Criminal Law (Rape) (Amendment) Bill, 1988 [ Seanad ]: Second Stage.

Minister for Social Welfare (Dr. Woods)

I move: "That the Bill be now read a Second Time."

This Bill has been brought forward in answer to public concern about the law on sexual assaults. It follows detailed consideration by the Government of the recommendations of the Law Reform Commission, contained in their report on rape and allied offences, and of the 1987 Report of the Oireachtas Joint Committee on Women's Rights on sexual violence.

There are few who will disagree with me when I say that rape is one of the most obnoxious and reprehensible crimes known to the law. It involves a severe degree of emotional and psychological trauma for the victim and its physical consequences may be equally severe. Rape will normally give rise to subsequent feelings of insecurity and, of course, there is the very real fear of disease or pregnancy. For all these reasons it is a particularly abhorrent crime.

The Supreme Court has made it plain that it regards rape as a very serious crime which clearly merits a substantial immediate period of detention or imprisonment even when it is committed without any aggravating circumstance. It has also adopted with approval the general proposition that neither a victim's previous sexual experience nor the fact that she could be considered to have exposed herself by imprudence to the danger of being raped could conceivably be considered as a mitigating circumstance in any rape.

Yet despite the universal abhorrence with which this crime is viewed and the severe penalties that are handed down to those found guilty of the offence, rapes still continue in our society. The figure for 1987 was 75 rapes known or reported to the Garda and that is the usual annual figure. It behoves us as legislators, therefore, to keep the law in this area under continual review so as to ensure that any changes that are seen as necessary, whether they are aimed at increasing the legal protection afforded to victims or assisting in the prosecution of offences, are introduced as speedily as possible.

That is the background to this Bill. However, I must sound a note of warning on two counts. First we must never forget that a person charged with rape may be innocent. Any proposals for changes in the law must have regard to that possibility and must seek to achieve, as far as it is humanly possible to do so, a proper balance between the rights of an accused to a fair trial, the rights of society and, of course, the victim to see that justice is done. My second note of warning is that too many people are apt to confuse change with reform. Change for the sake of change is not a good policy. Therefore, any changes we propose to make in the law on rape and other sexual assaults should be based on solid argument and aimed at worth-while reform of the law.

In regard to the Bill now before you, I am pleased at the general welcome it has received. Many of its provisions are, of course, based on proposals contained in the Law Reform Commission's report — and I would again like to congratulate the commission and their president for their contribution to the debate on the issues in question. The report of the Oireachtas Joint Committee on Women's Rights was also valuable in this regard. The Minister for Justice regrets that he cannot be here today because of other duties.

Briefly the Bill provides for the following changes in the law: 1. It abolishes the rule that a husband generally cannot be guilty of raping his wife; 2. It replaces the offence of indecent assault (which has a maximum sentence of ten years' imprisonment) by two new offences of sexual assault (with a maximum penalty of five years) and aggravated sexual assault (with a maximum sentence of life imprisonment); 3. It provides that trials for rape and aggravated sexual assault will be tried in the Central Criminal Court and that the public will be excluded; 4. It extends to all sexual assault victims the procedural, evidential and anonymity provisions which now protect the victim in rape cases; 5. It abolishes the requirement for a mandatory warning about the dangers of convicting a person on the uncorroborated evidence of a complainant — leaving the question of a warning to the discretion of the judge; 6. It abolishes the presumption that a boy under 14 is incapable of committing rape or other crimes involving sexual intercourse; and 7. It makes it clear that lack of physical resistance does not constitute consent.

In the remainder of my speech I will deal with the more important of these changes and with a number of other matters in relation to the Bill which have given rise to comment and debate.

One of the major provisions in the Bill is the proposal to abolish the marital exemption in relation to rape. This is one aspect of the law on rape that has been kept under continual review in my Department since the enactment of the Criminal Law (Rape) Act, 1981. Some Deputies may recall the debate on this issue which took place during the passage of the 1981 Act through the Oireachtas. Strong views — which crossed party lines — both for and against change were expressed at that time.

In the absence of any consensus for change, the decision at that time was to leave the law as it was. There is now general agreement that the marital rape exemption in so far as it existed until now should be abolished. The Law Reform Commission's provisional recommendation in their consultation paper in favour of abolition was, on the whole, generally welcomed although some misgivings were expressed as to whether it might not lead to fabricated complaints and unwarranted intrusions in the marriage relationship.

The intrusion of the criminal law into the relationship of husband and wife can, of course, be disruptive and can present evidential problems. However, that possibility has not prevented assault, indecent assault or buggery by a husband on his wife being criminal offences and I do not think that such a possibility should prevent the removal of the marital rape exemption. It is difficult to justify that exemption which appears to condone a type of behaviour which, I suggest, is not acceptable to the majority of Irish people.

Evidential difficulties will invariably arise in marital rape cases but again the presence of such difficulties is not a sufficient reason for maintaining the existing position. However, in view of these difficulties and in order to prevent the institution of spiteful or mischievous proceedings by a spouse or an interfering third party I am proposing that a prosecution of marital rape can only be brought with the consent of the Director of Public Prosecutions. At present a private prosecution for rape could reach the stage of the preliminary hearing in the District Court but could go no further without the intervention of the DPP. In effect under this proposal there will be no private prosecutions even up to the District Court stage for marital rape.

Another major reform of the existing law contained in the Bill is the proposal to create two new offences, sexual assault and aggravated sexual assault, in place of the existing offence of indecent assault and the extension to all sexual assault victims of the procedural, evidential and anonymity provisions which now protect the victims of rape.

