Termination Arising From Rape: Mr. Tom O'Malley, NUI Galway; Dublin Rape Crisis Centre; and Dr. Maeve Eogan, Rotunda Hospital

We are now in public session. I welcome members and those who may be viewing at home back to this meeting. On the behalf of the committee I extend a warm welcome to our witnesses for the second session of this afternoon's meeting in which we will address termination arising from rape. I welcome Mr. Tom O'Malley, SC, senior lecturer in law, NUI Galway; Ms Noeline Blackwell, chief executive officer, and Ms Angela McCarthy, head of clinical services, Dublin Rape Crisis Centre; and Dr. Maeve Eogan, consultant obstetrician and gynaecologist, Rotunda Hospital. I have already read the statement on the Defamation Act 2009 and on privilege. Are the witnesses all aware of the implications of this? I can read it again if they need me to.

I now call on Dr. Eogan to make her presentation.

Dr. Maeve Eogan

I thank the Chairman and the committee for inviting me to speak today. I am a consultant obstetrician and gynaecologist at the Rotunda Hospital but have been invited before this committee in my capacity as medical director of the hospital's sexual assault treatment unit, SATU, as well as the national sexual assault treatment unit. As we know, sexual violence occurs in all cultures and countries, with a range of epidemiological studies recording a far higher prevalence than previously thought. There is no "typical victim"; there is no "typical scenario". In the Irish context, as summarised in the Sexual Abuse and Violence in Ireland, SAVI, report, of which there has been much discussion in recent weeks, more than four in ten or 42% of women have reported some form of sexual abuse or assault in their lifetime. The most serious form of abuse, penetrative abuse, was experienced by 10% of women.

We know that disclosure of sexual violence enables the patient to get access to the medical and psychological care that they need, as well as facilitating commencement of a judicial investigation if the person chooses to engage with the criminal justice system. Both national and international data, however, highlight that for a broad range of reasons including self-blame, shame, fear of judgment and lack of information, many people who experience sexual violence never tell anyone about it. Almost half of those who disclosed a history of sexual abuse or assault in the SAVI survey, for example, had never previously disclosed it to anyone. Notwithstanding that, if someone is going to disclose sexual violence, it is very important to facilitate them to do so as soon as possible after the incident. Doing so enables appropriate provision of care, as well as the collection of relevant forensic evidence, including DNA evidence. It is hoped that provision of early responsive care may reduce the short-term and long-term physical and psychological effects of sexual violence.

To respond to this need, this country has six sexual assault treatment units, SATUs, to provide care to men and women over the age of 14 years who disclose sexual violence. These are located in Dublin, Cork, Waterford, Mullingar, Galway and Letterkenny and they aim to provide responsive care 24 hours a day, seven days a week. In addition there is a service in Limerick which provides out-of-hours care only. Each SATU is staffed by clinical nurse and midwife specialists and doctors trained in sexual assault forensic examination. Since 2009, we have collated national data for key service activities within the SATU. In 2016 more than 700 men and women attended SATU services.

SATU staff work collaboratively with allied agencies, including An Garda Síochána, Forensic Science Ireland, Rape Crisis Centres and Rape Crisis Network Ireland, paediatric forensic medical services and the Office of the Director of Public Prosecutions who together form the sexual assault response services. This group has developed national guidelines and aims to provide responsive patient care as espoused by our mission, vision and working philosophy.

As with my presentation to the Citizens' Assembly earlier in 2017, I am not presenting anonymised cases to assist deliberation and discussion. While any cases we discuss would be anonymous to us, a survivor of sexual violence may recognise themselves in the scenario and in that context they may feel re-victimised. For this reason I offer a fact-based overview and I will address questions.

When a patient discloses a recent incident of sexual violence and wishes to receive care in this regard, they have three options, which are explained to the patient in detail, and informed consent is obtained. Option number one allows access to prompt and thorough investigation of the incident and is most frequently chosen. This involves the patient reporting the incident to An Garda Síochána, who brings them to a SATU. The patient receives comprehensive medical care, including preventative treatment for infectious diseases and emergency contraception, psychological and forensic care from the allied rape crisis centre. Injuries are documented and treated and appropriate intimate and non-intimate samples are taken.

If the person chooses not to engage with An Garda Síochána and not to report the incident, he or she can attend the SATU to avail of a health check. In that context the person can still receive medical care, including emergency contraception and infectious disease prophylaxis. He or she can also receive psychological care, but without reporting the incident to An Garda Síochána. If the person chooses this option and subsequently changes their mind, the opportunity to take time-sensitive forensic samples may have passed, which could compromise potential prosecution. Because of Children First guidelines this option is only available to those persons over the age of 18. Because the opportunity to take forensic samples may be lost when a person chooses to not report, in 2016 we introduced the option of storage of evidence. Again, this is for patients over 18 years of age who are undecided whether or not to report to An Garda Síochána. They receive a health check and medical in the SATU, forensic samples are taken and stored within the SATU for a period of up to one year. With this option patients will also receive emergency contraception.

It is clear from this summary of care options that regardless of which option the patient chooses in terms of reporting the incident, she will be offered emergency contraception, which is successful in preventing pregnancy in the majority of patients if provided within the appropriate timeframe. I have included a table in my written statement that highlights the efficacy of the available contraceptives with up to 99% of pregnancies being prevented when emergency contraception is given in a timely fashion.

All patients who attend SATUs are then offered a series of follow-up appointments, to provide ongoing support and to undertake sexually transmitted diseases, STI, screening, pregnancy testing and to meet any other needs as required. All of the women will have been offered emergency contraception and it is thus rare that we confirm a pregnancy at a follow-up visit, however up to one third of our patients do not attend for these reviews. The follow-up data, including on pregnancy, on some who attend SATU services is incomplete.

While pregnancy after rape is infrequently encountered in those who attend SATU services, the extrapolated rape-related pregnancy rate is 5%. This estimate results from a three-year survey of over 4,000 women regarding the prevalence and incidence of rape and related physical and mental health outcomes. This study was published more than 20 years ago, but in broad terms the figure is consistent with recent data from Rape Crisis Network Ireland, which was presented at the Citizens' Assembly, and also consistent with data that Ms Noeline Blackwell will present today.

An individual’s pregnancy risk will, of course, be influenced by the time in the menstrual cycle at which the incident occurred as well as other variables. While it is reassuring that few pregnancies occur in the population who attend SATU services for care, women do become pregnant after sexual violence either because they did not disclose the incident and thus did not receive emergency contraception or because they received emergency contraception and it failed. Studies have identified that women who become pregnant after sexual violence may only present after the first trimester of pregnancy, during the second trimester. This limits options in terms of decision making with regard to continuing the pregnancy.

In 2015, 5% of women attending an Irish rape crisis centre reported that they became pregnant as a result of rape. The majority went on to give birth and parent but other outcomes included miscarriage, stillbirth, adoption and fostering and termination of pregnancy. As the committee is aware, termination of pregnancy for a woman who is pregnant as a result of rape is currently only available in this country if there is a substantial risk to her life, including risk of suicide, which can only be averted by termination of pregnancy. Under-disclosure of sexual violence, however, is common so it is very likely that women who have become pregnant as a result of sexual violence in the State are represented in the population who travel for termination of pregnancy in another jurisdiction or in the population who access Mifepristone or Misoprostal online.

It must also be emphasised that it would not be appropriate to mandate that these women would be obliged to report the details and circumstances of this incident to An Garda Síochána or other regulatory third party if termination became available in this jurisdiction, prior to being approved for termination of pregnancy.

Finally, it is vital to remember that even in the context of intimate examination by trained personnel, there is no physical finding that conclusively demonstrates that unwanted sexual contact has occurred. Published and peer-reviewed literature - of which there is much - shows that the presence and pattern of injuries sustained during a sexual assault can show considerable variation ranging from a complete absence of injuries, which is most frequently seen, to fatal injuries, which thankfully is very rare. There is a considerable evidence base confirming that genital injury is not an inevitable consequence of sexual assault and that lack of genital injury does not imply consent by the victim and does not imply lack of penetration by the assailant. Furthermore, the belief that absence of the hymen confirms that there has been penetration of the vagina is incorrect. Equally false is the suggestion that a normal or intact hymen means that penetration has not occurred. In support of this, for example, one paper reviewed examination findings in a group of pregnant adolescents and identified that despite definitive evidence of sexual contact having occurred - all these adolescents were pregnant - only 2 of 36 adolescents had genital changes that were diagnostic of penetrating trauma. From the physical perspective, therefore, there is no conclusive test that women who are pregnant after rape could or should be subjected to.

In summary, holistic, patient-focused services for women who have experienced sexual crime mean that pregnancy as a result of rape is infrequently encountered by those of us who work in SATU services. Therefore, in addition to the other health, forensic and societal benefits of reporting sexual crime, in terms of pregnancy prevention it is imperative that people are encouraged and enabled to disclose acutely in order that they can receive appropriate care including emergency contraception, which works very well.

With regard to access to termination of pregnancy on the grounds that the pregnancy was conceived through sexual violence, it is important to acknowledge that very many women do not wish to report that rape has occurred, and should not be mandated to do so. Furthermore, even if disclosure does occur I must reiterate the absence and inappropriateness of any single conclusive test which could be used to either confirm or refute the disclosure.

I thank Dr. Eogan. I now call on Ms Blackwell to make her presentation.

Ms Noeline Blackwell

I thank the Chairman for the invitation to present to the committee. I am the chief executive of the Dublin Rape Crisis Centre and I am joined today by my colleague Ms Angela McCarthy who is our head of clinical services.

A slightly longer paper of our presentation was submitted to the committee and I will now give an edited version of that - a readers' digest version. Our purpose is to give members evidence as based on the experience of our personnel and the analysis of our own data on the impact of pregnancy where it happens as a result of rape of women.

Our data comes from the 24-hour helpline that we run from the Dublin Rape Crisis Centre and from clients that we see face to face.

We support those attending Dr. Eogan's sexual assault treatment unit. We also accompany people to police stations and court.

Over the last number of years, approximately 80% of callers to the national 24-hour helpline were women. Callers to the helpline may not disclose their age at all but of the approximately 12,400 calls we got in 2016 whose age was known, 40% were women under 50 and 44% were women under 60. In terms of people coming directly to our doors, about 90% of those who attended for face-to-face therapy were women, and 80% of the 500 we saw were women under 50 while 89% were under 60.

