Dáil Éireann debate -
Wednesday, 25 Feb 1981

Vol. 327 No. 2

Criminal Law (Rape) Bill, 1980: Committee Stage (Resumed).

Question again proposed: "That section 1 stand part of the Bill".

Mr. Horgan

On the last occasion I spent some time on one aspect of the inadequacies of the definition section and I now propose to deal with some others. In passing I should like to state that Deputy Eileen Desmond will be in the House for the greater part of this debate and, in common with other speakers, I hope we will have major contributions from the women Deputies on this proposed legislation. One of the major weaknesses of the section is that it does not clearly state, and probably even excludes, the possibility that any man can be charged with rape in respect of his wife. I do not know why we have not taken the opportunity in this section to make it absolutely clear that this in fact can be the case. Maybe it is because of some delicacy that would not have us speak of these matters. I cannot think of any other reason because nobody can read the background or the history of relationships between men and women without becoming painfully aware that marital rape while not necessarily common is certainly possible.

Several jurisdictions have already explicitly written into their legal code a definition of rape which will include marital rape, rape by the husband on the wife. We should be adult enough now to take the same step and put beyond doubt the fact that this is at least possible. We are all aware of the fact that intimidation of one kind or another can take place within marriage. That is bad enough at the best of times but when that intimidation is extended directly to the area of sexual relationship there is no realistic argument I can think of for calling that other than rape. We should not be pushing this problem under the carpet by pretending that because a man and woman are married the man may not rape the woman within the context of that relationship.

Members who have been reading the papers over the last few weeks will know of a case in another juridiction when in what was regarded as a milestone decision by a court a man was found guilty of having raped his wife in a situation in which several of his friends held the unfortunate woman down and he assaulted her with a knife before raping her.

If we are not going to be honest about it and include the possibility of marital rape in our rape legislation we will be conniving at a situation in which that kind of thing could happen in this jurisdiction and that man could not be charged with rape. He would be charged with other things, of course; he would be charged with assault, but it is almost inescapable that anybody who commits a rape can also be charged with commiting an assault because an assault of some kind is usually a preliminary to the rape. In this particular case I am thinking of, the assault was actually carried out with a weapon. If that assault and if that rape had been carried out within this jurisdiction, as I understand the law, that man would have been charged with that assault but not with the rape which followed it and to which the assault was an indispensable preliminary.

Of course it is difficult to prove marital rape. It is difficult to prove any kind of rape but anybody who thinks that women, married or not, take great pleasure in malicious prosecutions for rapes that never took place has very little understanding, much less experience, of the reality of the relationships that are involved. We must remember that one of the main facts of life in connection with rape is that the man is stronger than the woman and that the degree of physical intimidation which is involved is usually part and parcel of the act of rape. Anybody who believes that physical intimidation does not take place within marriage as a preliminary to sexual intercourse is not living in the real world. And it is my contention that sexual intercourse which takes place as a result of physical intimidation, under the threat of violence or actual violence, should be treated as rape whether it takes place within marriage or outside it.

I invite the Minister between now and Report Stage to consider this definition section very carefully, seriously and soberly with a view to considering whether or not women who are married should not be afforded the same kind of protection against rape as women who are not married. I believe that if the Minister takes a positive decision on this it will be one which will certainly redound to his credit and perhaps also to ours as a House and as a country in Europe, amongst jurisdictions which are slowly and very painfully facing up to this very difficult problem.

There is another aspect of the definition section to which one should refer as well, that is, in subsection (3). As I understand subsection (3) there is an automatic assumption that a young person of under 14 is not capable of committing rape. We are all aware that the age of puberty both in young men and women is becoming lower all the time, that young men and women are becoming sexually mature at an earlier age than was ever the case before. While it would be unusual, to say the least, that in the absence of such a provision anybody of 14 or younger would be accused of rape, I am sure most medical practitioners, most psychologists and most other people in the medical profession will tell you that this legal presumption is probably, in strict legal terms, now out of date. The situation might be met if this presumption, which is a presumption in law, were made a rebuttable one and if evidence that sexual intercourse actually took place could be adduced to rebut that presumption. Otherwise you would have a situation — unusual, I agree; unlikely to a very high degree — in which a young male person had achieved sexual intercourse in a manner which laid him open to an accusation of rape but who, simply because of his age, was regarded as not having committed that particular crime.

Questions of age are always very difficult in law. Many of us will be familiar with the situation in Britain many years ago when two young people were accused of murder. At that time in Britain the death penalty existed, not just for murder, but for aiding and abetting a murder. On that occasion the young person who had pulled the trigger of the gun which had fired a shot which killed a man got off with his life while the person who was with him and who had not fired the shot, who had not killed the policeman, was adjudged guilty of murder and was hanged, all because of a particular cut-off point in relation to age and responsibility. I think that case was very influential in Britain in the end in the general campaign for the abolition of capital punishment because it showed that the strict cut-offs in relation to age and responsibility very often have the effect of creating more injustices than they were intended to solve. The fact is that if a woman is physically assaulted, violated, by somebody who is under this technical age of 14, it is not going to be of any consolation to her or her family that technically she was not raped because actually she was, she knows it, and the person who did it will know as well.

I would hope that the remarks I am making would not be taken out of any kind of context because we are talking about exceptional situations, both in terms of marital rape and in terms of the possibility of rape by people who are under this particular age. But I do believe that because it is unlikely that we will be dealing with this kind of legislation again for quite some time, we should make every possible effort to tidy it up, make it as comprehensive as possible, so that it will deal fairly and squarely with all the legitimate issues with which it might be expected to deal.

There is one final point, that is, in relation to aiding, abetting, counselling or procuring rape which, of course, is also a rape offence under this definition section. There may be situations in which married men who commit rape offences may be aware that their wives know what has happened, but are in a position to intimidate their wives, or indeed other members of their family who may be aware that an offence has taken place, to the degree that their wives, or the other people involved, are unwilling, unable or too terrified to go to the police with the information that a crime has been committed.

It would be a real miscarriage of justice if, in situations like these, innocent members of the family of somebody who has committed a rape offence should in any way be held responsible for aiding or abetting or acting as accessory after the fact in circumstances in which the same kind of physical intimidation that was preliminary to the rape offence in the first place was used to conceal information about it, afterwards. So I would strongly appeal to the Minister to consider, between now and Report Stage, widening the definition of rape and making it clear in particular that rape can exist within marriage as well as outside it.

This is not intended in any way as a reflection on the hundreds of thousands of decent, ordinary mutual marriage relationships which form the vast bulk of Irish marriage experience and indeed the marriage experience of most countries in the world, but it is to admit and to recognise, as I have said, that if we think it important to provide this degree of protection to women outside marriage we should apply it equally to women inside marriage.

Mr. Doherty

On the last occasion Deputy Keating commented that he would like to see the definition of sexual intercourse include oral and anal penetration and the use of other foreign bodies such as bottles and sticks. He said that the reason why he would like to see this change is to bring acts of that type within the scope of the crime of rape and to subject them to the same penalty. I have stated on a number of occasions and emphasised the Government's deep concern about cases of indecent assault on women. I have also indicated that the Government feel that the best way of dealing with the problem is not by changing the traditional and long established definition of rape but by increasing the penalty for indecent assault which we have suggested and proposed in section 10 of the present Bill. It is important to realise that the crime of rape carries the possible result of pregnancy and in that regard natural intercourse is an essential ingredient. Certainly that possibility of pregnancy makes it very different from any other type of crime in this category and of course the rape offence means any of the following, as stated in section 1: rape, aiding, abetting, counselling and procuring rape or attempting rape, and incitement to rape. In that regard there is adequate provision in the definition and certainly to retain the definition of rape as it is commonly known and understood is in the interests of the victim.

Deputy Horgan in quoting the definition of a rape offence on the last occasion asked that there be included in section 1(1), for example, the concealment or withholding of information after the rape by people who may have reason to know that rape has taken place.

