It will be recollected that the Minister for Social Welfare, in the unavoidable absence of the Minister for Justice, had introduced this Bill. Is it agreed that the Minister for Justice now continues? Agreed.
Criminal Law (Rape) (Amendment) Bill, 1989 [Seanad]: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
My colleague the Minister for Social Welfare has, on my behalf, formally moved that this Bill be read a Second Time and has dealt with some of the important provisions in the Bill. Before continuing where he left off I think it would be useful if I were to summarise the issues that he has already covered.
The main purpose of the Bill is to reform the law on sexual assault of offences in order to provide additional protection for women who suffer sexual attacks. One of the major provisions in the Bill is the proposal to abolish the common law rule that a husband cannot generally be guilty of raping his wife. However because of the evidential difficulties that will inevitably arise and to guard against spiteful or mischievous complaints the Bill provides that prosecutions can only be instituted by the Director of Public Prosecutions.
The Bill replaces the offence of indecent assault, which has a maximum penalty of ten years imprisonment, by the two new offences of sexual assault with a maximum penalty of five years and aggravated sexual assault with a maximum penalty of life imprisonment. It was explained that the creation of the new offences of sexual assault and aggravated sexual assault, the trial of the latter, 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.
The grounds why the Government have decided that all rape and aggravated sexual assault cases should be heard in the Central Criminal Court were dealt with and it was indicated that consideration would be given to the question of amending the Bill on Committee Stage to allow the existing position on the granting of bail to continue in these cases.
To continue I would now like to turn to another important change which the Bill will bring about. This 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 such a 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 accept this recommendation and section 6 of the Bill contains the necessary provision.
To protect rape complainants the 1981 Act restricts the cross-examination of a complainant concerning her previous sexual history with any person other than the accused. This protection 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.
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 will lessen the embarrassment for the victim. However, since it is important in the public interest that rape trials be reported, the press will not be excluded. They will, of course, still be subject to the reporting restrictions which prevent the publication or broadcast of any matter which might lead to the complainant or the accused, unless he is convicted, being identified by members of the public. The press will also continue to be excluded during any application to cross-examine the victim about her previous sexual history.
This leads me on to another question which has given rise to some debate. The Law Reform Commission strongly opposed a recommendation of the Oireachtas Joint Committee 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, as I understand it, was a perception that complainants were not being sufficiently protected by prosecution counsel and 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.
Furthermore the Director of Public Prosecutions agrees generally with the commission's approach. He is in the course of taking certain steps which when fully implemented will be of practical benefit to complainants in sexual offence cases. In particular these arrangements will ensure that the complainant in a sexual case will 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. In addition he also proposes that a familiarisation course be made available to complainants 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 questions which she might be asked.
I am fully satisfied that these and other changes which the Director of Public Prosecutions has in mind indicate a positive and constructive approach towards lessening the ordeal which the court case obviously presents for rape complainants and that they will be generally welcomed.
Deputies will have noted that section 8 of the Bill does not go as far as providing a statutory definition of "consent". The section is merely declaratory of the existing law that lack of physical resistance does not of itself constitute consent. This issue was looked at very carefully and it became clear that an attempt at a statutory definition would be likely to confuse rather than clarify and could lead to unintended changes in the law. The difficulties arise particularly in cases where consent is vitiated by the fact that it was obtained by fraud or threats. For these reasons it was decided to take the limited approach set out in section 8.
There has been a welcome change in attitudes in recent years towards the victims of sexual attacks. I believe the Irish criminal justice system is now more responsive to and more understanding of the trauma victims undergo. I should like to pay tribute in particular to the Garda Síochána who are sympathetic and supportive in their dealings with victims of sexual assaults. Legislative changes can only go some of the way to relieving the trauma and stress of victims of rape and other sexual assaults. Everyone involved in the criminal justice system has a part to play in this regard.
Finally, I should like to put on the record the debt we owe the Law Reform Commission and the Joint Oireachtas Committee on Women's Rights, consideration of whose reports preceded and assisted the preparation of this legislation. I commend the Bill to the House.
Rape and sexual assaults are among the most horrendous crimes in our criminal code. The number of reported rape cases in recent years has varied between 60 and 70 per annum. A decade ago the average number of reported rape cases varied between 40 and 50. This indicates a substantial increase in the number of such cases now being reported to the Garda Síochána. In addition the 1988 crime report records 226 cases of indecent assault on females. Indeed figures from the Rape Crisis Centre, which now deals with over 500 cases a year, would suggest that there is a significant degree of under-reporting to the Garda of rape and similar offences.
Clearly the figures confirm a very worrying trend and also confirm the need to examine the adequacy of our legislation dealing with sexual offences. I am very strongly of the view that punishment for crimes of a sexual nature should reflect the abhorrence in which society holds these horrible deeds. Therefore, I welcome the Criminal Law (Rape) (Amendment) Bill and in doing so compliment in particular the Law Reform Commission for their major research and reports which have been of tremendous help to us in considering the issues focused on in the Bill.
There are two basic principles to be borne in mind in considering the changes proposed in the law relating to rape and sexual offences. The objective of criminal law must be to ensure so far as is humanly possible that those who are guilty of a crime are convicted and punished in a manner commensurate with its gravity. It must also ensure that only the guilty are so convicted. The law must observe the constitutional requirement that no person shall be tried on any criminal charge save in due course of law which in turn demands the observance by the law of basic fairness in the trial of such persons.
The second principle on which we should operate is that the law must also seek to avoid causing all unnecessary distress to the victim. Rape is one of the most awful and obnoxious crimes in the criminal code. It is a violation of a woman's bodily integrity and apart from the physical consequences of the crime it has enormous emotional and psychological effects on the victim. These effects can be accentuated by the trauma associated with a criminal trial which can be distressing, humiliating and embarrassing for the complainant in a way in which other trial procedures are not.
