I welcome the delegation from the Rape Crisis Network Ireland.
Constitutional Amendment: Discussion with Rape Crisis Network Ireland.
Ms Fiona Neary
I thank the Chairman, Deputies and Senators. The Rape Crisis Network Ireland, RCNI, is the national representative body of the rape crisis centres in Ireland. We are pleased to have the opportunity to speak to members. I am Fiona Neary, executive director, and I am accompanied by my colleagues, Clíona Saidléar, policy and communications director, and Caroline Counihan, legal director. I will make the presentation on behalf of the Rape Crisis Network Ireland.
The rape crisis sector is visible in our society in regard to what we do in meeting the needs of victims of sexual violence. However, the aim of the rape crisis sector has always been, and continues to be, the prevention of sexual violence. To that end, we analyse the causes of sexual violence in the aspects of our society which support and facilitate such high levels. Our task is to identify unhealthy norms and assumptions in our culture and society and to advocate solutions and positive alternatives where sexual violence can no longer hide and continue to exist.
We propose to use members' very valuable time to speak on one aspect of the committee's remit, namely, the question of absolute and strict liability in statutory rape. We welcome the joint committee's interim report on vetting and soft information and hope legislation can be advanced speedily. We continue to support the rights aspects of the referendum but propose not to deal with those aspects today. We will first address absolute liability as defined in the 2007 Bill.
The RCNI became engaged in this debate in May 2006. We have been advocates for the re-instatement of absolute liability in statutory rape legislation from the outset. We have engaged in this debate as it has unfolded over the past two years and five months and we have taken each challenge and question seriously. We have considered all the different aspects as they have arisen. We have answered all those questions to our satisfaction. Therefore, our position, which is widely known and detailed in our January submission, remains the same. We advocate the re-introduction of absolute liability in statutory rape cases as vital and as a matter of urgency.
The primary functions of absolute liability are as follows: to protect children from adults who would sexually exploit them; to send a clear message to adults regarding consequences for those who choose to take the risk of having sex with someone young enough to be a child; to clearly spell out in our society what is unacceptable behaviour; and to enable prosecutions for statutory rape in Ireland by protecting children from the potential trauma of being cross-examined as to their behaviour.
Absolute liability is a unique tool by which sexual abuse of a vulnerable group can be prosecuted. Without absolute liability, in many instances these cases may become too difficult to prosecute. The absence of absolute liability means that sex offenders in Ireland are being given an opportunity by a flawed legal system. No other legislation will do the job of absolute liability.
We understand absolute liability legislation as primarily a child protection measure. It is designed to address the particular vulnerability of children to sexual exploitation and manipulation by adults. The Rape Crisis Network believes the legislation should only apply when the complainant is under 15 years of age. It is a tool to allow for the prosecution of those who abuse this particularly vulnerable group of children and it is to protect children as far as possible from secondary trauma within the justice system. It is proactive and preventive as well as reactive and identifies childhood as worthy of protection.
Absolute liability in statutory rape is needed to discourage the targeting of children by those who would abuse them by sending the latter a message of serious consequences. It focuses our attention on the behaviour and choices of the perpetrator. We assign responsibility squarely to the adult and not the child. In this law, we signal that we will not tolerate a climate of blaming the victim for the purposes of an irresponsible adult eluding responsibility for his or her actions and that such people may well face consequences for breaking the law by choosing to have sex with someone who may be only 14 years of age.
In rape cases involving adults, cross-examination is often further traumatising and experienced by the complainant as victim blaming. Absolute liability in statutory rape cases allows us to treat children differently; we refuse to ask them to be held to account for an assailant's choices, in this same manner.
Absolute liability firmly puts the responsibility with the adults for the choices that they make in their own sexual conduct and risk taking, holding them accountable for their choices, behaviour and actions. The onus, morally and legally, lies with the adult. We ensure that a child's vulnerability cannot be used as a defence by those who have wronged them. Where adults have chosen to take a known risk, it is reasonable for society to hold them to account for the consequences.
