Dáil Éireann debate -
Tuesday, 20 Feb 1990

Vol. 395 No. 9

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

Question again proposed: "That the Bill be now read a Second Time."

Mr. O'Dea

When we adjourned on the last day, I had dealt with the Minister's general approach to the definition of rape and aggravated sexual assault. I have had the opportunity to consider the matter further in the interim and I hold firmly to my original view.

I fundamentally agreed with the Government's approach to this problem but there is one aspect of the definition of aggravated sexual assault to which I wish to draw the Minister's attention. The Law Reform Commission in their report defined aggravated sexual assault in a general manner in section 3 (1) as follows:

aggravated sexual assault means a sexual assault that involves serious violence, or the threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted.

The Law Reform Commission suggested a definition which was markedly different from the statutory definition. Their suggested definition included the subject matter of section 3 (1) to which I have just referred but it also included a case where a sexual assault is "committed while the accused has with him a weapon of offence or by a person in a relationship of authority over the victim".

That extension of the definition of aggravated sexual assault is not included in the statutory definition in section 3. I read the Minister's speech on Second Stage and I do not see any reason for its omission. I would imagine that the wording used by the Law Reform Commission in this context is not of itself sufficient to achieve the objective which they obviously want to achieve. For instance, there is a marked difference between a person who commits a sexual assault while in possession of a concealed weapon which the victim does not know he has and a person who commits a sexual assault by intimidating the victim with a weapon. The wording will have to make it clear that the possession of the weapon was an ingredient in the offence, that the weapon was used by the alleged perpetrator of the offence to aid or help him in some way to carry out the offence. The same thing applies to the other aspect of the extended definition suggested by the Law Reform Commission. The wording will have to make it clear, although in this case a presumption could be implied, that the possession of the authority over the victim was in some way connected with or aided the commission of the offence.

The Bill contains in section 4 a radical departure in that it makes it clear for the first time in Irish criminal law that marital rape is now an offence. The Law Reform Commission expressed the opinion that this was already probably a crime. That opinion seems to me to be contradicted to some extent by some of the case law. However, the confusion is now swept away in section 4. Various arguments have been used against including a provision in Irish statute law to make marital rape an offence. Those arguments were dealt with, and to my way of thinking effectively demolished, in the report of the Law Reform Commission. Despite that, objections are still being raised. It is suggested, for example, that the creation of an offence of marital rape will lead to an unwarranted intrusion into the marital relationship. The question is being posed, "is it right or proper that the criminal law should be available as a weapon in family rows?" The spectre of late night calls to police stations and so on has been conjured up.

The reality is that criminal law already interferes in the marital relationship. For instance, as the law stands a person can commit buggery against his wife, he can commit ordinary assault against his wife and he can commit indecent assault against his wife. In view of that it would be illogical and perverse if he could not also commit rape against his wife. Whatever about the confusion that existed in the common law I welcome the fact that the Minister has availed of this opportunity to put this matter beyond any doubt. There is no reason why the distinction should exist in this case.

To those who are worried about the extension of the law in this direction I should like to point out that some years ago the offence of marital rape was created in statute law in Australia. We must presume that people in Australia are subject to the same pressures, problems and emotions as people in Ireland and to date the creation of an offence of marital rape has caused no great difficulties in that jurisdiction. The Minister was aware of the possibility that frivolous or vexatious complaints could be made. In order to eliminate that in advance the Minister has provided that proceedings for marital rape can only be initiated with the consent of the Director of Public Prosecutions. To some extent, when one considers this, there is an inconsistency there. To me it shows that the Minister is virtually bending over backwards to meet all possible points of view. I welcome that.

The present common law is that boys under the age of 14 are treated as being legally incapable of committing rape. The basis for that is an English case, the Crown v. Waite, 1892. However, in 1893 in a case before the then English Court of Criminal Appeal, the Crown v. Williams, it was held that a boy under 14, even though he is presumed to be legally incapable of committing rape, is legally capable of committing indecent assault. I must point out that that decision has been heavily criticised but in so far as I can conclude from my research on the subject it has never been specifically overruled by a court either here or in the United Kingdom. However, any difficulties or confusion that might arise have now been eliminated by section 5. It is made clear in that section that it is no longer to be presumed that just because a boy is under the age of 14 he is incapable of committing rape or aggravated sexual assault. Some Opposition speakers went on from that to discuss the age of criminal responsibility. There is no doubt in my mind that in so far as the age of criminal responsibility is concerned 14 years is too high. I do not know, and I do not pretend to know what the correct age should be but it is my view that seven years is certainly too low. The answer lies somewhere in between. That is a subject for another debate and I will not deal with it today.

Another initiative proposed in the Bill is that trials for rape or aggravated sexual assault be held before the Central Criminal Court. Various arguments were advanced against that proposition. They were effectively demolished by the Law Reform Commission in paragraph 19 of their report. I do not propose to go over those answers again. However, I should like to make a point in this connection. The Law Reform Commission saw a need to extend the criminal jurisdiction of the High Court. That is the intellectual underpinning of their reasoning for making rape an aggravated sexual assault triable exclusively by the Central Criminal Court. I disagree with that approach. There are good and adequate reasons for making those crimes triable in Dublin by the Central Criminal Court apart from arguing that the criminal jurisdiction of the High Court should be extended in some way.

In 1981 all serious crimes, with the exception of treason, piracy, genocide and murder-related offences, were transferred to the exclusive jurisdiction of the Circuit Criminal Court. One has to ask oneself — the answer will invariably be in the negative — if this has given rise to any difficulty in practice, if it has given rise to obvious cases of injustice or if it has given rise to administrative difficulties? The answer to those questions is in the negative. If that be so, why should we begin the whole process of reversing what we did out of necessity in 1981? The reasons, it would seem to me, would have to be good and compelling. The reasons advanced by the Law Reform Commission in what otherwise was an excellent report are, to say the least of it, inadequate.

The Minister stated on Second Stage, as reported at column 930, volume 393, of the Official Report:

...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 dealt with rape cases. I might also emphasise that the Government's decision was taken solely with reference to the particular crimes in question and should not be seen as supporting the Law Reform Commission's view that the transfer of rape and aggravated sexual assault trials to the Central Criminal Court should be the beginning of a process of returning a wider criminal jurisdiction to the High Court. That is a separate matter to be considered on its merits.

I was delighted that the Minister said that and, for the most profound and fundamental reasons, I agree with his approach.

Anybody who has experience of the criminal law will know that frequently requests are made to have rape cases which occur outside Dublin transferred to Dublin anyway. Looking at it generally it could be said to be more appropriate for both the complainant and the accused that rape cases be held in Dublin. There is only one matter to which I would advert here. While I agree with the section of the Bill which provides that the Central Criminal Court is the appropriate court, I would be most concerned if this change of jurisdiction gave rise in any way to delays in relation to this type of crime. I do not have to emphasise to the House the patent injustice of delays in criminal trials. Even though I do not want to put one particular category of crime above or below another, as the case may be, I would point out to the House that, in so far as the victim is concerned, long delays in relation to trials for offences of this nature give rise to particular injustice. I was very glad to hear the Minister's assurance in his Second Stage speech that such delays will not occur. I would like, if at all possible, that that assurance be underpinned by another assurance that if, in practice, delays occur the necessary administrative arrangements will be put in place to eliminate them immediately.

In their report the Law Reform Commission dealt with the question of consent. The crime of rape and the crime of aggravated sexual assault is a crime, which of course, takes place without the consent of the victim. If consent can be proved, then the crime is not committed; the mens rea, the guilty intent, is absent. That is why anybody who has experience of a rape trial will find that invariably the defence counsel's line will be to try to demonstrate that in some way consent was given whether expressly or implied by the victim. The Law Reform Commission felt that the absence of a definition of consent has helped some guilty people to go free. The Law Reform Commission report states:

While no cases have been drawn to out attention in which the present law created serious difficulty, it was represented to us that it was certainly capable of doing so. The Irish Association for Victims Support was strongly of the opinion that the absence of a definition had influenced verdicts. It would be accordingly advantageous if the legislature were to clarify the law so as to put it beyond doubt that consent obtained by force or fraud was not consent. It was urged that there was a real danger of juries equating a failure to offer physical resistance with consent.

Having thus concluded, the Law Reform Commission went on to give us their definition of consent as follows:

1 "Consent" means a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to those words, a consent is not freely and volutarily given if it is obtained by force, threat, intimidation, deception or fraudulent means and

2 A failure to offer physical resistance to a sexual assault does not of itself constitute consent to a sexual assault.

I think I might be permitted to disagree with that approach by the Law Reform Commission. Anybody who will look at the textbooks, particularly the older textbooks in criminal law, in relation to sexual offences will see that there is a whole line of cases such as the case of the Crown v. Captain, the Crown v. Hallett, the Crown v. Fletcher, all venerable cases more than 150 years old, which make it clear that consent obtained by force, by threat, by intimidation, by duress, by fraud or deceit is not real consent. One does not have to go back that far; there are more modern cases if one wants to regard 1937 as modern. The Scottish case of the Crown v. Logan in 1937 makes that clear beyond any doubt. I had thought the reason this issue was not argued more recently than the 1930s was that the matter was so clear and so much beyond doubt.

I agree with the Minister's approach. It is entirely unnecessary to define consent statutorily. I would be concerned that any attempt to define consent in this way would allow exactly what the Law Reform Commission fear, namely, that the guilty would go free. The Minister went some of the way with the Law Reform Commission. Section 8 provides that a failure to offer resistance does not of itself constitute consent. This is similar to part 2 of the Law Reform definition but the Law Reform Commission definition simply stated that a failure to offer physical resistance would not constitute consent. The Minister is going further and is saying that a failure to offer any resistance does not necessarily constitute consent. The reason the parliamentary draftsman may have taken that option is to compensate in some way for the fact that part 1 of the Law Reform Commission definition is not included in the term "consent". Section 8 of the Bill implies that a person could possibly be guilty of rape or aggravated sexual assault if there is no fear, fraud, duress etc., if no physical resistance, verbal resistance or verbal protest of any kind is offered and if at the same time the victim is fully sane, conscious etc. It is very difficult to see how that can arise in practice.

