I move:
"That the Bill be now read a Second Time".
The Minister for Justice, Deputy Nora Owen, has asked me to say she regrets that, because of other very urgent commitments, she is unable to take this Bill today.
This is a short but very important Bill which was introduced to deal with problems that have resulted from two judgments of the Central Criminal Court in connection with an incest case dealt with by that court. The Bill has been extensively amended in its passage through the Seanad. It now contains provisions which go further than the original proposals and additional provisions which amend and strengthen the Punishment of Incest Act, 1908, have been included.
The basic purpose of the Bill is to protect the interests of children who have been abused. I understand that the Private Members' Bills introduced in both Houses — in this House by Deputy O'Donoghue — would not, in themselves, have been sufficient to achieve that purpose. The amendments that have been made to this Bill take account of those Private Members' Bills and I am confident that the text of the Bill as approved by the Seanad will meet with the approval of this House.
The effect of the judgments of the Central Criminal Court to which I referred is that information relating to the hearing of a prosecution for an incest offence cannot be disclosed. The result is that a health board social worker, for example, concerned for the welfare of a child incest victim, could not be told whether the child's offending father had received a sentence for incest. In fact, the social worker could not even be told that there had been an incest prosecution. This situation is manifestly damaging to the interests of victims and potential victims of child sexual abuse. I know I speak for all Members when I say that it must be remedied without delay. The Bill provides this remedy.
For the avoidance of any doubt, I should say that in commenting on the adverse effects of these judgments — something which I must do, in my statement — I am not to be taken to imply any criticism of the judge who made the decisions. He dealt fully and carefully with the logic of the relevant statute. It is evident from his judgments that he was most unhappy with the conclusions he felt obliged to reach. The problem here is one for the Legislature, not the courts.
This Bill deals with the major issues raised by the judgments. This is essential if we are to ensure the protection of victims or potential victims of incest. While to a limited extent this Bill goes beyond what is strictly necessary to deal with the effects of these judgments, the House will appreciate that further issues arise in this area which are not affected by these judgments. It is vital, before we proceed to legislate on those matters, that we receive the opinions of others, including, in particular, those with expertise in the area of child sexual offending. To facilitate the necessary consultation process, the Minister will publish a consultation paper on the issues involved as quickly as possible after the Bill is enacted. I will return to the consultation paper in my statement.
Before I proceed to describe the provisions of the Bill, it would be useful, by way of background, for me to clarify what is involved in the offence of incest and to outline the details of the relevant Central Criminal Court judgments.
Incest is an offence which was created by the Punishment of Incest Act, 1908. Under section 1 of that Act, it is an offence for a male person to have sexual intercourse with a person who is, to his knowledge, his grand-daughter, daughter, sister or mother. Section 2 of the 1908 Act is the counterpart of section 1 and it provides that the offence is also committed by a female who, with consent and full knowledge of the family relationship involved, has intercourse with her grandfather, father, brother or son. Consent is not a defence to a charge of incest. In that sense it is an absolute offence which is committed when intercourse takes place. It should also be noted that where two adults within the same family engage in consensual intercourse, both the man and the woman are liable to prosecution.
Incest is, of course, one of the charges that is frequently brought where a child has been sexually abused by a very close relative. One of the reasons for this is that, as I mentioned, it is an absolute offence in so far as the male participant is concerned and, accordingly, an absence of consent does not have to be proved. As the House will be aware, non-consensual intercourse constitutes rape and frequently both rape and incest are jointly charged. Similarly, if a girl victim is under age the perpetrator may be prosecuted, in addition to incest, for the offence of unlawful carnal knowledge of a girl under 15 or 17, as the case may be, under section 1 or section 2 of the Criminal Law Amendment Act, 1935.
