Amendment No. 1 in the names of Deputies O'Keeffe, Flanagan, Barnes and Fennell.
Criminal Law (Rape) (Amendment) Bill, 1988 [Seanad]: Committee Stage.
SECTION 1.
Perhaps I could assist Deputy O'Keeffe if in taking amendment No. 1 we could also——
I had intended to indicate to the House what was proposed. It is proposed, with the co-operation and understanding of the House and, indeed, we might say with the silence that Committee Stage requires, to take amendments Nos. 4, 6, 7, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 30 and 31, all of which are cognate, together with 1a, 5, 7a, 8a, 9a, 10a, 12a, 13a, 19a, 19b, 29a, 29b, 30a and 32a all of which form a related composite proposal, and amendments Nos. 2 and 5 which form an alternative related composite proposal. Do I take it that the House agrees that, because of the relationship between all those amendments, we would in accordance with the normal practice take all for discussion together, separate questions to be put in any case where a question would be required?
I have one slight problem. I have, with my colleagues in the Fine Gael Party, formulated a view in relation to a particular issue on the definition of rape which is a very contentious issue. Deputy McCartan has taken a view that involved him tabling a separate amendment. Just as we are about to start a debate on this issue we are circulated with amendments by the Minister, to which we have not been able to give any consideration, on this very issue.
I have referred to amendments and to alternates to amendments and it would seem that it is the normal practice for discussion purposes that we take such groupings together for discussion purposes.
Perhaps the Minister would indicate——
Are Deputies seeking elucidation from the Minister?
I should like to move my amendment but I should also like the Minister to elucidate——
I could help to clear the position for Deputies. During the Seanad debate and on the Second Stage debate here, the Bill was warmly welcomed. However, there was one central point of disagreement and that was in relation to whether the term "rape" should apply to certain serious sexual assaults involving other than the traditional normal meaning of the word "rape". I have given deep consideration to this and have submitted a set of amendments the basis of which will meet the issues raised by Deputies. I could have left it until Report Stage but I felt it was better, even at this late stage, to introduce the amendments in their present form.
There is one core amendment, No. 7a, which seeks in page 4, before section 4, to insert a new section. That will meet the concerns expressed on all sides of the House in relation to the interpretation of the word "rape". The other amendments are consequential.
I was overawed by the extent of the last minute document which was distributed as the Minister was speaking. I was somewhat dismayed by it but, after a quick glance, it seems to meet what my understanding would be of the popular desire in terms of what was said both inside and outside the House about the matter. I am sure we can get over the difficulties of understanding its impact as we debate it on Committee Stage. In those circumstances I have no objection to the somewhat unusual but nonetheless welcome procedure we are now adopting by taking all these amendments together. We will work our way through them.
I assure the Deputy that what we are doing now is no different from any other situation. All the amendments——
The scale of the amendments is different.
Most of them are consequential.
Deputy O'Keeffe will formally move his amendment and then we will proceed to the discussion.
I move amendment No. 1:
In page 3, subsection (1), lines 11 and 12, to delete the definition of "aggravated sexual assault" and substitute the following:
"‘statutory rape' has the meaning assigned to it by section 3;".
Having made the point that it is difficult for us to give an immediate welcome to amendments circulated without notice, we will examine the proposal in detail. It looks as if the Minister has acceded to our point but we will not know until we have an opportunity to check.
I tabled an amendment, together with my Fine Gael colleagues in relation to the definition of rape. Everyone accepts that rape is an appalling crime. It is different from other crimes that go before the courts. It is also accepted that it is a crime which provokes intense emotion and controversy other crimes do not.
On Second Stage we had a discussion about the fact that the law takes too little account of the traumatic experience which a rape trial represents for a woman who makes a complaint. We also looked at the other side of the argument, which is that too emotional an approach might result in unfairness for the accused. What emerged during the debate was that the approach adopted by the Minister in relation to the definition of rape gave rise to concern and controversy. That was not surprising.
If one examines the law reform consultation paper and the Law Reform Commission report it is clear that there was a huge controversy even among the members of the Commission. There is a huge controversy in other countries as to nomenclature and the presentation of what should or should not be called rape. The recommendation in the consultation paper was what appeared in the Bill, that is, "sexual assault" and "aggravated sexual assault". In the final Law Reform Commission paper there was a majority decision against expanding the definition of rape to encompass any non-consensual sexual penetration of the vagina, anus or mouth of a person by the penis of another person or the vagina or anus of a person by an inanimate object held or manipulated by another person. There was the unusual situation where there was a minority report from the president of the commission and one from its senior members which presented a different view. I accept that there is no unanimity that the word "rape" should be extended to cover many awful types of sexual assault other than those traditionally referred to as rape.
The matter has been discussed in other countries and they have come to a variety of conclusions. In the United States there are differing views between the various States as to how the question is dealt with. It was on that basis that I and my colleagues came up with what we thought was an approach which would solve the problem and ensure that the awful types of offences we are talking about would be referred to as "rape" but that we would keep a slight distinction between the traditional interpretation of the word "rape" and the statutory nomenclature that we would apply here. That is why we tabled the proposal that certain types of offences would be called "statutory rape". We have put forward this proposal on the basis that it is not a perfect solution but after a lot of discussion it seems as if it could be a reasonable solution to the problem.
Deputy McCartan has a different approach. The Minister has tabled an amendment which seems to be yet another different approach. It might be best to hear the views of different Members and a common view might then emerge, or at least we would have an opportunity of teasing out the different implications of the various amendments and arrive at a common view or, at least, one acceptable to most people.
One of the most controversial issues to arise during the debate on this Bill has been whether the term "rape" should apply to certain serious sexual assaults involving sexual penetration other than natural sexual intercourse. We are all agreed that such assaults are as bad and in some cases may be even worse than rape as at present defined. It was for that reason that the Government decided to create the new offence of "aggravated sexual assault" with the same penalties and procedures as rape. However, the point has been made that prescribing the same penalty as for rape might not be sufficient. A woman who is the victim of such assaults considers she has been raped and needs the offence to be termed "rape" if she is to feel properly vindicated. It is an emotive issue which involves questions of feelings. It is an issue in which I have taken a personal interest and I am aware of views expressed by the Oireachtas Joint Committee on Women's Affairs and of the conflicting views put forward by different members of the Law Reform Commission. I have had a meeting with the Dublin Rape Crisis Centre to discuss the issue and I have talked to a number of individual women and groups on the issue. Women clearly feel strongly about it and are very conscious of the trauma suffered by victims of sexual assault. If this trauma can be reduced in any way by applying the term "rape" to such offences, then we have to give it serious consideration.
I have the strongest sympathy for the victims of these outrageous crimes and I should not like to omit from this Bill a proposal which might reduce the suffering endured by such victims. On the other hand, strong arguments have been advanced for not interfering with the existing definition of rape. I cannot ignore these arguments as I think there are valid reasons for maintaining the existing definition of rape. I have given serious consideration to the problem and I think I have the solution to our dilemma. I propose by my amendment to create a new offence which could be termed "rape" but which would be distinct from and not interfere with the existing common law offence of rape. In this way it will be possible to provide the psychological reassurance sought for victims of rape without attracting any of the disadvantages of interfering with the existing definition. The Government feel strongly that the existing definition of rape should not be interfered with. However, they view the type of sexual assault at issue here with the utmost disgust and share my view that such offences should attract the stigma and odium which is currently attached to the crime of rape. For this reason they supported my proposal in favour of the term "rape" being applied to them as long as it does not interfere with the existing definition of rape.
The new offence of rape under section 4 will be limited to serious sexual assaults involving penetration of or by a sexual organ. It is intended to retain the offence of aggravated sexual assault to cover those serious sexual assaults not involving sexual penetration. However the definition of aggravated sexual assault should be amended to delete the specific references which at present exist to sexual penetration. The amendment to which I am referring is amendment No. 7a which states:
In page 4, before section 4, to insert the following new section:
"4.—(1) In this Act ‘rape under section 4' means a sexual assault that includes—
(a) penetration (however slight) of the anus or mouth by the penis, or
(b) penetration (however slight) of the vagina by any object held or manipulated by another person.
(2) A person guilty of rape under section 4 shall be liable on conviction on indictment to imprisonment for life.
(3) Rape under section 4 shall be a felony."
There are a number of consequential amendments. I believe that the proposal in this amendment will meet the case that has been made in relation to the trauma felt by a victim of rape if there are acts of the type I have outlined.
The amendment put down by Deputies O'Keeffe, Flanagan, Barnes and Fennell proposes that the term "aggravated sexual assault" should be changed to "statutory rape". I believe the intention of these Deputies is similar to my own in that such assaults would be referred to as rape but the existing definition of rape would not be interfered with in any way. There are, however, problems with the proposed amendment. The term "statutory rape" is already used colloquially to describe offences involving sexual intercourse with under-age girls. Intercourse with girls under 17 and 15 are offences under the Criminal Law (Amendment) Act, 1935, and the use of the term "statutory rape" in this Bill would therefore cause confusion. If we are to create a new rape offence it should be limited to specific acts involving sexual penetration. Furthermore, there is an element of tautology in describing an offence as a statutory offence in a statute which is creating it. Because of these problems I would ask the Deputies concerned to withdraw their amendment in favour of the amendment which I am putting forward.
I oppose the amendment being put forward by Deputy McCartan which purports to interfere with the existing definition of rape. I have explained my position on this issue. For technical reasons the amendment would be unacceptable. The amendment purports to give a new meaning to the term "rape", but it is not clear if it is limited to this Bill or is intended to cover the Criminal Law (Rape) Act, 1981, as well as the common law. At a minimum it is in direct conflict with section 2 of the 1981 Act which deals with the existing meaning of rape.
It is my view and that of the Government that a woman who has suffered this horrendous assault is entitled to the protection of the law and that is being provided. When a woman suffers from that type of crime there is psychological as well as physical damage. While a woman would not be raped in the sense of the word as we know it, she feels raped because she has been penetrated with an instrument or by the penis in the mouth or the anus. It is important to give the maximum psychological protection as well as legal protection. There will be the crime of rape as it is traditionally understood and there will be rape under section 4 and also aggravated sexual assault. In bringing forward this amendment on behalf of the Government I believe I have met many very legitimate concerns which have been expressed inside and outside this House by groups, individuals and concerned citizens who feel strongly about this issue.