The view had been put forward by the Oireachtas joint committee in their fourth report on sexual violence that the existing law ignores the seriousness of other forms of sexual assault such as forced anal and oral intercourse and that, in so doing, it implies that one form of sexual assault is more serious than another. The committee also felt that the gravity of forced sexual penetration through the use of objects should be fully recognised. The committee recommended that the protection at present afforded to rape victims should be extended to victims of these acts. Finally, the committee agree that there was no logic in keeping separate the treatment by the law of offences that reflect a correspondingly degrading level of sexual violence against women. The solution proposed by the committee was to redefine rape to include these offences.

The Government concur fully with the committee in their expression of abhorrence of these offences which can be as distressing and degrading as rape and it is for these very reasons that the Bill creates the new offence of aggravated sexual assault with the same penalty as rape and which, along with rape, will be tried in the Central Criminal Court. However, the Government do not agree that equal treatment by the law of these offences necessarily means that the name "rape" should be applied to them. Indeed, in their report the joint committee put forward no arguments in support of their proposed solution that the definition of rape should be extended to include the offences in question.

The Law Reform Commission also considered the question of changing the definition of rape and split three, two on the issue. The majority of the commission recommended the replacement of the existing definition of rape by a gender neutral offence which would include, in addition to non-consensual intercourse per vaginum, non-consensual oral intercourse and the non-consensual penetration of a woman's vagina by objects. The majority's main argument in favour of this recommendation was that rape is a form of sexual assault which is no more distinctive than other similarly serious forms of sexual assault which are grouped together within a single offence.

That argument does not stand up to scrutiny. Rape has been known as a distinctive crime for centuries, and is clearly distinguishable from all other forms of aggravated sexual assault. It is the abuse of an act which in proper circumstances constitutes an expression of human love. The essential ingredient of rape is the absence of consent to sexual intercourse. Although in many cases rape will be accompanied by violence the essence of the crime is the absence of consent, which has to be proved in every case. On the other hand in the case of the aggravated sexual assaults we are talking about consent will not normally be an issue. Indeed, in the case of penetration by instruments it is inconceivable that consent would ever be an issue and to suggest, as has been suggested by the majority of the Law Reform Commission, that the offence of rape should embrace non-consensual acts of this nature must be wrong in principle since to do so would give rise to the startling implication that such acts if consensual would be acceptable.

A further distinguishing feature of rape is that, unlike any of the other offences in question, only the act of rape can give rise to pregnancy. One cannot get away from that fact.

The only substantive argument I have heard advanced in favour of an extended definition of rape is that victims of serious sexual assaults not amounting to rape would benefit psychologically by describing the experience they have been subjected to as rape. I can fully apreciate that argument being made in the context of the present law where the offence charged is indecent assault and the maximum sentence is ten years' imprisonment. However, any psychological assurance that may be thought to be needed will be supplied by the obvious seriousness with which the Bill as presently drafted treats these serious sexual assaults.

Let me say in conclusion on this point that if the Government felt that the correct approach would be to extend the definition of rape they would have no hesitation in doing so. They must, however, consider the issue on its merits; in other words, on the basis of what they consider would be in the best interests of the victims of rape and of other serious sexual assaults and of the public generally. It should be obvious that the whole thrust of this legislation is to afford the best possible protection to both men and women against sexual assault no matter what form it takes. Indeed, in the international context, this Bill is in any view a radical measure. It must be equally obvious that on the question of the definition of rape there is no consensus that what the majority of the Law Reform Commission propose is the right way forward. In the commission itself, both its president and its full-time commissioner were against an extended definition. The law society and the Garda Síochána have argued against it. So has a recent issue of the Irish Law Times. In addition an article in the latest edition of the Dublin University Law Journal argues against a gender-neutral offence such as that proposed by the majority of the commission on the basis that in those jurisdictions where that approach has been adopted, it has failed to achieve many of the objectives originally envisaged and has fallen into disrepute. It can be seen, therefore, that not only is there no consensus in Ireland in support of the majority recommendation of the commission, there is no international consensus either.

The obvious conclusion we must come to, therefore, is that we should retain the existing definition of rape, which has not given rise to any difficulties. The creation of the new offences of sexual assault and aggravated sexual assault, the trial of the latter offence, along with rape, in the Central Criminal Court and the extension to all sexual assault victims of the legal protection at present afforded to rape victims, will in the Government's considered view meet all the criticisms of the existing law as it pertains to sexual assaults not amounting to rape.

I have already referred to the fact that the Bill provides that in future all rape and aggravated sexual assault cases will be tried in the Central Criminal Court. I would like to make it clear that this decision is intended to be seen as an expression of the seriousness with which the Government view the crime of rape, and, indeed, the crime of aggravated sexual assault. It should not in any way be taken as a criticism of the Circuit Court or the judges in that court who have handled rape cases. Some disquiet has been expressed as respects the impact this decision will have on rural circuits. As the following information shows the proposed change will have only a very minor impact. In the five years from 1984 to 1988, inclusive, there have been 32 rape trials held outside Dublin — that is an average of just over six trials per annum. These involved only 15 counties. I would hope, therefore, that on reflection those who have expressed concern in relation to this proposal will appreciate why the Government have brought forward this provision.

The Bill proposes, by virtue of section 18 (a), that applications for bail in the case of rape and aggravated sexual assault may only be made in the High Court. It has been represented to the Minister that the present situation on bail applications in relation to these offences should continue to apply, that is, that applications for bail be made in the first place to the District Court. This would be a departure from the present position that pertains in the case of offences which are triable only in the Central Criminal Court. On the other hand procedures for granting bail in these cases in the District Court are well established and, of course, the preliminary examination of the charges will be taking place in that court. This is a matter to which I will give further consideration between now and Committee Stage.

