Amendment No. 1 in the name of Deputy Pat McCartan. Again, with your indulgence, amendments Nos. 2, 3 and 4 form an alternative composite proposal. It is proposed therefore, with the agreement of the House, that for discussion purposes we take amendments Nos. 1, 2, 3 and 4 together.
Criminal Law (Rape) (Amendment) Bill, 1988: Report and Final Stages.
I do not want to be difficult in any way but I was hopeful that we would take them separately. As this is Report Stage we are allowed one brief intervention on the amendments. If the House could bear with us and allow us to deal with them separately this will be of help in making progress. I have no objection to amendments Nos. 2, 3 and 4 being taken together but I was going to ask the Chair if it would be in order to take them first and then revert back to amendment No. 1.
Ní féidir é sin a dhéanamh.
I understood, from previous experience, that it was possible to do this.
No, I am afraid your recollection is faulty. There is a firm and absolute rule and I do not think we have ever taken them in that order. Is Deputy McCartan suggesting that he would prefer if we took amendment No. 1 separate from amendments Nos. 2, 3 and 4?
If that is the wish of the House, that is the way it will be done. I call on Deputy McCartan to move amendment No. 1.
I move amendment No. 1:
In page 3, between lines 12 and 13, to insert the following:
" `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;".
This amendment is my second preference in terms of the ultimate definition we should have in our law at the end of this debate as to what is or is not rape. This is the definition I propose for inclusion in the definition section. This, in fact, is the broader definition which was proposed by the Law Reform Commission in their report entitled "Rape". As I say, it is the broadest possible definition of the concept of rape which would fully reflect the attitude of our community, the people working with the victims of rape and of the victims themselves. Finally, it would provide a gender neutral definition of the offence of rape.
As I said, it would be my second preference but nonetheless it is no less objectionable. It has the support of the Law Reform Commission and is borrowed from their recommendations. I will not press amendment No. 1 in the event of the proposal contained in section 4 of the Bill being improved in the way I have suggested through the acceptance of amendments Nos. 2, 3 and 4. It was my intention, mistakenly as I have now been advised by the Chair, to tease out section 4 somewhat better and then to fall back on amendment No. 1, if possible, but I accept fully that I cannot do this.
On that point, I think the Deputy will accept that it has occurred on Committee Stage but not on Report Stage.
I fully accept that. That was my intention but nonetheless we should take the opportunity on Report Stage, which is the final stage of our deliberations, to look again at the question of a proper definition of the concept of rape and the question of whether or not we should in this legislation adopt the recommendation of the Law Reform Commission which was that we should adopt a broader definition, gender neutral, which would reflect the common attitude that the definition is far broader than the old concept of penile penetration of the vagina and embraces multiple and nefarious concepts, manifestations and operations which are reflected in the definition.
In this context one should appreciate the efforts the Minister made in meeting the recommendations of the Law Reform Commission on Committee Stage. His amendments are now encapsulated in section 4. In addition to the common law definition of rape, the Minister is bringing in a statutory concept of rape which includes penetration, however slight, of the anus or mouth by the penis and penetration, however slight, of the vagina by any object held or manipulated by another person. The concepts omitted from the Minister's statutory definition include the concept of penetration of the anus by an object. This is regrettable and the Minister has not explained why he has done that. The definition of "rape" I am proposing clearly includes that. The Minister did say repeatedly on Committee Stage, in proposing his amendment, that he was adopting the gender neutral definition. There is a curious gap in that definition and I do not understand why. Perhaps I might borrow from the Second Stage debate in this House to suggest that there is a certain line of thinking.
On Committee Stage I quoted the Minister's remark in the area in which he felt he was borrowing his line of thinking. When I checked that with the actual printed text of what he had delivered I discovered that the more contentious portion was not read in the House. If I was out of order in the House in so doing I apologise but all that was available to me on Committee Stage was the text circulated in the Chamber. What was being argued therein was the notion that using an inanimate object was something so offensive to the best reason it would be — as was said in the text circulated — wrong in principle since, to give rise to the notion that it would be proper and consensual to use inanimate objects would give rise to the startling implications that such acts, if consensual, would be acceptable. From that I then began to talk on Committee Stage about the whole range of opportunities and circumstances in which consenting adults, in the course of love-making, or engaging in sexual intercourse, would use and often rely upon inanimate objects.
Since then I have had an opportunity to discuss this very topic with many people, particularly those in the gay community. I am advised — particularly in the climate of AIDS and people's difficulties with regard to it — that reliance on inanimate objects, particularly among gay people is very much on the increase. This presents me with the problem that the more they are on the increase the more the opportunity arises that an act of rape can be inflicted on someone, using an inanimate object, through the anus. That is not provided for in the definition the Minister is promoting by way of his amendments. I hope it is a major oversight. It may emanate from this thinking that there was on the other side, the flip of it, no possibility that one could ever introduce the element of consent where an inanimate object was involved. Of course that is ridiculous. I acknowledged that the Minister, Dr. Woods, when he delivered the text on behalf of the Minister for Justice, who was unavoidably detained elsewhere, did not repeat that statement; somebody had realised that it was not a proposition one could stand over. While the text has been corrected I am worried that the thinking remains in the Bill.
Unless we can make progress on section 4 I believe that the wider definition of "rape" should be the one to be adopted and included in the Bill. For that reason I will be urging it on the Minister and the House.
My concern, and that of the Government, in this Bill is to maximise the protection afforded women by the criminal law and minimise the trauma suffered by victims of such crimes. During our discussions on this Bill one of the most controversial issues to arise was whether the term "rape" should be applied to certain types of serious sexual assault. This is a matter to which I gave close personal attention. I met with a variety of interest groups and people to listen to what they had to say on the issue.
The new section 4 which I put forward — and which has been accepted by this House — now applies the term "rape" to certain types of sexual assault. It might be no harm if I read into the record exactly what it says:
(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.
On the one hand, it meets the argument put forward that the term "rape" has to be applied to such offences to provide the psychological reassurance and sense of vindication necessary for the victim and, at the same time, avoids any interference with the existing, well established, definition of "rape". This approach meets the concerns of all sides and has been generally welcomed.
Deputy McCartan in his amendment advocates a radically different approach. In effect he seeks to abolish the traditional definition of "rape" and to delete the definition of "rape" under section 4 inserted on Committee Stage. In its place he proposes a new definition. I have to oppose this amendment. Even ignoring the technical flaws associated with his amendment I am opposed in principle to this approach. All the arguments advanced for applying the term "rape" to these sexual assaults have now been met. I see nothing to be gained by the abolition of the existing definition of "rape".
The Deputy must be aware that there are many people in the legal profession, and in other walks of life, who are strongly opposed to any interference at all with the traditional definition of "rape". The arguments for not interfering with the existing definition of "rape" are set out at some length in the Official Report of the debate on this Bill in this House and in the Seanad as well as being included in the dissenting recommendations of the President of the Law Reform Commission and his colleague, Mr. O'Leary, in the Commission's report on rape. I see no purpose in going over the ground again. I cannot accept the amendment.
With regard to the suggestion that the offence of "rape" in section 4 is not gender neutral, I might say that men and women have different sexual organs; that is a fact and we cannot change that fact. However, subject to that constraint, this offence is gender neutral — a man or woman can be charged and convicted of rape under section 4; a man or woman could be the victim of rape under the provisions of the same section. Clearly that makes the offence gender neutral, which has been one of Deputy McCartan's concerns.
It is a measure of the Minister's intent to have this Bill passed at the earliest possible opportunity that we are taking Report Stage so soon after completion of Committee Stage. Indeed, it would be my hope that the Bill could be passed by this House at the earliest possible opportunity and reach Aras an Uachtaráin at the earliest opportunity. Indeed it would be fitting that this Bill would be the first Act to bear the signature of President Mary Robinson having regard to her tremendous interest in this area of the law over her long and distinguished career.
It would be a pity were we to divide on Report Stage on the issue of the extension of the definition of "rape". Clearly section 4, and the new concept of statutory rape introduced by the Minister, is far and away more acceptable than that included in the original Bill in the Seanad and in the version printed after the election of 1989. The Minister has gone a very long way to meeting what was proposed by the Law Reform Commission and of the many interested parties who expressed concern in the matter in the course of the passage of this Bill.