While rape is about abuse of power, and violence, it does not always require force. Many rapes do involve force but many also happen when a person feels compelled to have non-consensual sex through external or societal pressures. Where sexual intercourse happens without consent, it is rape. Our therapists and helpline counsellors bear witness to the trauma, hurt and harm of rape every day. The psychological impact of rape can include self-blame, depression, post-traumatic stress disorder, flashbacks, sleep or eating disorders, distrust of others and feelings of personal powerlessness. Women may experience none, some or all of those at different times. Those impacts are not signs of illness, deficiency or weakness in a woman, nor are they characteristics of a particular woman, they are responses to traumatic events and trauma is real. In the experience of our personnel, the trauma of rape is exacerbated for those who become pregnant as a result of the rape.

I will say a little about how women present to us generally. Dr. Eogan has said from her perspective, and we can say from our experience, there is no such thing as a "normal" response to rape. Rape impacts on everyone differently depending not just on the circumstances of the rape but on the person themselves. The immediate aftermath of a rape can vary. It can be a time of overwhelming turmoil and confusion where a victim or survivor feels extreme and conflicting emotions. Some people present as numb, quiet and reserved. Others will respond quite differently being distraught, anxious, or hostile. The effects of the trauma can be short term or they can last long after the rape.

I will not speak about the experience of our volunteers in the sexual assault treatment unit because Dr. Eogan has covered that ground but there is some discussion of how our volunteer counsellors work with women who attend there. On the national 24-hour helpline, we aim to hold a confidential non-judgmental space for callers where they are empowered to explore their feelings, consider how the rape has impacted on them and make their own decisions about what to do and how to proceed. We seek to engage the caller and establish whether they are safe, have support or are in need of medical care.

Raising that issue of medical attention can prompt mixed responses. The possibility of having contracted a sexually transmitted disease or getting pregnant is now something else the woman must consider. A caller may ask questions related to a possible pregnancy. These may include questions about termination of a pregnancy. In those cases, callers to our service are referred on to a service that would be better placed to answer questions and provide information such as a free text number or the Positive Options website. Calls that relate to pregnancy are not the only ones we refer on. We also make referrals to other rape crisis centres, domestic violence support agencies, social workers, the Garda, other helplines and the like. It is important that not only do callers have the correct information but that they understand we are there to support them irrespective of the outcome of their decision about pregnancy. Such calls tend to finish quite quickly because a pregnancy and the decisions around it are uppermost in the woman's mind.

In terms of face-to-face therapy, clients present with a blend of issues. Memories of the rape can evoke feelings of shame or betrayal. There can be terror of the physical hurt, the fear of a violent threat and the possibility of a pregnancy. The intensity of their feelings can often overwhelm people as they embark on their therapeutic journey. Some clients will even have difficulty acknowledging the reality of their rape. Some may only reveal that the rape resulted in pregnancy weeks, months or years later. A therapist may never hear about the pregnancy at all. While we note information on those who reveal to us that they have become pregnant we will often only hear about it as a historical event. The scenarios that we hear about include the following: a client has had a baby as a result of a recent rape. That can bring conflicting emotions about an innocent child that is born out of aggression and there can be a loving and-or loathing of the child; a client has had a miscarriage and may have a sense of relief that there is not the added dilemma of being pregnant but there may be a sense of loss of a baby; a client may present as being pregnant and unsure what she is going to do. The pregnancy presents a double crisis - on top of the rape and trauma they also face the additional crisis of pregnancy and a decision in relation to that. They have to work through the practical, financial and emotional difficulties in proceeding with an unplanned pregnancy or having an abortion. The client will have to assess that in terms of all existing relationships within her family and her community; and, a client may present as having had an abortion. She may feel relief that there is not the added dilemma of being pregnant. Some feel a sense of guilt and sadness at having terminated the pregnancy. Others feel stigma, shame and isolation. The secrecy surrounding the abortion presents a burden for some. Some will feel anger that they could not have the abortion procedure in Ireland, travel having made the whole process expensive, complicated and traumatic; a client may have had a baby as a result of a historic rape.

In 2016, 11 women disclosed pregnancies as a result of rape to the Dublin Rape Crisis Centre. We noted the outcomes for those 11 women. Four had become pregnant and were parenting; three had terminations; one had miscarried; one had a child adopted; one had a child fostered and in one case the outcome was unknown. Those figures do not indicate a victim or survivor's choice, but merely the ultimate outcome. The figures may relate to recent or historic pregnancies.

There is no reliable Irish information available about the prevalence of pregnancy as a result of rape because there is such massive under-reporting of rape. Dr. Eogan referred to the 2002 SAVI report, which found that 42% of women reporting abuse had never told anyone at all. Only 8% of women reported their experience of sexual violence to the Garda; 6% disclosed to medical professionals and 14% of women in that survey reported to counsellors. Other studies give comparable results.

In 2014 an EU survey undertaken by the European Union Agency for Fundamental Rights, FRA, found that about 2% of women aged between 18 and 74 experienced sexual violence in the previous 12 months. From our own evidence, most rape and serious sexual violence is perpetrated by someone known to the victim. Our statistics for 2016 identified that just under 17% of adult rape and sexual assault was perpetrated by the client's spouse or partner, 2% by other family members and almost 46% by other known persons. That includes friends, recent dates, work mates and the like. About 50% of childhood sexual abuse revealed to us by adults was perpetrated by a family member.

We have no reliable national data on the prevalence of pregnancy as a result of rape. However, from our own statistics over 11 years, and also using the statistics from the Rape Crisis Network of Ireland, RCNI, which collects data from a number of other smaller rape crisis centres, it seems that approximately 4% of the total number of female victims or survivors who presented to rape crisis centres report pregnancies as a result of rape. That is very near the 5% Dr. Eogan spoke about in other surveys. Of that 4%, a little over one third of our clients went on to parent while a little less than one third terminated their pregnancy. The RCNI figures show almost half went on to parent, while just under 20% terminated their pregnancy.

The final point relates to concerns about women's health if rape must be reported to access abortion, the so-called rape exception. If the committee is considering special provisions for those who have suffered rape to access termination, then it seems inevitable that the pregnant rape victim or survivor will have to say that a rape occurred.

Many of those who contact us are not ready to report to police for a long time, if ever. It is noteworthy that the Garda now provides storage of forensic evidence at the sexual assault treatment unit for up to a year, recognising the realities of the investigation of this type of crime. Clients are sometimes fearful of the reality that once they report to the Garda, gardaí must commence the investigation of a crime, thus notifying the alleged perpetrator of the complaint even if the victim is not ready. They may also initially have concerns about their own blame for the events which makes them reluctant to speak. Clients may not be ready to report to a doctor, social worker or the like. They may not want to talk to someone they fear will judge them and who must judge them to some extent. In the context of the long journey our clients and callers must take to re-build their self-esteem and manage their self-doubt after the violence of rape, many would be set back if questions were raised about their credibility.

Requiring a woman to share such a traumatising experience about her rape and subsequent pregnancy has the potential to not only re-traumatise, re-trigger and re-victimise her, it also leaves her in a situation where she has to convince someone that her story justifies access to support. It disempowers the person who has suffered the rape while empowering the person giving permission to access a procedure or service. Once more, the consent of the victim or survivor is seen as irrelevant. I am happy to answer any questions that the committee may have.

We will now have a presentation from Mr. Tom O'Malley, BL.

Mr. Tom O'Malley

The purpose of this presentation is to identify or explore some legal issues that may arise in the event that it is seriously being considered to have rape as a ground on which abortion or a termination of pregnancy might be granted. I am not really concerned with or in a position to address the more normative or policy question as to whether rape should in fact be a ground for abortion. My purpose is simply to explore some of the legal issues that would arise if that were seriously being considered. As such, there are two broad questions to be addressed. First, one must address what exactly is meant by "rape" in this context. In other words, what range of offences might justify granting a termination? The second and perhaps more difficult question is what kind or level of proof might be required where someone seeks an abortion on the grounds that she had become pregnant as the result of a criminal offence.

As to the range of offences, there are obviously now a very large number of sexual offences known to Irish law, most of which are defined in a gender-neutral way. For practical purposes here, we are only concerned with those offences involving heterosexual intercourse, as they are clearly the only ones that might result in pregnancy. We are not just talking about rape, which I will explain in a moment, we are also talking about sexual intercourse with an under age female, namely someone under the age of 17; sexual intercourse between a person in authority and a female aged between 17 and 18 years; sexual intercourse with a female who has a mental disability or learning difficulty; and, finally, incest. All of those offences may be quite familiar in legal terms to members of the committee as most of them were redefined or in some cases created by the Criminal Law (Sexual Offences) Act passed by the Oireachtas earlier this year.

I start with rape itself, which is probably the most relevant offence for present purposes. It is important to mention the definition of rape, which has three components. First, sexual intercourse must take place. The defendant must have intentionally had sexual intercourse with the complainant and it must also be proved that the complainant did not at the time consent. It must also be proved that the defendant knew that she was not consenting or was reckless in that regard. As such, two of the key elements of rape are the absence of consent on the part of the complainant and knowledge on the part of the defendant that she was not, in fact, consenting.

As I have set out in a bit more detail in the paper I submitted to the committee, the law on consent changed as a result of the 2017 Act which included, for the first time, a statutory definition of consent in Irish law as far as sexual offences are concerned. It is now the law that a person consents to a sexual act only if he or she freely and voluntarily agrees to that act. The relevant section then sets out a range of circumstances in which, as a matter of law, a person will be held not to have consented. It is very important also that the mental element, as we call it, or culpability be considered because a man will not be guilty of rape unless the prosecution proves beyond a reasonable doubt that he either knew the woman was not consenting or was reckless in that regard. It is very often said that a man has a defence if he can show that he thought the woman was consenting but that is not, in fact, the law. The defendant does not have to prove anything. It is always up to the prosecution to prove all of the elements of the offence, including the absence of belief on his part. They are the essential elements of rape as it is currently defined. It is also important to note that since 1990 there has been no ambiguity but that rape can occur within marriage. A husband may be convicted of raping his wife. The definition is the same and the maximum sentence, which is life imprisonment, is also the same.

The law relating to sexual acts with a person under the age of 17 years was changed somewhat earlier this year. In the old days, we used to call those offences "unlawful carnal knowledge", but as a result of a Supreme Court decision in 2006, which struck down the old law, we have had to amend the law on a number of occasions since. In essence, it works as follows. There are two separate offences involved which are differentiated according to the age of the young person. It is an offence punishable with up to life imprisonment to have sexual intercourse, among other acts, with a person under the age of 15 years. That is the more serious of the offences. Consent on the part of the young person provides no defence whatsoever to the male or perpetrator in question, but a defendant has a defence if he can prove that he was reasonably mistaken as to the age of the young person. If he reasonably thought she was over 15, he is not guilty of that particular offence.