The primary function of absolute liability is to protect children from adults. It is the duty of the DPP to serve the public interest on behalf of the State. The public interest is not served when legislation intended for adults is used to prosecute non-exploitative teenage sexual experimentation.
It is clear from the recent description from the Office of the Director of Public Prosecutions of the DPP's use of statutory laws available to him that the prosecution of the exploitation of children is his primary intention. The DPP has described how the law with absolute liability was used in two ways - to prosecute situations were the child felt he or she was consenting to what was evidently an exploitative sexual relationship; or to expedite sexual offences which could have been prosecuted as rape or other such offences but were prosecuted as statutory rape to shield the child from secondary trauma.
The DPP has described his statutory rape case load in 2007 as having the following properties: the smallest age gap between victim and perpetrator was five years; the average age of the complainant was 14 years; and the average age of the perpetrator was 27. The DPP, Mr. James Hamilton, concluded that "...it is misguided to suggest that the legislation is being used to criminalise the sexual experimentation of teenage peers. This is simply not the case...".
We are concerned with making good laws. This committee has a unique opportunity. As described by Professor Finbarr McAuley, the referendum would allow for absolute liability in principle. This is required in and of itself. When followed by a careful process of review of the codification of all sexual offences, the issue of a small age gap or non-abusive sexual activity could be confidently further addressed and robust child protection could be delivered. This potentially provides Ireland with what has been significantly lacking when it comes to sexual violence, that is, comprehensive legislation.
We must bear in mind the impact of public interest on the DPP's decision making in this area in the absence of absolute liability. It is not in the public interest to inflict trauma on an already victimised child in order to attempt to hold to account the person who has committed a criminal act against them. The result is that the prosecution of statutory rape becomes undesirable. The impact can be clearly seen in the stark figures released by the DPP. The average number of cases prosecuted under the old legislation was approximately 100 per annum. In 2007, under the new 2006 Act, the number was 13. We have no reason to believe that actual incidents of abuse have decreased to mirror this drop in cases prosecuted.
Since 2006 our law is failing. The cost may not be fully visible. Cases are not prosecuted, children do not get justice, sex offenders are given opportunity and are not held to account.
Absolute liability is not used to criminalise young people inappropriately; it is used to protect children and to equip the State with a tool which makes it possible to prosecute where it would otherwise be extraordinarily difficult due to the vulnerability of the witness-victim.
For the RCNI, there is a much broader function of this law than the prosecution of individual cases. The law is also required to send a message to adults and society about our responsibilities. The fact that it is currently considered reasonable to put forward an argument that adults should not be held accountable for their risky and potentially harmful behaviour should in itself alert us to the urgent need for leadership. Instead, when adults offend against children we find ourselves equivocating about holding them to account.
We are in need of a message about what is and is not acceptable, and what will and will not be tolerated in our society when it comes to the protection of children from sexual exploitation. An explicit child protection public position is necessary to counterbalance cultural messages and pressure which serve to make children vulnerable. There is a short section in the briefing note which looks at the increasing sexualisation of children in our society, which increases their vulnerability.
I will now turn briefly to the issue of strict liability in statutory rape cases. The RCNI advocates that strict liability, meaning that a defence must be objectively reasonable and not merely subjectively honest, be applied to statutory rape cases.
The term "sexual offences" shows a clear intention to name society's intolerance of such violations. However, the RCNI believes the instruments and practice of the law currently fall far short of testing adherence to prescribed standards of behaviour in sexual crimes.
In the absence of a definition of consent, guidelines in assessing consent for juries, and crucially a standard of reasonableness applying to a defence argument and absolute liability in statutory rape cases, our court rooms are reduced to a reliance on the rationale of the defendant. Under our law the burden of proof lies with the State, but it is the perpetrator's construction of consent that counts, not the victim's. The only aspects our courts judge are a defendant's adherence to his or her own standards, whatever they may be. The threshold of criminality is the defendant's own belief that he or she had consent. Therefore, the defendant is setting the standard for behaviour, not society. This is unacceptable.