As I indicated, this Bill arises directly out of judgments from the Central Criminal Court in an incest case. On 1 February 1995, the court held that section 5 of the Punishment of Incest Act, 1908, continues to have full force and effect. That section provides that "all proceedings under this Act are to be held in camera". The important words in this context are "in camera" because the court went on to rule that they must be taken to mean that all such proceedings must be held, to quote the court, "in total privacy and secrecy with the admission of no persons, other than the immediate parties, including the press ... with the community at large not being entitled to know even of the happening of the case, let alone any sentence which might be imposed". A further judgment was delivered by the Central Criminal Court on 17 February, 1995 in connection with the same case, in which the court ruled that it was precluded by section 5 of the 1908 Act from disclosing whether the accused had been sentenced. This was in response to an approach from the Eastern Health Board which had sought the relevant information because it was concerned for the health and safety of the children of the accused man.
In this particular case the accused had been charged with two counts of rape and two of incest. He pleaded guilty to the incest charges and the rape charges were not proceeded with. The application of section 5 of the 1908 Act only arose in relation to the passing of sentence for the incest offences. In the light of its interpretation of section 5, the court determined that it had no discretion but to decide that sentencing should take place in the absence of interested parties — as distinct from immediate parties — the Press and the general public.
The significance of the Central Criminal Court rulings lies in the way in which the court interpreted the words "in camera" in the 1908 Act. As far as the Department of Justice is aware, this is the first occasion that section 5 has been taken to have such a restrictive meaning. Up to now the practice in the Circuit Court, where cases in which the sole charge is incest are tried, has been to exclude the public but to permit the Press to attend and to report on the proceedings subject to certain restrictions. Where incest has been joined with other charges triable in the Central Criminal Court under the rape Acts, the practice has been to apply the provisions of those Acts which allow the general public to be excluded but the case to be reported by the Press in accordance with a number of important conditions, for example, protection of the identity of the victim.
I should also mention that it would not appear to have been open to the State — or any other party — to appeal the Central Criminal Court rulings directly to the Supreme Court. The only way in which the Supreme Court could be asked to rule on those issues would be by way of separate legal proceedings which would have to be initiated in the High Court and it would inevitably take some time before the matter reached the Supreme Court.
The Minister has received representations from various parties with an interest in the protection of children who have expressed very strong concerns to her about the effects of the judgments of the Central Criminal Court. Both of us share those concerns and, in particular, I believe that we should not tolerate a situation, which arose in the case in question, in which information vital to the interests of a child should be denied to a caring agency such as a health board. Furthermore, we are convinced of the need to keep the public aware and vigilant of the fact that child sex abuse is actually occurring and that it is a crime of the most serious kind. We fully recognise that the holding of incest cases in total secrecy could have the result of gradually pushing the subject under the carpet. No right-thinking person wants that.
It is also clear that the judgments have given rise to anxiety among the Members of the Oireachtas. This was particularly evidenced by the Private Members' Bills introduced by Deputy John O'Donoghue and Senator Cathy Honan. As I have already mentioned the main aspects of the Private Members' Bills have been incorporated in the Minister's Bill by way of amendments made in the Seanad. The overall result is that the Bill will restore the position whereby the media will be able to carry reports of incest prosecutions.
I am conscious of the fact that the Bill is only concerned with incest proceedings. This is the case because the Minister is anxious to ensure, as a matter of urgency, that social workers and other parties concerned with the protection of children, who need to have essential information concerning prosecutions, will be able to get that information. That is clearly the crucial point.
The Minister has not, however, lost sight of the fact that there is a need to consider the general question of the reporting of cases involving sexual offences. This is something she intends to do because she is aware, as most public representatives who deal day in day out with members of the public will also be aware, that the nature of newspaper reporting on child sexual abuse cases is a subject on which many people have views. It is right, in a democracy, that we provide room for debate on matters of this kind. It is absolutely vital — and I know the Minister wants to stress this — that we acknowledge the enormous contribution made by the media in bringing the problem of child sexual abuse out from under the carpet and keeping it before our eyes. Far too many children have been the victims of secrecy and silence.