Section 17 of the 2017 Act creates a separate offence of sexual intercourse with a person, or female in the context of the committee's deliberations, under the age of 17 years. That is regarded as a less serious offence in the sense that the maximum sentence varies depending on a number of circumstances. It is not life imprisonment as it is in the case of the other offence. Again, the accused person has a defence if he can show that he thought on reasonable grounds the young woman was over 17 years. However, the question of consent then arises and the situation becomes a little more complicated as a result of changes made to the legislation earlier this year. That might be relevant to the present discussion. At one time, consent was simply not a defence in those circumstances. If the young person was under 17, consent was no defence. However, we introduced a significant change to that earlier this year. Consent on the part of the young person can now be a defence to the male provided he was either younger than the female in question or he is less than two years older than her. To give a practical example, if the girl is 16 years of age and consents to the intercourse and the male in question was 15, 16 or 17, no offence has been committed. On the other hand, if he was 19 years of age, an offence has been committed irrespective of whether she consented or not because he is more than two years older than her. It is important to be aware of that.

The next sexual offence to take into account is a completely new offence created by the 2017 Act, namely a sexual act with a person who is between 17 and 18 years of age committed by a person in authority. We never had such an offence in Ireland before. In effect, it raises the age of consent to 18 years but only in circumstances where the person who has intercourse with the young person is, in some sense, in authority over him or her as the case may be. A "person in authority" is defined in the Act and includes, for example, a teacher, a guardian, an employer, a parent, obviously, or a close relative.

The next offence the committee needs to consider is another one which was completely revamped and redefined in the 2017 Act. This is a sexual act with a protected person, namely a person of any age who has a mental illness or mental disability.

It has long been the law, only that it was amended somewhat this year, that it should be a criminal offence for a man to have sexual intercourse with a woman who has a mental disability of a certain kind. Now this is defined in a gender-neutral way. We now define a protected person as someone who by reason of mental or intellectual disability or mental illness is incapable of understanding the nature and the reasonably foreseeable consequences of the act or incapable of evaluating the relevant information. Again, this offence carries a maximum sentence of life imprisonment.

Incest, of course, is still an offence in this country. Irish law is special in this regard. Ireland was not historically unique in this regard, but incest in this country is committed not just when one of the parties is a minor, but also when people who are, let us say, brother and sister, mother and son, or father and daughter, have heterosexual intercourse, irrespective of age. This provides a role in preventing child abuse if one of the parties is under age, but incest can equally be committed, for example, by two siblings who are well into adulthood and who consent to the act in question and even in circumstances where there would not be any danger of pregnancy to begin with. Again, this is the kind of thing the committee would have to take into account. This is the range of sexual offences in this country, so one of the questions the committee should ask for present purposes is, which of these offences, if any, might provide on policy grounds a justification for allowing termination of pregnancy if one of them were committed.

Now I wish to consider the issues of proof that might arise. There are two questions in this regard. The first is the one I have just asked, namely, what range of offences should be taken into account, to what extent and so forth. Next is the question of proof. If a woman comes forward seeking a termination on the grounds that one of these offences has been committed, what kind of proof should be required? This question is linked into the broader policy on abortion that might be adopted by this committee or eventually by the Oireachtas generally. In other words, if it were ultimately decided that abortion should be available on a wide variety of grounds or freely available for the first three months or whatever it might be, what I am talking about would probably be irrelevant in the sense that the reason for seeking the abortion simply would not arise. However, what I am talking about would become relevant if the ultimate decision taken by the Oireachtas was to the effect that unborn life should still be protected but that abortion should be available on a range of grounds, including rape and sexual offences. If the latter approach were taken, issues of proof would arise. It is only on the assumption that this is a possibility that I raise this issue at all.

One could see the various possibilities regarding proof as being arranged along a spectrum. At one end of the spectrum is, let us say, a position whereby nothing short of a criminal conviction by a court would suffice to prove that the rape has been committed. At the other end of the spectrum, a simple assertion or claim by the woman in question that she has been raped or subject to another offence could suffice. The former is out, to be quite honest, simply because, given the length of time it takes to process a case through the system, apart altogether from what my two colleagues have said, with which I absolutely agree, that is, that many people do not report cases for quite a long time anyway, it would not even arise. However, even if the woman were to report the case at the very first opportunity, there is no way the criminal case would be concluded within nine months, which is the very maximum period we are talking about.

At the other end of the spectrum, there is the possibility of simply asking why we do not simply believe what the person says. This is a perfectly legitimate approach as well. I can see many circumstances in which it might not be problematic. In a so-called stranger rape case where the woman has been not just raped but also seriously assaulted in other ways and she goes to the Garda immediately, perhaps to the sexual assault unit, and to a rape crisis centre, no one would seriously question whether she is the victim of a rape. Therefore, I do not see any difficulty in accepting such an assertion backed up by such evidence.

However, if this were to become an issue at all, the kind of scenario on which the committee would have to concentrate would be one in which, let us say, a woman comes forward, perhaps two or three months, perhaps more, into a pregnancy and claims at that point that she has been raped or is the victim of another offence. Would proof be required at that point and, if so, what kind of proof? Of course, the fact that she might come forward at that point does not mean that she is to be disbelieved. On the contrary, as we know from experience, many people who are the subject of rape or child abuse choose not to report for all the kinds of reasons Ms Blackwell has mentioned. However, if they discover subsequently that they are pregnant, at that point they may come forward and say they have been raped. At that point there may not be any forensic evidence that would be of any use for the purpose of proving the rape has been committed. Therefore, the question would arise of what kind of proof would be required, given that a criminal trial is out.

Some kind of inquiry or body could be set up, on either an ad hoc or a permanent basis, to assess such claims. Again, questions would arise. Would it be necessary to identify the perpetrator? Would the perpetrator have a right to be heard? Suppose, for example, a woman says she has been raped by her husband or partner. Would he have the right to come forward and say it was not rape and that he objects to the abortion taking place? Would that end up in court? Of course, it would in those circumstances. These are the kinds of issues the committee might need to consider.

I have gone over time. I think I have already dealt with the sexual offences other than rape that might become an issue. One of the questions the committee must ask is if abortion were allowed to take place in respect of these offences, would it only be allowed where a criminal offence has taken place? A criminal offence might not always have taken place in the case of sexual intercourse with a person under the age of 17 because, as I said, sometimes that is criminal and sometimes it is not, depending on the age of the male involved. For example, would the right to a termination be granted to everyone under the age of 17 who becomes pregnant or would it be confined to cases in which a criminal offence has been committed?

I do not wish to give the impression from what I have said so far that there would be insuperable difficulties in proving rape where some time had elapsed. I have been examining what happens in other countries in this regard, including many European countries. Various countries, parts of the United States and so on provide for access to abortion on the grounds of rape. It is not an issue in many of these jurisdictions because many of them also provide for a general right to termination within the first few months of pregnancy in any event. Elsewhere there seems to be general acceptance that requiring a criminal conviction would be largely impossible because of time constraints, so some jurisdictions have provisions to the effect that abortion is permitted where there are strong grounds for believing the pregnancy is the result of a criminal act. In other words, they do not require absolute proof but they normally require evidence that the person has, for example, reported the matter to the police or a doctor or whatever else.

They are the main issues I wished to raise. When I addressed the Citizens' Assembly, as my colleagues did, I had been asked to say something about the sentencing of serious sex offences, the reason being that some people had quite legitimately asked, if we had a different sentencing system, whether that might reduce the incidence of sexual offences. The answer, to be honest, is no. I have included at the end of my written submission an appendix setting out the observations I made at the Citizens' Assembly.

I thank Mr. O'Malley and the other witnesses for their presentations. Deputy Browne has time remaining from the first session if he wishes to use it.

Would it be fair to say that if legislation were provided to allow for terminations in the event of unlawful intercourse resulting in a pregnancy, each of the five instances Mr. O'Malley has listed would have to be addressed?

Outside legal technicalities, many people might consider that the first three come under the generic term "rape". Is it the case that we would have to address all five?

Mr. Tom O'Malley

Yes, I think one would. The United Nations website, with which members may be familiar, sets out the various grounds for which abortion is available for every member state. The heading it has for this is rape or incest. It is not as simple as that by any means because each of those offences is defined in a different way. As the Deputy rightly says, those drafting the legislation would have to look at each of those offences and set out what circumstances or factors might be taken into account if a termination was to be granted in respect of any of them.

Is it fair to say that at the moment, in each of those circumstances, as they are criminal offences, the standard of proof is beyond reasonable doubt?

Mr. Tom O'Malley


If a woman had to prove a criminal offence through the courts beyond reasonable doubt, it would have no effectiveness, due to the delay it would take in getting to that point.

Mr. Tom O'Malley

Yes. It would be the Director of Public Prosecutions who is taking the case who would have to satisfy the court beyond reasonable doubt. In all those cases, unless the complainant, the victim, is there to give evidence - because she will be the principal prosecution witness and her role is crucial in the trial process - I do not think it is possible to secure a conviction.

To legislate for these instances, in order to be of any practical use, one would have to address the standard of proof. It would have to be something substantially lower.

Mr. Tom O'Malley

Yes, I think so. That is if one is talking about some system other than a criminal trial.

That is fine for the moment. I thank Mr. O'Malley.

Deputy Fitzpatrick has six minutes altogether.

I welcome the witnesses. I will address my questions to Ms Noeline Blackwell. I do not think there is any doubt in this room about the seriousness of rape, the trauma that it has on women, and it is vital that services are improved and that they see proper justice.

How does Ms Blackwell feel about people who are conceived in rape? I am thinking of Pam Stenzel and Ryan Bomberger. Ryan's story is well known because he is a human rights campaigner who has publicly thanked his biological mother for giving him a chance in life. I was struck by something he said, which is that we are all wanted by somebody. Similarly, Pam Stenzel recognised that her birth mother gave her life instead of aborting her. People like Ryan and Pam say they feel like second-class citizens when the question of abortion on grounds of rape arises, when they are made to feel as though there is no value on their lives before birth because of a crime committed by somebody else. How are they supposed to feel that they matter the same as others after birth? What would Ms Blackwell say to Ryan and Pam if they were in this room today? How would she reassure them that their lives were as valuable as anyone else's if the eighth amendment was removed, and abortion was allowed on grounds of rape?

Ms Noeline Blackwell

To be clear, I am speaking here on behalf of the Dublin Rape Crisis Centre. What we provide is a totally confidential non-judgmental service. We make no judgment. We aim to help people to run their own lives and worth through whatever trauma they have. In the case of everybody who presents to us, we give them the dignity of the human being that they are when they come in to us. We do not make any judgment. Even if somebody comes to us and chooses a certain course of action, whatever that is, because they have become pregnant as a result of rape, we assure them that we are there to help them deal with the trauma of rape, which is what we are expert in.