It is the RCNI's analysis that sexual offences, without empowering the jury to adjudicate if the defence is reasonable, is uncomfortably facilitative and supportive of a defendant's attitudes which may, in fact, be objectionable and, in a common sense understanding, criminal.
No one doubts that the majority of society and the Legislature seek the prevention and reduction in prevalence of sexual violence. However, in the current instruments of the law, we mismatch the law to its intent. Strict liability in statutory rape addresses this deficit. This is why the RCNI advocates the introduction of strict liability.
On special measures, in this debate at various times we have heard commentators suggest that other legislation, which does not require constitutional change, may be sufficient. We understand this to mean the so-called "special measures", that is, the statutory rights of victim's, the protection of witnesses in the court room and giving evidence. Ultimately, it is the resourcing and practice of delivering a client-focused criminal justice service to the victim.
While the RCNI has long advocated for these measures, many of which are resource and practice issues and not legislative, we firmly believe that they are no substitute for absolute and strict liability. Special measures are ill equipped to address the particular difficulties in prosecuting cases involving grooming. They cannot keep the child from facing victim blaming questions. They do not signal to society that children are not sexually available to adults in the manner that absolute and strict liability does. It does not provide the tool to prosecute in these cases that is provided by absolute liability.
Without absolute liability, special measures in court will remain insufficient. This will mean that the DPP may decide not to prosecute, even in cases where the sexual exploitation of a child by an adult is evident. The potential harm to the child victim must be considered. This is the worst possible outcome for children, they will be failed by our legal system.
This committee must provide the leadership that is required here. Good legislation means that we require absolute liability, the absence of which continues to provide an opportunity for sex offenders. It is the RCNI's understanding that legal opinion to the committee has advised that a referendum is needed to secure both absolute and strict liability. Therefore, we would urge this committee to make such a recommendation as we believe these laws are both vitally important and urgently needed. I thank the committee for its time.
I thank Ms Neary. Do Dr. Saidléar or Ms Counihan wish to add to that? Questions can then be directed to whoever of our witnesses wish to deal with them.
I welcome our guests. There is nothing they said with which I disagree. I hope what we eventually do will meet all of their expectations. It is essential that we reinstate the law of absolute liability in respect of those under 15 years of age and that there be a law of strict liability of the nature of that to which our guests refer for those between the age of 15 to 17. Do our guests envisage that such a law of strict liability should apply to children in this age group?
Whatever differences may exist between members of the committee, we seem to agree on one issue - I stand to be corrected by colleagues if I am wrong - namely, that absolute liability should be extended if not to people under 18, then to those under 17 years of age. There is a good case for extending absolute liability to cover circumstances where someone in a position of authority - a coach, a relation or a teacher - engages in sexual relations with someone under 17. In such instances, there is no basis for using the reasonable grounds defence.
In proposals it put to the committee regarding strict liability, Fine Gael suggested that even in circumstances where a person seeks to rely on the objective defence that he or she had reasonable grounds for believing that someone was over age, the latter's mode of dress or demeanour should not be capable of being relied upon. I am interested in hearing our guests' views in respect of that matter.
I welcome what was said in respect of the proximate age issue. It is essential that there be an absolute liability offence in order that children might be protected from sexual predators, sexual exploitation and grooming by adults. However, it is also important that such an offence should not criminalise young people who are engaged in sexual experimentation in manner that may be disapproved of by society or their parents. The criminal law should not play a role in respect of the latter.
In the context of dealing with the proximate age issue, the 2006 Act confers on the DPP an express discretion not to prosecute in certain circumstances. Is that the model our guests would like to be used or are they of the view that the detail of legislation should indicate with greater precision what is meant by the term "proximate age"? I thank them for their submission.
Normal practice for the committee is that any member who wishes to do so may ask questions and then witnesses reply to them.
