is to amend the law relating to rape. The Bill restricts the admissibility of evidence at a rape trial of any sexual experiences of the complainant with men other than the accused and prohibits, as a general rule, the disclosure of the identity of the complainant or of the accused. The Bill further provides for increased penalties for the offence of indecent assault on females.
There has in recent years been growing criticism of certain aspects of the present law relating to rape. Deputies will be aware that a submission on the matter, commissioned by the Council for the Status of Women, was debated in the Seanad in April 1979 and that last June a Private Member's Bill on the subject was presented in the Seanad.
As the Minister for Justice has stated on a number of occasions in this House, we have had the question of introducing a Bill on this important matter under consideration for some time. The need to produce a Bill as quickly as possible was recognised, but an even more important objective was to produce the best solution we could for the complex problems involved. The central problem, of course, is that on the one hand rape is one of the most reprehensible crimes known to the law and its victims deserving of every protection the law can properly give; but, on the other hand, false allegations of rape are, unfortunately, not unknown and the law must take account of that fact. It is necessary, therefore, to take both these factors into account and, so to speak, to balance them properly. I believe that this objective has been achieved in the Bill now before you.
The Minister welcomed the submission from the Council for the Status of Women. That submission has been given very careful consideration in the course of the examination of this question. We have also had the benefit of the views of the Dublin Rape Crisis Centre and of various people experienced in the practical operation of the law as it stands at present. The legislative proposals contained in this Bill take account of all those views.
The definition of a rape offence in section 1 ensures that the provisions of the Bill will apply also in relation to offences such as attempted rape, or aiding, abetting, counselling and procuring rape. The definition of rape in section 2 uses the phrase "sexual intercourse" rather than the older phrase "carnal knowledge". Both mean the same thing. Section 63 of the Offences Against the Person Act, 1861, provides that carnal knowledge shall be deemed complete on proof of penetration only, without the need to prove emission of seed, and the effect of subsection (2) of section 1 of the Bill is to continue this rule in relation to "sexual intercourse". Subsection (3) includes a provision preserving the common law rule that a boy under 14 is to be presumed to be incapable of being a principal in an offence involving sexual intercourse. However, a boy under 14 may be convicted of aiding and abetting a rape, as may a woman.
May I say at this point that I appreciate that there can be two views on this question of preserving the legal presumption that a boy under 14 is incapable of rape. I suggest, however, that if it were proposed to change the present law on that score, it would be better to include the proposal and debate it in a wider Bill dealing with young persons, or, alternatively, a wider Bill dealing with sexual offences.
Section 2 provides for the first time in law a statutory definition of rape. Rape is a common law offence and persons convicted thereof are liable to imprisonment for life. The intention is not to change the law as to the meaning of rape but only to make it clear what constitutes the offence. The essence of the offence is that the woman does not consent and that the man either knows that she does not consent or is reckless as to whether she does so or not. One advantage of putting the definition on a statutory footing is that any popular misconceptions there might be about the nature of that offence will be dispelled, in particular the misconception that the use of force or fraud is a necessary ingredient of the offence.
The use of the word "unlawful" in the definition means that the Bill does not propose to change the present law under which a husband cannot be convicted of rape on his wife save in exceptional circumstances. There is some doubt as to the exact scope of the exceptions to this rule, but undoubtedly they include the case in which the husband and wife have been judicially separated.
Some suggestions have been made that the law should make no distinction at all in this area between people who are married and those who are not. It has from time to time been alleged that the present rule has been founded on a legal view of women as the property of their husbands. As it happens I am advised that such a view of the law is not sustainable. Historically, the reason judicially given for the rule was one based on the doctrine of irrevocable consent given at the time of marriage, but it seems likely that even that was only a "formula" and that the underlying reason was the recognition of the obvious problems that would be likely to arise if it were possible to bring charges of rape as such as between a married couple.
