This Bill which is designed to discourage the very serious crime of rape affords us an opportunity to discuss that crime and the reasons for it and also the question of whether the Bill is adequate to meet the challenge that is implicit in the increase in the incidence of rape. The reality is that the number of rape cases is increasing and the implications of this are such as to give rise to unease and grave concern. Consequently, women's organisations have focussed their attention on ways and means of improving the situation and endeavouring to have legislation tightened, in so far as legislation can help, to curb this crime. All of this has resulted in the publication of the Bill before us.
In principle, I welcome the Bill as an expression by the Government of their concern in regard to this serious problem. I have some reservations about the Bill and also some suggestions for change which I shall be putting forward in the course of the debate, changes that might improve the likelihood of the legislation being effective.
The act of rape which is increasing both in terms of numbers and of permutations is a savage violation by one human being of the most intimate personal nature of another. It is a crime which is seen as extremely repugnant by all right-thinking people, a crime about which one often has difficulty in speaking dispassionately. There is an implication in the crime of rape of civilisation being turned on its head, of the strong taking advantage of the weak and of all of the standards of civilised behaviour which have developed down through the centuries being abandoned. There is universal revulsion at this most serious violation of a person's very being. Accordingly, it is timely, to say the least, that we are approaching reform in legislation in this area in the hope of finding ways and means of ensuring that the present statistics, which unfortunately point in the wrong direction, are considered and that, if possible, there will be proposals which will bring about an improvement.
The protection of women in this respect is overdue. It is very difficult to obtain concrete statistics so far as the crime of rape is concerned and those that are available are likely to be extremely conservative because we are told that this is the most under-reported crime of all. The Rape Crisis Centre, a voluntary organisation who are doing very fine work, set up as a response to this growing form of social deviance, give some indication of their activities from which it is possible to get some insight into the seriousness with which this whole area is viewed. In their literature these people indicate that the problem is serious, that it is increasing in seriousness and that up to now there has been but a lukewarm response to their requests for assistance in this respect. It is only right and proper to put on record the innovative work of Senator Gemma Hussey in this respect. She introduced a Bill in the Seanad to deal with rape and that Bill is reflected significantly in the terms of the Bill before us. Therefore, there is fairly widespread concern in this area.
In the context of a proposal to the Eastern Health Board for an annual grant towards administration, the Dublin Rape Crisis Centre in April 1980 informed the board that since the opening of the centre in February 1979, they have counselled 72 women who had been raped and dealt with 38 inquiries or problems relating to sexual assault. They went on to say that of the 72 women who had been raped, five had been referred to the centre by hospitals, seven by social workers, four by Estern Health Board doctors, four by the Garda, nine by family planning clinics and six by other health agencies and that the remaining 37 had found the number of the centre either in the telephone directory or through advertising. The centre said also in that letter that they were not reaching a vast number of women who need their services and that, for example, of all the cases of rape reported in the press last year, only seven of the people concerned found their way to the centre. In referring to Dublin I am aware that this problem is not peculiar to this city.
It is reasonable to conclude that the 72 cases dealt with in the Dublin area last year were by far a small minority of the overall number of rape cases. Statistics in the US, a country that seems always to have statistics even if they do not have the solutions — show that in 1960 the number of rapes reported was 17,190, which had climbed in 1967 to 27,620 and in 1975 to 56,090. I am quoting from a work calledSex, Crime and the Law by Donal E. J. McNamara. This shows a very graphic increase which I have no doubt is reflected in the crime statistics of most countries. Between 1970 and 1975 there was an increase of 45 per cent and this seems to be reflected in other societies. I believe that the rate of under-reporting here tends to be higher because of the nature of our society where there is a reluctance very often to consider matters such as rape. There is the natural inhibition one would have of reporting it locally for fear that in the often parochial context of small communities it might detrimentally affect their characters and their well-being in the area. This should not be, but I believe that the feeling exists and that is one of the problems which must be overcome.
This is reflected in certain proposals in the Bill, particularly relating to a woman's sexual history. I believe that the rate of under-reporting is quite significant. This leads me to conclude that there is a very serious problem in relation to the number of incidents of rape, attempted rape and related crime. It is time the House made a clear declaration to the women of the country that, so far as legislation will help, every effort will be made to ensure that the corner will be turned and that proper and adequate defence in law will be given to women in those circumstances. There are some measures in the Bill which undoubtedly will help in this respect and which will encourage more widespread reporting and more extensive prosecution.