This is a matter that will have to be teased out on Committee Stage to see if that inclusion by the Minister, in response to the arguments used by the Law Reform Commission and others, opens the door. Also in relation to section 8, I wonder if the wording is wide enough to encompass criminal offences other than the offences dealt with in the Bill? That is a matter we can deal with on Committee Stage.

The present offence of indecent assault carries a maximum of ten years imprisonment. Under the proposals in the Bill aggravated sexual assault and rape will carry a maximum sentence of life imprisonment. The lesser offence created in the Bill of sexual assault will carry a maximum of five years imprisonment. The effect of this is that there are certain types of assault for which an accused could now get up to ten years but after the passing of this Bill he can get only five years. I would regard that as not being too significant as it was only the more heinous types of indecent assault, which are now dealt with under the heading of aggravated sexual assault, that drew sentences of more than five years in practice. The maximum penalty for those crimes is increased to life imprisonment. That is a welcome development.

On the question of sentencing policy generally, the argument will be advanced — and there is no doubt it has some validity — that having maximum sentences does not imply that the accused will necessarily draw any sentence. Perhaps the Minister could consider a proposal that there be a mandatory sentence for rape or aggravated sexual assault. I am aware of all the arguments about rehabilitation, etc., and I subscribe fully to them in case anybody thinks otherwise. I do not have time to dwell on them now because of the time constraint. In relation to sentencing, the Minister should look at the possibility of a mandatory sentence even if it is only 12 months for rape or aggravated sexual assault. The same argument cannot be used in murder because all sorts of justifications can be used as to why some person kills another with malice aforethought. No such moral justification can be used in the case of a person who is convicted of rape or aggravated sexual assault as defined in this legislation. The whole concept of mandatory penalties is not something new. There is a very obvious precedent in road traffic legislation where if somebody is caught driving while over the permitted limit of alcohol it is mandatory for the District Court to disqualify him for driving for 12 months. The question of mandatory sentencing in this area should now be looked at.

Another proposal in the Bill related to the question of bail for a person who is on remand for the offence of rape or aggravated sexual assault. At present a person on remand for an offence of this nature could apply to the District Court for bail. It is proposed in section 18 of this Bill that such an accused will now have to apply to the High Court for bail. Presumably the reasoning behind that change is to bring uniformity into the legislation as these trials are now being transferred to the criminal division of the High Court.

The Minister expressed some reservations about this change and gave voice to his willingness to reconsider this matter during his introductory contribution. I was very glad to hear him do that because it is a change with which I disagree. The facts are that the procedures for granting bail in the District Court in serious sexual assault cases are well established. There is a clear body of law on this subject which should not be disturbed except for good and compelling reasons. Most important of all, the preliminary examination of the charges will be by the District Court and, therefore, the District Justice will be in the best position to judge whether bail should be granted in the individual case and what the terms of that bail should be. Therefore, I propose to the Minister that in line with his own reservations that proposal in section 18 of the Bill should be dropped.

The question of legal representation for the complainant has given rise to a good deal of debate. This issue was dealt with at length in page 17 of the Law Reform Commission report in which they stated:

Apart from the doubts ... as to the constitutional propriety of such a proposal, there must also be serious uncertainty as to the effect it would have on the trial of such cases. In some cases, far from assisting the conviction of guilty rapists, it might so complicate the hearing and alienate the jury as to result in unjustifiable acquittals.... we are satisfied that the complaints to which we have referred can and should be adequately redressed within the confines of the present system.

I agree heartily with that approach. In dealing with this issue, the Minister, in agreeing with the Law Reform Commission approach, in his Second Stage speech said:

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 a 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 agree with that approach but I want to pose a number of questions to the Minister. First, will those rules be written down? I suggest that those rules should be enshrined in written form because if we have to depend on verbal practice of verbal directives, these will invariably differ from counsel to counsel, solicitor to solicitor and area to area, and will give rise to cases of injustice. If it is not the intention of the Director of Public Prosecutions to put these rules in written form I suggest that the Minister should incorporate a section in this Bill which would give him the power to make regulations to contain those rules.

I want to advert to paragraph 51 of the Law Reform Commission report which refers to section 4 of the Criminal Law (Amendment) Act, 1935. Section 4 of that Act refers to a mentally handicapped girl or women as an "idiot", "imbecile" and "feeble-minded". The Law Reform Commission suggested that that sort of terminology should be taken off our Statute Book, and I could not agree more. In paragraph 51 of their report the Law Reform Commission stated:

We have provisionally recommended that the offensive wording of section 4 ... should be amended by the substitution of words such as "mental incapacity" or "mental handicap".

It is an appalling insult to handicapped people to have words such as "idiot", "imbecile", or "feeble-minded" on our Statute Book in this day and age and unless there is some very good legal reason for it, this opportunity should be availed of to remove it.

I have already dealt in general with the Government's approach to the definition of aggravated sexual assault. I agree with the fundamental approach contained in section 3. This is a timely Bill which is being introduced to rectify particular problems. The question of whether we got it right or wrong in 1981 is now irrelevant. If we got it wrong in 1981 the reasons are irrelevant; the question now is: will we get it right this time? This is a difficult balance to strike. The Bill contains a number of radical initiatives and the Minister has just about got the balance right. I wish the Bill a speedy passage through this House.

Mrs. Barnes

For the second time I want to welcome the introduction of this Bill into the House and look forward to its completion on this occasion. We are all aware of the urgent need for the amendments proposed in the Bill and the change in attitude it exemplifies. Deputy O'Dea said it was irrelevant that the 1981 Criminal Law (Rape) Act did not fulfil what I hope this Bill will fulfil. However, it is very important that we put on record why the 1981 Act fell so short of the expectations of women and reforming legislators of that time.

I am glad to be able to say that the Bill fell short of expectations for positive reasons. I was involved with interest groups who lobbied at that time for the amendments contained in this Bill. I want to put it on the record of this House that attitudes had not changed sufficiently in 1981 to allow the inclusion in that Bill of the concept of marital rape, any extension of the definition of rape itself or aggravated sexual assault. We were not allowed at that stage to include in that Bill or in any Bill a provision relating to the emerging problem of child sexual abuse. It is good to be able to record that attitudes have changed over the years and awareness and consciousness have been raised to such an extent that we can go a long way, both in this Bill and in the Child Care Bill, towards protecting the rights of two of the most violently assaulted and least protected sections of our society.

Until the emergence of the women's movement and their research and writings, there was a common concept, unfortunately this concept still permeates some of this Bill, and I will refer to this later — that women were property and there was a very large onus on a vulnerable rape victim to prove her innocence and not be totally blackened and discredited by taking legal proceedings. Indeed, it is a matter of concern to all of us to realise that even today — this is one of the reasons this Bill is needed so urgently — only a minority of the rape cases reported to the rape crisis centres are ever processed legally. This is not an accident: it is because women know and have learnt to their cost that when having their cases processed through the courts the legal procedures dismantle their humanity and integrity, blacken their characters and, as has been said so often, they are raped all over again by the legal procedures in the courts. Women are very reluctant to go through that process.

It is astonishing that the people who are victims of the most violent crime, outside of murder, which causes the greatest violation of the integrity of a person, are afraid of how they will be treated if they take their case to court. I should like to think that in monitoring this Bill and by the success of amendments we will be able to stand up in this House in ten years' time and record a much higher level of legally processed cases.

We need to do two things. First, we should always bear in mind that this is a serious and heinous crime and what it does emotionally to the victim and, second get across to society the appalling violence which still pervades society where women are at risk. The research which has been undertaken on this Bill highlights two very basic points. The first is that up until recently there was a perception not just within the legal profession but also within society that in some way or another the rape victim invited such an assault. It was also alleged for far too long, until women proved otherwise — the negative product of this is still being felt — that this had to do with sexual titilliation or satisfaction. We now know, and let this be said again, that it has to do with violence, hatred and violation and nothing to do with sexual relationships between men and women. It has everything to do with domination, control and power.

I would like to think in speaking about the need to reduce the incidence of recorded sexual assault that women will be accepted as equal partners and independent in their own right and not at risk. I would also like to think that during the next 10 years we can create a society where women will be given equal opportunity, the right to walk the streets, to work and move independently at certain times and if a woman happens to be attacked, that we will not say to her that she should have known better.

I welcome the participation of male Members of the House in this debate. Some of the comments made so far I do not agree with but one thing I do welcome, as I know will the female Members of this House and women outside, the fact that men are being seen to take responsibility. For far too long this was seen as a campaign being fought only by women on behalf of women with the perpetrators of this crime believing that they were free of responsibility and could nitpick it within the judicial system. We have a long way to go before we change that perception and attitude. Only then will we have a society where women will be allowed to reclaim the night, walk where they want to and have the independence that men have to carry out their social and other engagements without being in constant fear of being violated and raped.

When I speak about rape I talk about the violation of women. The Law Reform Commission listened to and heeded what the victims of rape, their supporters and the counsellers of rape victims had to say. They were told what they needed, not what the legal profession believed was or was not acceptable to them. I compliment them for the wisdom they showed. They recommended that the definition of rape, which at present is very narrow, penile penetration of the vagina, should be extended to cover penetration of bodily orifices which causes as much pain and appalling injury. I cannot begin to express my disappointment or that of the Joint Committee on Women's Rights, women's groups or the members and staff of the Rape Crisis Centres throughout the country that the Law Reform Commission's recommendations were totally ignored by the Department of Justice and by two Ministers for Justice. This does not make sense, in particular to women. On page 6 of their report in relation to the extension of the definition of rape, the Law Reform Commission said:

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 went on to state that these included submissions from the Oireachtas Joint Committee on Women's Rights, representatives of leading women's associations, such as the Irish Countrywomen's Association, representatives of professional associations, such as the Irish Medical Association, trade unions, such as the IDATU and, more important, the Rape Crisis Centres. They also stated that the general consensus which emerged at the seminar they held to obtain the views of those dealing on a daily basis with the problems and trauma associated with rape was in favour of an extension of the definition. On page 7 of the report, they state:

We attach considerable significance to the fact that these views are held by persons who are in daily contact with the victims of assaults and who are in a position to observe their use of language. We were also told by them that appropriate labelling of offences contributes to the victim's sense of being vindicated and protected by the State and that any description which seems to understate the gravity of the offence or put it into a lesser category will be resented by the victim.