I welcome the representatives of the RCNI and thank them for their extremely thoughtful presentation. We previously received submissions from them but it is useful to have them come before us in order to discuss their views on this issue. I wish to make a number of observations and ask some questions.
In their submission, our guests set out the four primary functions they associate with absolute liability. This matter is extremely complex. It is as well to remind ourselves, at every opportunity, what is meant by absolute liability. I think we can agree that a regime of absolute liability would not, in any circumstances, allow for or permit a defence of honest belief as to age. Such a regime was in place before the CC case and was essentially struck down and deemed to be unconstitutional. A new Act was introduced but did not deal with this particular aspect. It is proposed that said regime should be restored.
I do not intend to correct our guests but I must state that it is not strictly speaking correct for them to state that the committee has been given legal opinion to the effect that a referendum is needed to secure both absolute and strict liability. That is not factual.
Having checked the position, I had intended to point that out at the end of the meeting.
I am not in the business of correcting people but it is important that this fact be highlighted in public session.
I understood that to be the advice provided by counsel to the committee.
We have not received advice to the effect that a referendum is needed to secure both absolute and strict liability. I stand open to correction if I am wrong in that regard.
I wish to return to what we mean by absolute liability, removing a defence of honest belief in all circumstances. That is the dividing line.
As already stated, our guests set out in their submission four functions relating to absolute liability, as follows:
... to protect children from adults who would sexually exploit them; to send a clear message to adults regarding consequences for those who choose to take the risk of having sex with someone young enough to be a child; to clearly spell out in our society what is unacceptable behaviour; and to enable prosecutions for statutory rape in Ireland by protecting children from the potential trauma of being cross-examined as to their behaviour.
Is it the RCNI's contention that none of these four objectives can be achieved in the absence of a regime under which all defendants would be deprived of the opportunity to offer a defence of honest belief? In other words, if such a regime is not included in law, we would not be able to protect children from adults who would sexually exploit them, we would not send a clear message to adults regarding consequences, etc. The suggestion that we, as legislators, would not protect children, send the requisite messages or spell out what is unacceptable behaviour is a major claim and I would need some convincing as to its validity.
Reference is also made in the submission to sending a message to perpetrators. I understand and, to a considerable extent, agree with the arguments made by our guests regarding messages or signals being sent. However, this is a controversial area for law-makers. We know that sending a message or a signal to the community is an important part of making law. That is not where it ends, however, because all laws, particularly those relating to the area of criminality, involve sanctions. In addition, there are rights associated with persons who are accused but it is clear that the rights of others must be protected and vindicated by the State. While the notion of sending a signal is an important element of any law, that is not where the matter ends. I accept that our guests are not suggesting this but it cannot be the sole aspect of making laws that we should send out signals. The latter are sent out by laws of all kinds but many such laws are not observed. The sending of signals is an important social aspect of law-making but this does not, by any stretch of the imagination, reflect the whole story.
The question I would like to address is whether it is necessary to have absolutely liability to achieve the laudable objectives the RCNI is correctly seeking to achieve. For example, the submission states, "absolute liability in statutory rape is needed to discourage the targeting of children by those who would abuse them to send them a message of serious consequences". It is a big claim to state it "is needed". In other words, it is an indispensable requirement but I wonder whether that is the case and whether it is true that, as a community, we would not be able to discourage the targeting of children by those who would abuse them in circumstances where there was not absolute liability. I am not playing games with the words in a legalistic way but they need to be examined. I need convincing that, as a community, we are not able to address the targeting of children without absolute liability and a constitutional referendum to restore the regime in place prior to 2006.
Our laws must "focus our attention on the behaviour and choice of the perpetrator" and prohibit certain activities on his or her part. That is the purpose of laws. I also need convincing about the suggestion that we would not do that absent a constitutional referendum or absent absolute liability.