I recognise that the Minister has responded very well to the various issues raised on Second Stage. I thank him for that. This was a matter of concern, having looked at the report of the Law Reform Commission and having listened at the various conferences convened by that commission to the well reasoned, well argued and well founded views of people who were either victims of the crime of rape or were working in professions which had to deal with it. They were concerned that our law in this area should keep abreast of changing attitudes and views and should in time provide for a wider and more meaningful definition of the horrendous crime of rape. I welcome the progress we have made here today. It was a previous Minister who dealt with this in the Seanad. There did not appear to be any indication on the part of the then Minister of an appreciation of the issues and concerns involved. Having said that, nonetheless some details remain to be thrashed out.
The Minister has indicated that I have taken a different view from him on the amendments. Very briefly I should like to advance my arguments for so doing. Indeed they are encapsulated in amendments Nos. 2 and 5 being taken in conjunction with amendment No. 1, amendments tabled in my name on behalf of The Workers' Party.
In the present debate I hope it is recognised that we are talking about the offence of rape as being a non-gender offence — that whilst the understanding is clearly there that women are the primary victims of the crime, we are now bringing into the broader definition of rape the non-consensual defilement of young men, or men of any age, that they too are concerned and can be victims of this crime. I acknowledge that the Minister takes the point for what it is worth.
The first thing that strikes me about amendment No. 7a, subparagraph (b) — when one comes to deal with penetration by an inanimate object — is that the anus is omitted. I should like that omission to be explained. It is contrary, the Rape Crisis Centre say, to what the Law Reform Commission argue. When we talk about introducing a non-gender definition of the crime it is important that we treat all of the orifices of the body in a similar manner. If I might put it this way — as I understand the horrendous depths of this — the male may be raped in one way only. It is important that we consider penetration by an inanimate object of the male equally horrendous as that of the female. It may be that in the typing of the amendments something has been lost. I noticed that the amendments tabled by the then Senator Fennell adopted the Minister's formula. I find it curious. Perhaps we could have this corrected by Report Stage.
The main issue that has to be addressed is whether the common law concept of rape and its definition should be preserved, what is the importance of preserving that concept or definition. In responding perhaps the Minister could elaborate somewhat on the reasons that he and the Government are so committed to the common law definition of rape; if you like, what is in it that is so sacrosanct? Here, I take immediate correction from the Minister in so far as my definition of "rape"— included in amendment No. 2 — did intend to interfere with the common law definition, did intend to supplant section 2 of the 1981 Act. In dealing with the amendments to the Schedule I did not include — in the sections to be repealed there — the necessity to repeal section 2 of the 1981 Act as a consequence of my extended or supplementary definition of "rape" as contained in the definitions section of the Bill now before us. I do not believe there is any overbearing reason we should retain the age old definition of rape.
The whole exercise of accepting the arguments of the Rape Crisis Centre and the reasonings of the Law Reform Commission was that, in a modern way, we should acknowledge the manner in which attitudes have changed, the manner in which we should change the definitions of crimes to reflect that change in attitudes. If I correctly understand contributors to this debate to date, they have been contending there is need for a new definition of rape, there is need to debunk the old, sexist, inadequate definition of "rape" that has existed — that definition which concentrated on penal penetration of the vagina only and, by definition and of necessity, involved only man assaulting woman. The argument advanced all along has been to the effect: let us debunk that definition with all its inadequacies, recognise the change in attitudes that exists out there and bring in a new definition of rape. That was the majority view of the Law Reform Commission. They provided that definition in their final report. I have merely borrowed it as a new definition of rape in the list of amendments tabled here.
On the specific, how can one suggest that there is a respected and important definition of rape at common law that should not be interfered with when, in the 1981 Act that definition was totally interfered with to the extent that we introduced it into a statute; we took it out of the common law arena and then introduced it into a statute by way of a definition structured for the purposes of that statute. Therefore in 1981 it will clearly be seen that the Houses of the Oireachtas had no difficulty in debunking the common law. It can be argued that, as far as possible, the statutory definition inserted in the 1981 Act was an attempt to draw together all of the judicial pronouncements and impact on rape up to that point. but there was no difficulty then in saying: let us leave common law aside now, put it into a statute and thereafter work on the statutory formula. Indeed, since 1981 the courts have experienced absolutely no difficulty in working on a statutory formula borrowing as appropriate, from all of the case law existing there. As I understand it — at any of the seminars held by the Law Reform Commission, in any of the deliberations of the Joint Committee on Womens Rights or elsewhere — there has never been an argument advanced that the prosecution or agencies involved experienced difficulty with the statutory definition of rape, to put it more succinctly, experienced any difficulty in departing from and debunking the common law definition.
Therefore I hope the Minister can explain why the Government have this profound commitment to the common law definition of rape. It is a tired old, inappropriate, narrow definition. I hope there will be a signal of a departure from it here today. That is why I am not totally behind the notion of introducing a concept of a statutory rape. I believe — as did the Law Reform Commission — it is very simple to devise a good definition of the offence of rape to reflect modern day attitudes. For that reason the amendments in the name of the Workers' Party — being taken in conjunction with amendment No. 1 — provide the following definition which I will read into the record:
"‘rape' means the non-consensual penetration of the major orifices of the body of any person, male or female, including the vagina, anus and mouth, by the penis of another person, or of a person's vagina or anus by an inanimate object held or manipulated by any other person;".
That is borrowed substantially, if not entirely, from the report and conclusions of the Law Reform Commission on rape we have all considered. I am concerned because the report highlights that, in other jurisdictions, there has been experienced a problem about the question of bargaining, of prosecution authorities getting into difficulties, or problems vis-á-vis bargaining down, of a person coming before the courts and saying: look, I am prepared to plead to the statutory offence as opposed to the dirty, old common law one which is universally considered to be the most heinous of crimes in this area. This graduation of crime from the common law definition of rape to the statutory definition of rape, to the aggravated sexual assault, and then to sexual assault; this four-tiered structuring of these offences will lead to unsatisfactory plea bargaining and negotiations that have emerged in other jurisdictions which have adopted this formula. I recognise there is an element of that problem in the formula I am proposing of a single, all-embracing concept of rape, then aggravated sexual assault and sexual assault itself, but at least we are putting into one category all of those offences and acts that women and men universally consider to be rape and they will be dealt with on that one common ground.
The Minister made one other point in response to the Fine Gael proposals which I would like to address briefly — they will probably do it far better and more comprehensively — and that was the problem of trespassing on the colloquial term "statutory rape" as it exists. The 1935 Act does not use the term "statutory rape". It is a term of art, if you could call it that, devised by lawyers in practice to differentiate between what was the common law rape of a woman's vagina and person as opposed to doing exactly the same thing to a young person. The Act of 1935 in the side column refers to the act of defilement of a girl under 15 years of age or a girl between the ages of 15 and 17. The Oireachtas of the day used the word "defilement". It is a term of art that emerged for the convenience of lawyers in practice. Therefore, while we might be trespassing, we are in no way trespassing on something written into a statute, we are trespassing into an area of male dominated convenience. Lawyers over the years felt it was a convenient term or notion to suggest that raping a girl under a certain age was somehow a statutory offence and not known otherwise, whereas in fact it was, and was always, part of the overall concept of rape at common law. There is really no practical difficulty. There is probably the difficulty of getting lawyers in practice to recognise that from 1991 onwards, if we accept the Fine Gael code of amendments, statutory rape is as they introduced it.
In any event, I believe their formula will inevitably come to be known as statutory rape. It is inevitable from here on that we will have that old notion of rape which for some odd reason we want to keep, the very narrow man-assault-upon-woman definition and nothing more, defiling the vagina. That will be known as rape forever more. What comes after it, and what will be introduced by the proposed amendment 7a will inevitably come to be known as statutory rape. While we will get rid of the 1935 Act offence or use of the word we will find lawyers arguing for a concept which in legal language, if nothing more, will come to be considered as something less. Everything that is described in paragraphs (a) and (b) of the statutory definition is as much rape as anything else that was or could have been under the old common law definition. Therefore, while I acknowledge fully the efforts to meet the arguments more consideration should be given to this. Why not adopt the formula — I accept it must be tidied up in some ways — I am promoting on behalf of The Workers' Party, the one the Rape Crisis Centre argued for and the one recommended strongly by the Law Reform Commission.
I acknowledge the considerable contribution the Minister has made to this debate. Initially, when I saw the new list of amendments I thought we would need to adjourn to have a look at it because, not having seen the central amendment 7a or knowing what it was about I was not sure. Really, when one achieves the objective one wants it does not matter through which circuit one achieves it. The new amendment from the Minister is very much to be recommended.
I will not make a very long contribution because my colleagues want to get in. I am aware that this was central to all the debates we have had on the amending of rape legislation. We always got bogged down on it because it seemed as if opinion outside the Department of Justice was that this definition of rape had to be amended, to be widened to take in those other areas. It was defined by the Rape Crisis Centre first, the Law Reform Commission at their many seminars, in their consultation paper and report, by the Joint Committee on Women's Rights in their report, and by Deputies and Senators but it seemed as if no satisfactory formula could be found.
On this side of the House we gave a great deal of time and attention to attempting to bring in an amendment that would meet the views of the Rape Crisis Centre and the Law Reform Commission. At any rate, I am pleased with the amendment and that we are starting off this important debate with a good measure by the Minister. It is a classic recognition of the need for wide consultation and it makes one realise the great value and importance of an organisation a professional, well structured and determined as the rape Crisis Centre. I am sure the Minister will agree with me on that. I am aware he had a very useful and lengthy meeting with the members of the Rape Crisis Centre within the last month and they were very impressed at his interest and concern.
I intend listening to the legal debate. The last speaker posed questions about a new definition and referred to people being hung up, so to speak, on the common law definition of rape. We have a new awareness of the feelings of women, and some men, who are raped. They see rape as a violation of themselves, of their person. It matters very little whether it is a violation by a penis, a broom handle, a broken bottle or whatever. I hope the testimony made so clearly and so often by victims of rape will be accepted. We must accept it. It is nonsense for legislators in the wake of the evidence of the feelings of women to say, "no, you do not feel that, you feel differently because it was a broom handle or broken bottle with which you were violated and not a penis". We must look at the broader question posed by Deputy McCartan.