Deputy McCartan indicated that he might perhaps be amenable to withdrawing his amendment No. 1 were he to get some form of commitment in regard to his amendments Nos. 2, 3 and 4. I understand that, for technical reasons, it is impossible to discuss amendments Nos. 2, 3 and 4 at this stage. If I interpret Deputy McCartan correctly, he places considerable significance on the consensual or the non-consensual aspect. I wonder if it is necessary to remind the House that "rape" under the provisions of section 4 means a sexual assault that includes subsections (a) and (b), in that there must be an assault. If there is an assault by one person perpetrated on another, than surely the question of consent by definition, is included? I contend it is impossible to have an assault, by definition, to which a person consents to that being inflicted upon himself or herself. Either it is an assault or it is not an assault. That could well cover the question of consent.
The Minister has indicated that it is not his intention to accept the amendment. At the end of the day it would be a pity if we were to divide on the matter. We have come a long way towards perfecting the legislation and I hope consideration will be given to withdrawing the amendment.
I am sorry the Minister has not seen his way to accept the proposition contained in the amendment. It is not radically different, as he suggests. There is not a substantial or radical departure. It is merely building on the common law definition that is there. It does not basically change the notion of rape, of a gross attack upon the person of an individual. The traditional definition of rape we talked about on Committee Stage has been built on in legislation as recently as 1981. Therefore, I do not accept the view. However, my more particular interest is contained in the subsequent amendments, that perhaps we can move towards and talk a little more about. I hope I can enlighten Deputy Flanagan at that stage about the concept of assault with consent, a concept well known to our law and particularly pertinent to this area. I withdraw the amendment.
Now we come to amendments Nos. 2, 3 and 4. Already Deputy McCartan has indicated that it would be appropriate that we take amendments Nos. 2, 3 and 4 together for discussion. Is that agreed?
With your permission, Sir, we could take amendments Nos. 2 and 3 which deal with one matter and then No. 4.
We will take amendments Nos. 2 and 3 together. Is that agreed? Agreed.
I move amendment No. 2:
In page 4, line 11, before "penetration", to insert "non-consensual".
These amendments deal with the new section the Minister has included about statutory rape, as it no doubt will in time come to be known. We are moving away from the absolute definition proposed by the Law Reform Commission and we are now concentrating on the Minister's approach which is different. Nonetheless, it is an advance on what was there previously.
The Minister is suggesting that "rape" be defined in section 4 to include the following: "(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." In amendments Nos. 2 and 3 I am seeking to include the word "non-consensual". The Bill would then read "(a) non-consensual penetration (however slight) of the anus or mouth by the penis, or (b) non-consensual penetration (however slight) of the vagina by any object held or manipulated by another person.".
The reason is, first, the Law Reform Commission include the word "non-consensual" in their definition of what should be rape and it is important now, where we are moving into a gender neutral definition, where we are dealing with consenting males engaging in whatever form of sexual pleasure they seek to make with each other, that we have a clear and concise reference in the law. In short, offences exist in our law, even though consent might be present.
This is dealt with very succinctly in the Law Reform Commission's consultation paper on child sexual abuse. A chapter on offences and the present law deals with (a) non-consensual offences generally, rape, buggery and the like involving females being classical examples and (b) consensual offences generally. They say that, notwithstanding the fact that consent may have been given and that there has been no threat or intimidation, the following sexual acts are criminal: (1) incest, (2) buggery, (3) gross indecency with a male (4) carnal knowledge of a girl under the age of 17 years and (5) any physical contact of a sexual nature with a person, male or female, under the age of 15 years which could constitute an indecent assault were there no consent. They say the offences of buggery and gross indecency can be committed by both parties once they are over the age of seven years. Incest can be committed by both parties once the female is aged 17 years or over. Consensual sexual activity between females over the age of 15 years is not criminal, and so it should be. However, as is clearly indicated there, if their activity included buggery with an object they may be in difficulty, but certainly consensual activity between males of one buggering the other or of one acting in what could otherwise be described as gross indecency, in other words, engaging in overt sexual activity, can amount to offences under our law even if consent is there.
Acts of penetration of the anus or the mouth by the penis can amount to buggery — in fact, they do. There is no other way of describing them. Even if consent is there, they are still offences. We have to recognise that adults can bugger each other if they want to and it should not be an offence. They can do that with the penis and, in my view, with an inanimate object if they consent, and it should not be an offence but under the Minister's definition it will be. Here we come back to the difficulties of the consent notion mentioned in the Minister's Second Stage speech — that there are things in sexual activity between male adults that simply are so unthinkable that consent as an issue can never arise. However, since the Law Reform Commission clearly laid down that there are sexual activities that can, even with consent, still amount to an assault, it is important that when defining what we want to constitute rape from here on in, we are clear about this issue of consent. The Law Reform Commission use the word in their definition and recommend that we use it, and it is important that we make it clear that when we are talking about the penetration of the anus or mouth we are talking about it in a non-consensual context, and the same applies with regard to the use of any inanimate object. I hope the inclusion of the word in the definition will be acceptable.
Borrowing a line from Deputy Flanagan and a point made on Committee Stage, if this is not an issue then we are at no difficulty. We are in no way taking from what the Minister intended. If I am told — and I am prepared to listen — that the issue of consent does not arise, that it is not necessary, that we are dealing with assault and we do not need the word "consensual", then I say including it does not take from the provision and will clarify the matter from my point of view and that of the many people who are concerned about this new concept of the statutory definition the Minister has included.
We have heard Deputy McCartan refer to the term "non-consensual" and his desire to put it into the legislation. We discussed this earlier on Committee Stage. "Rape" under section 4 refers to only non-consensual acts. It does not purport to affect in any way consensual acts. The specific acts referred to in section 4 (1) (a) and (b) constitute an offence under the section only if they are done as part of a sexual assault. Deputy Flanagan made that point. It is made quite clear in the first line of the section which provides that rape under section 4 "means a sexual assault that includes —" and it lists the acts in question. If the acts in question are not a sexual assault, then they fall outside the scope of this section. If consent is given to these acts then obviously there is no sexual assault as such. To insert the term "non-consensual" would lead to an absurd situation where we would have a non-consensual sexual assault, implying there is some form of consensual sexual assault.
I am not prepared to accept these two amendments. The suggestion is that we would have a non-consensual sexual assault implying that there is a form of consensual sexual assault. Assault is what we are talking about. I am not prepared to accept them.
I support what Deputy McCartan said. Amendments Nos. 2 and 3 highlight Deputy McCartan's concern that there should be no misinterpretation. In putting the case for including "non-consensual" Deputy McCartan quotes from the report of the Law Reform Commission where the example of child sexual assault is given as an example where even a consenting sexual activity could be legally interpreted as sexual assault. I also take Deputy McCartan's point that with the increasing availability and acceptability of sex aids to obviate or remove the threat of the transfer of HIV virus, there could be an interpretation of assault as defined by Deputy McCartan. As we are trying to have the most comprehensive Bill possible with the least amount of misinterpretation, I would also contend that the inclusion of "non-consensual" would strengthen that and remove the anomalies and ambiguities that could arise.
Given that we have not decriminalised homosexuality, other interpretations are possible. I take the Minister's point that in ordinary language and in everyday interpretation there would be no need for this and that an assault is an assault and would certainly have to be non-consensual. The insertion of the words "non-consensual" would remove the danger of ambiguities or misinterpretations. What Deputy McCartan is putting forward is reasonable and is a copperfastening of what the Minister is trying to do regarding this whole section.
What I have to say is in the nature of a question to the Minister. If one of the partners to a consensual arrangement is HIV positive and that information is withheld from the other partner who subsequently is found to be HIV positive, would that be considered to be an offence? Perhaps Deputy McCartan was trying to include this type of situation in the legislation. If the information was known to both partners it would not be a consensual arrangement. Perhaps it would then be a case that could be included in this section. Perhaps the Minister would clear that point up for us?
I am afraid you are encouraging the Minister to be in opposition to Standing Orders.
It is just a query rather than an intervention.
I am advised that it is not an offence unless the person who is HIV positive carries out the act with the intention of passing on the virus. Do not ask me how this is defined but this is the advice I am getting. Unless there is an intention, there is no offence.
I am gravely disappointed with the Minister's response because I believe he is mistaken and he is being wrongly advised. To put it as basically as I can, when the traditional definition of rape was formulated it was as follows, and I am quoting from Archbold, the definitive document on criminal law: "Rape is the unlawful carnal knowledge of a woman without her consent by force, fear, or fraud." The words "without her consent" were in there and that was because it was acknowledged that there can be occasions when men and women have intercourse and consent to it and that it is a crime when the woman does not consent. It is important in the definition of rape that there be no consent.