My question is, from Ms Blackwell's experience, how does she feel about a person who is conceived in rape? I am only asking a question.

Ms Noeline Blackwell

I may not be explaining what we do properly. Our job is to support everybody who walks in our door who has suffered trauma as a result of rape or whose family member or whatever has suffered trauma. We are there to support all of those people to work out their own lives. We are not there to make any judgments on them. We will not and do not make judgments.

I am asking Ms Blackwell a question because she is a senior person in the Rape Crisis Centre. There are people listening to these proceedings who would like to hear this from a professional such as herself. If the two people I mentioned were in the room, how would Ms Blackwell think they would feel? Their biological mothers accepted them and they were born and had good lives. Can Ms Blackwell give me any kind of a comment?

I think that the witness has indicated that she is not able to answer about her own opinion.

Ms Noeline Blackwell

For everybody who might be listening or who might read the transcript, the point we really want to get across is that this is what we do in the Rape Crisis Centre: we are there to support every single person who comes in, who has been traumatised, affected or impacted by rape or sexual violence. That is our function. I cannot put it any further for the Deputy.

My problem is that I am limited in the kinds of questions I can ask. I have a question and I cannot get an answer. The Rape Crisis Centre sees many people come in, but women come into the centre who have been raped. They are probably asking for advice. It is very important. As a person involved in the Rape Crisis Centre, they will listen to Ms Blackwell and they will ask her questions. This is important. I need to know what Ms Blackwell's beliefs are so that I can see what kind of reception they might get from her.

Ms Noeline Blackwell

To be clear, we are absolutely non-judgmental. We are there for every single person whatever their beliefs; they come in to us and we are there to provide a professional service and support to them, regardless of their beliefs. Our belief is only that people can be helped, they can be supported and they can cope with the impact of rape and sexual violence.

What I am trying to get through to here is that there are many others like Ryan and Pam. I want to see if Ms Blackwell comes across anyone in that field. I spoke earlier about an abortion. The child, to me, has no say whatever if it is aborted. That means the mother is fine. What kind of reception do people get when they present themselves who have been conceived as a result of rape? I am just asking a question. I cannot seem to get any answers from anyone on this.

Do any of the witnesses have any comment to make with regard to the Deputy's question?

Ms Angela McCarthy

I will answer because I am the head of clinical services. The Deputy might imagine that every day of the week we meet people who might be the children of rapists. That would rarely happen. I do not know if it has ever happened. If they did come through the door, they would be as welcome as anyone else. The Deputy might imagine that we give advice to people every day of the week in relation to abortion. As the statistics in our longer submission show, we made two referrals in 2016 to the Crisis Pregnancy Agency. I do not know what the Deputy's picture is of the Rape Crisis Centre. Basically, we provide counselling to victims of sexual violence. That is the bottom line of what we do. If someone rings our helpline and says they think that they might be pregnant or they wish to get advice around pregnancy issues, we do not deal with that ourselves - we, properly, refer them to the Crisis Pregnancy Agency. That is our role.

It seems to me the child is not the victim here at the moment. It is great to hear stories such as those of Ryan and Pam. Did any children ever come into the Rape Crisis Centre whose mother had decided not to abort them, to give their side of the story?

I think to be fair to Ms McCarthy, she has answered that question. If I understand her correctly, from what she is saying, it is a rare occurrence that someone would present to their services in such circumstances.

Ms Angela McCarthy

It has never happened. If somebody presented, and we had some reason to speak with that person, we would welcome that person and listen as we would listen to anybody else's story. We do not have any bias against people of any kind.

I thank the witnesses for their presentations. I think statistics from surveys and such have shown that most people in Ireland feel that a woman who has been raped should have the option of ending her pregnancy. I think that statement would be true but from the evidence from the witnesses today, it is much more complex than simply stating it. Mr. Tom O'Malley's evidence in particular indicates the legal complexities and the other witnesses addressed the difficulties of actually proving criminality. I ask Dr. Eogan to expand on what she said about there being no conclusive test. Maybe I will ask all the questions because I only have a couple-----

Dr. Maeve Eogan

Does the Deputy want to ask all the questions?

I will ask all the questions if that is okay. I want to ask any witnesses who want to answer about whether they believe we need to decriminalise abortion so that the person who is a victim of crime, who has been raped or sexually assaulted, does not also have to become a criminal if travelling for abortion or taking an abortion pill. Do the witnesses have a view on that? Somebody has asked about the issue of decriminalisation at nearly all of our meetings. How does the experience for women who have to go to England and are effectively described as criminals affect people?

Some statistics were given by the Rape Crisis Network to the Citizens' Assembly. To respond to Deputy Fitzpatrick, I think the percentage who went on and completed their pregnancies was as high as those who had a termination. I am not sure if it is the same in the Dublin Rape Crisis Centre. In effect, what we are discussing here is options rather than forced terminations. I know a judgmental question was asked of the witnesses there but it is important to state that we are not saying the witnesses would force anyone to have a termination.

Will Mr. O'Malley elaborate on other countries? He was saying that in countries where there is not a general right to access early termination, in some cases, one has to prove it which does not work because of the time the court case takes. Sometimes, there is an acceptance of the woman's word. Does Mr. O'Malley have anything further to say on that?

Dr. Maeve Eogan

On there being no conclusive test that confirms or refutes that unwanted sexual contact has occurred, when somebody comes to a sexual assault treatment unit, SATU, we gather a number of pieces of evidence. Firstly would be the patient's disclosure and history of what happened. There may be corroborative evidence such as from CCTV. There may be forensic evidence from the samples that we take and the tests that we do that confirms that sexual intercourse has occurred. However, there is not a specific test that can be done that absolutely confirms that the sexual intercourse was unwanted. Anecdotally, if one asks people, they will say that it is surely very clear from examination whether somebody has been raped. As Ms Blackwell says, the rape does not always involve physical force. Even if it does involve physical force, because the body is designed to have sexual intercourse, that physical force may not actually cause an injury.

That study that looked at pregnant adolescents is really important. These people were absolutely and definitively pregnant. There were 36 of them. Of those 36 women, when they went back and looked at the tests that were done - they had colposcopy because they were adolescents and so there were photographs - they could see if injuries were identified at the time and there were not. There is huge heterogeneity in whether or not there will be an injury at the time of sexual intercourse when rape happens, and therefore there is not a definitive or conclusive test that can either confirm or refute that the sexual intercourse has been unwanted. The Garda investigation takes all the different evidence and the court process will have all the witnesses and the standard of proof there is to prove a matter beyond reasonable doubt. There is no single test we could do if somebody says that she is ten weeks pregnant as a result of rape.

The Deputy is right about the impact of criminalisation. There is much discussion about this. The Royal College of Obstetricians and Gynaecologists has absolutely recommended that termination of pregnancy should not be criminal. The Deputy is right that there is a potentially huge amount of additional stress that is placed on people not just because they travel but because there may be a fear that there may be some kind of criminal accusation visited upon them. That is a whole source of additional stress. Ms Blackwell will probably mention, speaking to people after this meeting, that concerns can be raised about that.

Ms Noeline Blackwell

I will pick up on that particular point. The way we collected the evidence that we are presenting here today was by going around to all of our therapists, some of whom have much experience working with us. They work with the approximately 500 clients we see in the year and on the phone lines. I set out five scenarios on page 4 of my longer paper to try to identify what they hear from the people who come into us about how they feel about being pregnant as a result of rape. There is the issue of the crisis of the rape and the crisis of the pregnancy for the person who is pregnant and is unsure of what to do and she is working through a whole set of scenarios, including practical, financial and emotional difficulties, as we put it here. I think the legal difficulties or criminality of the abortion are not the issues noted by therapists to a great extent for those people. We definitely come across people who present as having had an abortion and are angry that they could not have had the procedure in Ireland, had to travel and because it was complicated and traumatic for them to have to do that.

Deputy O'Sullivan is right about the statistics. We collect statistics from the national helpline, which gives the national figure, and from our own clients. Those show that over one third are parenting, a little under one third had a termination and the other third have miscarriages or are cases of historic pregnancies where children have been adopted or fostered. They are likely to be the older ones, people from years ago who come back to us later. That number is likely to go down. The Rape Crisis Network of Ireland has collected statistics from between 11 and 15 of the centres over the years including the rural centres to a great extent. A greater number of those, approximately 49%, are parenting and a little under 20% had terminations so there was a bit of a disparity. The numbers are still small. We can only report, as can the other rape crisis centres, on the people who tell us. Most people may never tell us at all.

Mr. Tom O'Malley

I will answer the question about how other countries approach the matter. By way of sources of information, the Green Paper on abortion published in 1999 has an appendix which sets out the regime in other European countries, including this question of where it is available on the grounds of rape and the kinds of proof that are required. That is almost 20 years ago but there was a recent report by the Library of Congress in Washington, D.C., a usually objective source of information, which looked at abortion laws in European countries which provides some information on that. The committee must remember that this is the kind of area that changes a lot since countries change their laws over time. In my research, two things come forward. Most European countries that allow abortion in these circumstances will have something to the effect of this, from Portuguese law, "there is serious evidence of a significant indication that pregnancy resulted from rape".

Likewise, in Germany, if there are serious grounds for the assumption that the pregnancy resulted from rape. What they are doing there is they are not insisting on anything like legal proof to the extent that would be required by way of criminal or a civil trial but rather some kind of serious grounds. Again, the question is how those grounds would be established. Some countries require a report from a prosecutor. A Polish case recently came before the ECHR. In Poland, the local prosecutor is entitled to issue a certificate saying that he is satisfied that a rape took place. In that case, it was what we would call a sexual act with a person under the age of 15. That would not be the role of a prosecutor within our system. The equivalent in our system would be for a member of the Garda or a senior Garda officer to have to issue such a certificate. However, all that goes back to the question of whether, and at what time, the matter had been reported to the Garda to begin with. It is almost a vicious circle in terms of whether the report has been made and at what point it has been made. The most difficult scenario would be where a report was not made in the immediate aftermath of the rape or another offence but where it is made several months down the road. That is all I can glean from the comparative survey I have done of laws in other countries.

Will members be mindful when they ask questions that there are three witnesses before us and I do not want to interrupt witnesses? Each member has six minutes but we have more witnesses coming in at 6 p.m. and it is absolutely inconceivable that we will be able to bring them in then because we want to make the most of our time with the current witnesses.

Mr. O'Malley referred to one issue. Traditionally when a rape case is brought, there has to be a perpetrator. Allegations cannot just be made and then a case taken. There has to be a perpetrator for the conviction purposes.

Mr. Tom O'Malley

Of course, yes.