In the last paragraph of the Minister's speech introducing the Second Stage, he said:
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.
The Bill is an attempt at finding a cure to the problem, and that is to be welcomed. Everybody here should be concerned with the preventive area. I mentioned the last day we discussed the Bill that I had no doubt that the manner in which we have facilitated the education of young people and the mutual understanding by the sexes of the very nature of each other and the kind of relations they should have with each other has been extremely deficient. I do not believe that the segregation of education has been a help. In our classrooms we have tended to play down the question of understanding the biological, psychological and other differences which exist between the sexes. In the home, which is the primary educator, I feel there has not been an adequate degree of honesty about very basic issues like the sexual nature of people and what we used to call "the facts of life", which for some mysterious reason were always presumed to apply to the biological and sexual facts of our life.
Some of the answers, if we truly want to get to the origin of this crime, will lie in encouraging and developing greater understanding by men of women and by women of men. This will have to occur in the home, the classroom, the work and leisure environment. We should work more closely together. We should be educated more closely together and we should ensure that all of the education aids that are necessary in regard to books and so on are made available to facilitate that voyage of mutual discovery which for many Irish people has never occurred.
I was reminded of this in the last few weeks when the Minister of State, many of my colleagues in the House and I found ourselves working in the north western part of the country, where I was saddened by the large number of old, single people I met. I could not but be struck by the fact that in many cases a different approach to initial relations with the opposite sex might have meant that there would have been a lot less loneliness and a lot more joy in the lives of at least some of those people. I am not suggesting for a moment that there are not many people whose natural entitlement and desire is to live a life alone, but there are many others who have never managed to develop the ability to communicate with the opposite sex. That is a problem and I believe part of it relates to the type of difficulty we are talking about here.
I am not trying to suggest that we should explain away or rationalise this very serious crime. The evidence is to the contrary in many cases, that rape is more often than not carefully and deliberately premeditated and planned and is simply the exploitation for sexual gratification of the weak sex by the strong. I do not wish to pretend in any way that it is not a difficult problem to deal with, but I am suggesting there are things we could do to minimise some of the origins of the actual crime.
I emphasise the need for education and the way in which people's attitudes and characters are formed. Research has shown that the number of rapes is on the increase and the likelihood is that the figures we have are probably under-reported. The seriousness of this is that in most cases the crime is quite deliberately planned. This is not to suggest that there is not, even among those who deliberately plan the crime, a degree of psychiatric disorder in some cases. The ability to plan coldly and calculatedly does not exclude the possibility of people being more in need of psychiatric help than incarceration in prison. I do not wish to ignore the real problem that exists by any reference to people being able to evade justice because of medical problems.
The figures available indicate that approximately 51 per cent of the rapes reported are committed by one man and 37 per cent of them are committed by more than one man. The majority of the cases are the deliberate act of one individual but there are others which are not. I mention this because it is important in relation to the definition of rape.
The whole area of sexual aggression is something we have not looked at in the House and it is good that we are getting a chance to do so now. The whole basis for rape seems to stem from the view of women as property. That is changing, and great credit is due to the women who have stood up, sought and obtained to a substantial degree progress in that respect. I believe the House fully endorses in principle — and, I hope, in the spirit and in the letter when the time comes — the full equal rights of both sexes.
I should like to give the House another quotation from the book entitledSex, Crime and the Law:
It is difficult to research the extent to which the source of the drive in some males to rape can be explained by thousands of years of history in which females — except those worshipped and idolised for their chasteness — were seen as the sexual property of males. That there has been such an orientation cannot be denied; the long tradition of bride capture, which is so similar to rape, attests to this. Nevertheless, such a heritage does not explain the personality and situational conditions associated with rape or the increase in the rate of victimisation.
I do not think it is adequate to try to explain it away merely on the basis of genetic programming, suggesting that we are not that far removed even yet from the days when, according to the cartoon strips, cavemen grabbed the women by the hair and dragged them to their caves. Our civilisation has changed fundamentally since then and no such rationalisation can be tolerated.
