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Seanad Éireann debate -
Wednesday, 1 Apr 1981

Vol. 95 No. 14

Criminal Law (Rape) Bill, 1980: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The object of this Bill is to amend the law relating to rape and also the penalties for indecent assault on women or girls. On rape, it restricts the admissibility of evidence of any sexual experiences of the complainant with men other than the accused. It also prohibits, as a general rule, the publication of the identity of a rape complainant, and also the name of the accused unless and until he is convicted. The Bill increases to ten years the maximum penalty for indecent assault on women or girls.

Before commenting on the detailed provisions of the Bill, I should like to make a couple of general points. The provisions of this Bill go further, in practical terms, in protecting a complainant in a rape case even than the proposals that were put forward under the auspices of the Council for the Status of Women and I do not think that anybody would suggest that the council would be less than wholeheartedly committed to the protection of victims of rape. Similarly, the proposals go further than the corresponding ones in the Private Member's Bill that was before this House.

It would seem, if one may judge from some published comments, that some of those who supported the Private Member's Bill do not yet appreciate how much further the Government Bill goes on key issues than the Private Member's Bill did, but I have no reason to doubt that the Council for the Status of Women accept and welcome the fact that we have, on major points, actually gone further than what they had suggested even if we have not accepted their view on every point.

I am claiming no special credit on behalf of the Government for the fact that we have gone further than what was contained in other proposals. The point I am making is that, far from coming in with a milk-and-water Bill that is far weaker than had been proposed by interested organisations, as has been suggested in some quarters, we were not prepared just to accept as sufficient those proposals that had been put to us. We have put a great deal of additional work and thought into some of these proposals and, on points of critical importance for the protection of women, I believe that that work and thought have paid off, for the proposals that are before the House should represent a major benefit.

The two issues that over a period had become a source of growing concern were, firstly, the question of unfair and irrelevant cross-examination of the complainant and, secondly, her fear of publicity. If one excludes the extreme and plainly untenable proposition that cross-examination about her sexual experience with other men should never be permitted, the Bill now before the House is substantially stronger than other proposals that had been made. Similarly, it is stronger on the question of publicity because it ensures that, at a stage where the question of admitting certain evidence is in dispute and remains to be settled, the nature of the evidence is not mentioned in open court.

The only point on which there could be any room for serious argument as to how favourably the Bill compares with other proposals is the fact that it does not propose to introduce the concept of rape within marriage. I shall have more to say on that later.

At this point, I would just like to make the passing observation that there have been recent attempts in political circles to suggest that this is a simple and straightforward proposal with which only the most backward-minded people could disagree. Those attempts reflect, I would suggest, a certain surprise that the Government's Bill is so positive in dealing with the problems it covers and a feeling that, since the Bill does so well on those issues, it is necessary to look around for some other issue on which to attempt to denigrate it.

In recent years there has been growing criticism of certain aspects of the present law relating to rape. As I said in the course of my Second Stage speech in the Dáil, the question of introducing a Bill on this important matter has been under consideration for some time. The objective of producing a Bill as quickly as possible had to be balanced against the objective of producing the best proposals we could — proposals that would be likely to provide real benefit and not just ones that might look adequate on paper.

This brings me to another general point on which I would like to touch briefly for the information of the House. It was suggested in the course of exchanges on the Order of Business in this House on 19 June 1980 that a decision to introduce this Bill rather than to accept the Private Member's Bill was a reflex action — by which was meant a tendency to dismiss automatically, and without regard to its merits, any Bill that is not a Government Bill. Not only on this but on other occasions the underlying suggestion — indeed it is sometimes openly stated — is that if the Government were serious they could accept the Private Member's Bill as a basis and proceed to put down amendments on Committee Stage.

Without going into the matter in any detail, I would like to take this opportunity to make it clear that if a Bill is opposed instead of being accepted on the basis that it could be amended, it is not because of any hostility to the Private Member's Bill but because it is those very amendments that would have to be put down that present the difficulty in preparation. In concrete terms, if at that time the necessary amendments concerning, for instance, the admissibility of certain evidence could have been put down, the Government would have had their own Bill introduced before then.

Rape is one of the most reprehensible crimes known to the law and its victims deserve every protection the law can properly give. One major problem exists, however, and it is one which some people overlook. That problem is that, at the very time that the criminal law is being applied, it is not necessarily known that a rape has taken place at all. If the law had to take account only of situations where rape unarguably took place and where the only issue was whether the accused man was the culprit, the problems about evidence, cross-examination and the like would be much simpler to deal with — indeed there might be no problems. The fact is, however, that the law has to take account not only of the fact that rape is a reprehensible crime but also of the fact that false allegations of rape are both possible and, unfortunately, not unknown. The law must take account of that fact and must ensure that every accused person gets a fair trial. I believe that a proper balance between the two objectives — the protection of the complainant and justice for the accused — has been achieved in this Bill.

Section 2 of the Bill provides for the first time in law a statutory definition of rape, which is now a common law offence punishable with life imprisonment. The intention is not to change the law as to the meaning of rape but to make clear what constitutes the offence. I think this is desirable. for example, to judge from her Bill, Senator Hussey seems to be of the view, which may be shared by others, that rape means intercourse by force against the will of a woman. I should like to emphasise, however, that force is not a necessary ingredient of the crime.

There has been some criticism of the fact that the Bill does not propose to change the law as to the meaning of rape. Two specific changes have been requested: first, that the definition of rape should be extended to include certain other acts of a depraved nature against women and, second, that a husband should be made liable generally to a charge of rape on his wife.

The first suggestion was made by the Council for the Status of Women and was fully considered by the Government when the present Bill was in preparation. The reason behind the suggestion was mainly, I think, the feeling that the law did not take a sufficiently serious view of certain aggravated sexual assaults on women. The approach of the Government has been, I am satisfied, the logical one, namely, to look to the penalty provided by law for such offences rather than to confuse the offences with the well-established and separate offence of rape.

What the Bill proposes is to increase substantially that penalty so that there can be no doubt of the seriousness with which these assaults should be viewed. The new maximum penalty proposed is ten years, which is a substantial punishment by any standard. The Government consider that this is the proper way to deal with this problem. Rape, as at present defined, is a distinctive crime which has been so recognised for centuries.

It is clearly established in the public mind and is rightfully viewed with abhorrence by all. To alter the definition as suggested could only have the effect of diluting or reducing the stigma which rightly attaches to rape and, far from being a protection for women, would be likely, if anything, to have the opposite effect. I may add that the Heilbron Committee in England rejected a similar proposal to change the definition and the English Criminal Law Revision Committee, in their recent working paper, shared the view of the Heilbron Committee. I know of only one jurisdiction, namely South Australia, which has abandoned the traditional definition of rape.

The use of the word "unlawful" in the definition of rape indicates that the Bill does not propose to change the present law under which a husband cannot be convicted of the rape on his wife except in exceptional circumstances. There has been criticism of the Bill in this respect, both inside and outside the Oireachtas, but Senators will recall that when the subject was discussed during the debate in this House on the submission of the council for the Status of Women a number of Senators also expressed strong views in favour of retaining the existing rule.

Let me say at the outset that there is often an implication, in the suggestion that the rule should be changed, that because the law does not in the normal course allow a husband to be convicted of rape, the law permits a husband to use violence against his wife in order to force her to have sexual intercourse with him. To imply such is grossly to misrepresent the position, and could mislead women into thinking that there is no legal action that can be taken in such circumstances. Of course the law permits charges to be brought in such cases—not charges of rape but charges of assault.

It has been suggested, from time to time, that there is a principle involved here, that the law regards a wife as the property or chattel of her husband, that rape is a crime against property and that this is the reason why a husband cannot be convicted of rape on his wife. I am advised that there is no shadow of a foundation for that view. Historically, the reason that has been most usually advanced to explain the husband's immunity is that the wife on marriage gives an irrevocable consent to intercourse during marriage. Whatever reason was advanced for the rule, it seems more likely and more reasonable to think that the underlying reason was a reluctance to have the law intrude into the intimate affairs of married people and a recognition of the enormous practical problems which would be likely to arise. The problems that would be likely to arise from hasty allegations, if it were possible for wives to bring charges of rape against their husbands, should be obvious to everyone.

There is no point in saying, as some have done, that while the difficulties of proof would be great, the possibility of bringing a case and proving it should be left open. The problem is not with the difficulties of proof—it is with the ease with which allegations could be made.

This question of legal intrusion into the intimate affairs of married people is, I believe, very important in this area, as in other areas of law dealing with the family. I have indeed heard some comments on the approach of some interested persons to this issue in the context of this Bill and the Bill to abolish criminal conversation, now before Dáil Éireann. If we say, in effect, that it is wrong for the law to facilitate the airing of marital differences in a civil action for adultery, is there not a similar issue in relation to the concept of rape within marriage? It seems to me that the Government's approach, as reflected in the two Bills, is both consistent and correct. It gives due cognisance to the principle of avoiding any unnecessary interference in such affairs.

It should not be necessary to stress that to say this is not to dismiss the ugliness of what is in question, but I am suggesting that sexual intercourse without consent as between married couples cannot be equated with the heinousness of rape as traditionally understood and I suggest that any attempt to equate them is likely to diminish the seriousness of rape in its ordinary sense. As I have said, if a husband uses violence, he is liable to be prosecuted for it.

I mentioned earlier that in the normal course a husband cannot be convicted of the rape of his wife. There probably are, however, exceptions to the rule. The only guidance we have as to the extent of such exceptions comes from cases in England where courts have held a husband liable. There are no Irish cases on the matter but it is likely that Irish courts would adopt a somewhat similar line to that taken by English courts and accept that a husband can be liable to conviction in certain circumstances. These circumstances would almost certainly include the situation where the court has granted a judicial separation or where a separation agreement exists.

It might be suggested that we should spell out clearly in the legislation the circumstances under which a husband could be held liable. There would be some merit in doing this if the matter were otherwise free from difficulty. The issues involved in this area of the law are, however, much more far-reaching than the relatively straightforward examples that I have already given. Not only would there be the difficulty of listing all those circumstances which should be punishable as rape, but questions would inevitably arise in relation to other circumstances, such as, for instance, where the marriage had been annulled under Church law and not under civil law and also cases in which there was a barring order—though such an order might be of a temporary duration only.

Moreover, to enact a provision which defined exceptions would prevent a further development of the law except by statutory intervention. I should add that the English Criminal Law Revision Committee in their working paper which appeared after the publication of this Bill pointed to the drafting difficulties that would be involved and felt that there was no satisfactory way of listing all the circumstances in which the charge of rape might be brought against a husband.

I should mention also that some commentators on the subject have stated that the Criminal Law Revision Committee have recently recommended that the husband's immunity from a charge of rape on his wife should be removed. It is worthwhile examining the facts a little more closely. First, the recommendation was a provisional recommendation only, not a final recommendation. Furthermore, it was not a unanimous recommendation—the committee were very much divided on the matter. Thirdly, and very significantly, because of the obvious ease with which a charge of rape could be brought and the problems this could entail for the family, those who favoured the recommendation did so on the basis that a charge should only be brought with the consent of the Director of Public Prosecutions. But that is not all. For the director, himself a member of the committee, is recorded as saying that he did not know what criteria he could use to decide whether or not to bring a charge. So here we have the very man who would be charged with the duty of deciding, publicly saying that he does not know how it would work in practice.

The provisional recommendation was made in a working paper for the purpose of getting comments and public reaction. It is interesting to find, from a London Times report of a few weeks ago, that one national women's organisation—the Conservative Women's National Advisory Committee—have come out against the recommendation. I assume that it will be conceded that a women's organisation, even if it has the word “conservative” in its title, is unlikely to take a stance contrary to what it regards as the best interests of women.

The legislation in South Australia, to which I have already referred in a different context, is sometimes quoted when this subject is being discussed. However, those who refer to the Australian legislation in the context of rape within marriage usually fail to mention that the relevant provision is substantially qualified by provisions to the effect that the act of intercourse must be accompanied by violence or acts of serious degradation. I wonder why it is that those important, indeed major, qualifications are omitted by people. Is it fair to suggest that they may be concerned more with a propagandist slant than with a balanced look at the problem?

The subject of what some people call marital rape is a subject on which strong opinions will continue to be held. This is understandable. On occasion, the reality can be a very ugly one. I certainly do not seek to suggest otherwise. What I do suggest, very strongly, is that the remedy does not lie in a charge of rape.

Before I leave section 2 I would like to refer to subsection (2) which is a re-statement of the present law in relation to the defence sometimes advanced against a charge of rape that the man believed that the woman consented to the intercourse. Following fundamental principles that are applicable generally in the criminal law, it recognises that it is not necessary, for the defence to succeed, that the belief should be based on reasonable grounds but it makes it clear, and this is the important point, that the presence or absence of reasonable grounds for the belief is a matter to be taken into account by the jury in deciding whether the defence should be accepted, that is whether the accused is telling the truth when he says he believed at the time that the woman was consenting to the intercourse.

I will now pass on to what is probably the most important change in the law on rape proposed in the Bill. That is the provision in section 3 which is designed to deal with one of the main criticisms made of the existing law on rape concerning the rules and practice under which evidence may be adduced and cross-examination of the complainant permitted in order to show that she had had sexual relations with men other than the accused.

Before I go into detail about this provision I would like to refer to the statement attributed to Senator Hussey after the publication of this Bill, that in this matter and in some other respects we have followed the provisions of her Bill. She was quite mistaken. In so far as the provisions are similar, neither she nor I can have any proprietary claims since we have borrowed from an English statute. What is important is not the similarity but the differences, because there are fundamental differences between the two Bills. For example, the Private Member's Bill provided simply that such evidence would not be admitted except by leave of the court on application made in the absence of the jury. Since no guidelines or tests were provided as to when such evidence could be admitted, the provision, if enacted, would ordinarily be interpreted as meaning that evidence could be admitted simply at the unfettered discretion of the court and that would be the case unless or until some higher court has set down guidelines.

This is obviously undesirable. It is a type of solution to the problem which in an American legal journal, a commentator on the law of rape has characterised as a "reform effort well meant but ill-conceived, (which) poses more dilemmas than it resolves". I might add that, unlike the Private Member's Bill, the Government Bill does not apply the relevant provisions to trials of offences under section 3 of the Criminal Law Amendment Act, 1885 and sections 1, 2 and 4 of the Criminal Law Amendment Act, 1935. It does not do so because it would have no relevance in practice. In none of the 1935 Act offences does the question of consent arise since consent is not a defence. The 1885 Act offences relate to procuration to which it would not be appropriate to apply the provisions of this Bill. In rape trials it is the fact that absence of consent is a central issue that causes difficulties about the introduction of this evidence.

I have referred briefly to the British legislation, the Sexual Offences Act, 1976, on this problem, and let me again acknowledge our indebtedness to the text of that legislation.