When it came to dealing with acts between men, the Legislature in 1884 and in 1861 considered that the notion of buggery was completely alien to man; it was referred to as the abominable crime and so the issue of consent did not arise. The same would apply to acts of gross indecency, of men engaging in sexual activity and for that reason again the issue of consent did not arise with the result that when the Law Reform Commission came to review the issues it did so in the succinct way that I read to the Minister from the report: "Notwithstanding the fact that consent may have been given and there has been no threat or intimidation, the following sexual acts are criminal." In other words, there is such a thing in our law as consensual sexual assault. If there is not, am I being told that the Law Reform Commission is wrong? As I understand the law, it is an offence to commit buggery; it is an offence to engage in gross indecency with another male, and the fact that there is consent does not vitiate that situation. Those are still two offences, that much we are agreed on. Consequently those amount to sexual assaults, sexual offences. If I am being told that the use of the word "assault" by definition means absolutely non-consensual, I am sorry to have to disagree and if the Minister is adopting that position he is wrong. The issue of consent is a live issue in the context of some of the acts that have been mentioned. I cannot put the argument any further than that. I believe that the Bill, if left in this way, will be very worrying for people who thought we were dealing with the matter in progression. In fact we are going right back——
That is not factual.
That is a view I have, and——
It is the Deputy's view.
——I am not in any way seeking to be alarmist about this. I have looked at the section and I have consulted as many as possible of those who would be concerned about it. The issue of consent is very real. My point is that at the end of the day, if as the Minister says his case will stand, I do not think he will make an ass of the matter by including what he says is there in any event by implication. What is wrong with including the provision if the Minister says it is already there by implication?
I move amendment No. 4:
In page 4, line 13, after "vagina", to insert "or anus".
Here I am proposing that the anus be included in paragraph (b). I will have to wait to hear the Minister's reason for excluding it before I can make any serious argument, but it seems obvious that it should be included. The proposition is that sexual assault by way of penetration of the anus, mouth or, by common law, vagina, by the penis is rape under paragraph (a), and that is eminently sensible. Why then is the provision not extended to deal with inanimate objects held or manipulated by another person? Why is the anus excluded? As I said, when talking about the gender neutral proposition rape on men can only be effected through the anus. Why then do we not include the anus in the section? I hope the Minister will accept this amendment.
The crime of rape is viewed by all as a particular heinous crime and it attracts a special type of odium. Women want serious sexual assaults to be termed rape so that such assaults will attract the same odium as the traditional definition of the word "rape". One of my major concerns from the outset has been that we do not dilute or devalue the special significance that is attached to the term "rape", and clearly that would happen if every indecent assault, no matter how minor, was termed rape. Therefore in drafting the new section 4 of this Bill care was taken that it would only include serious sexual assaults that would be comparable to rape in gravity and nature.
In each of the cases covered by section 4 we have either penetration of the body by a sexual organ or penetration of a sexual organ by an object. This is a logical as well as a practical definition in that the offence always entails something which is clearly sexual penetration. The acts which are covered by the definition of rape are penetration of the mouth by the penis, penetration of the vagina by an object and penetration of the anus by the penis. If we are to stray outside this definition I fear we could spend an eternity discussing what should or should not go into the definition.
I have been asked why not include penetration of the anus by an object? The answer is simple. Penetration of the anus by an object does not involve a sexual organ. Such penetration is not intrinsically sexual. Indeed, depending on the circumstances it might not even constitute an indecent assault under existing law. Although if it did, under the Bill it could be charged as sexual assault or aggravated sexual assault as the case may be. If it is a non-sexual assault it could be charged as common assault or perhaps in the more serious case assault causing bodily harm. Indeed in the most serious case — assault with intent to cause grievious bodily harm — the maximum penalty is life imprisonment.
I am not denying that certain persons may, as has been mentioned by Deputy McCartan, obtain sexual gratification by way of the insertion of objects into the anus, nor am I saying that you would never have a sexual assault involving penetration of the anus by an object. I am just making the point that it is not an intrinsically sexual act. For this reason it is distinguishable from penetration involving a sexual organ which clearly always has a sexual connotation. Rape is an important term. It must not be devalued and it must be easily distinguishable from other offences. I am satisfied that the new section as it now stands in the Bill meets these criteria. To include penetration of the anus by an object would only serve to weaken the Bill.
I would draw attention to the report of the Joint Oireachtas Committee on Women's Rights on sexual violence. Their recommendation was that the term rape should include oral sexual intercourse, anal sexual intercourse and the use of objects to violate the vagina. I have now done this in section 4 of the Bill. The report did not recommend that it should include penetration of the anus by an object. The Rape Crisis Centre in their written submission to the joint Oireachtas committee did not seek its inclusion either. While I accept the good intentions of Deputy McCartan in putting forward the amendment, I feel strongly that the Bill should not be extended in the manner in which he proposes.
I take the Minister's argument, but throughout the debate on this Bill there was a consensus that an assault of the nature that we are discussing is not fundamentally or necessarily a sexual one but rather one of hatred, dominance and violence. I agree with the Minister that when we began to debate this Bill our thoughts were directed mainly towards women as victims of rape. Tragically today it is mainly women who are the victims of rape.
In attempting to introduce compassion into the Bill and to outline the seriousness of the attacks that are intrinsic to this Bill we are very aware, as I know the Minister is, of the depth of violence, certainly the physical injury that could be inflicted on people by the kinds of penetration we are talking about but also the deep psychological and emotional trauma suffered by the victim of such attacks. While I agree with the Minister that the last thing we want to do is remove the seriousness of this crime, I am led to believe that penetration of the anus of either gender by an inanimate object carries the same violation as what we are talking about and which is encompassed in this Bill.
This side of the House welcomes the fact that the Minister has extended the definition of rape to allow us to load that kind of violent action with the stigma and seriousness it deserves by terming it as rape. I put it very strongly to the Minister that the penetration of the anus of either man or woman by an inanimate object, involving the violence and thinking of rape which an assault of this kind would have should be included in the definition because it would have the same after effects on a victim as the other terrible penetrations.
All Members are trying to ensure that somebody who carries out such a dreadful, violent assault will be subject to the full rigours of the law and the stigma of rape. Someone who would attack and violate the anus with an inanimate object, possibly causing great damage, pain and emotional and psychological damage, might not be seen in the same context and would not have the crime of rape ascribed to them. I put it to the Minister that the type of injury and violence involved in such an attack would be very much within that strong, serious interpretation which the Minister has allowed and which this side of the House support. I would not like to think that such an attack would not come within the rigours of the law, the stigma and the seriousness of what we consider to be rape within this Bill. I see it as at least on the same level and the inclusion of the word "anus" would strengthen the Bill.
I also support this amendment. I have listened carefully to the debate and have gone through the report of the Law Reform Commission. I do not understand why we are making heavy weather of this. I should like to see this amendment included in the Bill, it will probably come up in the other House and it would be a pity if we cannot proceed on the harmonious lines which have pertained in the debate up to now. The recommendation in the report of the Law Reform Commission is very clear. It says "non-consensual sexual penetration of the vagina, anus and mouth of a person by the penis of another person — or of the vagina or anus of a person — by an inanimate object held or manipulated by another person... and that, in this form, the crime should be capable of being committed against men and women". That is very clear.
The Minister suggests that, by taking on board this concept, we are in some way diluting or taking away from the significance of the act of rape. In fact, we are doing what the Law Reform Commission argued we should be doing in changing and legislating for change in this area and indeed generally in regard to the law. They said at page 23 of their report that in the case of the proposed alterations it is suggested that the benefits which will result are (1) bringing the definition of crime into line with society's current view of what constitutes rape and (2) offering some degree of psychological reassurance to the victims by describing the experience to which they have been subjected to as rape. Those are the two objectives which were put forward as underlining why the law might be changed, advanced and developed.
I am disappointed that the Minister has, somewhat ingeniously, found the common thread in relation to the definition of the sexual organ. It is a very narrow definition in regard to the reasons for the anus being included when we are dealing with the penile penetration and excluded in dealing with an inanimate object penetration. Put another way, I understand and believe that, for many gay men, their anus is their vagina. If we are trying to address the degree to which we can give psychological reassurance to victims, we should bear that in mind and recognise the hurt that a man can feel by being violated by an inanimate object through the anus and whether we are addressing his needs in those circumstances.
The Minister spoke about gender neutral definition, where the offence can be committed by a man or a woman, on a man or a woman, and it is in that context I am arguing. I do not suggest that we have to stay here for eternity, this is just a small addition to what has already been proposed. I say it does not involve any great debate because the Law Reform Commission succinctly recommended it. It is an amendment which has been taken on board by other jurisdictions. I am looking at the consultative paper and I see that the State of Victoria in Australia has the definition in its penal code. It is one of many countries in the common law world which has adopted this definition and that is why I advocated that the rape of any of the body orifices by either the penis or the inanimate object should be included. It is concise and precise, it reflects the objectives of the Law Reform Commission and it also reflects the view in the community as to what constitutes rape. If one talks to a man or woman who has had his or her anus defiled by an inanimate object, it is clear that it is as grossly offensive to that person whether the object is a penis or inanimate object. There is no difference. The hurt and the sense of grievous invasion of the body is rape for the person subjected to it. We were not seeking to dilute or take away from the significance of the concept of rape, we were responding to what people in the know said should be in the definition of rape.