The Law Reform Commission quite rightly stated there was an unfortunate tendency in the past to be over sceptical about rape allegations and that, accordingly, it was important that the balance should be redressed. At the same time they pointed out that it was neither just nor reasonable to move to the opposite extreme and they highlighted the principle that the accused must be presumed innocent until found guilty. The basic rule there is that the onus is on the prosecution to prove its case beyond reasonable doubt. Unfortunately, the operation of this principle means that in cases of doubt guilty persons may sometimes be acquitted. On the other hand, if doubts were resolved in favour of a complainant innocent persons would inevitably be convicted.
The challenge, therefore, is to establish a balance which will ensure the conviction of rapists but avoid the conviction of the innocent. In cases where there is doubt as to where the balance should lie we have to revert to the basic principle of due process with the presumption of innocence until guilt is proved and the onus lying on the prosecution to prove its case beyond reasonable doubt.
In debating the Criminal Law (Rape) (Amendment) Bill we are touching on very serious issues indeed. Different points of view in relation to these issues cross party lines. Indeed in some instances the Law Reform Commission took a different approach in the initial consultation paper as opposed to the final recommendations in their report. Furthermore, even in their final report the Law Reform Commission took the unusual step of publishing a dissenting view. I mention these facts from the point of view of indicating the broad range of very strongly held views, crossing party lines and all other sorts of lines, held by people as to the best course of action which should be taken in relation to the different major issues raised by this Bill.
In my opening remarks I welcomed the Bill. It is important that we discuss these issues. I want to say that my approach to the Bill is not to oppose it on Second Stage but I want to indicate to the House very clearly that each of the changes proposed will need to be teased out fully on Committee Stage. On Second Stage I want to highlight some of the concerns which have been expressed to me, and some of which I share, in regard to the changes proposed. In other areas I will be suggesting to the Minister that he should have a rethink about whether some of the changes proposed go far enough. I think the Minister will accept that the views I am expressing here are not made in any party sense. They are raised in the context of a constructive approach and trying to do what I think the Minister is trying to do in searching for the best solution——
It is not a party issue.
I accept that and, as I have said, it is in that context I want to tease out in a preliminary way some of the issues we will have to deal with in more detail on Committee Stage.
Before I deal with the major issues in the Bill I think it is important to say that irrespective of the results of trials and to a degree, outside the terms of the Bill, there is the clearest case for much more comprehensive support for the victims of rape and sexual offences. This should be done by way of a change in procedures which would help to relieve the stress and humiliation suffered by victims. Those changes in procedures could be introduced without in any sense affecting the fair trial of the accused. In addition adequate funding should be provided for bodies such as the Rape Crisis Centre who do excellent work for such victims by way of counselling and otherwise.
I want to touch on some of the major issues raised in the Bill. One of the major changes I want to refer to is in connection with marital rape. The common law rule was that a husband could not generally be found guilty of raping his wife. The Law Reform Commission proposed that the section incorporate a change to abolish the common law rule. The view has been expressed to me that the number of cases of rape by husbands on wives has not been such as to call for the removal of the marital exemption. We should be very careful not to bring about changes in the rape law unless they are really necessary and that by doing so we do not run the risk of bringing the changes into contempt. It has also been suggested to me that because of the changed conditions of modern life and disagreements between husbands and wives occurring more frequently there is a danger of the courts being flooded with rape cases. A strong case has been made that any change in the law should only apply in cases where the parties are living separately under court orders, such as divorce, separation or barring orders. On the other hand, the old common law rule has not prevented assault, or indecent assault or buggery by husbands on their wives being labelled criminal offences. In that context it seems to be an anachronism that a charge of rape should not be permissible.
I was also concerned that if this change were to be made it could result in a lot of late night charges being brought to the attention of the Garda Síochána as a result of family rows. I have been advised that this has not proved to be the case in Australia where such a change has been made. The police force there have not been inundated with such charges. While I can foresee evidential problems arising in marital rape cases, on balance I favour the Minister's proposal that the marital rape exemption should now be abolished. I am to some degree affected in that positive view by the inclusion of the proposal that prosecutions of marital rape could only be initiated by the Director of Public Prosecutions. This would ensure that frivilous charges would not be made. I tend to support the view of the Minister on this issue.
I now want to deal with the two new charges of aggravated sexual assault and sexual assault proposed in the Bill. Of course this would incorporate a discussion on a very difficult issue, the definition of rape, and whether that definition should be widened. It is proposed in the Bill to replace the offence of indecent assault which carries a maximum sentence of ten years imprisonment with two new offences, sexual assault with a maximum penalty of five years imprisonment and aggravated sexual assault with a maximum penalty of life imprisonment. It has been pointed out that there would be dangers in following this line which were highlighted in the Law Reform Commission's consultation paper. It has been brought to my attention that in establishing new offences we may open up an escape route for defendants. The case has been made that the present law in relation to indecent assault has worked well over the centuries.
It is also relevant to point out that the Law Reform Commission said that there would be a danger in creating a specific definition of sexual assault, in that if one were to be too particular one could make an omission and if one were to be too general one could not be sure what the court would do. In relation to labelling the offence indecent assault, I understand the view which considers this label as being too mild since many such cases involve an appalling level of sexual violence against women. I understand the case which argues that the labelling of such conduct as indecent might indicate that one is taking much too mild a view of such appalling conduct.
In considering this issue we should touch on the question as to whether the definition of rape should be extended. Here, there are two very strong opposing camps. In fact, the Law Reform Commission split three to two in favour of changing the definition or rape. A very strong view was also expressed by the Oireachtas joint committee who were strongly in favour. The majority of the Law Reform Commission took as their extended definition the model contained in the Crimes (Sexual Offences) Act, 1980, adopted in Victoria. There it was decided to extend the definition of rape. I gather that the Law Reform Commission in Victoria have since produced a further recommendation to alter the definition contained in the 1980 Act.
We also have to take note of the dissenting statement of the president of the Law Reform Commission, Mr. Justice Ronan Keane, and commission member, Mr. Simon O'Leary, who stated that the paramount objective of the law must be to ensure the apprehension, prosecution and conviction of persons responsible for rape and other sexual offences. They went on to state that the proposed extension of the definition of rape will not assist in the attainment of this objective. They further pointed out that in the neighbouring jurisdiction of the United Kingdom, where conditions on the whole approximate more closely to conditions in Ireland than in other jurisdictions considered in the consultation paper, the existing definition of rape has been retained and that the criminal law commission in Britain so advised. The criminal law commission in the United Kingdom took the view that while other forms of penetration are serious and degrading they are distinct from rape.