Another important change which the Bill will bring about relates to the question of corroboration of a complainant's evidence in trials of sexual offences. Under existing law it is mandatory for the judge in such trials to warn the jury of the danger of convicting on the uncorroborated evidence of the complainant. There are cases where this warning would be superfluous and could raise unnecessary doubts and confusion in the minds of jurors. The Law Reform Commission recommended that the question whether such a warning should be given and, if so, its terms should be left to the discretion of the judge trying the individual case. The Government accepted this recommendation and section 6 of the Bill contains the necessary provision.

I have already mentioned that one of the main purposes of the Bill is to improve the legal protection the law affords to victims of sexual assaults. I would like to spell that out a little more.

The 1981 Act restricts the cross-examination of a complainant concerning her previous sexual history with any person other than the accused. This provision is now being extended to the victims of all sexual assault offences and, in addition, will encompass the previous sexual relations of the complainant with the accused. The 1981 Act also provided for the anonymity of the complainant in a rape case and this provision is also being extended to the victims of all sexual assault offences. However, the Bill does not extend the anonymity provisions relating to an accused. These will continue to apply only in the case of a rape offence and, indeed, there is some tightening up of the existing law in section 13 of the Bill by virtue of which the Director of Public Prosecutions may apply to court to lift the anonymity of the accused in the public interest.

In addition, the Bill, apart from providing that all rape and aggravated sexual assault cases will be heard in the Central Criminal Court, also provides in section 10 that they will be heard in the absence of the public. The exclusion of the public is to save embarrassment to the victim but because of the public interest in serious crimes of this nature the press will not be excluded.

These are provisions which I believe all right-thinking people will welcome and which will have a very significant impact. They clearly indicate the concern of the Government for the victims of sexual assaults and an understanding of the trauma they have to undergo not only as a result of the incident itself but during the subsequent investigation also.

Before I conclude I would like to refer to a number of other matters raised in the Law Reform Commission's report and by the Oireachtas Joint Committee. The Law Reform Commission considered the recommendation made by the Oireachtas joint committee that evidence of the previous sexual experience of the complainant should no longer be admissible at a rape trial in any circumstances and, for reasons with which the Government fully concur, opposed the recommendation. The position is that there are cases where evidence of a complainant's previous sexual experience can be relevant to an issue in a rape trial. The commission at paragraphs 84 and 85 of their consultation paper give examples where such evidence would be relevant. There is no legal system of which I am aware that absolutely forbids such evidence. Indeed most jurisdictions have a provision which, like section 3 of the Rape Act, 1981, limits the circumstances under which questions may be asked about the previous sexual history of the complainant. To totally exclude such evidence, apart from the constitutional implications, could be grossly unfair to an accused and could lead to a miscarriage of justice. This is where the balance between the rights of the victim and of the accused that I mentioned at the outset of my speech comes into sharp focus.

This leads me on to another area where the Law Reform Commission strongly opposed a recommendation of the Oireachtas joint committee, that is, that separate free legal representation be made available to complainants in rape cases. The commission raised the constitutional propriety of the proposal and went on to point out that in some cases separate legal representation might actually lead to unjustified acquittals of the accused. The reason this proposal was put forward in the first place was a perception that complaints were not being sufficiently protected by prosecution counsel and that as a result they felt alienated from the legal process.

The commission expressed the view that these problems could be resolved within the confines of the existing legal system, particularly in a climate of changing attitudes towards the rape victim. The Government are in full agreement with the commission on this issue. It is absurd that the State should, in effect, be asked to pay on the double for the prosecution of sexual offenders because it is alleged, rightly or wrongly, that complaints are not being adequately protected by counsel for the prosecution during the trial.

The Director of Public Prosecutions, with whom the Minister raised this matter, agrees generally with the commission's approach. As the Minister mentioned in the Seanad, he is in the course of taking certain steps which when fully implemented will be of a particular benefit to complainants in sexual offence cases. The DPP considers it important that the complainant in a sexual case be furnished without delay with a copy of her statement and be afforded access to the solicitor and counsel acting for the prosecution before the hearing of the case in court.

He also proposes that what could be described as a familiarisation course be made available to the complainant on request in which the layout and procedure of the court will be explained to the complainant and in which she will be advised in very general terms of the type of question which she might be asked.

Of course, there is a responsibility on the presiding judge to ensure that the specific provisions of the 1981 Act, which are being extended to all sexual assault offences in this Bill, restricting evidence of a complainant's previous sexual history, are complied with. Over and above that he also has a duty to ensure that no other irrelevant or improper crossexamination of the complainant takes place.

The Minister referred in the Seanad to the welcome change in attitude that had occurred in recent years towards the victims of sexual attacks and his belief that generally speaking the Irish criminal justice system is now more sympathetic to, and more understanding of, the trauma which victims undergo. He also paid tribute in particular to the Garda Síochána, who have been to the forefront in giving practical expression to this welcome change in attitude. I hope that others involved in the criminal justice system would follow suit. Legislative changes can only go some of the way to relieving the trauma and distress of victims of rape and other sexual assaults.

I commend the Bill to the House.

Mrs. Barnes

I am sure other Members will join me today in welcoming this Bill, which has received tremendous support both inside and outside the House in regard to the need and urgency for amending legislation in this area. Now that we have the Bill before us I would appeal to the Minister and Members of the House generally to include therein everything we have heard, about which there have been submissions received and everything we have heard from people who have been victims of rape and those who have dealt with those victims. Even bearing in mind the acknowledgment of the urgency for the introduction of this amending Bill and the support it has received, it has still taken quite a length of time to reach this House.