Mr. Horgan

I asked was it included. I did not ask to have it included.

Mr. Doherty

It is not included at all. Since rape is a felony the conduct referred to may, according to the circumstances, amount to being an accessory after the fact of felony or to misprison of felony but neither of these offences is included in the definition of rape offence. An accessory after the fact of felony is one who, knowing another to have committed a felony, aids him to escape apprehension or prosecution and, misprison of felony consists of concealing or procuring the concealment of a felony known to have been committed. Prosecutions for being an accessory after the fact to felony take place from time to time, but prosecutions of misprison of felony are extremely rare and the existence of the offence was disputed in England until the decision of the House of Lords in 1961.

Deputy Horgan raised the question of marital rape. Again in Britain this was examined in 1976 and recommendations were made recently but still the law has not been changed in that respect. Marital rape is a very delicate and difficult area to legislate in, as the Deputy will appreciate. We must take into consideration a number of things: the question of the proof and the fact that the law will be required to scrutinise a very intimate area of marital relationship and marital life. For that reason it is not something that we could proceed to legislate for without giving very serious attention to it. This is borne out where the British Government have been concerned. It is fair to state — and I have found this in speaking to a considerable number of women's groups and deputations — that, while there was concern expressed about this particular area, the number of complaints that have been received from women which stated that there was marital rape are very few. In fairness it was said that it might be on the increase in recent years. But at no time were any of the deputations in a position to tell me if such complaints had been reported to the Garda, so it is clearly evident that——

Mr. Keating

What would be the point?

Mr. Doherty

Why not?

Mr. Keating

Why would they be reported when it is not a crime?

Mr. Doherty

They could report them on the basis that assautt or even indecent assault could be proceeded with. Reports of them are few, but if they occur then we in this House would be delighted to think that they would be reported. The existing penalties for assault and the proposed increase of the penalty for indecent assault will clearly show to wives who are in such a difficult and horrific situation that serious penalty is liable to be handed down on conviction if they were prepared to report these matters to the Garda. Perhaps changing attitudes and more modern attitudes in this area might ensure that. Certainly in this Bill we are updating and modernising our attitude and clearly indicating our awareness of the fact that there can be very aggravated indecent assaults. But it is now the situation that the victims of these assaults must report them to the investigating authorities.

Deputy Horgan referred to the question of boys under 14 years of age. The Council for the Status of Women suggested in their submission that no person, by reason of his age, should be presumed to be incapable of sexual intercourse. The Bill proposes to maintain the common law rule in this regard. The case for removing this rule is simply that it is anomalous. At the same time the point is of very little importance in practice especially since a boy who has in fact committed or attempted to commit rape could be convicted of indecent assault and if the rule was changed and a boy under 14 was convicted of the rape offence he would, in all likelihood, be dealt with in the courts in the same way as at present. As to marital rape, I might add for the information of the House that in South Australia, Scandinavia, some states in the US and some of the Eastern European countries, have legislated for rape within marriage.

Mr Keating

There are a number of sticky points in section 1 and I do not think the Minister of State has answered fairly the question in relation to section 1(1) about the interpretation. We might deal with that more extensively in section 2 when we get down to the meaning of rape. For example, to say that the penalty for indecent asaault has been increased in the Bill and that that will give adequate protection to women who have not been raped in accordance with the technical definition, which obviously is penial penetration and proof of that, simply is not good enough. The Minister knows that there are people who for one reason or another indulge in sexual violence of a nature which in some cases in terms of its effects, physical, psychological, traumatic and so on, is worse than what we might call traditional intercourse. There might even be people who are perverted, sick, masochistic or brutal in some way or other and who have carried on in this way and injured in every respect but because they have nor completed the act of sexual penetration they are not open to be convicted with the same severity and sanction as somebody who has committed sexual intercourse by definition of the fact that they have not managed to have this act of physical consummation.

That is not good enough. If the Minister were saying, for example, that the punishment or penalty for indecent assault was to be increased to the same level there might be a case for accepting what he says and it would be merely almost a question of semantics, but that is not the case. The position in section 10 is that the punishment for indecent assault in increased from two years to ten years. The reality, as the Minister knows, is that it is still very possible and it does happen that somebody is brutalised for whom our protection should be forthcoming.

I can see problems with increasing the punishment for indecent assault also because of course the definition of indecent assault is extremely nebulous and arguably could range from kissing another person against that person's will upwards. That obviously is a problem if you are going to talk about the possibility of giving life imprisonment to somebody for indecent assault, but there is a matter for the courts and for further definition of indecent assault. Available research shows that in the climate and environment that we have today the act of indecent assault carried to certain extremes for the gratification it affords and the brutalising effect it has on the victim, weighed as a crime which is at least as repugnant and unacceptable as the most repugnant act of rape, should carry at least the possibility of the same sentence. At all times I assume that long and typical jail sentences are appropriate for this kind of crime. That is an assumption and I am not sure whether it is so, but as long as we have that approach to it we have a choice. Either broaden the definition of rape to include these acts of sexual violation which are increasing in number, or increase the penalty for indecent assault to ensure that there is justice in this area. The fact that the would-be attacker is interrupted or is impotent or assuages his sexual needs in some horrific way which does not amount to traditional sexual intercourse as we understand it should not be the grounds for a less serious and grave approach to the actual sexual violence involved. Accordingly, I would not accept what the Minister says in that regard.

He mentioned also that the act of sexual intercourse being open to pregnancy somehow is a feature which makes it more appropriate for a heavier sentence. The pregnancy is a by-product, is not thought about or wanted probably by either party. To me it is in many respects irrelevant to the manner in which we should view the severity of the crime, unless it can be proven in some way — which is extremely unlikely — that the rape was intended to make the victim pregnant, but I do not see how that could be.

Mr. Doherty

Not even in marriage?

Mr. Keating

No. The pregnancy argument is a physical characteristic of one kind of sexual assault. It is a by-product — but those are not very good words to use — a result which is at one remove from the act of sexual violence and should not be used as a justification for taking a different view of the attack. The evidence available to us is that sexual violence is increasing — we need not go into the reasons for that on the Committee Stage of this Bill. The Minister says that in his discussions with some of the interest groups they have not been able to tell him, for example, of the increasing statistics in relation to alleged rapes within marriage. I am not surprised at that because the paucity of statistics in this area is horrific anyway. People are not keeping statistics apart from specific reportages to the Garda of rapes, which, as we all know, are probably only the tip of the iceberg, for a number of reasons. In relation to that I ask the Minister to reconsider the question of the definition. If he does not do that I ask him to accept the possibility of increasing the punishment for indecent assault in the context of the kind of sexual violence I am talking about to compare with the punishment potential of the traditional act of sexual intercourse. That would seem to make it at least just from that point of view.

Section 1 (2) is a continuation of a very narrow definition of what is eligible to be termed rape under the Bill and I would consider it to be much too narrow. I might as well deal with all of these subsections while I am on my feet. Section 1 (3) relates inter alia to the question of marital rape which has been raised by everybody in the House who spoke on this Bill so far. I do not understand what the problem is in this regard. There cannot be any justification for accepting that there should be a difference in our approach, as people concerned with justice, depending on the relationship of one party with the other. If, for example, we had legislation which proposed certain punishments in the event of a fellow of 17 years of age mugging a middle-aged woman but which would not apply if the woman he mugged were his mother, it would be laughed out of court.

The same logic applies here. The only spurious justification which the literature advances very tentatively in these cases is that there has been in the past a traditional notion that a woman somehow was the subjugate property of her husband and that interfering in this area was, as the Minister said, opening up areas of intimate scrutiny. I do not want overbearing scrutiny in any area not deserving of it but the fact that the parties are married to one another should not mean that a woman has not got the right to be treated with justice.