That is clear, simple, powerful language which reflects clear, simple and powerful demands from the victims of rape and those who counsel and support them and who, as the Law Reform Commission have said, deal on a daily basis with them. I ask why is such a consensus or a majority view being rejected and ignored by the Minister. It is a perfect example of a paternalistic, patriarchal male view that, regardless of the personal, human and very pertinent experiences of the victims and the supporters themselves, men know best. It is indescribably depressing in 1990 to stand in this forum and have the reflected views which the Law Reform Commission went to the trouble of eliciting overturned, overthrown and devalued by the Department of Justice in their drafting of this Bill and by Ministers for Justice who have come in and attempted to justify it. There is no real justification for it. However this Bill justifies a judicial system, a paternalistic system, that does not allow for real needs and experience and for the legislation long delayed and long called for to be brought properly into this House. I hope this Bill does not go beyond Committee Stage without Members making sure that we extend that definition of rape. The majority of people I am talking about here would desire that. That is what democracy is all about regardless of — or should I say even in line with — the fact that we would be also acceding to the call of the rape victims if and when we extend that definition.

Out of the detailed and very wide representative views the Law Reform Commission gathered they said that any description of rape — as they and all the other groups including the Oireachtas Joint Committee on Women's Rights recommended — which seemed to understate the gravity of an offence and put it into a lesser category would be resented by the victim.

What is this Bill supposed to be about? It is supposed to be about the support, protection and the legal process that will ensure some kind of justice for the victims of rape, yet in the words of the Law Reform Commission in 1990, nine years after a very badly amended Bill in 1981, we are ignoring all that and attempting once again to bring into this House a Bill with a section which the Law Reform Commission can rightly say will be resented by the victim. For whom are we bringing it in? For whom is this Bill supposed to be? This is our judicial system again.

I have heard Members of this House in Opposition say that because there was a Law Reform Commission minority report on the recommendation to extend the definition of rape, that is the definition that should stand, it was the one that had the gravitas, the experience and the expertise. Where does that leave the majority of the Law Reform Commission and the women as supporters and women as counsellors? It is not even democratic. Unless we extend that definition I regard this Bill as seriously flawed and an insult to women.

I am glad to record that the first Oireachtas Joint Committee on Women's Rights recommended an extended definition of rape. The strong chairwoman, Deputy Máire Geoghegan-Quinn, now Minister of State, has always held that the definition should be extended. Under my chairmanship the second Oireachtas Joint Committee on Women's Rights upheld that view and it was endorsed by the newly established Joint Committee on Women's Rights whose vice-chairwoman, Deputy Wallace, is about to speak. All those Members of those committees, Members of all parties, have endorsed and totally supported the Law Reform Commission and their recommendation to extend the definition of rape. Where do we go from here if that does not carry enough weight to have this definition changed on Committee Stage? It is believed, for whatever esoteric reason, by the Minister and his drafting team that it is not necessary or even desirable. The Ministers even suggested that there was no real consensus on or demand for this.

The obsession with defining the crime of rape and insisting that it relates only to penile penetration of the vagina is a long outdated, redundant, patriarchal view of women as property. Many women writers, historians and researchers have pointed out that the law pertaining to rape began as a protection and a compensation to her guardian, father or husband, for the loss of a woman's virginity. Unfortunately, by not allowing the definition to be extended and by confining it to this rigid, long outdated concept, we are merely perpetuating that concept. In the past the risk of pregnancy would have been great, but that does not obtain today, fortunately. Today the risk of damage and even disease to women is through anal sex or oral sex which this Bill does not accept as rape. Forced oral and anal sex can lead not alone to the violation of the integrity of the person and damage, physical, emotional and psychological, to a horrific degree, it can leave victims wide open to venereal disease and AIDS. That has not been taken into consideration in the definition we are asking to have extended. Considering the societal stigma of rape, it goes beyond belief that this extension has not been included in the legislation.

The inclusion in this Bill of the concept of marital rape is welcome even at this late stage. I would like to stitch into the record a rebuttal of some of the fears many men have raised, that frivolously, vexatiously or because she had a slight disagreement with her husband, a woman, forever deceptive and deceiving, will rush out and allege rape against him. The Law Reform Commission recommendation was framed to ensure that that could not happen, but inherent in that is the suspicion that women find it easy, frivolous and vexatious to allege they have been raped. One has only to talk to a woman victim about the enormity of being raped and what has happened to her confidence, her integrity, her life on a day to day level, to understand that women do not lightly allege rape and with regard to a relationship such as marriage, they are very loath to allege such a strong and stigmatising action by their husbands.

Some research has proved, unfortunately, that there is a very high prevalence of marital rape, and that is why the inclusion of this measure is to be welcomed. Let me refer to research done in 1980 in the US by Diana Russell whose findings showed that sexual assaults by husbands were the most common sexual assaults, occurring more than twice as frequently as sexual assault by strangers. Further research into rape in marriage also showed that women and wives who had been raped were most loath to face up to the reality of what their husbands had done to them. It showed also that many people fail to become alarmed about the problem of marital rape because they think it is rather less traumatic than rape by a stranger. Some of the research in this area has shown that women raped by husbands are often traumatised at an even more basic level in their ability to trust anyone. It touches a woman's basic confidence in forming relationships and in trusting intimacy. It leaves a woman feeling much more powerless and isolated than if she were raped by a stranger.

I am glad that we have recognised the reality of the legal protection we should give to a wife who is raped by her husband. It may have been something swept under the carpet or seen as one of the side effects of marriage for a woman, but at the psychological and emotional level it can be more traumatising and result in long lasting feelings of lack of trust, lack of intimacy and a total inability to form relationships on a human level.

On Committee Stage I will deal with two other areas which are not covered by the Bill. One is the treatment of sex offenders. Even during the past week we have seen the record of a woman brutally raped by a man who had already been sentenced and allowed out from prison where he was serving a sentence for an earlier rape. The psychiatrist said that because the man had not been diagnosed as mentally unbalanced there was no psychiatric reason for containing him or extending his sentence. One of the most vital protections which must be built into this Bill is that rapists who are tried and sentenced, especially if they have committed a series of violent rapes, are kept in custodial security until such time as they are safe to be allowed out and are not a danger to others. That will only come about by an investment of resources in the treatment of sex offenders while they are in prison and later when they are outside in the community on a long term basis. Unless we provide for this, this Bill will be merely a stop-gap. There will be horrific rapes and murders which result from our inability within the judicial system to contain sex offenders whom we know to be dangerous.

Section 35 states that the Bill has no financial or staffing implications. It has staffing and financial implications with regard to giving the necessary staff and proper resources to Rape Crisis Centres to support, counsel and encourage women to go through a judicial process that will get them some kind of justice and compensation for what has been done to them. If we are serious about protecting women in this situation we must ensure proper investment in counselling and supporting women victims. What has been happening up to now is a disgrace and a denial of women's rights.

The judges need to get their act together or we as legislators must do it for them to ensure that proper guidelines are established with regard to sentencing for the kind of serious crime we are dealing with here. I would refer to the British Weekly Law Reports of 28 March 1966 where discussion along these lines led to the creation of the necessary guidelines. The statistics show that sentences were so trite, so ridiculous and so confounding in certain stages, that public pressure brought about the introduction of guidelines for the sentencing for serious crimes. It is a reflection on women in our society that no such approach has been seriously thought of yet.

Miss Wallace

I welcome the opportunity to speak to this important legislation. Deputy Barnes referred to the changing of attitudes. This is a relevant element in the amendments included in the Bill. They incorporate the many changes in the attitude of the general public in this area.

The Bill includes vital elements to improve the position for victims, an area about which we are all concerned. Additional important measures to deal with the offenders are also included. It is a seriously disturbing feature of our times that the number of rapes continues to increase and the severity of the attacks is getting worse. There are grounds for concern in this whole area. To examine the reason for such developments which degrade persons and reveal a sickness in society would be helpful.

The main problem is the major difficulty regarding statistics. Many people fail to report the crime. Figures indicate an average of two reported cases of rape per week and three reported cases of indecent assault. These are just the reported cases. I would share the concern of other speakers about the reluctance among women to report the crime and to take the case to court. I am confident that the improvements in the Bill will bring about an improvement in the whole area and that we will have greater reporting of the crime and more cases being brought to justice.

The deliberations of the Law Reform Commission have yielded a comprehensive treatment in this whole area. The major recommendations have been included in the Bill, with the exception of the definition of rape. Great concern has been expressed by many people as to whether the definition of rape should be extended. It was stated earlier that the Law Reform Commission divided on this matter whereas they made clear recommendations in other areas. I gave much consideration to this matter, and indeed many speakers have referred to this also, because the question as to whether rape should be redefined is important. I am concerned about this whole area because we are dealing with a very reprehensible crime and all possible measures should be taken to ensure that the strongest and most specific legislation is in place to cover this whole area.

When this Bill was discussed last May there was much concern about the definition of rape and whether it should be redefined. The Minister at the time said that he and the Government would have no hesitation in extending the definition if they thought it was the correct approach. He went on to say that the Government were endeavouring to take into consideration the victim of rape, the victim of indecent assault and the general public. There is varying information and varying opinions on this. People are concerned that if the definition is extended it may remove the stigma which is attached to the crime at present. Apparently in other jurisdictions where this definition has been extended, problems have arisen where perhaps minor assaults were included under the term of rape. I do not think you could seriously describe any sexual assault as being a minor assault but there are definitely varying degrees of assault and this must be taken into consideration.

We have to be careful not to enact legislation that would cause technical problems in the courts. While we can see the benefits of extending the definition of rape, we have to balance this against the problems that may arise if this extended definition is made. There is no doubt in my mind — and indeed it is the view of the general public — that the concept of rape is crystal-clear and has been so for generations. Practitioners say that because the present definition is so clear, no difficulties are created in prosecuting cases in court. Again, this is an important element to be borne in mind with regard to this whole area.