I am acutely aware of the recent history of law reform on rape in that I was administrator of the Council for the Status of Women in the seventies when we lobbied for amending legislation and from which emanated the 1981 Rape Act.

I join the Minister in welcoming some shifts in opinion and lack of prejudice toward rape and its victims in our society. When we lobbied then to have the concept of marital rape and the very serious issue of child sexual abuse included in the 1981 Act we were more or less told that there would be tremendous difficulty in getting such legislation through the House because the majority of Members would not accept either the need for nor the seriousness of both issues and the need for legislative reform with regard to them. I am glad to note that in this Bill there is included the concept of rape within marriage. I commend the Minister for Justice and the Law Reform Commission for focusing on the need to bring forward legislative proposals to deal with child sexual abuse. I know that the Minister for Social Welfare present has had an amount of experience and takes considerable interest in this area. It would be my hope that those legislative proposals would come on stream very quickly. I am aware that the Law Reform Commission would like as broad a consensus and sounding as possible of people dealing in this area in all its aspects. Indeed they hope to hold a seminar similar to the one held before they made their last proposals on rape.

Naturally it would be my hope that, when such legislative proposals emerge the parliamentary draftsmen would work on them as quickly as possible and introduce a Bill to protect another weak, vulnerable section of our society, that is, children who are sexually abused. Like the Minister present, I welcome the fact that we can now speak openly, hopefully compassionately, about the victims of rape and children who are sexually abused within our society. Sadly, that had not been possible up to quite recently and that, in turn, led to a lack of legislative reform, causing much suffering, guilt and trauma to many people who will never be able to benefit from the provisions of this Bill or of what it is hoped to have introduced in the House before the end of 1989 with regard to the sexual abuse of children.

I shall refer to sections of the Bill and to recommendations the Government have not seen fit to include, such as the definition of rape, or the very considered submission that separate legal representation be afforded the victims of rape in certain specific circumstances. Those recommendations have not been entertained and the Minister has explained why they have not been included. On Committee Stage I shall be advancing substantial arguments as to why they should be included.

To demonstrate how constructively and positively all parties in this House welcome the main amending provisions of this Bill I might refer the House to the deliberations of the Joint Oireachtas Committee on Women's Rights, who made various recommendations to which the Law Reform Commission gave serious consideration. By way of Dáil reform I would have to say the value of Oireachtas Joint Committees is aptly demonstrated by the recommendations of this report, the seriousness with which those recommendations were considered and the help they afforded the Law Reform Commission, in turn, in drawing up their recommendations. I should like to pay tribute to the Chairperson of the Joint Committee on Women's Rights at that time, the Minister of State, Mrs. Geoghegan-Quinn, who, since the emergence of the recommendations of the Law Reform Commission, has come out solidly in support of the recommendations of the joint committee on women's rights. Indeed the Minister of State, Mrs. Geoghegan-Quinn, has also reiterated that she believes that the recommendation of the joint committee on women's rights in regard to the extension of the definition of rape should have been included in this Bill and has expressed her regret that it has not been included.

Running quickly through the recommendations of the Joint Oireachtas Committee on Women's Rights, in particular we welcome the proposal that a complainant should be given a copy of a statement to the Garda, as a matter of course; that a complainant be kept fully informed of developments by the Garda and be afforded access to the State prosecutor before the hearing of the case. This constitutes a huge step forward. Formerly many victims of rape were not even aware of the implications of their court hearing. That ignorance was reinforced by the fact that the victim might have had no background knowledge in regard to her case and received very little notice of when her case was likely to come up in court. That lack of knowledge led to a tremendous amount of fear and trauma, since she was not made aware of the implications for her of that court hearing.

It is also our hope that there will be extreme discretion exercised vis-à-vis the introduction of a complainant's past sexual history. Indeed the joint committee on women's rights did recommend that such should always be ruled to be inadmissible. In consultation with the Law Reform Commission we reached a consensus that we would never endeavour to introduce a recommendation which might in any way tamper with the natural justice of anybody in court. We accepted that there may be very exceptional cases, which should remain within the strict discretion of the judge, when a complainant's past sexual history may be relevant. However, it is our view that that discretion should be very rigidly exercised.

When I come to the relevant section I shall have more to say about treatment of a complainant and the present court treatment of an accused person. I will be making strong recommendations in that particular section. We also welcome the fact that in disallowing the public from the court it will go a long way to stop rape cases being spectator sports and the grist of the tabloid gutter press, which must add so much hurt and humiliation and embarrassment to the victim and to her family and friends.

The joint committe on women's rights recommended that there would be an even balance of sexes on juries in rape cases. However, in our further set of recommendations to the Law Reform Commission we took into consideration what many people dealing in rape cases within the legal profession told us, that it was not the balance of sexes with regard to juries that we should worry about but rather the age which could have an implication. In our later recommendation we asked that the age and gender be taken into consideration so that we would have a balanced jury. We particularly welcomed the fact that our recommendation on the criminalisation of sexual violence within marriage was accepted and also the removal of the immunity of a boy under 14 years from being charged with rape. I will be making further comment on this issue when we come to it in the Bill.

We followed up that recommendation immediately with a further recommendation saying that where a boy of 14 years of age or under was charged with rape or sexual assault the sentence should be detention for therapeutic treatment to break what would seem to be a behaviour pattern at a very young age that certainly deserved treatment and not a prison sentence. I will be adding to that aspect when I come to deal with the section. I will be asking the Minister when taking a particular anomaly into consideration — hopefully after the introduction of other legislation regarding the criminal age of responsibility of children, which we are hoping to change — that we might even have to add something into this Bill as a result. I will explain it more fully when I reach that section of the Bill.