Subsection (2) (a) of section 3 provides that the judge shall not give leave to adduce evidence or cross-examine a witness as to a complainant's previous sexual experiences except on an application made to him in the absence of the jury. Under section 6 of the Bill the public will also be excluded while the application is being made and dealt with.

We believe that there is an overwhelming case for excluding the public from the court when the judge is hearing such applications. To enable the judge to assess the merits of an application it will frequently be necessary for counsel for the accused to indicate in some detail the nature of the evidence or of the cross-examination and since one of the main reasons for restricting the freedom of the accused to cross-examine or to adduce evidence of this kind is to protect the complainant as far as possible from the ordeal that this would entail — and indirectly to reduce the risk that this would deter other women from reporting rape — to allow applications to be heard in public — even in the absence of the jury — would be inconsistent with this basic objective and would greatly reduce the protection it would afford to complainants. Since the evidence may not be allowed by the judge, and may even be irrelevant, or indeed quite simply false, an application which refers to it should not be heard by the public. If the evidence is relevant and allowed by the judge, it will be heard by the public in the course of the trial proper.

The next important provision of the Bill is contained in section 7. That section will prohibit, subject to exceptions, the publication of any matter likely to lead to the identification of a complainant in a rape case. While the news media at present generally refrain from publishing the complainant's name, there has been at least one case in the recent past of failure to do so and women may be in fear of publication in any particular case. We are satisfied that the inclusion of this provision in the Bill is desirable in order to protect them against distressful and potentially harmful publicity.

Some anxiety has been expressed in relation to subsection (4) of section 7 which provides that if at a trial for a rape offence the judge is satisfied that the effect of the prohibition of the publication of particulars which might lead to the identification of the complainant is to impose a substantial and unreasonable restriction on the reporting of proceedings at the trial and that it is in the public interest to remove or relax the restriction, he shall make an order to that effect. There is no need for any such anxiety. This provision is designed to deal with the situation in which the identity of the complainant may be a matter of public knowledge owing to the circumstances surrounding the offence or the subsequent investigation of it or the relationship between the people involved, in which case there would be no point in requiring the press to continue to conceal her identity.

Having decided to provide for the anonymity of complainants, we considered that, on grounds of fairness alone, the accused, unless and until he is convicted, should also be protected from having his identity published and that is provided for in section 8. Provision is made in both sections 7 and 8 for seeking a relaxation of the restriction on the publication of identifying particulars where this is necessary to induce witnesses to come forward. Undoubtedly such applications will be rare. The provisions permit the judge to allow only a partial lifting of the restrictions where this would be sufficient. It might not be necessary to allow publication of the names of the complainant or defendant. Both sections also specify the persons who will be guilty of an offence in the event of a publication or a broadcast in contravention of the provisions of the Act

Before I leave these sections dealing with the anonymity of complainants and accused I would like to refer to two other points that have been made. It has been contended that the complainant should have the right to have her anonymity lifted. The Bill only proposes to give an accused this right and there is a very valid reason for this distinction.

The question at issue here is whether allowing a complainant to have her anonymity lifted in a particular case might not cause confusion in the minds of women generally and, as a result, frustrate one of the main objects of the Bill. For instance, if in a particular case the name of the complainant in a rape case were to appear in the media, the reason for such an occurrence might not be clear to the public, and an erroneous impression might be created. One such case might be sufficient to create doubt among women as to the position regarding anonymity for complainants. Also it seems to me that a woman might feel under pressure — indeed might be put under pressure — to allow her identity to be published. I have no doubt that if the identity of some complainants were published and the identity of others not published the protection to be afforded by the section would lose much of its force.

The question of extending anonymity for the accused beyond the time of conviction until the time for appeal has passed has been considered. There is a public interest in having cases of serious crime reported. It would be unrealistic to expect that newspapers would report the trial as it takes place, including the result, but would give the name of the accused only after a long time lag. The time of conviction seems a reasonable point at which to stop.

There is the further consideration that not only can there be an appeal from the Central Criminal Court or the Circuit Court to the Court of Criminal Appeal but there can, in some cases, be an appeal to the Supreme Court. To continue the ban on the publication of the name of the accused until the time for appeal has passed, and, in cases where there is to be an appeal, until the determination of the appeal, would for all practical purposes be tantamount in many cases to a permanent ban on publication. This of course, would be undesirable.

Sections 4, 5 and 9 apply the relevant provisions of the Bill to preliminary examinations in the District Court, trials of juveniles and courts-martial respectively.

I have already referred to the proposal in the Bill to provide for an increase in the penalty for indecent assault on a female. Under section 6 of the Criminal Law Amendment Act, 1935, the maximum penalty for a first offence is two years and for a second or subsequent offence five years. The maximum penalty will now be ten years. This is a high penalty in modern terms — even taking into account the standard remission of one quarter — and reflects the Government's concern about certain types of aggravated sexual assaults short of rape which have been mentioned in comments and debate about this Bill.

I might mention that the English Criminal Law Revision Committee, who were equally concerned with these types of offences, recommended that the penalty for indecent assault be increased to five years, only half the penalty which this Bill proposes. The provision will give power to the judge where he is satisfied that the offence is of a particularly obnoxious nature to impose a sentence commensurate with the crime.

The penalty for publishing or broadcasting unauthorised matter in contravention of sections 7 and 8 where there is a conviction on indictment is laid down in section 11, and section 12 contains provisions for the summary trial of an offence of indecent assault on a female or of an offence of publishing or broadcasting unauthorised matter.

Section 13 contains the Short Title and the necessary transitional provisions, including a provision that the increased penalty for indecent assault is not to apply to an offence committed before the commencement of the Act. I referred earlier in my speech to certain aspects of Senator Hussey's Private Member's Bill which we find unacceptable or inappropriate for inclusion in this Bill. I have already dealt with some of these matters during the course of my remarks so far. I will now deal with the other matters in question, some of which have also been the subject of proposals from the Council for the Status of Women. The fact that the Bill does not deal with those matters does not necessarily imply that the proposals, at least in substance, are not valid. The basic reason is that, irrespective of merit, they are not matters that could properly be, or that should be, specified in the criminal law.

The Private Member's Bill contained provisions in relation to the duties of a Garda superintendent following a complaint that rape has been committed. It is a general principle that administrative matters should not be included in legislation and this is particularly so in the case of the criminal law. It is totally inappropriate to use this Bill to impose obligations of an administrative nature on gardaí. Apart from that fundamental point, one of the suggested provisions was that a ban-gharda should be present during the taking of any written statement given by a rape complainant. What, for instance, would be the approach of the courts if for unavoidable reasons in a particular case a ban-gharda was not available when the complainant's statement was being taken? What would be the position where the first garda on the scene and able to give all assistance was a male member of the Garda? I ask these questions so as to give an indication of the problems and difficulties that could arise if provisions of that nature were included in the Bill.

The Garda have detailed instructions on how to deal with rape complainants. The instructions include an instruction that the complainant's statement should be taken by a ban-gharda where possible and in the great majority of cases this will be possible. There may, however, be the occasional instance where it might not be possible depending on where and when the rape takes place. It will often be the case that the complainant will be accompanied by a close relation or friend. The ideal situation is, of course, for a ban-gharda to be present and this will happen if at all possible.

In regard to the suggestion that the complainant should be informed of her right to be examined by her own doctor, the position is that she can be medically examined at all only by consent and she always has the option of nominating her doctor. In most rural areas this will normally coincide with the garda choice. The suggestion that Garda stations should be equipped for the type of examination necessary is impracticable. In practice the complainant is taken either to the local hospital or to the the doctor's surgery.

The Private Member's Bill proposed that a copy of the complainant's statement be supplied to the complainant before the trial. It has already for some time past been the practice to supply witnesses—not just in rape cases but in criminal cases generally—with a copy of their statements on request. It was also proposed that the complainant be referred by the Garda to a social worker or other person experienced in the counselling of victims of rape. While generally speaking there would be no objection to the Garda advising a complainant as to where counselling might be available it would be inappropriate to make it mandatory on the Garda to refer the complainant to a social worker or other counsellor. It would be interfering, in effect, with the freedom of the individual to seek whatever advice she personally desired. And there would at times be a problem also in that the Garda might have reason to doubt that the complainant was bona fide.

As it happens, the Garda instructions in relation to rape complainants are at present under review. The Garda recognise that particular problems arise in relation to rape complaints and that procedures should be kept under review to take account of these problems. I repeat, however, that these are not matters which should be included in the Bill.

Various people have proposed that at a trial for rape there should be at least four female jurors. Some of those making this proposal have referred to the fact that it was made by the Heilbron Committee in England but I do not know if they are aware of the fact that the Heilbron recommendation was rejected in Britain. As I said in the Dáil, the proposal, if accepted, would create serious problems of principle. One of the reasons behind the proposal appears to be the allegation that some defence counsel object systematically to women jurors in rape cases in the belief that all-male juries give an accused a better chance of acquittal. If the remains of such a practice still exist, it will I believe very quickly die out because the evidence suggests that male jurors are certainly not less disposed to bring in "guilty" verdicts in rape cases than female jurors. The opposite may in fact be the case if one were to go on the statistics in relation to rape trials in recent years. In the two year period 1979-80, 23 trials for rape took place. Although one must be cautious about drawing conclusions from so small a number of cases, the verdicts in these cases considered in the light of the composition of the juries suggest that the presence of women on the jury does not increase the likelihood of a conviction.

Finally, the Private Member's Bill had a provision that the Director of Public Prosecutions and the courts shall take all possible steps to ensure that rape and other sexual offences are brought to trial without delay. Such a provision, too, would be wholly inappropriate in a statute as well as having no precise meaning. The position is that, while there still are delays in the hearing of cases before the Central Criminal Court, there are no such delays in criminal trials in the Circuit Court either in Dublin or throughout the country. The problem in the Central Criminal Court is that many rape trials are transferred to it from the Circuit Court, principally from the Dublin Circuit Court. This problem should end shortly. I have introduced an amendment to the Courts Bill, 1980, which is designed to do away with the existing right of transfer of criminal trials from any circuit to the Central Criminal Court and to replace it with a right of transfer from any provincial circuit to the Dublin circuit, subject to the same conditions as obtain with the existing right of transfer. This proposal, I feel sure, will remedy the problem.

This Bill has been designed to deal in the most effective way possible with those aspects of the law on rape which have been of most concern. As I have said the main difficulty has been to strike a proper balance between, on the one hand, the right of the accused person to a fair trial and on the other hand the need to protect the complainant. I think that we have achieved this objective. Senators will no doubt agree with me that the existing penalty for indecent assault on females is totally inadequate to deal with the aggravated cases of indecent assault that we hear and read about and will, I hope, also agree that the proposal to increase this penalty is the proper way to deal with these cases.

I commend the Bill to the House.

I would like to express appreciation to the Minister of State for his comprehensive statement on the Bill. It is especially refreshing to find that a Bill coming to this House is being taken seriously by the proposing Minister. I wonder though if there is any reason for his inspiration. He revealed unwittingly that there might be when he showed his sensitivity, and his rather defensive attitude to some of the criticisms that have been made of the Bill, and the fact that private Members, through their Bills, were claiming credit for moving the Minister may have been a factor in his coming in to give us a comprehensive statement. It is an attitude with which I have some sympathy, having been in that situation for some time. But now, looking at it from another point of view, I would suggest to the Minister that it is quite unnecessary.

However, as the Minister says, there are two main changes proposed in this Bill. The first is with regard to the rights of the accused person to cross-examine the complainant as to the complainant's sexual history with other persons and the other is the prohibition on publication. The Minister also referred to the various matters which were raised in the debate in the other House and outside it which are not included in the Bill. principally, the suggestion that the Bill should provide for a new offence, that of rape within marriage. On that matter, I find it difficult to make up my mind whether the Bill should include such a provision or not. The reasons the Minister has given would incline me to conclude at this stage that the Bill is probably best without such a provision. I am aware, as the Minister has pointed out, that there have been decided cases in the other jurisdiction admitting offences of that type. As the Minister says, if such a case arose here it would probably be followed and this is probably an argument in favour of going that bit farther and making the necessary statutory change. But it is something on which I would, at this stage, still have an open mind. I would not consider the failure to include such an offence in the Bill as being a serious criticism of the Bill. I know people on both sides of the House possibly might disagree with me on that but they are my views on this matter.

On the question of the publicity, I entirely welcome what is proposed in the Bill. I agree that there should be power to exclude press reports on the identity of the parties in these offences. I think it is in ease of the complainant that that should be so. Certainly in the case of a complainant who is entirely a virtuous person and has been totally wronged, it is absolutely imperative that that person's identity would never be revealed because, being the charitable nation that we are, if it were to be revealed and even if the total innocence of that person were to be emphasised, nevertheless, there would be still some people to say that there is no smoke without fire. So, it is very important that the identity of the complainant would not be published.

Likewise, with regard to the defendant, the Minister has provided that his identity will not be disclosed until after conviction. I agree entirely with that because that recognises a sacrosanct principle of our law that a person is not guilty until proved guilty beyond reasonable doubt. It is consistent with that principle that a person would not be subject to the obloquy of publicity while he is still in the capacity of being an innocent person. However, I disagree with the Minister when he provides for that exemption to continue only to the point of conviction because, if the defendant appeals and goes to the Supreme Court and is successful up to the Supreme Court, he is entitled to have his privacy maintained right up to that stage. It is inconsistent with the principle the Minister is applying to terminate the protection at the end of the hearing at the conviction stage. In order to be consistent, it should also be continued right through the appeal process so that this protection is afforded all the way through the legal process. It is not a good argument that this might take some time and that the identity would be concealed for some considerable time. That is beside the point. The point is that the person is entitled to have his identity concealed until such time as he has been found guilty by the final court that deals with his case.

I suggest to the Minister that his Bill is faulty in that regard. Unfortunately there has been an increasing trend lately for some newspapers to report cases involving rape and sexual offences. The paper I mainly read, the Irish Independent, occasionally publishes such cases and provides, to my way of thinking, an unnecessary amount of sordid detail which is a necessary part of the evidence of those cases. It is, of course, presented in an entirely factual way. But the News of the World does likewise and has built up the highest circulation in the world. It is reprehensible that a family paper, widely read, with the biggest circulation, should publish the sordid details of sexual offences in its columns. It is a development which I regard as reprehensible and it seems to be on the increase in recent times. I just mention that in passing.

