The Minister of State, Deputy Seamus Kirk was replying to Second Stage and he has ten minutes left.
Criminal Law (Rape) (Amendment) Bill, 1988 [ Seanad ]: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a second time".
Deputy Kavanagh asked that the penalty for the offence of public indecency set out in section 18 of the Criminal Law Amendment Act, 1935, be updated. The Minister will look at this matter between now and Committee Stage to see if this Bill would be the appropriate vehicle in which to consider making the suggested changes.
I would not like the impression to be given that most persons accused of rape are acquitted. For a start it must be remembered that if the prosecution has a very strong case it is unlikely that it will ever go to trial as the accused will probably plead guilty. In the five year period 1983-1987 criminal proceedings for rape were initiated in 174 cases but during this period only 53 cases had to go to full trial. Of those who went to full trial 43 per cent were convicted, 51 per cent were acquitted and the jury disagreed in the remainder of cases. About 60 per cent to 70 per cent of cases do not ever go to a full trial because the accused pleads guilty and is sentenced or because the prosecution case is so weak that a trial is not warranted.
Deputy Dempsey raised the possibility of changing the burden of proof for rape cases from the existing criminal one of "beyond all reasonable doubt" to the civil one of "on the balance of probabilities". He made this suggestion I suspect in the belief that the number of persons accused of rape who escaped conviction was extraordinarily high. I hope that the figures I have quoted reassure him that this is not the case. Even if it were true, while I could sympathise with his motives it would not be the appropriate response to the problem. Changing the burden of proof in a criminal case to the balance of probabilities would raise a number of constitutional issues and in addition it would increase the risk of innocent people being convicted of crimes.
At the outset of the Debate it was pointed out that the treatment of sexual offenders is a separate matter and outside the scope of this Bill. Nevertheless, I am aware that Deputies including Deputies Kavanagh, McCartan, Flanagan, Barnes and Fennell are concerned with this issue and I will briefly outline the present position regarding the facilities which are available in the prisons to deal with those sentenced for sexual offences.
First, it is accepted that whatever services can reasonably be made available to change the attitude and behaviour of those convicted of sexual offences should be provided. It is also common cause that the successful achievement of this goal is notoriously difficult, given what is involved. It is unfortunately the case that many offenders in this category have little interest in changing their attitudes or their behaviour towards women and many, in fact, persist in denying their guilt or seek to blame external factors, such as drugs or alcohol, for their offences. In many cases experience has shown that a considerable time elapses before an offender is prepared to discuss his problem and its underlying factors.
To try to improve the situation and reduce the risk of reoffending by offenders on release, various approaches are used by those dealing with the prisoners. Individual counselling has, up to recently, been the major approach. This counselling is carried out by a welfare officer, psychiatrist or psychologist and, of course, chaplains have a particular role in this area. Recently a group approach has been introduced at Arbour Hill Prison and the progress of this group will be carefully monitored to see what changes emerge. This multi-disciplinary approach is appropriate and correct.
Deputy McCartan referred to a submission made by the Probation and Welfare Officers Branch of UPTCS about the treatment of sex offenders and went on to suggest that it was dishonest to suggest that developments undertaken by probation and welfare staff were departmentally contrived and established. It is not helpful or accurate to suggest that these developments did not have the support of the Department. The probation and welfare service is part of the Department and is responsible to the Minister for Justice of the day. "The people working in the field" as Deputy McCartan describes them are actually officers of the Department, and it is nonsense to suggest that the work they are doing as part of their duty is something "pushed" on the Department, any more than the work of psychologists, chaplains and others is "pushed" on the Department.
It is part and parcel of the work of both management and staff within the service to develop and implement — in conjunction with other agencies and the prison authorities — appropriate strategies for dealing with offenders. This they have been doing and I am happy to place on the record of the House appreciation of the work they have been carrying out in this area over many years.
I am particularly glad that the recent innovations introduced in dealing with sex offenders at Arbour Hill Prison offer grounds for hope. It would be a pity if the difficulties inherent in such work were to be added to by groundless suggestions of a lack of support for such important developments when clearly what is important — and what is being achieved — is co-operation and understanding between the various agencies and diciplines in approaching this difficult area.