We are progressing in a very useful way and I hope the amendments will be treated with equal understanding by the Minister. Let me suggest to him that this new sense of awareness and co-operation might be infectious and his colleague in the Department of Health might see his way to recognise the very important work being done in rape counselling and rape treatment by the Rape Crisis Centre and give that organisation the kind of funding they need to continue this very important work. I will give way to my other colleagues but I will come in again.
I speak as a member of the Women's Rights Committee where this issue has been discussed at length. I speak also as one who is anxious to see legislation in relation to this matter on the Statute Books. I am happy today to see the progress that has been made and the amendments introduced by the Minister. The approach and the language being used now are correct. The Minister pointed out the need to differentiate between the technical and bureaucratic language and the whole question of the trauma of rape and the feelings surrounding this debate.
The approach of creating a new offence is the correct one. The Minister has retained the common law definition of rape. There are new definitions in relation to the specific acts and this is the sensible approach in updating the legislation. The balance of the law has been positively tilted in the direction of the victim, male and female, and that is the key element of what we are discussing today. The Minister has retained legislation in relation to sexual assault not involving penetration.
We must commend all of those in the Seanad and the Dáil who have been involved in this issue over the years. Both sides are now very close. The language used by Deputy McCartan and that used by the Minister are, frankly, very close. My main concern is to see the legislation on the Statute Book and I strongly welcome the amendments introduced by the Minister today.
On 5 December last during the Second Stage debate I pointed out certain flaws and weaknesses in the Bill. On that occasion I asked the Minister to redefine a section of the old Bill by the introduction of what is now in section 3, that is, that the assault includes penetration, however slight, of the anus or mouth by the penis and the penetration, however slight, of the vagina by any object held or manipulated by another person. I would like to thank the Minister for accepting the proposal I made then and for having included it in his major amendment which he is proposing to us today, with the consequent amendments which would change the remainder of the Bill because of that redefinition or rape under section 4.
When we approach the Minister and he listens to us and makes the changes we request, that should be acknowledged. This was one of the main problems with the Bill. On that occasion we welcomed the fact that the Minister, who had been introducing a great deal of reforming legislation in various areas, had brought back the Criminal Law (Rape) Bill so quickly after being re-elected to Government in 1989. We all welcome the improvement in the Bill and the consequential improvements in the remainder of the Bill because of this.
Deputy McCartan makes a reasonable point in his definition. I will certainly listen to the Minister's reasons for accepting or even rejecting Deputy McCartan's amendment before we decide whether it deserves to be supported. On that occasion last year I also asked the Minister to revise the Criminal Law (Amendment) Act, 1935, dealing with indecent exposure and I am glad to see that he reacted to that too by increasing the fine from £2 to £500 and from one month to six months imprisonment. I have to say that on this occasion I am reasonably satisfied that the Minister has responded to the cases we made on that occasion.
I certainly welcome the Minister's amendments this afternoon, but I have to say how disappointing it is, from the point of view of debate, that two minutes before the commencement of the debate the Minister introduced 32 amendments. It is certainly somewhat inhibiting.
My comments, therefore, will be on the main amendment, amendment No. 7a, introduced by the Minister in response to the various amendments that had been set down both by Fine Gael and Deputy McCartan. The Minister obviously admits now that his statements on Second Stage and the statements of his predecessor on Second Stage were subject to amendment and to the discussions that have taken place since then. I welcome the Minister's volte face on that.
Reference was made to meetings with certain interest groups that may have swung the balance in favour of the amendments. That may be the case, but I am sure the Minister is aware of the reports of this House, particularly those of the Oireachtas Joint Committee on Women's Affairs that reported in 1986 on the matter and had such distinguished members as the present Taoiseach and other members of the present Government when that committee formulated the report and made strong recommendations as to the definition of rape. Indeed, it was extraordinary that both the present Minister and his predecessor during the last Dáil were prepared to ignore the strong recommendations of the Oireachtas Joint Committee on Women's Rights on the question of the definition. Experts have been stating for many years that it was important to widen the definition to move away from the old concept of the male aggressor versus the passive female victim. That was one of the central issues behind the Law Reform Commission's reports and the pressure that was brought to bear for the introduction of this legislation.
I recall stating on Second Stage that this is one of the few pieces of legislation to come before the House in the eighties that, by the expiry of the decade, we were reforming and renewing once again. I felt that, if we were mature enough to state in 1988 that we got things somewhat wrong in 1981, that was an admission that we should at all stages be prepared to make. Had we passed the legislation in its original form we would have passed legislation that was defective. I certainly welcome the Minister's amendments. They are not altogether different from the Fine Gael amendments which attempted to broaden the definition of rape by widening the concept of statutory rape. That, in effect, is what the Minister had done. I fail to see how the Minister can say he is not interfering with statutory rape as we know it now — that is defilement of a girl under the age of 15 years. The Minister in his new section 4 has introduced a definition of "statutory rape". I fail to see how he can say he is preserving statutory rape in its own pigeon hole and yet come up with a new definition that is not going to take from "statutory rape" as we know it. I welcome the fact that this, in effect, will be the new statutory rape.
The major source of conflict between the Fine Gael Party and the Minister on Second Stage was on the newly created offence of aggravated sexual assault. It is clear that the nomenclature involved is of very great importance to a victim if she feels she is not raped in the common law sense. If somebody is subject to a horrific sexual assault it is extraordinary the degree of mental trauma and nightmare she suffers if she finds in court that the aggressor is not charged with rape. This is the point the Minister has eventually conceded. The broadening of the definition of rape will certainly be a considerable source of help to these victims. It was a source of tremendous worry and added considerably to the trauma when the person, believing she was raped, realised that the charge proffered against the aggressor was a lesser charge not incorporating rape. The Minister has certainly made an advance as far as that view is concerned. The fact that the definition of aggravated sexual assault is being broadened is an advance. The violation of bodily integrity of the victim will distinguish this form of violence from other forms of violence of a criminal nature.
The Minister said that he is preserving the common law concept of rape and that is what we in Fine Gael also attempted to do. Our amendment was geared towards broadening the statutory offence of rape so as to distinguish between the common law offence and the statutory offence. The Minister has gone down the same road, and that is also worthy of a note of welcome. The advances made by the Minister are welcomed and will be universally acclaimed. It is certainly a step in the right direction as far as the victim is concerned.
We will be proceeding to other amendments later, but the central theme of the legislation has been reformed to meet the needs of the day and the views of the experts in this regard. I am glad the Department of Justice have decided to take on the board expert opinion, and particularly the views of the women's group in this regard. No matter how expert a male might become in this area, it is of paramount importance that the views of the women's group, who are the real experts, be taken on board.
I am prepared for a long, hard, time-consuming slog on this matter and the number of amendments tabled to broaden the definition signifies the depth of the debate. This is a fundamental matter of principle. Views have been expressed by women and by people who deal with the victims of rape. I welcome the Minister's acceptance of the principle involved. Hopefully we will be able to improve on what he has offered.
We all recognise that there has been a shift from the view that only vaginal rape was rape and the only violation that deserved the stigma and the legal term of rape.
Many of us in this House traced the history of the establishment of the crime of rape. We all realised that the crime of rape was established more for the guardians of the victim and the victim of the crime of common law rape, as it was called, experienced a lack of value and worth. There was a paternalistic and patriarchal concept built into the evolution of the crime of rape, that it was a loss of value. Gladly we do not have to go into that any longer as women establish their own independence, autonomy and rights. It is important to put in context that this was women's main argument.
As time went on, and as we discussed other Bills to which the Minister positively responded, there seemed to emerge, from reports from the Rape Crisis Centre and counsellors of victims, a broader, more perverted and more violent type of attack on women and victims.
I welcome the fact that the Minister is considering the whole area of pornography and the link between pornography and this bodily violation and humiliation of victims. In that context, it is of the utmost importance that in this Bill we recognise that the violation of a victim by anal or oral penetration, either of the penis or another object, constitutes humiliation, violence, hatred and sometimes greater physical injury. It is established — it is important to say this because it is part of the principle being established now, particularly when we are concentrating on broadening the definition — that another misapprehension of centuries was finally and firmly put to one side, that it was of a sexual, seductive and titillating nature. The notion of victims as seducers put them into desperate situations in court cases. Through this debate, and because of women speaking out as victims, it has been established that rape has nothing to do with sexual attraction or man not being able to contain his sexual urges. It is an act of violence and hatred towards women, it must be squarely faced as such and tried and sentenced as such. If we do not accept that in its entirety, as Deputy McCartan already pointed out, we will have different levels or tiers of seriousness of the crime. Women — and men who have been sodomised and raped in the real sense of their internal feelings in prisons and elsewhere — can testify to the fact that there is no difference in their response to these acts of violence.
In the report of the Law Reform Commission the broadening of the definition is based on the fact that "it was the violation of the bodily integrity of the victim". That also applies to the mental, emotional, personal integrity and privacy of the person. It is merely splitting hairs to make differences such as rape under section 4, statutory rape or common law rape. It still allows us not to fully accept that any form of violation penetration of any orifice is horrific and must be accepted in community, legal and the traditional stigma terms which have attached such seriousness to this crime of rape.
I had a difficulty about statutory rape having its own particular legal definition but Deputy McCartan pointed out that the term statutory rape is almost conveniently accepted and used by the legal profession to describe the rape of a person under age. However, if it has only been used in that convenient sense then there should be no difficulty in a statutory rape being seen or consigned to one category only. Therefore, I join my colleagues on this side of the House in welcoming the principle which the Minister has introduced and which has been debated and discussed for so long.
I know that the people who made representations to the Law Reform Commission, and to the Committee on Women's Rights, will join me in that regard. The fact that the Minister has gone so far down the road means that we will have very good reformed legislation but let us not spoil it with a series of interpretations which take away from the broad fundamental principle about which I was talking and the seriousness of the violation of people, whether by object or penis. As Deputy McCartan also said, I take it that the Minister has recognised that section 4 (b) which reads "penetration (however slight) of the vagina by any object held or manipulated by another person" will include the anus. We are determined that gender will not apply here and although women are the greatest victims of this horrific crime, it is important that where a man also suffers male rape it is recognised. In fighting for our reform I do not want men to be excluded.
I wish to thank Members on all sides of the House for the welcome they have given to the amendment I have proposed today. I used the words "central issue" which were also used by Deputy Fennell and they are central to the whole debate.