The submission states, "In this law, we signal that we will not tolerate a climate of blaming the victim for the purposes of an irresponsible adult eluding responsibility for his or her actions". As a politician and a parent, I would not expect the law to do anything other than signal "we will not tolerate a climate of blaming the victim for the purposes of an irresponsible adult eluding responsibility for his or her actions" but it does necessarily require a regime of absolute liability for that to be achieved. I understand and agree with the objectives the RCNI seeks to achieve but I remain to be convinced it is necessary to deprive an accused person in all circumstances of the right to adduce evidence of honest belief, not to succeed in that defence because nobody is saying bringing forward a defence means one must succeed in that defence. This is one of the misapprehensions. The suggestion is sometimes made that all somebody has to say is, "I thought she was X age". Nobody is suggesting that by a person raising this defence, that would be the end of the matter. However, is it necessary to take such a radical step to exclude the possibility of that defence ever being raised because that is what it would entail?
Ms Neary stated "The DPP has described how the law with absolute liability was used in two ways - to prosecute situations where the child felt he or she was consenting to what was evidently an exploitative sexual relationship...". I hope that will always be a criminal offence. It would be a matter for the DPP to prosecute cases where the child felt he or she was consenting to what was evidently an exploitative sexual relationship. The legislation still should provide for a regime of statutory rape below certain ages. The question is whether it needs to be underpinned by depriving in all circumstances an accused person of a defence of honest mistake.
We might as well have this debate as openly as we can because sometimes we hear each other's views across the airwaves. Ms Neary stated, "The fact that it is currently considered reasonable to put forward an argument that adults should not be held accountable for their risky and potentially harmful behaviour should in itself alert us to the urgent need for leadership." I have not come across anybody at this committee who has sought to put forward such an argument. I do not take the view that adults should not be held accountable for their risky and potentially harmful behaviour. The committee is required to give leadership on the issue, consider submissions, give advice and make a report. I do not want to be overly controversial but I wonder who the RCNI has in mind in this regard because I do not regard myself as somebody who would be included. I have not heard anybody else taking that view.
I refer to the special measures. The RCNI has a number of objectives to protect children and send a clear message and, in particular, to protect children from the potential trauma of being cross-examined, which is an extremely legitimate objective to achieve. A number of the proposals made by the Labour Party and others to the committee could address that genuine concern. I urge the RCNI not to look on that as a footnote to a special measure but as a proposal of considerable substance.
I thank the RCNI representatives for attending and for their extensive presentation. A great deal of work and thought went into it. Ms Neary referred to the need to send the message to adults about taking responsibility for engaging in any form of sexual activity, with which I agree strongly. I have stated at previous committee meetings that sexual activity is not a compulsion the State imposes on its citizens. It is an activity of choice and if one engages in it, one must take responsibility for the consequence and, therefore, I agree strongly with that message.
Ms Neary referred to teenagers who engage in peer sex. The RCNI feels that where teenagers do so, that does not conflict with the principle of absolute liability and that is of concern to the committee. Every member is keen is to maximise child protection. However, we are also keen to ensure that while protecting one group of children, we do not inadvertently criminalise another group. What is the RCNI basing its statement on? If absolute liability was introduced and a similar offence to unlawful carnal knowledge was in place for children aged under 15 and if two such children engaged in sexual activity and a complaint was made by a parent, how would they not be subject to the principle of absolute liability? Absolute liability almost seems self-explanatory. I am curious about this, because this is a conflict with which we are struggling.
Ms Neary mentioned in her presentation that the self-blaming victim may minimise the rape and, therefore, is disempowered in terms of the capacity to recognise it as such. In speaking about the challenges we face, a challenge often arises when it appears an allegation of rape has not been made, but rather it has come to someone's attention that somebody under age has engaged in sexual relations. Does Ms Neary suggest in that case that it is rape, but children may think they have consented, but have not actually done so? I am not quite sure to whom she was referring in that regard.
Ms Neary also mentioned that approximately 10% of her clients in 2007 were victimised in both childhood and adulthood. Will she define what she means by victimised? Did these victims, as children, consent to engage in sex or were they sexually assaulted? Would they have reported this at the time or is this something that was only disclosed later in adulthood? She may not have an answer to my next question, but of her clients, particularly those who mention incidences in childhood, does she have any figures on whether the perpetrators were known to the victims? We have heard consistently from other submissions that a large percentage of perpetrators are known to their victims. Therefore, the issue of age does not arise as the perpetrator knows the age of the person.