The main concern in criminal law is to apprehend, convict and punish the guilty. If changes were made that would perhaps cause difficulties. There is no doubt we would be concerned. Appalling attacks take place which would not be termed as rape at present because they do not involve sexual intercourse but they are just as traumatic for the victim as rape would be. This term in the Bill called aggravated sexual assault should, I hope, cover those areas, particularly in view of the fact that aggravated sexual assault will carry the same penalty as rape. This is a welcome development in itself.

Since the introduction of the 1981 Act there has been an average of 150 reported cases of indecent assault on females every year. I hope the imposition of harsher sentences will, as Deputy Barnes said earlier, provide an adequate deterrent in this whole area. Aggravated sexual assault will also carry the maximum sentence of life imprisonment. Heretofore, similar cases tried under indecent assault have carried a maximum penalty of ten years imprisonment. When dealing with despicable and appalling crimes, the courts will now be able to impose life sentences. It will also be possible to try such cases in the Central Criminal Court as distinct from the Circuit Court and that is a good idea. It is particularly important to me as a rural Deputy and to people in rural Ireland that such cases would not be heard in the locality of either the man or the woman involved. I am encouraged by the provisions in the Bill which show care for the victim. To relive the event in court is a traumatic experience for the victim. No amount of legislation will erase that anguish but at least the reforms included in the Bill display somewhat more humanity than heretofore.

The exclusion of the public from court cases, as provided in section 10 of the Bill, will relieve the terrible trauma experienced by the victim. Despite the provision in the 1981 Act that people's identities be protected, this still caused concern for people bringing cases to court. The exclusion of the public from the court will, hopefully, protect the identity of the unfortunate victim. It is harrowing enough for a woman to have all the intimate details of her private life discussed without the entire proceedings being conducted before an audience which unfortunately, has been the case in the past.

The extension of particular measures which currently apply to rape trials to cover all victims of sexual assault is welcome. Since the 1981 Act the name of the rape victim cannot be made public and under this Bill the names of the victims of sexual assault will also be protected. There are additional restrictions in regard to sexual assault cases in that the prohibition on the introduction of evidence, by cross-examination or otherwise, on the sexual history of the victim, which currently applies to rape cases, will also be extended to sexual assault cases.

Very significant also is the decision to provide for the abolition of mandatory warnings about the dangers of convicting a person on the uncorroborated evidence of a complainant in offences of a sexual nature. Again, there is no doubt that this type of warning would raise unnecessary confusion and uncertainty in the minds of jurors, particularly in cases of rape and aggravated sexual assault where, it must be borne in mind, it is rare to have witnesses. The person perpetrating the crime will have carefully chosen the venue and, therefore, the possibility of having witnesses would be remote. Allowing the trial judge to decide whether to give a warning is a practical move and is in appreciation of the realities of litigation.

Given the violence used in many instances, I am glad the failure to offer resistance to an act that would constitute an offence does not, under the Bill, constitute consent to the act in question. It is appropriate that the failure to resist shall no longer be used against the complainant in court. Frequently the victim leaves herself open to further injury by putting up physical opposition. This is terrible but it is a reality.

Finally, no contribution to the Bill would be complete without reference to the proposed removal of any rule by virtue of which a husband may not be guilty of raping his wife. Again, this is a particularly good reform. It represents an emphatic declaration by the State that a wife cannot be treated as the chattel of her husband, to be used and abused with impunity. I recognise the vulnerable position of many women who endure lives of fear and trauma. For such spouses married life is a complete negation of what marriage is intended to be and of what it is hoped to be. We all accept that there is a tiny minority of husbands who would abuse their wives in this way, but unfortunately they do. If it has not been possible to stop them up to now, we hope that these sections in the Bill will have an effect in this area.

The Bill introduces welcome reforms. The appropriate balance between what is possible and what is practicable has been struck in the Bill. It will never be possible for women to feel safe alone at night or on occasions during the day. It is a terrible fear that every woman carries, regardless of her background or circumstances. There is a constant fear of being attacked and this creates a fundamental difference between how men and women approach their daily routine. For many women travel and connections have to be planned with exact detail so as to ensure that they are not alone or left in circumstances which could lead to danger for them. It is an ever-present feature in the minds of women although sometimes it is subconscious. Legislation will not remove the fear but I hope that what is contained in the legislation will protect women who have been the unfortunate victims of this terrible crime. To all women it is the worst, the lowest, the most despicable crime of all. I hope that what is contained in the Bill will help to improve the situation of the unfortunate victims of this terrible crime.

Mrs. Fennell

I already welcomed this Bill in the Seanad as Opposition spokesperson, on 15 December 1988, so my general reaction and comments on it are already on record in that House. The time span between December 1988 and today is lamentable because it indicates the slow pace of legislative procedures in this Parliament but it should have enabled us to have reflected fully on the proposals in the Bill and on public reaction to some sections of it.

Concern was expressed early in January over a specific rape case in our courts dealing with an 11 year old girl who was raped by a man, a boyfriend of her mother. Although the man went through the courts and pleaded guilty he was given a suspended sentence by the judge. The public outcry and general unease caused by this case was understandable. The fact that a grown man knowingly sexually assaulted a vulnerable little girl in this way and then got off virtually scot-free is a very sad reflection on how the crime of rape can be treated here. It can be said that this was an isolated case and that the public reaction to it sent a powerful message to the courts, and that such a case will not happen again, but our legislation should be framed in a way that will not allow such a situation to happen again. Periodic outbursts of anger and frustration by politicians and others are no substitute for proper legislation and a legal framework that ensure justice and equity in our courts. I do not go in for Judge or district justice bashing but when a very incorrect decision is given, as in this case, the public have an obligation to speak out and voice their reservations and objections to such a decision.

In the light of this case we should reexamine this Bill further to see if it can be strengthened. I propose that for those crimes drunkenness should not be a defence. I feel strongly about this matter, because again and again this is the defence that is put forward with pleas for leniency on the basis that a person is not fully aware of what he was doing. Such a defence should draw an even harsher penalty in order to uphold the principle that a person is responsible for his actions whether or not he drinks. A drunken state should not be a defence. This case also shows a need for sentencing guidelines, a matter to which I will come back later.

A further question posed by the case is the right of both sides to appeal. As far as I am aware, at present in the Circuit Criminal Court the defendent can appeal the sentence but the prosecution cannot appeal on the basis that a sentence was too lenient.

Let us look at the history of the Bill. No greater consultation, analysis and examination could have been given to legislation in preparation and the Bill is all the better for that. It is interesting to note that only in this month have the suggested changes in the law, in line with what is in our legislation here, surfaced in the UK. For once we are ahead of them in initiating in this Bill a section dealing with rape within marriage. I hope we will get the Bill through ahead of the British Parliament which tends to be much more efficient in these things in terms of drafting and passing legislation.

The initiation of the original campaign for change came from the Dublin Rape Crisis Centre seven years ago which at that time was headed by the very dynamic Anne O'Donnell. There was no great political acceptance then of the need for reform, as the last amendment to this legislation had only been in 1981. However, the people at the Rape Crisis Centre continued to lobby and plead their case. Eventually the need for reform was accepted and the Attorney General referred the issue of rape legislation reform to the Law Reform Commission for their attention.

The Law Reform Commission under the presidency of the Honourable Mr. Justice Ronan Keane did splendid work and I commend them for their commitment and efficiency in this matter. The Law Reform Commission consultative paper was published on 1 December 1987. This was followed on 30 January 1988 with a one-day seminar, the objective of which was, within a small group, to discuss the proposals of the consultative paper and listen to counter argument and consolidate views on reform. The final report of the Law Reform Commission was published on 3 May 1988 and it in effect became a blueprint for this Bill. I am also aware of the very important role played by the Oireachtas Joint Committee on Women's Rights, as they in January 1987 published a very broad and honest report which reflected in large part the proposals of the Law Reform Commission. Given that degree of consultation and expert reflection this Bill should satisfy the needs not only of our time but of the years ahead.

I welcome the Bill in general and specifically many of the proposals, for instance the abolition of the exemption for marital rape, the acceptance that a male under 14 can be capable of rape and of hearings in camera, as well as the change of venue to the Central Criminal Court. However, I have reservations which have been voiced by other speakers in this debate and which I voiced in the Seanad. These are related to the fact that there is no independent legal representation for the victim and that the definition of rape does not include non-consentual sexual penetration of the vagina, anus or mouth by the penis or an inanimate object. As I said, this has already been stressed.

The issue of this Bill was never a party matter. All Members in the House appreciate the heinous nature of the crime of rape and sexual assault. There is a will and commitment to seeing the legislation enacted as effectively as possible. However, Members on this side of the House will be tabling amendments on Committee Stage. I ask the Minister to be open-minded and receptive to those changes because the Bill must be as good as possible and our changes must be seen in this light.

In recent years we have seen an increase in the number of rape and sexual assault offences. According to the Garda Síochána the number of reported cases in 1978 was 47; in 1986 that had gone up to 74, in 1987 there was 75 rapes and 158 indecent assaults and in 1988 there were 61 rapes and 226 indecent assaults. However, these figures do not reflect the true number of instances of rape and sexual assault as statistics supplied by any of the Rape Crisis Centres and the number of assaults reported to them can be ten times the number of rape offences reported to the police.

Nobody involved with rape victims is surprised that there is such a divergence between the number of cases reported to the Garda and the number of rape cases known to the Rape Crisis Centres. Anybody who has worked with the victims of rape know the reasons for this imbalance in the figures. Most women are reluctant to pursue the matter through the courts because the perception is that it is an ordeal of great trauma and stress and that the court is a place where they will be harried and bullied. They feel that they are on trial rather than merely a witness in a trial. It is not surprising that such workers say that many rape victims refuse to testify.

As was pointed out on page 2 of the consultative paper of the Law Reform Commission, a change in public attitudes towards rape is one of the most important influences in reporting trends. However, in this Bill we are dealing with a crime that is mainly perpetrated by men against women. I do not think that any man could understand the legacy of distress, fear and scarring that sexual assault and rape leave, because men do not feel this horror as women do. I am not saying that they are uncaring or unsupportive. Of course not — many men care very deeply about this violence to women and will be able to speak freely about it, but this is not the general case. Most men are embarrassed and uneasy about the subject of rape and do not went to give their opinions on it. Indeed, some men think it is a bit of a joke and regard it as something to snigger about.