It is important to reflect on what exactly is being decided. In the Bill we will have the common law definition of rape. There will be a new crime of rape under the new section 4. In the new section 4 (1) rape means a sexual assault that includes, (a) penetration (however slight) of the anus or mouth by the penis, or (b) penetration (however slight) of the vagina by an object held or manipulated by another person; (2) A person guilty of rape under section 4 shall be liable on conviction on indictment to imprisonment for life; (3) Rape under section 4 shall be a felony. This means that there will be a common law definition of rape, rape under section 4 and aggravated sexual assault to cover serious sexual assaults not involving sexual penetration.
The reason I brought forward the new amendment — as I have already outlined — is to cover the point made by Deputy Barnes in relation to the humiliation, sense of trauma and the psychological damage to the victim and the protection of the victim, male or female. In relation to the question of gender, in response to Deputy Barnes and Deputy McCartan, the definition will cover the rape of a male by another male, that is penal penetration of a man, and is, therefore, gender neutral to that extent. I want to emphasise that. The whole basis of the new section is as a result of the discussions I had and the opportunity I had to reflect on the situation in the months since it was last debated here on Second Stage.
Like a number of other speakers I want to pay tribute to the work of the Rape Crisis Centre. I had the opportunity to meet the personnel of that centre and I was very much struck by the case they made. I was also influenced by it and I should like to pay tribute to them for their work in this area.
Hear, hear.
I accept the point they made in relation to the trauma and violation of women. When I use the word "women", please accept on the basis of gender neutral that I am also accepting the other situation as well.
Among other things Deputy McCartan wanted to know why we should stick with the common law definition of rape. During the debate in the Dáil and Seanad various speakers including me, set out the reasons for retaining the existing definition. Briefly, rape has been known as a distinctive crime for centuries. It is clearly distinguishable from all other forms of aggravated sexual assault. It is the abuse of an act which in proper circumstances constitutes an expression of human love. The essential ingredient of rape is the absence of consent to sexual intercourse. That is rape in the common law sense as distinct from the new definition of rape in the new section 4.
In many cases rape would be accompanied by violence. The essence of the crime is the absence of consent which has to be proved. In the case of aggravated sexual assault consent will not normally be an issue. In the case of penetration by instruments, it is inconceivable that consent would be an issue. I would not go along with the suggestion that penetration by instrument should be included in the common law definition of rape. I am meeting the legitimate concerns of women who suffer this terrible trauma of this type of sexual assault. In the new section 4 what is described as a rape is not a rape in the sense of intercourse that could produce a child but it is the rape of a person, it does violence and the woman involved is rightly entitled to feel that legislators are protecting her by giving the definition laid down.
The penetration of the anus by an object will not constitute rape under section 4 because in certain circumstances such an occurrence may not constitute a serious offence. For example, one could have horseplay among school boys where an object, for example, a pencil could penetrate the anus and a person would not be charged with rape in such circumstances. However, if there was a serious indecent assault involving penetration of the anus by an object it would come within the broad definition of aggravated sexual assault under the Bill and an offender could then be charged with aggravated sexual assault. The new offence of rape under section 4 is limited to sexual assault involving penetration of or by sexual organ. The offence of aggravated sexual assault is being retained to cover serious sexual assault not involving penetration. That is the situation in relation to that.
I thank Deputy Kitt for his welcome of this amendment. It will address the trauma and psychological damage that so many victims of this horrendous crime feel. I would like to thank Deputy Kavanagh and others who spoke giving a welcome for this amendment.
I am pleased to have had the opportunity — which proves the value of parliamentary debate — of meeting requirements of experts in the field with this amendment. It is not a question of being dragged into changing the law. It is a question of having an opportunity to consider points put forward by interested groups. The new definition of rape under section 4 will meet the genuine and deeply felt views that the acts described in section 4 are worthy of the description "rape".
I overlooked a few matters but perhaps it was better to let them stand so that we could assess the Minister's reaction to the points raised. The inclusion of "anus" in subparagraph (b) is regrettable because the Minister is departing from the principle of gender free definition. He is now introducing two new definitions under the section 4 definition for the conditions of rape for a woman and the conditions of rape for a man. That is a pity. I would ask the Minister to think again about it before we complete this stage.
This brings me to a far more worrying aspect. I hope I have got it wrong but if I have not, then my worst fears are confirmed in respect of this section. I refer to the element of consent. The Minister talked about horseplay and pencils; if two schoolboys decide that they want to penetrate each other with their pencils, that cannot be constituted an offence. The Minister in his Second Stage speech dealt with this matter in a very startling way. When I was looking at the amendment I wondered were we talking about penetration with an object in all circumstances or where this element of consent came in. There are many circumstances in sexual intercourse and sexual contact between consenting adults where animate and inanimate objects can be brought into play. I am thinking about a person who is completely impotent, incapable of an erection, who might use some form of object in place of the limp organ. I am thinking of a vibrator, an object not unknown to the love play between consenting adults and about the finger itself. In relation to the Minister's definition the Minister used the words "any object held or manipulated by another person", whereas the Law Reform Commission talked about inanimate objects clearly intending to take the idea of the finger or digital penetration out of it. Their view was that if there is penetration by the finger between consenting males there is no difficulty, but that does not arise because we are talking about inanimate objects that are nonconsensual which would come into one of the other categories of aggravated sexual assault. I would like to have this matter cleared up. I have fundamental problems about the Minister's definition if the element of consent is a non-issue.
In the Second Stage speech delivered by the Minister for Social Welfare, Deputy Woods, this issue was dealt with in an incredible way and the Minister repeated himself here this evening in the comments on the definition. The Minister, Deputy Woods, speaking on the definition of rape said:
That argument does not stand up to scrutiny. Rape has been known as a distinctive crime for centuries, and is clearly distinguishable from all other forms of aggravated sexual assault. The essential ingredients of rape is the absence of consent to an act which in proper circumstances constitutes an expression of human love. Although in many cases rape will be accompanied by violence the essence of the crime is absence of consent which has to be proved in every case.
On the other hand, in the case of the aggravated sexual assaults we are talking about consent will not normally be an issue. Indeed, in the case of penetration by instruments it is inconceivable that consent would ever be an issue and to suggest, as has been suggested by the majority of the Law Reform Commission, that the offence of rape should embrace non-consensual acts of this nature must be wrong in principle since to do so would give rise to the startling implication that such acts, if consensual, would be acceptable.
I fundamentally disagree with that proposition, and have instanced many opportunities where the use of an object, for penetration purposes, is utterly and totally legitimate and acceptable between consenting adults in lovemaking. For this reason I am concerned about the absence of the term "non-consensual" from the definition of what constitutes rape under section 4.
In looking at this matter, in the context of this Bill, I examined the cross references to see if the concept of non-consensus will come in. Under section 4 rape means a sexual assault. According to the Bill as amended and passed by the Seanad sexual assault has the meaning assigned to it under section 2 which goes on to state that the offence of indecent assault upon any male person or upon any female person shall be known as sexual assault. In other words, there is no argument that consent or non-consent is a necessary ingredient in this area of crime in the Bill as passed or the back references.
As I said, I am fundamentally opposed to the universal or absolute prohibition of object penetration which seems to be strongly proposed by the Minister's amendment and supported by his views, as expressed by the Minister for Social Welfare Deputy Woods, on Second Stage, which were repeated earlier this evening. I hope we can change that but if not, as with the idea of leaving out a reference to the anus in subparagraph (b), I will pursue these matters on Report Stage by way of specific amendment. I hope we will not have to do that and that we can argue this thing out and get it right.
I also believe that we should include the word "inanimate" in qualifying what constitutes an object. To leave it as it stands is leaving it far too wide because, as I said, the finger presents a problem and will be included in the definition of "object". The Law Reform Commission were careful to use that word in qualifying the object involved. Those specific points on the definition have to come into it.
The Minister has proposed the old style common law definition of rape, statutory rape as suggested in the new section 4, aggravated sexual assault and sexual assault but a further definition has to be thrown in and that is the odd definition contained in the 1981 Act which stays intact. The Minister's regime of the four gradations does not in any way attack the very male definition of rape under the 1981 Act. Oddly, we are talking here about introducing a gender-free definition of rape whereas in fact we are not doing this absolutely or entirely under section 4 but even more so we are leaving intact the definition of rape under section 2 of the 1981 Act which states in section 2 (1) that a man commits rape if (a) he has unlawful sexual intercourse with a women who at the time of intercourse does not consent to it and (b) at the time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it. That is being left on the Statute Book in all its sexist glory. It is not gender free and, as I understand it, it represented an effort at the time by the Legislature to put on the Statute Book something that would closely approximate, if not cover, the old common law definition. Therefore we find ourselves in a rather curious, if not a bit confused or convoluted position despite the Minister's best efforts and I hope we can move a bit closer to a tidier definition.
That is the reason I believe the approach of the Law Reform Commission is the better one. I attempted to address that approach in including an all-embracing definition of rape in the Bill this time around. I should say if we can clarify the reasons we should leave out a reference to penetration of the anus by an object, deal with the question of consent satisfactorily and can take "object" to mean an inanimate object, then I would be very happy with the Minister's proposals and would think that we had improved matters substantially. However if we cannot do this I certainly would not agree to a very unsatisfactory formula which has more holes than good in it and would press my own amendments in this regard. What I am saying to the Minister is that if we can make progress on the three points I have made in relation to the definition I will be prepared to meet him.
I congratulate the Minister and welcome the extension of the definition of the awful crime of rape, the most heinous crime apart from murder. However I have to say to him that the introduction of three categories will only lead to legal argument with lawyers nitpicking the various technicalities. This will in turn make it extremely difficult to convict a person charged with this offence. The introduction of one specific definition of rape would make it easier to overcome the difficulties which will arise in the court.
The incidence of rape is increasing and has been accentuated by the violence we see on our screens each night. It is a crime which has to be addressed head on and I welcome the Minister's proposal that the sentence to be handed down should be lifetime imprisonment. However I have my doubts whether any person will be asked to serve a lifetime sentence in a country where in some ways murder is accepted as being the norm and where the life of a clergyman, asleep in his own bed, was taken in the early months of this year and the person who took his life was given a sentence of eight years, a derisory sentence. The following day men charged with robbing a bank in Enniscorthy got 12 years. Therefore it would appear the sentence for taking a life can be fixed at eight years.