We are left with choices. We have to decide whether we should retain the existing provisions relating to indecent assault, extend the definition of rape or accept the proposal to establish the two new offences to be known as sexual assault and aggravated sexual assault in place of the old offence of indecent assault. On reading the Bill, and in particular the definition of aggravated sexual assault, my own reaction was that in many ways the offence of aggravated sexual assault is even more horrific than rape. Here in particular I am referring to the question of penetration by an object held or manipulated by a person. This conjures up such an appalling image that the strongest definition would not suffice in indicating our abhorrence of such conduct.
It has been very strongly suggested that women who have been traumatised in this manner feel and react as if they have been raped. It was also suggested that it would be of some solace to women who have been treated in such an appalling fashion if the offence with which the perpetrator was charged was called rape. I am strongly influenced by that case. I wish to make the proposal that the Minister should have a rethink to see if an extension in the definition, to include such conduct, would bring some comfort and solace to women who have been degraded in such an appalling fashion. There is a strong case for going along that road. I suggest to the Minister that he consult further with his officials and seriously consider adopting such an approach.
I now want to deal with the question of the trial in the Central Criminal Court of rape and aggravated sexual assault. The Bill provides that all rape and aggravated sexual assault cases will be tried in the Central Criminal Court. This has come from a very legitimate standpoint. It is an expression of the seriousness with which such crimes are viewed. It should be made clear that when the Law Reform Commission made their proposal, they did so in the context that it should be the beginning of a process of returning a wider criminal jurisdiction to the High Court. In the Minister's speech he has accepted the proposal but has made it clear that he is not accepting the context. There are serious practical reasons as to why this proposal should not be adopted. The Minister referred to the fact that there are only just over six rape trials per annum at present held outside of Dublin. The up-to-date figures will show that the Minister's information is out of date. We should also bear in mind that the proposal will include trial under the proposed charge of aggravated sexual assault. My real concern is that if we implement this approach it will result in considerable delays. This would be unfair to both the complainant and the accused. There is an old saying that justice delayed is justice denied. There is also the question that the longer the delays in the trial the greater will be the chance that memories will be not as fresh as they would be at an early trial. In general, experience shows that trials which take place within a reasonable period after an occurrence tend to produce sharper and more exact accounts of what occurred. I have never heard of any complaint about the conduct of cases in the Circuit Criminal Court. There are no delays there.
One of the reasons for the transfer of practically all of the criminal jurisdiction of the Central Criminal Court to the Circuit Criminal Court in 1981 was that there was a tremendous delay in getting cases heard in the Central Criminal Court. Trials were delayed for years and this led to the scandal of defendants, who then had an option, having their criminal trials transferred to the Central Criminal Court simply for the purpose of delay. This scandal was cleared up by the Courts Act 1981, transferring to the Circuit Criminal Court all criminal jurisdiction except murder and treason and the Circuit Criminal Court is completely up-to-date in its criminal jurisdiction.
I am aware of the backlog of cases in the High Court. So far as I know there is no proposal to increase the number of judges. I know it can take up to three years, after the service of notice of trial in a civil case in Cork, to have the case heard. It is no harm to look at the figures. It would be a disgrace if we made a change which would result in delays which could bring miscarriages of justice and cause trauma to complainants. In August 1988 there were 8,079 actions awaiting hearing in the High Court. During the following 12 months a further 6,222 new actions were set down for hearing, making a total of 14,301. During the year the courts dealt with 5,363 cases so over the year from August 1988 to August 1989 the arrears increased from 6,222 to 8,938. That was a very significant increase in the High Court jurisdiction to which we are now proposing to transfer rape trials. Is this the jurisdiction to which we propose to transfer not just rape but aggravated sexual assault trials? I cannot accept the bland assurance from the Minister that he does not envisage this procedure leading to delays in the holding of trials in the Central Criminal Court. It is most important that rape trials should be held without delay. It is clear that this is very much in the interest of the victims of rape and in the interests of some defendants who may be innocent. It is intolerable that there should be delays in the hearing of serious crime.
On the question of figures it is relevant to know the up-to-date position. During this term, since 1 October to 30 November, there have been 13 rape or indecent assault trials either heard or to be heard in the Dublin Circuit Court. A similar number have been heard or are listed for trial on the country circuits outside of Dublin. That is a total of 26 to date and this is just in the first two months of the legal year which commenced on 1 October. If one were trying to get an assessment one would have to multiply that number over the entire year and one will then see the problems associated with transferring these trials into Dublin into the High Court where the situation is already totally overloaded. I have the strongest reservations about that proposal, solely from the practical point of view. It would lead to huge delays. The President of the Circuit Court, Mr. Justice Roe, in a view endorsed by the President of the High Court, Mr. Justice Hamilton, has strongly argued against this proposal. They have experience, and very strong weight must be given to their views. I will argue this point in more detail on Committee Stage but I am giving notice now that I will propose to have that provision deleted on Committee Stage.
In relation to the question of bail the Minister proposes that applications for bail in the case of rape and aggravated sexual assault may only be made in the High Court. This proposal is probably consequent on the proposal to transfer the hearing of such trials to the High Court. The Minister indicated in his opening speech that he had some reservations about this proposal. The present procedures are well established. The law is clear and the preliminary examination of the charges will in any event be taking place in the District Court. On that basis and in line with my view that the trial of rape and aggravated assault cases should not be transferred to the High Court for reasons of delay, this proposal should not be proceeded with.
Another change in the Bill relates to corroboration of complainants' evidence in trials of sexual offences. It is mandatory under existing law for the judge to warn the jury of the danger of convicting on the uncorroborated evidence of the complainant. The Law Reform Commission recommend that the question as to 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. Under present law the judge is also obliged to tell the jury they may convict the defendent even though there is no corroboration.
