This is a fundamental section. Before I deal with it, I should like to ask the Minister a basic question which will affect the manner in which I will be contributing to this discussion. Is the Minister flexible in this area? Is it possible that he will introduce changes arising out of what I or Deputy Horgan might suggest? I do not want to waste time. If the door is slammed tight I will not waste too much time.
Criminal Law (Rape) Bill, 1980: Committee Stage.
Question proposed: "That section 1 stand part of the Bill."
Changes in the definition?
I am asking the Minister generally, and I hope he will be flexible.
I always wish to have a flexible answer for the Deputy. The reference to sexual intercourse in subsection (2) relates to natural intercourse as construed in the 1861 Act mentioned in the subsection and is deemed to be complete on penetration. It is not considered that the definition of rape should be changed, or should be extended to include the other forms of sexual assault which have been mentioned.
I should like to make a brief case for such an extension. One is concerned primarily not with the semantics of the issue but with the varying penalties which apply. I should like to see the definition of "rape" broadened to include other acts of sexual assault which are tantamount to rape in their psychological and physical effects. Arguably the only difference is possibly that rape as we understand it, and as now legally defined, may give rise to pregnancy. Assaults with weapons of various kinds such as bottles and the other tragic paraphernalia which people who are sexually perverted employ cannot and do not. There is a group of people for whom such assaults are perhaps more serious than the crime of rape which is a most repugnant crime to any civilised people and which needs to be dealt with very firmly, in that it makes a savage assault on the most intimate parts of a person's dignity and physical being. Instead of facilitating people in evading the rigour of the law in this respect I should like to see a situation whereby those who would indulge in the kind of attack we are talking of could be charged with the crime of rape. It is not unique that legislation could be so interpreted. Among the material I collected by way of preparation for this Bill is a copy of legislation from the Australian Parliament. In this legislation the definition of rape includes a number of the permutations that have been referred to. It would not be necessary to change the Bill before us to include these permutations. What is at issue is the provision in section 1 (2) where references to sexual intercourse are construed in a certain way. The words "sexual intercourse" can be interpreted in a variety of ways. In this Australian Act, sexual intercourse includes the introduction of the penis of one person into the anus of another or into the mouth of another. These travesties should be open to being defined as rape. The same should apply to such travesties as assaults with bottles or broom handles, for instance, in the context in which we are speaking.
The problem is that a much more lenient attitude is adopted in relation to these other but equally serious types of assaults. Added to that is the possibility which has been argued by some women's groups, though not particularly in this country, that the more there may appear to be a censure of the crime of rape by way of severe sentences, there may arise a situation in which there are attempts to avoid rape as we understand it, that is, sexual intercourse in the normal way but against the consent of the party involved, but to engage in so-called indecent assault which carries lesser sentences. Therefore, I would argue strongly that the Minister should have regard to international experience with a view to amending the definition of rape which is very narrow and traditional and is not necessarily what is needed now when, unfortunately, there are various forms of sexual assault of a kind that most of us are abashed even to talk about.
The legislation does not meet that need but we have an obligation to women and to society as a whole to ensure that they are protected. Some of the figures that I have for these types of assault are horrific. Therefore, I would ask the Minister to reconsider the definition of rape and to consider the possibility of broadening that definition to include the travesties I have in mind. Failing that, we should ensure that the sentences which apply in these other areas are of equal severity.
I am not convinced that a system of long sentences is the best way of dealing with these offences but assuming for the moment that this is so, we should ensure that a person who attacks another sexually with an instrument of the kind to which I have referred and, in so doing, inflicts serious injury, both psychological and physical, is as guilty as is somebody found guilty of the crime of rape as we understand that crime. Just as the crime is of equal severity with the crime of rape, the sentence should be equally severe. It is likely that the factors which give rise to the criminality involved are the same in both cases. It is a question of one crime being accepted as being serious but the other being accepted as being serious also but to a lesser degree.
There are two points I should like to make on this section. The first relates to subsection (2). The key words in this subsection are the words "natural intercourse". I am presuming that natural intercourse in the context of the Bill is the type of intercourse from which pregnancy might result but at this level this Bill is not about pregnancy or about the possibility or the probability of pregnancy. It is a Bill which, among other things, is about the crime of rape which may or may not involve the possibility of pregnancy but which in its fundamental aspect is a violation through force or through threat of force of the bodily integrity of a woman, usually by a man. I consider it secondary as to what part of the body has been violated or indeed as to the nature of the instrument that may be used in such violation so long as the motivation is predominantly sexual and that the violation takes place under the threat of force.
I do not know how the problem can be resolved. My opinion is that the dividing lines that are drawn in this Bill as between one kind of offence and another are not nearly as clear as the law would wish them to be and that the law by trying to make distinctions in regard to the mind of a person committing the crime or to the mind of the victim of the crime, may have no substance whatever and is an attempt to split hairs. It might be possible to amend the subsection by including the words "or unnatural" after the word "natural". This begs the question of what is natural and of what is unnatural but the case made by many concerned individuals for widening the definition might be met by extending the definition of rape to include many acts which are intended as rape by the people who perpetrate them and which are experienced as rape by the victims. Therefore, I appeal to the Minister to consider widening the subsection in this way between now and Report Stage.
The other point relates to the first part of the definition section which reads:
"a rape offence" means any of the following, namely, rape, attempted rape, aiding, abetting, counselling and procuring rape or attempted rape, and incitement to rape
In relation to the aiding and abetting clause, can the Minister tell us where there is included, for example, the concealment or withholding of information after the rape by people who may have reason to know that rape has taken place? Normally I would imagine that in criminal terms, certainly in relation to murder, people can be accused of being accessories after the fact. I am wondering whether there is this provision also in relation to rape within the terms of the definition section.
In general one would hope that this would be the case but there may be problems, too, in this regard. For example, it may be the case that a man who has committed a rape is unable to conceal that information from his wife but that his wife is either unable or is terrified to inform the authorities of what has happened.
Progress reported; Committee to sit again.
Business suspended at 1.30 p.m. and resumed at 2.30 p.m.