Despite all the moonshine and talk about abolishing the death penalty and imposing a life sentence I believe no one will ever see anyone being asked to spend a lifetime in prison. It is ridiculous. It is part of the charade we go on with here in the legal area. I venture to say that this is yet another enactment of the charade that nobody, but nobody, will serve a lifetime for rape, no matter how foul because the bleeding hearts in society and the do-gooders will, after some time, come in and plead that so and so should get out without giving any thought to the crime of which that person was guilty. The crime of rape is an appalling one. I would have my own way of dealing with it. I would take a continual sex offender to a veterinary surgeon who would ensure that there would be no further such crime so far as that person was concerned. It is the absence of deterrents that has allowed people to get away with rape. That view is not unique to me, it was expounded in the House of Commons some years ago by a lady baroness — I would say to Deputy Barnes that I am not a baron but that is my view. People who commit that crime, and certainly second offenders, should be dealt with in that manner.
I would ask the Minister if it is obligatory for a person who is a sex offender to receive treatment while he is in prison. If that is not the case then it should be. Everybody who is convicted of rape or of any other sexual offence clearly has a mental disorder and should be given treatment while in prison. I agree with the Minister in the matter of a life sentence but, while I do not doubt his intention, I question whether society will allow or will ask anybody to spend their life in jail for rape.
The other point to which I would like to draw the Minister's attention is that the three categories he has itemised are very specific and will lead to all types of argument in court. There should be one definition of rape and a very definite sentence.
In relation to a number of the points made rather than getting bogged down in detail, I would like to remind the House of what is the object of this amendment. It is, I outlined at the start, that a woman who is the victim of the type of violation, as laid down in the new section 4 proposed by me, regards herself as having been raped and needs the offence involved to be termed "rape" if she is to feel properly vindicated. I believe that the course of action we are taking in retaining the existing definition of rape is correct and should not be interfered with. However, the type of sexual assault at issue under the provisions of section 4 is viewed with the utmost disgust. As I said earlier the offence should attract the stigma and odium which is attached to the original definition of the crime of rape. That is what is being done by this amendment. That is the central issue that was between us all in this House. It was the central issue that was being debated by others outside the House. Whatever else we decide on now or whatever other points are to be made, let us remember that that is exactly the central issue that is being catered for in the amendment I have brought forward. It is brought forward because of the consideration I have given the matter and because of the case made by groups such as the Rape Crisis Centre, the Oireachtas Joint Committee on Womens Rights and by other groups and individuals with whom I have discussed this issue. The definition is clearly intended to tackle a particular problem and I believe it does.
Deputy McCartan asked about the element of consent in the new section 4. I would draw the Deputy's attention to the beginning of the section where there is a reference to sexual assault. If there is consent, no sexual assault has been committed and the new offence does not apply. I can assure the Deputy, therefore, that the consensual acts as outlined by him do not come within the scope of the new section. The Deputy also raised the question of penetration by an inanimate object. The term "inanimate object" was not used because of concern that it would lead to legal argument as to what exactly was or what was not an inanimate object. The advice I received is that a finger could not be regarded as an object for the purposes of this Bill.
I am prepared to listen to points being put forward by Deputies. I am prepared to go away and consider them for Report Stage and see if I can meet some of the points at issue. The central core issue which is of such vital importance to women and to men, too, who are victims of these crimes, who have been degraded in a way which does not involve sexual intercourse but at the same time feel they have been raped, is that they should have the comforting blanket of the psychological protection of a definition of rape under the provisions of section 4 as I have outlined it and proposed it to the House. I strongly urge acceptance by Members of the House of the definition as I have outlined it to cover this core issue. If there are points that individual Deputies want to make either in the House or to me privately I will be prepared to listen to them and to consider them in advance of Report Stage. In debating this issue we should not get ourselves tied too much to what I would term — though they are important — side issues when the core issue, which we are trying to deal with, is dealt with in the amendment.
I would like to respond to the points made by Deputy McCartan. The Minister is correct in ensuring that in this legislation we focus on the issue we all want to address and that is the victim — whether it be a woman or a man — of violation. I for one, having listened to the Minister, would share his view that Deputy McCartan's fears are groundless. I appreciate the legitimate argument he makes. He refers to the possible infringement of the rights of consenting adults in lovemaking and he refers to the use of objects, whether legitimate or not, between consenting adults. While accepting that there is logic to his argument I would have to say that the definition of sexual assault is covered by the legislation. Section 2 (1) states:
The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.
When we look at the Minister's amendment we see that rape under the provisions of this Act includes the various items listed at paragraphs (a) and (b). Once the reference to sexual assault is there the fears expressed by Deputy McCartan are covered in that the Minister, quite rightly, is focusing his attention on the act of violation and is not getting embroiled in any way in the lovemaking act of consenting adults. That is how I read it. I welcome the fact that the Minister will respond as he has done in the past, to any legal points that are raised here today. I repeat that there is a very serious issue to be addressed. It has been described as one of the most serious violations we have to face. The Minister is dealing with this correctly. The definitions on page 3, lines 24, 25 and 26 will cover Deputy McCartan's legitimate fears. It does not in any way infringe on the rights of consenting adults but it deals with the act of violation.
I acknowledge that the Minister is prepared to have regard to and listen to what we are saying and I will be happy to move on from this on the basis that serious consideration will be given to it on Report Stage. I would welcome a reasonable opportunity between the completion of Committee Stage and the commencement of Report Stage, having got a copy of the amendments the Minister has set down today, to consider the matter. I am not suggesting that we unduly delay the Bill which I hope will have passed through this House before the Christmas recess.
That is the intention.
I do not intend to impede that. From remarks made on Second Stage I am worried that there is a difference between us on the idea of consent. There is a view coming through that the notion of object penetration in whatever circumstances can in some way be unnatural and therefore could not be contemplated or facilitated in our legislation. It may not be a view that is strongly held. Other views were expressed on Second Stage and the Minister argued very cogently about the defintion of rape generally. I recognise that on reflection, mature and all that it was, and in consultation with those active in the field and those who met with him, he has taken a different view and I acknowledge that as a magnanimous gesture and a good response from him. Views can change and I hope in this area they will change.
The issue of consent is a difficult one. It is not something that is either there or is not there. If it is an assault consent could never arise and vice versa. In section 8 we attempt to improve upon the definition of consent. The Bill states that the failure of a person to resist cannot be taken as an indication of consent in trying to establish whether or not consent exists. There is a fundamental problem. The Minister might like to reflect on this a little more. I am not demanding that he do it today. From what he says there should not be any difficulty about including in subsections (a) and (b) of section 4 the words “non consensual” penetration so that the section would read “...rape under section 4 means a sexual assault that includes (a) non consensual penetration (however slight) and (b) non consensual penetration (however slight) ...”. That would get over the difficulty from my point of view.
If it is evident to the Minister, and Deputy Kitt, in looking at the back reference to section 2 that it is covered let us firm up on it in the way we have sought to firm up on the whole concept of consent, for example in section 8. I am not pursuing something that is a frivolous or academic issue particularly when we consider that we are introducing in the Bill the concept of rape within marriage. We are getting into the area of the consensual arrangement between two married people engaged in sexual activity and lovemaking. This becomes more critical when we talk about and respect the privacy of the marriage and the marriage bedroom or whatever location in the house the couple would engage in sexual activity or making love. We need to think about it.
I am impressed that in the consultation paper the Law Reform Commission dealt at length with the concept of consent. They point out that in Western Australia, New Zealand, Canada and in many of the other common law jurisdictions where they had addressed this problem, statutorily they have come down to very firm definitions. They have been careful to firm up on the idea of the need for consent or the absence of consent and what consent means if it is to be defined in clear terms. In their final report the commission say we should introduce certain definitions with regard to consent and use the terms "consent" or "non consent" throughout the definition section. Their definition of rape as they advanced it was the non-consensual penetration. They were the words they used. I urge the Minister, in the context of penetration under section 4, to use the word "non-consensual" penetration.
If I am assured, and I have no doubt but that the Minister will seek to so assure me, that the definition of object does not involve something that is animate and has life in it, like a finger, then I would not be worried. I am curious to know why the Law Reform Commission, who consulted a wide range of people and who researched this to the extent that they did, felt it was an important qualification of the word "object". They constantly referred to "inanimate object". I am curious to know why if there is no difficulty about it the Minister cannot accept it. Why not include in subsection (2) the word "inanimate" before "object". I invite the Minister to look at that matter before Report Stage. Perhaps he will advance in further details the advice he has been given and the case laws or any text book references available to him that helped him decide that "object" defined means inanimate object entirely and would not refer to, for example, finger or any other prominent portion of the anatomy. Those are my concerns.
In the spirit of what the Minister is saying I hope the argument of another central principle of all the amending legislation we are trying to do now, that is to maintain the non-generic definition, will persuade the Minister in time to accept that he should include under subsection (b) the word "anus" as an orifice capable of being interfered with or raped by an inanimate or other object.
I welcome the teasing out of this issue. My amendment goes to the core of the issue which separated both sides of this House and others who are deeply concerned. I will refer Deputy McCartan to line 241 where it is stated that rape means a sexual assault. There cannot be a consensual assault. That is a contradiction in terms. I have already answered the point about the inanimate object and the Deputy might have an opportunity before Report Stage to reflect on that answer. I am concerned not to open a Pandora's Box of legal interpretations which would lead to difficulties in the courts. On Second Stage we were talking about the interpretation of existing definitions. I am determined to maintain the non-gender aspect of the legislation. That is the core of my thinking.
I have listened to the points made by Deputies. Where they see that further improvements could be made on the improvements I have announced today, I am quite prepared to look at these issues between now and Report Stage. I am not making a commitment to make alterations but I will give them deep consideration.
Amendment, by leave, withdrawn.
I move amendment No. 1a:
In page 3, subsection (1), between lines 12 and 13, to insert the following definition:
"‘rape under section 4' has the meaning assigned to it by section 4;".
I am happy to let the matter rest until Report Stage and will gladly support the amendments the Minister is proposing. I should like to come back on Report Stage to the issues I have raised, particularly the three issues on the new section 4. I hope the Minister will respond magnanimously at least in regard to some of them.
Amendment agreed to.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 3, subsection (2), between lines 23 and 24, to insert the following paragraph:
"(c) In this Act and in the Principal Act a reference to any enactment shall be construed as a reference to that enactment as amended or adapted by or under any subsequent enactment.".
This is to include a standard drafting provision.
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.