Across the continuum to which he referred from a criminal conviction to a statement from a girl or a woman that she was raped, I assume Mr. O'Malley is not implying that a perpetrator would have to be named even with the lesser burden of proof or is he saying the perpetrator is named in other countries?

Mr. Tom O'Malley

The Deputy is right. I am not making a suggestion one way or the other but if one went down that route, that would not be necessary. There could be all kinds of dangers involved, for example, if the person who was named decided to take a civil action for defamation against the woman who made the allegation, which would be entirely possible. If such a system were introduced, serious consideration would have to be given to giving a qualified privilege to a woman if she was going to name the alleged perpetrator. That would be one of the issues that would have to be taken into account and, therefore, it may well be that there would have to be a system whereby the focus of the inquiry in those circumstances, is whether the information that the women has given to the police or a doctor or whomever, as they put it in other jurisdictions, provides serious indications that she has been raped but without necessarily mentioning the person in question. That is a possibility at least.

In most countries that have rape as a ground for abortion, is there a lesser burden of proof than a criminal requirement and is there not always a requirement to name a perpetrator?

Mr. Tom O'Malley

To be honest, I could not answer the last part of the question with confidence because I do not know. It varies a great deal from one jurisdiction to another and, indeed, from one situation to another. The Deputy may be right in the way he phrased this. It may not be inevitably necessary to name the perpetrator but, in some cases, it may be because the woman has gone to the police. One of the best ways the police can be assured of the truth of her statement is to ask who did it. There is a possibility, therefore, that a person will be named but that does not mean to say that the name ever has to be revealed.

Ms Noeline Blackwell

I refer to the number of people who are raped within intimate relationships and as part of domestic violence. In those cases, one does not necessarily have to name the perpetrator for the perpetrator to be fingered and that could be a real concern for people because they are now identifying that they were raped in an intimate relationship and aspersions are being cast on the spouse or partner in those circumstances. Last year 19% of our clients reported pregnancy as a result of rape by an intimate partner.

Where a clinician meets the patient in the context of a rape, are there obligations on medical practitioners to interact with the criminal justice system if the patient has been raped? Is there absolute privilege in this context?

Mr. Tom O'Malley

Is this related to the mandatory reporting obligation?

Mr. Tom O'Malley

We have rather complicated legislation dating from 2012-----

I refer, in particular, to minors. If a minor wants a termination because she has been raped and goes to her GP, is there an obligation to mandatorily report the case of a minor?

Mr. Tom O'Malley

That would certainly be an issue. Under the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012, where a doctor, teacher or whoever becomes aware of a possible sexual offence against a child, there is a mandatory reporting requirement. That is something else that would have to be addressed in these circumstances; in other words, as part of the overall package of reform that would be considered in the event that rape or sexual abuse is accepted as a ground for abortion. It would be a complicated issue to go into now. I do not have the legislation in front of me and, therefore, I could not give a much more-----

But there is a mandatory requirement to report if a minor is involved if someone becomes aware.

Mr. Tom O'Malley

Yes, in certain circumstances.

Dr. Maeve Eogan

And under Children First.

I thank the Deputy for his brevity, which is appreciated.

I thank the witnesses for their presentations. I have three questions. My first question is to Ms Blackwell and Dr. Eogan. Mr. O'Malley outlined a number of potential options for how verification of pregnancies arising from rape could work such as self-declaration, formal criminal proceedings, a special form of expedited adjudication process, police reports, medical reports, or a prosecutor's certification. As service providers, could they comment on the feasibility of these options and how they would interact with their processes for providing care for women?

My second question is to Dr. Eogan. She outlined three options in her presentation that she offers to women who wish to access care. Options two and three allow women to receive care without reporting the incident to An Garda Síochána if aged over 18. If we were to legislate for the involvement of the criminal justice system in assessing access to abortion on ground of rape, would this impact on her ability to dispense care without involving the Garda?

My final question is to Mr. O'Malley. He stated in his presentation that in later term pregnancies arising from rape, a balancing of competing interests between the woman and the unborn child is at stake and a legal adjudication may, therefore, be required to judge these interests. However, if the eighth amendment was repealed and the explicit right to life of the unborn removed from the Constitution, would that balance of competing interests continue to exist in the same manner as he has articulated?

Ms Noeline Blackwell

In terms of the care for women, we raise this because of our concern in this regard. Of the 12,000 calls we took last year, more than 400 were silent calls. They were people who picked up the phone and were unable to talk to us on day one. Even saying, "I will call that number" or coming in through our door is a big deal for many people. We are concerned that it can take time. Some people will report their rape immediately to the Garda and that is fine while others will take a long time to do it. That is the concern we have. If someone has to self-declare, and even if it is a simple form of self-declaration, someone else has to sign a certificate at the far end of it. Yet again, the woman has to put herself before someone who has a choice in whether to believe her or not and sign the certificate or not. This is in the context of people who are traumatised by the rape and whose consent has been taken from them. This is the essence of what has happened and that is our concern about any form of certification.

If there is an adjudication process many of them will not do it. They will not be able to do it within the context of a crisis pregnancy. We are quite clear that it is not in women's interest to have to go through a reporting process in order to access abortion or any other medical service. Women should not have to do that. That is why we raised the issue.

Dr. Maeve Eogan

I cannot see how an adjudication process based on some sort of examination that simply does not exist would be feasible. The Garda can detect the crime using the various pieces of evidence it has, including physical evidence and DNA evidence. However, none of those are singularly conclusive. There is no examination that a person could be subjected to, even if it were appropriate to subject them to an examination, that could confidently determine whether rape had occurred. An examination or some sort of adjudication in that way is not appropriate. Again, a disclosure makes it difficult for all the reasons that Ms Blackwell has mentioned.

In terms of whether options two and three would be precluded from being offered if we had some sort of mandatory reporting, it is because of Children First and the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 that those options are available only to those over the age of 18. I cannot see how it would be appropriate for us to have mandatory reporting to An Garda Síochána or some other third party before somebody could be approved for termination of pregnancy. Even if there was some bizarre scenario where that existed, I believe that would be separate from us being able to offer these options. We would always aim to offer care, not just for those who wish to engage with the criminal justice system but also for those who are adults and who wish not to.

Mr. Tom O'Malley

I accept that the question of the kind of testing or verification process that might be deemed necessary in the event of abortion being sought on the grounds of rape would depend very much on the fundamental law that was put in place on the availability of abortion generally. If, for example, abortion was freely available for a certain period of time, this issue probably would not arise. If one eventually decided that there was going to be some sort of balancing test to be struck, as there is at present - perhaps it would not be the same test - where the right to life of the unborn was still an issue, on constitutional and other grounds it would be necessary, or at least desirable in many cases, to have some method of evaluating or validating a claim that rape had taken place as a basis for abortion.

I thank all the witnesses for their excellent presentations here this evening. From Mr. O'Malley's presentation, it is clear that there is no feasible way that the successful conviction of a rapist could ever be used as a level of proof for a woman to access abortion. Does the witness know what the conviction rate for rape prosecutions is? It would be useful for the work of this committee to have those data. Of those indicted how many are convicted?

The question of the complications of requiring proof around rape has been well answered by all the witnesses.

During the Protection of Life During Pregnancy Bill debate, there was an assertion that thousands of women would be presenting themselves to their general practitioners, GPs, and falsely asserting that they were suicidal. I do not believe there is any evidence to justify that at present. Is it fair to say that if abortion was allowed in the case of rape, we could safely say that would not be abused?

Mr. Tom O'Malley

There is often misinformation circulating about the rape conviction rate. Sometimes one hears figures of 2% or 5%. That is not necessarily misleading in the sense that what it is often referring to is the attrition process, whereby the number of people who are eventually convicted formally by a court of rape will only represent a very small fraction of the total number of rapes that were actually committed. Of course, the vast majority of rapes are not reported, which explains the considerable difference between the two. The figure we should look at is what the conviction rate is for those who are indicted for the offence, that is, those who are tried and prosecuted. It is quite high. I am reluctant to mention a figure. I have Courts Service statistics in front of me but I am not sure if it readily gives that figure. I believe it is over 60%, and possibly considerably more than 60%. One of the things that complicates it is that when one is looking at the figures, one has to differentiate between people who are convicted of the offence with which they are charged - rape, for example - and other people who may be acquitted of that offence but convicted of a lesser offence such as sexual assault or another offence of that nature. I believe the conviction rate is quite high overall.

Ms Noeline Blackwell

It is high once it gets to court.

Mr. Tom O'Malley

Yes, on the assumption that it gets to court. The bigger problem is that many cases never get to court at all.

That further complicates the whole scenario. Do any other witnesses wish to comment?

Ms Noeline Blackwell

When one is looking at the Courts Service statistics, which are by no means perfect - as admitted by the Courts Service itself - one is looking at cases which start in one year and finish in another, and one cannot see the trail from the first report to the final conviction. It is very hard to tell. I believe the conviction rate is significantly higher once the accused persons are indicted, but it is really hard to tell. There are only around 100 convictions for rape in any year, which is a tiny number. Some 2,500 sexual offences were reported to the Garda in 2016. That is the highest number ever. From that it dribbles away to perhaps 100 at the end of the process. The process can take four or five years.

Mr. Tom O'Malley

I probably understated the level of convictions there. It would be quite high, perhaps 70% to 80% once the cases go to trial.

Ms Noeline Blackwell

There are many pleas where people agree to plead guilty to a serious sexual assault charge if a rape charge is withdrawn, which has a lesser sentence. That happens all the time. There is not enough study carried out in that area.

Ms Angela McCarthy

One of the most difficult things for victims is how long it takes for the case to get to court. A conviction might not happen for up to three years.

If the witnesses feel that they cannot answer my other question, that is fine.

Dr. Maeve Eogan

It is on the record here that during the discussions on the heads of Bill for the Protection of Life During Pregnancy Act, the issue of whether there would be people banging down the doors of their GPs claiming that they were suicidal arose. That has not occurred. As an obstetrician, I work in a maternity hospital and I can say that it does not occur. One would hope that the same would happen if termination of pregnancy were legal on the grounds of rape. One can see that within the data Dr. Aiken provided to this group on women who access medications to terminate their pregnancies and where they just have to tick a box, even at that, rape is not ticked very frequently. In general it is more common for psychological stress and distress to be ticked.

I thank the witnesses for their time and their papers.

In terms of people who present to the Rape Crisis Centre, report rape and are being counselled, the issue of power in the assault will influence what steps are taken afterwards. I mean in terms of self-preservation. People may not want to go through a criminal prosecution because they fear they will not be believed. I ask the witnesses to deal with the two issues and I then will ask Mr. O'Malley a question.

Ms Noeline Blackwell

I will speak briefly and then I will hand over to Ms McCarthy, who is involved in such work.