I cannot imagine that if women were responsible for such violent acts against the opposite sex they would not take a serious critical approach to it. They would want to know more about the motives for it, to seek some way to deal with its perpetrators and want to make amends to the victim. The way men deal with this problem probably says a lot about the reactions of men and women to specific problems related to sex. I do not know of any men's organisations addressing the matter of male sexual violence or rape. It has been left to women, through their organisations, to cope with the trauma of the victims. Without the work and dedication of those in the Rape Crisis Centres throughout the country we would have a very serious problem indeed. It is sad in this context that the Dublin Rape Crisis Centre has been in such a depressed state financially and are still uncertain about their future. We have heard fine words and there have been worthy statements about them, but too often the money to secure their work has not been forthcoming. I am very happy that an allocation was made to this group in the recent budget.

The work in this House passing the Bill is very important but it is equally important to ensure adequate financial support for the Rape Crisis Centres throughout the country. These centres are not a luxury, they are doing extremely important work which is not done by any other Government agency.

I regret that the definition of rape has not been extended to cover the kinds of offences called "sexual assault" and "aggravated sexual assault" in the Bill. I also regret that the Minister did not accept the recommendations of the final report of the Law Reform Commission. I am aware that there was a minority report and that two members of the Commission — the President, Mr. Justice Ronan Keane and Mr. Simon O'Leary — dissented from the report. These two men, for their own reasons, set themselves against the tide of opinion which ranged from the Oireachtas Joint Committee on Women's Rights, the major women's organisations and the other law reform commissioners, to the participants in the one-day seminar and many others. I should like to know why the Minister was swayed by the minority report rather than the majority viewpoint. What was the thinking behind the decision of the minority members at page 24, paragraph 61, of the report. I quote:

While it may be that such benefits will result from a change in the law, we think it is impossible to say that this has been satisfactorily established. It is undoubtedly the case that the overwhelming body of submissions to the Commission and of the views expressed at the seminar took the view that they would extend the definition of rape. But we do not think that it necessarily follows that this reflects the view of the community as a whole on the meaning of rape. We think it at least possible that precisely because of their close involvement in the subject that the views of some of those who made submissions to us in this matter may not be the same as those of the community at large. It would in any event be presumptuous in our view to reject the possibility that the community's view as to what constitutes rape is more acurately reflected by the existing definition, i.e., that it is a violent abuse of the sexual act which can provide the most complete expression of love between men and women and normally enables conception to take place.

They further say that in the same section all the criticisms now being made about the present definition were advanced as recently as 1981. There is a shade of arrogance in believing that such a strong force of majority view of an issue should be interpreted by them as not reflecting the views of the community as a whole. What is the view of the community as a whole? How do they have access to that view if not through the representatives in that community? I regret that the thinking in this minority report appears to be so conservative and backward-looking and unable or unwilling to see the need to take a broader, more embracing legal view, of all crimes of rape and violent sexual assault.

I should also like to put on record my reservations about the reluctance to give independent legal representation to the victim. This has been a very fundamental proposal by all those involved in rape reporting and it is worth putting on record the views of the Rape Crisis Centres in their report to the Oireachtas Joint Committee on Women's Rights. They said:

Most complainants of rape with whom we have worked found the experience of a criminal hearing to be horrific, degrading and humiliating. Many of our clients experienced the court case as being worse than the actual rape, describing it as like being raped again in public in a hostile and frightening environment. In no other criminal case would the complainant be subjected to the type of cross-examination and humiliation prevalent in rape cases during the defendant's efforts to prove her consent to the alleged rape. It is futile to argue, as do many members of the legal profession, that the role of the victim of rape is identical to that of the victim of other crimes such as robbery, common assault, larceny, etc. As a witness in court she is clearly placed in quite a different and really more taxing and upsetting role as a witness and, therefore, deserves to be prepared for the experience ahead of her. Even from the State's point of view it is surely desirable that their first witness should be as confident and relaxed a witness as is possible under the circumstances. Lack of preparation can and often does result in the prosecution not being successful.

On this matter there seems to be great divergence of opinion between the Minister and those of us who are seeking change. I hope we can meet and decide to resolve the problem. If we do not go as far as the radical departure of having a counsel in court for the witness, then we must come up with another suggestion to met the perceived needs in this case. The submission from the Rape Crisis Centres seeks that the complainant would have her own legal representation to protect her interests and more actively fight the case on her behalf. The Rape Crisis Centres submission speaks for itself and should be given more serious consideration. It certainly puts in context the suggestions that a rape trial is different from any other criminal trial. The woman as a witness plays a different role from that of any other witness. That is a very fundamental area and will need more examination and response.

If we are to see changes and make it easier for witnesses to testify, we must change the present procedure. I know, and women complainants know, that a defence counsel is only doing his job well when he succeeds in undermining her, portraying her as unreliable and that counsel will bully her and provoke her to that end. Indeed, very often counsel will suggest that the woman looked for rape and this was her just desert.

With regard to section 6, I suggest that the evidence as to the past sexual history of a woman is still admissible in certain circumstances, although this area certainly has been tightened up. I am pleased that the marital rape concept has been accepted and this will end the extraordinary situation in which it is presumed that sexual violence within marriage is less serious than rape committed by strangers and others.

There is no evidence to show that a victim of forced rape by a husband suffers less pain and degradation than any other rape victim. This change is needed particularly where husband and wife are living apart with or without a separation agreement. The change to accepting that males under 14 can commit rape is welcome. I know of cases of such assault and I realise that a boy of this age cannot be given the same sentence as a man. He will certainly need custodial care and intensive psychological therapy.

My reservations regarding the Bill are clear. I regret that the opportunity was not taken to extend the definition of rape instead of introducing new offences. I regret that no concession has been made in the area of legal representation for the complainant but it is my wish that on Committee Stage we will go into this in more detail and reach a consensus in regard to it. I have to say also that I have severe reservations about the sentencing policy and I would like to see guidelines laid down.

The Oireachtas Joint Committee on Women's Rights had the following to say in their report on the question of sentencing:

The perceived disparity in sentencing in rape and other sexual assault cases has been a matter of concern for many citizens in this country in recent years. Members of the Joint Committee acknowledge that the demands from the general public for a more consistent level of sentencing in all criminal cases must be listened to and action taken to allay their fears. The Members respect and support the independence of the judiciary, an independence enshrined in the Constitution. It is their opinion that the members of the judiciary themselves should examine the situation to see how a more uniform system of sentencing could be established. The committee are convinced that in the interests of having a consistent level of sentencing by all judges a set of guidelines for sentencing should be laid down for sexual offences and all other serious crime. Such action would not only allay the fears of the general public but would help to maintain a high level of respect for the law. It is worth nothing that in Britain where the maximum sentence for rape is life imprisonment the Lord Chief Justice in an appeal case last year referred to the need for adequate sentencing and suggested guidelines a judge might follow in cases involving rape.

I should like to ask the Minister to set out for us the procedures under which a set of guidelines for sentencing could be laid down and give us his reservations, if he has them, about this matter. He should do that when replying to Second Stage. It is one more of the central areas of concern for the public and on which they feel very helpless. In this debate we must go some way towards satisfying that concern.

Further issues arise such as the problems of treatment or therapy for offenders. Research has shown that unless the behaviour pattern of sexual criminals is altered they will continue to commit crimes. We also know that a great number of sexual abusers, sexually violent men, have been the victims of sexual abuse as children. That is something that must be addressed in a special and concentrated way. The Bill must aim to give maximum protection to women and this can only be done if there is a provision that a rapist takes treatment both during his prison term and after release.

I should like to refer to what I consider to be a certain ambivalence to sexual crimes committed by men. There is a tendency to classify rape or sexual violence under the heading of male violence. The attitude appears to be that such crimes will always be with us. We have always had rape. We have had rape during and after wars, and the rewards for war and so on. We should not get too upset at the thought of getting rid of the crime of rape. Why should we have to accept that rape as a violent crime by men against women is a crime that will continue and will be dealt with in our courts? We know that male behaviour is more violent than female behaviour. Certainly, males respond under stress by wounding, beating or killing. That is perhaps due to conditioning. It may be due to societal expectations of men's behaviour.

One can get a clear example of that if one looks at the number of prisoners, male to female, in any country. We have in the region of 13,000 male prisoners but never more than 50 female prisoners. Many of the men are in prison for violent crimes. We have to challenge the notion that it is almost all right for men to be violent, that it is part of their psyche, part of their make up and that rape is part of that. I am baffled by some of the instances of rape. In many instances the houses of old women are broken into. They are harmless and vulnerable old women and the criminal breaks in with a view to stealing. That may be understandable but I cannot understand why allied to that he must sexually attack and abuse such a woman. That should raise anger in the hearts of every man. It is such deplorable and extraordinary freakish behaviour that it should be questioned by everybody.

When will men begin to question why they resort to or indulge in this type of sexual violence? Men are guilty of violent behaviour. We have wife beating, child beating and men engaged in violent sports such as coursing and hunting. Men are the people who go to war and who shoot other men and women in Northern Ireland. If women were responsible for such a grave crime as rape or sexual assault they would have confronted it, examined the motives of those involved and challenged the traditional notion of such violence. Women in the past 20 years would not have sailed on without doing something about such crimes. They would have formed groups and prepared reports on such crimes. They would have tried to change the tradition in regard to them. I do not think women would have tolerated such violence in our society. I appeal to men to take these crimes seriously. They are the people who are perpetrating those crimes. They have to take some collective responsibility for what is happening in society in order that different role models, new standards of value can be handed down to their sons and daughters.