I move amendment No. 5:
In page 7, between lines 6 and 7, to insert the following:
"(1A) All such applications for leave of the judge under subsection (1) shall be made at the commencement of the trial, in the absence of the jury, and shall require the person making the application to call such evidence and lay such facts and arguments before the judge to justify the making of the application. Nothing in this subsection shall prevent the trial judge from acceding to an application during the trial in special circumstances decided by the judge.'.".
This raises an issue dealt with on Committee Stage and I included it because it was one of the things which the Minister indicated he would reflect on before Report Stage. I have altered the amendment, having regard to a point made by Deputy Flanagan and the Minister, about the exclusivity of my original amendment in which I suggested that all applications for leave to delve into the victim's previous sexual history must be made only at the commencement of the trial once the case is in the hands of the jury. I have now added the proviso that nothing in the subsection will prevent the trial judge from acceding to an application during the trial in special circumstances decided by the trial judge but that, in the first principle and approach the application should be made to the judge at the commencement of the trial so that the lines of battle are drawn, that the victim has the opportunity to realise the extent to which he or she will be cross-questioned and the extent to which he or she may be subjected to inquiry into previous sexual history. It is a fair proposition that was recommended by the Law Reform Commission, one the Minister should take on board, with the proviso that if, in the course of any trial, something untoward should emerge, a judge would need to have the discretion to say that he will entertain an application for leave to delve into previous sexual history. However, in 99 per cent of cases the defence is aware if the issue of previous sexual history can be pertinent and might be an issue in the trial. Even insisting that it is taken at the beginning is not imposing an undue restriction on the defence. If the defence thinks it is an issue that can arise, they can make their application and then choose to use it or not. The proviso is there, should something untoward emerge. It is a sensible proposition.
As Deputy McCartan said, we discussed this matter on Committee Stage and I recognise that the Deputy has altered his amendment to make it less absolute and less open to criticism on constitutional grounds. Nevertheless, I still oppose the amendment on the grounds that it would not be of any practical benefit. When the Bill was drawn up, consideration was given to including a provision where an application under section 23 of the 1981 Act to adduce evidence or cross-examine the complainant about her sexual experience would have to be made at the outset of the trial, unless special leave to do otherwise was granted by the trial judge.
However, the Attorney General was strongly opposed to the proposal and I agree with him on this issue. The Attorney General pointed out that it was not practical to determine such an application in advance of the trial and thought it would be inevitable that the trial judge would adjourn his decision to the appropriate stage in the trial and that it would encourage the defence to make such an application in every case just to keep their options open. Even if the judge decided against the application at the outset, matters could unfold which would force him to reconsider the application during the trial. Even ignoring the practical difficulties, there seems to be no benefit of any significance to the complainant in forcing the defence to make such an application at the outset of the trial.
There is no question of the defence springing a trap on the complainant, which was one of the worries expressed by Deputy Fennell when this was debated last time. If the defence wish to raise any matter relating to the sexual experience of the complainant, they have to follow the formal procedures laid down. They would first have to approach the trial judge and indicate that they wished to make an application in the absence of the jury. The jury would not be told what the application related to and the jury, along with the press and any other persons not party to the proceedings would then be cleared from the court.
At that stage, the defence would formally make their application and would have to satisfy the judge that the adducing of such evidence was justified because it might reasonably convince the jury of the defendant's innocence. The prosecution could argue against the granting of the application. After the judge has made his decision the jury will be recalled and the trial will continue. If he decided to grant the application the defence can then and only then adduce evidence about the complainant's sexual experience and only in respect of the matters allowed by the judge. There is no question of springing a trap, which was the concern of Deputies. There was concern that a trap would be sprung in the presence of the jury in relation to the previous sexual experience of the complainant. That cannot happen under these proceedings, so I oppose the amendment.
In relation to recommendations for this part of the trial procedure there was tremendous debate, not least among members of the Judiciary, particularly those who attended the day long seminar organised by the Law Reform Commission. While I accept the safeguards outlined by the Minister, this was always considered to be a vulnerable area where the victim was at risk. On hearing about the behaviour in court and subsequent suffering of victims in court, the Women's Rights Committee recommended very strongly that on no occasion should the past sexual history of a victim be gone into during a court case. Adducing such evidence caused great trauma and it was always used as part of the defence strategy. There were no bones made about this at that seminar by the Judiciary who normally defend rape cases. We realised that this was a black spot where the victim needed the greatest possible protection. After discussion we accepted that it could be contrary to natural justice if the recommendation of the Women's Rights Committee was completely accepted and that, on occasion, it would lead to an injustice against the alleged rapist if such evidence was not allowed.
People pushing for this amendment accepted that they would not want to write into the legislation a denial of natural justice for anybody. However, one of the problems we are faced with is that while it was accepted that at the discretion of the judge past sexual history of a complainant might be taken as part of the court evidence under the criminal law as it stands the past sexual history of the defendant could never be brought into court. There were instances outlined where, in fact, there was a record of past sexual offences with regard to a defendant which could not be revealed in the court. We felt that there was a certain imbalance there where the complainant seeking justice would have past sexual history used against her while the shield could never be lowered with regard to the past sexual history, indeed offences, of the defendant. We had a debate in relation to the natural justice of that.
One of the important recommendations with regard to this dilemma was put forward by certain members of the bench who practise in this area. They made the point that it is very important that any such application would have to be made before the trial. They felt that allowing the application to be made during the trial, even if the jury were asked to leave, would prejudice the claimant's case. When the jury were asked to leave, even if the application was not granted, they would know or surmise that they were being asked to leave so that the complainant's past sexual history could be examined, and this would raise a suspicion in the minds of the jury.
Deputy McCartan's amendment is reasonable and goes along the lines of trying to prevent the type of scenario we are trying to remove, and to leave the procedures as non-judgemental and as fair as possible to the victim. Deputy McCartan, by including the last sentence in his proposed amendment which states:
Nothing in this subsection shall prevent the trial judge from acceding to an application during the trial in special circumstances decided by the judge.
This is leaving every possibility open and is in no way attempting to interfere with any particular court case if and when the need arises. The fact that this may be called upon, the fact that the matter has not been decided beforehand and that the jury has been asked to leave implants a certain bias, even at a subliminal level, in the jury which could be negative towards the complainant and would replace the injury already done by a more subtle one. I would like the Minister to consider that issue.
The Minister said there is no practical benefit to be obtained from the amendment. I disagree with him on that and urge him to reconsider this matter. The objective of the whole emphasis in this area of the law is to try to make the experience of the court somewhat humane and to enable the victim to be more at ease going into the witness box. In the past it has been recognised that the time in the witness box can often be more harrowing and troublesome for a victim than the original rape. Some of the things that used to happen were that the victim would go in and would not know at what stage questions would be fired at her about previous sexual relationships, not only with the defendant but with other people. That issue was addressed in the 1981 Act in some respects. In time it was formalised into the making of application by leave of the judge only.
There is huge practical benefit to be obtained with the issue being determined at the outset of a trial so that the victim can be told, in those circumstances that she can now go into the witness box knowing that no improper questions, will be asked, no improper probing or no muck-throwing will be engaged in by the defence in regard to her own personal sexual history. That would be vastly reassuring knowledge for any witness to have going into the witness box. If, on the other hand, they are told they have failed in their application, and there is this residual right to come back to the judge should anything happen, the victim can be advised that on the basis of the information or the grounds laid out by the defence at the outset that they have very little to go on and that she has little or no worry that at any stage they will succeed during the trial to raise the issue of previous personal sexual history. There are huge practical benefits to be obtained.
The other practical benefit — and in advance of her going into the witness box — is that the victim is available to be advised, to be consulted with, to be cajoled, to be reassured, to be befriended or to have the availability of a lawyer. Once she goes into the witness box and is sworn and has to step down while an application is being made for leave to the judge, at that stage she is in the hands of the court and cannot be approached, cannot be talked to, or in any way addressed with regard to the trial, the issues or her testimony. She is beyond reach and cannot be put at ease or reassured, even though an application is being made, not to be afraid, that she has nothing to be worried about, she has the strength of right on her side, and simply has to answer the questions. That is a practical reality and is the difference between an application being made at the beginning of the trial and the application being made while the witness has been sworn in and is in the hands of the court. Once under oath she cannot be approached; apparently the Minister is not aware of that.