If the jury were obliged to acquit when there was no corroboration it could be said that the law was too favourable to the defendant. On the other hand, it has been suggested to me that the law requiring corroboration has evolved over the centuries as a result of the collective wisdom of some of the greatest judges who ever sat on the Bench. It should also be said that the law evolved in times when little consideration was shown to accused persons. Basically the law was not made to enable guilty defendants to escape but to ensure that an innocent person was not wrongly convicted. In discussions and debate about miscarriages of justice we also have to bear that in mind, whatever the strong, emotional feelings we have in relation to the position of such horrendous crimes.
It is now proposed that it be left to the judge to decide whether the warning about no corroboration should be given. I want to put on record a strong view that has been put to me and which needs to be considered, that is, that this will allow the judge to usurp the functions of the jury. The judge's view as to whether he should direct the jury that corroboration was necessary or unnecessary will depend on his view of the veracity of the evidence of the complainant and of the defendant or other witnesses. It has always been the law at jury cases that it is for the jury and not the judge to decide whether witnesses are telling the truth. The judge may think a witness is a liar but the jury may think the witness is truthful and, in such cases, the jury must act on their own judgment and not that of the judge. This is the fundamental law governing trial by jury.
At this stage I merely raise the issue of whether we should be slow to change a law that has operated well for centuries. The law requiring corroboration has done this. I cannot pretend to be Solomon. I certainly will listen to the views of colleagues and other Members of the House on that issue. I do not raise a red light here but put up an orange signal that perhaps we should be careful before we make that change.
I next want to touch on the provisions of the Bill dealing with previous sexual history. The 1981 Act restricted the cross-examination of the complainant concerning previous sexual history with any person other than the accused. This protection 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. When the 1981 Act was passed, section 3 of that Act enacted that before a complainant could be asked questions concerning previous sexual history with men other than the accused, such questions should not be allowed unless permitted by the judge. Again I put a view that has been very strongly put to me and has to be considered. If the fact is that the complainant and the accused had sexual relations previously it is difficult to see the circumstance in which such a fact should not be brought to the jury's attention by the defence if the defence so wishes. If the defendant contended that there was a previous sexual history between him and the complainant it was, presumably, by consent. The fact that there was a previous sexual history between the defendant and the complainant does not necessarily mean that an act of sexual intercourse now by the defendant with the complainant must be considered by the jury to have been with her consent because previously there had been sex by consent. It may well be that the relationship has finished and that what the defendant did now is rape but, of course, this is a matter for the jury.
Again, this is a difficult area in which to adjudicate. We have to take into account the constitutional implications. There is a strong view that counsel for the defendant should be entitled as a right to question a complainant in respect of her sexual experiences with the defendant previously without having to get the permission of the judge. On the other hand, it seems that if we do make a change we can expect judges to exercise their discretion in a sensible manner. Perhaps I am reading too much into the provision. I merely raise the issue for consideration at this stage. I suppose if the change is made, because fortunately here we have judges who adopt a sensible attitude in the interpretation of the law, we will find that it will not lead to great difficulty.
I want to touch on the question of the change proposed involving the capacity of young boys to commit offences of a sexual nature. Section 5 proposes to make boys aged 13 and younger liable for rape. The law at present is that all boys under 14 are considered incapable in law of committing rape. This law is based on a presumption of physical impotence, not on any assumption that the boy is incapable of forming the necessary criminal intent. This irrebuttable assumption as to the capacity of boys under the age of 14 to commit the crime of rape has been criticised on two grounds. First, it disregards the basic scientific fact that boys may reach puberty before the age of 14. Second, it assumes that puberty is a necessary precondition of rape whereas, in fact, this is not so; penetration without fertilisation is sufficient to grant the offence.
I want to raise an issue that needs to be looked at before we make this change. That is the broader question of the age of criminal responsibility. There is a strong view abroad that the age of criminal responsibility should be raised to the age of 14. Here we are with a proposal to actually remove the present law that considers somebody under 14 to be incapable of the commission of a rape offence. This proposed change will have to be considered in relation to our attitude to the proposal to raise the age of criminal responsibility generally. It is in that context that we have to tie in this particular proposal. Per se, there is a lot of sense in the proposal; but it would be ridiculous if, in a piecemeal fashion, we made this change and perhaps, in a short time, on the broader issue, ended up discussing a proposal to raise the age of criminal responsibility to 14. It is important that we consider that. Perhaps a solution might be to allow this change to go through but, in the context of raising the age of criminal responsibility, to talk about raising it to 12 and not 14. I raise that issue for debate and discussion at this stage.
I want to raise a further point in relation to consent. I agree with the thinking behind the section dealing with consent. However, I think the section, as drafted, is faulty. I presume what the section intended to say was that a failure or omission by the person alleged to be assaulted to offer resistance does not necessarily constitute consent. That would be one interpretation of it. The section goes much further than that. It means that any failure or omission to offer resistance cannot, in any circumstances, constitute consent. The Western Australian Court referred to by the Law Reform Commission provides, in effect, that consent means consent freely and voluntarily given and that a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means. This might be a better definition, coupled with an addition that failure to offer physical resistance to a sexual assault does not necessarily constitute consent to a sexual assault.
I want to touch on an issue which we have to address here even if it is not included in the Bill, the question of separate free legal representation. Strong views have been expressed from time to time on this issue. The Law Reform Commission strongly opposed a recommendation of the Oireachtas Joint Committee that separate free legal representation should be made available to complainants in rape cases. When we are talking about providing support for victims of rape a number of approaches can be adopted from the point of view of providing aid or support. In that context we have to look at what we do in relation to, say, separate legal representation. I take the view that the commission's arguments in relation to the constitutional propriety of the proposal are fairly compelling. The commission took the view that separate legal representation could lead to unjustified acquittals of people accused of rape and related offences. That is the last thing in the world we want. If there is a serious argument that such an outcome could be the result of providing for separate legal representation, then we have to take due note of it.