Miss Quill

In all the catalogue of crimes committed against the person the crime of rape is certainly the most horrible, the most horrendous and at its very ugliest when the victim happens to be a child. One of the sad and sickening features of modern life is that in recent times there have been so many indecent sexual assaults committed against children as well as against women. Any society that treats such crimes lightly can hardly claim to be a humane and civilised society. However, in the past ten years major advances have been made in this country in relation to our attitude to rape. These fundamental changes are mainly due to the enlightened efforts of bodies like the Law Reform Commission and the Joint Committee on Women's Rights. At this stage I would like to pay a tribute to Deputy Barnes who has battled bravely and long to change the attitudes I have just referred to. She deserves to be commended for taking on a battle when it was less popular and less supported that it now is. I am glad to be here this evening to pay her that tribute. These fundamental changes in attitudes are due to people like Deputy Barnes and the great and enlightened work that has been carried out by the Law Reform Commission and also to the ongoing struggle and battle that has been carried out by the dedicated workers and spokespersons of the Rape Crisis Centres throughout the country.

It is altogether fit and proper then that we as legislators should respond to these changes in attitudes and that our laws should reflect the concerns expressed so consistently by the people whom I have mentioned and that our laws should be well informed by the recommendations of people like those who make up the membership of the Law Reform Commission and the Joint Committee on Women's Rights and the other bodies I have mentioned.

This legislation is crucial. It seeks to remedy serious inadequacies in the 1981 Act. That Act was so inherently flawed that only a small percentage of actual rape cases could be and were criminalised. Indeed, the law was so administered that a large number of victims have, in the past, elected not to report the crimes. This surely is one of the saddest commentaries on the law as it was administered when a number of women elected to suffer the crimes in silence rather than subject themselves to the kind of probing that very often took place in courtrooms where, in many cases, more time was spent in probing a woman's previous sexual history than in probing the circumstances of the actual crime under consideration. This, I hope, will cease when this new Bill becomes law. The overriding principle in all legislation must be to strike a just balance between the victim and the accused. In many rape cases in the past the victim was very often treated almost as badly as the accused. I hope that will cease from here on in. When this Bill becomes law I think that will happen and that a fairer balance will be struck. I also believe that the new cultural values that are emerging, and which have been referred to by the previous speaker, will force us to confront fully and for the first time the fact that rape is a gross attack on the human dignity and the bodily integrity of a woman and that in all too many cases it leaves deep and permanent psychological and psychiatric scars and that only the severest legal sanctions can offer women, in particular, and society in general the protection it needs from crimes of this kind. I hope that nobody will assume, from the preponderance of women speakers here this evening, that rape is a woman's issue. It certainly is not. It is an issue that concerns all civilised people and deeply concerns men as much as women. I would not in any way wish from the preponderance of women speakers that it would be adjudged to be a primary concern of women; it must also become a concern of all civilised men.

I welcome the widening of the definition of rape. It is high time to acknowledge that rape can and does take place within marriage. Indeed, many unfortunate women in this country are locked into marriages where sexual abuse, assault and rape are common occurrences. I commend the Minister for his proposal that the marital rape exemption be abolished within the terms of this Bill. I also maintain that the institution of marriage and the privacy of marriage is well safeguarded within the terms of the amendment, since prosecution in the case of marital rape can only be initiated by the Director of Public Prosecutions. With that in-built precaution it is hardly likely that flimsy or frivolous cases will reach the courts.

Lenient sentencing and the lack of a uniform sentencing policy is a matter that has caused grave concern in recent years. One is sometimes forced to conclude that in this respect we in Ireland have made little change in attitudes since the days when Venetian judges once listed rape as a crime against the property of husbands and fathers. I hope that when this Bill becomes law we will finally walk away from any remnants of that attitude.

Mrs. Barnes

When they extend the definition as well.

Miss Quill

Exactly. I am confident of a major improvement as a result of the manner in which sentencing is addressed in this Bill. Sentences are being increased for certain redefined offences. If the law is to act as a deterrent to crime it is of fundamental importance that the punishment must fit the crime in all cases. Some of the Rape Crisis Centres have kept a record of sentences handed out in rape and sexual assault cases over a period of years. The inconsistencies shown up in that record are nothing short of extraordinary. If this amending legislation is to achieve its stated aims the Minister for Justice will have to address himself to this problem. I am not quite sure how it could be done. Perhaps he could call on the assistance of the Attorney General but one way or another how it is to be done is a matter for him but what needs to be done is this: a clear set of guidelines must be set down for our judges and they must then be adhered to.

It would probably be cheeky of me to say that in-service courses might not go amiss in some cases even when it applies to people who are in extremely high positions in this land. If civil servants, teachers, typists and many other people have to undergo in-service courses to bring their skills and their attitudes into line with modern practice and modern thinking, perhaps it is time that some gentlemen — and they are mainly gentlemen — would take time off to bring themselves and to keep themselves abreast of current thinking in relation to the policies of sentencing for hideous crimes such as that of rape. I have no doubt that the Minister could usefully address himself, out of the House, to this matter because what we are putting in place this evening is not something for the Statute Book, it is something we want to see enacted in all its provisions and enacted meticulously within our courts and within our judicial system.

There are two matters in this Bill which I want to address particularly. One refers to the creation of new categories of sexual offences as opposed to the widening of the definition of rape, and the second is the hearing of all cases of sexual assault in the Central Criminal Court. With regard to the creation of new categories of offences, this Bill proposes to replace the offence of indecent assault, which has a maximum penalty of ten years imprisonment, with two new offences: (a) one of sexual assault with a maximum penalty of five years and (b) aggravated sexual assault with a maximum penalty of life imprisonment. Further provisions, including the practices in these cases and the places of trial, mean that for all practical purposes these offences are being treated as rape in everything but in name. The word "but" is crucial in this context.

The Law Reform Commission report on rape recommend that rape should be defined, and I quote "so as to include non-consensual penetration of the major orifices of the body by an inanimate object held or manipulated by any other person". In refusing to accept this recommendation the Bill proposes a new offence which has become accepted as rape. There is a strong case to be made that those who have suffered such non-penile penetration feel raped and invaded, and not just sexually assaulted. The exclusion of non-penile penetration from the definition of rape also highlights the sexual aspect of the rape crime when, in fact, rape is a crime of violence more than a crime of sex. Therefore, this is a very important point which needs to be looked at again by the Minister and I suspect it may well be the subject of an amendment on Committee Stage. I ask the Minister to have a look at this issue again and the redefinition as contained in the amendment.

The transfer of cases to the Central Criminal Court is a step in the right direction but the speed with which cases are heard is of utmost importance in cases of rape. Women who have undergone the trauma of rape will not undergo the healing process from that experience unless and until such time as their case has been heard in court. The healing process of any woman who has to relive, describe and re-enact that experience months or maybe years later in a courtroom will be delayed to the detriment of that woman. It is wrong to allow too much of delay in bringing these cases to justice. That is the only fear I have in regard to the transfer of all cases to the Central Criminal Court. On the one hand, I fully support this move but, on the other, I would caution against the effects of any undue delay. I am sure it is not beyond the capacity of the Minister to put matters right in that respect. The trauma of the crime is enormous. Obviously the recovery of a woman is affected by the time which elapses before the case is brought to court and the shorter that time the sooner the healing process will take place. if it is to take place at all.

I welcome the Bill. It strikes a fair balance between all the different elements involved. It is a Bill to which I can give my support. I am certain there will be amendments on Committee Stage but in general terms there is before the House a Bill which has the support of all parties. It is an enlightened and well-informed Bill and I am glad steps have been taken to ensure that Second Stage will be completed tonight so that it can have a speedy passage through this House. The sooner the provisions of this Bill become law the better for everybody involved and the better for the credibility of all of us here. This House has acted very responsibly in the manner in which it has brought in this amending Bill so soon after the 1981 Act. This is one of the times when legislators have listened and in that respect we can claim the credit we seldom get from the general public. I am very glad that all steps have been taken to ensure that this Bill goes through the House without any undue delay.

As somebody once said — I am not sure who said it and perhaps the Leas-Cheann Comhairle will be able to tell me —"Let me write a nation's song and let he who will write its law". Laws are very important — we should make no mistake about this — and the discussion on this Bill gives us an opportunity to say that we cannot confront fully the horrors which stem from rape and child sexual abuse. The law is not the only weapon which can and must be used to confront this problem. There is a need for more consistent and sustained education in this area so as to shape and change people's attitudes.

I suppose it would be regarded as old-fashioned nowadays to refer to a time when men and women were protected within society. Very often the protection women were afforded took on a false and phoney kindly complexion which a modern women would not welcome. That is not what I am advocating; I am advocating a restatement of those values in modern times where a society will protect and value its women and children. We could try to promote this concept within our educational system with benefits to society in general. It is in nobody's interest that crime, petty crime and crimes against an individual have increased in modern society. It is a contradiction of the strides we believe we are making in certain fields. We are making enormous strides in the fields of science and technology but in many cases we seem to be going backwards in the field of human relations. It is time that our educational system and other agencies which shape human thought confronted this area with a view to bringing back into our society some kind of more civilsed approach and attitude to young people in particular and women also.

There is broad agreement in this House on the provisions of the Bill. Everyone who has spoken to date has spoken with a great degree of seriousness, sincerity and goodwill. I hope that goodwill will be reflected in the practical assistance we give and continue to give the Rape Crisis Centres throughout the country. These centres have done an enormous amount of good work over the years, very often on a shoestring budget. I welcome the provision of additional moneys made available for these centres in this year's budget but the system of funding of the Rape Crisis Centres is such that from year to year those who run the centres do not know whether they will have any income the following year. It is about time we decided on some system of ongoing funding for the Rape Crisis Centres and that this would be taken on board and made as important as mainstream funding in the health services. It is important to say this in the context of the issue we are discussing this evening.

As well as doing our best to promote this Bill and enable it to have a speedy passage through this House, we as legislators must also dedicate ourselves to tackling the wider problems of crime and lawlessness which are becoming endemic in our society and of which an increased incidence of rape is only one manifestation. I welcome the Bill and pledge my party's support for it.

Mr. Durkan

I, too, welcome this Bill which is a reasonable and necessary response to the climate in which we live. None of us would be in favour of frivolous charges being brought against anyone, male or female, and it is important that we recognise that there is always that possibility. We should examine very carefully this scenario from the point of view of the victim, be they male or female. It is not unusual — it is quite regular in fact — for young boys to be the victims of such assaults to the shame of our society.