There are many areas in relation to marriage where the Government and the law insist on insinuating themselves. It does not relieve us of the important central principle here — that this Bill is designed to protect people. I honestly cannot and will not accept that a situation should be tolerated where any woman, merely because of her status, should get a different standard of justice, which is what this Bill does. That situation is archaic and should be changed. It is a practice which has grown up in common law over the years and I am disappointed that the Bill proposes to continue it. Nobody expects that people who are married would have frequent recourse to the law. If that is happening in a marriage or in an extra-marital relationship, there may be other responses appropriate to it which might be better than dragging one's spouse to court. A dual standard of justice is proposed in the Bill.

I will give the Minister examples of how nonsensical that provision is. Common law marriages are increasing. We have the ludicrous situation where the party who have tied the knot legally as it were — a woman in that situation who has been raped by her husband has an inferior standing in law than another couple who are living together but who are not married. Let us assume that a woman is aware that her husband has venereal disease or some kind of congenital defect which the act of sexual intercourse could transmit to her. There is no qualification about her position. Suppose the man was a drug addict, or had problems of one kind or another, which clearly made him a person with whom sexual relations might not be desirable or indeed could be very dangerous to the health and welfare of his wife. Are we suggesting this woman should, like an object, allow herself to be subjugated to repeated sexual assault against her will because she is married? That is what the Bill proposes. It is barbaric. A married woman should have the same rights as any other woman and anyone who advocates the contrary is guilty of extreme double standards.

Like Deputy Horgan, I do not want to elevate this beyond the context and I do not expect it is common or frequent. However, the fact that cases are not reported is not evidence it is not common. I know of instances where the drunken husband comes home and insists on imposing his will on his wife. A certain tradition and acceptance has grown up that to oppose that kind of behaviour will be met by violence, brutality and beatings. That woman deserves our protection.

This notion dates back basically as far as the 1650s when Hale in his Pleas of the Crown wrote

The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.

This is a report commissioned by the British Government and published by Her Majesty's Stationery Office in 1975. It is a report of the Policy Advisory Committee on Sexual Offences, page 12, paragraph 29.

The critics of this law point out that since Hale's time wives can retract this consent. They can get divorces and separation orders. The courts have had to recognise in relation to rape modern changes in attitude towards marriage.

It is a lot of nonsense to talk about this being a sacred area in which the law does not intervene. We do it all the time, whether in relation to the protection of children, to income tax assessment or any other area of family law. The Minister or his senior colleague two days ago introduced intimate changes in relation to family law, some of which had been demanded by this side of the House a year ago. The alleged sanctity and intimacy argument is spurious and does not cut any ice.

The new recognition of changing attitudes to marriage, particularly to the status of women, underlining their equal standing in law and their equal dignity, should afford them the protection they need. There are people who, obviously, will have qualms about this. They may fear there will be an increase in the number of cases reported. I hope not because in other contexts we should do our best to ensure that marriages which are in difficulty should be helped and that marriages which are doomed to failure should not take place. It is not just a single facet we are talking about. I argue strongly for equality of legal protection for all women, regardless of whether they are married or single. I do not accept the case the Minister has advanced in this regard. The Minister said the number of cases reported to him by one of the groups that came to see him were interpreted to be few and rare.

Mr. Doherty

Where women who had been brutalised came along. I have the statistics here and the number is quite small.

Mr. Keating

The statistics for any kind of rape is quite small, because for example, there is a centre in Dublin——

Mr. Doherty

We hope the Bill will solve that. I am satisfied it will.

Mr. Keating

Regardless of the numbers, it is the principle one wants to get right. It is no solace to know there are few or more complaints. There should not be even one woman who has to suffer sexual assault from a man, whether he is her husband or not. There are degrees of marital relationships. Is it right that a woman who is separated from her husband should fear that her door will be broken down at night and that she will be raped by her husband? Is she not entitled to the same protection as other women? Let us make women equal under the law. That is all we are asking for.

Regarding subsection (3), I have certain qualms about the age limit. Let us at least point to the fact that there is an inherent anomaly in the Bill in this regard. The age of criminal responsibility in this jurisdiction remains, so far as I know, at the extraordinarily low age of 7, the lowest in Europe. I am sure all sides of the House will agree that that situation is much in need of review. However, we are talking here about the age of 14 as being the appropriate age below which a person would not be capable of being charged with rape. Why should there be any age set? Nobody wishes to see children being brought before the courts on certain charges but taking into account the presumption that sexual maturity is necessary before a person can commit the crime of rape, only those who are psychologically and physically suited to being able to commit such a crime would be before the courts in the first place. I am just wondering whether, if we must set age limit, 14 is the right one. At any rate, this provision needs more justification than we have for it.

I am aware of one case in recent times in which a most brutal act of rape was committed and in which were involved a number of young people, some of whom had not even reached the teenage years but all of whom knew what they were doing. I am not interested in having children locked up in prisons but at the same time we know that any age cut-off will make for certain injustices. People of 15 or 16 might be guilty of rape without knowing fully what they were doing but others of only 12 or 13 might know very well what they were doing. I am wondering whether there is any way in which we could allow those prosecuting — perhaps the Director of Public Prosecutions — to become involved in this question. That might set a precedent which would apply across the board but that might not be so bad, either.

I am committed unequivocally so far as we are concerned to the two main elements which are causing difficulty in section 1, first there is the question either of changing the definition to include other acts of sexual denigration and abuse or at the very least of increasing the sentence in respect of indecent assault so as to make that sentence as severe as the sentence for the crime of rape.

The other point is that the status of the parties involved should not relate to their capacity to seek justice in law. In other words, any woman who is raped should be capable of taking an action against the person or person who raped her. If the Bill goes through as it is now, I have no doubt but that if some enterprising woman — and fortunately we have had some enterprising women — should bring the case to the European Court on Human Rights she would win. I say this because the omission of the provision I am talking about goes against every concept of natural justice. Why should a contractual relationship deprive a woman of the same right to seek justice as would be available to a couple who, say, were co-habitating or to single people or to couples who were separated legally? I appeal to the Minister to reconsider this question.

Mr. Horgan

I am not clear as to what is the maximum penalty for rape.

Mr. Doherty

It is life imprisonment.

Mr. Horgan

Presumably the reason for differentiation between the maximum sentence for rape and the maximum sentence for indecent assault is in relation to the severity of the case. What we have been arguing is that equal cases demanded equal treatment and that a rape is a rape is a rape, to paraphrase another expression.

I listened with considerable care to the Minister and I think that there is a major logical flaw in his argument. That logical flaw can be identified if one analyses what he said in relation to the first part of our problem which is the definition of rape and to the second part of our problem which is the question of whether any act within marriage can be construed as rape. In relation to the first of these matters the Minister has insisted that any of the acts described by Deputy Keating and by myself cannot be construed as rape because natural intercourse did not take place. In relation to the second point he is saying that a particular sexual assault by a married man against his wife is not rape despite the fact that natural intercourse did take place. There is a fundamental inconsistency between those two cases. We could put the matter the other way around and talk about it in terms of aggravated indecent assault. In the case of the first example it was aggravated indecent assault because natural intercourse did not take place while in relation to the marital case it was aggravated indecent assault though natural intercourse did take place. What is the difference? The difference is a piece of paper known as a marriage licence. I am sure that most women who sign a marriage licence and thereby put themselves in some form of contractual relationship with their husbands do so generally speaking on the basis of acquiring rights, not of signing them away.

Mr. Keating

Hear, hear.

Mr. Horgan

How would anyone describe as other than rape the kind of thing we have been talking about where it happens within marriage? Is it to be known as making love, to use a perversion of that word?

The irony of the case I quoted earlier and which happened in another jurisdiction whereby a man assaulted his wife physically and then raped her while his friends held her down is that he can be charged and sentenced for everything involved except the actual act to which the whole enterprise is directed. This is simply because of the marriage certificate. According to what Deputy Keating has said there is in common law the presumption of consent on the part of the wife. There may or may not be such presumption but even if we admit that there is we are here making it unmistakable that that presumption cannot be rebutted by any evidence. Surely it is part of common law that presumptions can be rebutted. It is not the Minister's job to interpret the law. That is a matter for the courts but I would at least like to hear his observations on the possibility of a judge within the common law accepting evidence to rebut that presumption of consent.