But — and this is what I would like to emphasise — there is a vast difference between saying that the law does not in the normal course allow a husband to be convicted of the specific crime of rape and saying or implying that the law permits a husband to use violence against his wife in order to force her to have sexual intercourse with him. No doubt many Deputies will have seen in newspaper articles or letters some rather horrifying stories of this nature — husbands behaving in outrageously brutal fashion, sometimes before their children. The difficulty about such allegations is that they tend to be made in a way that implies that there is no legal action that can be taken and this, in turn, can mislead women as to their legal position. Of course the law permits legal charges to be brought in such cases — not charges of rape but charges of assault of one kind or another depending on the facts. And, in the course of any such legal proceedings, evidence of all the facts can be given.
Whether in any particular case it is in the best interests of the woman or of any children of the marriage that charges of assault should be brought as well as or in preference to reliance on other measures is another matter and one that may depend on many circumstances. But the impression should not get around that the law is indifferent to the kind of brutal situation that we see portrayed. It is not. To imply otherwise is misleading and, what is more important, misleading in a way that can have serious consequences for any woman who may be at risk in such a situation.
There would be some merit in clarifying by statute the precise scope of the exception to the rule that a husband cannot be guilty of rape on his wife if the matter were otherwise free from difficulty. However, the issues involved in this area of the law are much more far-reaching than the relatively straightforward cases of judicial separations or separation agreements. Questions would inevitably arise as to cases in which the marriage had been annulled under Church law and not under the civil law and also cases in which there was a barring order — though such an order might be of temporary duration only. Cases involving desertion and actual separation by mutual consent without legal formality would also have to be considered. Moreover, to enact a provision with defined exceptions would prevent a further development of the law except by statutory intervention. Any attempt to legislate in this area would be likely to give rise to serious difficulty and we considered that, pending further study, the best course would be to make no provision in the Bill on this matter.
The Council for the Status of Women recommended that the definition of rape should be extended so as to include certain particularly obnoxious forms of indecent assault not amounting to rape at present. While that recommendation has not been accepted in the form put, the Bill deals in another, and I believe a more effective way, with the problems which inspired the recommendation. I shall come back to that later. For the moment, I will confine myself to saying that we do not think it is desirable to change a well-established meaning of a well-known word. Moreover, there are good reasons why the law should treat rape as we now understand it as being an offence apart. But, as I say, we recognise the seriousness of the problems that led to the suggestion and we are dealing with them later in the Bill.
A defence sometimes advanced against a charge of rape is that the man believed that the woman consented to the intercourse — in other words, that a necessary ingredient of the crime, an intention to have intercourse without her consent, was lacking. Subsection (2) re-states clearly what the law is in this regard. Following fundamental principles that are applicable generally in the criminal law, it recognises that it is not necessary, for the defence to succeed, that the belief should be based on reasonable grounds but it makes it clear that the presence or absence of reasonable grounds for the belief is a matter to be taken into account by the jury in deciding whether or not the defence should be accepted. I think there is advantage in providing a clear re-statement of the law in this matter.
I should now like to come to what is probably the most important change in the law proposed in this Bill. One of the main criticisms made of the existing law on rape concerns the rules or the practice under which evidence may be adduced and cross-examination of the complainant permitted in order to show that she has had sexual relations with men other than the accused. It has been said that the practice is unfair to the woman in that this kind of evidence or cross-examination, while frequently irrelevant, subjects the woman to hardship and trauma and violates the privacy of her personal life; that the woman's denials, even if true, may not be believed by the jury; that it discourages women from reporting cases of rape and that it may confuse juries by diverting their attention from the true issues in the case, namely whether the complainant consented. The Bill is based on the conviction that there are firm grounds for those complaints.
It is one thing to recognise that existing practice is open to serious criticism. It is another matter to find the best solution. The question of the admissibility of evidence as to the complainant's sexual history with men other than the accused has been a matter of considerable difficulty in many other jurisdictions which, in general, have rules of evidence basically similar to our own. In the United States of America, for example, many of the states have enacted legislation in this field, but adopted widely differing solutions. These solutions range from almost total exclusion of the evidence in question to those which impose virtually no restrictions on admissibility, leaving it to the judge to be satisfied that the probative value of the evidence exceeds any prejudice likely to be caused to the complainant. In theory, it is possible to adopt a "solution" at any point on a range from total exclusion to total admissibility at the discretion of the court.
