In regard to amendment No. 1, in the name of Deputy O'Donnell, I observe that amendment No. 2 is related and suggest that they be discussed together by agreement.
Criminal Law (Incest Proceedings) (No. 2) Bill, 1995 [ Seanad ]: Report Stage.
I move amendment No. 1:
In page 5, between lines 5 and 6, to insert the following:
"6.—The Act of 1908 is hereby amended by the substitution of the following section for section 3:
`3.—In this Act——
(a) the expressions "brother" and "sister", respectively, include half-brother and half-sister, and
(b) the expressions "father", "mother", "daughter" and "son", respectively, include step-father, step-mother, step-daughter and step-son.'.".
I tabled these related amendments on Committee Stage to close a loophole revealed in the Punishment of Incest Act, 1908 which did not provide protection for adopted or step-children. As the law stands adopted children and step-children violated by their adoptive father or stepfather are not treated as being the victims of incest; they are treated as having been violated or sexually assaulted, as the case may be, by a stranger.
The enormity of this omission from our laws means that a father who abuses or has sexual intercourse with, say, his 17-year old adopted daughter is not deemed to have committed a criminal offence unless he rapes her. In other words, if consent has been procured by a cycle of abuse over many years by persuasion, or by the usual awful indicators of sexual abuse — the abuse of a powerful, dominant parental relationship over that of the loving relationship of a child to its parent — there is need for the law to deal with it.
The Status of Children Act, 1987 clarified the legal position of adopted children, rendering them similar in all respects to natural children. Section 3 (1) states:
In deducting any relationship for the purposes of this Act or of any Act of the Oireachtas passed after the commencement of this section, the relationship between every person and his father and mother (or either of them) shall, unless the contrary intention appears, be determined irrespective of whether his father and mother are or have been married to each other, and all other relationships shall be determined accordingly.
Section 3 (2) (a) and (b) states:
(2) (a) An adopted person shall, for the purposes of subsection (1) of this section, be deemed from the date of the adoption to be the child of the adopter or adopters and not the child of any other person or persons.
(b) In this subsection "adopted person" means a person who has been adopted under the Adoption Acts, 1952 to 1976, or, where the person has been adopted outside the State, whose adoption is recognised by virtue of the law for the time being in force in the State.
In other words, the provisions of section 3 of the Status of Children Act, 1987 does not apply retrospectively to the Punishment of Incest Act, 1908. That matter which arose from a direction by a judge in incest cases should be dealt with by way of amendment to the Bill. It points to the need as originally provided in the Bill, for such proceedings to be held in camera, the transcripts of which should not be released. Therefore, an essential part of amendment to the Bill is that we deal with that procedural aspect of the reportage of incest trials. As this has been drawn to the attention of the Government, it would be appropriate to amend the 1908 Act to include the relationship of stepfather, stepmother, stepdaughter and stepson. This is crucially important given that we are moving towards a successful divorce referendum because, following the introduction of divorce legislation, there will be thousands of children living in new family relationships based on second marriages, and the notion of stepchildren not being protected from an abusive or incestuous relationship really is too horrible to contemplate.
Much of the law relating to incest is based on eugenics, the need to avoid pregnancies arising from relationships between people with close blood ties. This is the basis of the law and society's disapproval of incestuous relationships. Now, however, the whole matter of incest, particularly in the past 20 years, is firmly based on the need to avoid inappropriate and illegal relationships as between a parent and a child — we know from the available figures that a child is more likely to be violated sexually in his or her own home than anywhere else. The incidence of incest is hidden. Often it only becomes known when a child is born as a result.
It is important and appropriate that we address this loophole in our incest legislation while the legislaton is being amended. It would be folly to send it, as suggested on Committee Stage, to an indeterminate review committee whose remit is to ponder the area of sexual abuse generally. There is a need to examine the crime of sexual abuse, but I think the Law Reform Commission got it wrong in one sense when their report indicated that there should be a crime of sexual abuse which would incorporate incest. There will always be a special disapproval in society of an incestuous relationship.
In regard to the problem my amendment was intended to deal with, the Minister stated on Committee Stage he had been advised that sexual relations between stepbrothers and stepsisters, and between an adopted child and his or her adoptive brother or sister, are technically not illegal. Such activity is certainly undesirable, but if it is not illegal it would be difficult to apply the Punishment of Incest Act to it. However, most members of the public would agree, as did most Members of the Oireachtas who took part in the Committee Stage debate, that it would be important to protect and to include in the incest law that very important parental relationship between father and child, abuse of which is incest. That is why I have changed my amendment to avoid any difficulty in regard to stepsisters etc.
It is important that this Bill go on the Statue Book and I have no wish to delay it. It is needed immediately to enable the proper reporting of incest cases to proceed unhindered. However, I felt it was appropriate for me to raise this on Committee Stage. The Minister has had only a few days to draft an amendment, to address the issues I raised and close this loophole to protect adopted children and stepchildren and I hope he has seen fit to make efforts in that regard.
I fully support the concept that adopted children and step-children should be protected. The purpose of this Bill is to deal with the restrictions on the reporting of incest cases; it does not go to the substance of the crime of incest. The Minister should take on board what Deputy O'Donnell said and try to amend the law in order to provide protection for adoptive children and stepchildren.
The criminal law of incest was based upon the existence of a blood relationship between the individuals concerned. That was the position in 1908 and it is still the position in 1995. However, it must be recognised that an adoptive parent or a stepparent is in a fiduciary relationship with the child, and that relationship can build a bond between them. An adoptive parent or a step-parent who is a sexual deviant could easily build upon that bond, that trust and that fiduciary relationship to defile a step-child or an adoptive child. There is clearly a very real need to extend the bounds of the criminal law on incest to cover step-children and adoptive children. It is desirable that it be done, if not in this legislation then in future legislation.
I appreciate the difficulties which the Minister of State so clearly outlined on Committee Stage regarding the marriage of adoptive children or step-children to each other where there is no blood relationship, but there is a considerable difference between the fiduciary relationship which exists between an adoptive parent or a step-parent and that between adoptive children and step-children. The parent is in a position of complete, absolute and utter trust. That trust must not be breached, and can never be allowed to be built upon by a sexual deviant to defile a step-child or an adopted child. It is in that context that I support Deputy O'Donnell's amendment and ask the Minister of State to give sympathetic consideration to it.
The issue of protection of children from sexual abuse, particularly in their own home, is one with which I, as Minister with special responsibility for child care am very much concerned. Accordingly, after these amendments were put forward on Committee Stage, I brought them to the attention of the Minister who agreed to re-examine them on the basis that if what was suggested was the best way forward in terms of child protection, the amendments should, as far as possible, be accepted. However, on re-examination the Minister is satisfied that she cannot accept the amendments.
The purpose of the amendments is laudable, seeking adequate protection for young persons under 15 or 17 years who may be pressurised or forced into sexual activity with persons in parental positions, including persons who are step-parents or adoptive parents.