The other practical point has been highlighted by Deputy Barnes, that is where the jury are asked to leave in the midst of a flow of evidence where it is quite clear that the defence intend to get into something murky, shady or something questionable about the witness victim in the witness box. Even though the defendant may fail in the application the question has been raised and the jury will have possibly that doubt in mind. Clinically, it is a far cleaner, far safer and far better approach to make the application at the outset. In 99 per cent of the time the defence know whether they have the basis to pursue this type of issue at the outset of the trial and they are put at no disadvantage whatever by being asked to lay their cards on the table and make their application to the court and the judge at the beginning of the trial.
I am disappointed the Minister has not looked more closely at the practical benefits that can accrue from the application being made at the outset and to recognise that it could help substantially to make life a little easier for someone who is an innocent person, someone who has been grievously injured and is simply coming to court to tell a story and who should be able to do so with the greatest possible ease. I urge the Minister to reconsider it even at this late stage.
We now come to amendment No. 5a in the name of the Minister. I observe that amendment No. 7a is related. I am suggesting, therefore, that we discuss amendments Nos. 5a and 7a together. Is that satisfactory? Agreed.
I move amendment No. 5a:
In page 7, to delete lines 7 to 15 and substitute the following:
14. —Section 8 of the Principal Act is hereby amended—
(a) by the substitution of the following subsection for subsection (2):
"(2) If a person charged with a rape offence applies in that behalf to a judge of the High Court before the commencement of the trial or to the judge at the trial, the judge shall direct that subsection (1) shall not apply to the person in relation to the charge:
Provided that, if it appears to the judge that, if the direction were given, the publication of any matter in pursuance of the direction might enable members of the public to identify a person as the complainant in relation to the charge, the judge shall not give the direction unless he is satisfied that a direction could properly be given in relation to that person in pursuance of section 7.",
(b) by the insertion of the following subsection after subsection (7):
"(8) If, at any time after a person is charged with a rape offence, the Director of Public Prosecutions applies in that behalf to a judge of the High Court, the judge, if he is satisfied that it is in the public interest to do so, shall direct that subsection (1) shall not apply to such matter relating to the person charged with the offence as is specified in the direction.".
The purpose of both amendments is to ensure greater protection for the anonymity of the complainant in the case of sexual assault offences. Section 8 of the 1981 Act deals with the anonymity of the accused and sets out the circumstances where the identity of the accused can be published or broadcast. In this Bill, in section 5 we are abolishing the marital exemption in relation to rape. Clearly, in a case of marital rape, revealing the identity of the accused is likely to also reveal the identity of his wife. There may be other circumstances where revealing the identity of the accused may also reveal the identity of the complainant. We must be careful then to ensure that revealing the identity of the accused will not inadvertently reveal the identity of the complainant.
Section 8 (2) of the 1981 Act as it now stands, requires the court to lift the anonymity provisions for the accused if he makes an application for this to be done. There is no discretion allowed. Once the accused applies under section 8 (2), the restrictions must be lifted even if it would reveal the identity of the complainant. The amendment now being put forward in my name will rectify this situation by ensuring that in future the judge must take into account the need to protect the anonymity of the complainant. If lifting restrictions regarding the anonymity of the accused might reveal the identity of the complainant, then it can only be done under the new section 8 (2) if it meets the requirements imposed by section 7 of the 1981 Act.
Part (b) of the amendment to section 14 of the Bill is merely a re-statement of what is already there in section 14. There is no substantive change. It is purely a drafting matter.
The second related amendment being inserted in section 17 of the Bill relates to section 7 (4) of the 1981 Act. It arises from the fact that the anonymity of the accused does not last beyond conviction. While section 7 of the 1981 Act — as respects the anonymity of the complainant — clearly continues to apply even after an accused has been convicted, the reference to the acquittal only of the accused in section 7 (4) might give the impression that that provision has no application after a conviction. By changing the phrase "an acquittal of the accused person" to "the outcome of the trial", it is made clear that the protection afforded by section 7 to the complainant continues after the trial, regardless of whether the accused is acquitted or convicted.
I move amendment No. 6:
In page 7, between lines 15 and 16, to insert the following:
"15.—In any proceedings under this Act or the Principal Act the Director of Public Prosecutions may—
(a) act to ensure that all proposed witnesses, except gardaí and certain professional witnesses, would see a copy of their statements and would notify any alterations or additions to a named prosecuting lawyer,
(b) have a pre-trial consultation with all witnesses,
(c) make available a familiarisation course to the complainant on procedure and layout of the court.".
We had considerable discussion on this issue on Committee Stage and I hoped the Minister would have come back, at this Stage, with an acceptable formula. The Minister took the view on Committee Stage that he would set up some form of negotiation procedure with the Office of the Director of Public Prosecutions, to ensure that there would be a level of consultation available between the victim and the State prosecutors prior to a case being brought to court. The Minister gave considerable thought to the question of the independence of the Office of the Director of Public Prosecutions.
If we are going to tackle this very real problem, then it should be provided for in the legislation and not left to be dealt with through informal discussions, phone calls between offices at a later stage or on an ad hoc basis. The trauma a victim endures was commented on by Deputies from all sides and I think there is general agreement on this issue. Only today we heard about the unfortunate predicament of a victim who felt unable to proceed with her evidence of an alleged rape simply because, she said, she was not up to it and did not want her children to become involved. The trauma of this unfortunate victim was compounded by her being held by the court to be in contempt of court. It is sad that in this day and age someone in her predicament should receive such a sanction from the courts. Nevertheless, the law as it stands did not allow the court any room for manoeuvre.
Our amendment, or an approach along the same lines, would ensure that today's misfortunate incident would not be repeated. There would be a proper level of consultation between the legal officers of the State and the victim and there would be a familiarisation course for the victims of rape. This was recommended by the all-party Dáil Committee on Women's Rights in the mid-eighties. It is four years since that report was published and we need to address the lack of support, the present lack of comfort and the lack of counselling services for these victims. It is important that the methods of comfort and counselling employed would be along the lines suggested in our amendment.
A victim should have the opportunity to go over the likely questions she will be asked in a witness box. I venture that far because of the great personal trauma involved for a victim, realising that the State does not, strictly speaking, act on her behalf but on its own behalf. The present system runs the risk of compounding the difficulties because of the absence of consultation and the absence of close relations between the victim and the State prosecuting team prior to and during a trial.
I realise that there are difficulties — the Minister adverted to these — but, on balance, I believe it is important that we give statutory effect to a procedure rather than allow different officers of the law to take different views in different circumstances. That could give rise to even more serious difficulties. I hope the Minister will accept our amendment. In the event of his not accepting it, I hope he will put forward some more definite and precise proposals as to how we might address this problem. If we allow the legislation to pass through the House without addressing this problem we will be leaving out something of very real importance to the unfortunate victims of these crimes.
During the Committee Stage debate I gave an account to the House of the measures being implemented by the Director of Public Prosecutions to reduce the trauma and sense of alienation felt by some complainants in the case of rape trials. This amendment very neatly summarises that account and proposes to enshrine it in legislation.
I have no objections to the measures listed in the amendment but I see no need for them to be included in the Bill. The Director of Public Prosecutions is already implementing these measures and this amendment will not spur him on to any greater efforts. I have been assured by the Office of the Director of Public Prosecutions that he does not require any specific legislative authority to implement these measures.
It is my view that inserting this provision in the Bill would serve no useful purpose. Indeed, it might call into question the ability of the Director of Public Prosecutions to implement these types of measures without specific statutory authority. In the circumstances I must oppose the amendment but I want to assure the Deputies that the proposal put forward in their amendment will be put into effect. I want to refer to what I would regard as a very important initiative in the provision of legal back-up for the victims of the horrendous crime of rape and the other crimes being dealt with in the Bill.
As stated during the Committee Stage debate the question of separate legal aid for the complainant was examined by the Law Reform Commission and was strongly rejected. The Government agreed with the views of the Law Reform Commission on this issue. The Commission in their consultation paper, pointed out that it is already perfectly permissible for a woman who has been raped to consult a lawyer and to bring a lawyer with her, in the capacity of a friend, to the court during the hearing of the trial.
On Committee Stage I agreed to look at whether the cost of a complainant employing a lawyer in this capacity could be met under the legal aid scheme.
There is already a provision in the civil legal aid scheme under which legal advice may be given in connection with criminal proceedings where the matter arises out of the same circumstances that have already given rise to the grant of civil legal aid or advice. In such a situation the board's solicitor would provide "such additional services to the assisted person in respect of the criminal proceedings to the extent that a solicitor in private practice would do".