The difficulty with total exclusion, of course, is that there would be a serious risk of causing grave injustice to the accused and indeed of wrongful conviction. There is no doubt that there could be circumstances in which evidence of the complainant's sexual relations with men other than the accused can be highly relevant to a material issue in the case.
At the other end of the spectrum, it would be possible to have a law which would simply leave the question of the admissibility of evidence of this kind totally to the discretion of the judge without guidelines. As there appears to be no such guidelines laid down in any court decision here, such a provision by itself alone and in our circumstances, could involve such little change—if it involved any—in the present law that I think it could fairly raise a doubt as to whether it would be worth enacting. The court already has inherent jurisdiction to exclude evidence which is irrelevant. What is proposed in section 3 is that in any case in which defence counsel wish to adduce evidence or cross-examine as to any previous sexual experience of a complainant with a person other than that accused, an application will have to be made to the judge in the absence of the jury and the judge will only grant such an application if he is satisfied that, in a particular sense set out in the section, it would be unfair to the accused not to do so. The sense in which the word "unfair" is used is that, before giving leave, the judge must be satisfied that the effect of allowing the evidence or cross-examination might reasonably be to cause the jury not to be satisfied beyond reasonable doubt that the accused is guilty in circumstances where they otherwise might be so satisfied: that is, that it might rationally make the difference between conviction and acquittal.
The provision, I think, strikes the correct balance between the need to afford protection to the complainant and the need to preserve the accused person's right to a just trial. The other provisions in section 3 and the provisions in section 4, which deals with preliminary examinations in the District Court, and in section 5, which deals with trials of juveniles, are consequential provisions arising out of the main provisions.
An application under section 3 will, as I have indicated, be heard with the jury absent. Section 6, in addition, will exclude the public while the application is being dealt with.
The Council for the Status of Women recommended that applications for the admission of evidence of sexual experience with other men should be heard in the absence of the jury only and did not go so far as to say that they should also be heard in the absence of the public. We believe, however, that there is an overwhelming case for excluding the public from the court when the judge is hearing such applications.
To enable the judge to assess the merits of an application it will frequently be necessary for counsel for the accused to indicate in some detail the nature of the evidence he proposes to adduce or the kind and purpose of questions he proposes to put in cross-examination. Since one of the main reasons for restricting the freedom of the accused to cross-examine or to adduce evidence of this kind is to protect the complainant as far as possible from the ordeal that this would entail—and indirectly to reduce the risk that this would deter other women from reporting rape—to allow applications to be heard in public would be inconsistent with this basic objective and would greatly reduce the protection it would afford to complainants. The exclusion does not in any material way affect the normal right to a public trial, for all that is being adjudicated on in private is whether certain evidence is relevant in the sense I have explained. If it is not relevant, it should not be open to be heard by the public. If it is relevant, it will be heard by them in the course of the trial proper. I would like to make it quite clear that, when I speak of the evidence being or not being relevant, I am not overlooking the fact that in a number of cases we are speaking of allegations or imputations against the complainant that are not only irrelevant but, quite simply, false as well. That is an added reason for affording protection to the complainant. Subsection (2) of section 6 preserves the right of a parent, relative or friend of the complainant or of the accused, if he is under 21, to remain in court while the application is heard.
The next important provisions of the Bill are sections 7 and 8 which prohibit, subject to exceptions, the publication of any matter likely to lead to the identification of a complainant in a rape case or the identification of the accused unless he is convicted. While the news media generally refrain from publication of the name and other details likely to disclose the identity of a complainant at present, there has been at least one recent case of failure to do so and women may be in fear of publication in any particular case. We are satisfied that such a prohibition in relation to complainants is desirable in order to protect them against distressful and potentially harmful publicity and section 7 contains the necessary provisions. The point might be made that this protection should not be allowed where a complaint of rape is falsely made. This would be valid if it were possible to identify such cases in the Bill, but it is not. It cannot be inferred, merely because there is an acquittal, that the charge is false. There is no way of distinguishing which charges may be false and which have simply not been proved beyond reasonable doubt and so the rule must apply equally to all.