There are some myths about rape and it is no harm to mention one or two of them in passing. I have a suspicion that many people have not got the kind of sympathy for the rape victim that they should have. Either unconsciously or otherwise they explain away this relative lack of compassion by reference to what I would call the myth of rape. They would include statements such as "she led him on" or "she was looking for it anyway" or "if she dresses that way she cannot expect anything else". Some males try to explain away the crime of rape by such generalised statements, as though it could be tolerated because of some nuance of behaviour on the part of the offended person. One would have to reject that attitude. All these so-called myths are baseless and should be seen to be so. Such things as a belief that a woman was singled out to be raped because of some trait in her behaviour, because of some innate inability to relate sexually to her husband or lover, because of a lack of confidence in her own judgment concerning the rape or feelings of blame or guilt, all of these things are not the issue. The fundamental issue is the degree to which increasingly it is apparently seen to be legitimate for one individual to ruthlessly exploit the sexual nature of somebody else. We can judge the degree to which we are civilised by our response to a situation where people who are physically weaker are so treated by others. This Bill reflects that concern to some degree and it is timely.
Section 2 of the Bill deals with the meaning of rape and in my opinion the section contains two deficiencies at least. The section states that a man commits rape if he has unlawful sexual intercourse with a woman. In principle I do not think we should sexually ascribe a crime or a would-be crime because that in itself could be argued to be sexist thinking. It is not merely a man who can commit rape or a woman who is the victim. Those of us who have carried out some inquiries with regard to prisons know that prison inmates can be and are raped by other inmates. In some jurisdictions a man or woman who is an accessory to the rape can be charged with the crime, but under this Bill technically that might not be possible. Somebody who is engaged in procuring or restraining and, in every way possible apart from the act of physical penetration, is involved in the rape should be open to the charge. However, if we are to make it exclusively a crime by a man on a woman, it may not be possible subsequently to include other aspects for the purpose of prosecution. I think the meaning of rape should not be defined in terms of gender.
I believe the definition of rape is too narrow. The only interpretation I can draw from the definition at the moment is that of an act of forcible sexual intercourse by a man on a woman. It is clear that there are varying permutations of sexual intercourse, that assaults of a sexual nature made on women are made by using instruments and in the strict interpretation of sexual intercourse as legally defined they would not be sustainable in the context of a charge for rape because we are talking here merely of the question of the vaginal penetration by the penis of the male. Therefore, the definition may be too narrow. It should be broadened to include such violations as those to which I referred. This would mean that those people who found a perverse delight in these permutations of rape could be charged with the crime of which they are truly guilty. Indeed, some of these violations would seem to a mere male to be even more hurtful and offensive than the traditional interpretation of the crime of rape. The section of the Bill dealing with the definition of rape should be extended to include the use of sticks, bottles and all the other sad paraphernalia that one reads about in violation of the vagina or genital area and to include the penetration of the mouth or anus of a woman with a man's penis against her will. Under this Bill the definition is too narrow and I ask the Minister to reconsider it.
What has come to be known as marital rape needs some rethinking. Let us consider coldly and logically what we are talking about. We are talking about an act of forced sexual abuse and the status of the people involved does not matter. It is a crime, and the fact a man and woman are married, living together or single, should have no relevance whatsoever. It might be more difficult in the case of married persons to prove that rape took place, but that is not our concern; we must ensure that the abuse is not facilitated in law. The excuse that a person is married is not acceptable and should not be a defence against the charge of rape. The indignity and violation involved are as serious to a married woman as to a single woman.
Rather than create any divisiveness about the area of maritial rape, which for some reason makes some people feel slightly threatened, I would prefer to look at it from another point of view. I hope that the definition of "rape" will be amended in section 2 to include a wider and more comprehensive area of sexual abuse and will get rid of the slightly sexist overtone I mentioned. It should also include the possibility of prosecution for rape of minors, the rape of males in prison and group rape and, finally, the possibility of charging a man or woman with being an accessory. Having included all these possibilities in the redefinition. We will have the parameters for the crime and that is all that should concern the prosecutor. Whether the people involved are married or single, old or young, is irrelevant.
If there is any provision in the Bill which excludes the possibility of a married woman taking action, it should be removed, as should the provision in any other legislation which would preclude this possibility. The crime is the same and so are the exploitation and indignity. I would ask the Minister to consider this matter. The assumption that a married man cannot rape his wife is extraordinary and should not be enshrined in law. In a country where we do not allow even discussion of divorce, there are many couples whose marriages are somewhat more strained than they might be in other societies. A married man who is no more than a casual visitor to his marital home cannot be charged with rape even where there is evidence that it was committed. There is a need for clarification on this point.