It seems to me that this provision has relevance in the context of this Bill. It is likely that with the removal of the marital rape exemption more use will be made of paragraph 3.1.3 (1). For instance, having received legal aid to obtain a barring order, a wife would be entitled to avail of this provision if she was a complainant in a rape charge against her husband arising out of the same circumstances.
I propose, therefore, to make the necessary changes to apply paragraph 3.1.3 (1) of the scheme to victims of rape, rape under section 4 and aggravated sexual assault, married and unmarried whether these victims have already received legal services under the civil legal aid scheme. In other words, I propose to extend the scheme so that the victims of these offences will be entitled to consult a legal aid solicitor and to be accompanied to the court by that solicitor during the trial. That key issue concerns each Member of this House and groups outside the House who have been keenly interested in the crime of rape.
There is the question of the trauma felt by the victim in the surroundings of the court and having to face the accused who would not have been seen by the victim since the crime was committed. From now on the Director of Public Prosecutions will ensure that all proposed witnesses, except gardaí and certain professional witnesses, see a copy of the statements and will notify any alterations or additions to a named prosecuting lawyer. There will be a pre-trial consultation with all witnesses and a familiarisation course will be available to the complainant on the procedure and layout of the court. I am going further and extending the legal aid system to the victims of rape, rape under section 4 and aggravated sexual assault, married or unmarried, whether the victims have already received legal services under the civil legal aid scheme. It will be a major step forward, giving reassurance, comfort and guidance to the victims of rape as they face the trauma of the trial. It was requested by many concerned people and I have great pleasure in announcing it today.
I am obviously heartened and pleased by this announcement which arises from a specific amendment of mine on Committee Stage. I had sought to reintroduce it on Report Stage and to find a device to get around the difficulty that my proposal would represent a charge on the Exchequer. The Minister undertook on Committee Stage to look at this matter and could not have been any more responsive. He has done exactly what the amendment asked. A complainant giving evidence has the right to be legally advised independently of his or her position with regard to the law, the procedures and the likely conduct of the trial. I had tried to write in a provision of the right of consultation, no more than that. The Minister referred to difficulties regarding participation in the trial and I accepted those difficulties, recognising that there would be huge constitutional and procedural difficulties. I tried to talk about the rights of consultation so that the solicitor retained would have some authority to be advised as to what was happening on the prosecution side, without playing an active role at the trial.
The Minister might ask the law centres to monitor their progress and effectiveness in helping the victim in this area. If they experience difficulties, perhaps they should report back to him. This should be done so that the very good idea behind this provision will not be set at nought and the lawyer will not be frozen out or cold-shouldered or not talked to by the gardaí or whoever might have primary responsibility for the investigation and prosecution. He or she might seek to intervene on behalf of a client. This provision will help substantially to give reassurance to the victim going to court. There will be an opportunity for the victim to talk to somebody in the calm of an office. The type of reassurance and help that is given to these people by the Rape Crisis Centre and others will now be available in the technical, legal aspect. A trial represents a legal minefield for the victim. I welcome the Minister's suggestion. The solicitor assigned to the case will be able to see that the things suggested are being done.
The Bill provides that all these trials will be dealt with in the Central Criminal Court based in Dublin. It is inevitable that it will be the law centres in Dublin, and perhaps that closest to the Four Courts, which will be drawn upon to provide the service. A brief will be passed over from a regional law centre in the provinces to the law centre on Ormond Quay. The Minister might watch carefully to see that an undue burden is not placed on the staff there by this commission and might consider the allocation of resources to that centre.
Extending to the victim the services of a lawyer and the free legal aid scheme removes one of the major defects in the Bill. All of us had asked the Minister to look seriously at this matter on Committee Stage. I welcome his decision, which will also be welcomed by the concerned organisations who made submissions to all of us.
In cases such as gang rapes there could be three or six defendants, all legally represented, and the victim could be queried by the legal representative for each of them, while she had no legal assistance. That was blatantly unfair. Without this provision the legislation would be much weaker. I am glad the Minister has listened not only to us but to the representations made outside this House. We should all thank him for it.
Before I welcome the Minister's announcement I want to address the amendment in my name and that of Deputies O'Keeffe, Fennell and Flanagan. I welcome the arrangement made with the office of the Director of Public Prosecutions to ensure that the provisions of this amendment are carried out. The reason we believe it might be useful and effective in the legislation is that we are aware of pressures on offices at times. It is possible due to pressures on time or staff the complainant might be denied the opportunity of entering pre-trial consultations and familiarisation as proposed in the amendment. The Minister has been assured that the office of the Director of Public Prosecutions will provide such assistance. If this is not to be included in the legislation I ask the Minister to monitor the position and ensure that the office of the Director of Public Prosecutions makes us aware of any difficulties or obstacles being encountered in the consultations and in providing the support proposed in the amendment. Such guidelines would be of help to the victim.
I join with other Members in welcoming the Minister's announcement that he accepts that the complainant or victim should be entitled to legal representation, consultation and support. The Minister is aware that if such a recommendation was not accepted many women would not be in a position to pay for such support or consultation. That would mean that there would be an inbuilt discrimination in the Bill which the Minister, and the rest of us, would abhor. By extending the scheme not alone has the Minister avoided this problem but he has given his imprimatur to the extension of support to the victim under the legal procedures. I am aware — and the Minister has responded in a very positive way to this — that this was one of the most fundamental recommendations by the Rape Crisis Centre; based on their experience. They stressed the need for this support to ensure that the victims they counsel can process their complaints through the courts.
Following Deputy Flanagan's reference to a case today I hope the Minister will ensure that never again will a victim find herself under such pressure in a court that not alone will she not go ahead with the case but will face the added pressure of facing contempt of court proceedings. I hope the Minister will ensure that never again will a complainant or victim be put under such pressure or face such an injustice. The extension of the scheme is welcomed by the Rape Crisis Centre, the Joint Committee on Women's Rights and Deputies on this side of the House who see it as a fundamental support. As a result the Bill has been strengthened considerably. I would like to think that arising out of this extension the victims of rape will have a sense of confidence in the procedures, something they were never in a position to experience up to now.
I would like to thank the Deputies for the welcome they have given to this extension. As Deputy Barnes rightly said, this issue is a source of great concern. The extension of this scheme, under the normal rules of eligibility which apply to the civil legal aid scheme, should lead us to a position where financial circumstances will never prevent a woman in the future getting the protection she is entitled to when she goes before a court as the complainant in a case involving this horrendous crime of rape. I am pleased to be able to announce this extension.
In the light of what has been said, how stands the amendment?
As our reasons for taking the amendment have been very effectively argued by my colleagues I do not intend to go over the same ground. I have discussed with my colleagues the reaction of the Minister to our amendment and have to say that he has approached it in a reasonable way. He has, to a large extent, taken on board the points made. He has indicated that he will ensure that these views are passed on to the Office of the Director of Public Prosecutions and has confirmed that the specific points raised in the debate will be taken on board by the Director of Public Prosecutions. In addition, he has extended the civil legal aid scheme to the victims of rape. In those circumstances, and on the basis that the situation will continue to be monitored by the Minister, I and my colleagues have come to the conclusion that the Minister's approach should be given a chance. We are prepared to give it that chance and withdraw the amendment. We would also like to indicate to the Minister that if it does not work we will raise the issue in the House again.
We now come to amendment No. 7a in the name of the Minister which has been discussed with amendment No. 5a. Would the Minister please move the amendment?
I move amendment No. 7a:
In page 7, between lines 41 and 42, to insert the following:
"(b) the substitution of `the outcome of' for `an acquittal of the accused person at' in subsection (4), and".
We now come to amendment No. 8 in the name of Deputy McCartan. Amendment No. 9 is related and I suggest, therefore, that we discuss amendments Nos. 8 and 9 together.
I have no objection to that.
May I say before the Deputy proceeds that amendments Nos. 8 and 9 have, after careful consideration, been allowed while similar amendments were ruled out of order on Committee Stage. As the definition of rape has been widened by way of Committee Stage amendment it has been decided to give the Deputy the benefit of the doubt in relation to these amendments. However, I must advise the Deputy that he should confine his contribution to his amendments as they relate specifically to the extended definition of rape in the context of the Bill.
I move amendment No. 8:
In page 9, column (4), to delete the entry opposite Reference Number 1, and substitute "Sections 61 and 62.".