In relation to his first definition of what constituted rape the Minister said that natural intercourse was important because of there being involved the possibility of conception. He said that this made the crime more serious. I could not agree more but the only difference between the two cases we are talking about, that is, one outside marriage and one within marriage, is that within a marriage if conception takes place the child that is born is legitimate whereas a child born outside marriage is illegitimate. There are other anomalies in this regard. The child of any married woman is presumed to be the child of her husband unless there is strong evidence to the contrary. That is not something I wish to go into now but when we are talking about this matter we must accept that down through the centuries questions of legitimacy and of illegitimacy have had far more to do with property and the transmission of property rights than with the question of the quality of the physical relationship between the parents of a child.

In the last analysis the only grounds on which I can detect the Minister resting his case are those relating to questions of delicacy and not wanting to interfere in the intimate sphere between husband and wife. I can assure the Minister, as I am sure Deputy Keating can also, that if a married woman is put to the point of going to a Garda station or a Counsel or a friendly lawyer to allege that her husband has effectively raped her, she will not thank anybody if she is told that questions of delicacy forbid this particular charge being brought against some body with whom she has a certain legal relationship because what has taken place has been an act of the grosses indelicacy and one which is normally called rape and one which should surely be described and treated as rape under the section.

Mr. Doherty

In his reference to marital rape Deputy Keating is failing to recognise — I do not believe it is intentional — that apart from the penalty for indecent assault, which will be ten years, under the Bill there is also a penalty for assault with intent to cause grievous bodily harm, which carries life imprisonment, the same penalty provided for rape. If a married woman should be subjected by her husband to intercourse while he had venereal disease, he being under the influence of drugs or drink, that demand of the husband would clearly be without her consent.

Mr. Keating

That is right.

Mr. Doherty

In that situation it would be a matter for the court to decide whether actual rape occurred or not.

Mr. Keating

Is the Minister talking about the woman's husband?

Mr. Doherty

I am talking about the woman herself who would be subjected to intercourse while she withheld consent because, as the Deputy suggested, of a venereal complaint which would be likely to contaminate her system, because he was under the influence of drink or drugs or some other influence that would require her to withdraw her consent. In that situation it might clearly be a matter for the court to decide whether the act committed of natural intercourse, without her consent, was rape.

Mr. Keating

Is the Minister suggesting that there are grounds in the hypothetical and extreme case outlined whereby an act of non-consenting sexual intercourse in the circumstances we spoke about would in fact be rape?

Mr. Doherty

In the particular circumstances the Deputy mentions I make the point that it might be and is a matter for the court to decide whether rape occurred.

Mr. Keating

How could that be?

Mr. Doherty

Clearly because natural intercourse would have occurred on the one hand but consent did not exist on the other hand.

Mr. Keating

But if there is consent it is not rape.

Mr. Doherty

The Deputy suggested that consent would be likely to be withdrawn or not existing where a woman was aware that her husband had venereal disease.

Mr. Keating

We are only talking here about occasions where a husband against the wishes of his wife insists——

Mr. Doherty

The Deputy gave specific instances and I am dealing with them. If the Deputy has another instance I shall certainly listen to it.

Mr. Keating

I contend that if we can establish any area where a husband can be charged with rape against his wife and if the Minister would accept that, there is no longer an argument.

Mr. Doherty

The Deputy is suggesting on the one hand that there be a provision in the definition of rape for rape within marriage. On the other hand he has instanced a situation in marriage where consent would be withdrawn. I am stating that in that situation it would be in my opinion a matter for the courts——

Mr. Keating

That it could be rape?

Mr. Doherty

I am not prepared to presume or anticipate the court's view in that case. I have given the reasons why the provision for rape within marriage should not be included in this Bill. I am prepared to state also that this is an area in which the further investigation which is ongoing in Britain might be of great assistance to us here. That investigation would not preclude us from examining that area further and endeavouring to find solutions if possible.

Mr. Keating

I should like a little more clarification. Is the Minister now conceding or suggesting that there are circumstances in which in the context of a married couple a court could decide that the husband had in fact raped the wife?

Mr. Doherty

I have said that it could be a matter for the court to decide.

Mr. Keating

Deputy Horgan's case and mine from the beginning is that there are no circumstances by virtue of the marital status of the woman——

Mr. Doherty

The Deputy has given a number of instances and I have said in reply that it would be a matter for the court to decide should such a prosecution be brought, but in the context of the Bill it is not proposed statutorily to provide for marital rape.

Mr. Keating

Is the Minister conceding that there are cases in which it is possible that the courts could decide that the appropriate——

Mr. Doherty

I would be very naive to presume that outrageous acts are not possible inside marriage and I have not stated that at any time.

Mr. Keating

I am talking about the charge of rape. I want to be clear about this because if we can get agreement on this there is no great problem in this respect. Is the Minister saying — certainly this is what I interpret him as saying — that there are cases where in relation to a married couple — there may be extreme circumstances but that is secondary — there are some cases in which it is conceivable or possible that a husband can be charged with rape of his wife. Could I get an answer to that question? That is what I presume the Minister is saying. Is that what he is, in fact, saying?

Mr. Horgan

I have a related question which the Minister was trying to come to meet, but he did not come very far. He said, if I heard him correctly, that it would be open to a court to decide, first of all, whether consent to intercourse had been withheld by a married woman in respect of her husband. Then he went on to say, in relation to rape, that it was open to the court to decide whether such a prosecution should be brought. As I understand the legal system, it is not the judges who bring prosecutions, but the Director of Public Prosecutions. Judges do not have the right to convict people on any charges other than charges on which they have been brought before the court. There are occasions on which judges allow people to plead guilty to lesser charges, but in those cases more serious charges are withdrawn by the prosecution.

It seems to me that there is a circularity about the Minister's case. He seems to be saying that, if consent is withheld in a specific kind of circumstances, it would be open to the court to find that a married man was guilty of raping his wife. We are arguing that the legal system precludes the possibility of judges changing charges in mid-stream. The most they could do would be to refer the case back to the Director of Public Prosecutions. When it got back to the DPP, could he, in the light of this Bill, institute a charge of rape? I do not think he could.

Mr. Keating

He could not.

Mr. Doherty

The point I was making in reply to Deputy Keating was that in certain circumstances the court might hold that rape had occurred between husband and wife — in certain circumstances. According to English law, these circumstances include cases of a separation agreement with a non-cohabitation clause between husband and wife, a decree nisi of divorce, or a decree of judicial separation. The Deputy is aware of these situations, I am sure.

Mr. Keating

They are not married people, though.

Mr. Doherty

These are situations where the court has held a particular view. I further suggest that the court might in certain other situations hold the same view. I think what I am saying is quite clear and understandable.

It is also fair to say that it is a matter for the Director of Public Prosecutions to decide whether the prosecution should be brought. In his wisdom, he might decide that a prosecution should be brought. I am not suggesting otherwise. This is in reply to specific matters which the Deputy instanced. I have accepted, and do accept, that this is a very serious and delicate area; and I do not say that gross indecent assault or serious bodily harm, or intercourse without consent of the wife, does not occur within marriage. What I am saying is that this is an area where it is very difficult to obtain the proofs. We have to be very careful when legislating for this area. I have also referred to the difficulties which may arise in relation to the effects of such legislation on what we know and understand to be the traditional Irish concept of marriage.

Deputy Keating mentioned the case of a common-law marriage and the question of rape within that type of marriage. Common law marriage is not recognised under our law. It would be the same as if two people were not joined in marriage and there was an act committed under the proposed definition, without consent. Again it would be, for the purpose of this Bill, a rape.

Mr. Keating

I refer the Minister to a quotation from Women's Rights—A Practical Guide by Anna Coote and Tess Gill, 1977, page 205. This, simply paraphrased, says that at the moment a husband cannot be found guilty of raping his wife unless separation or divorce proceedings have been started. That is under the English jurisdiction.