We must examine some of the proposals in the Bill relating to the trial and the manner in which the prosecution is pursued. If, as is probable, it is necessary to encourage women to report the crime of rape and appear in court, we must consider the anonymity with which it may be necessary to surround the proceedings. Ideally in a court of law there should not be a need to circumscribe the manner in which the prosecution or the defence do their job, subject only to the will of the presiding judge who must keep order and interpret the limits to which either side should go. That seems to me to be a sound principle of justice. We should not by law circumscribe either a prosecution or a defence in the pursuit of truth or justice. However, because of the fact that this charge, as well as some others, has very serious detrimental and traumatic effects for all parties involved, it may be necessary for a short period to place limitations on the proceedings. Ideally it would be better if it were not necessary to deal with these matters anonymously and if it were not necessary to forbid the defence and the prosecution from pursuing any aspect of the character or past performance of an individual if it were felt to be essential in the interests of justice. However, I am willing to accept that if it appears that someone is publicly denigrated in a court of law the whole idea of justice can be turned on its head and more damage can be done to the person who has been offended than to the defendant. In those circumstances we are willing to accept certain circumscriptions on the prosecution and defence. We are placing an increased responsibility on the Judiciary by foisting on them a final definition and interpretation as to whether such questioning should be allowed.
In section 2(2) it is stated that the jury in a rape case must take into account that it is a defence to the crime if the accused argues that he did not believe the woman to be opposed to the alleged rape and that he believed her to be consenting. Section 2(2) states:
(2) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.
This appears on the one hand to imply that a man may get off more easily if he suggests that the woman was consenting and I cannot think of any male who will not put forward that case. On the other hand, it is so watered down and so nebulous that I wonder whether there is any need for the section. It does not offer any help to the victim except to implant a doubt in her mind that the suggestion that she was consenting might help to get the defendant off. It does not offer a great deal of help to the defendant because the jury must only have regard to it, along with other relevant matters. I wonder about the rationale of the section and I am inclined to question it. It raises fears—unnecessary fears perhaps —but fears in the minds of some women and some women's organisations.
It is also stated or implied here that it is not necessary for the man to have reasonable grounds for believing the woman to have consented but that such a belief is a matter for the jury to take into account in considering whether a man did in fact believe she consented. In other words, it is allowable for the purpose of evidence. It is not evidence which automatically condemns or automatically releases people from the charge; but it has to be taken into account. However, underlying this there is a degree to which the argument implied in subsection (2) of section 2 is highly subjective. Not alone that but it is a secondhand assessment of a very subjective notion by the accused relating to his motives and actions: whereas the woman who is the victim in the case is, and will be, obliged to prove objectively—not just by her verbal testimony but probably by forensic and medical evidence and beyond all reasonable doubt—that she did not consent to being raped. Therefore, there may be a problem here. It seems that at best the provision is calculated to allow a defendant to use as a defence against the crime this type of outlet even after the woman has shown conclusively that she has been raped against her will. In that case the man still may plead that he thought she had consented. The grounds for such thinking are not clear and there seems to me to be no real rationale for it. I do not think it helps anybody.
Section 3 talks about the restriction or the right of an accused person to cross-examine the complainant or any other witness or to adduce evidence about any sexual experience of the complainant with any person other than himself. It does provide for the accused seeking an application from the judge for leave to cross-examine on such matters, which decision shall be made in the absence of the jury. So it is up to the judge to decide if he would consider such evidence essential in fairness to the defendant. There are those who would say that a woman's past sexual history with others could never be relevant. I do not agree with that. Nor do I agree with the thrust of the argument. If a defence counsel or indeed a prosecution counsel believes that in the interests of justice certain avenues of investigation or exploration should be pursued, either in respect of the accused or the defendant, ideally they should be fully facilitated in so doing, subject only to the judge saying that it is not relevant, something which he can do under present law. However I do accept, and I presume this is the case on which the Minister based his argument, that in this area of sexual crime — in this country, unfortunately, until we grew up a little bit more this area had certain implications which should not associate with a trial, with a charge or with any kind of court case — there may be need for circumscription of those rights. I would not rule out—and I would ask the Minister to consider this — the possibility of someone taking this beyond the court in which this trial is being heard to the higher courts. At least I want to make it clear that, if we are facilitating such circumscription of investigation, we are doing so knowingly and in the belief that there may be an occasion where such investigation, such inquiry, might have had a different result for either the defendant or the accused, and that both are open to suffer in this situation.