In the paragraph on research, Ms Neary mentioned that research has found that when young people label their experience as rape, although this has traumatic immediate consequences they are much less likely to be raped again. What research showed that? Was it part of the SAVI report or other research?
I join colleagues in extending a welcome to the representatives of the Rape Crisis Network and thank them for their attendance. I welcome the contribution made today, but would like clarity on some matters. In the opening paragraphs the group confirmed its continuing support for the rights aspect of the referendum proposal this committee is mandated to consider. However, today's presentation concentrates mainly on absolute and strict liability.
Am I correct in my understanding that the group wants this addressed through legislation? Later in its presentation the group mentioned special measures. Others have suggested that it would not require constitutional change and legislation might be sufficient. Does the Rape Crisis Network advocate a two-track approach to address the issue? Does it recommend a first address and then a later address of the wider elements involved in the rights referendum proposal? Does it seek immediate address of absolute liability by legislative change rather than by inclusion in a broad referendum approach? I am unclear as to the situation because some of the phraseology suggests the group's position is unclear.
Will the group elaborate and clarify how it believes these matters should be addressed? Will it expand also on the belief that the legislation would apply when the complainant is under 15 years of age? What is its position with regard to peer proximity? Where does it stand on the various age considerations that must be taken into account in this complex area and with regard to all of the likely situations that will present, which we must try to address in the course of our deliberations?
I welcome the delegation to the meeting. Much work has gone into this and previous submissions. It seems clear that all roads lead to the Director of Public Prosecutions in terms of trying to understand how he deals with the 2006 Act. The reason for the shortfall in the 2007 prosecutions, to which the delegation adverted, is something we will have to examine with the DPP. Even in last week's Fianna Fáil paper, and in the brief mention of the issues in the media over the past few months the focus seems to be on the DPP's role. We will have to get him to elaborate on those issues.
I was struck by a figure given by the St. John of God delegation in its submission. The Granada Institute, which deals with sexual offenders, did a survey of 1,000 offenders and alleged offenders and found that 95% of those offenders were known to their victims. That is an incredibly high figure. Not all of those offences would lead to prosecutions. In the experience of the Rape Crisis Network, what figure would it give with regard to the degree to which offenders are known to their victims? It was mentioned earlier today that we are beginning to form an opinion on how we would approach people or offenders in positions of authority or trust. To a great extent, they would be people who are known to their victims and would belong to that larger cohort. I am interested to hear the delegation's view on that.
Members of the delegation may now respond to the various points and questions. I thank committee members for their comments which showed they paid great attention to the presentation. Would Ms Neary like to start?
Ms Fiona Neary
The information that 95% of offenders were known to victims does not come as a surprise to us in terms of our experience with victims of sexual violence. Approximately 12% of victims of sexual violence use a service such as a rape crisis centre and they are the cohort about which we know. That group divides into categories of those who were abused as adults and those who were abused as children. As Senator Corrigan mentioned there are also those who, sadly, were sexually victimised as both children and adults.
One of the issues we want to highlight at this committee - I will come to the comments by Senator Alex White and address them - is that when we do not adequately or sufficiently name sexual violence, this leaves many children in silence, unable to name or know what has happened to them. Therefore, part of our role is to clearly name what is unacceptable behaviour. The earlier children seek help, the greater likelihood they will not be sexually victimised again as adults.
With regard to people in positions of authority, one of the things showing in our figures - this is shown in other data also - is that there is a higher level of sexual abuse of male children by authority figures. In cases of sexual abuse, male children are more likely than females to be abused by a male authority figure. In cases where there is sexual abuse of boys and girls, it is highly likely that the perpetrator will be known to the victim, either as a member of the family, of the extended family or the social group to which the family belongs. Those are the most likely situations and the statistics offered by the Minister of State, Deputy Barry Andrews, are not surprising in that regard and it is consistent with our own findings.