The other main change that the Minister is making in the Bill is with regard to the rights of the defendant. I would put it in those terms. I perhaps bring a perspective to this Bill, maybe unique in this House, in so far as, a practising law- yer, I have had occasion to represent people on charges of rape on a number of occasions. Let me say that such cases are not the most sought after business by any practitioner, but when they come one's way they have to be dealt with and they have to be dealt with on the basis that the defendant is innocent until proved guilty beyond reasonable doubt. That is, as I said earlier, a sacrosanct principle of our law. Up to now one of the means available to a defendant to help him in establishing his innocence was to question the concept of whether there was consent given to the alleged act of rape. This also helped in establishing whether consent was likely to have been given, because one starts off in a situation where there is a total conflict of evidence between the parties on this point. The complainant obviously having alleged rape alleges no consent; the defendant, in his defence, very often says that there was consent. The question then is to try decide whether it is likely that there was consent. This is something that has to be established by the court by examining the whole situation with regard to that particular incident and that involves the sexual history of the complainant. The court must establish if the complainant is sexually promiscuous; if the complainant is a common prostitute; if there are other aspects of the complainant's character which might tend to support the defendant's averment that consent was forthcoming and that the act of intercourse took place by consent.

That right, up to now, has been an untrammelled right on the part of the defence. I think that if we are going to put any clog on that right we are, willy-nilly, interfering with the principle that a defendant is innocent until proved guilty beyond reasonable doubt and that he is entitled to use all the elements of fact and all the elements of law to establish his innocence as well as putting the prosecution to the further pin of their collar to prove his guilt. He is also entitled to avail of any facts or any law which would tend to support his claim to be innocent. I think we have to support him in that position if we recognise and want to uphold this basic aspect of the rule of law—and it is the rule of law that makes our democracy a freedom. I would suggest, and I have some apprehensions, that this Bill is interfering with that principle because it does put a clog on the untrammelled right of a defendant to defend himself against this particularly heinous charge.

I readily concede—and I concede this from experience of having participated in these cases—that a defence which attacks the complainant is distasteful. There is no doubt that it is a distasteful defence to have to make. But we must not allow the emotion of our distaste for that offence and that type of defence to overcome the logic behind it. The logic behind it is that the defendant is being allowed to defend himself to the best of his ability and to the farthest extent so that when he is found guilty he is found guilty beyond reasonable doubt in accordance with that sacrosanct legal principle of ours.

There is a reaction here in this Bill to the emotionalism of a campaign mounted, for understandable reasons, for changes in the law of rape. That emotionalism assumes that the complainants are all innocent and that the defendants are all guilty. This is something that we would want to beware of. So far as the law is concerned both parties are innocent. The defendant is innocent until he is proved guilty beyond reasonable doubt and we—and I emphasise it again—must not take away his right to prove himself so. What we have in the Bill is a proposal that the right of the defendant to call evidence or cross-examine about the sexual experience of the complainant with any person other than the accused be now trammelled by the provision that he can only do that with the consent or leave of the trial judge. There are standards provided to be applied by the trial judge in deciding whether or not he will give leave for this evidence to be adduced or these questions to be asked, that is, that if he is satisfied that, on the assumption that if the evidence or question was not allowed, the jury might reasonably be satisfied beyond reasonable doubt that the accused is guilty. That is the rather metaphysical standard that the judge has to apply in deciding whether or not these questions are to be allowed.

Of course, it is going to be a subjective decision by the judge. Obviously one could be very lucky in the draw as to which particular judge one is before. Some judges may feel that in order to meet that criterion they would, willy-nilly, have to allow all questions automatically. Others may apply a very strict test or be rigid in excluding questions relating to the sexual history of the complainant. Obviously, in trying to make up his mind on how to comply with section 3 (2) (b), the trial judge is going to have to conduct, in my opinion, a sort of trial within a trial. He is going to have to hear counsel for the defence as to why the question should be allowed, and probably counsel for the prosecution as to why it should not be allowed, and there is going to be, in effect, a trial within a trial. Eventually the judge will have to rule on what are questions of fact, questions which should be left to the jury.

I wonder does this raise certain constitutional troubles in the future for this Bill. There is an intrusion here by the judge in what is properly the realm of the jury. If I am right in what I think, that there is a diminution of the principle that one is innocent until proved guilty beyond reasonable doubt, is that also stirring up constitutional difficulties for the future?

Subsection (3) goes even further in that where the judge has given leave in accordance with the section for certain evidence to be adduced and, having gone that far, decides on the questions that are then being asked and the evidence being given that they are now going too far he can at that stage come in and halt the defence in their tracks. One rather extraordinary phrase here is if "it appears to the judge that any question asked or proposed to be asked...." How on earth could he know what question is proposed to be asked unless he is a mind reader or a good guesser? Perhaps it would seem to be a logical question following on the train of questions being asked, but there is no certainty that what the judge considers is going to be asked will be asked. So we are asking the judge to be a mind reader. That is a further clog on the right of the defendant to defend himself to the fullest way possible within the facts and within the law.

Then we come to the situation where similar provision is made in the case of proceedings in the District Court. It is provided that where there is a preliminary examination being conducted on the charge of a rape offence, the leave of the justice has to be got before evidence will be adduced or questions asked touching the sexual history of the complainant. Then there is the extraordinary provision that when that application for leave is made the justice shall refuse it "unless he is satisfied that leave in respect of the evidence or question would be likely to be given at such a trial...." We are putting an onus on the District Court justice to make his mind up, on an application to him, on what he thinks a trial judge would be likely to do. That is a ridiculous situation.

Judges who develop their styles and their propensities in certain areas become known. One could have a situation where a district justice could have three circuits touching within his district. He could have a rape case that he knows is going to go to judge A because it happens to be in that district. He might decide that judge A is very strict and will not allow any questions on the sexual history of the complainant and therefore will not allow them in the District Court. The same district justice might go to the next town in his own district which is in a different Circuit Court area where judge B operates and he has a preliminary hearing on a rape case. He knows that judge B allows the lot because he feels that the defence is so entitled, and the district justice allows the questions in that case. That is putting an impossible onus on the district justice.

It also raises the point that, if a district justice allows these questions to be put at the preliminary hearing and they then appear on the book of evidence when the defendant goes forward, what would be the position if the trial judge feels that they should not have been allowed? What sort of a legal mess are we in then? While I admire the motives behind it and can sympathise with the need to try to protect the complainant from a scurrilous and unnecessary attack, nevertheless, I fear that in trying to achieve that desirable end, we are achieving the undersirable end of interfering with a basic legal freedom.

Rape is not a very comfortable subject to talk about. Perhaps that is why so very few people really understand the fear and the frustration and the anger with which women regard it. It is not that it is a deplorable act of violence, that it is the ultimate invasion of personal privacy but because it denies to the victim the very basic dignity that belongs to all human persons. Certainly rape should not be the exclusive preserve of the feminist movement. It is rightfully the concern of all. Concern has been expressed recently about the need to update and reform the law on rape. Since this Bill is a measure of the Government's concern and since, also, in the natural order of things it will not be operated or administered by women, I hope it will get the sympathetic consideration of all Members of the House.

To be effective the Bill should attempt to do three things. It should define the rapist; it should, in so far as it is practicable for the Oireachtas to do so, help to detect him, and it should also seek to deter him. In defining the rapist I find, in addressing myself to the definition section in the Bill, that I must be very careful about the terminology I use. I find that it does not do to throw imperfectly understood phrases about like snuff at a wake. I have found it helpful in understanding what is meant by the term "rapist" to look at some of the proven facts about the crime of rape. I should like to mention just a few.

The first is that rape is not usually a crime that is committed on the spur of the moment. The majority of acts of rape are carefully planned and they are deliberate. Another fact is that over half of those who commit rape are known personally to their victims. Apart from a tendency towards violent behaviour which may not be at all apparent, most rapists appear to be quite normal people. Another fact is that most married men who commit rape have otherwise normal patterns of sexual behaviour. These facts are quite alarming because they show the rapist to be an apparently normal, ordinary sort of person, the sort of person one would have no hesitation about inviting into one's home or accepting a lift from.

Another fact is that although the number of crimes reported has not increased, this fact is generally considered by the Garda authorities to be irrelevant as the number reported represents only the tip of an iceberg of quite unknown proportions. The failure on the part of the victim to come forward and report the crime is particularly sad because her reluctance to do so must be based, quite understandably, on a desire not be involved in court proceedings which, at worst, will be unsavoury and, at best, will be distressing, and also on her knowledge that the stigma of rape attaches just as much to the victim as it does to the attacker. From these proven facts one builds up a picture of a deliberate, callous act of violence having little to do with sex other than being an expression of the frustration of sexual inadequacy and, if I may say so, a picture that is quite different from the traditional image of the rapist as a latter-day Young Lochinvar. The person who deliberately and wantonly waylays and rapes a woman and who, until he is apprehended, holds the community at large to ransom is the rapist that this Bill is and properly should be concerned with.

At the same time, it is altogether correct that concern should be expressed about the position of the married woman in relation to the conduct of her husband. What may not be generally understood by those who wish to enlarge the statutory definition of rape to include what has come to be called marital rape, is that there are circumstances in which a husband may be guilty of the offence of rape if he has sexual inter-course with his wife without her consent. It can by no means be presumed that sexual inter-course by a husband with his wife can never be unlawful within the meaning of the definition contained in section 2 of the Bill.

It does appear that even before the turn of the century responsible judicial authority was not prepared to assent to the proposition that rape between married people was impossible, and this notwithstanding the traditional view to the contrary. The word "unlawful" contained in section 2 of the Bill is not to be interpreted as outside matrimony and not otherwise. For example, intercourse by a husband with his wife may be unlawful where there has been a judicial separation or a deed of separation executed by both parties, or where a court has granted a wife an injunction against molestation, or where the husband himself has given an undertaking not to molest. Again, there is judicial authority of long standing for the proposition that a husband's act may be unlawful if it constituted cruelty and, as such, was a cause for a judicial separation. It follows from this that inter-course constituting a matrimonial offence is unlawful within the meaning of the definition section of the Bill and capable of being rape if the other ingredients of the crime are present.

The civil law recognises that the wife may properly withdraw her consent in certain circumstances. She is not bound to submit to unreasonable demands by her husband. She may refuse intercourse because her husband has been guilty of a matrimonial offence which she does not wish to condone or because he is suffering from a venereal disease. It is a mistake to assume that the law leaves the wife defenceless against violence by her husband. It has been held that though a husband has the right to sexual inter-course he is not entitled to use force or violence in order to exercise that right and that if he does so, he may make himself liable to the criminal law for whatever offence the particular facts of the case might warrant. Therefore, not alone is it unnecessary to make statutory provision for so-called marital rape, but to do so might be mischievous and cause undesirable consequences.

A certain dictum of a Lord of Appeal in England might be worth considering in this matter. It states that "if the wife is adamant in her refusal, the husband must choose between letting his wife's will prevail, thus wrecking the marriage and acting without her consent, and that it would be intolerable if he were to be conditioned in his course of action by the threat of criminal proceedings". In my view, if a situation were to arise between husband and wife where she was prepared to make the necessary complaint and take the necessary steps to have her husband convicted and imprisoned for rape, then there could be no question of the marriage surviving, and cohabitation would have ceased anyway. It is clear that where cohabitation has ceased, the crime of rape by the husband against the wife is possible.

It will be seen, therefore, that if the conduct of the husband towards his wife is intolerable her obvious course is to seek an injunction, a barring order, a judicial separation, or all three. I do not believe that a wife could wish to have her husband indicted for rape and pick up the threads of their marriage when he is released from prison.

It is worth noting that the definitions contained in section 2 are in precisely the same terms as those contained in section 1 (1) (2) of the United Kingdom Sexual Offences Act. These definitions follow detailed research on the subject and, in applying the terms of the Bill before the House, our courts will have the benefit of English decisions and judgments on the interpretation of the definition.

One cannot ignore the fact that one of the results of rape may be pregnancy. This is recognised in the Bill by confining the definition of rape in section 2 (1) (a) to an act of sexual intercourse. A wider definition, to include other forms of sexual abuse should be more properly contained in a Bill designed to cater for such offences.

We should consider how the process of detection can be improved. Two facts should be remembered. No obligation should be placed upon the Garda authorities that may be impossible for them to meet or that may impede pursuit or detection of the offender, particularly in country areas. We must remember that the ordeal of the victim is not over. She now becomes the complainant in a criminal charge. She must remember and is cross-examined about an event, which if she is to get over it without suffering undue and unnecessary stress, would be best forgotten about. It is vitally important at this stage that she could be conscious of the support and sympathy of the authorities and everything possible should be done to ensure that this support is forthcoming. The decision in the Bill not to admit evidence of the complainant's previous history is a most important and welcome step, as is the decision to preserve her anonymity. This latter step is one which I am sure the Minister took only after mature consideration since, generally speaking, the greater the secrecy element in criminal proceedings, the less likelihood there is of a just verdict. The degree of notoriety that a crime of rape attracts from the media justifies the decision.

The increase in section 10 of the penalty for indecent assault is welcome. However, the best deterrent to this type of attack, and indeed to all types of violence, is the provision of a greater Garda presence in the streets. I have watched with concern over the last decade or so the decrease in the number of gardaí and Garda stations in rural areas and the consequent rise in the number of crimes of vandalism and violence generally. A further and most effective deterrent would be to prohibit a person convicted of rape from ever again holding a driving licence. The reasons for this are self-evident.

Within the limits then, of the definition, detection and deterring of the rapist, this Bill is an adequate response by the Government to the need for improving and updating the law in relation to rape. It shows the concern and mature consideration that ought to characterise a Bill drawn up with all the facilities a Government Department has available to it. The Minister is to be complimented on its proposals. I feel sure that it will be welcomed by concerned women everywhere.

As I listened to the Minister reading his long speech introducing this Bill I was struck by the old saying: "Methinks he doth protest too much". I think it was one of the most defensive and political speeches introducing a measure of social legislation that I have heard in this House. Indeed, it seems to be the kind of speech that would be more appropriate for parish pump politics rather than a speech introducing a measure of this kind on Second Stage. I propose to go through that speech and to point out some of the comments which I think reflect this.

Perhaps the Minister is feeling very defensive. Perhaps the Government are feeling very defensive at the length of time it has taken to bring in this measure and at the narrowness and conservatism of the measure, considering that it is the legislative response in 1981 to this very serious and important social issue of how we protect the victim of rape and how we prosecute and how we define the crime of rape.

The Minister referred to the fact that it does not appear to be appreciated by some people who supported the Private Member's Bill how much further the Government Bill goes on the key issues than did the Private Member's Bill. This begs a certain question. It begs a definition of what the key issues are. The major criticism that I have, as somebody who supported the Private Member's Bill, introduced by Senator Hussey, as being a measure which was one this House could well have discussed last June when it was introduced as the basis for good legislative reform in this area, is that this Bill dodges the key issues. It does not deal with the two major issues which are related to extending the definition of rape and the question of including marital rape. If you were to consult in detail the women's movement, in a broad way these would be the key issues as far as that movement is concerned. This Bill deals only with the key issues as defined by the Minister. If one does not accept the definition then that argument falls.