On the other hand, if our approach is that we cannot follow that route then we go back to the second basic principle I outlined earlier, that we must seek to avoid all unnecessary distress to the victim and provide whatever support and aid we can to the victim. If we do not follow the route of providing separate legal representation, it is all the more compelling a reason for a more comprehensive package of measures by way of support for the victims of rape. I am pleased the Director of Public Prosecutions is taking practical steps which will be of benefit to complainants in sexual offence cases. These will include furnishing a copy of her statement and access to lawyers acting for the prosecution.
There are two important occasions when the rape victim really needs comprehensive support, firstly, immediately after the rape and, secondly, when she is facing the ordeal of a trial. An approach which will involve her being furnished with a copy of her statement, which will involve her having access to prosecution lawyers so that she will not be a bewildered stranger in surroundings which are totally terra incognita as far as she is concerned must be a help. Much thought has to be given as to the strongest package of support measures possible in that situation and the strongest support possible for bodies such as the Rape Crisis Centre. Somebody who has been traumatised in that fashion obviously needs sensitive counselling and bodies such as the Rape Crisis Centre are best able to provide that counselling. If we genuinely mean what we say in that regard, we must not be stingy in our support for bodies such as the Rape Crisis Centre. They must receive adequate, regular support to ensure they can plan ahead to provide continuity of the excellent service they have given over the years.
While we do not have complete figures, those available suggest that the number of rape cases reported increased by over 50 per cent in the past ten years. As I mentioned, I believe there is strong evidence to suggest that many cases are not reported at all. In those circumstances, it is not possible to be precise about the extent of the under-reporting, but we have to take into account the annual number of calls to the Rape Crisis Centre which, unfortunately, in the context of the extent of this offence year by year, I understand have increased. Whatever we do by way of changing the law is not going to solve the problem. It may help to encourage an increase in the reporting rate, although there is evidence in the USA that that may not be so, and we should be aiming more towards a change in public attitudes. The fact that we are discussing this Bill here will help in securing that change in public attitudes towards rape. This, then, might be one of the most important influences in reporting trends and making progress in reducing the number of rapes and sexual offences.
I welcome this Bill and the opportunity to discuss and debate the various serious issues raised. We will follow that up by teasing out the various proposals on Committee Stage. I hope at the end of the day we will have made a major addition to the law of rape and related offences.
I compliment the Minister on bringing back this Bill before the House so quickly. It was dealt with in the Seanad and in this House in May of this year. The spokesman for our party, Deputy Mervyn Taylor, dealt at length with the contents of the Bill on Second Stage. Therefore, I need not cover the same ground because the Bill is as it was presented then. No new features appear in the Bill before us, so I will be very brief.
I would like to record again that the Minister has certainly been bringing reforming measures before this House in rapid succession in the weeks since we returned. He has had six Bills before us, which are being either dealt with or consideration on them has commenced, and today we are discussing a most important measure which we hope will deal with this very difficult problem.
The crime of rape is appalling. Everybody agrees on that. There is no doubting that. The primary purpose of the legislation before us should be to protect society from rapists or potential rapists. Unfortunately, the number of rape offences reported and known since 1980 has been increasing. In 1980, 46 cases were reported, and each year, with the exception of one year, since then there has been an increase. The latest figure I have is 74 offences known or reported in 1986. That rate of increase worries the population and there is great concern about it, but I believe the figures I have quoted do not represent the problem that faces the country. The cases that are not reported are not reported for a number of reasons not the least of which is the fact that women do not want to live with the stigma of rape for the remainder of their lives and there is a very strong reluctance on their part to bring cases before the court. There is also the problem that the verdict may not be in their favour because of their traumatic experience and because of their lack of coherence in describing those traumatic experiences that occur in a rape case. Therefore, the Minister in this Bill is making arrangements so that women who have been raped will find it easier to come forward and to be ensured that their case will be heard in greater confidence. I welcome that provision in the Bill.
Indeed, the definition of rape goes back to the Criminal Law (Rape) Act, 1981. It is defined in section 2 very simply as follows:
A man commits rape if—
(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and
(b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does nor does not consent to it,
The Minister should have taken the opportunity to redefine that section of the old Bill rather than have introduced the new sections dealing with sexual assault and aggravated sexual assault. Indeed, the definitions are already in the new Bill under the heading of aggravated sexual assault. I believe they should have been included as a new definition of rape in section 3 which states that the assault includes:
(a) penetration (however slight) of the anus or mouth by the penis, or
(b) penetration (however slight) of the vagina by any object held or manipulated by another person.
That should have been included in a new definition of rape since that would make it absolutely clear why we all want to see this addition to the definition and would make it clear to people if they commit rape what is included in the definition. It should also include buggery which is not referred to in this Bill or in the definition of aggravated sexual assault. That is a suggestion to the Minister. He is inclined to listen to some advice given to him from this side of the House and occasionally to act on it but on most occasions he does not act on it. I am putting that suggestion forward for consideration on Committee Stage. Perhaps we will see the definition expanded to bring the 1981 definition up-to-date and into the realm of clear speaking by the Legislature.
I would like to mention another provision which should be included in this Bill to revise the Criminal Law (Amendment) Act, 1935, in the area of indecent exposure. That law is now 54 years old and has not been revised in any recent legislation. I believe there is a connection here and the Minister should take the opportunity to have a look at that Act and to include new penalties for that particular crime. It is regarded as a less than serious offence but I can assure the Minister it is a shocking offence to many people and the fact that the penalty is something of the order of £2 or a month in prison is a little old-fashioned as regard penalties. While this Bill is before the House the Minister should take a look at including a provision for a higher penalty and I will certainly facilitate him by putting down an amendment. I would ask him to take the opportunity to update the penalty for that crime. It is regarded as rather jocose but anybody who listens to commentaries or to statements made by women in a recent radio programme will accept that it is an offence that is apparently very common in this country. Indeed, it was suggested that one in three women in this city were victims of indecent exposure both on our public transport and on the streets. We should take the opportunity in this Bill to say we do not want this type of offence on our streets and on our public transport. It should be stopped as far as possible and the penalty should be increased for those who wish to commit such offences in our society.