I thank you, a Cheann Comhairle, for the opportunity to articulate on these amendments as they are vitally important. They present the Government with an opportunity to tidy up, if no more, the legislation generally in this area which is now necessary, as the Chair correctly pointed out, arising out of the very good work the Minister did on Committee Stage in extending the definition of rape to include a gender neutral concept embracing an act against a man or woman by a man or woman. It is important, therefore, that we do not overlook the fact that some of the laws in this area which date back as far as 1861 and 1885 will be somewhat inconsistent with the intentions of the Legislature in 1990 when the Bill is passed.
I am referring in particular, as suggested in the Schedule, to section 11 of the 1885 Act which I suggest should be repealed. That section provides as follows:
Any male person who, in public or private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a misdemeanour and on being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years with or without hard labour.
Therefore, any male adult who engages in sexual activity with another male adult in private can under the provisions of section 11 of the 1885 Act be found guilty of an offence and sent to prison. That basic concept is repeated in the 1861 Offences Against the Person Act which states in section 61, under the curious heading — I suppose it was not curious at the time —"Unnatural Offences":
Whomsoever shall be convicted of the abominable crime of buggery committed either with mankind or with any animal shall be liable at the discretion of the court to be kept in penal servitude for life or for any term not less than ten years.
Section 62 goes on to state:
Whomsoever shall attempt to commit the said abominable crime or shall be guilty of an assault with intent to commit the same or of any indecent assault upon any male person shall be guilty of a misdemeanour and on being convicted thereof shall be liable at the discretion of the court to be kept in penal servitude for any term not exceeding ten years and not less than three years or to be imprisoned for any term not exceeding two years with or without hard labour.
Therefore, that Act insists that a minimum sentence of three years penal servitude, without the court having the discretion to suspend it or otherwise, should be handed down.
Our laws at present provide, in those two sections I have quoted, that male sexual activity between consenting adults, in private or elsewhere, amounts to an offence. I do not believe that is the intention of this House. Certainly it is not the intention as reflected in the extended definition the Minister now provides as to what would constitute "rape" in the context.
It is an amendment the Minister should take on board having regard to the judgment of the European Court in the Norris decision, which case was initiated in 1987 by way of investigation, and judgment delivered last year. At the time I remember the then Tánaiste indicated that it was something the Government would actively investigate, the indication being that something would be done to meet the judgment. Having spoken recently to Senator Norris I understand that there has been no progress made. Sadly, it would appear that the case may revert to the European Court for reexamination in the light of the inactivity on the part of our Government to meet that judgment.
I contend that acceptance of the simple amendment I am advancing in the context of this Bill would put the matter at nought. I contend it would take out of our law the criminalisation of offences of acts between consenting male adults. It would then leave us in the position in which the provisions of section 4 will then be the regulatory ones; in that such acts — accepting the Minister's logic — if amounting to assault will constitute "rape" for the purposes of the Bill. Therefore, we would be providing for the non-consensual by the use of the word "assault". Then all others — the consensual, non-assault activities — will not and should not be offences. That is what the European Court judgment has told us in the Norris case; that is our duty as signatories to the European Convention on Human Rights.
I am saying that, taking the benefit of the gender neutral definition provided by the Minister, we can now with safety — and universality of approach — delete those anachronisms from our legislative codes which are now out of date and which we are now told are by the European Court on Human Rights inappropriate within the context of our Constitution and the European Convention. It is very simple; it does not require the Minister to initiate finely attended legislation saying what should or should not be an offence. I am asking the Minister to be courageous. I accept that there may be the moral minority out there who will scream and say something about it. The Minister should remember that, even within his short term in office, he has taken remarkable, momentous steps, such as the abolition, once and for all, of capital punishment in this country. We were told there would be an outcry about it but the Minister's courageous step did not lead to such an outcry.
In the course of this Bill we have introduced earth-shattering amendments, such as, for the first time, the concept that a husband can rape his wife. It has taken courage to do those things but the Minister has done them. I am suggesting that here is another small, neat, concise way in which the Minister could respond to a judgment of the European Court, bring our laws into some repute and respond to the modern desires of our community, doing so in the knowledge that there are the protections to deal with the non-consensual area enshrined in section 4.
I am asking the Minister to accede to these amendments, to amend the Schedule, to refer to the deletion of the three sections I have read — section 11 of the 1885 Act and sections 61 and 62 of the 1861 Act. In so doing the Minister will have resolved the Norris dilemma, brought our laws in line with the European Convention and will have dealt quietly and courageously with what will be ultimately a very contentious and no doubt divisive debate that some Government at some stage will have to handle. Let us deal with it now quietly and courageously.
This Bill is not an appropriate vehicle by which to tackle this question. In this Bill we are dealing with non-consensual acts often involving violence such as rape. It is not intended to deal with sexual acts between consenting adults. The issues raised by homosexual consensual acts are different and should be dealt with separately. Furthermore, the amendments tabled make no effort to deal with a number of vital issues that would have to be addressed in this area. In particular, they do not address the question of the age of consent in respect of homosexual acts, the question of such acts taking place in public and questions relating to male prostitution. I might point out that the amendment would not decriminalise buggery as the common law offence would remain unaffected.
The report of the Law Reform Commission on Child Sexual Abuse, which is relevant in this area, was published at the end of September only and the commission's recommendations are now under consideration. I will submit my proposals to Government in due course.
I must compliment my colleague, Deputy McCartan, on attempting, if you like, to pull a stroke; I am very attracted by his amendment. As was stated, it does address a problem to which the Government have not addressed themselves in spite of the judgment of the European Court. It is a matter that must be tackled before we fall into even further disrepute with the Court of Human Rights.
I wonder whether it would be too simple — at the literal stroke of a pen — to repeal sections 61 and 62 of the Offences against the Person Act, 1861? It would appear that it would be technically correct to include in the Schedule to this Bill a notice to the effect that those sections are hereby repealed. However, I am not so sure that that would address the difficulties sufficiently. In holding my powder I might seek further information from the Minister — notwithstanding the fact we are on Report Stage — in that the matter has been introduced and is timely and welcome. I would ask the Minister to be somewhat more specific in reminding the House of the present position; when he hopes the Government will respond to the matter and the type of response he would envisage at this stage.
I have no difficulty with the principle of the amendment. However, it may be something of an over-simplification at this time.
As the Chair indicated earlier, it would be a pity if we allowed our discussion to move into the whole question of the decriminalisation of homosexuality. I am reminded, as one solicitor to another — go n-aithníon ciaróg ciaróg eile—Deputy Flanagan has accepted that in so far as Deputy McCartan made such an ingenious effort at introducing it here, that is what it was. Deputy Flanagan was not trying to establish that it was pertinent to the Report Stage of the present Bill. But, unfortunately, it is that on which the Chair must adjudicate.
Deputy McCartan mentioned the desirability of implementing European law. In that respect may I put this question to the Minister: is he aware of a proposal currently before the Dutch House of Parliament to reduce the age of sexual consent to 13 years? Will the Minister say whether any Irish Government or Parliament could accept that proposal?
I am aware, from media reports, of the existence of such proposals. It would never be my intention, nor that of any Government with which I would be associated; indeed nor do I believe that any such proposal would ever receive a favourable response here. To respond to Deputy Flanagan's question, in due course I will bring forward my proposals.
I thank the Deputies who contributed on this amendment. I would like to respond to what the Minister has said. He talked about the problems which might arise if the amendment is accepted. First, let me say that the amendment, if accepted, would take from our Statute Book three very outdated and offensive propositions which I gather from what the Minister and Deputy Flanagan said do not have the support of this House at this stage. Consequently it would be very useful simply to expunge them and put them aside. What we put in their place obviously would be as a result of the recommendations of the child sexual abuse report, part of which I understand will be addressed in the Child Care Bill and part, maybe, in separate legislation once the Minister has made his recommendations.
In the context of that report, the consultation paper has been available since August 1989 and recommends at page 204 very succinctly the deletion of the three sections I am proposing should be deleted. The proposition is not a new one foisted on any of us. It is being done of necessity, not because of anything done by way of legislation in the European Parliament or any other European country. For the benefit of Deputy McGahon let me say that in a judgment the European Court has ruled that our laws are out of line with the provisions of the European Convention on Human Rights, of which this country is a signatory. We are obliged by that convention to respond and to bring our laws into line with the judgment of the European Court on Human Rights. That is where the Norris case came from.
The Minister said problems would be left: the age of consent, can be dealt with in new legislation, the offences of indecency come under the 1887 legislation dealing with exposure of the person in public; male prostitution is as much a problem as female prostitution, which is not dealt with under our law at this stage, although the provisions are there they are not acted upon because of other constitutional and practical difficulties the Director of Public Prosecutions has, and the problem of the common law offence still remains. Here is an opportunity to put down a marker to indicate to those who are arguing for reform of the law in this area that there is a disposal there, a willingness on the part of Government to respond to judgments from abroad and from pressures within. We have had the Law Reform Commission proposition before us since August 1989.