The Minister said he would like to make the passing observation that there had been "recent attempts in political circles"—what does this mean? It is very general language and runs right through the Minister's speech, general smear references without defining exactly who has said what and in what context. He said there have been recent attempts in political circles to suggest that this is a simple and straightforward proposal with which only the most backward-minded people could disagree and he suggested that this is because of a certain surprise that the Government's Bill is so positive.

There has been a good deal of public discussion and public campaigning for reform in the law relating to rape. I welcome this. I think we have seen a very good example of positive response, particularly by the women's movement, by the Council for the Status of Women and by the Rape Crisis Centre which, curiously enough, gets no mention whatsoever in the Minister's speech. He took the trouble to refer to and approve of a British Conservative women's organisation and their views, but he never referred to the Rape Crisis Centre which has done valuable work in this area and which had a long, serious and detailed meeting with the Minister last September about the proposed Government measure, before the measure was introduced. In view of the fact that the Rape Crisis Centre has not been mentioned at all, is it part of the campaign to denigrate the Government Bill and its provisions?

The Minister, speaking about the Private Member's Bill introduced by Senator Hussey, referred to exchanges which took place in this House on 19 June 1980 and the criticism that a decision to introduce a Government Bill in the future was a reflex action to the Private Member's Bill which should have been allowed to proceed and to be debated. He suggests that to have proceeded with the Private Member's Bill would somehow have caused greater delay than to introduce a Government Bill.

I recall that debate in the House and the very strong impression given — it was an impression that was clearly endorsed by the female members on the Fianna Fáil side of the House that a Government Bill was so imminent that we should not debate Senator Hussey's Bill when she tried to have it debated last June — that it certainly would be circulated before the summer recess. The Government Bill was not circulated until 15 October 1980. We could have had a debate in both Houses on Senator Hussey's Bill as amended or we could certainly have had a debate in this House on the measures in the Bill given that there was no Government Bill pending at that time. There was a four month gap before any Government Bill was introduced. That is a fairly weak argument by the Minister in response to that particular criticism.

On the reasons for not extending the definition of rape, and I will come back to this when I am making my submissions on the Bill itself, the Minister seems to be following some kind of fallacy which boggles the mind. He felt that there is a well established and separate offence of rape, having earlier said that a lot of people did not understand what the offence of rape is, that it is a distinctive crime which has been recognised for centuries and that it is clearly established in the public mind and rightly viewed with abhorrence by all. The whole concept of extending the definition of rape is to ensure that it encompasses what is effectively regarded by women as a rape upon them and the incidence of which can sometimes be a great deal more horrific, appalling and abhorrent to women than the narrow definition of rape continued by this Bill.

It is not possible to accept the Minister's conclusion on this, that "to alter the definition as suggested could only have the effect of diluting or reducing the stigma which rightly attaches to rape". On the contrary, the stigma would be reinforced and this conduct would be rightly categorised as constituting the crime of rape.

The Minister similarly deals at some length with the question of marital rape. I should like to point to what I consider to be an interesting approach by a Minister who is piloting a Bill through the Oireachtas in 1981. He referred to the fact that the Bill will not extend in a legislative sense to include marital rape but that there are, nevertheless, probably exceptions to the rule, exceptional circumstances in which a husband could be charged and convicted of rape. Then he went on to say, and I found this pathetic, that:

The only guidance we have as to the extent of such exceptions comes from cases in England where courts have held a husband liable. There are no Irish cases on the matter but it is likely that Irish courts would adopt a somewhat similar line to that taken by English courts and accept that a husband can be liable to conviction in certain circumstances. These circumstances would almost certainly include the situation where the court has granted a judicial separation or where a separation agreement exists.

Why are we depending on a possible willingness by Irish judges to follow English judges in a case law on whether or not a husband can be charged with rape instead of dealing with it as legislators in the Legislature? One of the reasons that we are not doing it is immediately clarified by the Minister. It is because of the state of our marriage laws. It is because we have such an indefensible marriage law. The Minister goes on to show that the matter is not free from difficulty. He said the issues involved in this area of the law are much more far-reaching than the relatively straightforward examples he had already given. He went on to say that not only would there be the difficulty of listing all those circumstances which should be punishable as rape but questions would inevitably arise in relation to other circumstances such as, for instance, where the marriage has been annulled under Church law and not under civil law and also in cases in which there was a barring order, though such order might be of temporary duration only.

In other words, the difficulties that the Minister is relying on for not giving clear legislative guidance in this area are difficulties that have to do with the lack of reform of our marriage law in a more general sense and the anomalous position in which a lot of couples find themselves in Ireland if they have terminated, in their view, a marriage relationship but have no legal means of doing so, if the marriage relationship has ended and they are living with someone else or if they have had a Catholic Church annulment and are living with somebody else. I still find it an unusual reason for not bringing in legislation in 1981 that there are cases in England that might be followed by courts in Ireland that might sometimes tell us in what exceptional circumstances a husband might be convicted of the rape of his wife. Somewhere along the line we seem to be dodging our responsibility as legislators.

The Minister comes back again to this vague accusation, in a generalised way, that those who have been voicing criticism of the present law and campaigning for reform want either to denigrate the Government measure or have a propagandist slant, to use the Minister's words, in their approach. He wonders why these important and indeed major qualifications are omitted by people. What people? Why does he not mention names here? Does the Minister mean the Rape Crisis Centre, for example, one group who have been very vocal? Does he mean the Council for the Status of Women? Who does he mean when he says "people"? He asks is it fair to suggest that they may be concerned more with the propaganda slant than with a balanced look at the problem. It is not fair to suggest that in such a generalised and unspecified way because, to do so, implies a criticism and a downgrading of all public discussions that have been held when campaigning for reform. That is running counter to the reality which is that it was not until the homework was done by the Council for the Status of Women in their detailed memorandum, detailed papers and meetings on the subject of rape, and until the Rape Crisis Centre was established in early 1979, meeting the problem at first hand and evolving its own expertise and its own well documented views on the types of reform that were necessary. In addition, it was not until the initiative was taken by Senator Hussey that there was sufficient political pressure to generate a priority at Government level which has resulted in this Bill which was published last October.

I should like to do what the Minister singularly failed to do in his speech, to pay tribute to the work done and to the very valuable social role played in this area by the Rape Crisis Centre since it was established in 1979. I should like to pay tribute also to the women's movement in Ireland for having ensured that this issue caught the attention of politicians, the majority of whom are male. In particular, I should like to pay tribute in that context to the Council for the Status of Women for the extensive preparatory work, documentation and further specialist papers on aspects of rape which they brought together and complied. I should also like to pay tribute to Senator Hussey for having taken the time and trouble to prepare a Private Member's Bill, to have the Bill published and circulated to Members of this House, to draw attention to the need for reform and for the way in which the provisions of the Bill were publicised and resulted in a better understanding of the urgent need for reform in this area. I regret that the Minister's approach appears to be one of attacking the differences between that Bill and the Government measure, rather than giving a generous credit to a political initiative in an area of social reform.

I should like to turn now to the actual terms of this Bill and to set out some of my main criticisms at this stage. There are a number of points which are more appropriate for a Committee Stage debate later, but the first criticism which I have of this Bill, one which is being fairly generally voiced, is in relation to the narrow definition of the crime of rape. This is a narrowness in two senses. First of all, before I deal with the question of the possible extension to include marital rape, I want to deal with the specific nature of the rape offence. Under Section I of the Government's Bill there is a reference to sexual intercourse which is key to the parameters of the crime of rape, and under Section 1(2)——

In this Act references to sexual inter-course shall be construed as references to carnal knowledge as defined in section 63 of the Offences against the Person Act, 1861, so far as it relates to natural intercourse (under which such intercourse is deemed complete on proof of penetration only).

That may sound very technical, but what it amounts to is that the crime of rape will only extend to the form of sexual inter-course which involves the actual penetration by the penis into the vagina. That is a very narrow definition of the crime of rape. It does not, for example, cover the insertion without consent of the penis into the mouth or into the anus. We have to speak plainly here. It may be uncomfortable, as Senator Cassidy said, to discuss rape and to discuss aspects of rape, but we have a duty as legislators to speak openly and clearly about what we mean. That is one way in which the definition is defective. The other way is that there are other acts of insertion into the body of a woman, for example, the insertion of a bottle or a stick into her vagina which are to any woman an appalling form of rape, and yet they are not rape and will not be rape under the terms of this Bill. They will be classified as indecent assaults, and this Bill does propose to increase the maximum penalty to ten years. But if the whole purpose is to show public awareness of the increasing incidence of rape, to acknowledge the fears and the distress caused to women by rape and to meet the real situation of the kinds of rape that take place, then we must extend the definition of rape to bring it into line with the practical and actual context of rape.

The Minister seems to be hung up on a Victorian definition which has for all time sanctified for him the Victorian concept of what was meant by rape. It is rather like Queen Victoria never having brought in any criminal provisions outlawing lesbianism because she never even knew it took place. We have to operate in the real world. We must realise the ways in which women are sexually assaulted in a manner which they regard as rape, which they want to have defined as rape, which they want to have charged against the perpetrator of it as rape and which they want to have leading to a conviction for rape. Far from undermining or diluting the definition of rape or making it less abhorrent, this would make it clearer and the law would conform with the practical problems and achieve the objective which we ought to be intending to achieve, of updating the law on rape by updating the definition of the crime of rape. That is the first point where I think the measure is basically defective and would require to be amended if it were to be an acceptable response as a legislative measure.

The second area is that under the necessary meaning of rape in section 2 a man commits rape if he has unlawful sexual intercourse with a woman and so on. The word "unlawful" inserted there is the word which triggers off the exclusion, except potentially in exceptional and undefined circumstances at the moment under our law — excludes a husband from being open to a charge of rape. The Minister, in his speech in dealing with this subject, refers to the whole question of whether or not, and the extent to which, the law should intrude upon or at all intervene between husband and wife. In fact in a modern State the law intrudes, intervenes, protects, helps and secures relief within the marriage relationship in all kinds of ways. Under our Family Law Maintenance of Spouses and Children Act, 1976 where a husband and wife are living together, the husband is obliged to maintain the wife if he is the breadwinner in the family. If he fails to do so then the wife, while still living with him in the family home, can get a court order for maintenance. That is an intrusion.

On the protective side, the wife can sue the husband for assault. Why is the Minister drawing a line between it being an accepted and long time part of our law that a wife can take out a summons against her husband for assault but in circumstances where she has been raped by him in all but law she is not given the legal remedy that would be open to her if this had been done by some other person, either somebody she knew or a stranger? The Minister has failed to justify the distinction and is failing to follow a change in the law which has been made now in a number of other countries. Perhaps the Minister would give us some information in his reply on the number of countries now which have extended the crime of rape to include marital rape. I am certainly aware of recent prosecutions in France, for example, for marital rape, and I would be very interested to have information on other countries where this change has been made. It is different from the other argument the Minister made in declining to extend the Government Bill that it would be inconsistent with the proposed Government measure repealing the remedy of bringing an action for criminal conversation and other related actions and that the Government had been under considerable criticism when it had appeared as though it was going to accept the recommendations of the Law Reform Commission and allow actions for adultery, allow either party of a marriage to sue and recover money for adultery. This is a completely different area. This is an area where the law is seeking to protect, where the law already protects to a lesser extent and yet does not appear to be going to protect when protection is perhaps most needed. If a rape, in the real if not in the strictly legal sense, unless we extend the definition, takes place of a husband on his wife she has partial remedies at the moment. She can sue him for assault, she can seek to use it to obtain a barring order, she can have some partial relief, but she is denied the full protection of the law.

There is another factor which is important. If in 1981 we are legislating on the crime of rape—and we are doing it after a fairly wide-scale discussion on the subject, which I welcome very much and which has been a very responsible and a very useful and democratic discussion —and if we fail to extend the definition of rape to include marital rape, are we not, as legislators, to some extent turning a blind eye on rape within marriage? Are we not to some extent saying we are not prepared to call that rape and give the victim the full protection of the criminal law and allow the perpetrator to be prosecuted for rape? Is there not an implication that we are somehow condoning it because it is within the marriage relationship and putting higher a reluctance to intrude on a marriage relationship than the need and the desire to protect a wife in those circumstances? I am not trying to diminish or belittle the possible difficulties and the possibilities of certain abuses of false allegations being made and I am willing to see certain limits on the circumstances in which a prosecution for marital rape can be brought. It is important that we face up to the lack of consistency in our approach and give the full protection of the criminal law where necessary, and bring the full weight of the law to bear on the committal of rape within marriage, and on the liability of a husband to prosecution for rape within marriage. For me, these are the key issues in relation to rape and they have not been dealt with in the Bill.

I do not have the same substantial criticisms of the approach of the Bill to the issues of confidentiality and the anonymity of the complainant and the accused. I do not agree with Senator Cooney that the accused should have anonymity during the course of appeal to a higher court, possibly an appeal, on a point of law of exceptional public importance, to the Supreme Court. This goes beyond the public interest in securing the anonymity of the complainant which leads to a fairness to the accused of protecting his anonymity until conviction. There is then a much greater public concern to have the knowledge that an accused has been brought to justice and the public record there to show it.

There are a number of issues which the Minister referred to as not being issues which are best dealt with in legislation but are rather administrative matters. Even here I fail to see why his approach had to be so grudging, and almost petty, on the issue. For example, on the question of improving the procedures for dealing with a complainant, the person who has been raped, and the court procedures which follow, in his speech when dealing with the role of the Garda and improving procedures in Garda stations the Minister said:

As it happens, the Garda instructions in relation to rape complainants are at present under review.

It is happening, I believe, because of legitimate complaints that have been made and because of the campaign for reform in these procedures. It did not just happen by accident. Surely it would be more honest, generous and straightforward to say, "In view of the submissions made by the Council for the Status of Women, and in view of the evidence and empirical data provided by the Rape Crisis Centre, I took it upon myself to issue instructions" or "I have had X number of meetings with senior members of the Garda" rather than saying "As it happens" as though it were a totally unrelated coincidence.

It is extremely important to ensure that, coincidental with this legislative measure, there are a number of important administrative reforms and improvements in the judicial process in relation to rape. One important improvement that is necessary—again I do not think it is one that can be legislated for as such, but it is certainly one that could receive more attention and recognition—is the need for early trial of rape cases. There are very special considerations that apply, particularly the position, the pressure on, the tension and further victimisation of the complainant if there is a delay before the trial. We have seen evidence of what appear to be very long delays, delays of several years, in the prosecution of rape cases. This must be a matter of urgent priority.

The Minister has declined to legislate for the presence of a ban-gharda to question and be of assistance to the rape victim. The Minister could go further than he appears to be prepared to go and ensure that where a person has been raped that it is, if not guaranteed, certainly extremely likely that the person dealing with the matter would be a ban-gharda, that a ban-gharda would be present at the station.