The question of power and control is really important. Every single rape involves non-consensual sex and, therefore, involves an abuse of power. That is key to the people who come to the centre. That sense of a loss of control and loss of their own power is one of the things, in the therapeutic work of the Rape Crisis Centre, that we seek to build - a person's better understanding of their own power. My colleague will say a little bit about the matter.

Ms Angela McCarthy

In terms of belief, it is important when somebody comes to the centre that the person feels we take the matter seriously. The person may have spoken already to family members. If it was another family member who committed the outrage or somebody known to the family, which is frequently the case, or somebody known to the group of friends - it may be a friend or an acquaintance and maybe it happened at a party - the person may be met with disbelief and sometimes treated with less than respect. The function of the Rape Crisis Centre is to be there for the victim, in terms of belief.

As Mr. O'Malley has outlined, there is a variety of grounds. He talked about stranger rape where there is a lot of evidence such as injuries and things like that. Who would gather all of that information? How quickly can it practically be used? It does not seem practical to collect all of that to start with, as it is a very traumatised environment.

Let us say a case is difficult to prove, the person has not gone to the Garda and then the person is not believed. Is that not the most difficult scenario to legislate for? How does one legislate for such an instance? It may well be technically possible to do so but it will be very difficult, though not if one considers the case from an holistic point of view. All of that goes against the point that has been made about being believed.

Mr. Tom O'Malley

In terms of the first scenario mentioned by the Deputy, where there is evidence of a stranger rape-type situation, even then somebody has to make a decision. In other words, the woman must go and apply for or request an abortion but the question then is who does she go to.

Mr. Tom O'Malley

If that matter arises, then another important policy decision would have to be taken. Who should be the first port of call? I presume a GP or a hospital. Ultimately, the decision will be who should actually decide whether to permit the termination to take place, assuming that it is not freely available in any event. If abortion was a specific ground then in all circumstances, somebody would have to decide whether the grounds had been satisfied or not. That is a comparatively simple enough scenario in a sense that there would be some evidence or supporting material to back up the person's claim that she had been raped. I absolutely agree with the Deputy. I was sorry that, in my own presentation, I could not be more helpful about it because it is a really difficult matter.

The second scenario refers to where the person comes in. Again, in all probability perfectly truthfully, the person says that she has been the victim of a criminal offence but has never reported it until now, two or three months or whatever down the road. If we insist on some kind of validation and verification of that claim then that is when one would need to have some kind of special panel to deal with the matter. Either an individual or a group would have to be designated to evaluate that claim. Obviously the matter could be stressful for everyone concerned, including the person who seeks the abortion.

I want to ask a question about a criminal trial for someone who is accused of rape and where a termination was permitted by the panel. How is that scenario presented in evidence?

Mr. Tom O'Malley

That is another one. I mentioned it very briefly in my paper. It is something again which the legislation would have to address as to in what circumstances or, indeed, in any circumstances, it might be permitted to mention in the course of the criminal trial that an abortion had taken place. In a criminal trial, under the Constitution, the first and foremost consideration is fairness to the accused. Article 38 of the Constitution says that nobody charged with a criminal offence shall be tried other than "in due course of law". The primary concern of a criminal trial, under our Constitution, is to provide fairness to the accused. Other people have rights too but the accused is front and centre. Therefore, the legislation would have to be drawn up in such a way that it did not jeopardise the person's right to a fair trial by, for example, introducing information that could be unduly prejudicial to the accused. It is another factor that would have to be taken into account if this kind of legislation were being introduced.

I appreciate the Deputy finishing bang on time. I call on Deputy Clare Daly and she has six minutes.

I thank the witnesses for coming in. Deputy Jan O'Sullivan was right that we need to contextualise why we are here. I think we are here discussing this topic because repeatedly it has been shown that Irish people believe that in circumstances where somebody has become pregnant as a result of rape, the person should not be forced to continue with the pregnancy against her will. That does not, in any way, undermine or devalue the opposite decision made by people who decide to continue with their pregnancy. It is a case of recognising the other circumstances of people who may be married and have other children and who may have to grapple with issues and the impact on their own mental health of dealing with a pregnancy as a result of rape and who cannot continue with the pregnancy. It is their rights that we are considering here and time after time, the Irish people have accepted that. We, as a committee, are considering how to best provide for that situation. The witnesses have answered that question already. There is not a chance in hell of doing that by any circumstances requiring any issue of proof. Even in the most basket case of countries, nobody requires judicial authorisation. No countries do so, not even ones with restrictive regimes. Only a handful of countries in Europe require a police report.

As the witnesses have clearly said, to provide any sort of declaration to anybody constitutes a re-traumatisation of the victim. Are we not over-complicating things here? As Mr. O'Malley has said, the issue of proof only comes up if we deal with exceptions-based legislation. The way most countries in Europe deal with this matter is by making abortion available in the first trimester without any restriction as to the reason and thereafter based on medical grounds. Would we not do ourselves a favour by providing that scenario thus avoiding re-traumatising women?

I am unclear about the point made by Dr. Eogan about a study. Does the study show that some people who become pregnant only present after the first trimester?

Dr. Maeve Eogan


Do people present at that time in the units?

Dr. Maeve Eogan


Is it when women declare their pregnancy?

Dr. Maeve Eogan

It was when women declare their pregnancy. Please bear in mind that the study is 20 years old.

Dr. Maeve Eogan

At the time emergency contraception was not as available or effective, so things may be different now. In general, people have a greater awareness. Even in normal obstetric practice, people generally present with their pregnancies earlier than previously.

Does the European solution of no restrictions as to reason take account of practically all or the vast majority of the cases where somebody would be impregnated as a result of rape and may seek a termination? My last question is for all of the witnesses.

I wish to acknowledge the first comment made by Dr. Eogan.

Dr. Maeve Eogan

I thank the Chairman.

Are we not over-complicating matters? Would the European solution deal with the situation?

Mr. Tom O'Malley

I am trying to be as open as possible about it, in that I was asked to address the legal issues. I am trying to consider the legal issues that would arise, which would be very few, if abortion was available freely up to the first three months or whatever it might be.

All I am saying is that if one took the opposite approach of restricting abortion under certain grounds, then one would have to deal with those real questions that we have been addressing. I am not recommending which one should be achieved but it is quite clear that one would avoid those problems in the event that abortion was freely available for the first three months or whatever the period may be. I am not sufficiently familiar with the abortion policy issue.

How many would that capture in medical terms if it were a case of abortion being allowed in the first trimester? Is that more of a medical issue?

Dr. Maeve Eogan

We do not have that information. We know that far more people are raped than become pregnant after rape. That may be because of the trauma of becoming pregnant after rape that one does not disclose it until later on. However, the Deputy is correct that there are very many countries that get over this by having easy access to termination of pregnancy and which already have access to termination of pregnancy without having to give a reason. Ultimately, we are the technical advisers and the committee members are the legislators so they can take our information and use it in their deliberations.

I thank the witnesses for coming before us. I also thank them for their patience and their presentations. I will start with Ms Blackwell. In her role at the Dublin Rape Crisis Centre, has she heard of attendees or staff being abused in the street verbally or in any way? I have seen reports of images displayed outside clinics and centres. What do the witnesses think is the purpose of those images?

My next question is for Dr. Eogan. She said that one third of first-time patients do not come back to the unit. Could she elaborate on why she thinks that is the case? We touched on it already but, in her experience, has she ever come across reasons why she would not believe a woman who says she was raped?

Mr. O’Malley touched on pretty much everything I was going to ask him. Is he saying that it would not be workable if we put in some sort of hierarchy of people as de facto judges who would deem women either eligible or miserable enough to deserve terminations?

Mr. Tom O'Malley

It would be very difficult. It would cause a lot of practical difficulties in all probability.

Before the witnesses came in, we heard from a psychiatrist who said it is a case of the earlier the better in terms of a resolution. I do not want to misquote her but my understanding is that prolonging the situation for women seems to be very difficult. In their experience, do the witnesses see lengthy processes involving verification and validation of a claim as having a negative effect on women's lives? The longer women are pregnant, the greater the complications that arise in the context of terminations. It could be argued that if it went on long enough, for example, past 26 weeks, that essentially a woman could be forced to be an incubator for an unwanted pregnancy.

I draw the committee's attention to a legal case where custody was granted to a rapist in Michigan. It was reported by the BBC at the start of this month. A man who raped a 12-year old girl, on his release from prison as a convicted paedophile, gained access and parental rights to the offspring of the crime, the child produced as a result of the rape. He was committed to prison for his action but his name was added to the birth certificate of the child against the mother's wishes. Does Mr. O'Malley think there is scope and capacity in Irish law to allow parental access or rights to a convicted rapist father upon his release from prison? Should he be supported by the State in that capacity, in that he would he have access to children's allowance payments and so forth? I understand that paternity leave probably would not be a factor unless he got a very short sentence because the timing would not be right. Theoretically, however, if it was a short sentence, he could potentially apply for two weeks' paternity leave within 26 weeks of the child being born. I would welcome Mr. O'Malley's views on that.

Dr. Maeve Eogan

In response to Deputy O'Connell's question on why one third of people do not come back, we do not know because they do not come back. From a positive perspective, however, because we give people infectious disease preventative treatment and emergency contraception, hopefully they feel that they have no physical sequelae so they do not need to come back for an STI screen or a pregnancy test. In reality, their reasons are probably far more complex and include the fear, concern, stress and emotional trauma. They are able to contact the helpline and access crisis counselling, and, hopefully, are doing that, but it is a hugely stressful event for somebody and it is unfortunate but not surprising that not everybody returns for their follow-up.

Second, on whether one would not believe somebody who comes to a sexual assault unit after an incident of sexual violence, that is not our role. Our role is to support patients when they are there. It is up to the Garda and, ultimately, the criminal justice system to determine whether a crime has occurred and to process that through the courts. It is up to us to take the evidence, the intimate samples, that An Garda Síochána cannot take as part of its detection. The forensic samples we take and the examination findings that we record all form part of the investigation and then there is also the medical piece that we do at the same time. It is not for us in the sexual assault treatment unit to be judge and jury for a patient who presents there.

The Deputy is correct that if a verification aspect were to be introduced, it could only prolong the process. Already, women who, for example, travel from Ireland for termination of pregnancy are more likely to have surgical termination of pregnancy than medical termination because they present later due to the process of having to travel. One would imagine that if there was a similar verification process, it could delay the termination of pregnancy and, potentially, convert a more physically low-risk instance into a more high-risk instance.