The Minister has decided to raise the question of what reporting and related arrangements should operate in respect of certain sexual offences where consent may or may not be an issue. These include the following: unlawful carnal knowledge of a girl under 15 or 17; sexual intercourse of buggery with a mentally impaired person; buggery of a person under 17; and gross indecency with a male under 17. She also intends to ascertain whether there is support for having specific restrictive reporting etc. in relation to the offence of sexual assault which, while it is provided for in the Rape Acts, is not subject to the same requirements as rape offences in that regard.
Deputies may query the need for including various matters in a discussion paper rather than proceeding now to legislate on those matters. The Minister has decided on the former course, not out of any reluctance on her part to act but simply in recognition of the wisdom of seeking the views of individuals and organisations with recognised expertise on such matters before she acts. In addition, to do so in this particular Bill might cause a delay in dealing with the very important issue of lack of protection of incest victims. What she is proposing in this Bill is to ensure that if a similar case arises again in our courts the victim will be protected.
On the need for consultation on the other questions, the Minister has asked me to say that she will not be concentrating on legal expertise alone. She is particularly concerned to ensure that she has the benefit of the insight of individuals and organisations who have expertise in dealing with the problems of sexual offending generally, and a special understanding of the plight and the real needs of its victims. I urge that Deputies accept the good sense of proceedings with the benefit of insight rather than on the basis of the sometimes obvious answer which is not necessarily the right or complete one. The Minister does not, of course, envisage that the process of consultation should be allowed to drag on indefinitely. The preparation of her consultation paper is already under way and her plan is to publish it very quickly after this Bill is enacted, with a tight timetable for the receipt of responses and a firm commitment and determination on her part to bring before the Oireachtas with minimum delay, such further proposals for law reform as may be required in this area.
I will listen carefully to what Deputies will say during the debate on the need for further changes to the law relating to sexual offending. Deputies can be assured that any proposals they may put forward will be brought to the Minister's attention.
I would now like to turn to the provisions of the Bill.
Section 1 states that in the Bill the Punishment of Incest Act, 1908 is referred to as "the Act of 1908". This is merely a technical provision which has been included for drafting purposes and it does not require any special explanation.
Section 2 goes to the heart of the Bill and is modelled on provisions in the rape Acts. It provides in subsection (1) that, where a person is being dealt with in any court proceedings under the 1908 Punishment of Incest Act, the judge or the court, as the case may be, shall exclude from the court during the hearing all persons except officers of the court, persons directly concerned in the proceedings, bona fide representatives of the press and such other persons, if any, as the judge or the court may, in their discretion, permit to remain. Subsection (2) also requires that any verdict or decision in an incest prosecution and the sentence, if any, shall be announced in public. At present section 5 of the 1908 Act requires that all proceedings under the Act be held in camera and the recent Central Criminal Court judgments mean that, not alone must the public and the press be excluded from such proceedings, but the fact that they are taking place and the outcome cannot be disclosed even to a caring agency such as a health board with a specific interest in the welfare of an incest victim.
The general effect of section 2 is to retain the exclusion of the general public from incest proceedings. Deputies will appreciate that this is necessary to protect the identity of an incest victim and the family involved.
The section also proposes, however, that the press would be entitled to attend incest hearings and to publish reports of the proceedings subject to certain restrictions provided for in section 3 which I will discuss shortly. The Minister and I believe that the members of the press have a vital role to play in highlighting the problem of sexual abuse and it would be appropriate that they should be in a position to inform the public of the facts that have given rise to an incest prosecution provided that appropriate measures are in place to safeguard the identity of the parties in the case.
Section 2 also allows a court to permit a relative or a friend to accompany an incest victim who is required to give evidence in proceedings under the 1908 Act. We are all aware of the very difficult situation victims face in court and I have no doubt that there is a need to ensure that a person who has been a victim of incest, particularly a child, is entitled to the support of a person they can trust when they are present in court. In the debate in the other House, a number of Senators stressed the need to make provision in the Bill to enable an incest victim to be accompanied in court. Deputies will also be aware that the type of arrangements proposed for incest cases in that regard in the Bill has operated very successfully in assisting rape victims under the rape Acts.
