The Minister of State at the Department of Justice was in possession replying to the debate.
Supplementary Estimates, 1980. - Criminal Law (Rape) Bill, 1980: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
On the last occasion there remained for me only to make a few further points in relation to matters raised by Deputies Keating and Lemass.
Deputy Keating asked me how the Bill precludes the charges of rape within marriage being brought. I want to make the point that rape is crime under common law. It has always been a rule of the common law that a husband cannot be liable to the charge of rape on his wife subject, of course, to the exceptions I have already mentioned. This rule is confirmed in the Bill by defining rape in terms of unlawful intercourse, that is, intercourse outside marriage.
Deputy Lemass asked about the possibility of a rape charge in the case of a common law marriage. In the first place I should explain that there is no such concept as a common law marriage in this country. In other words, the persons to whom the Deputy is referring are not validly married in the eyes of the law. Accordingly, in such a circumstance the male partner could be convicted of rape on his cohabitee.
Deputy Lemass recommended—and this was a recommendation also of the Council for the Status of Women—that the presumption that a boy under 14 years is incapable of sexual intercourse be amended so that he would be regarded as being capable of being a principal in a crime of rape or attempted rape. I agree that there is an anomaly here. However, if the rule is to be changed it would be better to include the proposal in a wider Bill dealing with young persons or, alternatively, a wider Bill dealing with sexual offences generally. The question also arises in the case of offences other than rape. To change the rule in regard to rape alone would create further anomalies. As I have mentioned already, a boy under 14 can be charged with aiding, abetting, counselling and procuring rape and incitement to rape.
As I mentioned in my opening speech, the Council for the Status of Women recommended that sections 1 and 2 of the Criminal Law (Amendment) Act, 1935, be amended. These sections provide that it is a felony to have unlawful carnal knowledge of a girl under 15—section 1—and that unlawful carnal knowledge of a girl of 15 or 16 years is a misdemean-our—section 2. The council 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. The council felt there was:
... room for rationalisation in this area in view of the low marriage age, earlier maturity of young people and the relatively early financial independence of adolescents.
I do not accept that these arguments would justify changes in the law enacted by the Oireachtas in 1935.
Deputy Lemass referred to the law relating to indecent assault on a male person and also on young persons. Under section 62 of the Offences Against the Person Act, 1861:
... whosoever shall be guilty of any indecent assault upon any male person, shall ... be liable to be kept in penal servitude for any term not exceeding ten years.
A man or woman can be guilty of the offence and the offence may be committed on a young boy as well as on an adult. It should be said also that a woman can commit an indecent assault on another woman and would be dealt with under section 10 of this Bill but homosexual acts between consenting females, commonly described as lesbianism, is not a criminal offence.
I should make the point that the penalty for indecent assault is being increased in this Bill to ten years. Bearing in mind that indecent assault, particularly on young persons—and more particularly girls—is such a serious and horrific crime that if any Deputy wishes to suggest that that penalty should be increased further, such suggestion would be considered. Deputies Keating and Lemass, who contributed very fairly to this debate, would, like myself, other members of the House—and indeed the public at large—be deeply concerned at the fact that indecent assault can be perpetrated against a young, immature girl with all the very serious consequences that most certainly would hold for her throughout the rest of her life.
I think I have dealt with most if not all of the points that have been made during the course of the debate. I think that possibly the two main issues that have arisen and that have been commented on by the Deputies who contributed as well as by others are the non-inclusion in the definition of rape of certain types of indecent assaults on women and the issue of rape within marriage. Before I conclude I would like to come back to those two issues again.
I feel that an impression may have arisen, because the Bill does not, as recommended by the Deputies who have spoken and by others, extend the definition of rape to cover certain acts of a depraved nature against women, that in some way the Bill does not sufficiently condemn these acts or cater adequately for their punishment. Any such impression would be totally wrong. What is important is that the law should provide adequate penalties for this sort of atrocious behaviour. What is not important is the label that should be attached to them. As I have already indicated, the Government's view is that this type of criminal behaviour is best dealt with under the offence of indecent assault.
Depraved acts of the type in question will, as a result of the Bill, render the perpetrator liable to a maximum penalty of ten years which is five times the existing penalty for a first offence of indecent assault. The proposed penalty of ten years is, incidentally, twice the maximum penalty which exists for the same offence in England. There can be no doubt therefore about the Government's concern for women who are subjected to this type of aggravated indecent assault. If, despite what I have said, Deputies consider that the penalty provided is not adequate it is of course open to them to propose that the penalty should be increased further and any such proposal will be given serious consideration. It is, I suggest, nonsense to think that we can contribute to the solution of this problem by changing definitions.
There is another point I should like to make in this context. It would not be helpful, quite the opposite in fact, to set out in the legislation a list of depraved acts of the type that have been mentioned in the House, whether in a definition of any crime or otherwise, because any such list could not possibly be exhaustive and, inevitably, equally serious and atrocious acts would not be covered. It would not be possible to anticipate all the types of depraved behaviour that could arise.
Much of what I have said about these aggravated assaults applies also to the question of rape within marriage. It is totally wrong to assume that because the Bill does not include provisions that would make husbands liable generally for rape on their wives that there is a lack of concern for wives or that wives are not protected. The very heavy maximum penalties that can be incurred by a husband who assaults his wife, indecently or otherwise, indicate clearly to me that there is very full protection for wives and I would suggest that that degree of protection would not be increased in practice by making husbands generally liable for rape. For instance, in the notorious Morgan case while the husband was not charged with rape, he was charged with aiding and abetting rape by others on his wife and, in fact, received a far higher sentence than the persons who were convicted of rape.
I would like to thank Deputies, again, for their welcome for this Bill. The Bill is an important piece of legislation in a very complex area. While differing views have been expressed in relation to some aspects of the Bill I am glad to see that there is a general welcome for it.
I recommend this Bill to the House.
Question put and agreed to.
Committee Stage ordered for Wednesday, 17 December 1980.