My first concern would have to be for the victim. Let us take the case of a young boy who is suddenly set upon and then goes home to his parents. The question then arises as to how the matter should be dealt with and should charges be proferred. This is followed by the question of how the matter should be taken from there. The legal profession are much maligned but, unfortunately, in relation to this matter, the legal system is a labyrinth given the technical arguments which may take place.

Let us take the case of a woman who is raped. Again, the first question which must be considered is whether charges should be preferred. Only last night I spoke to a lady who has served on a jury on a couple of occasions. Her response was that if it happened to her or a member of her family she would not proceed with the charges for the simple reason that it was her experience in court that rigorous and intimidatory cross questioning took place to prove the innocence of the attacker or perpetrator with the result that the purpose behind bringing the case to court was lost and far from the issue being whether the attack took place, the whole case centred around the history of the victim and the manner in which the victim may have encouraged the attack.

That is all very fine, but we can equate this with the case of a person who is mugged as he walks down the street and someone in court tries to argue that he was mugged because he had a wallet in his pocket. To my mind, that is irrelevant. The question should be whether the attack took place and what were the circumstances surrounding it.

I have spoken to people who have served on juries. Again, there have been cases where the jurors conversed about the case and were convinced of the guilt of the attacker but following the presentation of evidence and the vigorous cross questioning of the victim, the victim changed her story. The reason she changed her story was the degree of cross questioning to which she was subjected. A mature woman would probably be in a better position to handle cross questioning, but what about a juvenile who in all cases, would still be suffering the effects of the attack? How is that unfortunate person going to face the trauma of a trial which probably will mark her first time in court facing cross-questioning from a solicitor or counsel in the knowledge that the assailant or attacker is obviously going to go to the ends of the earth to ensure that he is found innocent.

The one question which seems to arise again and again is not so much whether the attack took place but rather whether the unfortunate victim encouraged it, or as a previous speaker said, was looking for it. I am amazed at the attitude which has been adopted in some quarters and that so much emphasis is placed on the history and character of the victim that they become the major issues in the trial.

We also need to consider the feelings of parents who sit in on a trial, at which medical evidence is presented and where members of the Garda Síochána are called upon to give evidence. In certain circumstances, parents may be called but they do not have a major role to play. The person with the major role to play is the victim. There have been trials where the assailant or the attacker has sat through the proceedings with a smug smirk on his face and walked out afterwards not so much because of the evidence but rather because of the grilling the victim had to go through. This is wrong and is a serious indictment on our society and legal system.

The fact that an attack took place can be proved on the presentation of medical evidence and other circumstantial evidence. I cannot understand, the reticence to spend time grilling the assailant as well as the victim. I want to emphasise that point. I am not in any way involved with the legal profession and have no experience of standing in a courtroom, and I hope I never will but jurors have informed us time and again that a great deal of importance is placed on the validity of the charge — obviously it is very important that the charge be valid and this is the job of the Director of Public Prosecutions — but it should not take precedence to the exclusion of other important matters which are of equal importance. In every case someone should be able to put the attacker in the witness box and subject him to the same level of cross questioning and the same rigorous interrogation most victims have to go through.

I would now like to refer to the pleas put forward which could be anything from drunkenness to temporary insanity, to loss of memory and a whole host of doubtful pleas, with the individual claiming that he was of diminished capacity at the time of the attack. There can be a dramatic recovery later with the assailant having no difficulty going into court, sitting with calm composure right through the proceedings and in some cases walking away. I am not saying this happens in all cases, but it does in some. Some of them have received, rightly, continued comment in the media. They are possibly the exceptions and it does not happen in all cases, nor should it. However, these cases occurred and there are instances where people who have been guilty without a doubt — and people who have sat on juries will say they were guilty without shadow of doubt — managed to walk away free. If you ask a juror for further information — I know they are not supposed to talk but unfortunately human life is what it is, and perhaps afterwards they are entitled to talk — that juror will invariably say that the witness broke down under interrogation. In these cases the chief witness is the victim, and if the victim is broken down in interrogation that leaves much to be desired from the point of view of the manner in which the cross-examination or interrogation takes place. I am not so sure that within the context of the Bill ample consideration or protection is given to the victim.

Obviously the sentence should be of a nature that will ensure, first of all, that the person involved is unlikely to commit that type of offence for quite a considerable time, whether for five years, ten years, life or whatever the case may be. Equally essential is that during the period of custodial care or incarceration imposed on the assailant, there should be rehabilitation of some kind or another. I do not want to go back over cases that are now past history, but I can recall without great difficulty a case which received considerable attention a few years ago where a person who had been convicted and served a long prison sentence on foot of such a crime was released, went outside the jurisdiction and was involved in a similar crime again. There is an obvious flaw in the system. Such a person should not have been released immediately into society unless somebody somewhere had an opportunity to give that person a fairly vigorous medical and psychiatric examination. Surely somebody should be able to say to society that this person has served his sentence and has been rehabilitated to some extent. After all, society is entitled to be protected.

If the individual concerned, who has been convicted of a serious and violent crime, such as rape, and having served a sentence of five, seven or ten years or whatever the case may be is then released into society on no recommendation other than that he is free, that individual can quite easily commit the same crime again or even a more serious one, and this has also happened. There should be some relationship between the length of sentence, the seriousness of the crime and the possible threat to society afterwards unless rehabilitation of some kind has taken place.

Deputy Quill, Deputy Fennell and others referred to education. The obvious place for education to start is in the schools and possibly in the home, but as a society we require a considerable degree of education to get the message across to young people at an early stage that this kind of crime simply is not on, that it is a serious crime against the human being and should not be tolerated in any circumstances. Some films, books and tabloids in their anxiety to report in graphic detail everything that takes place in such an attack may lend themselves in some way to glorifying the whole unfortunate business. Some young people of an impressionable age may be influenced by something they read or see on film. We have another Bill to deal with the violence protrayed on the screen. The tendency to amuse the general public with graphic descriptions and graphic details in print and on film of such issues has a certain attraction for young people, and that is unfortunate. A countering influence is needed and it should come, first of all, in the schools with good sex education which would clearly leave no doubt in anybody's mind about the morality or the right or wrong in those cases.

What deterrent have we? Are sufficient deterrents available through the Statute Book and will they be available after the passing of this Bill? There will be more deterrents after that. I do not wish to go through them in great detail because other speakers have done so, but I have a slight doubt about attacks being pre-planned or premeditated. Some recent cases that have received notice in the media would suggest that premediation is the order of the day. If that is so, we must look again at the deterrent. Does the person intending to carry out the attack recognise or realise that there is sufficient deterrent to dissuade him from his intention? I doubt that. I believe there are reasonable grounds for suggesting, in some cases, that the individual has come to the conclusion that with a good lawyer with good legal advice on the day the case comes up in court there is a good possibility that he can be aquitted, particularly if the past history of the woman concerned can be brought into question. We have all agreed that that should not be fundamental to the case, but in premediated rape I have the impression that if the assailant knew the intended victim and if there were suggestions as to the previous character of that person, then there could be premeditation and very serious advantage could be taken of that situation. It boils down to the issue of whether the history of the victim is of one kind or another. The question to be asked is whether the attack took place and under what circumstances, and diminishing emphasis should be placed on whether the victim had what is commonly referred to in some of these cases as a colourful history.

There are cases where there is no premeditation but they are probably a minority. In those circumstances one must again ask how the victim is treated. I have never served on a jury in my life. I have spoken to several people who have done so, both men and women, in relation to this Bill before us. Without exception they have said that only in very clear-cut circumstances where there was strong evidence, say from a supportive eye witness, would they consent to charges being brought either on their own behalf or on behalf of a member of their own family. If that is the case, the next question is whether this Bill will remove the pressure on the victim. It will remove a certain amount of it, but it will not entirely remove the great onus on the victim.

The victim in all cases may not necessarily be a female; it may be a young male. In the case of either the male or the female, one has to consider the trauma and the almost total disintegration of that young person's life. One must try to imagine the huge psychological impact it is likely to have on that young person. We must also consider the attitude of the parents to the manner in which the legal argument takes place in court, which in some cases results in allowing the assailant to go free. If one were to consult the parents about that one would get a short, sharp reminder of what they think of those proceedings.

The Bill will do something to improve the position by guaranteeing the victim somewhat more protection than has been given heretofore. The victim will not be subjected to the long, horrendous, rigorous grilling which is now the order of the day when such cases go to court. I hope the Bill will go some way towards dismissing the attitude among women that under no circumstances would they or any member of their family proceed in court unless there was very strong supportive evidence, such as could be provided by eye witnesses. I hope the introduction of this Bill will remove the pressures on the victim.

Mr. Garland

The Green Party believe that together with the control and appropriation of women's power, the definition, distortion and appropriation and control of women's sexuality are symptomatic of our society in which male values dominate. It would appear that in societies where there is little or no gender division in regard to labour, that is, in the native American cultures, rape does not exist. However, in Ireland, as in virtually every other country, it is not an exaggeration to say that rape and the fear of rape affect all women in diverse and terrifying ways.

It is not possible to legislate against rape. We cannot pass an abolition of rape law. Neither can we make women continue to bear the responsibility for rape by blaming women's behaviour, their dress, their walk, etc. This is frequently used in court cases and it is deplorable. In order to stop rape occurring we need to create a society in which women are perceived to be fully equal with men. This includes recognising women's rights to bodily and sexual integrity and self-determination, the control of all materials and situations in which women are portrayed as lesser beings, objects, toys, possessions or second-class citizens, and the condemnation of the portrayal of women as anything other than full human beings, independent and having the right to independence from men in all intellectual, mental, physical and spiritual areas of life. We would, therefore, propose the expansion of the definition of rape and the legal procedures involved in the trial of rapists.

We welcome this Bill as a means of clarifying and updating the rape laws. As regards the definition of rape, we would have serious reservations regarding the apparent downgrading of rape to aggravated sexual assault. This minimises the serious nature of the offence which we believe to be as serious as murder and should be treated accordingly. Nor does the Bill cover adequately all areas of rape and sexual assault. We would prefer the term "rape" to be used throughout the Bill.