Something which has tremendous influence on the perception of society to rape or the perception of men and women in society to rape and, indeed, influence on what I would see as one of the most fundamental debates we will have on this Bill in the House is whether the definition should be extended. I clearly see a very different experience perception of the need to extend that definition based on gender. I want to place on record at this stage that anything I am going to say — and argue for here — is not or should not be conceived as an attack on men versus women or on women versus men. What I want to argue most strongly — and I appreciate the privilege of being able to do so — is to put the woman's experience, the woman's voice and the woman's history of how she is being treated in society, particularly in the ultimate violation of rape, on record in a forum where traditional male perceptions and male concepts of law and property held before. I want to expand that because I think it has a tremendous influence on the understanding of whether the definition of rape should be extended or not.

In order to do that I believe I would have to go into the definition as it is perceived by society and certainly by women. Sexual assault is a violation, particularly where it involves penetration of any orifice of the body, of the bodily integrity of the person. It is a total internal invasion which does not happen very often at any other level of violence. Indeed, as it has been described in one violent crime, rape is an act against the person and the property, the property being the woman's body and her personal integrity. The other myth which has been put aside and, I hope buried for all time, and which all women welcome, is that rape is not an act of sexual gratification. It is not an act brought on by the attractive appearance or the seduction of the female, it is an act of violence, of domination and even of hatred. It has nothing to do with sex, love or even with sexual gratification but it has everything to do with domination and violence and with fear, which has curtailed the activities of women even in modern everyday life.

I accept what the Minister says that legislation is only part of the problem, but let us hope that legislation will go, as it usually does, towards changing attitudes, but one of the serious undertones to this Bill is the subconscious, in-built, traditional, patriarchal concept of rape that has worked consistently and constantly against women in all societies. In this Bill it is highlighted in certain areas, such as the fear of wives in marriage taking frivolous or vexatious cases, the terrible fear of the accused in some way being found out, and at all costs the accused has got to be preserved and protected.

In rape laws up to now that protection and that fear and threat by men has been so observed and so written into the law that women have ended up not having the same protection and the same treatment under the law. That is the reason we must have this amending legislation. The fundamental concept of men's attitude to women and men's treatment of women in society must also be part of our thinking and part of what we are hoping to incorporate into this Bill to change radically and, if I am not incredibly optimistic, not alone change but perhaps reach a stage in our society where men do not have to rape women or threaten them them with rape and where they do not feel they have to dominate and violate them to keep them in control or to keep their place in society. What we are talking about here is an equal status, an equal participation, and an equal partnership of men and women in society where women are not afraid to walk the streets at night, where they are not afraid to walk alone and where they are not afraid when confronted by a gang of young people that they will be gangraped. That is the reality of modern life and, indeed, was the reality throughout history. I hope we will counter it by approaching the problem with openness and by publishing it and giving women the strength of the legal protection to report it and receive some kind of justice in return.

We have a lot to fight. This is why I am not setting up any man versus woman debate in this House. What I am pointing out is that down through history from the earliest human times, possibly from cavemen days — which we still smilingly put into cartoons of a man dragging a woman off by the hair into his particular cave armed with a large piece of rock — one of the spoils of war, engraved in our subconscious, generation upon generation, thousands upon thousands of years and carried on throughout history, was rape. Men were allowed to rape the women of the country in which they were victorious. To this day, as we know from veterans from Vietnam and elsewhere, that was part of the shame and the guilt they had to carry and part of what women, after war, had to cope with when the victorious armies had passed through and had used them as they wished. Men being prepared for war are actively encouraged to see women in rape terms when going into an enemy country. The very brutality that we demand of men going to fight and kill in another country also demands that they be not seduced by the love or care of women. They must be a subject for hatred and men must be trained to treat them in that way. What has been demanded of men in acts of war has been hugely damaging to both men and women.

We have the history of slavery. One has only to read the history of black slavery in the United States to realise that any woman on a plantation was owned by the plantation owner, whether she was married to anybody else or not. There was droit du seigneur in feudal times under which the lord of the manor had the pick and choice of virgins who were to be married the next day to a lowly serf. There is an in-built sense of women not being in control of there own bodies, not being able to assert their integrity and the personal ownership to which they have every right, and tremendous justice must be claimed for violation of that integrity.

I shall not go further into history, except to point out, as did Susan Brownmiller in her classic book on rape, entitled "Against Our Will" that the first laws on rape punished the rapist on behalf of the father or guardian of the woman. He was suitably penalised, based on the marriage value of the daughter or ward. Susan Brownmiller goes on to say that, starting with the incautious rapist being stoned to death, if the raped girl had been destined to be the subject of marriage to an important or wealthy person and, particularly if she was betrothed, she would then be sold at a marked-down price to anybody who would have her.

I am going into the beginnings of law in relation to this heinous crime, because we must see that the concept was of property. The penalty was based on the high value attributed to the virginity of women and the high cost to a woman of becoming pregnant by a man other than her husband. I am putting such emphasis on this because I believe that draftspeople, legislators, and the legal profession still put emphasis on the risk of pregnancy making the crime of rape so unique — that is the term used.

The Minister has said that no solid argument has been offered by the women's rights committee and others on this. I should like to put forward a few arguments. In today's terms, thankfully, pregnancy is not a risk or threat that a woman need suffer. However, there is a much greater threat which she must endure in attacks which should be defined as rape, in the incidence of communicable diseases such as AIDS. If the argument is made that we must retain the crime of rape because of the danger of disease or pregnancy — the Minister said that this morning — I would put it to him and to the Department of Justice that surely it is at least as dangerous and deadly to have oral or anal sex forced on one where there is a higher risk, through that type of attack and violation, of AIDS being communicated.