That is not an adequate answer to the proposal for reference to be made either to the Rape Crisis Centre, if it happens to be in the Dublin area or surroundings, or to a social worker or a member of the caring profession, to use a general description, in cases of rape. It is not a question of mandatorily requiring the victim of a rape to present herself for some sort of mandatory procedure. It is a question of what kind of concern for full information and back-up to the victim, and what kind of resources, the community are prepared to put at the disposal of a woman who has been through the horrific experience of rape, or attempted rape. What is needed is a political recognition of the importance of improving the Garda and judicial procedures relating to rape, not that we have necessarily to incorporate them in legislation if this would be too rigid and inappropriate a way of doing it, but that there be recognition that there has been a failure to ensure that we had adequate procedures in this area and a generous and concerned response to the submissions and the arguments that have been made.

We must be concerned that when there is a trial for rape, although women are now much more evident in the jury panels and are well represented on general jury panels, there is still a pattern of challenging women jurors in rape cases. This is very serious. The challenge is made in order to get rid of a woman juror because she would be thought to be more likely to be sympathetic to the victim and to take a rather stronger view of the crime of rape itself, and of her abhorrence at the crime, and this might be reflected in the approach of women jurors.

The mentality of a barrister or solicitor challenging the female juror is precisely the mentality which undermines the apparent fairness of the judicial procedure, because if it is possible to use the challenge system to get rid of women jurors then that is defeating the impartiality of the trial itself. There are a number of ways this can be countered. There can be a provision that, in those particular circumstances, a female juror cannot be challenged without cause shown. I think that is probably easier to structure than a fixed composition of a jury to ensure, as has been suggested, that a certain number of members of a jury in a trial of rape be women. There is a problem there and at the moment we are failing to take any steps to meet it.

We have to realise, as I said initially, that this is probably the only legislative measure dealing with the crime of rape we are likely to see given the pattern of social legislation that comes through both Houses. There is very little of it and it comes generally very late in the public appreciation of the need for reform. There are very substantial numbers of other areas where we need a social reform, whether in the area of social legislation or family law reform and it is unlikely we will have another bite at this particular issue for a number of decades. Therefore we legislate for the rest of this century. In doing so, we must be concerned to ensure that the legislation does meet the key issues, not as perceived in the mind of the Minister, but as seen on the ground by the women's movement in Ireland and by those closely involved in helping rape victims, or in being aware of the particular fears and concerns of women who are the potential victims in rape cases.

For that reason, everybody concerned, as the Labour group in the Seanad and I are to see broad based constructive social legislation reforming rape is faced with a dilemma with this Bill. It is very difficult to know whether to oppose it at Second Stage, because it does not meet the key issues in the reform of rape — I do not say that in a denigrating way. I would be very happy to welcome this Bill if I felt it really did meet the needs which have been well identified and well campaigned for over the last two years. It is very difficult to know whether to oppose it at Second Stage or to try through the Committee Stage to introduce fairly substantial measures of reform. The reason why I feel that that is not a very realistic option is because the general experience in this House is that it is difficult to get major reforms accepted in a piece of social legislation when it has already been through its debate in the other House. I note that the Bill was opposed at Fifth Stage in the Dáil presumably for the same reasons that it had not shown itself to be legislation which met the needs and key issues in this area and which was too narrow and too limited to be a genuine satisfactory reform of the law on rape.

Even though I believe it is vital and necessary to update and reform the law on rape, I find myself unable to support this measure as forming the basis of it, although there are lesser provisions in this Bill which I would be prepared to support which would be improvements and reforms. I believe it is necessary to explain why I oppose this measure where it might be thought that any female Senator particularly would necessarily have to accept it. If we can show by voting against the principles of this Bill that it dodges and evades the key issues, then that is an important message to try to bring home and may reflect the possibility of improving and amending the Bill on Committee Stage.

I am glad this Bill comes before the House. The subject it deals with is one of the most emotive possible. As an act it is one of the most abhorrent in a civilised society. This Bill is overdue. One cannot but commend the various women's organisations involved for their dedicated campaign to have legislation enacted which would deal adequately with that crime. I equally commend the Government and the Minister for bringing this Bill before the House.

Not very long ago the subject of rape was one of taboo or, worse still, reduced to a snigger. I find it difficult to apportion which of the two reactions would be the worst. Young people of my own age, in their twenties, tend to take neither attitude but rather one of social concern for the problem. No Bill can, of itself, eradicate rape. All it can do is first, hopefully, to act as a deterrent by its penalties and operation and secondly, give greater protection in the legal proceedings involved to the innocent female. It would be nice to think we could legislate rape out of existence but that is like believing if we ban funerals we can eradicate death.

There are three main points in this Bill: first, the restriction of admissability of evidence of any previous sexual experience of the complainant involved in the case, second, the anonymity of the complainant and the accused, and third the five-fold increase of the maximum penalty from two to ten years for indecent assault. Over the last couple of years there has been a marked increase in the incidence of rape, particularly in urban areas. Even in rural areas some horrific incidents have occurred. Only last week I read in a provincial newspaper of a man and woman walking along a country road, being knocked down by a motor car. What did the occupant of the car do? Was it a hit and run? No. Did he get a doctor? No. He got out of his car, raped the injured woman on the road and then drove on. Luckily this gentleman — if you like to call him that — was apprehended and was sentenced to ten years. In a case like this, is legislation of this nature strong enough to deal with that type of individual? Do we not need even more draconian measures to deal with that kind of crime, particularly if it is repeated? Such measures are not all that uncommon. You do not have to go to countries in darkest Africa to find measures that might deal with this problem more effectively.

The provision in the Bill for the admissability of previous experience of the person involved is an improvement. Up to now a woman already having suffered the trauma of assault was faced with questions of her previous experience with other men, if any. This was wrong for many reasons, the obvious one being one of simple embarrassment which covers a very very wide area. If a person was of a strong conscience and believed in the truth, she could find herself relating to some relationship that certainly was not based upon rape but in all probability upon love and affection. This old provision meant that few women would actually face a courtroom proceeding where they would be faced and subjected to what must be in the circumstances virtually star chamber activity relating to what might have been their alleged track record. The net result of that situation was that rapists escaped while women suffered.

I also welcome the fact that the names of victims will not be published, as this also led to the non-reporting of the assault to the gardaí on occasions. Many women, I am sure, were afraid or did not want their friends, neighbours, relatives or family to know about the occurrence. The strange effect this publicity has had is quite remarkable, especially in rural Ireland from whence I come. I have often heard the old refrain across bar counters when somebody told of having read of a case in a provincial paper, or a national paper, that she must have asked for it, or worse still, that there are two sides to every story. With these possibilities of notoriety, what woman would want to go to court?

The increase from two to ten years for indecent assault is welcomed. In this case we are dealing with a grave crime against a person, a crime by the strong against the weak, a crime whose effect is much more lasting and detrimental than a broken jaw. At the time of lodging a complaint a woman should be afforded the opportunity of being questioned by a ban-gharda, as I imagine the reassuring presence of a female on such an occasion would surely help a person who must already be feeling the mental trauma regarding what has taken place. I would go so far as to suggest that in our larger centres we could have a special group in the Garda who would be specifically trained to deal with such affairs. In areas where there is the potential of what is known as group or gang rape occurring we could devise a means to prevent the crime happening. This would probably be easier to do in urban areas, but in rural areas it would be more difficult to ensure the presence of a ban-gharda.

Earlier the question of marital rape was raised. I do not think anybody here can seriously believe that because somebody enters a church or registry office, takes vows and signs a particular set of documents that gives him a God-given right to use or abuse his wife within marriage.

In his speech the Minister alluded to this and said that the wife has the option of the charge of assault against the husband. If more people pursued this course it would improve the situation because this type of thing cannot continue. A wedding ring is not a free-for-all prospecting licence. Very often the abuse of the wife is brought about by one thing, alcohol. This can be dealt with as a crime of assault, and future legislation in that regard could deal with that in greater detail. If there is abuse of that nature in a family, the people who suffer are not alone the wife and the children. If children are present they may be scarred by such events and may have psycho-sexual problems in the future. I am not a legal expert, but I appreciate the intricacies involved in the legal sense and the emotional question of intimacies of the husband and wife relationship.

In conclusion, I would like to congratulate the Minister and the Government for introducing this Bill, which will add to the protection of women in society.

Like Senator Robinson, I am in a dilemma. I welcome the proposals in this Bill in general, but in many ways they do not go far enough and do not deal with all the issues that need to be dealt with. I would also regret the rather begrudging approach in the Minister's speech. He goes to great lengths in trying to prove that the Government thought of this all by themselves, as if they never heard anyone else speak of it beforehand, that it is quite coincidental that they produced a Bill at the same time as other people brought in a Private Member's Bill, or that there was a public outcry about this matter. This is a mistaken attitude to take about the whole process of democracy, because one of the essential and important things about the whole process of democracy is that the Government should respond to what is seen to be a public demand where it is right and where they feel they can do so. There is nothing wrong with a reflex action in this situation. They should be willing to stand up and be proud of this and say: "This country is a democracy. We have become aware that a great many women are very concerned about this problem and that a great many men were allied with them in being concerned with this problem. We feel, as a Government, that we have to do something about it." They do not have to pretend they thought about it by themselves. This is the right way of reacting to a problem that needs to be dealt with, and we would expect our Government to have some reaction to it.

I was exceedingly glad to see in section 3 and the following sections an effort to cope with the problem of evidence in rape trials, because only someone who has actually been present at a rape trial can be fully conscious of the way in which the complainant, the victim of the rape, can be pilloried in the witness box to try and save the bacon of the accused. I feel that a genuine effort is being made in this Bill to deal with this problem. There may be some slight difficulties which might be dealt with on Committee Stage, but at Second Stage, I would certainly confine myself to welcoming this idea and the protection of anonymity which is given to both the complainant and the accused. I agree with the Minister that the degree of anonymity granted to the accused is sufficient to the end of the trial.

I deeply disagree with Senator Cooney's argument about a person being innocent until proved guilty, and so on. Senator Cooney says he feels the Bill is a reaction to emotionalism on behalf of the victims of rape. In the first place I fail to see exactly what is wrong with emotion in a situation like this. I do not denigrate emotion. I do not think we should live our lives without emotion. Emotion happens to be rather important.

The idea of innocence until proved guilty in a situation like this has, too, an emotional content. We are talking about an emotional protection of the accused, as well as an emotional protection of the victim of rape. This was brought out very clearly in Senator Cassidy's contribution. She pointed out that the reported cases of rape were the tip of the iceberg, precisely because the complainant is afraid to bring charges because she knows what is going to happen to her in the witness box, and she knows the kind of notoriety that may result from her making complaints. This is a very important point and this issue has genuinely been dealt with, to a very great extent, by the Bill, and I welcome that.

I would like to go on to the problem of the definition of rape. Such bodies as the Rape Crisis Centre have put forward the idea that the definition of rape should be extended to include other forms of sexual assault, such as anal or oral forced intercourse or penetration of the vagina by objects such as bottles, sticks and so on. This is something that could be included in rape. It is not quite the same thing as indecent assault. It is definitely not an ordinary assault, in the sense that it has very close sexual connections. From the point of view of the woman attacked in this way she feels it and sees it as rape, as a form of sexual intercourse against her will. I do not know that the argument that one should keep the crime of buggery separate as a sort of crime as between both men and men and men and women in a separate little compartment holds water. We should deal with assaults on women of a rape nature all together in the Bill.

There is, too, of course, the question of the definition of rape to include rape within marriage. That this type of enforced sexual intercourse within marriage exists cannot be doubted. It exists quite widely. I have only to read the statements made by my own clients in matrimonial cases to see some extremely tragic instances of this variety. They are not so uncommon as some Senators might like to believe. Very moving desciptions of what can happen within a marriage occur in quite a number of our court hearings today, but they are, of course, not reported because those cases are held in camera. But this certainly does happen. I appreciate, of course, the considerable difficulties that come into this situation through the inherent difficulties of proof and the dangers of false accusations being made. I do understand, of course, that there has to be some kind of limit on this sort of thing, particularly where the parties are living together in a superficially normal way. It is difficult to see how one can establish proper categories as proof. At any rate it should be made clear that this type of rape can exist in situations where the parties are no longer cohabiting. Cohabitation should be taken as a fact to be proved rather than simply as something that must be proved by a judicial separation or, indeed, by a written separation agreement. This has been one of the difficulties in the English cases that the Minister has been anxious for us to follow. It has been implied that it is necessary to show lack of cohabitation by a separation agreement and, very possibly, by a separation agreement which contains a non-molestation clause. Though those of us who draft separation agreements would include such a clause as a normal clause there are separation agreements which are drafted informally, as it were, by the parties which might omit a clause of this kind. Surely cohabitation or non-cohabitation is a matter which is open to factual proof and, therefore, it would not be beyond possibility to suggest at least that a case of matrimonial rape could be established where the parties are no longer cohabiting.

I share what Senator Robinson said about the incredible mess of our family law situation where we have these canonical nullities, civil nullities and all the different forms of separation which take place under the Act dealing with the guardianship of infants and the Act dealing with maintenance, but if we relied on the proof of cohabitation or non-cohabitation it might get around this difficulty about civil and canonical nullities. I should like to see a more serious look taken at the situation of rape within marriage. I do not believe that to replace the idea of matrimonial rape by the fact that a woman can take a prosecution for assault really works. It does not seem to work in practice. Women are reluctant to take this sort of action. The argument made by the Minister with regard to the interference by the criminal law in the privacy of the marital situation applies equally as much to the taking of a prosecution for assault as it does to a prosecution for rape. It is just as much an interference in the marriage relationship to say that I will prosecute for assault. It certainly would also mean very likely the end of the marriage relationship in just the same way.

I do not believe that the Minister's argument about the abolition of criminal conversation provides a valid parallel. This is merely a red herring. I say this as being one of the people who most vocally opposed the idea of the Law Reform Commission on the introduction of reciprocal action for adultery by either the husband or the wife. Certainly I, being one of the people the Minister was talking about, do not feel that this is on all fours with the rape situation where it is a question of the protection of the wife from actual assault as opposed to the matter of adultery.

I should like to refer to the provision of detailed rules about the examination of complainants in the Garda station, the administration of the examination of these complainants and the rules to be worked by the Garda in this situation. One thing that strikes me in the whole argument about how difficult it is to lay down exact rules about how a person should be examined, who should be present, what can happen inside a Garda station and if we can legislate about this is that there does not appear to have been such a tremendous difficulty or such tremendous hesitation about doing this in the case of drunken driving. In our legislation, and in our statutory instruments which cover the area of drunken driving, there has been a very considerable degree of exactitude in setting down what should be done, what should not be done, who can be present, what are the rights of the accused, what are the rights of the Garda, and what is to go on in the Garda station. I do not quite see why in the case of a rape somewhat more exact regulations cannot be made, why this is regarded as being not a matter for legislation and, as far as I understand, not even being a matter for rules under statutory instruments but must be simply directions given to the Garda as a sort of guideline in administration. Of course, also, I do not believe for a moment that these rules would have been looked at and changed had it not been for the long campaign about this problem of violence against women.