I move amendment No. 3a:
In page 3, between lines 28 and 29, to insert the following subsection:
"(3) Sexual assault shall be a felony.".
The Director of Public Prosecutions has requested that in appropriate cases a power of arrest should be available to the Garda where they suspect a sexual assault has been committed. This amendment is being made in response to that request. Under the common law there is power to arrest without warrant a person suspected of having committed a felony. By making sexual assault a felony it will attract that power of arrest without warrant. Although the most extreme form of sexual assault will constitute aggravated sexual assault, there will be circumstances where a serious sexual assault might not be charged as aggravated sexual assault. This is clearly envisaged in the Bill and section 2 (2) provides for a penalty of five years' imprisonment for a sexual assault. It is clearly appropriate that the Garda should have the power to arrest without warrant persons suspected of a serious sexual assault. A similar power is made available to the Garda in the case of aggravated sexual assault cases by means of that offence being made a felony under section 3 (3).
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
Amendment No. 4 not moved.
I move amendment No. 5:
In page 3, subsection (1), line 32, and in page 4, lines 1 to 4, to delete all words from and including "or includes—" down to the end of the subsection.
Amendment agreed to.
Amendments Nos. 6 and 7 not moved.
Section 3, as amended, agreed to.
NEW SECTION.
I move amendment No. 7a:
In page 4, before section 4, to insert the following new section:
"4.—(1) In this Act ‘rape under section 4' means a sexual assault that includes—
(a) penetration (however slight) of the anus or mouth by the penis, or
(b) penetration (however slight) of the vagina by any object held or manipulated by another person.
(2) A person guilty of rape under section 4 shall be liable on conviction on indictment to imprisonment for life.
Rape under section 4 shall be a felony.".
Amendment agreed to.
SECTION 4.
I move amendment No. 8:
In page 4, lines 10 to 12, to delete subsection (2).
This amendment deals with the old section 4 which will now become section 5 in view of our acceptance of amendment No. 7a. In the original Bill as passed by the Seanad section 4 dealt with the abolition of marital exemption in relation to rape and laid down that henceforth rape could be committed between married couples and that there should be no prohibition based on the anachronistic and anarchic proposition that a man could not be guilty of the rape of his wife. It is proposed under subsection (2) that no proceedings can be instituted except by or with the consent of the Director of Public Prosecutions. My amendment is to delete that qualification by removing subsection (2) in its entirety. We propose it on the principle that we do not consider a married woman to be any different from any other women in any respect and in particular in her capacity to make a good complaint competently if ever she has the misfortune to be raped by her husband. Consequently we see no reason why there should be any differentiation in the procedures to be undertaken by a victim in those circumstances of rape within marriage and by a victim who is raped outside marriage.
One of the central propositions advanced at all stages in the cause of amendment of the law with regard to rape and improvement of the conditions for dealing with rape victims — once they presented themselves to the prosecuting and investigating authorities — was that life would be made easier for them, they would be dealt with and responded to in a caring, meaningful way, with no unnecessary impediments put in their way once they had had the courage to come forward and tell their grisly tale to whoever they approached as a matter of course.
Consequently we have now recognised that women are citizens of full right, and that they should never lose their rights in society simply because they are married. Heretofore, in the development of the law in regard to the sexual offence of rape, we have not treated women properly. We have had this notion, that originated in paternalism, in male sexual and social superiority, that a woman spurned would be a woman sore, that a woman's word needed to be corroborated in order that, at a trial, her testimony would have to be accompanied by a recent complaint made to an independent person by way of supporting, corroborative evidence. I hope we have got rid of all that.
We have amended the law. We have improved on many of these unnecessary, anachronistic notions and rules. That is why it is unfortunate that we would allow this feature remain in this Bill. It is some what insulting to married women to suggest that they would be more prone to make unfounded allegations; I think that is the thinking behind this clause. I acknowledge that the Law Reform Commission argued for this proviso but I think they are wrong. Indeed, I think this House would be wrong to accept this amendment and put it on the Statute Book. It is insulting to married women to suggest that they would be more prone to make unfounded allegations, that they would be inclined to abuse court procedures any more than any other women or citizen.
It is important that we understand the current state of the law. All of the offences with which we will now be dealing will be felonies, all of them capable of trial and indictment. Consequently — if we take this amendment aside — a complainant will be able to initiate proceedings only by way of private summons or by lodging a complaint with an investigating officer, a member of the Garda Síochána who might then, on behalf of the Director of Public Prosecutions, institute proceedings. Once the proceedings have been concluded before the District Court and a ruling that a prima facie case has been established, the case automatically reverts to or becomes the property and sole responsibility of the Director of Public Prosecutions before being brought to the Circuit Court for trial.
What we are achieving by the deletion of this subsection is giving married women the right to initiate proceedings, to prosecute them through preliminary investigation in the District Court. Then, in time if a married woman succeeds in establishing her case, it becomes the property, authority and responsibility of the Director of Public Prosecutions who will have absolute control over it. Therefore, what we are suggesting by the deletion of this subsection is not something unduly radical or that would in any way lead to undue oppression of husbands or abuse of the courts and court procedures. There are sufficient inbuilt safeguards to ensure against such practices.
In any event I contend the better course to adopt in the first place, in the spirit of maintaining principles, would be to put married women in these circumstances on the same footing as all other women. Then, if there developed a scenario in which there was undue abuse, an over-preponderence of married women going into the District Court, to the Garda Síochána or elsewhere, making false, unnecessary or vexatious allegations of rape within marriage against their spouses, at that stage, we might consider introducing an amending Bill. I contend it is wrong to anticipate or suggest an ulterior or base motive simply because a person, or a woman, is married. That must be wrong in principle.
I would request the Minister to allow the Bill go through without the proviso. Let us then ascertain how matters transpire in the implementation of the provisions of the Bill.
Within a scenario in which we have given the Director of Public Prosecutions absolute discretion — in circumstances in which he is obliged and in fact never does give an explanation of his decisions — I contend it is wrong to include this proviso and give him authority in the circumstances of this crime. I am visiting no criticism at all on his office. I contend it was right in the first instance that he was given that absolute discretion which has been protected by the High Court and the Supreme Court to be inviolate; that it is correct that he should not be expected to enter into the public arena to explain his decision whenever he reaches them. Nonetheless this is a controversial, emotional area, essentially an emotional one. It is one in which I have no doubt we will find women, complainants and organisations working in the field, very early on demanding to know why the Director of Public Prosecutions took a particular decision in given circumstances that would seem to be contrary to the interests of the married woman complainant and, certainly, contrary to the work some of the agencies are endeavouring to do in this field.
In circumstances in which the Director of Public Prosecutions is unapproachable, his decisions not deemed to be subject to appeal, when in practice he never has or does explain his reasons in particular instances or cases, then I contend it is wrong to give him this authority or power to say no proceedings can be initiated without his consent. I urge that the Minister accept this amendment.
The section with which we are dealing, which was section 4, now section 5 as a result of the amendment we have accepted, is a major advance in the protection of married women by society. It constitutes the abolition of marital exemption in relation to rape and reads:
Any rule of law by virtue of which a husband cannot be guilty of the rape of his wife is hereby abolished.
Rather than being unfair to married women, as has been suggested by Deputy McCartan, this section is a major advance in the cause of equality and protection of married women within our society. So that we may deal in a caring way with the problems of married women the abolition of the marital exemption in relation to rape is now being eliminated.
However, I oppose the amendment which would allow proceedings for marital rape to be instituted without the consent of the Director of Public Prosecutions. Section 4 (2) was inserted in the Bill because of the evidential difficulties that would invariably arise in marital rape cases and in order to prevent the institution of spiteful or mischievous proceedings by a spouse or an interfering third party. The present position is that under Article 30.3 of the Constitution a private person may not prosecute a criminal offence except in a court of summary jurisdiction, that is, the District Court. In the case of a serious crime such as rape effectively that means that a private prosecution could reach the stage of preliminary hearing in the District Court only but could go no further. By virtue of section 4 (2) even this preliminary stage could not be initiated without the consent of the Director of Public Prosecutions. This is a necessary safeguard. For that reason, and because of the evidential difficulties to which I have referred already, section 4 (2) is an important provision in the Bill while, at the same time, clearly stating that this is a major advance in the overall area of the protection of married women.
I support this amendment for various reasons. For many years I worked with Women's Aid which was a hostel for battered wives. Again and again the cases that came up during that time were of women coming into the hostel who had been beaten by their husbands but would also have been raped. We are talking about that act in the context of all the definitions in this Bill, without consent, with violence, etc. The dreadful frustration for those women and those helping them was that there was no way they could have their husbands convicted of what was straightforward rape in any context. We have to keep in mind that in this country we do not have divorce, so people cannot become unmarried and for ever and ever two people, who would have separated through an agreement or because of a barring order or any of the other legal provisions that fall far short of allowing the marriage to be dissolved, are still married so they would be treated in a different way in the event of a violation of rape or any of the definitions of rape in this Bill.
Apart from the fact that I agree with Deputy McCartan that it is unfair and discriminatory, that is going to cause great problems. This constitutent group of separated married people is growing all the time. Very often, particularly where there has been violence in the marriage, you have resentment and motivation on the part of some violent men to abuse their wives. In that context when we talk about what we mean by marriage we have to look seriously at this amendment. You are not necessarily going to have any more vexatious claims, in my opinion, than you will have anyway. I am worried about the fact that the Director of Public Prosecutions will be the person to signal whether these cases should go ahead, for all the reasons the previous speaker has outlined. Having grasped the nettle which was not grasped in 1981 when the original Bill was being debated, now we recognise that we do not need to apologise for taking action and being involved in what would be called the private area of marriage in cases like this. We should go all the way and we should not have another separate definition in this matter. I support this amendment and I ask the Minister to consider his views on it again.
Even if I was to agree to allow this situation to take place, the complaint would get only as far as the District Court. What we are dealing with here, rape, goes to the Central Criminal Court, so the Director of Public Prosecutions has to come in. Even if you allow a private prosecution without the involvement of the Director of Public Prosecutions it goes only to the District Court. Because of the seriousness with which the Government view rape and with which this House always treats it, it is going to the Central Criminal Court and there we need the Director of Public Prosecutions. Therefore, the involvement of the Director of Public Prosecutions is central.