It is not correct to say that it is only the penetration of the penis into the vagina, thus causing or threatening disease or pregnancy, which can be defined as rape. Definitions are being extended and society has begun to recognise that some types of sexual attacks on women which are not at the moment termed rape should be defined as such. These would be termed, if this Bill remains as it is, aggrevated sexual assaults. Such attacks are as heinous, humiliating and punishing as, and perhaps more deadly in the long term than, the rigid concept held at the moment.

It all comes back to the woman's voice being lost, ignored or put aside as regards her experience of rape when the Minister says that there is no real consensus to show that the extended definition of rape would be supported abroad by a majority. I refer to page 6 of the report of the Law Reform Commission on Rape, paragraph 11 and I quote:

Much of the difficulty arises from a disagreement as to whether the common usage of the word "rape" is different from its legal definition. Clearly, the Commission is not in a position to arrive at an unqualified conclusion on this matter. It must, however, attach due weight to the large number of submissions which have suggested that current usage in Ireland is broader than the legal definition. Of the 28 submissions in writing received by the Commission at least 19 were in favour of extending the definition of rape. They included submissions from:

(a) The Joint Oireachtas Committee on Women's Rights;

(b) Representatives of leading women's associations, such as the ICA;

(d) Trade Unions, such as the IDATU;

and most important——

(e) Rape Crisis Centres.

The general consensus which emerged from those participating in the Seminar

——which was a broad spectrum of Irish society——

organised by the Commission also favoured an extended definition.

I ask the Minister how he can incorporate in his speech a statement that the request, indeed demand, of an extended definition of "rape" does not have a consensus, does not have broad support. Then I realise that it is quoted in this report that, of the Law Reform Commission, a minority, the Garda, had indicated that they did not know whether they could support it. There were also quotations from legal documents and publications. Any profession, particularly one like the legal profession, is established in its thinking and sees any radical departure such as extending a definition like this as almost a heresy. Its first reaction, which is very human in any profession, is to defend what is there and to see the difficulties or the implications of changing it. I accept that.

When the committee on women's rights had submissions from the Garda we explicitly put in a straight question to the Garda representative—"Would the Garda have any principled objection to the extension of the definition of rape?" The reply we got was, "No", and that is on record. Therefore, there is no difficulty with the Garda. Like the Minister, I would like to pay tribute to the support, the urgings and the lobbying we got from the Garda to amend and strengthen the legislation and to protect rape victims, with whom the Garda are usually first to come in contact.

We heard from women's rights committees, women's associations, Rape Crisis Centres, women victims and social workers, and the point I am raising is endemic to the debate on women's status and women's role in society. Somehow the consensus view and experience of women and submissions from women do not carry the same weight, nor are they taken as seriously as those of the professionals, the majority of whom — if I may say so without being seen to be a man hater or anything else — are male.

Miss Colley

QED.

Mrs. Barnes

QED. I thank Deputy Colley. Some substantial arguments have been offered and because I do not want to spend all day on that section, I can give a list of submissions from people involved in dealing with and recovering from rape and its consequences, showing that these victims know they have been raped and they want it to be recognised as the serious and heinous crime of rape. It is not too much to ask in reforming legislation, when we get substantial submissions from the victims and carers of victims of this crime, that their voice be heard and their submissions recognised and included in the legislation, particularly in the light of the fact that the consultation document from the Law Reform Commission did not agree to extending the definition.

However, having spent a day listening to professional people who deal with this at all levels of society, and the victims of rape themselves, I can say that at least a majority of them realise it should be taken seriously and maybe a legally radical step should be incorporated in this Bill by at least including in it a definition that tries to sum up the enormity of what has happened to these people who have been violated. If somebody is attacked and violated with anal sex, oral sex, or a bottle, scissors, knife or broom handle in her vagina, she feels raped. She does not say she has been subjected to aggravated sexual assault.

As can be seen, I can barely come to terms with this without being traumatised. I and everybody else who listened to submissions and to victims and carers of victims, knows that the view of those victims is that they have been raped and they want it legally recognised as rape. I would like the Minister to take that and the majority view of Irish society into consideration and on Committee Stage to change and extend the definition of rape. He will have our respect and — I was going to say thanks but it is not thanks — appreciation, because as legislators we should be giving the people what they need for their protection. I will not be patronising either the Minister or the people who ask for this. They will appreciate the fact that their voices have been listened to and will be acknowledged in the legislation.

Section 4 of the Bill abolishes marital exemption in relation to rape. This has been welcomed. I am delighted that the Law Reform Commission, followed up by the Minister for Justice and his draftspeople, agreed and accepted the justice of this. Until this Bill is enacted, a husband cannot be prosecuted for the rape of his wife. Because of the property rights of men, once a woman married a man, she was a chattel, she belonged to him, and therefore a husband could not rape his wife. Because of property rights enshrined and inherited by us, wives in Ireland and in other jurisdictions where this has not been changed find they have signed away one of the most basic human rights of all when they entered into legal marriage — they signed away the right to take a case of rape against the man who rapes them if he happens to be their husband. A stronger case for co-habitation I have never heard. If we are serious about protecting the institution of marriage and respecting the partners in the marriage, then it is essential that the concept of marital rape be accepted. Young women today, on learning that that most basic right would not be open to them, would have very serious thoughts about entering into legal marriage and giving up such a fundamental right. Therefore, the provision in this section is to be welcomed and should be enacted as quickly as possible.