As indicated at the opening of this debate, programmes which prove successful will be continued and, where appropriate, extended. However, a point that must be emphasised is that there is no treatment process to which people can be subjected which will lead to a cure. The efforts of those professionals dealing in this area must be commended but their efforts cannot be guaranteed to lead to success in any individual case. It is unreasonable to expect, or as some do, demand that this should be the case and it is simply not possible to change this unfortunate reality by legislation or to provide for mandatory treatment which realistically cannot take place in the absence of the consent and co-operation of the individual.
I was quite surprised, as I am sure were others in this House, to hear Deputy McCartan suggest that the Prison Service should compel all sex offenders to undergo assessment and treatment. Apart from the human rights implications, what would be the value of a mandatory requirement that psychiatric treatment be provided in cases where the medical view was that the cause of an offence did not lie in any psychiatric disorder or where, for example, an offender simply refused to speak with a psychiatrist?
The House can be assured that any and every approach to the question of providing appropriate treatment is considered carefully, but it is not clear how it would be either appropriate or useful in the context of the present legislation, or indeed other legislation, to include any reference to particular approaches to treatment.
With regard to monitoring sex offences after their release from prison, under the Criminal Justice Act, 1960, the Minister for Justice can authorise the temporary release of an offender. The release may be made subject to certain conditions such as the supervision of the probation and welfare service or attendance at a treatment centre. If an offender breaches any of the conditions attached to the release he can be returned to custody to serve the balance of the sentence. Existing legislative arrangements, therefore, allow for the supervision of an offender on release providing, of course, that the release takes place prior to the time the sentence of imprisonment has expired.
In the case of an offender released on expiration of the sentence imposed by the courts no conditions can be attached to such a release. Any change in this situation would raise complex legal and constitutional issues. Traditionally it has been a matter for the Executive to administer the sentences imposed by the courts taking into account, among other things, any improvements in the attitude of an offender while in custody. This, for example, enables conditional early release in certain cases. I can assure the House, however, that given the grave nature of the offences involved the question of temporary release for sex offenders is approached with great caution.
Deputy Fennell raised the question of drunkenness being used as a defence in rape cases. The Deputy will be pleased to learn that under existing law self-induced intoxication is not a valid defence to rape. Deputy O'Dea spoke on the definition of aggravated sexual assault. The Law Reform Commission, as Deputy O'Dea said, recommended the inclusion of "or is committed while the accused has with him a weapon of offence or by a person in a relationship of authority over the victim" in the definition of aggravated sexual assault.
This matter was considered in detail when the legislation was being prepared and the view was taken that the carrying of a weapon, or the relationship of the parties, should not of themselves turn what might otherwise be a relatively minor offence into a very serious crime meriting a maximum sentence of life imprisonment. The definition of section 3 (1) of the Bill will cover the circumstances envisaged where the assault is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted.
Deputy O'Dea referred to the recommendation of the Law Reform Commission that the words "imbecile", "idiot" and "feeble-minded" in the Criminal Law (Amendment) Act, 1935, be replaced by the words "mentally handicapped". This matter is not free from difficulty because it is not simply a matter of replacing existing words with new words. It would seem to be necessary to define any new phraseology that might be used and establishing such new definitions raises complex, legal, psychiatric and social issues. This matter is being fully considered by the Law Reform Commission who have recently produced a consultation paper on offences involving the mentally handicapped. We should await the commission's final recommendations before making any changes in the law in this area.
I should like to thank Deputies for their contributions to this very important debate on the Criminal Law (Rape) (Amendment) Bill, 1988, which deals with a matter which is of great concern to us all. The generally constructive, mature and responsible approach taken by Deputies during the debate reflects credit on this House. One may not always have agreed with everything that was said but one must respect the viewpoints put forward and the sincerity with which they were expressed.
In the short time available I regret I have not been able to reply to all the points made. I have endeavoured to deal with as many as possible and I am sure that Committee Stage will afford Members an opportunity to deal with the more specific issues of the Bill.
Question put and agreed to.
When will Committee Stage be taken?
It will be taken next Tuesday, subject to agreement between the Whips.
Committee Stage ordered for Tuesday, 27 February 1990, subject to agreement between the Whips.