Vol. 538 No. 6
Amendment No. 1 is consequential on amendment No. 2 and both may be discussed together by agreement.
Seanad amendment No. 1:
Section 25: In page 19, subsection (1), between lines 15 and 16, the following definition inserted:
"‘mentally impaired' has the meaning assigned to it by section 5 of the Act of 1993;".
I am delighted to bring before the House for consideration and approval four amendments made by the Seanad to the Sex Offenders Bill, 2000, which is a Dáil Bill. The amendments fall into two groups of two, each consisting of one substantive and one consequential amendment. The first group is concerned with the protection against sexual abuse of mentally impaired persons.
Part 4 of the Bill introduces an innovative feature under which it will be an offence for convicted sex offenders to seek or apply for employment, whether voluntary or paid, involving unsupervised access to children without informing the prospective employer of the conviction. The new offence is designed to provide a deterrent to unsuitable people seeking access to children through the workplace where relationships based on trust or fear can develop. At present, there is nothing to deter paedophiles from seeking or accepting such employment. The worst that can happen from their point of view is that they would be refused employment or whatever voluntary position had been sought.
Under Part 4, the conviction will not in itself render the person unsuitable to work. It will be a matter for the prospective employer or, in the case of the self-employed, the child's parent or guardian, on being informed of the conviction, to decide if it is relevant to the work or position concerned. Where a person applies for work and does not know or could not reasonably have known that the work involved unsupervised access to children, he or she will be obliged to inform the other party to the employment contract of the conviction as soon as he or she becomes aware of having such access to children. A person guilty of an offence under this Part will, on summary conviction, be liable to imprisonment of up to 12 months or a fine of £1,500 or both or, on conviction on indictment, to a fine not exceeding £10,000 or five years imprisonment or both.
The purpose of amendment No. 2, which I accepted on Committee Stage in the Seanad is to apply all the foregoing protections to persons who are mentally impaired. This means that convicted sex offenders who seek or are offered employment or a voluntary position working with a mentally impaired person or persons will have to inform the employer of the conviction. Mentally impaired persons are as vulnerable to abuse as children by persons who seek to gain their trust and instil fear in them. Therefore, they are entitled to the same level of protection under the law.
Defining "mentally impaired" is not easy, but the Criminal Law (Sexual Offences) Act, 1993, contains a good definition which amendment No. 1 proposes to extend to the use of the expression "mentally impaired" in the Bill. Section 5 of the 1993 Act protects mentally impaired persons against sexual abuse. In that section "mentally impaired" means suffering from a disorder of the mind, whether from mental handicap or mental illness, which is of such a nature or degree as to render the person incapable of living an independent life or of guarding against serious exploitation. This definition will now apply to the protection being given to the mentally impaired under Part 4 of the Bill.
The third amendment substantially increases the penalty for the offence of sexual assault. Some time ago I announced that I intended to raise significantly the penalty for sexual assault. I originally intended to examine this issue in the context of the preparation of any further sex offences Bills that may arise from an analysis of the views received on the discussion paper on the law on sexual offences. However, it appeared that it was a matter of sufficient importance to warrant including it in the Bill. To put the amendment in context, I will outline the recent history of the offence of sexual assault and the penalty attached to it.
Prior to 1990 there were two main offences in relation to sexual assault apart from specific statutory offences and unlawful carnal knowledge and incest. These were the offences of rape and indecent assault. The penalty for indecent assault on a male or female in the Criminal Law (Rape) Act, 1981, was set at a maximum of ten years imprisonment. Prior to that, the penalty for inde cent assault on a female was two years for a first offence and five years for a subsequent offence.
The Criminal Law (Rape) (Amendment) Act, 1990, totally reformed the penalty structure for sexual offences. A new offence of rape under section 4 was created with a penalty of up to life imprisonment. This offence was a sexual assault that included penetration. The other new offence under the 1990 Act was aggravated sexual assault. This offence is a sexual assault that involves serious violence or a threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted. The third offence to emerge from the old offence of indecent assault – essentially, its continuation – was sexual assault of a male or female with a maximum penalty of five years imprisonment.
As the very serious sexual assault offences could be prosecuted under section 4 or the aggravated sexual assault provisions, the five years maximum for sexual assault probably appeared reasonable, particularly as it would include some relatively minor manifestations of the offence, such as unwanted touching of a sexual nature. In retrospect, the gap between sexual assault and the more serious offences is too wide and does not allow in particular for situations where the assaults continued over an extended period. At the upper level, the assaults could be relatively serious and have lasting repercussions for the victims, particularly children.