Section 5 is also welcome. Research and evidence show that young men under 14 years of age, can be guilty of rape and what is known as sexual assault. The committee on women's rights have established that young people of that age found guilty of this very serious crime need specialist treatment. They need to be institutionalised and treated until they are no longer a threat to society and victims themselves.

I want to refer to something that I have mentioned obliquely before. I realise that the criminal age of responsibility for children is still seven years — a fact we all deplore and hope this will be rectified in legislation as soon as possible. The section I referred to presents no difficulty where a young person is seen to have committed a crime and is sentenced for that crime, even with imprisonment. However, all of us would wish to raise the age of criminal responsibility to 14 or even 16 years and there is much debate about it. If a boy under the age of 14 who is not criminally responsible commits the crime of rape or sexual assault we might have to include some provision to cover it. Perhaps I am anticipating legislation. If we change the age of criminal responsibility an anomaly could be created in that this section would not work in the way we would wish. People under that age might not come within the scope of this Bill.

The next section relates to the corroboration of evidence in criminal proceedings. Up to now the judge had to warn the court and the jury in respect of an uncorroborated crime, which naturally would have quite an influence on the jury. It was a catch 22 situation for the victim in so far as most rapes and sexual assaults do not take place before witnesses and therefore must of necessity be uncorroborated. I welcome the provision whereby the judge will be able to exercise his discretion. The fact that a rape case must go through the Office of the DPP ensures that we do not get vexatious or frivolous cases or many cases of people being accused in the wrong. I do not believe the removal of the corroborating provision will lead to injustice.

All of us have welcomed section 9 because of what it attempts to do. In order to indicate how seriously society views this crime, all offences shall be tried by the Central Criminal Court. The Minister and the Law Reform Commission have commented that some people have queried the practicality of this. One of the strongest recommendations from the Rape Crisis Centres was that there should be the least possible delay in taking cases before the courts because the length of time between the reporting of the case and its being heard is very traumatic for the victim. The speedier and more protective the court case is, the better for the victim and the more reports of rape we are likely to get. I appreciate that this section is giving due seriousness and status to the crime of rape and aggravated sexual assault. However, if this results in long queues of cases waiting to get into the Central Criminal Court because they cannot be heard at Circuit Court level, we may have to re-examine the position. I do not know what the waiting lists are like for either the Central Criminal Court or the Circuit Court.

The Minister quoted some figures in his speech but data from the Rape Crisis Centres, where statistics are kept, would show that because of the lack of protection and the experience which rape victims have to face in court, most of them are not willing to go to court and a great number will not even report the crime to the Garda. There is evidence based on research in the Rape Crisis Centres to this effect. Of course, these figures relate only to people who contacted the Rape Crisis Centres. Some would suggest that the figures we have in respect of those going to court are only the tip of the iceberg.

I hope the enactment of this legislation will make victims willing to report the crime and take their case through the courts. The figures relating to court cases in the past may not be an indication of the number of cases reported and processed in the future. We are attempting to ensure that women who are raped and violated have the protection and support of the law and will feel encouraged to go ahead and process their case. The figures we have do not represent the extent of the problem and we may have to make a projection. Section 9 might have to be looked at again with regard to the speed of hearing cases.

The Bill also refers to the fact that in certain cases, especially where there has been a lot of personal, emotional or psychological damage or the threat of disease, a convicted rapist might be asked to pay compensation. That happens in other cases where damage, pain, suffering, absence from work, etc. can be taken into consideration in court and compensation adjudged. My worry is that there might be an attempt by certain affluent people who have been convicted of rape or sexual assault to buy their way out of it. By offering a high rate of compensation, which might not be any great sacrifice on their part, they might incur a lighter sentence. We must be very careful in this regard.

I do not know whether it would be possible to insert an amendment to the effect that compensation should never substitute for sentencing but should merely be an adjunct, not seen as a lessening of the crime. The parliamentary draftsman would be able to say whether this is possible. There have been attempts to dissuade a victim from taking a case by the offer of a large amount of money. There have also been attempts to buy off the victim and have the sentence reduced. This implies that a person can pay off a woman in monetary terms for being raped or sexually assaulted. We must be very careful that there is no taint of that attached to it although I agree that the Law Reform Commission are quite right in suggesting that compensation should also be allowed.

There was tremendous consensus and support from outside groups, particularly those working in this area, on the need for the victim, in certain circumstances, to have legal representation. That represents a fundamental shift in the law as we know it. It has been accepted that at the discretion of the judge a woman's past sexual history may be required to be gone into. In such circumstances the complainant should have the right to have a legal adviser, if not a legal representative, to advise her of her rights and maybe even intervene because, as anybody who has followed some of the horrific cases in this area in the past knows, the prosecution can actually blacken a woman's reputation. She may go in as the complainant and come out as the accused and the guilty. Barristers who work in this area have said quite openly and blatantly to me that their whole case rests on being able to go in and attempt to blacken, subvert and undermine the reputation and the behaviour of the woman. We know that, and that is the main reason so few women are willing to go through the process and put themselves in a position to be so humiliated; some victims of rape have described that treatment in court as being as bad as being raped all over again. We must pay attention to that. Once again what I am asking the House to take into consideration is the experience of the victims, not what the legal profession have laid down over the years, because a lot of our law is based on property and priority rights. The law is not so monolithic and indestructible that it should not be open to fundamental changes, particularly when we want to ensure justice for the victim and the person who needs justice.

I put it strongly to the Minister that the complainant's need for legal representation must be taken into consideration, maybe not in all cases but certainly in cases where we concede that, in natural justice, a woman's past sexual history may be referred to. The complainant must have her rights protected and know she will not become the accused because, at the discretion of the judge, this procedure has been allowed, since this is one of the most serious parts of the court process.