There is also the question of whether this is a precedent or not. Are we to have other Bills brought into this House whereby in certain cases, say in the case of theft or in the case of any form of crime, a person's past experience is not open to inquiry? There is a moot point here anyway because the degree to which this is relevant provides a good argument at the best of times. But I want to be clear that what this Bill suggests is that it does not facilitate the court in making that kind of inquiry. I am willing to go along with that if the Minister wants it at this stage for reasons relating to the unfortunate impact which sexual crime has on our society at present. But I just want to be clear that we are, in my view, sacrificing a principle here. However, I am willing to consider that and to allow it in the interests particularly of the victims in rape cases, who up to now have suffered disproportionately. But it should not be let go lightly nor should it be let go without that kind of comment. I believe that lawyers may have other views about this and that we may in fact have a test case on this particular principle at some stage.
Section 6 of the Bill talks about the exclusion of the press and the public and, as in the case of section 3, relating to the direction of the inquiry, the onus for making the judgement in relation to that falls on the judge. I am wondering if we are not either passing the buck too much to the Judiciary or asking them to do a very difficult job, or even an impossible job, bearing in mind that in both cases we are effectively restricting the principle that justice should be seen to be done. I am not against either in the context of this Bill, because I believe we should make restitution for the tradition of discrimination against offended women in this respect, and this is part of the price.
In principle the more courts that are open to the public, the better, and the more maturely we respond to accusations of any type of crime in society, the better. Therefore, artificial protection of people by excluding the press or the public, or excluding coverage of a case by granting degrees of anonymity, is something which I would hope we will grow out of gradually. I have argued personally on occasions for degrees of anonymity for all people involved in trials, at least until the case was adjudicated upon. I am mindful of a case of a charge of attempted rape against a doctor in relation to one of his patients. He was found innocent, but he emigrated because in no way could he do business from then on. So there is reason for believing that people will interpret in their own way, and their own suspicions, anxieties and fears will exact a certain toll on an innocent person even after he or she has been declared innocent. Therefore, there is justification for these clauses. I just wanted to draw attention to the principle that we are sacrificing.
Section 6 excludes the public from the hearing of an application under sections 3, 4, or 5. There may be a case to be made, as in some family law cases, for the hearing of a case to be held completelyin camera if the judge so decides. I would like to see that possibility being facilitated; but only as a last resort should we seek to exclude the public. After all, it is a constitutional provision and it is a fairly important principle in the tradition of this country that our courts are open. I realise fully that that means that on occasion there have been injustices visited on the heads of innocent people long after the court case is over. Particularly in the area of sexual crime—and this was one of our arguments in the context of the Private Member's Bill which I introduced in relation to criminal conversation—the mere suggestion that a charge could be brought was enough to blackmail people because of the fear they had of the implications on their character, their livelihood and their family arising out of such a charge.
Section 7 deals with the anonymity of the complainant in a rape case. That is in principle a good measure until such time as we can publish the names of people and until we as a society are able to respond in the most mature fashion possible—in other words, until such time as there would be no detrimental effect on the head of the person who complained. But the evidence is that rape is the most unreported crime precisely because women are afraid to report it because of some of the myths I referred to and because of the damage to their characters. If that is the case, and I believe it to be, then the complainant should be allowed to remain anonymous.
But there are, the Minister will agree, some dangers in that. I believe he should monitor it carefully, because obviously in any such procedure there is the possibility of abuse and instances could occur which could mean that an anonymous person could destroy the character or the livelihood of an innocent person. Nobody wants that either, any more than do the vast majority of women. Any new arrangements like this should be viewed in the fullness of their implications, and that is one possible implication.
Section 7 (1) says:
.... no matter likely to lead members of the public to identify a woman as the complainant ... shall be published in a written publication available to the public or be broadcast except as authorised by a direction given in pursuance of this section.
The judge is being asked to take the burden here. The phrase "in the public interest" is used in subsection (4). I should like to see that phrase more clearly defined. There is a degree of laxity about it which might not serve the ends the Minister wishes this Bill to do. The judge is the person who will be asked to decide on some extremely delicate provisions in this Bill. I wonder how the judges feel about that? I wonder is there any way in which we can help them to have such phrases more clearly defined. For example, one interpretation of the phrase "in the public interest" would be the interest generated by what we might call the more salacious type of publication. There is undoubtedly a public interest in such publications because they are widely bought. Would that be "in the public interest"? I do not think that is what the Bill intends. I should like to see the looseness in the phrase cleared up so that there would be no doubt in anybody's mind. Therefore we would give the maximum help possible to the judge in that circumstance.
The looseness in that section is reflected again in section 8 which deals with the anonymity of the accused.