Before I conclude on section 2, I draw the attention of this House to the fact that subsection (2) obliges a court to announce any verdict, decision or sentence in a case under the 1908 incest Act in public. Such a provision will guarantee, for example, that a health board or social worker can ascertain the outcome of an incest prosecution. It will also ensure that the general public is aware of what is happening in relation to the outcome of prosecutions.
Section 3 is concerned with protecting the anonymity of persons involved in incest cases. Under the section, it will become a criminal offence for a person to broadcast or publish any material which could identify an incest victim or a person charged with incest.
Section 3 (1) provides that after a person is charged with an offence under the 1908 Act, no matter likely to lead members of the general public to identify that person as a person charged or to identify any other person in relation to whom the offence is alleged to have been committed shall be published in a written publication available to the public or broadcast. A similar prohibition is contained in the rape Acts. In view of the very close family relationship that will always exist between the parties in an incest case the anonymity of the accused will not be lifted at any stage. To that extent what is proposed represents a departure from the rape Acts which permit the name of a convicted rapist to be disclosed after a conviction has been obtained. Deputies will appreciate, however, that there are compelling reasons for adopting a different approach in relation to proceedings taken under the Punishment of Incest Act, 1908, and that every effort must be made to protect the identity of the victim and the family involved. That is the sole reason we have departed from what is provided for in the rape Acts.
In the rape Acts the victim of an offence is referred to as the "complainant". I understand that that term would not necessarily be appropriate to incest and, accordingly an alternative wording has been included in section 3 which achieves the same result.
Section 3 (2) states that if any matter is published or broadcast in contravention of subsection (1) the following persons shall be guilty of an offence: (a) in the case of matter published in a newspaper or periodical publication, the proprietor, the editor and the publisher thereof; (b) in the case of matter published in any other written publication, the publisher thereof, and (c) in the case of matter broadcast, any person who transmits or provides the programme in which the broadcast is made and any person who performs functions in relation to the programme corresponding to those of the editor of a newspaper.
As Deputies will appreciate, the prohibition on the publication or broadcast of material caught by section 3 extends to a proprietor and an editor involved in such publication or broadcast. This is also the position under the equivalent provisions in the rape Acts. Some people might argue that it would be sufficient for the person who discloses the relevant information to be charged. However, it has become the practice in the case of this type of offence that proprietors and editors should be held responsible for the actions of others who operate under their authority. In that regard there is no evidence that the inclusion of such a provision in the rape Acts has given rise to any difficulty in relation to the operation of those Acts.
Section 3 (3) contains two savings in relation to the section. Paragraph (a) provides that the section shall not prevent the publication or brodcasting of a report of legal proceedings other than proceedings under the 1908 Act. For example, the section will not restrict the reporting of a prosecution for perjury committed at an incest trial. Paragraph (b) preserves the effect of restrictions on the publication etc., of certain matters which are contained in other statues. It provides that the section shall not affect any other prohibition or restriction on the publication or broadcasting of any matter.
Section 3 (4) defines the terms "broadcast" and "written publication" for the purposes of the section.
I come now to section 4 which relates to offences under section 3. Subsection (1) makes provision for the penalties that will apply in respect of a section 3 offence. Subsection (2) deals with the liability of an individual where an offence has been committed by a corporate body. Both these subsections are in standard form.
Subsection (3) provides for a defence to a charge brought under the section where the person charged can prove that he or she was not aware, did not suspect, or had no reason to suspect that the material published or broadcast was material which could not be disclosed. Such a defence is also permitted in the rape Acts. The reason for its inclusion is to prevent an injustice where, for example, a disclosure is made inadvertently. It does not, however, offer a defendant an easy means of escaping liability because, to come within the scope of the defence, the person must prove that in the particular circumstances he or she is entitled to be relieved of criminal responsibility. It will not be sufficient for the person to say that he or she did not know that they were not entitled to disclose the material in question. The court will have to be satisfied that that was the case.
Section 5 amends the Punishment of Incest Act, 1908, in a number of respects. It reflects the thinking behind a set of amendments tabled by the Independent Group of Senators in the Seanad. While the Minister was not in a position to accept those amendments, for technical reasons, she undertook to amend the Bill to meet the concerns raised by the Senators in their amendments.