The importance of the mechanism of the DPP has featured very significantly in our submission. In our view, absolute liability has one unique function while we have pointed out other things to which it may contribute, along with other aspects of legislation or mechanisms in society. We believe it has one unique function which is not provided by other legislation or mechanisms which have been put forward. That unique function is the capacity of absolute legislation to further enable the prosecution of cases which involve young teenagers - teenagers under the age of 15 years. The DPP will, in the public interest, need to weigh up two matters, namely, the need for the case to proceed but also the further possible trauma to that young teenager of being cross-examined.
I will refer to the teenager as "her" because girls are in the majority although we are acutely aware that it can also be a male victim. She will then be in the position of being cross-examined as to her behaviour and actions. This is the reason we emphasise the need to keep the focus on the behaviour of the perpetrator. Our concern is that by focusing on the behaviour of children - we are talking about children of 14 and younger - we may well be giving sex offenders an opportunity to avoid being held to account for the choice they have made to have sex with somebody who is under the age of 15. This is what we identify as the unique function of absolute liability.
We are acutely aware that a law which then proceeds to criminalise somebody for which the law is not intended is not of use. This is not what we are seeking. Like many others, the Rape Crisis Network Ireland has examined closely the function of the Office of the Director of Public Prosecutions with regard to that mechanism. The Deputy outlined the case of two 15 year olds or two 14 year olds and the mechanism is used to consider whether it is in the public interest to proceed in such an instance.
Professor Finbarr McAuley explained that the mechanism for absolute liability requires a referendum. In addition, if this were combined further with a careful review process of the entire codification of sexual violence cases in Ireland - in general this is currently not as it should be - this would allow the Legislature to look at those very particular situations because we do not want this legislation to be used in that manner. I am confident this can be addressed. The quip has been that surely our prisons would be full of sexually active teenagers if that was the case. We have mechanisms to assist and even Professor McAuley is confident that we can proceed with such. I note Senator Alex White’s caution about such prescriptive and strong legislation.
On the question of whether it is our job to send a signal to sex offenders and to society, I suggest it is one of the functions of legislation. It is certainly helpful when sex offenders, potential sex offenders or someone who may be reckless about the harm his or her actions may cause, are fully alerted to the consequences of their actions. This is a very important mechanism in addressing the prevalence of sexual violence in Ireland which unfortunately continues to be of an unacceptable degree.
Deputy Alan Shatter asked whether we would propose strict liability for 15 to 17 year olds. Our understanding would be "Yes"--
No, my question was whether the Rape Crisis Network Ireland would support absolute liability for 15 to 17 year olds in circumstances where a person in authority has sexual relations with them so that they could not rely on the defence of reasonable grounds because, by and large, a person in a position of authority will know the age of the person in the first place.
Ms Fiona Neary
It certainly could be useful in such an instance. We are assuming in that instance one would wonder how someone would even attempt to put forward such an argument or defence. However, the Deputy is referring to a situation that may be particularly difficult, even for a teenager of that age and, therefore, to have the security of knowing he or she will not be put in that position in court is a great reassurance and may enable certain prosecutions to proceed. On that basis, it would be useful.
I invite other members of the delegation to comment.
Dr. Clíona Saidléar
I will fill in some pieces of information for the committee as Ms Neary explained most of it.
In answer to Senator Corrigan's question, we have some of the 2007 rape crisis statistics on the relationship between the perpetrator and the victim. We chose the statistics relating to 12 to 17 year olds and the incidents of abuse of 12 to 17 year olds, although they may be reporting as adults rather than as 17 year olds. The 2007 statistics of the rape crisis centres across Ireland show the following: 36% of perpetrators were relatives and 42.4% were other than relatives; partners and former partners made up approximately 6% of perpetrators; acquaintances and friends constituted 28.5% of perpetrators; authority figures were only 6% of perpetrators; and neighbours made up almost 10% of perpetrators.