As regards the question of women on the jury, I feel that the Minister is right in saying that it would raise constitutional and difficult legal issues to say that we must have a certain minimum number of women on a jury. However, the suggestion that when women are being challenged on such a jury it should only be done with cause shown, could not be held to be an interference with constitutional rights. Obviously, if there is a reason for rejecting that the accused's barrister or solicitor is free to use that reason to challenge the person. That person would not be then on the jury. But if they are challenging the woman simply because she is a woman then I suggest that very possibly the rights of the woman juror are being infringed just as much as the rights of the accused might be infringed by saying that we were not to allow him to get rid of all the women on the jury. I suggest that such challenges should only be made with reason, with cause shown, rather than just being allowed to get rid of all the women on the panel.

As regards the reference to either the Rape Crisis Centre or to some social worker I should like to point out that already in quite a large number of family law cases involving matrimonial violence, in particular, and the custody of and access to children, the court already refers the matter to the court's own social welfare service, which does provide in many cases a very good service for assessing the problem, for helping the people involved and reporting back to the court on what the situation is. Perhaps something along those lines could be considered. Undoubtedly, some rape complainants may not know of the existence of either the Rape Crisis Centre or other social welfare help. While clearly the Garda cannot be expected to force anyone to go to a particular source of help and advice they should at any rate be required to provide the information to the rape victim that advice is available, where it is available and how to get at it.

I have seen a situation where as I was going into the Four Courts a man stopped me at the gate and said: "Can you tell me the telephone of the Rape Crisis Centre, because my wife has been attacked and I have no idea where to go or who to go to?" If somebody in this situation feels that they have to go along to the court and stop any old barrister who happens to be going in to ask a question like that there must be a shortage of information among the ordinary public. It should be made clear to the Garda that they should give this information.

That covers most of the issues in the Bill on Second Stage that I should like to deal with. I should like to conclude by saying that in seeing this legislation before the House, a tribute is due to all the people who have worked towards it, to the women's organisations like the Rape Crisis Centre and the Council for the Status of Women which has put a great deal of work into this whole question, and to Senator Hussey who brought forward a Private Member's Bill. Tribute is also due to every woman who marched on the streets of Dublin as a protest against violence against women to show that there was a large groundswell of public opinion about this question. Whatever the Minister may say, he should be proud that his Bill is a response to this protest.

Rape, like many other diabolical evils, has been with us for quite a long time. In all recorded cases there has been ample evidence of the sense of horror, shame and of disgust not alone in the mind of the unfortunate victim but in the minds of all people. Retribution very often followed — it was generally felt it was required — in a big way. In what was possibly the earliest recorded case of rape — the rape of Dina by Sichem, son of Hemor the Hevite, to be found in the Book of Genesis there is the horrible account of the dreadful retribution that was enacted by Dina's people. It just goes to show the revulsion that emanates from such a crime as rape.

Senator Cassidy in her excellent speech stated that the incidents of rape were a matter for everybody. Senator Cassidy is right. I am sure the crime of rape causes as much disgust among the menfolk of the human race as it does among the womenfolk. We are all human beings, made to the image of God. Our bodies are temples of the Holy Ghost and a violation such as rape which combines two horrible things, fornication and violence, is one of the most heinous of all crimes. I would be inclined to rank it on the same level as the crime of murder.

I commend Senator Cassidy's speech and I commend the Minister and the Department for what seems to be an excellent Bill. As far as possible they have dealt reasonably well with every situation concerning rape when the rape has occurred. I commend them for it.

I would like to draw the attention of the Minister to another point. Is it possible for the State to do anything to prevent this crime taking place? It is a matter for consideration at the moment because, unfortunately, the evidence proves clearly that the incidence of rape is increasing daily. What is worse, rape is being committed by people of younger ages than obtained in years gone by.

I read of cases in newspapers where youngsters of 17, 16, even 15 years of age have been involved in rape cases. It is due to a sort of permissiveness, the substitution of licence for liberty and the substitution of even licentiousness for licence in the minds of the young. We are living in very strange times. This has developed because of the exposure to indecent films, plays and songs on the stage, screen and even on television. Censorship, which might be and has been called an ugly word — that was part of the campaign to reduce the acceptance of censorship of some kind — and its enforcement are necessary. We want defence forces not alone in the economic and the military field but as far as our young people are concerned in the moral field. A good barometer of the climate in any country is the excellence of its morals and the respect it shows to fellow human beings, particularly towards womenfolk who are in the position of being that bit physically weaker.

I commend the Minister for his excellent statement and I hope he will make sure that the utmost penalty is exacted from those people who commit the crime of rape. I hope he will give consideration to the few points I made regarding how steps could be taken to see that the young minds are not perverted or twisted from constant exposure to suggestions that it is quite in order to exact sexual pleasure in any case where they can possibly get it.

The story told by Senator Jim Ruttle absolutely frightened me. It bore out what I have been thinking. This man, this driver, knocked down the gentleman and his wife, when the lady was lying prostrate on the side of the road, he probably regarded it as his right to have sexual intercourse with her. That is what it has come to. That is the horrible situation here. We have a good record for our respect for human beings, especially for our womenfolk. Let us keep it. I commend the Minister for an excellent Bill.

I genuinely wish I could give this Bill a warm welcome. There are certain features of it which I very much welcome as being a distinct improvement on the existing situation, such as the provisions concerning the laws of evidence and the anonymity and other provisions which, unfortunately, I consider of a minimal nature. I must refer to something that I was rather taken aback by when the Minister was speaking.

I want to make it clear that when I began to be interested in trying to effect some kind of legislative reform in this area I did so as a result of being approached by a great number of women from different walks of life who were distressed and worried about cases of rape that had come to their attention, and cases of the sorry and sad attitude of victims towards the legal process. Having done so, marched with the women in October 1978, and having studied the report of the Council for the Status of Women and documents issued by the Rape Crisis Centre, I thought that as there had not been a debate in the Oireachtas on this subject we needed to have that report debated.

I must remind the Minister that it was debated under the same Government he is a member of, although they might have had a change of leadership, in April 1979. After months of agitation and complaining on the Order of Business, we got a debate on 4 April 1979. It was a Wednesday and it is almost exactly two years ago to this day. We had a very fine three hour debate in the House on the report of the Council for the Status of Women. In the course of that debate Senators on all sides of the House made solid speeches. Obviously, they had done some work on the subject and one and all expressed, naturally, an abhorrence of the crime and a determination that urgent reform was needed. Urgent reform, I was assured from the Government side of the House, would indeed be effected on this issue.

I will refer later to some of the remarks made in that debate. I was interested that in that debate there were some misconceptions in that some people were inclined to think that rape actually did often happen as a result of something like the advent of the mini-skirt or some other extraneous cause which did not have anything to do with rape. However, that was a very constructive debate. I confidently expected, in my naivety as it turned out, that something would happen and happen quickly. However, here we are two years later discussing this inadequate measure to meet the case. It is well worth while reminding ourselves what happened subsequently. In April 1979 we had that debate. Time went on until in June 1980 nothing had been done despite continuing pressure and agitation from a lot of women. I prepared a Private Member's Bill, laid it before the House and circulated it. I was determined that this time I would not rely on the response to be as quick as I had hoped it might be, having had the reaction from the previous debate. I arranged some publicity for the publication of that Bill and was absolutely astonished by the public reaction and the overwhelming sympathy from men and women for a speedy reform. I am saying all this because I was very taken aback at the tone of the Minister's speech. I have never heard a speech like that in this House from a Minister introducing a Bill before. I was taken aback at the various motives attributed to me and other people in remarks and statements we may have made about this Bill. I regret that such an important and delicate piece of legislation should have been approached in that manner.

Having said that, I repeat that there are some provisions in this Bill which I welcome as improving a very bad situation. I do not intend — the Minister will be very relieved to hear this — to go into this Bill at length or in great detail at this point. I consider that a magnificent job was done in the Dáil by the Fine Gael spokesperson on human rights and law reform, Deputy Keating, who very carefully and thoroughly debated this Bill through a long and protracted discussion on all Stages. He stated precisely and accurately the views I hold on the drawbacks of the Bill. My party opposed the Bill in the Dáil on clear grounds set out by Deputy Keating, and I regret that I will have to oppose it on Second Stage here also.

It seems to me that the Government have reacted rather than acted positively in this instance. If there had been a genuine interest or concern for women on the part of the Government this Bill would have come into the Seanad a considerably long time ago. It should have been introduced here shortly after the debate in April 1979.

The reason for the Government's lack of concern about this issue, demonstrated by the long delay and, indeed, by the hostility evident in the Minister's speech, is that it is difficult enough for an almost totally male Government to understand the concerns that women have. Among a certain number of well intentioned men there is a reluctance to involve themselves in such debates. Perhaps they are afraid to rush in where angels fear to tread or, perhaps, they feel that it is not quite manly or something. However, for a variety of reasons issues of this sort get fairly short shrift and not enough attention in the Oireachtas. At this point I should like to congratulate Senator Ruttle on the speech he made on this issue. It was a very compassionate and concerned speech.

I do not know what the Government did with the document issued by the Council for the Status of Women after they were presented with it in October 1978, because the council did not get a reply to that document for months. It was about six months before they got a reply. That was very disheartening. I wondered — and I still wonder — what on earth went on all during that time. It was shelved and nothing done about it.

The Bill before us now definitely makes some steps in the right direction. It certainly addresses itself to some distressing elements present in the legal system surrounding the hearing of a rape trial. Obviously, one of the worst of those was the case where a girl's or a woman's past sexual history could be dragged up and displayed for the world as if it were relevant to whether a rape had taken place. I am absolutely sure that that provision in the Bill is right.

I agree with other Senators who have deplored the refusal to widen the definition of rape, and I can only say that in fact many women, and I am quite sure a lot of men, find some of the other assaults of a sexual nature on women more distressing than the present defined crime of rape. They are more affronted, horrified and frightened by other kinds of sexual assault, in many cases, than the actual definition of a rape now. The humiliation and anger, not to mention the pain, of other kinds of sexual assault can leave equally damaging or perhaps more damaging mental scars not to mention physical ones. It has been a pity that this Bill avoided widening the definition of rape to include those kinds of appalling attacks. That is a major ground on which I would oppose this Bill.

Several Senators have mentioned the problems about the procedure surrounding reporting of rape, the procedures in Garda stations, about doctors. We mentioned it at an earlier stage, indeed it was mentioned in the Seanad debate and it has been mentioned very often elsewhere, that the provision of a forensic kit specially designed for examination of rape victims so that there will be the correct kind of evidence obtained with the minimum upset in the proper setting, has not even been referred to by the Minister. I do not understand what the problem is there. I am afraid I have heard very distressing stories of a lack of understanding of humanity on the part of a doctor or staff examining a victim. They seem to take it on themselves to start cross-examining the victim while they are examining her. This has made the unfortunate victim feel, before she gets into a courtroom at all, that somehow it is her fault.

I would draw the attention of the Minister to what Senator McGuinness has said, that we seem to have been able to provide regulations and legislation concerning, for example, breathalyser testing, and I do not see why we should shy away from attacking this problem. We are witnessing a Bill which has shied away from anything representing a tricky area. This is what I find difficult about this Bill.

The Minister in his speech said casually, as if we all would not notice it, that there would be a review of Garda procedures, and I can only say that I absolutely welcome it. I am sure that the Minister will be able to assure us that those Garda procedures will be reviewed in consultation with the Council for the Status of Women, with the Rape Crisis Centre personnel, as well as with his own and Garda officials. There must be this kind of consultation, and I am sure the Minister would agree.

The other major problem I am faced with in this Bill is that once again married women have presented the Government with such a headache that they have decided they will not deal with it at all. The Minister stated quite clearly in the Dáil that this Bill does not envisage extending the protection of the law on rape to married women. It seems to me an extraordinarily cowardly way out of a responsibility to face up to what can be a very tragic situation, but a rapist is a rapist whether he is married or single and a woman can be raped whether she is married or single.

I absolutely refuse to accept that the difficulties caused in establishing consent or lack of consent in the possible problems facing a woman who might accuse a man of rape and then change her mind are sufficient to allow us to say to all married women who live with their husbands, "You shall not be protected by this law". It reminds me of the fact that once again we run away from establishing facts about marriage that we do not want to know about. For instance, we have refused absolutely to find out from the census form whether a person is separated. It is the same sort of refusal to face facts which unfortunately women, and voluntary organisations dealing with women, have become used to and have come up against a stone wall. This is one stone wall I refuse to go along with. For that reason I could not accept this Bill in its present form.

The Minister pointed out to us in his speech that the British Criminal Law Revision Committee's working paper on sexual offences was divided on this issue and had found it all very difficult. He said the committee had discussed the whole question of the possibility of rape within marriage and had decided in the end that there could be such a thing as rape within marriage. The Minister also said that the Director of Public Prosecutions in Britain said that he would not know what grounds he should consider when deciding whether a prosecution for rape by a man on his wife should be taken. But the Minister omitted the last sentence in that section of the Criminal Law Revision Committee's Report which states:

We anticipate, however, that with experience as in other cases where his consent is required, the Director would be able to form a policy on prosecution for marital rape.

I think that the omission of the sentence from the Minister's speech speaks volumes. They came down and in fact decided that despite the difficulties they would go ahead and recommend — a very distinguished group of British judges and lawyers — that rape within marriage could be a legal concept. I feel that we have done the married women of this country a great disservice by bringing forward a Bill which has ignored that situation.

In preparation of my own Private Member's Bill, and the Council for the Status of Women in their preparation and the Rape Crisis Centre personnel became aware of the very sad domestic violence syndrome which is so prevalent in this country and indeed in other countries. A very frequent accompaniment of physical violence against the weaker spouse is the crime of rape, sometimes carried out under the most appalling circumstances in a family situation which I do not wish to go into now. None of us is naive enough to be unaware of them. Doctors who deal with the victims of domestic violence, with the wives who come to them, will tell you: "Of course rape accompanies this problem." It is a very frequent accompaniment and it is not reported. It is not complained of as rape, but of course a woman cannot complain that her husband has raped her.

I do not propose to go into the circumstances surrounding whether the Sexual Offences Bill, 1980, which was my Private Member's Bill, was a good or a bad Bill. I feel a certain satisfaction because I think that without that Bill we would not have a Bill here at all today. I am quite convinced of that. That Bill was part of the continuing pressure which should not have had to be applied for so long, but I am quite happy that that Bill, imperfect though the Minister considered it was, played a part in arriving at the situation that we are discussing a Bill anyway.