I want to go on now to a matter on which there were many submissions from people working in this area. If it is conceded that the woman's past sexual history may be referred to at the discretion of the judge, what about the accused? A fundamental facet of our law is that any person is innocent until proved guilty. Therefore, something we would all uphold, as long as it does not become an injustice, is that an accused person cannot have any previous offence referred to while he is being tried on a specific charge. So we have a situation whereby the victim or complainant, the person who has gone into that court expecting justice, can have her reputation torn to shreds, have all kinds of innuendos made and all kinds of past history thrown in her face which is not relevant, but clever prosecutors can and do this while the accused, with his own legal representation, can stand there and know that not alone has he got good legal representation but that nothing in his past sexual history can be taken up. I do not believe that is natural justice as we now perceive and practice it. That is why we offer a substantial argument when we ask, in justice, that if the accused has the right to have no previous offence of his in this regard gone into, the least that can be claimed when such an occasion arises in the case of the complainant is that she would have legal advice and representation to protect her, who is pleading that she is the innocent and not the guilty. I would put it that if in the discretion of the judge a woman's past sexual history is relevant, surely the accused's past sexual history with that person at least should also be relevant. I do not think we would be perpetrating any great invasion of his rights to justice or protection if we allowed that. I would like that to be seriously considered. If we are going to get complementary justice for the two people — and I am assuming that the accused is probably claiming that he is innocent — we must balance the scales, to use a clichè. The demand for representation for the victim in such instance must be seen as a cry for normal justice, particularly when one considers that the accused is protected in the way he is and can be.

I know there are other speakers who will cover areas that I will not and have no wish to cover. I appreciate having the opportunity to speak on the Second Stage of this Bill. I would emphasise that even if it needs a radical shift in legal procedure we must give the rape victims, the carers and the social workers and women in general what they require.

When a rapist is convicted and sentenced he is imprisoned for a time and then, regardless of behaviour or tendencies, the person is released. I do not know whether a remedy for this could be included in the Bill or if it would have to be included in guidelines. At the moment we cannot detain a prisioner once the sentence is served, even if we know that the prisoner will continue to be a danger to society.

Research has shown that unless the behaviour pattern of sexual criminals is altered they will continue to commit crimes. We also know now that a great number of sexual abusers, sexually violent men, have themselves been the victims of sexual abuse. That is sad, but hopeful in another way, as we can intervene to treat the abusers in order to change their behaviour patterns.

This Bill will not give the protection that we would wish unless, when sentencing convicted rapists, there is a mandatory obligation for them to have treatment while in prison and a requirement that the sentence should not end until the person is no longer considered a danger to society, particularly to women. In England and in some other countries a convicted person having served a sentence, having been treated, is allowed out into the community only as long as he continues to take treatment in a community centre, just as some prisoners have to report for parole, and if the prisoner ceases to take treatment he is put back into prison. In other countries sexually violent prisoners are treated and are monitored when allowed into society again.

It would be a travesty of everything we are trying to do in this Bill if we did not build in procedures whereby the rape victim got justice and could feel the State would protect her. When a convicted rapist is sentenced he should not be locked away as a punishment without including treatment and then allowed out, the authorities sometimes knowing that he poses a real danger to society. Medical treatment should be mandatory for a person inside and outside of prision until such time as it is effective. That must be part of the sentencing process. I must rely on the Minister and on the parliamentary draftsman in relation to this suggestion, which I know will be supported by all the Members, particularly in the light of some horrific cases on record where men who have served sentences have come out and raped and murdered women. If we are talking about justice that cannot continue.

I have talked about the treatment of the victim in court and the treatment of the offender. As legislators we must ensure that the law gives protection and justice but above all it must give support and medical treatment to the victims. This Government and every other Government should see it as an absolute moral obligation to fund Rape Crisis Centres with State funding in the budget, so that the victims can get the psychological therapy, treatment and support they need.

Miss Flaherty

Hear, hear.

Mrs. Barnes

It is outrageous that Rape Crisis Centres are stumbling along dealing with money crises as well as rape crises. They do not know whether they will be in existence from one week to the next, although they are dealing with the most fundamentally damaged victims in our society. A lot of long-term guilt results from rape and professional help is always needed. If we really mean what we are putting into this Bill at one level, we cannot imagine that we are coping with the problem or recognising people working with the problem unless we give a State guarantee of funding to the Rape Crisis Centres. That has to be part and parcel of the legislation. We as legislators have every right to demand that.

On Committee Stage I will not be able to speak to the principle of the Bill as I have done this afternoon on Second Stage, so I will put two further thoughts to the House now. As long as we have illegal prostitution where women's bodies can be bought and men feel that they have the right to buy women's bodies to serve them sexually and the prostitute can be prosecuted but the man who buys her services is not prosecuted, then we are continuing the myth I started with, that women are available to be bought, sold and violated and are not really to be in control of their own bodies. Secondly, as long as we allow pornography portraying the dehumanising brutalising imagery that it offers to men about women, we are not really getting to the core of the problem and we will have to bring in laws on rape trying to deal with offenders. We will have to solve this problem so that women will feel they are both independent and assertive and do not have to travel in their thousands in an effort to reclaim the night. Women have done a lot in drawing attention to this problem but I say in the strongest terms that men also have a responsibility. I am calling on the male Members of this House to take this problem seriously and to fight even more strongly because it is they who have to start the reform.

Debate adjourned.

Dáil Éireann debate - Thursday, 18 May 1989