Having decided to provide protection for all complainants, we considered that, on grounds of fairness alone, the accused, unless and until he is convicted, must also be protected from having his identity published and this is provided for in section 8.
Both section 7 and section 8 provide grounds for seeking a disclosure of the complainant's or the accused's identity and such an application can be made before or at the trial. In all cases application must be made to the judge or justice as the case may be and the judge or justice may allow a full or partial disclosure if he is satisfied that such is warranted on the basis of the application made to him. The grounds on which an application for disclosure can be made are that it is necessary for the purpose of inducing potential witnesses to come forward to give evidence at the trial and that the conduct of the applicant's defence at the trial is likely to be adversely affected if the application is not granted. An accused will, also, be able to have the prohibition in relation to his own identity lifted on his own application.
Subsections (6) to (9) of section 7, which are repeated in section 8 in relation to the anonymity of an accused, specify the person who will be guilty of an offence in the event of a publication or a broadcast in contravention of the provisions of the Act, define "a broadcast" and a "written publication" and make consequential provisions.
In those sections in particular, but also in some other respects, I would like to acknowledge our indebtedness to the text of the corresponding English legislation.
Section 9 provides that the Act will apply to trials by court-martial. In this connection I might mention that a trial for rape by court martial will only take place where the offence has been committed during active service.
I have already referred to the problem of there being certain very serious and very obnoxious forms of indecent assault. Under section 6 of the Criminal Law Amendment Act, 1935, the maximum penalty on conviction on indictment for an indecent assault on a female is two years' imprisonment on a first conviction and five years' on a second or any subsequent conviction. We considered that, for the very serious and aggravated case of indecent assault, which does not amount to rape, or attempted rape, the existing penalties are clearly inadequate. We have deliberately refrained from attempting to define or describe the kind of offences to which such higher penalties should apply. It would be impossible to do so satisfactorily and unwise to try. There are far too many possible variations of facts and circumstances. Instead, section 10 increases to ten years the maximum sentence where the conviction is on indictment. Of course, even where the trial is on indictment, the imposition of the higher penalty will be at the discretion of the judge, and the reason for the substantial increase in the maximum is to give power to the judge where he is satisfied that the offence is aggravated by grossly indecent or violent sexual assaults or the causing of severe suffering or humiliation to the victim to impose a penalty commensurate with the crime. In case anybody should think that we are going a little too far in proposing—even as a maximum—that a penalty of up to ten years may be imposed, I would like to place it on record that the Government gave very specific consideration to this matter and they believe that it is right that Parliament should mark its abhorrence of the more aggravated forms of indecent assault by providing for such a penalty.
The penalty for publishing or broadcasting unauthorised matter in contravention of sections 7 and 8 where there is a conviction on indictment is laid down in section 11. The maximum penalty is severe and is so designed to enable the Courts to deal with the deliberate flouting of the law in relation to one of the main provisions of the Bill, the anonymity rules in relation to complainants and accused persons. Section 11 also contains a provision of the usual kind for the liability of directors and other officers of a body corporate in the case of an offence of publishing unauthorised matters.
Section 12 contains provisions for the summary trial of an offence of indecent assault on a female or of an offence of publishing or broadcasting unauthorised matter. The consent of the Director of Public Prosecutions for either offence to be tried summarily will be necessary. Neither the offence of rape nor its ancillary offences can be tried summarily. Finally, section 13 contains the Short Title of the Bill and provides that it shall come into operation one month after it is passed. This section also contains transitional arrangements in relation to trials and preliminary hearings for a rape offence which will have already commenced, and to charges alleging a rape offence, which have been made, before the Act comes into operation. In relation to an offence of indecent assault on a female the Act will not apply to offences committed before the commencement of the Act.
I would like now to refer briefly to a few particular recommendations made by various groups which we either found to be unacceptable or which would be inappropriate for inclusion in this Bill.