We must be clear about this and, with great respect, I do not wish to abuse the Minister's humanity in this regard. I feel that he wants to help us if he can at all. The facts are that it is not a matter for the court to decide on the basis of evidence submitted whether X, Y, or Z charge should be promoted. It is not a matter either of any doubt or ambiguity. I have said already and repeat now — and I want the Minister to tell me whether I am right or wrong — that the fact is that marital status in itself implies that we have this dual standard of justice, that a woman who is not married can have any man charged for raping her. A wife cannot do so, has not done so ever, and will not do so ever, unless this proposed Bill is changed.

I have submitted to the Minister two examples of how nonsensical this provision is. The first is where a man known to be, for example, a sufferer from veneral disease or somebody with some kind of endemic or congenital defect by force of his will insist on communicating to his wife or runs the risk of communicating to his wife. That woman is not allowed to sue him for rape. That is the fact. Nothing which the Minister has said does any more than reveal his genuine human concern and compassion at the situation. However, the Bill which he is promoting changes nothing since Hale's law of 1605, which says, effectively in a sentence, that the man owns the woman in a marital situation.

Mr. O'Doherty

The Deputy knows that this has never been the case. If he has one instance of it, I should be interested to hear it.

Mr. Keating

The facts are that the thrust of common law in this respect still depends upon the territorial right or whatever the rationale is. I am not concerned about 350 years ago. All I am saying is that at the moment a woman in marriage has fewer rights than the single woman in this respect. That is wrong: it should be changed.

For example, take the case of a woman living apart from her husband, though no legal separation may have been obtained — and, tragically, this is increasingly common in our society — where her husband kicks the door in at night and forces her to have sexual intercourse. That woman, living apart from her husband and perhaps in fear of him, cannot have him charged for rape. Where it is clear that a woman's physical or mental well being could be detrimentally impacted upon by sexual relations, where she does not want them, rejects them and rebuts any proposals, nevertheless, in a situation where it is forced upon her that woman does not have the same right as a single woman. The reality is that the marriage contract in this respect, as Deputy Horgan rightly pointed out, signs away rights. The continuation of this proposal in the current Bill is, in fact, an encouragement to people not to get married.

An Ceann Comhairle

I do not like interrupting the Deputy, but we have a considerable amount of repetition.

Mr. Keating

The sticking points appear to be in the first section. If we could get over that, the rest will run smoothly. What is fundamental now is not so much a difference of view between the Minister and myself but an apparent similarity of view, though that is not borne out by the law. I want to be clear about this and ask it in one sentence. Is the Minister saying that there are circumstances under which a husband may be charged with rape?

Mr. Doherty

I am saying that there are certain established exceptions in the British courts at the moment which have been evidenced in the past.

Mr. Keating

Yes or no?

Mr. Doherty

I do not think it would be fair to the Deputy to give a yes or no answer nor would it be fair to the House.

Mr. Keating

That is what I am looking for.

Mr. Doherty

For that reason I wish to make a further point. There have been no reported cases in this country——

Mr. Keating

That is irrelevant.

Mr. Doherty

It is only by an opportunity to test the reality——

Mr. Keating

Why would they report it?

Mr. Doherty

We have a situation which resulted in the Government bringing in this Bill and we had difficulty getting rape victims to report the matter. That is why after very careful consideration this Bill is before the House as a matter of urgency.

I want to assure the Deputy that, where there are exceptions known in Britain relating to certain types of occurrences within marriage, it is possible in future in this country that that type of case would come before our courts and, in relation to some of the matters raised by the Deputy, the court might hold that, if a husband who suffered from venereal disease proceeded to subject his wife to intercourse without her consent, it was rape and accordingly convict.

Mr. Keating

I dispute that completely. With respect, the Minister is misinformed.

Mr. Doherty

No. The Deputy is misinterpreting the valuable information I am trying to convey.

Mr. Keating

The only interpretation I can make of what the Minister says is that there are circumstances in which a husband may be open to be charged with rape. I suggest that that is not the case. If the English language means anything, the Minister is telling me that in some circumstances, under some process, the husband can be charged with rape. I am informing the Minister that that is not possible. The Minister quoted British experience at great length——

Mr. Doherty

As I stated originally——

Mr. Keating

I am sorry if I am misinterpreting the Minister.

Mr. Doherty

I do not wish to suggest that the Deputy is misinterpreting me but I can take no other view. I referred to certain circumstances which the Deputy instanced and I acknowledged that in that type of circumstance if the wife refused consent, it is very likely that the court would hold that rape occured.

Mr. Keating

Under what law would he be charged?

Mr. Doherty

Under the laws we have at the moment and under the law when this legislation is enacted.

Mr. Keating

Has it ever happened?

Mr. Doherty

I told the Deputy there have not been any cases in this country but there are daily situations where people are constantly availing of rights which may have been in existence for many years but of which they did not know.

Mr. Keating

If the Minister is suggesting that, by a process of having gone through the Supreme Court or the European Court of Human Rights, a change in the law would be enforced which would give women equality of rights under this Bill, I would agree with him. But it is accepted that because a woman is married, and regardless of the relationship between her husband and herself, and simply because there is a marriage contract recognised by the State, she does not have the same rights as a single woman who is raped.

The Minister quotes British examples. There is so little research done in most of these areas in this country that we have to look somewhere for guidelines. Why does the Minister think that in 1975 the Policy Advisory Committee told the Criminal Law Revision Committee, at paragraph 32, of their report that in their opinion there was no longer sufficient ground to justify the husband's exemption and that it should be removed? All the evidence, all the literature and the understanding among lawyers is that there is an exemption in relation to husbands. A husband has never been charged, and cannot be charged under this Bill, with the rape of his wife. Am I correct?

Mr. Doherty

The Deputy is not correct. The instance the Deputy gave could not be a basis——

Mr. Keating

There was a husband and wife——

Mr. Doherty

Where a husband and wife are concerned and a wife withdraws her consent in the instance given by the Deputy——

Mr. Keating

There is no rape unless there is no consent. We are talking about cases where consent does not exist. I am only talking about husbands and wives.

Mr. Doherty

A case where consent does not exist could be if the husband had venereal disease——

Mr. Keating

An extreme example.

Mr. Doherty

It is most unlikely that a sane wife would be prepared to put herself at risk and for that reason she would withdraw her consent. In that case the Deputy is suggesting the husband could not be charged with rape. Besides the cases we know of outside the country, and we do not have any reported in this country, it is possible that the decision would be the same here also.

Mr. Keating

Could the husband be charged with rape?

Mr. Doherty

Very likely.

Mr. Keating

That is not possible and that is why we are looking for a change in this section.

Mr. Doherty

I told the Deputy that in the definition there are no circumstances where we can provide for the inclusion of rape within marriage because first a number of things have to be established. I have already referred to them and I will not bore the House by repeating them. I want the House to understand that this is an area the Government and I will be particularly anxious to examine. I would not be so naive as not to believe that many horrific acts, some of them incomprehensible, can occur in marriage. I will certainly monitor and very closely examine what can be done by way of legislation in relation to that very delicate and intimate area.

Mr. Keating

We should not have to discuss for half-an-hour what we think we are saying. I think the Minister is saying that he believes this Bill would facilitate a charge of rape by a man in the circumstances I outlined regardless of the marital or contractual arrangements between husband and wife. If that is the underlying principle of the Bill, I am at one with the Minister. But I do not think this section facilitates that. That is a significant departure. The Minister is saying that in some circumstances the door is open for a wife, if she feels that is the best way to go about it, to take action for rape the some as a single person could. Deputy Horgan, Deputy Desmond and anybody else concerned about this matter would be willing to welcome that advance on the basis that we are treating people as equal under the law regardless of their marital status.

Mr. Doherty

The Bill does not change the law.