Paragraph (a) has two purposes. First, it establishes that the maximum penalty for an offence under section 1 (1) of the 1908 incest Act will be life imprisonment. Deputies may recall that under the Criminal Justice Act, 1993, that penalty was increased to imprisonment for 20 years. Previously the maximum period of imprisonment to which a person could be sentenced for the offence was seven years. While the Minister accepted that the change made by the 1993 Act was very significant she was also conscious of the fact that a life sentence can be imposed for other very serious sexual offences such as rape and aggravated sexual assault. To ensure that we are consistent in our approach to the way in which sexual offenders are dealt with the Minister agreed it would be appropriate for a court to have the power to sentence the perpetrator of an incest offence to a term of life imprisonment. This has been provided for in the Bill.
The second element of section 5 (a) is that it proposes that an offence under section 1 of the 1908 Act will be designated as a felony rather than as a misdemeanour as at present. The significance of this change is that it will serve to indicate that the offence is particularly serious and will also ensure that a person who is suspected of that offence can be arrested immediately. It will not be necessary for the Garda to obtain a warrant before they can carry out an arrest in these cases.
Section 5 (b) proposes the deletion of section 1 (3) of the 1908 Act which provides that if any male person attempts to commit the offence of incest he shall be liable at the discretion of the court to be imprisoned for any time not exceeding two years with or without hard labour. In this context I should mention that section 1 (3) was not amended by the 1993 Criminal Justice Act.
In the Seanad a number of Senators expressed the very strong view that, given the seriousness of the offence of attempted incest, the penalty provided for that offence in the 1908 Act was totally inadequate. The Minister shared that concern. Accordingly, she arranged for the inclusion of paragraph (b) in section 5 of the repeal of section 1 (3) of the 1908 Act, thereby ensuring that the penalty for attempted incest will be the same as that for the main incest offence. No further amendment of the 1908 Act is required to secure that result. It will be achieved because it is a general part of our criminal law that an attempt to commit a crime can be punished in exactly the same way as the full crime unless, as in the case of the 1908 Act at present, a separate penalty is provided for in respect of the attempted offence.
Section 6 of the Bill proposes the repeal of section 5 of the 1908 Incest Act. The section in the 1908 Act states that all proceedings under that Act shall be held in camera. Deputies will appreciate that, in order to give effect to sections 2, 3 and 4 of the Bill, it will be necessary to repeal section 5 of the original Act. In that sense section 6 is essentially technical and does not deal with any new substantive issues.
Section 7 simply provides for the short title of the Bill.
I have dealt in some detail with the provisions of the Bill and, in particular, I have outlined the way in which it tackles the problems that have emerged following the rulings of the Central Criminal Court to the effect that section 5 of the 1908 Act requires that incest proceedings must take place in total secrecy. I know that the Minister will consider what Deputies have to say about the Bill with an open mind. For obvious reasons she is anxious to have this legislation enacted as quickly as possible. She hopes it will prove to be the case that most, if not all, of their concerns will have been met in the approach she took in making very substantial changes to the text in the light of amendments tabled in the Seanad.
I would ask Deputies to be mindful, however, of the approach the Minister has taken to the Bill — that is to deal with the immediate problems now and to address other issues in the context of the consultation paper. Until this legislation is enacted the effect of the Central Criminal Court judgments will remain in force. I know all Deputies will accept that it is necessary to remedy that position with the measures contained in this Bill as quickly as possible.
The Minister accepts, of course, that the more general issues require attention in the context of the arrangements that should operate in relation to the reporting of sexual offences. These matters will be addressed in the discussion paper which the Minister will present to interested parties as quickly as possible. I know that she would be more than willing to consider any specific proposals Deputies might have regarding what might be included in the discussion paper.
I believe there is widespread general support for this Bill. I hope and expect that support will be shared by the Members of this House. In the circumstances I am happy to commend the Bill to the House.