We believe the maximum sentences and fines provided for in the Bill to be too low in view of the serious nature of the offence. Section 12, amending section 3 of the Principal Act, regarding the admission of the sexual experience of the claimant, states that except with the leave of the judge no evidence shall be adduced which would insist that the complainant's past sexual experience is relevant to the case in hand and should be admissible. Many Deputies have referred to this very important matter.

We welcome section 3 (2) which states that a person guilty of aggravated sexual assault — we would prefer to call it rape with violence — shall be liable on conviction on indictment to imprisonment for life. This is certainly suitable under our present system of law and justice in view of the seriousness of the offence. Similarly, we welcome the abolition of the exemption of an under-age person as being physically incapable of an offence of a sexual nature. We would also welcome as a positive step the abolition of the exemption whereby a husband cannot be guilty of rape and also the provision that the juries should be comprised to the extent of 50 per cent of women.

In the special and unique circumstances which apply in the cases of rape, aggravated assault and sexual assault, the claimant should be entitled to her own counsel as well as that of the State. This would ensure that the complainant is well versed in court procedures and would feel personally protected and represented by the law. It would help to alleviate the trauma experienced by many complainants in reliving the details of their rape.

A number of points not raised in this Bill need to be addressed. Counselling services for those who have been subjected to rape need to be widely and freely available and staffed by persons with similar experience. Members of the legal profession need to be as up-to-date as possible in regard to information and research findings which clearly present rape as an act of violence. The victim's anonymity should be safeguarded under all circumstances and should not be revealed even at the discretion of the judge.

The issue of compensation has not yet been addressed. Provision for the compensation of rape victims for the trauma, emotional damage, counselling costs and loss of earnings should be provided for within the Bill. Compensation should be paid to the victim of rape only and not as in the recent case in the US where it was paid to the husband of the victim. This treats the raped woman as soiled goods.

The relationship between rape and pornography has become well established and stringent control of the latter has been seen as a prerequisite for the control of rape in society. The work of the Rape Crisis Centres is urgent and essential and I am pleased that more funding was made available in the budget.

Finally, although the Criminal Law (Rape) (Amendment) Bill, 1988, goes some way towards amending and expanding the rape laws in Ireland, I feel that until people who have been subjected to rape are allowed their own counsel in addition to that of the State, until the severity of the crime is taken into consideration when imposing the sentence and until the anonymity of the complainant is safeguarded under all circumstances, the law of rape in Ireland — the Act of 1981 and the amendment Bill of 1988 — falls short of the full justice required.

Minister of State at the Department of Agriculture and Food (Mr. Kirk)

A considerable number of points were raised by Deputies during the debate on this Bill and I hope to be able to reply to all of them on behalf of the Minister for Justice who cannot be with us today because he is outside the country on official business.

An Ceann Comhairle

Is it clear that the Minister of State is now replying to the debate?

Mrs. Fennell

On a point of order, I express regret that the Minister for Justice has not been here for a great deal of the debate and is not here to reply.

An Ceann Comhairle

That is not a point of order. The Minister of State may proceed.

Mr. Kirk

However, time is limited and it may not be possible to deal with all the points raised before this debate ends. As Deputies Dempsey and O'Dea quite rightly pointed out, this is one of the most important Bills to come before this House for some time. One of the most radical measures included in the Bill is the proposal to make marital rape a crime. Deputy O'Keeffe has suggested that marital rape is not a widespread problem while Deputy McCartan argued that it is. There are no reliable statistics on this matter but the information available from the Garda authorities and other sources suggests that a real problem exists.

A number of Deputies, including Deputies O'Keeffe, Kavanagh, McCartan, Barnes and Fennell, have raised the question of an extension of the definition of rape. The reports of the Oireachtas Joint Committee on Women's Rights and the Law Reform Commission drew attention to defects in the existing law on sexual offences. It was quite rightly pointed out that there are certain types of sexual assaults which could be equally as serious as rape but are not recognised as such by the existing criminal law. To remedy this defect, the Government, in the Bill, are proposing to create the new offence of aggravated sexual assault. It will have the same maximum penalty as rape, that is life imprisonment, and the same procedures will apply to it as apply to rape. In particular, the complainant will be afforded the same protection regarding cross-examination and anonymity as is afforded to rape victims. In this way the defects identified in the existing law will be fully remedied. In addition, the psychological reassurance which, Deputies have argued, women need to help them over the trauma of such sexual assaults will be supplied by the obvious seriousness with which the law will treat aggravated sexual assaults.

Mrs. Barnes

No, it will not.

Mr. Kirk

I would make the point that the issue of extending the definition of rape is not as simple or as clear-cut as made out by some of the Opposition Deputies. Neither is it a straight choice between the existing definition of rape and the extended definition recommended by the Law Reform Commission. There are numerous other approaches which could be taken. For example, in Canada when the laws were reviewed it was decided to remove completely the term "rape" from their criminal law. This was done partly at the instigation of women's groups who felt that the victim as well as the perpetrator was tainted by the term "rape". The approach to be taken depends very much on the perception of the crime. Deputies McCartan, Flanagan and Barnes argued that rape is a crime of violence, not of sexual passion and that it should be distinguished from other forms of serious sexual assault. This is an over-simplification. The Deputies are quite correct to try to dispel the myth that the motive for all rapes is sexual lust but in doing so they are creating a new myth, that it is purely a crime of violence.

It is true that research suggests that in many cases the motive for rape is not sexual gratification but rather a desire to humiliate women. It is the use of sex to act out agression against the female sex. Rape is committed for a variety of reasons. In some cases violence is not present either as a motive or in the actual commission of the act. In other cases, indeed in the most violent rapes, the motivation of the rapist is that he obtains a sexual gratification from inflicting violence. It is a serious error to concentrate on the violent aspects of rape and ignore the sexual implications.

The Law Reform Commission, in advocating a general neutral offence, have, it could be argued, fallen into this trap. A general neutral offence ignores the fact that men, in general, are the perpetrators and women are the victims. It is interesting to note that in North America, where general neutral solutions are being introduced to reform this area of the law, they have been found to be imperfect and have fallen into some disrepute. Even within Ireland there has been at least one article written from the feminist point of view arguing against the general neutral approach suggested in the final report of the Law Reform Commission. The existing definition of rape places the emphasis on consent, not on assault. This ensures the maximum protection for women as a man can be convicted of rape even when there is no evidence, for example, where there is fraud or where the woman is asleep. To change the emphasis to assault would undermine the level of protection currently afforded to women.

The Government's position is as follows. The Bill remedies all the existing practical defects in the law by making all serious sexual assaults subject to the same penalty and procedures as rape. What is left at issue is a sense of philosophical or semantic argument as to what various offences should be called. Deputy McCartan wanted all serious sexual assaults to be termed rape so as to attract the stigma attached to the word "rape". However, as Deputy Wallace has said, the reverse could happen and by broadening the definition of rape we might actually reduce the stigma attached to rape. The effect of bringing a number of offences within the definition of rape might well be to change the public perception of rape. The public would no longer know when a rape, as at present defined, has been committed and as a result the odium which the public attach to rape could be reduced, thus bringing about the opposite result to that desired.

Another issue raised by a number of Deputies is the proposal to have rape and aggravated sexual assault cases heard in the Central Criminal Court. Some Deputies, including Deputies O'Keeffe and Kavanagh, argued against the proposal while others, including Deputy McCartan, were in favour of it. The Government agreed with the recommendation of the Law Reform Commission that rape trials should be heard in the Central Criminal Court and have so provided in the Bill. This, let me repeat, was not intended to be a reflection on the Circuit Court but rather an indication of the seriousness with which the Government view these crimes. There are no appreciable delays in the hearing of cases in the Central Criminal Court and I have no reason to believe that the transfer of rape trials to that court will change that position. Some Deputies referred to the number of trials in the Circuit Court in the pre-Christmas law term. During that term there were three trials outside Dublin, lasting two days altogether, and six trials in Dublin, lasting 13 days.

A number of Deputies expressed concern about sentencing. We must be wary of over-reacting to isolated cases — I emphasise "isolated". Over 80 per cent of the rapists in our prisons are serving sentences of five years or more and over half of those are serving sentences of ten years or more. I would remind Deputies that sentencing policy is one of a number of issues in the criminal areas that has been referred to the Law Reform Commission for examination as part of their current programme. Deputies McCartan, Flanagan and Fennell proposed that there should be legislation to enable the prosecution to appeal against too lenient sentences. Any such fundamental change in our law would require detailed consideration but it is a matter that the Minister may feel should be looked at. I am sure he will take note of the Deputy's comments on the matter.

Deputy O'Keeffe raised the question of the corroboration warning dealt with under section 6 of the Bill. This provision abolishes the requirement for a mandatory warning regarding evidence given by a complainant in cases involving a sexual offence. He suggested that to leave it to the discretion of the judge to give a warning would interfere with the role of the jury. I would have thought that the existing mandatory requirement represents a greater interference with the role of the jury than the provision in section 6.

Many Deputies raised the question of separate legal representation for complainants. This was examined by the Law Reform Commission and was strongly rejected. The Government agree fully with the views expressed by the commission against any statutory provision dealing with separate legal representation. However, as Deputies O'Keeffe and Flanagan have suggested in the alternative, the prosecution procedures are being examined and improved by the Director of Public Prosecutions with a view to assisting the victim. These new arrangements will ensure that the complainant in the sexual case will be furnished without delay with a copy of her statement and will be afforded access to the solicitor and counsel acting for the prosecution before the hearing of the case in court. In addition, a familiarisation course will be made available to complainants on request, in which the lay-out 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.

Deputies Kavanagh and Fennell suggested that a complainant's sexual history should never be allowed to be used in a rape case. The recommendation that a complainant's previous sexual history should never be raised in rape trials was opposed by the Law Reform Commission and the Government strongly supported their views on the matter.

An Ceann Comhairle

I am sorry to interrupt the Minister of State, but the time has come to deal with other business. Perhaps the Minister would now move that the debate be adjourned.

Debate adjourned.