Ms Noeline Blackwell

I will deal with Deputy O'Connell’s question to me about people on the street. I have been with the Dublin Rape Crisis Centre nearly two years at this stage. Time flies. I did hear there was an instance of somebody setting up an anti-abortion lorry across the road from us. That was before my time. We are not clear on the reason for that because we take no position on a person having an abortion. Everybody who comes to us is treated the same. Everybody is treated in a non-judgmental way. There was only one incident of protest. What we do get is a certain amount of ignorant abuse from people who are on the street and who point or make it a little bit more difficult occasionally for people to come in to us. I cannot say enough about how difficult it can be for people to take that step through our door, not just the first time but the fifth or the tenth time as well. People come in despite the fact that they could not possibly be to blame for the rape or sexual violence that has happened to them. They do blame themselves. They feel ashamed on occasion and it is hard for them to come in. It is much harder if there is somebody harassing them or making their lives difficult. In terms of the verification process, all we can compare it to is the process of being in court. If a client is involved in the criminal justice system it impedes her progress personally in dealing with her trauma.

Mr. Tom O'Malley

I agree with what my colleagues have said because they know better than I about the psychological side any kind of verification process would have and that there would be a traumatic effect. There is a verification process under the Protection of Life During Pregnancy Act. I do not know whether it has ever been invoked in a case where a right to an abortion was refused.

All I can say is that Deputy O'Connell raised a very interesting question about paternity rights but we would probably need another seminar to deal with that particular one.

I thank the witnesses for their presentations and for their engagement on this matter.

What has been clear from the witnesses' comments is that requiring proof of a victim would further compound the trauma. Most of us are in agreement that not many citizens would be supportive of the suggestion that a woman should be required to continue with a pregnancy against her will if she were raped. There is support in the country generally, albeit not among everyone, for a change on this niche issue. Obviously, we are considering many other issues.

Mr. O'Malley might correct me if I am wrong, but he made the interesting point that, if there remained some constitutional protection for the unborn, we could not get around the necessity to require some proof because we would need to try to balance the rights of the unborn and the mother. I do not know whether it was the German way to which Mr. O'Malley referred. Does it require a police report? I am not sure which jurisdiction it was.

Mr. Tom O'Malley

I believe it is a police report.

Were we to go down that route and choose the easiest option of requiring a Garda report rather than a formal complaint, would that be sufficient to balance those rights? Could there be a constitutional challenge on the grounds that a termination would be too easily accessed if just a simple report or something of that nature were required? I would be interested in hearing Mr. O'Malley's thoughts on this matter. Any suggestion that a victim should be required to present before anyone or any organisation, for example, a member of An Garda Síochána, who would be professional in his or her report, and make a case in order to be believed about being raped and traumatised raises grave concerns.

Mr. Tom O'Malley

I am repeating myself. If this section of the Constitution was redrafted and a balancing exercise was undertaken, which is the situation under the eighth amendment and was reflected in the X case, the right to life of the unborn child would have to be taken into consideration. In a sense, I am trying to predict what might happen in the event of the matter going before a court on constitutional grounds. I imagine the outcome to be that some kind of verification should be required in order to vindicate the rights to life of the unborn. This would not necessarily mean a criminal trial or formal adjudication, but some kind of verification process would probably be called for. Perhaps it would be something like what obtains in some European countries, where the test is of whether there is significant evidence or a significant indication that a rape or some other offence has taken place. That might be deemed sufficient, especially if it is written into legislation, which would attract the presumption of constitutionality in any event.

I thank Mr. O'Malley. With the Protection of Life During Pregnancy Act and the eighth amendment in place, a woman who has been raped and who takes the abortion pill at home could theoretically be prosecuted and jailed for up to 14 years. That is an horrendous situation. Many citizens would agree that no one whose rights have been stripped from her should find herself in a courtroom setting being criminalised and possibly sentenced to a prison term. It is remarkable that this is our current situation. That is no more than a statement, though. I do not expect a response.

I love statements when it means that a member finishes quickly.

I thank the witnesses for their presentations. I wish to make a few brief points. I believe it was the Dublin Rape Crisis Centre which stated that, based on its research, approximately 5% of women could become pregnant as a result of rape.

Ms Noeline Blackwell

It is 4%.

Okay. I saw 5% somewhere else.

Ms Noeline Blackwell

The 5% figure was in Dr. Eogan's presentation, but it is near enough.

It is 4% or 5%. While I was growing up, there was a myth, which I am sure the witnesses have heard, that no one could become pregnant as a result of rape. It is not that long ago since these myths still existed.

How many rape victims would be likely to be able to access their right to an abortion if a rape ground was introduced with some burden of proof? According to the Dublin Rape Crisis Centre's stats, only 42% ever speak to anyone at all, never mind reporting to the Garda or another official agency. Immediately, a large number would not have access. What are the barriers to people reporting generally? Is it not the case that many rape victims, particularly young people, can be abused over years before telling anyone?

Mr. O'Malley referred to international research. From my examination, it is impossible to access an abortion anywhere that just has a rape ground and little else. In one eight-year period, a state in Mexico did not grant any applications for abortion. In Poland, where the legislation is similar to the eighth amendment but with a rape ground, it is difficult for anyone to access abortion. As such, we know the answer to this question already. We have the proof from other countries. Perhaps the Dublin Rape Crisis Centre has more information on this through its networks, but the only way that people seem to be able to access abortion is upon request from the person herself up to the first trimester or, if there are additional health grounds, later.

We already have the concept of deserving and undeserving abortions, but would we be getting into having deserving and undeserving rapes if we use a rape ground? There has been much commentary in society of late about how the victim should not have been there and asking why she was in that hotel room, walked home on her own, was drunk, etc. One could see how some might say that one woman deserves an abortion while another does not. Is this something that the witnesses would fear?

Perhaps the Deputy will allow them to answer those questions.

Yes. I just wanted to ask them together.

That is great.

Ms Noeline Blackwell

I will start off because Deputy Coppinger mentioned the Dublin Rape Crisis Centre. There is a 4% or 5% pregnancy rate. The 2002 SAVI report is too old, but it is all that we have. Only 42% of people ever speak about the rape. When one woman in the report was asked why she had not told anyone that she had been raped, she said that no one had ever asked her before.

One of our concerns, which is shared by our colleague centres, is that only approximately 10% of those who need our services actually access them. This is without any complication of pregnancy. Therefore, it is likely that those who are better resourced or have better supports are the people most likely to access us. We have a concern about people not knowing how to access us.

The barriers that the Deputy asked about are long-term abuse and disruption. Since 75% to 80% of victims and perpetrators know each other, it is disruptive to report. For example, someone might be reporting her father, husband, long-term partner, boss, etc. Self-denial of the rape is also a barrier. It takes a long time. People phone and tell us that, for example, something happened and they do not know what it was but it was not rape. It turns out to have been rape, though, only the person was not ready to say it. Denial can last a long time.

Dealing with various authorities can be another barrier. We have an excellent police service that has been working hard to put in place specialist investigative units, but not all of those are in place yet. There are patchy reporting skills in the police. It can be difficult for everyone to understand perfectly how to receive a report of rape.

A question was asked about someone being deserving. Once a woman is asked to sign a certificate, her power to say that she was raped is taken away from her. Someone else has to make a decision about that rape. We were slow to raise this issue at all. Traditionally, rape crisis centres are non-judgmental, confidential places that do not speak on these issues. In the interests of the women who were approaching us, we felt that we had to ask legislators to think carefully before putting barriers to healing in their way. This is why we are speaking about the dangers of requiring a woman to get a certificate saying that she was raped signed by someone else.

Does either of the other witnesses wish to comment?

Mr. Tom O'Malley

I agree with what Deputy Coppinger said about Poland. It has been before the European Court of Human Rights on several occasions for failing to properly apply its own law. If Ireland were to introduce some kind of verification procedure, people who became pregnant as a result of rape would probably go to England, as they do now. That would be far simpler from their point of view than going through the trauma a verification process might cause. That is what would most likely happen.

Does Deputy Coppinger have a point of clarification?

A survey conducted at the Rotunda in 2000 found that one in eight pregnant women experience violence during pregnancy. It is a heightened time for violence against women. Does Dr. Eogan agree that many such women were probably raped at some point during their abusive experience but did not attend a sexual assault treatment unit?

Dr. Maeve Eogan

Through preparing for this meeting and reviewing details and documentation over the past several years, it is has become clear that there are more pregnant women in the sexual assault unit than women who become pregnant as a result of the rape, which is a damning indictment of the statistics in terms of domestic violence and pregnancy. The Deputy is correct.

Like Deputy Coppinger, I considered the situation in other countries. I found only eight countries that require a judicial authorisation for abortion and they are Zimbabwe, Eritrea, Namibia, Rwanda, Bolivia, Panama, Georgia and Macedonia. Several other countries, such as Mauritius, Hong Kong, Uruguay and Colombia, require police certification. Members can extrapolate their own conclusions from the requirements in those countries.

Mr. O'Malley touched on the issue of whether the problem would really be dealt with if there were to be a certification process, regardless of who would conduct it and even if it were only required to report the rape to a GP. Would people just travel to the UK instead? I do not know if it is feasible or practical for people to be forced to make some sort of certification or admission. It could result in a return to the situation whereby only those who can afford to travel do so. Victims of rape who could not afford to do so would have to report the rape, continue with the pregnancy or obtain an illegal termination. I ask the witnesses to comment on that issue.

My final question is for Mr. O'Malley. However, because of her background, Ms Blackwell may also be able to provide an answer. How would legislation requiring a reporting system fit in with the directive on victims' rights? Would Ireland be in contravention of European laws or directives if it forced victims of rape to report the crime in order to access a termination?

Mr. Tom O'Malley

The Deputy's first question raises a very valid point. As I said, many may opt to travel to England, as they do now, rather than go through the trauma of reporting. As the Deputy rightly said, that assumes one can afford to travel to England. It could lead to wealth-based discrimination. The verification that might be introduced would not necessarily be too traumatic and so on to be workable but in many cases it probably would be quite traumatic, which is why people might choose another option such as travelling to the UK.

I am familiar with the victims' rights directive. It concerns assisting victims of crime and so on. I am unsure if there would be a conflict in that regard but that needs to be examined and we could revert to the Deputy on the issue.

Ms Noeline Blackwell

If Mr. O'Malley does not know the answer, I will not say that I do. The directive concerns the area of criminal justice. If a report had to be made to the Garda, the Garda would then have to try to identify whether there were implications in terms of the victims' rights directive. I will not say if that is so if the learned expert on the topic is not commenting on it. The Garda may have some obligations in respect of victims of crime. No matter how simple a report one makes to the Garda, one is reporting a crime and the Garda has obligations on foot of that. That may have an impact in terms of victims' rights.

It could be a reason for people not to report it.