It is interesting that this issue was mentioned by the spokesmen on behalf of the Fine Gael Party, Deputy O'Keeffe. I am not trying to score points. For the benefit of the recollection of the House here I quote what he said as recorded in column 222, Volume 394 of the Official Report of 5 December 1989.
While I can foresee evidential problems arising in marital rape cases, on balance I favour the Minister's proposal that the martial rape exemption should now be abolished. I am to some degree affected in that positive view by the inclusion of a proposal that prosecutions of marital rape could only be initiated by the Director of Public Prosecutions. This would ensure that frivolous charges would not be made. I tend to support the view of the Minister on this issue.
That was the view, but I suggest the key issue, of protection for women inside or outside of marriage — and we have a major step forward here in the abolition of marital exemption in relation to rape — is that we in this House view it so seriously that it will go to the Central Criminal Court, and to get to the Central Criminal Court it cannot be done on a private prosecution; it can be done only on the direction of the Director of Public Prosecutions. I assure the House that, rather than in any way being uncaring in relation to this, I want to try to be totally caring, totally protective of the married woman and ensure that in the event of rape within marriage, which is a completely new concept in our law in this country, she will have the maximum protection and that it will be treated with the seriousness which it deserves and will go to the Central Criminal Court and not to the District Court, which would be the effect of this amendment.
No. The Minister in his last remark indicated a complete misunderstanding of what is being proposed in the amendment. To suggest that taking out subsection (2) would in any way force cases to be dealt with in the District Court that might otherwise be dealt with in the Central Criminal Court is utterly wrong. All indictable offences are capable of being tried in courts outside the District Court, either in the Circuit Court or the Central Criminal Court. All individuals are entitled to initiate those proceedings in the District Court, where they have to be started only by summons because they cannot lay a charge sheet. In this regard I invite the Minister to advise the House of the very few instances where the Director of Public Prosecutions must consent to the taking of a prosecution before it can be done. There are very few.
We are arguing here that a woman victim of rape who happens to be married should be in exactly the same position as any other women who happens to be raped, unfortunately, or any other victim of any crime be she or he male or female. In other words, we are arguing simply that a married victim of rape, a woman raped by her husband, should be entitled to initiate proceedings or to have a member of the Garda Síochána initiate the proceedings or bring the proceedings without the absolute pre-consent of the Director of Public Prosecutions. That is all we are contending for. It is accepted fully that if the proceedings are properly instituted and initiated and the defendant elects for trial on indictment or the case must go on indictment to the higher court — if we accept the Minister's proposition, to the Central Criminal Court — all the victim can do is prosecute the matter through preliminary investigation in the District Court, and the moment the district justice says there is a case to answer and sends him forward for trial it then ceases to be the property of the victim complainant. That is the situation in all indictable offences, in all cases that go from the District Court to the Circuit Court or the Central Criminal Court. Nothing new or different is being argued for here. We are certainly not arguing for a prohibition on these cases being dealt with in the Central Criminal Court or in the higher courts or insisting they be dealt with in the District Court, as the Minister suggested.
The issue of the role of the director is a very real and worrying one, as Deputy Fennell has suggested. If anyone was ever in doubt about it, there is a celebrated account of a horrendous case of multiple or gang rape on a Glaswegian girl some eight or nine year ago. I am reminded of this because I have just returned from Glasgow and the last time I was there I bought the book which illustrates this. I will give it to the Minister if he feels it might help him to understand the problem of the director's role. The director's counterpart in Scotland, the Procurator Fiscal of the day, refused to take the complaint, act upon it and prosecute, and under a quirk of the law in Scotland relating to the taking of civil proceedings which can reactivate criminal proceedings, the victim was able to find a sympathetic lawyer who investigated the case and succeeded in getting the police to issue warrants to bring before the courts three young men the victim had always identified and had always accused of this horrendous crime. She had been slashed brutally in the face and body and virtually left for dead. It is one of the most celebrated examples of where, for whatever reason, no action was taken, and I have no doubt the Procurator Fiscal of the day and the Director of Public Prosecutions here might have very good reasons for not acting in certain circumstances. But that sense of grief and hurt that we are trying to assuage by improving the definition of rape will compel a woman raped within marriage to seek justice and to bring a prosecution. It is only right and proper that our law should allow her to initiate the proceedings and to have the same rights as any other complainant victim has in our law.
My question then is, why do we suggest that married women are more spiteful than any other woman, or any other man for that matter? Why do we anticipate that married women will be more difficult in co-operating with the police in the prosecution of cases than the victims or complainants in relation to any other offence, men or women? I do not accept the proposition that there is a need for safeguard here at this stage. I might be convinced in two year's time when we see how the law works, but until then we are making an unfair assumption and we are being less than fair and respectful to the married woman. For that reason I am asking the Minister to think again about this proposition and to accept the amendment I am proposing, the simple deletion of subsection (2). I would ask the Minister to do so, particularly if he got the wrong end of the stick in regard to what we were seeking to achieve here.
I accept fully that all a complainant woman in this circumstances can do, as in all other indictable situations, is make the complaint, issue the summons herself as a complainant in her own name, as is the right of every citizen in all other circumstances of crimes, or go the Garda and have them initiate the investigation and/or proceedings before the court before they submit a file to the director. There are often good practical reasons that the Garda, once they have received a complaint of rape, should move quickly to apprehend the offender and have him lodged in a cell, faced with a charge, obliged to be released on bail. That facility will not be there where the director must be consulted because the practice in these situations is that the director will insist upon a file being assembled and conveyed to him in Dublin where he will have the opportunity to review the facts and then make a decision, and what he will be looking for are facts that indicate whether there is spite or a vexatious prosecution.
Where would the speed of action be more necessary than in the case of a married couple where the woman is raped? Is she to return home while the Garda send the file up to the Office of the Director of Public Prosecutions so he can decide whether a prosecution can be brought? What if the husband realises that there is substance in the woman's threats that she will make the complaint, and she has done so? He escapes the jurisdiction, leaves the home that he has little or no respect for in view of the violence that he has shown to his wife and probably the children as well. He skips. He has got fair notice. His wife has actually gone to the police station and the file is being prepared and being sent up. All this is a worrying feature of this proposal. The evidence is not there to support the necessity of it. It is an undue worry on the Minister's part; it is an undue safeguard and it is discriminatory and unfair to the whole number of married women who unfortunately may become victims of the horrendous crime of rape by their husbands. I take on board what Deputy Fennell has said with regard to the increasing trend of women in our community who are married in name only because of the absence of divorce and can never be free of their husband and the marital tie.
Let me restate the situation for Deputy McCartan. Rather than being less than caring about married women within our society, we have made a major advance in Irish law by abolishing the marital exemption in relation to rape. Any rule of law by virtue of which a husband cannot be guilty of rape of his wife is abolished. That is a major step forward.
I share Deputy McCartan's concern for the woman raped within marriage who goes to a police station to complain. The obvious step after that would appear to be to obtain a barring order against her husband rather than returning to live under the one roof with him when she has made this complaint and has a prosecution proceeding for rape within marriage. At present rape can, in certain circumstances, be dealt with summarily in the District Court. When this Bill is enacted, however, this will no longer be possible. There is, therefore, no point in allowing a private prosecution in the District Court because rather than giving extra protection to the married woman it would be diluting her protection. If we allow a private prosecution in the District Court without the Director of Public Prosecutions being involved, unless he is going to proceed with the case, it will not go any further. In this legislation I am merely ensuring that the Director of Public Prosecutions will be involved from the very beginning to give the maximum protection to the married woman. What we want to see is a situation where rape will be treated in a serious way and will go to the Central Criminal Court. Each complaint, whether inside or outside marriage, will be treated in a serious way and the Director of Public Prosecutions, on the basis of a file from the Garda, will be involved from an early stage. Deputy McCartan's suggestion, rather than protecting married women would dilute the major protections we are including for the first time for a married woman whose husband can be found guilty of rape. That is a very important protection for married women.
One of the major provisions, and one we have all welcomed, is section 4 which proposes to abolish the common law rule that a husband cannot generally be guilty of raping his wife. This has been welcomed by all sides of the House and I compliment the Minister on it. As I understand it, rape within marriage by a husband of his wife is to be treated differently in law to rape outside of marriage. I agree with Deputy McCartan on this matter. We all agree that whether rape is committed within the marriage or outside, it is a crime and should be dealt with accordingly.
Section 9, which deals with the crime of rape, should apply to rape in every case. The argument put forward, and repeated by the Minister, is that rape within marriage produces evidential difficulties and that the case may be brought forward because of spite or mischievous complaints by a wife. That could happen either inside or outside marriage and why should it be treated differently? It may happen more often in marriage but the same evidential difficulties will arise in rape cases whether within the marriage or outside it. If the Minister proceeds with his argument it will result in this excellent Bill being somewhat flawed in one respect. For that reason I support Deputy McCartan's amendment.
The Minister was vehement about making this change. The abolition of the marital exemption is a most welcome advance that is universally supported but it is a pity there appears to be this element of clawback. In introducing the major advance he stated that he was anxious to treat crimes of sexual violence, whether within marriage or outside it, in a most serious fashion but surely similar crimes should be treated in a similar fashion. Not so long ago legal people, and legislators, were saying that it was impossible to legislate in this area, that it was undesirable, and well nigh impossible from an evidential point of view, to interfere with the marriage bond. Now we can see there were no great evidential problems in cases where there was serious physical assault, perhaps not of a sexual nature. I see no reason why the Minister should not treat a crime of a sexual nature within marriage in the same way that we treat a similar crime outside marriage. Obviously, there are difficulties from the point of view of proof but that should not be the ultimate barrier towards proceeding along the lines I have suggested. The office of the Director of Public Prosecutions is an independent office and because of its position there will be a serious fall out in so far as criticism of it is concerned. That would not be welcome and would be undesirable but it will happen if subsection (b) is enacted.
The full protection of the law must be given to people within and outside marriage. While the abolition of the marriage exemption represents a major step forward, I am fearful of the clawback. I hope the Minister will see the contradiction and will, perhaps, come back on Report Stage with a form of compromise. People assume that sexual violence within marriage is, perhaps, less serious or less violent than outside it but there is no way that can be deemed acceptable. The introduction of subsection (2) represents an element of clawback which is undesirable. I realise there may be difficulties but the overriding principle has to be one of treating these horrendous offences in a similar way in so far as possible.