Accordingly, I proposed in the Seanad to raise the maximum penalty for sexual assault of an adult from five years to ten years and for sexual assault of a child from five years to 14 years. These are more realistic penalties for the type of behaviour that may be involved. It will still be possible for a case of sexual assault to be dealt with summarily where the assault is at the lower end of the scale of seriousness. Under section 12 of the Criminal Law (Rape) Act, 1981, the offence of indecent assault can be tried summarily. This provision transferred to the offence of sexual assault in 1990 and will also apply to that offence with the higher penalties now proposed.
Before the offence can be tried summarily, three conditions must be met. First, the District Judge must be of the opinion that the facts proved or alleged against the defendant constitute a minor offence fit to be tried summarily. Second, the Director of Public Prosecutions must consent and, third, the defendant does not object to being tried summarily given that there is a constitutional right to a trial by jury. Subsection (1)(b) defines a child for the purposes of the section as a person under 17 years of age. This is the age generally under Irish law for giving consent to sex and, in the circumstances, it is the most appropriate age to distinguish children from adults for the purpose of the penalty. Subsection (2) of the amendment rules out retrospectivity in relation to the penalty. This is because a person cannot face a higher penalty than that provided for in law at the time an offence was committed.
The fourth amendment is a technical amendment to the Long Title which is necessary if the Bill is to accommodate the increased penalties for sexual assault. It provides for the minimum necessary. That is a reference to section 2 in the Long Title of the Bill.
These amendments are a significant addition to a Bill which already offers substantial new protections to vulnerable persons against sexual abuse and attack, and I strongly commend them to the Dáil for approval and inclusion in the final text of the Bill.
I apologise for the absence of my party's spokesperson, Deputy Neville, who has contributed greatly to the ongoing debate on this legislation. Deputy Neville cannot be here this morning but wishes it to be known that he fully supports the proposed amendments.
The Minister has detailed the definition of "mentally impaired" as it applies in the Criminal Law (Sexual Offences) Act, 1993. Does he consider that definition broad enough? The 1993 Act has been reviewed fully during the course of the debate on this Bill but I wonder if this definition should be re-examined.
I, too, support the Minister's amendments. The extension to the mentally impaired of protection similar to that already afforded to children is welcome. People who are mentally impaired are not in a position to protect themselves in the way adults, in general, would be. In the past, sexual offenders have taken advantage of the opportunity to work with mentally impaired people. This protection, which the Minister accepted in the Seanad, is very welcome and I support it.
I support amendment No. 3 which provides for an increase in penalties for sex offenders. Yesterday, during the debate on Committee Stage of the Criminal Justice (Theft and Fraud Offences) Bill, I made the point that penalties for fraud, theft and offences against property are higher than those for crimes against the person. I made comparisons between the penalties for offences contained in the fraud Bill and those for a variety of offences against the person. I welcome the extension of the term of imprisonment for sexual assault. It is a heinous crime which has very damaging effects on its victims. We need to be severe in our treatment of persons convicted of this offence. Having an offenders register, which is the main purpose of the Bill, is important but it is also important to make it known that people will be severely punished if they perpetrate such appalling acts, on children or adults.
The provision of treatment for sex offenders in prison has been a concern of mine and others. While I welcome the second dedicated programme in the Curragh prison, further progress is needed in this regard. A number of offenders still do not receive specified treatment for sex offences in prison. The Minister may say that prisoners must be suitable for the programme and willing to avail of it. However, as we were able to include in the Bill an obligation on offenders to take certain measures after their release – offenders will, for example, be obliged to register with the probation and welfare service and take measures to help them not to reoffend – I do not see the reason we cannot oblige people in prison to face up to the enormity of their crimes. Most sex offenders tend to be in denial and justify what they have done. Some offenders face up to their crimes but a large number are in denial. We must encourage prisoners to avail of the appropriate counselling and treatment programmes. As amendment No. 3 extends the length of prison sentences for sex offenders, there should be a greater opportunity for prisoners to avail of the programmes offered. The proportion of sex offenders who avail of treatment and counselling programmes while in prison is still very small.
I support the amendments. It is important that the Bill be enacted in order that we can establish a sex offenders register.
We are satisfied that the definition of "mentally impaired" is adequate. However, this matter is addressed in the discussion paper on sexual offences. It will, therefore, be revisited and if there is an inadequacy, it will be dealt with. The discussion paper on sexual offences is a very broad document and does not merely deal with the matter dealt with in this legislation. We hope to bring forward more legislation arising from it.
The question of treatment was raised by Deputy O'Sullivan. The director of the prison service, Mr. Aylward, is committed to ensuring every person who requires treatment will receive it. I hope we will be in a position to guarantee that in the near future.
I warmly thank Deputy Neville, in his absence, and Deputy O'Sullivan for their constructive contributions to this legislation.