There was a recommendation that there would always be at least four women and four men on a jury in a trial for rape. This would create serious problems of principle. Similar arguments could be adduced for special "mixes" in juries in many other trials. Since the Juries Act, 1976, women are equally liable with men to jury service and there are elaborate provisions to ensure that there will be random selection. Any special provision for a set number of both male and female jurors would be a fundamental interference with the principle of random selection. The argument in favour of having a minimum number of women jurors is that some defence counsel still object systematically to women jurors in rape cases in the belief that all male juries give an accused a better chance of acquittal. I understand that such an attitude may still prevail in some provincial centres, though, I am told, only in some. Recent experience suggests, however, that male juries are certainly not less disposed to bring in "guilty" verdicts in rape cases than mixed juries and my information is that this is now accepted as fact in Dublin and in many other areas. I would expect that any remaining tendency to object to women jurors as a matter of course will die out quite soon.
Other recommendations which have been made refer to the Garda investigations of rape offences. Various suggestions of a procedural nature in regard to the investigation and to the medical examination have been made. One sufficient reason why there can be no reference to these matters in the Bill is that these matters do not involve legal provisions. The Garda have detailed instructions providing guidance on how to deal with rape complaints, including an instruction that the complainant's statement should be taken by a ban-gharda where possible and in the great majority of cases this will be possible. The Garda are also very much aware of the importance of the medical and scientific evidence in a rape case and all members of the force are instructed on the procedure to be adopted in a rape investigations. As the complainant can only be medically examined by consent she has always the option of nominating her own doctor for the medical examination, and in practice she will be taken to the local hospital or to the doctor's surgery for the examination. These are matters which the Garda authorities propose to keep under constant review but, as I said, they are not matters that are appropriate for legislation.
A suggestion has also been made that special forensic kits should be made available in Garda stations for use in the investigation of rape complaints. I am assured by the Garda authorities that for their part no problems have arisen in this regard and that, in particular, they have not encountered difficulties because of any lack of special equipment either for, or on the part of, doctors who are called in to deal with the medical aspects of these investigations.
Any idea that the Garda should retain a supply of special equipment for doctors would raise practical problems because, for one thing, the equipment would be required in the vast majority of stations only on very rare occasions. Nevertheless, I am informed that the Garda are checking out whether certain aspects of the arrangements now in operation might not be improved further, particularly with a view to reducing in any way possible the difficulties which have to be faced by persons making complaints.
The Council for the Status of Women have made recommendations concerning the existing facilities in hospitals for the examination of sexual assault victims and the training of medical personnel in this area. These are matters which are essentially the concern of the Minister for Health.
At present our Criminal Law (Amendment) Act of 1935 provides that it is a felony to have unlawful carnal knowledge of a girl under 15 years. Unlawful carnal knowledge of a girl of 15 or 16 years is a misdemeanour. Consent is not a defence in either case. The Council for the Status of Women recommended that these ages should be reduced to 13 years, below which the felony would be committed, and to 16 years below which the misdemeanour would be committed. We do not accept that any case has been made for reducing these ages.
The council also recommended that legal aid should be provided towards the cost of representation of rape victims who apply for compensation to the Criminal Injuries Tribunal. The Criminal Injuries Scheme has, as a matter of principle, been designed to render legal representation unnecessary and, although such representation is permitted, the costs of representation are not awardable. However great one's sympathy must be for a rape victim, there is really no case for having special rules applicable in the matter of claiming compensation from the Criminal Injuries Tribunal.
The council also recommended that evidence of the defendant's character should be made admissible at the discretion of the judge if the defendant attacks the character of the complainant or other prosecution witnesses and the main purpose of the attack is directed to their credibility. The proposal raises important, perhaps even fundamental, considerations as to the rules governing the admissibility of evidence of an accused person's character and it would, in my view, be wrong to change the law in this respect in the case of rape without reference to the position in relation to other crimes and without a much more thorough examination of the general considerations involved in such matters than it has so far been possible to make.
I commend this Bill to the House. Changing the law will not of itself lead to an eradication of the crime of rape. What we can do by legislation, and what we are endeavouring to do in this Bill, is to remove certain features which may, at present, inhibit rape victims from bringing their complaints to the Garda and thus create a situation where there will be a greater likelihood of rapists being brought to justice.