I wonder will a day ever come when this Parliament will be mature enough for a Government to approach a Member of the Opposition and sit down and discuss future legislation and what might or might not be in future legislation, or be actually invited to have five minutes with the Minister on the subject. Interestingly enough, on the Health (Family Planning) Bill a couple of years ago the Minister then actually invited me to come to talk to him about the Bill before it was framed. I thought this might have happened in this case, but it did not, and I feel very regretful about that because on issues such as this it is a pity if any heat gets into the situation. It would be much better if we could be generous enough to sit down with each other and discuss it.

I want to mention some of the main points that I would like to have seen in this Bill by referring to the debate in this House on 4 April 1979 when ten points were very briefly made. I came to the House with a list of points which I had taken from all the various people who had advised me on it. The first one was the problem of the practices and procedures medically and legally surrounding the reporting stage of the crime, and I am not satisfied with the situation we have now when we have been promised that something is being done about procedures. I would like to know, in much greater detail, what is to be done and who is being consulted about what is to be done. Neither am I happy that we cannot put some of these changed procedures into legal formula. On the question of a ban-gharda and help for a victim at the reporting stage, there are far too few ban-ghardaí in this country. We need to have ban-ghardaí all over this country, in every area of the country, not just in major urban situations. There should be a recruitment drive. I am sorry that so many new gardaí were taken on and so few of them were women. I congratulate the ban-ghardaí on the job they are doing. They are splendid women and doing a great job, with their male colleagues, but they should be far more numerous, and I would like to see them right across the country so that there never would be a problem of not having a ban-gharda available.

As regards referring a rape victim to a social worker or other expert, I certainly never intended that to be any kind of compulsory sending off of somebody to discuss the problem with somebody whom they might not want to discuss it with. I am talking about giving full information of the kind of help that is available to a rape victim, considering that a rape victim herself may suffer severe psychological problems as well as physical ones, but also we are well aware that a rape victim's family may also suffer the most unexpected psychological problems which may in fact lead to quite long-term unhappiness for that whole family. I also am aware that statements made at the time of reporting the crime will be available to a rape victim but what I am talking about is that the rape victim who has reported the crime in such a distressed condition on the whole, usually, may well have a special need of legal help. We should not have to wait for her to ask for the statements to be given to her: they should be given to her and she should get special legal assistance, remembering that she is only a witness at a trial. That is very important.

Other points I went on to make in the 1979 debate were the anonymity area, which I am glad is in this Bill, and the laws of evidence about sexual relationships. I would join with other Senators in the question mark about women jurors and the fact that they can be challenged without giving reasons, but the reasons would appear to be that because they are women they might be considered to be more sympathetic to the rape victims. There certainly seems to me to be a question mark over any process of challenging a juror because she is a woman. That shows the kind of mentality that surrounds this crime.

As regards delays in bringing rape cases to trial, I make no apology at all for wanting to have such a crime brought before the courts expeditiously, and I accept the Minister's assurance that this will happen for a variety of reasons which cover all crimes, but again the whole point about the rape problem is that it is a very special kind of a crime with very severe consequences for the victim.

There is another big problem facing people who are working in this area, and that is a lack of social research into the numbers of rapes actually committed, the reasons behind rape, the plans that the Minister has — he did not mention them in his speech here but in the Dáil he said he has to find out much more about this whole area. I would like to know are there any plans for carrying out a study of this area or for giving any group or body financial assistance which would make it possible for them to carry out this kind of study.

We really do not know in Ireland how many unreported rapes there are. The Minister has heard the suggestion from American data that as few as 10 per cent of rapes are reported. That was an American situation. I heard last night that a woman is raped every seven minutes in America. That is a horrific figure, but we do not know how many unreported rapes there are in Ireland.

My whole reason in discussing this Bill and in, unfortunately, opposing it is that I am not happy that this Bill provides the kind of steps which should be taken to make sure that rapes are reported, that rapists are brought to justice, that we make a very strong effort to come to terms with this crime. That basically is the foundation for my opposition to the Bill. I wish I could give it a welcome, but I find myself unable to do so because of what I consider the very serious omissions.

I, too, would like to be associated with the promise that has been made in relation to many of the women's organisations who were responsible for highlighting this matter publicly. We have all commended the Council for the Status of Women for the excellent report they submitted to the Government just over two years ago. Senator Hussey has been commended and I would like to be associated with that because she, among others, has been responsible for at last publicly highlighting the necessity to have something done about this most horrific crime.

It is great for organisations to make suggestions; it is very easy for individuals when they are not given the task of governing, of drawing up legislation, to make suggestions and proposals. In the end it falls on the Government and the various Ministers responsible to bring legislation of this nature before the Houses of the Oireachtas. In that regard I would like to be associated with those who have commended the present Minister of State, Seán Doherty, because since he became attached to the Department of Justice he has worked extremely hard not only to bring in this legislation but to bring in other legislation relating to women in our society. It may not be here as quickly as some of us might have liked, but I know legislation on this very important topic takes some time to prepare because all the various Government Departments have to have their input to make sure that the legislation we enact is practical and realistic and that it looks in a balanced way at the problems before us.

I am delighted that so many Members of Seanad Éireann have given their views on this subject today. It is in sharp contrast to the Second Stage in Dáil Éireann where so few Members were involved in the discussion. I am disappointed, however, that Senator Hussey and other Senators are not in a position to support the Second Stage Reading of this Bill. I do not think we could ever have a Bill dealing with this problem that all of us would totally agree with because of the nature of the crime, because of the matters involved. It would be very difficult for any Government in power to produce a Bill that all of us could agree with.

Many of the matters Senator Hussey raised today were matters which members of her own party, now that she is a member of Fine Gael, opposed in April 1979. I remember, for example, Senator Alexis FitzGerald saying at that time that he was not quite sure whether the crime of rape within marriage should be included in legislation. He said it was open to argument, but he was not quite sure. Some of the other matters relating to the definition of rape in that debate were also mentioned by members of Fine Gael who said they did not know if they could agree with some of the remarks made at that time. I do not think it would be possible for any political party to reach total unanimity on this subject.

Senator McGuinness referred to the march some time ago to highlight this matter publicly in the streets of Dublin. She commended those who took part, and I would like to be associated with those remarks. Unfortunately, the organisers of that march did not allow men to take part. They felt it was something in which women, and women only, should be involved. I feel very strongly that the crime of rape is not just a crime against women but a crime against our whole society. I would agree with those who say that fathers as much as mothers, brothers as well as sisters, are equally affected when a member of their family, be it a daughter or a sister, has been raped. It is a most horrific crime and I would put it second only to murder. It is something that has permanent effects on any girl, effects that I do not think anybody could recover from.

The legislation before us deals realistically and in a balanced way with the situation in Ireland. It is not just a case of asking for legislation to protect the victim, but like all other crimes we must make sure that the accused is given every access to protection and that the normal rules of justice, as would apply in any other crime, will be applied in this case too. It is very easy to become emotional and to think only of one side, but unfortunately for people accused of this awful crime, it is very difficult for them if they are to have an exception made of this crime as opposed to any other. The Minister has made sure that the normal rules of justice will apply.

I agree with Senator Ruttle that it would be lovely to think that legislation in this area would have the crime of rape in our society totally abolished. I do not think any form of legislation, no matter what form it takes, would ever abolish the most horrific crime that we are now discussing. I do not think any legislation will ensure that all women who are raped will report that rape to the local Garda station. No matter how secretive these trials are, no matter how easy it is for them to talk to whoever is questioning them, I think that most women, unfortunately, would not like to have to go through the sort of procedure one must go through because of the nature of the crime, and for that reason I still think that unfortunately many women who are raped, be it in Dublin or elsewhere, will not report that crime. That is a pity, and if there is any way we can make it easier for them, which I think this Bill to a large extent will, if there is any way we can encourage people we know who may have been raped, we should do everything possible to make sure that they report it to the gardaí.

I was not here for Senator Cooney's speech but I understand from Senator McGuinness that he said the person accused must be regarded as innocent until he is proven guilty. I would agree with him that of course such a person should be innocent until he is proven guilty, as is the case in regard to all other crimes.

The main provisions of this Bill are set out in sections 6 and 7. Section 6 deals with what up to now was very unfair and irrelevant questioning of the victim by the accused's counsel. It was terrible that any girl should have to be asked questions about her sexual life with any man other than the accused. I am delighted that that will no longer be the case except, as the Minister said, in very exceptional cases. Section 7 prohibits the identity of the victim and indeed of the accused being made public unless in very exceptional cases. These two measures will make it much easier for girls to report the crime of rape. It will give them some assurance that at least everybody is not going to read in the newspapers that they have been raped.

The Minister has increased the penalty for sexual assault, and here I would like to disagree slightly with some of the things he said. In many instances the sexual assault or the attempted rape of a woman, or the insertion within a woman of things like umbrellas, bottles and all the other gadgets that are used can have more serious medical effects and at times very much more serious psychological effects. I had hoped that the penalty for this would have been nearly as high as that for rape, because in certain cases it can be much more serious and can have much more damaging and serious repercussions.

There are many Senators who asked for rape to be extended to include marital rape. I am not sure whether I agree or not, as Senator FitzGerald said in April 1974. It is something I have thought a lot about and I am not quite sure whether I agree or not. Given the nature of the marriage relationship, given the nature of the sexual relationship, I do not think it would be possible to have it included as some people would like. I would like to think that the principle that a husband can rape his wife would have been included in legislation of this nature. I think it is possible. I am sure it happens that husbands rape their wives. There seems to be an attitude among men in our society that being married gives them a God-given right to sexual intercourse with their wives whenever they feel like it. I do not agree with that, and because of that the principle of rape within marriage should have been established, be it difficult or not to prove, which of course it would be because of the nature of the sexual relationship and because of the nature of the marital relationship.

The essence of the crime of rape, as we understand it from the present law, is that rape only takes place if there is lack of consent. If a wife goes to bed with her husband at what stage does the consent take place. It would be extremely difficult to prove. But in exceptional cases, for example where people are no longer living together or where for one reason of another, maybe as as a result of too much alcohol, in cases where the Catholic Church has annulled marriages and where the husband comes back and demands sexual intercourse with his wife, these are all instances of where rape occurs within marriage or where it can occur, and I would like to have seen provision for this in the Bill.

At the end of his speech the Minister said there were certain other administrative matters that it was not possible to include in the Bill because of the nature of the Bill. I would agree with that. There is much more that needs to be done besides bringing in legislation of this nature. It is a crime that we must educate ourselves on; it is a crime that we must have great compassion and concern for. In the training of the Garda and the medical profession we must make sure that they are properly equipped to be able to cope with the situation when it arises. I would like to think that gardaí and banghardaí would be given some training on how to handle the situation when a rape victim comes in and reports a case so that they can make sure that it is as easy as possible for that girl to go through the stages of reporting it and so on.

I would like to think, as other Senators have said, that a ban-gharda would always be present. But I know that that is not practically possible. There are over 2,000 Garda stations in the country. There are stations in rural areas where it would not be possible always to have a ban-gharda on duty because we just do not have enough of them. In so far as it is possible, particularly in built-up urban areas where it is easy to get hold of a ban-gharda, it is desirable that she should be called in. It is also desirable — and the Minister has said that this is possible — that the victim would call in her own medical advice, her own doctor. This is a welcome step.

Many people have spoken about the permanent effects that rape has on a girl who is raped. Of course it has very long term psychological and medical effects on her and on her family. I would like to think that something along the lines of the Rape Crisis Centre, which at the moment is run by a voluntary group of women, would be taken over eventually by a Government Department which would be State funded. An agency of this nature could give the necessary psychological and back-up services to any woman who has gone through this most horrific experience. Also, the man involved in this situation may at times need psychological help because, unlike those who speak very lowly of somebody who commits this crime — and of course all of us must — I believe that no sane man would ever commit this crime. There must be something mentally wrong with any man who would rape a woman. It is a most horrific crime and, as I have said, probably second only to murder and there must be something seriously wrong mentally with anyone who would do that and they too need psychological help.

I will conclude by congratulating the Minister again and welcoming the fact that we now have this Bill at last, although after a longer time than some of us might have liked. It is a Bill that has had all the necessary preparation from all the Government Departments. It deals in a realistic way with the problem which we have. It is a Bill that, if it does not go as far as some of us would like, goes a long way along that road. Senator Hussey and those who are opposing the Second Stages are doing nothing more than making it into a political issue. Senator Hussey may have grave reservations about the Bill, but if she supports some of it as she has said she does, she should have supported it on the Second Stage and then tabled the necessary amendments. But nothing is to be achieved by just opposing the Bill en bloc at its Second Stage. That will take us nowhere along the road we all want eventually to go along, whether we differ about the definition of the crime or as to whether or not rape takes place within marriage. Whatever differences we may have, we could all support, in principle, the idea of this Bill. It goes in some way towards helping to solve the crime and making it easier for the victim to go through the various legal proceedings. On Committee Stage the various amendments could be tabled. I am sorry that so many Senators are going to oppose it at the Second Stage.

Senator Harney has given me salutary warning of the fact that what I have said before may be recollected by others against me. In this particular case Senator Harney has been kind enough to remember it for me. Unfortunately, I was not prudent enough to read what I actually said the last time, so the business of reconciling what I am now saying with what I said before lies as a duty before me if there should be conflict.

All I can say by way of preliminary and not, I hope, in an excessively hypocritical way, is that I have, in relation to all the issues that I see arising in this Bill, tried to make up my mind without any consideration other than what I, myself, would have done.

First, I certainly welcome as long overdue the provisions for what I will call confidentiality with regard to the publication of the proceedings being taken by the complainant. I know that in practice most newspapers have complied with this as if it were the law. But the fact that there was no law to this effect was a serious defect. I am very glad and much welcome the provisions to this effect in this Bill.

I do not want to make a Committee Stage point particularly at this Second Stage. But perhaps it might be useful to the Minister if I invite him to consider in relation to that section the question of the distribution in this country of publications of foreign newspapers. Take, for example, the importation of English Sunday newspapers. In what way are persons who are within the jurisdiction of our courts going to be identified and made responsible for the circulation, in breach of this law, of information as to the names of complainants in rape cases? I just mention that ahead of time in assistance to the Minister in case there is anything which can be done with this section to assist. I just draw his attention to the fact that there was a section in the Unit Trusts Act of 1972 which made foreign newspapers guilty of offences in this country if they circulated advertisements, in breach of the Unit Trusts Act, here and they did in fact reach an agreement with the newspaper proprietors as to compliance with that Act. That is my first point of welcome. I welcome the provision as to the preservation of anonymity.