Nonetheless, to the extent that I can be heartened with what the Minister says, I am pleased that we have had the opportunity to ventilate our views in this matter. I take it he has not closed the door on this matter, that it will be recommended to Government in due course and that we will have legislation here sooner rather than later so that we will not be embarrassed again at European level. In those circumstances I withdraw the amendment.
We have had a very constructive debate on this legislation. I will bring it back to the Seanad with the amendments that have been made here in the House. I am proud of this legislation in its present form which resulted from the major amendments that have been made in section 4. The change made in relation to legal representation for victims of rape and the major change in relation to rape within marriage that is included in this legislation, will be a major protection for women. It is my hope that I will get an early date in the Seanad and that this legislation will be on the Statute Book by Christmas.
I thank all the Members for their co-operation. I think it is significant that in legislation of this type which has the potential for division we have proceeded through Committee and Report Stages over three days without once dividing. That is the House working at its very best.
I endorse what the Minister has said and welcome the passage of this legislation through this House and the way it was treated by all sides. I pay tribute to the Minister for his openness in listening, accepting amendments, telling us why he felt some amendments could not be accepted and leaving himself open to bringing back the legislation on Report Stage. Such a move is helpful, healthy and, as he said, an example of this House working at its best when legislation is treated at that level. I believe that from that type of co-operation comes our best legislation. When we started the Committee Stage we thought it would take much longer to debate this legislation but it gives us a feeling of great satisfaction to have put this Bill through so quickly. This is an historic Bill. The year 1981 was the last time we had reforming legislation dealing with rape. I was a member of the Council for the Status of Women at that stage and we put forward amendments which were not accepted. It is timely and appropriate that the Minister should work towards having this comprehensive reforming Bill which, as Deputy McCartan said, will bring about remarkable and earth shattering changes not just in legislation but in attitudes and the Minister has achieved that through this legislation today.
I would like to think that we will beat the clock and that, before the tenth anniversary of the 1981 amending legislation, the Minister will have this legislation through the Seanad by the end of 1990 so that we will have in place all the support systems the Minister has promised and which will be monitored. Apart from the extent to which the Minister has worked towards producing fine legislation, one of the things we on this side of the House appreciate is his promise to allow the Bill to come back to this House if and when the situation warrants it.
I look forward to other legislation referred to today. The Minister has given commitments to introduce legislation which has a link to pornography. We will discuss that with the Minister. I would like to think the rest of the legislation he introduces will get as moderate, advanced and co-operative a passage as this legislation.
I join with Deputy Barnes in congratulating the Minister on this very progressive legislation. Not for the first time he has surprised many people with the breadth of the reforming legislation he has brought before this House in the last year. We thank him for it.
The major areas my party considered necessary to be included in a Bill like this have all been met. In the broadening of the definition of rape, marital rape is no longer excluded, rape trials will be held in the Central Criminal Court and there will be legal representation for victims. These are all major advances in this area. The Minister has listened to the advice of groups and concerned individuals outside this House and to Members on these benches, as well as having his own priorities in this area.
Like Deputy Flanagan, I am delighted this Bill will go before our new President. I am sure she will welcome signing this progressive legislation. While I have been moved to a different area of responsibility for my party, I am happy about the enactment of this important legislation. Again I congratulate the Minister on what he has done. Indeed, I would welcome any further legislation of a progressive nature that he might bring forward.
I would like to join with the other Deputies in congratulating the Minister on this legislation. It is remarkable that it is the second piece of reforming legislation in the area of rape law generally and its practice within the decade. I do not think any other area of the law, criminal or otherwise, has received such attention, much needed attention. It is a reflection of the good work of people campaigning and working in the field, particularly the rape crisis centres——
——that has brought this legislation before us and brought it back to us in a real way.
It is remarkable legislation in terms of the way we have amended fundamental principles of law, particularly with regard to the extension of the definition of rape and the ending of the marital exemption — from now on husbands deservedly should be, will be, prosecuted for rape. The proposition that someone of 14 years and under could not commit rape has been abolished; the insult to women represented by the need for corroboration of their testimony, some suggestion that they were unable to give evidence in their own right and on their own word, has been abolished, and this is to be welcomed. The procedure where from here on trials will now be dealt with by the Central Criminal Court reflects the attitude of this House and the community generally that rape is to be considered a serious and invidious crime. We have also improved the area in the Bill with regard to the right of cross-examination, and protecting the anonymity of the accused.
All that is to be welcomed. Let us hope, however, that when this legislation is put into practice it will lead to the result all of us want, that we will have less of the heinous crime of rape and more of those who commit it behind bars.
I think everybody in this House is united in their condemnation of the appalling crime of rape. While my views as to what should be done with the perpetrators of rape might be considered as being a little extreme, certainly in this Assembly, I believe that my views would find a fair measure of support at street level, in the real world outside the Houses of Parliament.
However, I do applaud the Minister for the changes he has brought in in this Bill. There is the widening of the definition of rape, although for the life of me, I fail to see how a charge of marital rape can be proved; one would need an action replay that would not always be available in every boudoir. However, the breaking of barring orders will obviously help to bring people to justice in that area.
I would like to sound a warning bell about having to accept changes from Europe. I believe that Europe offers a variation on a theme for sexual practices, some of which are absolutely mind-boggling and could never be accepted by the Irish people. That is something we will have to grapple with in the years to come. I believe that most of the variations of the theme I spoke about are totally unacceptable to the masses of the Irish people, and I am gratified by the Minister's assurance that the outrageous proposal that is currently before the Dutch Parliament to reduce the age of sexual consent to 13 years will never be acceptable in this country.
There are two questions I would like to ask the Minister. Can he confirm that most sexual offenders in prison in this country are, indeed, recidivists, that is, people who have transgressed in a sexual way on two, three or more occasions? Can he define, in layman's terms, what a life sentence means? Does it mean six and a half years? Does it mean nine and a quarter years, or does it mean 45 years? I would also like to bring to the Minister's attention, although it has been brought very forcibly to his attention, a report in last Tuesday's Irish Independent of the appalling case that occurred in the Minister's own backyard in, I think, either Swords or Skerries where a young man twice raped a 78 year old semi-invalid and, the following night, attempted to do the same to two other people. Can the Minister give an assurance that the sentence that was handed down will mean what it says, 12 years?
Before the Minister replies to the questions raised by my colleague, I would like to congratulate him on two counts, first on effecting such a speedy passage for this legislation through the House in recent weeks and, second, on accepting and coming into the House with a number of amendments, 32 in all. One only has to reflect on this legislation as against what was first introduced in the Seanad 18 months ago to realise that there have been fundamental changes for the better. This legislation will provide a very strong deterrent against those in society who wish to engage in crime of a sexual nature. It will provide a measure of support to the victims of crime. This is something that has not been given the notoriety it should have got. This Bill will provide that measure of support. More than anything else, the passage of this legislation will allow men and women to feel that little bit safer that crimes of a heinous nature will not be perpetrated against them because this legislation will provide a strong deterrent.
I sincerely congratulate the Minister. It has been an enjoyable few weeks on Committee and Report Stages teasing out the matters. It was a measure of the debate that the House did not divide on any matter. Certainly not much legislation passes through Committee Stage or Report Stage that can have that label attached to it and the Minister must be complimented in that regard.
I would like to thank all the Members for their very kind expressions in relation to the manner in which this Bill has passed through this House and the protections it will now provide particularly for women within our society, whether within or outside of marriage. It should provide them with a protection that they have not had heretofore. It will provide them with the psychological protection of the presence of a legal representative and assistance in relation to familiarisation with court procedures. It will provide different protections which it is only right and proper should be in our legislation. I would like to thank the Members.
I would like to acknowledge the work put in in the last number of weeks by the officials of my Department in relation to the number of amendments on Report Stage. They have been quite superb, as they always have been, but they have been quite outstanding in this case.
I would like to refer to some of the points made by Deputy McGahon. It is true that in sexual cases there is an unfortunate habit of repeating the offences. I cannot tell the Deputy the exact percentages of those in prison but if the Deputy would like to put down a question I can get him the answer. We are of course involved in treating those who want to be treated within prison. We are trying to assist them and ensure that on their release we will not have a repeat of the offences. Life imprisonment is normally around ten years. It was eight years and has been increased to ten years on average. Life means life but in practice it has been working out at about ten years. If anybody else wants to put questions to me we can deal with them at ordinary Question Time.
In accordance with Article 20.2.2º of the Constitution this is considered as a Bill initiated in the Dáil, to be sent to the Seanad.