Mr. Keating

That is fair enough, but we cannot have it both ways. Under the law, a wife cannot under any circumstances take the action the Minister implies she might be able to take. I am willing to let this rest with the Minister for the moment because I believe it needs to be cleared up. The Minister has cast doubts on the legal situation, which is that the wife has no right to take an action or to have an action taken for rape. The Minister said it is very likely there are certain circumstances where a wife could do that, but I want to tell him there is none. It never happened. If the Minister wants that to happen, and the humanity he is showing in the way he is handling this Bill conveys that to me, we need to change this legislation. I do not care very much about the technical details provided we can at least ensure that the barbaric principle that a woman who has a legal relationship with a man has fewer rights than one of her peers is rejected. This is happening and these women need our protection as much as anybody else.

I would not accept that we should continue this double principle, where night after night a woman has to take sexual abuse and violence simply because of her alleged relationship with a man, a relationship which may have been initiated under a variety of circumstances; where a woman who is separated from her husband has not the same rights as any other woman; or where a woman is subjected to physical and sexual violence from a man who may have a physical or other characteristic which may put her health in danger. I want that cleared up as soon as possible because there is grave doubt, although there is no doubt in my mind, that a misapprehension is being propagated, that certain married women in certain circumstances might be able to have a charge of rape pursued. I submit that is not the case and that a change in this section is necessary if we are to bring about equality for our citizens regardless of their status. This present exclusion is as logical as refusing to have a man charged because the person he mugged was his mother. It is as archaic and as nonsensical as that. Our citizens must not be treated unequally and equal standards of protection for all women should be enshrined in law.

Mrs. E. Desmond

I apologise for having missed the debate so far. Without retierating what has already been said, I agree totally with Deputy Keating that it is vital that the protection of this legislation be extended to women within marriage and that this should be specifically stated in the Bill. There is no doubt that underlying all legislation in this area is the concept of a woman as a chattel, the property of her husband. We must move away from that concept and extend to women in marriage the rights which this Bill purports to extend to others.

I was glad to hear the Minister say he understands that some horrific things happen in marriage. I do not think it is necessary to say to any mature person or politician in this House that this is the situation. He said that he intends to examine this area thoroughly and I appeal to him to give the matter urgent priority. As far as I can see, a charge cannot be brought to court under this Bill by a woman within marriage. I would ask the Minister to examine this area and to ensure that an appropriate amendment to extend the protection of the Bill to women within marriage be made before the Bill is finalised. Obviously I do not wish this urgently needed Bill to be held up, but with the right commitment in this area it will be possible to make the necessary amendments to include these women. This would be consistent with the thinking which we hope now prevails with regard to the equality of all persons and their integrity, whatever their status. I appeal to the Minister to consider this matter urgently.

Dr. Browne

Perhaps the Minister would enlighten us a little more on his apparent inability to help with this reasonable suggestion to extend protection to married women. He must explain to us why he brought in a Bill of this kind when he knew of the concern of the Opposition and of women's organisations to extend the protection of the Bill to married women. It seems an extraordinary thing that the whole ceremony of marriage — what is called by the churches the "sacrament" of marriage — should have the effect of depriving a woman of what should be considered to be her constitutional right as a citizen. Section 1 (3) states:

In this Act "man" and "woman" include respectively a male and a female person of any age; but this does not affect any rule of law by virtue of which a male person is treated by reason of his age as being incapable of committing an offence of any particular kind.

It should state that this Bill excludes a married woman and the Minister should be put in the position of defending his reasons for this exclusion. We know the reasons well. The situation which I most often encounter as a psychiatrist and as a politician is one in which a marriage has broken down and the lady has got a barring order, pitifully inadequate as it may be since she cannot get a divorce under our laws, or one of the many kinds of separation arrangements which can be made in court; the man from whom she has separated then returns and the fact that she had obtained an order barring this man would seem to me to be a prima facie case for establishing that she did not want to have sexual intercourse with him and could be reasonable grounds for her being allowed to claim rape.

We seem to feel that we are fighting our way to a great truth at which nobody else in the world has arrived. I recently heard of a case in Sweden and another in France where a lady established her case in court. There are precedents. Why should we not accept, even with some safeguards, that we should begin to help the married lady in our society? She is deprived in so many other things and this is a simple matter which would not cost money. It is simply a question of equity.

I apologise that I did not hear all the Minister's case but he was quite correct in making the appalling admission that some horrific things happen within marriage. Surely that is one reason why we must look at marriage not only as a marvellous and, to many, sacrosanct institution in our society but also for an unfortunate few as a truly terrifying experience. But we cannot isolate these few. We have not the right to deprive them of constitutional protection under the law, the same kind of protection we give to a prostitute who can claim that she has been raped and can bring a case to court. A married woman cannot make such a claim. It seems anomalous and very unjust. Can the Minister give an undertaking that before the conclusion of the Bill he is likely to introduce an amendment that would at least advance the position in some way?

Mr. Doherty

I will quote something from Smith and Hogan on Criminal Law (page 402):

Intercourse by a husband with a wife may be "unlawful" where there has been a judicial separation or a decree nisi of divorce or nullity, an injunction against molestation or an undertaking to the court not to molest.

The other case is in Clarence Stephen J. who

thought the husband's act was unlawful because it constituted cruelty and, as such, was a cause for judicial separation. Arguably, therefore, intercourse constituting a matrimonial offence is "unlawful" and capable of being rape if other conditions are satisfied.

The illustration given by Deputy Keating is borne out as what might constitute rape if the other conditions are satisfied.

Mr. Keating

The point is that they are not married, they are divorced. I find it ironic of the Minister to come in here today using divorce as an argument when that Minister shot down any discussion of it.

Mr. Doherty

I have been speaking about husband and wife in the context of marriage as we know it.

Mr. Keating

The Smith and Hogan reference is not to husband and wife but to people who were husband and wife but who are now separated or divorced.

Mr. Doherty

They are husband and wife.

Mr. Keating

I dispute that.

Mr. Doherty

The existing law in relation to rape within marriage is to the effect that a husband cannot be convicted of rape on his wife except in exceptional circumstances. The exceptional circumstances are outlined in cases in England where courts have held a husband liable. There are no Irish cases but it is likely that Irish courts would follow the line taken by English courts and accept that a husband can be liable to conviction in certain circumstances. English cases which held the husband liable include cases where there was a separation agreement with a non-cohabitation clause, a decree of judicial separation, a separation order of a magistrates' court containing a non-cohabitation clause, an injunction restraining the husband from molesting his wife or having sexual intercourse with her and an undertaking in lieu of an injunction by a husband not to molest his wife.

It is sometimes contended that the law regards a wife as the property or chattel of her husband and that rape is a crime against property and that this is the reason why a husband cannot be convicted of rape. That contention as to the reason why a husband cannot be convicted of rape cannot be maintained. The reason usually advanced to justify the husband's immunity is that the wife on marriage gives a general consent to intercourse with her husband during marriage so that the husband during marriage can never be regarded as having intercourse without her consent. That reasoning can be regarded as anomalous in present-day circumstances and the most acceptable reason for a husband's immunity is probably the undesirability of having the law intrude into intimate affairs of married people. This is a very delicate area. It is also argued that the criminal law already intervenes between husband and wife in that charges for assault can be brought and if a husband can be convicted of assaulting his wife it is illogical that he cannot be convicted of rape of his wife.

The difficulty here is that when an assault occurs there is likely to be evidence on which a charge can be based and which a court could consider. There would be something more than the unsupported allegation of the complainant. In a charge of rape there would generally be no corroborative evidence. The case made for rape within marriage usually refers to a case where intercourse without the consent of the wife has been accompained by violence. In such cases a charge of assault can be brought against the husband and he could be liable to very heavy penalties. An assault causing grievous bodily harm carries a life sentence, the same as rape. There would be little difficulty in obtaining evidence in that sort of case. One of the essential ingredients for the purposes of prosecution is the obtaining of certain proofs. It is reasonable to suggest that to obtain proof of rape within marriage would be very difficult.