The Bill should make provision for the sexual history of the plaintiff to be deemed irrelevant in rape cases. That should be included in any Bill dealing with rape and the Minister should take the opportunity to ensure that that is the case. The sexual history of the plaintiff is often used to discredit that person. It is an easy and simple way to defend a case but that should be discouraged in our legislation and separate legal representation should be allowed for the plaintiff. I know the Law Reform Commission have some doubts in this area. I feel very strongly that the defendant in the present situation has an unfair advantage over the plaintiff who has had no preparation for the court and, indeed, is suffering a great trauma at this time. She is really a witness in her own trial on these occasions but, unfortunately, she is not treated in that way. Therefore, she should be given all the assistance and legal aid possible in these circumstances.
Secton 4 introduces a new addition to the rape law in that the abolition of marital exemption in relation to rape is being proposed in the Bill. I think all of us are happy to see that included in the Bill. This is something that is necessary. It has been dealt with in the Law Reform Commission's excellent consultation paper on rape. Obviously, there are difficulties in this area but unless we who ask eminent people to consider this area do not take their advice then we are lacking in our approach to our legislation. The Law Reform Commission have dealt with the problem and they have instanced where the difficulties are but the balance comes down in what the Minister proposed to do under section 4 of this Bill. We welcome it.
Section 9 has caused great controversy in that it deals with the trials of persons in the Central Criminal Court presided over by a High Court judge. Deputy O'Keeffe referred to this matter in his contribution. I agreed with the position he has taken on that. As I said earlier, offences of this nature are increasing; from 1 October to 30 November 13 rape or indecent assault trials were heard in the Central Criminal Court; a similar number were listed for hearing in the Circuit Courts outside Dublin and therefore a total of 26 cases have been heard in various Circuit Courts throughout the country. I cannot be accurate in this regard but it seems that at the end of this year there will have been at least 100 of these cases before the courts.
The Bill proposes that cases on indictment should be transferred from the Circuit Court to the Central Criminal Court. We all agree with the Minister in this regard; rape is a very serious crime and should be treated accordingly. However, hearing trials for rape in the Circuit Court means that justice will be meted out much more quickly than having them all heard in one court. It can be strongly argued that if this is not done the Central Criminal Court will not be able to handle them as there are already great delays in that court, with the result that justice will be delayed.
The best way of showing how seriously we regard rape is to have such cases heard as quickly as possible and I am sure the Minister will deal with this point in his reply. The provision in the Bill — unless the Minister can convince me to the contrary — will mean that there will be great delays in dealing with rape cases. One must remember that some people charged with this crime may be innocent but the ignominy and the delay in waiting for a "not guilty" verdict will mean that the case will be hanging over them for several months and they could also be in jail awaiting bail.
Section 18 (b) deals with the problem of getting a person out on bail, as things are he could be kept in jail over a weekend. I hope the Minister will look at this area. We do not want those people on the streets but until the person is proved guilty, and if the Garda feel a person should get bail, he is entitled to bail. A transfer of all these cases to the Central Criminal Court will mean more demands to let out people on bail because of the delay.
I welcome the provision in the Bill excluding the public from hearings in rape cases and I compliment the Minister for introducing it. As a result, many more people will be encouraged to bring charges against rapists. I should also like to raise the treatment of rapists who are committed to prison. We all agree that sex offenders should receive significant prison sentences so that society can be protected from them. However, they should get proper treatment in prison as well as being punished because punishment without treatment and counselling is very short-sighted.
I listened to the Minister's speech on the Estimates last week and I look forward to the extension of treatment in prisons as a result. We know from experience that when a rapist has served his term of imprisonment he may return to the community and again commit the crime. Unless proper treatment is effected in prison punishment is counterproductive. Research has shown that experienced people working with sex offenders have been able to help them to avoid committing the crime again. Statistics in the area where an enlightened approach has been taken show that such a system works.
The Bill is complex and will be gone into very thoroughly on Committee Stage. I hope the Minister will examine some of the points made in the earlier debate and in this debate. I also hope he will consider my point in relation to indecent assault and that he will introduce penalties which are much more in keeping with the up-to-date situation rather than applying remedies which are 54 years old.
I intend to table amendments on Committee Stage so that my points will be further debated.
The Workers' Party welcome the introduction of the Criminal Law (Rape) (Amendment) Bill, 1988 and recognise that it constitutes a positive step in an area long warranting reform. The Workers' Party, though their Committee on Justice and Civil Liberties, have been actively engaged in the drafting of proposals specifically in the area covered by the provisions of this Bill. In that regard in January of this year, at a press conference in Dublin, the committee launched their document in response to the Bill. I am sure the Minister and his Department have had an opportunity to examine our response and will appreciate at this stage that, in general terms, we are in agreement with the major drift of the proposals contained therein.
Nonetheless we have a number of reservations with which I propose to deal later in my contribution in the hope that the Minister will be in a position to accede to some, if not all of our suggestions, on Committee Stage. In establishing our position for reform of the law in relation to rape and other forms of sexual assault submissions from the Joint Oireachtas Committee on Law Reform, the consultative paper prepared by the Law Reform Commission, the submissions of the Irish Association for Victim Support, the Dublin Rape Crisis Centre and of the probation of welfare services have been examined in detail. The Dublin Rape Crisis Centre must take substantial credit for the debate that has taken place outside this House and which prompted us to re-examine the legislation, particularly bearing in mind that a substantial amending Act was passed by the House in 1981. The fact that we are returning to this House so soon to address the shortcomings of that Act and previous legislation of 1861 and 1935 is an indication of the degree of activity and enthusiasm of people working in the area of victim support.
The provisions of the Bill before the House are broadly in line with the views outlined in The Workers' Party October 1988 discussion document in our submission published in January this year. The Dublin Rape Crisis Centre, in a document published in 1986, dealing with the legislation then obtaining, entitled Rape Legislation and Investigative Procedures, sub-titled, A Submission from the Dublin Rape Crisis Centre to the Joint Oireachtas Committee on Women's Rights, published in May 1986 adequately reflects the inadequacies of the law under the 1981 and earlier Acts.