Will the Minister accept that private prosecution in the District Court is merely the key towards apprehending the offender and not the undesirable end in itself that he seems to suggest? I wonder why there is such apprehension about District Court involvement when it would be the key towards justice being seen to be done in cases of sexual violence within marriage.
I welcomed, as we all did, the recommendation of the Law Reform Commission, who acted on the many submissions they received, to give the same protection to women within marriage as to those outside it who are the subject of rape and violence. In pushing for this reform we made the valid point that by marrying a woman gives up one of the most fundamental rights available to her, that of legal redress for what has been described as the second most serious crime, second only to murder. That point was well taken and that is why the marriage exemption has been abolished.
The difficulty arises with subsection (2) in that there is still the lingering suspicion that a woman, devious as she is with all the traditions and myths of Eve hanging about her, would once again use rape within marriage as some way of getting back at her husband. I have heard in the arguments opposing this provision that for frivolous or vexatious reasons a woman would use this, if such right was given to her within marriage, to get back at her husband. I put it to the House that the trauma, humiliation and violation of a woman is so deep that sometimes she is not able to cope with admitting to being raped. The argument offered that a woman in a bad marriage would somehow use this as a means of frivolously or vexatiously getting back at her husband is insulting, totally neglects and underestimates once again the level of humiliation this crime causes — and has caused — to women. That is why it has the tinge and the colour of the kind of male thinking, if I may put it like that without being chauvinist, which has always coloured this crime, that in some way Eve, the serpent woman, the seductress, is really to blame. It underpins this again in so far as we are not willing to allow an independent partner, a spouse within marriage, to have the same rights as she would have outside marriage. Indeed, I would go so far as to say that perhaps a constitutional case might be able to be taken on it because we have very strong constitutional protection of the institution of marriage. Supreme Court cases have been won on the protection of that section of the Constitution. However, I should like to think that we would never enact legislation in this House which would be brought to those lengths and, in natural justice and having regard to the independence, autonomy and the individual human right of a wife, it would not lead us to believe — as some women today are led to believe — that they have fewer rights within marriage than a common law wife or cohabiting partner. We must take that seriously and it is part and parcel of discrimination against a wife. I ask the Minister to give it great thought.
I listened to the points made and I accept that they were made in good faith. I ask the Deputies on the other side — and I assume they do — to accept that the points I made in relation to the extra protection being given to married women, right and proper protection, are also made in good faith. Married women are entitled to this protection and it is now being provided in the Bill that a husband can be found guilty of rape in future, which is vitally important. The other aspect is to ensure that maximum protection is given to the Central Criminal Court to deal with persons facing a charge of rape. I want to extend the absolute maximum protection possible to married women.
I was taken with the point made on this Bill by Deputy Jim O'Keeffe, the spokesman for Fine Gael, that he could foresee evidential problems arising in marital rape cases. He said that, on balance, he favoured the Minister's proposal that marital rape exceptions should be abolished. He went on to say that he was to some degree reinforced in that positive view by the inclusion of the proposal that prosecutions of marital rape could only be initiated by the Director of Public Prosecutions.
I will oppose Deputy McCartan's amendment if he proceeds with it now but I will look at the matter for Report Stage to see if I can meet it. However, it will dilute rather than extend the type of protections which I want to extend to married women.
I am more than happy to withdraw the amendment in the knowledge that the Minister will reflect on the matter and come back to it on Report Stage. I want to make one point in outlining some of the practical difficulties I could see emerging where prosecutions might be delayed for important, small periods of time during which the director is consulted as to whether a prosecution can be initiated or taken. The Minister suggested he felt that the next step a person might take would be to look for a barring order. In most cases that would probably be the practical next step but I have no doubt that a scenario would emerge where the only single act of which the woman could complain was the act of rape carried out after weeks or months of psychological warfare, silence or sullenness. Having been to the police she then goes to the District Court and asks the judge for a barring order because she has been raped by her husband. The district justice is advised that the file has gone to the Director of Public Prosecutions. I have no doubt that the district justice would say that he had to wait to see what the director said because he was worried about the built-in proviso in the Bill that this complaint could be frivolous. He would have to consider the matter very carefully before he would put a man out of his home and he might well say that the matter would be brought to a higher court, the Central Criminal Court, and that he should wait for the outcome before he gave a barring order. That is a worrying feature and the proviso which the Minister thinks will give full protection could work against these people. In any event, it is wrong to suggest that married women are frivolous or vexatious. However, I am happy that the Minister intends to reflect on this before Report Stage when I hope we will come back to it. In those circumstances, I will withdraw my amendment.
Amendment, by leave, withdrawn.
Question proposed: "That section 4, as amended, stand part of the Bill."
Lest anything I said in moving my amendment earlier on might have been taken as being less than gracious to the Minister, I want to say that this is an important and significant development in the whole area not just of the law of rape but of marital law generally. It is a great achievement and it is curious that, despite the rows I have had with the Minister in this House regarding various matters, I have been present here when we abolished capital punishment and we are now taking out another horrible, anachronistic rule of the law which has been long and hard fought for. I am glad to be here for a debate of this kind and to get rid of the notion that a woman loses rights when she gets married. The Bill is very welcome.
We should all like to be associated with Deputy McCartan's remarks and to pay fulsome tribute to the section, as it is an incredible step along the road of legislative reform.
I thank Deputies for their welcome and I share their view that it is a milestone in law reform. The appalling situation which has existed up to now in relation to an exemption of rape within marriage is at last going. I am delighted to be associated with it.
Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."
This is a rather radical change which changes the rule of law under which a male person has to be over 14 to be deemed capable of committing an offence of sexual assault or rape. I am concerned about this. Because of the introduction of this section we will see more young boys coming before the courts. Although it does not come directly under this Bill my concern would be about the treatment in detention of those boys and the care and rehabilitation that would be introduced to deal with this section. What will happen to these young boys if we are now bringing a new young vulnerable violent group of people before the courts to be convicted?
In relation to this legislation and the childcare legislation a problem was highlighted in that in attempting to set a higher age for criminal responsibility, there could be a conflict with regard to criminal charges brought by people under 14 years old. Supposing we set a criminal age of 15 and yet other legislation going through the House says that a criminal offence arises where young boys of 14 or under are found guilty of rape? This point was raised before on the debate on this Bill but it was also raised under the Child Care Act. We must come to some sort of agreement on this.
This Bill has no relevance to the age of criminal responsibility. As far as the care of the offenders is concerned that is a matter that is receiving considerable attention at Government level. It is not an issue that is directly before us but it is an issue that I will be delighted to debate in this House at some time in the future on an appropriate piece of legislation.
Question put and agreed to.
Section 6 agreed to.
SECTION 7.
I understand that amendment No. 8a has already been discussed. Will the Minister formally move amendment No. 8a?
I move amendment No. 8a:
In page 4, subsection (1), line 32, after "a conviction for", where it secondly occurs, to insert "rape under section 4 or".
Amendment agreed to.
Amendment No. 9 not moved.
I move amendment No. 9a:
In page 4, subsection (1), line 33, after "guilty of" to insert "rape under section 4 or of".
Amendment agreed to.
Amendment No. 10 not moved.
I move amendment No. 10a:
In page 4, between lines 40 and 41, to insert the following subsection:
"(3) A person indicted for rape under section 4 may, if the evidence does not warrant a conviction for rape under section 4 but warrants a conviction for aggravated sexual assault or for sexual assault, be found guilty of aggravated sexual assault or of sexual assault, as may be appropriate.".
Amendment agreed to.
Amendments Nos. 11 and 12 not moved.
I move amendment No. 12a:
In page 5, subsection (4), line 4, after "1885," to insert "or rape under section 4".
Amendment agreed to.
Amendment No. 13 not moved.
I move amendment No. 13a:
In page 5, subsection (4), line 6, before "aggravated", to insert "rape under section 4 or of".
Amendment agreed to.
Amendment No. 14 not moved.
Section 7, as amended, agreed to.
SECTION 8.
I move amendment No. 15:
In page 5, line 10, after "itself" to insert "necessarily".
The section as drafted is faulty. I would like to hear the Minister on it. In an effort to clarify matters I will read the section:
It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of that person any failure or omission by that person to offer resistance to the act does not of itself constitute consent to the act.
The failure or omission to offer resistance might by its nature constitute consent to the act, or it may not, each case depending on the facts. I assume the section intends to state that any failure or omission by the victim to offer resistance does not necessarily constitute consent, but the section as drafted goes much further than that in so far as it is saying that any failure or omission to offer resistance cannot in any circumstances constitute consent. That may mean that where a person deliberately offers no resistance because he or she was really consenting, that could not constitute consent although there was clear consent given. There is a difficulty there. On reading the section I see a drafting difficulty that would be met by my amendment. Obviously the question of consent is vital, but consent must be freely given in each and every circumstance. I hope the Minister will address the problem.
I would be pleased to try to clarify the issue. I am conscious that the issue was raised by Deputy O'Keeffe on the Second Stage debate and unfortunately there was little time to reply on Second Stage and it was not possible to give a considered reply to Deputy O'Keeffe's point. The point being made by the Deputy is a subtle one which needs to be looked at carefully.
Section 8 provides that lack of resistance of itself is never by itself sufficient to prove consent. The amendment now being proposed might suggest that in certain circumstances lack of resistance of itself could be sufficient to prove consent. I have to oppose the amendment because the insertion of the word "necessarily", if it would have an effect at all, would worsen the position of women by making it more difficult to convict people of rape. If the Deputies are concerned that this section might be unfair to the accused, I would point out that while the section does not allow lack of resistance of itself to show consent, it does not prevent it being used in conjunction with other circumstances to show consent. It is a subtle point. We do not want to reduce protections and the extensions of protection to women in this situation and I am afraid the amendment would do that.
Is the Minister satisfied then that his proposal has to have the last word on this? What about coming back on Report Stage with a section that would include that a failure to offer physical resistance to a sexual assault does not necessarily constitute consent to the assault? I am not saying I have the right answer but there is a difficulty in what the Minister is saying.
What the Deputy would do unintentionally is to make the situation worse. What we are trying to do in this legislation is to improve protection generally for rape victims. The suggestion proposed would make it worse rather than better.
We may have another word on that at a later stage.
Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9.
I move amendment No. 16:
In page 5, line 11, to delete "charged on indictment with" and substitute "indicted for".
Amendment agreed to.
Amendment No. 17 not moved.
Progress reported: Committee to sit again.