It has been suggested that the exceptional circumstances in which a husband can be held liable for rape should be set out in legislation. The problem here is that it would be very difficult to give a comprehensive list to cover all the situations that could arise. In relation to what Deputy Browne said in relation to Sweden I understand that in the Scandinavian countries there is provision for the prosecution of rape within marriage. We will look into this area and examine it closely to see what can be done in a situation where we have rape committed within marriage. It is a very difficult area from the point of view of legal intrusions. Also a prosecution could be brought for rape and it could be very difficult to prove.

We must also take into consideration the likely effects of this type of provision on the family and on the children of a family. We must be totally satified that the interests of the family are protected when we change the law. A number of groups of people representing certain organisations discussed this aspect with me and I was satisfied that they agreed that this area would need to be thoroughly examined. This Bill needs to be enacted urgently to provide certain protections and we will give it close scrutiny and will try to obtain all the expert advice possible to facilitate it. To delay this important legislation is not in the best interests of anybody. The Deputy has been shouting for some considerable time for this legislation——

Mr. Keating

Not for this.

Mr. Doherty

——and he has now got it. I am satisfied that the Deputy appreciates what is intended in the proposed Bill.

Mr. Keating

I do not wish to hold up the Bill any longer than necessary but there is no point in us accepting half measures. I would like to believe the Minister's promises about considering at length certain things that will happen, but the truth is that this will probably be the only legislation on this issue that we are likely to see in this decade. The provisions in this Bill are anathema to certain principles that some of us hold dear. The Minister rightly says that in Britain a husband can be guilty of rape if a decree nisi has been granted, or if an injunction has been granted to restrain him from molesting his wife, or if he has given an undertaking to the court that he will not molest his wife, or if there is a divorce. The point is that in all those cases de facto they are no long married.

Mr. Doherty

It is important to establish that a judicial separation does not terminate a marriage.

Mr. Keating

I said de facto they were no longer married.

Mr. Doherty

The Deputy said that in the cases quoted from Smith and Hogan by me these people were not married. They are married, but they are judicially separated. In the same way an injunction does not dissolve a marriage. An injunction obtained to prevent the molesting of a wife by a husband does not terminate a marriage. There are situations where British courts have held that rape where consent is absent can be prosecuted.

Mr. Keating

Is the Minister telling me that British justice and the British courts are applicable in Irish courts in relation to this offence?

Mr. Doherty

There has not been any case here to test what I am saying. On the presumption that such cases would arise, I would be of the opinion that Irish courts would decide them along the same lines as the British courts.

Mr. Keating

That is a qualification of a qualification. It is very unfortunate that the only arguable assistance this Bill may be to married people is where some judicial pronouncement or other had been made on them already, where de facto they were no longer married, where they were separated by agreement or by a judicial separation, or where there was a divorce.

We want to try to keep married people together. We want to enchance the prospects of the marriage being a happy one. There is no point in talking about people who are living miles apart, or cities apart, or aeons apart in may respects, and the husband kicks down the door and rapes his wife, and saying that in the British courts that person might be open to being charged with rape and arguably might be open to a charge of rape in the Irish courts. That is not the type of Bill we should have before us.

What about the majority of ordinary Irish married women who are entitled, in my view, to the same protection under the law as any other woman? Under Article 40 of the Constitution and in the European Court of Human Rights, is that woman entitled to the same protection as any other woman? This Bill says she is not and that because she is married her rights in law are less than the rights of other women. I reject that. It is wrong and it is barbaric.

The Minister suggested that somehow the protections afforded to such a woman are adequate because there is the same potential to receive a life sentence for grievous bodily harm as for rape. That is misleading. The charge of grievous bodily harm is a specific charge relating to what it says, grievous bodily harm. It might have nothing to do with any attempted act of sexual relations or sexual molestation. It is not acceptable for the Minister to put forward that argument. Why should the woman have to scurry through the law books to get justice? None of us in this House would advance the view that a married woman taking her husband to court for rape is a panacea for all ills.

Mr. Doherty

The Deputy is suggesting that.

Mr. Keating

I am not. That is absolutely unfair. I am saying that if, in extreme circumstances, she honestly believes there is no other way, that is her entitlement. I would hope that it would be the last resort if there was no other remedy for the problems involved. In the circumstances where it is not possible to take any other action. I contend that there should be equality in the eyes of the law.

The Minister made a point on several occasions about circumstances where there is no consent. That assumption is implicit in everything we are saying. If there is consent, there is no rape.

Mr. Doherty

The presumption is that there is consent in marriage.

Mr. Keating

I accept that. We are speaking about cases where there is no consent and where that can be proved. No argument arises if the woman cannot show there was no consent. We are talking about cases where there is no consent and we are arguing strongly for equality in the eyes of the law. The Minister quoted at great length legal and other practices in Britain. There are increasing representations from people like the police advisory committee and the policy advisory committee on sexual offences in Britain for progress in relation to the rights of married women in this respect. Sooner or later, and probably later, we will follow the British example. In this unfortunate country we merely echo outdated British legislation as we propose to do in relation to criminal conversation a decade after they threw it out in the North of Ireland and in Britain. We will limp into line in due course. Could we not do the right thing for once?

How can anybody defend the introduction of a Bill which makes a distinction between the rights of women on the basis that one group are married and the other are not? That is as logical and as Christian a view as to suggest that certain categories of offenders should not be able to be prosecuted because they are related to X, Y or Z, or that a boy of 17 should not be charged with mugging because the woman he mugged is his mother. It is nonsensical.

I have stated my case as clearly as I can. We have established the fact that for Irish women to date the reality is that married women are disadvantaged under the law, that is the factual position. This Bill proposes to retain the differential. None of us wants to see an increase in the numbers of——

Mr. Doherty

That is a misrepresentation.

Mr. Keating

The facts are on my side. There has not been one case in the courts to date on the Minister's own admission.

Mr. Doherty

That is a matter for the individual victim.

Mr. Keating

He accepts that there should be this distinction.

Dr. Browne

I genuinely do not see how Deputy Keating is misrepresenting the position. The Minister has admitted that a married woman is not covered by the provisions of this Bill and effectively she can be raped——

Mr. Doherty

Except in certain circumstances.

Mr. Keating

De facto divorce.

Dr. Browne

Which she cannot get.

Mr. Doherty

Separation.

Dr. Browne

It is unfair for the Minister to suggest that Deputy Keating was misrepresenting the position. We have to get this clear. We are making the case that under this Bill the married woman is deprived of her constitutional rights as a member of our society. This is an extraordinary Bill for the Minister to bring into this House after labouring so long on it. It is one of the famous nettles which has been grasped at last but, as so frequently, in a very unconvincing way.

Everybody knows that rape is a very difficult subject. It is difficult for the lady and for the man who may or may not be guilty. There is the question of proof. That is accepted by all of us. It is a subject full of pitfalls and dangers for the man and the woman. At least the Minister has got to the stage of introducing this Bill. We are attempting to point out to him that there is a grave defect in it. The suggestion about establishing evidence is a very weak defence on the part of the Minister because we have already accepted that this will be established under the machinery of this Bill between a man and a woman, or a man and a man, or whoever it may be.

As happens so frequently here, we are all men with the exception of the lady in front of me, Deputy Mrs. Desmond. It is a pity that we are not 50 per cent men and 50 per cent women to discuss this and perhaps get a little more understanding about it.

If, for instance, the three of us were discussing male homosexual rape, how could we ensure that every possible legal measure was provided so that we would be protected if that problem should ever arise? I do not think we are here applying ourselves with sufficient dedication to an examination of this? The Minister mentioned five or six different devices which he said would be considered in other countries in cases where rape had occured. I have cited here a case of where a lady had gone to the trouble, as far as she is permitted within the laws of the country, to break away from a marriage — full of the aggression and sadness and so on associated with it — for very sound reasons. But we give her only the very flimsy defence that we provide in the courts, and through various settlements and agreements for separation.