It is worth examining some of the major areas of concern outlined by the Dublin Rape Crisis Centre in that submission. Their critique and review help us to address what needs to be done with regard to the law, throwing the current Bill into critical relief in order to ascertain whether its provisions measure up to their requirements. In relation to the 1981 Act they say that its provisions purport to cover three main areas: (a) restriction of admissibility of certain evidence; (b) anonymity of complainant and accused and (c) increased penalty for indecent assault. They went on to say that it is a very weak piece of legislation, being vague and unspecific in many of its clauses and leaving all important legislative decisions to presiding judge. They contended it was a shortened version of the British Sexual Offences Act of 1976 which, they said, was worth noting was currently under review and extensively criticised by the Criminal Law Revision Committee in their working paper on sexual offences published in 1980. They say that report was available before the Dáil enacted the Irish Act and might usefully have been considered by the Minister for Justice before presenting his Bill to the Dáil. They go on to make the point that the 1981 Act fails in a number of important areas: (a) to criminalise rape within marriage; (b) to define rape in its broadest sense; (c) to protect the anonymity of the victim; (d) to restrict the admissibility of irrelevant evidence as to the complainant's past sexual history; (e) to protect the complainant from feeling that she is on trial and that she is being raped again in court. Their submission highlighted five major areas not addressed by the law then obtaining. It has to be said that the Bill now before the House does attempt to address at least four of these areas, three of them adequately and one disappointingly.
Nonetheless, the Dublin Rape Crisis Centre, in taking credit for the prompting of this Bill, must be mentioned also in the context of really putting to test our legislative commitment to tackle the problem of the heinous crime of rape in the broadest possible sense. It is a matter of record in this House that over the past 18 months efforts have been made here to help that centre survive in the face of incredible financial difficulties, working under very stringent conditions. For example, in November 1988 on an Adjournment Debate I made a plea on behalf of the centre, at that point facing imminent closure, advocating that the Minister of Justice and Health should act to protect and ensure that the budget of the centre was guaranteed. I understand that since then the Government have made a very limited, inadequate response. This means that the centre is not in any way guaranteed or secured in its future. I understand also that, in a number of provincial areas, rape crisis centres — similar to that operating in Dublin over the years — have been forced to close their doors. None of us can be happy with that position.
In the context of our responding fairly to the issue of amending the relevant legislation we cannot walk away from the fact that there are agencies out there doing as important, if not more important; work in combating the crime of rape not being assisted. In fact the whole record of this and the previous Government in regard to victim support has been dismal. The Criminal Injuries Compensation Tribunal, to all intents and purposes, has been shut down with the exception of mopping up outstanding applications since 1986. The Irish Association for Victims Support have complained continuously that they have not been properly or adequately funded and are obliged to work on a voluntary, thin shoestring. As I pointed out, the rape crisis centres in Dublin and elsewhere are simply working on a day-to-day basis with no security for the future. In the sense that they represent a very important contribution in combating the heinous offence of rape and indecent assault and in the important related function of helping victims legislatively in respect of their evidence in court very little has been done to support them at counselling stage subsequent to the offence having been perpetrated at the time of their appearance in court, when they are required to give testimony, and later.
We must also have special regard to the work of the Law Reform Commission. They were asked on 6 March 1987 by the then Attorney General to examine the law with regard to rape as it then obtained. Again the date is significant because it would appear that the Attorney General was then responding to the very cogent submissions made to him by people working in the field. One would do well to examine the Dublin Rape Crisis Centre's submission of May 1985 and the Attorney General's response to the Law Reform Commission in March 1987 asking them to address the very questions highlighted in that submission and which showed deficiencies in our law. The Attorney General asked the Law Reform Commission to examine the matter. They sought, first, in their consultative paper extensive information from the Garda Síochána with regard to the problem. In time they issued a consultative document for the benefit of all interested parties. They also acknowledged the work of the Joint Oireachtas Committee on Women's Rights in their publication on social violence.
The Law Reform Commission convened an all day seminar in January 1988 to which they invited all who were involved in drawing up the consultative papers so that they could make their views known. I had the opportunity to participate in the seminar and found it particularly useful to listen to the wide ranging views of people working in all aspects of the law, from the Bench, lawyers, the court clerks, the Garda Síochána, social workers, the victims and people involved in counselling. Following the seminar, the commission received a large number of written submissions. In May 1988 they issued their final report with 21 recommendations. They also provided a very useful addendum to the report of a general scheme of a criminal law rape Bill. It has to be acknowledged, although the same cannot be said for the Larceny Bill, that the Minister has followed very closely the format suggested in the Law Reform Commission report and has paid high regard to the recommendations of the Commission.
Needless to say there are aspects which the Minister has not followed, but I am sure we can tease them out on Committee Stage, and I have to say The Workers' Party would not adopt some aspects of it also. However as a working formula for amending the law — I have spent a little time tracing the history of what happened — it has been a remarkably good exercise. People working on the ground, dealing with the problem at first hand, made their submission and were listened to by the primary law officer of the day who then referred it to the Law Reform Commission who issued a report. We, the legislators, were presented with a document that had regard to all that. That is very useful and we should try to have more regard to this practice.
The Law Reform Commission have made the valid point time and again that we the legislators do not give due regard to the many reports they have issued on the reform and improvement of the law. However, we are now giving due deference to their work and recommendations. However, one must ask whether a process which began in 1985 and sees the light of day in the closing weeks of 1989 has moved quickly enough.
I must mention as an aside that earlier today I had the opportunity to meet a delegation of parliamentarians from Nova Scotia, Canada, who were here to observe the proceedings of this House. How they must have been entertained as they sat and watched the proceedings. They told me they were. However, they also told me that in a single year they can address up to 90 pieces of legislation, having available to them 150 Bills prepared by a draftsman's office provided by the Legislative Assembly, an assembly of 52 Members. It seems a remarkable performance by such a small House. Perhaps we should look at the possibility of having the draftsman's office help us to prepare Bills or even amendments, as amendments to legislation must go through the draftsman's office before they see the light of day.
What about the number of Members?