Are the people in each of those groups known to their victims?
That was also my question.
What is the total figure for any of the groups that could be identified as being known to the person?
Dr. Clíona Saidléar
A total of 42.4% would be known to the victims but not related to them and 36% are family members.
This is close to 80%.
Dr. Clíona Saidléar
Yes.
Therefore, approximately 20% or 21% were not known to the victims.
Dr. Clíona Saidléar
Yes. They are recorded as strangers or other or unknown in our statistics.
In the case of strangers or unknown, is it the case that the person did not wish to identify them to the rape crisis centre?
Dr. Clíona Saidléar
The collection of statistics is not our primary aim; we pick up the information as we go along. It may be that we have unknown categories rather than it being an unknown person.
We are looking at more than 80%.
Dr. Clíona Saidléar
Yes. However, it should be borne in mind that when one looks at those under 12 year of age, the nature of the relationship to the perpetrator changes significantly. For example, partners and former partners appear as a category here and the numbers for neighbours, friends and acquaintances rise whereas in the under 12 year olds, the family member counts for almost 60%.
On the question as to whether we are not already focusing on the perpetrator and holding him or her to account, the question is how to define risky behaviour. No one is trying to avoid holding to account an adult who has wronged a child but rather we question the definition of risky behaviour or innocent or morally blameless or honest behaviour. When does this step over into risky behaviour for which an adult should be held accountable? This is the distinction.
The examples usually cited are the nightclub scenario and the child who has lied about his or her age or has fake identification. We go through the steps an adult might take to try to ascertain the age of a child or young person. The key in this respect is whether the adult has taken sufficient care, in approaching a young person for sexual activity, that the person is not a child. Clearly, if the adult has sex with the child, the steps taken are not sufficient. At this stage in the debate it is safe to say it is universally understood some children will lie about their age, go to nightclubs or break other laws such as those on drinking or smoking. However, it is not acceptable to rely on this as a defence. If the risk is understood by the adult who knowingly proceeds to take it, it is just that the adult should face the consequences if things go wrong.
I understand and agree with the comment that the key is whether sufficient care has been taken. The question is one of evaluating whether sufficient care has been taken. However, as to the argument that if it turns out that the person was wrong, ipso facto that person clearly did not take sufficient care, the former proposition does not lead to the latter conclusion. The questions as to what care is sufficient - we had this debate with some of the other delegates - what diligence should be required and where one should set the level are difficult and controversial. However, it is not logically correct to state that where it transpires that the young person is not an adult, this fact alone would be proof that the adult did not take sufficient care.
Ms Saidléar may be saying it would be better not to engage in the debate as to whether a person took sufficient care but instead simply have absolute liability. This sets aside the question of whether the person took sufficient care and removes it from the equation completely. The law, therefore, would take no interest in what care the person took or whether it was sufficiently rigorous and simply decide not to engage with the issue. It is not, therefore, the key but becomes irrelevant in a sense. This is what absolute liability is effectively.
What is the Rape Crisis Network's definition of absolute liability?
Ms Fiona Neary
If I have it exactly right, it is that there is no possibility of a defence of a mistake as to the age of the other party.
Ms Neary is referring to a person in authority.
Ms Fiona Neary
I am not only referring to persons in a position of authority.
We are discussing applying absolute liability in the case of a child under the age of 15 years.
Ms Fiona Neary
Yes, that is correct.
The Rape Crisis Network would have the offence of absolute liability reinstated in the case of adults who have sexual relations with a child aged under 15 years and prohibit a mistake as to age from continuing to be used as a defence.
Ms Fiona Neary
Yes.
That would require a referendum.
Ms Fiona Neary
Yes, that is our understanding.
We thank our three guests for attending the meeting. We have had an interesting question and answer session which will have provoked some new ideas.
The joint committee adjourned at 6.05 p.m. until 5 p.m. on Wednesday, 8 October 2008.