The Minister seems to be sympathetic to certain solutions. For instance, if we were to have divorce procedures he would be likely to agree that rape could be reasonably easily established. I think the Minister accepts that in a case in which there has been judicial separation it would be possible to establish rape in our courts.

Mr. Doherty

I accept that what is happening in Britain is simply an indication of how British courts have been dealing with certain circumstances. I have no intention of confusing that with the Deputy's anticipation of events.

Dr. Browne

I know of these cases because I have heard of them in both my capacities. I have heard of most dreadful ones, for instance of a man under a barring order who goes out and gets very drunk, who then feels himself humiliated by the separation, comes back, and what is worse — the Minister referred to this as a very important consideration — rapes the lady in front of her children, the idea being to humiliate her before the children. I have heard of the most awful cases. However, in those circumstances she has not got a defence. It is a terrifying thought that these things can happen, but they have happened and it is to protect such women that we are attempting to legislate. My case is that in this Bill we are not giving the lady any more protection than she had. We should establish the principle in law that if a man comes back, batters down the door and has sex with this lady without her consent he is committing rape and she can take him to court. Deputy Keating mentioned criminal assault but it is distressing to contemplate that a woman who has been beaten and so on can go to the Garda to get some kind of defence but they find it distasteful, like the rest of us, and on the whole they tend to avoid getting involved, if they can. The result is that the lady is absolutely defenceless.

Therefore, any kind of help we can give to her against this man coming in and imposing his will on her, despite the protection of a barring order, we should provide it in this Bill because I do not think we will get a Bill on this subject again within a decade, as Deputy Keating has said, even with the best will in the world of the Minister. Though it is good that we have got this far, I suggest that the Minister should consider this small amendment to the Bill so that our law could carry the weight of a prohibition on unwanted sex by the unwanted husband whether sober or, more frequently, drunk. With the best will in the world, there is precious little protection the Gardaí can give to such women except, possibly, that if the man does this and the lady takes an action against him for unwanted sex, for rape, he will have to pay the penalty we decide.

Mrs. E. Desmond

One of the Minister's arguments can be heard quite frequently when people are dealing with a situation such as this: it is the reluctance of the State to interfere in family matters. In principle that may be right, but we can take that reluctance a little too far. Vulnerable members of a family, whether they be children or women, require a much greater degree of intervention. In the Minister's remarks I detected a general failure to accept that a married woman is a rational being, capable of rational action on her own behalf, always mindful of the effect such action might have on other members of her family. The argument was advanced that we have to protect the children in this kind of situation. I submit that the person most concerned about the children is the mother of the children. The reality is that women, particulary Irish women, go to great lengths of self sacrifice to protect the interests of their children.

Any protection to be provided against rape within marriage in this country would be used only in very exceptional cases. We have heard of hardship cases but these would not be a reflection of the situation in the generality of marriages. However, we have to provide protection for extremely vulnerable people who are abused to a great extent. The feeling that such protection might in some way interfere with somebody else in effect denies a civil right to a section of our people. We are very much afraid to open doors, even a little chink, because there is a general opinion that if we do we will release floodgates. We should not fear that.

As the Minister stated this evening, we realise that there is a need for protection against this type of violence. We appreciate there are women who are subjected to very serious forms of sexual violence within marriage and for whom some protection must be provided. All women, whether married or single, are entitled to equal protection within this legislation.

We are anxious that this legislation be updated and we do not wish to delay it any further. However, with the right commitment it should be possible to amend the legislation within the next few weeks in order to take account of the view, which we share with the Minister, that protection is necessary. Now is the time to legislate and to remove the discrimination in the Bill. The Minister and Deputies on this side of the House are agreed on the need for this Bill. I appeal to the Minister to make the amendments that we have requested.

Mr. Keating

Will the Minister state the justification in this Bill for treating married women in a different way? Why should a marital contract impinge on the woman's rights? It does not seem to do so in any other area of law. Under the other existing statutes a married woman has the same rights to take action as has a single woman. The only possible tenuous argument that might be advanced here is the matter of intimacy of marriage or sexual relations. There is no difference in a question of property held in common, where the woman's rights are not different because of her marital status.

Mr. Doherty

I do not know why the-Deputy has rejected now what he has been saying for some months about the rights of woman and property.

Mr. Keating

What is the Minister referring to?

Mr. Doherty

It was the Deputy who brought it up.

An Leas-Cheann Comhairle

The Deputy should make his point.

Mr. Keating

I was trying to be helpful. I do not understand how we can justify this difference in law merely because the people concerned are married. This Bill should deal with rape without reference to the status of people. Any other crime does not relate to the relationships between people. Under law a person's rights should not be circumscribed by relationships: some mythological or national obession with sexual mores should not constrict those rights. It does not make any sense. It is just another Irish answer to an Irish problem, the same as we had before in this House. It is not acceptable and, with Deputy Desmond and Deputy Browne, I appeal to the Minister to give the matter further thought in order to obtain some improvements.

An Leas-Cheann Comhairle

Is section I agreed?

Dr. Browne

I wish to ask the Minister a question.

An Leas-Cheann Comhairle

We are having a lot of repetition.

Mr. Keating

Practically everything in the Bill is in section 1.

An Leas-Cheann Comhairle

I know, but everything being said now was said two hours ago. Repetition is not in order.

Dr. Browne

We asked questions that arose out of an enlightening reply the Minister gave about British law. In this country we have very mild defences for women. Would the Minister consider enshrining some defence for women in this Bill. Divorce is the great protection for a woman who does not want to have sexual intercourse with a particular man for the rest of her life. Under the divorce laws she is saved from that appalling humiliation. But in the absence of divorce in this country there must be hundreds of thousands of ladies who have to go through this dreadful ordeal for the rest of their lives. It appears to me that there is an even more compelling case in our society for introducing into this Bill some kind of defence for a woman against the rapist in the home.

Mr. Doherty

It would be very difficult to list all the exceptions. Deputy Browne may not have been present when I replied to Deputy Keating. He cited the situation where a husband with venereal disease subjected his wife to sexual intercourse and where the consent of the wife was not forthcoming. In that situation it is quite possible that if the law were tested in an Irish court it would hold that it was rape.

Mr. Keating

That is not true.

An Leas-Cheann Comhairle

The Chair wishes to point out that this has been said at least three times already.

Mr. Keating

What the Minister has said is not true. That would not be the case without a judicial separation.

Mr. Doherty

I am not going over that area again.

An Leas-Cheann Comhairle

I should like to point out to the Minister that all of this is repetition. I heard the Minister say all of this at least two hours ago. Repetition is not in order.

Mr. Doherty

Thankfully, the vast majority of marriages in this country are happy marriages.

Dr. Browne

That is not contested.

Mr. Doherty

I must make the point. I have a responsibility to state that that is the position as that point has not been made in the debate. Deputy Desmond suggested there was a refusal on the part of the Government to legislate in this area by including marital rape in the Bill. That was unfair and inaccurate. However, with regard to legislation that intrudes on family life, the Government and I must be satisfied that it does not in any way endanger the family, subject it to any fragmentation or endanger the interests of the children. For that reason, with regard to any measure contemplated in this context or in any context that affects family law, we must be positively satisfied that it does not endanger the family. I do not think the Opposition Deputies are taking serious cognisance of that very important feature of family legislation.

In many instances complaints are made to the Garda about assaults on wives by husbands because of drunkeness or for any other reason, but in a matter of days it is frequently found that the couple have become reconciled. Deputy Browne said that the Garda often tend to give advice to the victim not to proceed with the prosecution. The Garda are acting responsibly in that situation because their experience has been that family rows are often fixed up in a matter of days, whereas a prosecution or a direct intrusion by the Garda and the law could have resulted in much more serious consequences and made a mountain out of a molehill. This matter should not be treated frivolously or lightly for political purposes in this House.

Mr. Keating

Let us agree to differ. About whom is the Minister implying that he is treating this issue as frivolous and for political purposes?

Progress reported; Committee to sit again.