I merely mentioned it in the context of wondering whether we could speed up the legislative process so that legislation initiated through the Attorney General's Office or the Law Reform Commission could be addressed more quickly in this House than we have achieved in dealing with the Criminal Law (Rape) (Amendment) Bill.
There are features of the Bill that must be addressed item by item. The first is the definition of rape as carried under the 1981 Act which repeated in legislative form the common law definition up until then, namely, rape would be committed if the man responsible had unlawful sexual intercourse with a woman, who at the time of intercourse does not consent to it; and that is qualified further by reference to whether the man knew that consent was not forthcoming or was reckless as to the consent. This relates only to natural intercourse, that is penetration of the vagina by the penis. It has long been accepted that the failure to recognise the seriousness of many other types of sexual assault and rape was a major flaw in existing legislation and would have to be addressed in any new amending legislation. The Workers' Party and many other organisations have argued for the broadening of the definition of rape to encompass other serious crimes, such as forced oral and anal sex, penetration by bottles or other objects, etc. The Criminal Law (Rape) (Amendment) Bill deals with this by creating two new offences: sexual assault and aggravated sexual assault. First, sexual assault will encompass the less serious sexual assaults and will replace the offence of indecent assault on both men and women. The maximum penalty on conviction on indictment for sexual assault will be five years' imprisonment. On the other hand, aggravated sexual assault is defined under the Bill as an assault which includes or involves serious violence or a threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted, or includes penetration, however slight of the anus or mouth of the person, assault by the penis of another person, or penetration, however slight, of the vagina of the woman assaulted by an object held or manipulated by another person. The maximum penalty on conviction on indictment for this offence will be life imprisonment.
We recognise that there are technical difficulties in broadening the definition of rape but we feel it is a better option than the approach taken in the Bill. It is crucial to public understanding of the nature of the crime of rape to emphasise that rape is a crime of violence and not sexual passion. The Bill should reflect that. There is a grave danger in creating the categories set out in the Bill that we will perpetuate the notion or myth, call it what you will, that there is something different and apart in the crime of rape from other serious sexual assaults. There is not. Rape is a horrendous crime of violence in all its aspects and should not be set apart from other forms of serious aggravated heinous sexual assaults that are for all intents and purposes rape. We in The Workers' Party, see rape as——
I hope everybody sees it the same way.
I am glad to see the Fine Gael Party continue to be amused, but I do not think this is a joking matter.
I do not think The Workers' Party have a patent on the definition of rape. I do not think the Deputy could accuse me of treating this subject lightly.
Let me say that I am here to make the submission on behalf of The Workers' Party, and I have no doubt that in time the Deputy will have the opportunity to speak without interruption on behalf of the Fine Gael Party.
From the women's point of view.
I was on official business for a moment. I over-looked the fact that Deputy Barnes was interrupting Deputy McCartan during his Second Stage contribution. It is not normal for Deputy Barnes to do that and I know that now the Chair's attention has been drawn to it she will not persist and will allow Deputy McCartan to proceed without interruption.
Certainly.
To make a major distinction between rape by natural intercourse and other horrific forms of assault seems to undermine this understanding. Second, it seems that the offence of aggravated sexual assault will be viewed as less serious than rape, and for that reason we are not happy with the approach taken in the Bill. In the final report prepared by the Law Reform Commission they discussed at length the majority recommendation to broaden the definition of rape. Paragraph 14 states:
We accordingly recommend that the crime of rape should be defined by Statute so as to include non-consensual sexual penetration of the vagina, anus and mouth of a person by the penis of another person, or of the vagina and anus of a person by an inaminate object held or manipulated by another person.
In this form the crime could be committed against men and women. The Workers' Party fully support that view in terms of a definition and I would urge the Minister, in looking at the Bill before Committee Stage, to again consider amending it to meet with the majority view of the Law Reform Commission. There is dissent in regard to that recommendation by two members of the commission and that is outlined on page 22 of the report. Their view is primarily that "Changes in the definition of the crime will not result in the more efficient realisation of the criminal law's primary objective, namely, the apprehension, conviction and punishment of the guilty". They tend to the conservative view that is reflected in the gradation approach of the Minister in the Bill.
Criminal law must have a wider, more positive and active role to play than merely the primary objective as set out by the two people who comprised the minority dissent. There must be more to our legislation than merely the apprehension, conviction and punishment of the guilty. As legislators, we should use our legislation to attempt to lay down social parameters and directives from this House. It is important in this context, particularly as we are addressing a definition of rape for the second time in this decade, that we get it right on this occasion. The basic argument of those who seek the broader definition is that we should mark our disapproval of all forms of aggravated sexual assaults on women and men by a broad definition and use of the word "rape", recognising that that has, in its connotation, serious and emotive regard the community.
There is no doubt that the crime of rape, to be called a rapist, to be made answerable in a court to a charge of rape and, most of all, to be found guilty and sentenced for it is a very serious and emotive event to occur, and so it should be. We argue it should not simply be confined to the very limited sense as contained in the Minister's current definition. We think that all of those other inanimate penetrations referred to in the definition by the Law Reform Commission's majority report are as heinous and as violent on the woman or man as the classical current definition.
There is an interesting debate and argument outlined in the consultative paper and also in the deliberation on the concept that perhaps conception could result from the act of "pure rape". I do not think that can be a factor in defining what can amount to the act of rape as we should define it in this House. It is an act of serious, aggravated assault, of violence towards the person in the first instance and that is the approach we should take in seeking to achieve a definition.
As I have said, this is a matter that we will obviously have to address on Committee Stage. I hope the Minister will have regard for the views of all Deputies on this side of the House, for the majority view of the Law Reform Commission and indeed the views not just of women but of all the organisations referred to in the reports right across the spectrum who are concerned about this problem.
We recognise obviously that there are drafting difficulties, that it is a problem that will have to be very carefully looked at but I do not believe it is beyond the capacity of the Minister and his officials to come up with a formula that would receive the support of this House. There exists in a number of other jurisdictions such broadly based legislative proposals that could well be borrowed and used as the yardstick to work with. Certainly The Workers' Party will seek to assist the Minister in every regard should he pursue this line of approach.
Debate adjourned.