Ms Noeline Blackwell


I am somewhat hesitant to ask the next question but I need to know the answer to it. If legislation is brought in that allows terminations solely on the grounds of rape or incest and does not allow for freely available abortion in the first trimester but the issue of decriminalisation of abortion is not dealt with, could a woman who obtains a termination on rape grounds be liable to be judged to have committed a criminal offence if, at a subsequent criminal trial, the alleged rapist is found not guilty on the basis of insufficient evidence?

Mr. Tom O'Malley

Even under current law, I do not think that would be the case. It is a criminal offence to make a false report of a crime to the Garda, whether in respect of rape or any other crime. That an accused is put on trial and acquitted does not mean a false report has been made------

I asked in respect of a woman who had obtained a termination------

Mr. Tom O'Malley

I am drawing an analogy. The answer is probably not. However, the Deputy's very pertinent questions show that legislating for this matter would be quite a complicated process and all those factors, including the victims' rights directive, would have to be taken into account. In my paper I referenced some issues that would arise if there were to be a verification process. There would be questions as to how that would link in to a subsequent trial. The Deputy's point about what would happen in the case of an acquittal would also need to be addressed. A law would have to be introduced to grant immunity from prosecution to women in such circumstances. Considerable attention would have to be given to drafting the appropriate law to take into account the various factors that have been mentioned here.

Would it be possible to draft such legislation in view of the complexities that have been discussed today?

Mr. Tom O'Malley

It would be possible but it could be quite complex legislation. The more complex it is, the more difficult it is to implement and the more likely to give rise to court challenges as to its exact meaning, particularly during the early years of its implementation.

And the more likely it is to fail the women we are trying to help.

Mr. Tom O'Malley

Yes. A court challenge could be totally counterproductive. The courts would have to decide the matter very quickly but, even so, it is a very unsatisfactory way of dealing with the law in this area.

I acknowledge the work done by the Dublin Rape Crisis Centre over many decades in providing help, support, advice and counselling to women in very distressed situations who have often been brutalised and may have been thrown out of their homes, raped or both and may be pregnant.

That should be acknowledged at the outset.

The question I want to raise relates to the under-reporting of rape and how we can get to deal with it in a way that is going to change the attitude. For example, let us consider a minor being the victim of rape. To my mind, there should not be any failure to report in that kind of situation. Whether it means better education in schools or for parents or whatever, we need to do that as a matter of urgency. This is because of the tendency to minimise the act if we allow it to continue the way it is.

My next question relates to a rape victim being pregnant. If there is no reporting, we cannot do much about it. The witnesses have referred to advice and so on, but it should be possible not to force the victim to continue with a pregnancy and not to force her not to continue. There should be some degree of negotiation or discussion with her.

My last question is for Mr. Tom O'Malley. Is there reluctance by the authorities to take up cases of rape? I imagine this applies to other committee members as well, but I have put down Dáil questions on numerous occasions asking whether a given line of action was going to be taken in particular circumstances. Usually, this arises from the mothers of the victims, who have raised the question and are inquiring as to whether there was likely to be a prosecution or whatever.

My next point relating to prosecution is important. When a case goes to court, is the questioning of the victim not too strenuous? In some cases the victim may be young or inexperienced. She may have moderate special needs or may feel completely at sea under the degree of cross-examination applied. That may leave the victim virtually admitting in some cases that she was the cause of it.

Ms Noeline Blackwell

Under-reporting of rape is Europe-wide. It is everywhere we look. It is one of those areas where people do not report. This happens for some of the reasons I mentioned before: it is disruptive, and it may involve someone whom the victim knows well. The victims are not ready to say it because the trauma of the rape often takes time to come through. There is much discussion in the media at the moment on this. Our telephone lines are going crazy with people who are, sometimes for the first time, saying that they were victims of rape. It is something that is hard to do. We could not agree more with Deputy Durkan on the need for education, better awareness, and recognition that no persons are responsible for a crime that is committed against them. We certainly agree with Deputy Durkan on the need for decent school programmes.

To be clear, in the case of all people who come to our centre, it is entirely their decision as to what they do next. Actually, more people who have come in to us over the years saying they are pregnant as a result of rape have gone on to parent rather than take terminations. It is the woman's decision in all cases. She is the main agent.

We could not agree more with Deputy Durkan about cross-examination in court cases. This can be re-traumatising. We are hoping the victims' rights directive will help. I will put in a plug at this point: the Criminal Law (Sexual Offences) Act 2017 has not been commenced in respect of some really important criminal evidence provisions that would give better protection to vulnerable witnesses. We will mention them here as well.

Mr. Tom O'Malley

Deputy Durkan asked whether there was reluctance to prosecute rape. Once it gets to the stage of coming into the Office of the Director of Public Prosecutions, the criterion is clear. At that point, a prosecution will be taken if there is a realistic prospect of conviction. Sometimes, there can be so-called public interest factors at stake, where, for example, the victim is very young or old or there may be exceptional reasons why a prosecution should not be taken. Anyway, this is one area where the victims' rights directive mentioned by Deputy O'Brien becomes important, because people are entitled to reasons for decisions why prosecutions were not taken. There are some circumstances where the giving of reasons can be refused, for obvious reasons. However, the Director of Public Prosecutions has set up a special section within the office to deal with the giving of reasons to persons who are concerned that certain prosecutions were not taken. There are good developments taking place in that area.

Deputy Durkan asked about cross-examination. Certainly, many improvements have been made over the past 25 years or so. At one time, complainants could be cross-examined quite mercilessly about their sexual experiences with people other than the accused or with the accused. Now, there are severe restrictions, in that judicial permission is needed to engage in such cross-examination. In any event, juries nowadays are far less sympathetic to such cross-examination. They would not necessarily welcome the idea of a complainant being cross-examined in that fashion. Still, as Deputy Durkan rightly said, there is much thinking to be done about the optimal way of treating complainants, especially people who are vulnerable on the grounds of age, mental incapacity, learning difficulty or whatever. We have done a lot in that area. As Ms Blackwell has said, some further valuable innovations were made in the Criminal Law (Sexual Offences) Act 2017. They have not come into force yet.

We all have our own pet topics. One of my pet topics, which I earnestly urge upon Members of the Oireachtas, is the problem of how the law on sex offences, the entire law on evidence and the way it operates in the trial of sex offences, is now dispersed among at least a dozen statues dating from 1885 up to 2017. It is something of a maze in which one section from one statute amends another. There is a crying need for something that many other countries have done, that is to say, produce a single comprehensive sexual offence statute that sets out all the offences. There are all kinds of little inconsistencies in the statutes at the moment. For example, rape is governed by a subjective test of liability. A man is not guilty unless he believed the woman was consenting, whereas in the case of sex with an underage person, the man only has a defence if he was reasonably mistaken. There are many such inconsistencies. It would be wonderful if we had a single sex offence statute. The process of developing that could well provide us with the opportunity to look at the optimal conditions that should govern the trial process. In other words, it is a chance to examine what should really be in place to facilitate complainants who have problems in respect of age, mental disability or whatever to see the extent to which the existing law copes adequately with those problems. Then, in the process of reform, we could make any further changes that are needed.

I think most of the questions have been asked already, so I am not going to go back over them. I wanted to ask two questions in particular of Dr. Eogan and Ms Noeline Blackwell. They relate to funding of both units. Are they adequately funded because both units do an amazing amount of work? The second question is on consent and respectful relationships. I would like to see where we can take the area of education, because it comes in under three different points referenced earlier. It is a major block of work that needs to be addressed and I am keen to hear input from the witnesses.

Dr. Maeve Eogan

The funding of the sexual assault units comes through the HSE. However, it must be said that each unit is very much supported by the hospital in which it is situated as well. For example, my unit in the Rotunda Hospital is financially bankrolled by the Rotunda. The funding the hospital receives from the HSE would be inadequate to fund the unit as it currently operates. The same applies to all the units throughout the country.

Ultimately, although my unit sees 700 patients per year, I work in a hospital that delivers almost 9,000 babies. Committee members can imagine that it can be difficult to make the case for something that only provides care for 700 people in the year, albeit important care, when that service is in conflict with a health service that is subject to extraordinary demand. There is not enough funding.

Ms Noeline Blackwell

There is not enough funding for us either. All 16 rape crisis centres, operating within their own geographic areas nationally and collaborating where necessary and possible, lost huge amounts of money, approximately 20% of funding and more in some cases, during the course of the recession. Funding has not yet been restored to pre-recession levels and we cannot meet the need we know exists with the funding we get from the Department of Children and Youth Affairs via Tusla and the Department of Justice and Equality via Cosc. While we recognise that both Departments are doing their best within their budgets to fund us, we have huge concerns, given the challenge to meet our current need, that we are certainly not meeting the full need that is out there. There is a requirement to better assess and understand the need, which is why we keep going back to the call for more adequate and improved data on sexual, domestic and gender-based violence in Ireland. That is a constant struggle. While we appreciate what we get, fundraising must supplement it. We receive contributions from clients where they can pay, but the majority of clients, if they pay anything, pay less than €20. It is really a token contribution.

Consent in respectful relationships is part of the key to the solution. So much damage is done where children and young people, in particular, do not understand consent, fail to talk about it, fail to learn when to say "No" or "Yes" and fail to learn how to hear "No" or "Yes" either. It would make a huge difference to the development of respectful relationships and improved self-regard if there was a sufficient focus on that at a time when children are at a vulnerable age. We have programmes whereby we work with teachers and Youthreach facilitators but it is voluntary. Teachers and Youthreach workers have to find the money to come to us, although we get some funding for that from Cosc. In addition, a programme is being rolled out by us and other rape crisis centres and the Manuela Riedo Foundation in Galway is also trying to develop something but these programmes are tiny and they are not going to get us where we need to go. We also work with universities but while good work is being done there also, it is a patchwork. While all of that is necessary, there is also a big job for the public. We have people contacting us, including women of mature age, who say "I thought I had to put up with it". They are only starting to learn now about what consent means in their own relationships. They were putting up with abusive and violent relationships. As such, there is a great deal of work for us to do in that area. It would be a game changer if there was a sufficient focus on that as a topic. I apologise for running on a bit.

It is probably a topic on which to expand on another day, perhaps in a different committee.

Ms Noeline Blackwell

Indeed, it is one of the ancillary recommendations of the Citizens' Assembly. As such, we would be very happy to come back and give a fuller presentation on that if it is of use.

The committee agreed that, if necessary, we could have people back under another module but we will try to avoid having to do that. If Ms Blackwell has any input on that, we would appreciate it. I thank the witnesses for their attendance here today, for which the committee is very grateful. We will take a ten-minute break, even though there are witnesses waiting outside, as it would be nice to grab an apple or something to keep us going.

Sitting suspended at 6.55 p.m. and resumed at 7.20 p.m.