Having made one point about that, I have to make another point which is really by way of seeking information from the Minister which, perhaps, he will be able to give me in his reply to this debate. I believe that in income tax cases and in family law cases the reporting practice is not to give the name, I am sure, of the taxpayer in tax cases anyway and, I think, family law cases too because they are heard in camera. I notice, in such readings as I have done for this debate, that there are substantial and distinguishing forenames appearing in all the cited cases. I wonder whether the Bill will take care of the preservation of confidentiality and anonymity in the case of complainants for ever and, subject to what may be the intentions of the legislature, with regard to the defendants. I should be able to answer that question for myself but I cannot. I am inclined to think that without a provision in this Bill we will not be able to procure what I imagine would be the wishes of the Minister and of all of us. That would be one reason I would have difficulty, I must frankly say, in opposing the Bill because I believe that law is so much needed that, speaking for myself, I would hate to be responsible for delaying its enforcement.

The second point of welcome is that I welcome the provision, which seems to me to be adequate, providing for the restriction on cross-examination and so on. The marginal note to the section is "Restrictions on evidence at trials for rape offences". I welcome that, and it seems again to be so much required by our law as to be a reason why I could not be responsible for delaying it.

My practice lies rather in other fields of the law but I am aware of experiences in other jurisdictions where really the absence, when it was absent, of a provision to this effect simply provided a pillorying of the complainant, a horrible experience; to succeed one horrible experience came another and almost worse one when, telling the court of this appalling crime, the victim of the crime gets harangued by superior gentlemen protected by the laws in the solemnity of court procedures, and this second experience is damnedly awful and perhaps ranking equal to the experience which is already suffered physically. So in regard to the restrictions which are here — and perhaps we could wait for Committee Stage for the details of them — I, for my part, welcome that second decision of the Minister.

In regard to another decision, which I take it is to be inferred from the absence of a provision in this Bill, though perhaps the Minister may have decided to cope with that in another way but not in this Bill, I remain of the view that I believe I expressed in 1979 with regard to the proposed provision of a minimum number of female members of the jury. I have not been able to convince myself that that is right. I cannot see it as the correct way to cope with this problem. Theoretically, it seems to me to be a proposal for a reverse form of discrimination and I just do not like it. It is a departure from the fundamental principle of random selection which is, of course, subject to the hazards of the treatment of the particular people being called by the professional gentleman whose duty it is to object, but that is just life and one cannot go on to change the professional gentleman or change the people who are being called. These are just the circumstances of the facts. Practically speaking, again, on this point, I am not too sure that it would necessarily assist the convictions to have a minimum number of female jurors. One knows enough about the divisions of opinion and instinctive attitude and so on among people of the same sex. Indeed lines drawn through both sexes very often would provide divisions similar to the divisions which may be between the sexes on this kind of matter. I am not at all sure that the opinion in favour, shall we put it generally, of conviction, if that be the object, would be strengthened in this case, or even, if this be the better object, the opinion to assist, by sympathetic regard, the complaining person. So, on these decisions, I welcome what I see as being the Minister's decision.

So much for my welcome. I have to say to the Minister that I do not welcome much of what he said in his opening speech. It is not that it did not contain a good heart of legal content that I found instructing and helpful, but I was sorry that he did strike the rather polemic note in a debate which I would hope that we in this House would discharge as far as possible from polemics. I should, I think, take the points in the logical order.

I understand the reasons a decision has been reached by the Minister on the definition of rape. He has, quite correctly, taken the view of the two United Kingdom reports. With regard to the Minister's speech, this contained a frankness with regard to this matter that I wish we had more of, that is to say, in the extent to which we have intelligently looked at what they have done in legislation in the United Kingdom. But he has not, in regard to the definition of rape, in fact followed the report of the first, the Heilbron advisory group on the law of rape in December 1975; paragraph 80 of that recommends a definition, in effect, similar to this, as does paragraph 42 of the Working Paper on Sexual Offences of the Criminal Law Revision Committee of October 1980.

Notwithstanding these conclusions, I dare to opine that the Minister is wrong. I dare to take the view which has been expressed, I am happy to observe at this point, by other people on this side of the House and indeed I think by Senator Harney also and certainly by the commission which originally reported on it, that the definition of rape should be extended to include what the Minister described in his speech in his rather tactful phrase as "certain other acts of a depraved nature"— in a sense we do not need the definition of rape itself because it is a popularly understood concept — which, to show the canonical influence to which I am subjected I can describe as forcible fellatio, forcible cunnilingus and simple buggery which, incidentally, is a word well known to the law courts as well as to other places in this land. I would think that these acts ought to be included in the definition of rape to give them the rank of heinousness which rape occupies —that is one reason for doing so — to attach to them punishments as great as the punishments attaching to rape, to attach to them the punishment which, in the popular imagination, ought to attach to them, so that they are not allowed to slip away as being something less than rape by being merely convictions of sexual indecency or assaults of a sexual, indecent character. They should be included in that definition for ease of proof of the offence so that the victim giving an account of her horrible experience might, by the very version that she gives of what happened to her, fall within one limb or another of the definition of rape. Certain of these acts, as we well know, are illegal whether with or without consent, and therefore that second consentual element, the absence of which is requisite in the proof of the popularly known concept of rape, would not be required to be proved in the case of these other acts.

There is another reason for including them in the definition of rape, and it arises from something which Senator McGuinness mentioned. I do not think the Minister should feel that he is doing something unworthy in responding to popularly expressed opinion with regard to this kind of matter. That is what democratic governments should be about. It should be about finding out, through the party system, what are the issues that are dividing people and giving expression to these issues and then resolving them in some fashion or another.

The bodies that brought pressures in regard to this issue provided a public service in putting it into the public arena and leading on to the solution, to the extent that we have it, in this Bill. It is a solution which I do not think is sufficient, but it makes my final point with regard to why this should be in the definition. There is a popular sense that a narrow and archaic definition of a crime, which I think the Minister is correctly instructed and advised does not relate as much to property as people thought but much more to the pollution of the blood, was, as it were, put at the top of this field of offence and left there. The popular feeling with regard to this should be given expression to by a definition. I do not think that the reasons given in the advisory group's report which I have read are adequate. They merely speak of the technical difficulties of doing so. They do not give any sound reason for failing to do so. From my point of view my first serious point of criticism is in relation to the definition.

With regard to marital rape, my view on this has, like the Church's view on usury, developed since I spoke in April 1979, if that is the date of that great speech. Then I thought that there ought not to be provision for any marital rape. I am left confused as to what the actual law is by the extent of my studies, the insufficiency of my studies, by the contribution of the Minister and by the contribution of Senator Cassidy. I am not sure that I understand what the law in fact is. But if I am not sure as to what the law in fact is it is quite possible that someone else is not sure also. It seems to me that it might be desirable to make the law sure on this matter. There ought to be provision of an explicit character that would provide for rape charges against the husband in cases other than those where a divorce a mensa et thora has been pronounced. I see no reason why it should be stated to be an exception to the law that a husband cannot be prosecuted for the crime of rape as defined in the present instance, as distinct from the proposed extended definition. Here I may be, in recognising a reality, giving offence to universal theorists. In the case where in this State the decree of nullity has been pronounced by an ecclesiastical authority of whose existence the accused is aware, notwithstanding that after all the marriage has not been dissolved, there ought to lie a prosecution for rape notwithstanding the existence at law of the relationship of marriage. Marital rape should lie in a case where an injunction has been granted to restrain the husband from molesting his wife or he has given an undertaking to the court not to do so.

Again, on that third exception that I would propose, or believe is the law at the moment, if it be the law, there does not seem to me to be any harm in stating it to be the law. I had to study it to discover it to be the law. I cannot see why that should be required of every husband. I would also think that in a case where consent has been retracted and the wife is living away from her husband in circumstances where the wife could not reasonably be expected to live with the husband having regard to his behaviour, where there has been a matrimonial offence justifying the separation which if it had gone to a matrimonial proceeding would be found to be a matrimonial offence, that offence having been first proved, the prosecution for rape should lie.

The final exception I would make is where there is in existence a barring order under section 22 of the Family Law (Maintenance) Act, 1976. There are two other changes that I would wish. In neither case do I think I am going to get the support of my professional colleagues. I know I will not get the support of most of them, but one has to live with these matters. The law at the moment is that a boy under 14 cannot be guilty of rape, or indeed, I think I am correct in thinking he cannot be guilty of other sexual offences. This matter has been considered by the Criminal Law Revision Committee to which reference has been made. They favour, as I do, the abolition of the rule. I will read it:

Boys under this age are capable of sexual intercourse, however, and do in fact commit acts which would be rape if they were over 14, and the fact that they do is, we think, a matter of public concern. Cases of this kind occur in what has become to be known as "gang bangs", that is a series of sexual assaults by a group of youths on a girl. Such cases are very serious indeed as the girl often suffers severe emotional injury as well as physical harm. The older boys will be convicted of rape and punished severely, while a boy under 14, who may have had a leading part in the rape, can only be treated as having aided and abetted. Many think it is a scandal that this should be the law. At present we can see no justification for the continued existence of this limitation of the law of rape. If our recommendation was accepted the prosecution would, of course, have to prove, as in all cases involving defendants under 14, that the boy knew that he was doing wrong.

Having given that quotation in support of the proposition that these unfortunate boys, if one likes, should be as guilty, it being proven that they knew just as well as their fellows what they were doing, one must recognise that such boys are very much under the influence of their peer group. All I can say with regard to this whole penal area is that this is very much another matter. Indeed, as some Senators have said I very much regret the insufficient study that has been done in all this field. But in terms of prevention of this, limitation of this, reduction of this terrible crime, I think the existence of this rule is artificial and it should be open to the court to reach a conviction in such cases, as in others, and not have an artificial rule to prevent what might, in circumstances, be justice.

I am afraid I will suffer the equivalent of being struck off some roll with regard to my view on previous conviction. It was with delight I found I had one man to support my view in this kind of case. My attitude is similar to the attitude I have to people who take up firearms to try and destroy the operations of the lawfully elected government. I can carry an individual case of presumption of innocence in the case of anybody so killed, but I think our law ought to be sensibly arranged to deal with the factual situation that faces our legislature in each case. Professor Glanville Williams was one of the committee and has written extensively, as lawyers will know, that rape should prove an exception to the general rule of evidence. He gives us the reasons that rape, unlike theft for example, is a crime of highly specific character which is committed only by a small minority of men. The general observations about the 10 per cent of whatever is the total figure may not be right, but, however, that is what he apparently thinks.

If there is a conflict of evidence between the woman and the defendant on the question whether the latter used force or threats to obtain sexual intercourse, any ordinary person would regard it as highly relevant that the defendant had previously been convicted of rape. The evidence would not necessarily be conclusive, but taken in conjunction with other evidence, (for instance the fact that the woman was given a lift in a car and taken to a remote spot where the act occurred) it might well be convincing.

I should conclude by joining those who congratulated Senator Hussey on her draft Bill. In so far as we have gone a step or so, though not sufficient steps, in the direction of combating this crime, I should particularly like to congratulate Senator Hussey and indeed the Commission for the Status of Women whose original report certainly stimulated my interest in this whole matter.

Let me take the opportunity of thanking all the Senators who have contributed to this debate this evening. On the point made by Senator Robinson that I had not recognised, acknowledged or indeed reflected on the contributions of the Council for the Status of Women and the Dublin Rape Crisis Centre. I want to state that I have done so on more than one occasion. Indeed, I have rightfully done so. I have also recognised the valuable assistance and input of the Private Member's Bill of Senator Hussey. I acknowledged its value, not here in the House, but on television when both Senator Hussey and I had an opportunity to debate this matter.

Senator Cooney in his contribution this evening suggested that the identity of the accused should be concealed until after all possible appeal proceedings are finished. This was one of the very delicate and sensitive areas we considered when we were looking at the problems that the present position poses for the complainant. It is unusual to provide for any anonymity for an accused. The Government have taken the view that because, of the special nature of a rape trial and because anonymity is being given to the complainant, it would be unfair not to provide anonymity for the defendant. The Government also feel that the time of conviction is the proper time for that anonymity to be lifted. I am satisfied that providing for the anonymity of the complainant will go a very long way towards encouraging the victim of the horrific crime of rape to seek the aid of the Garda or to report the crime and to allow it to go to court.

Senator Cooney also suggested that section 3 would clog the untrammelled right of a defendant to adduce any evidence regarding the previous sexual experience of the complainant in support of his defence. An accused person is only entitled to adduce evidence that is relevant to the issue on trial. The Bill does not attempt and should not result in the exclusion of relevant evidence. Senator Cooney also spoke of the difficulties a judge would have in deciding whether to admit evidence. I think that a judge will invariably decide that for the evidence to be admissible it should be relevant evidence.

Senator Robinson referred to the four month's delay in publishing the Government Bill. The preparation of this legislation was in train long before Senator Hussey's Bill was published. In saying that, I do not want to take away from Senator Hussey's Bill. However, the delay in the publication of the Government Bill was because of a technical procedural problem that arose on the death of the former Ceann Comhairle. That was the reason, and there was no intention by me that the Bill should be delayed. It would be fair also to acknowledge the fact that this is very sensitive legislation. I gave a considerable amount of time, properly so, to meeting the Council for the Status of Women, the representations of the Dublin Rape Crisis Centre and other interests in the course of the preparation of this legislation. Their help was enormous, and much of what was contributed and agreed to by them at their own meetings was given full consideration in the preparation of the legislation.

Senator Robinson also mentioned that one of the reasons why we are not proposing to include marital rape is due to the inadequacy of our marriage laws. I disagree. However perfect our marriage laws would be there remains the essential and fundamental question of whether a man should be liable generally for rape on his wife. The debate has revealed that there are strongly held differing views. I mentioned in my opening speech cases of Church annulments where there is no civil annulment in order to indicate the difficulty in setting out the exceptions to the rule in the Bill. Difficulties would arise no matter how perfect our marriage laws and it would be very difficult to list all the exceptions to the rule that does not make a man generally liable for rape in marriage. If there is violence the husband can be convicted of assault for which there can be very serious penalties. One of the problems of providing for charges of rape within marriage is that unfounded or hasty allegations could be made. This certainly poses a major difficulty. All responsible bodies who have closely examined this area realise it is a very difficult matter to find the necessary proofs. I am satisfied that in certain situations Irish courts would more than likely take the view that rape could occur within marriage. A judicial ending of cohabitation would be an example of such a situation.

I was asked to give information on the number of countries which allow a charge of rape of his wife to be brought against a husband. South Australia, Scandinavian countries, several states in the United States, some eastern European countries and France, following a recent decision on which I have not got very up to date information allow such charges. In the case of South Australia, at least, rape must be accompanied by violence or a threat of violence

Senator Robinson also commented on the refusal to extend the definition of rape to include certain indecent assaults on women. She says this is a key issue which the Bill evades. She ignores the fact that the penalty for these indecent assaults is being substantially increased to ten years. That is a very significant increase from two years at the moment. The penalty proposed here is double that proposed in Britain. I stated in the Dáil and I state here that I will be looking at other areas of sexual violence and sexual crime in the future to see what can be done.

Senator Robinson and Senator McGuinness mentioned that assaults on women involving anal penetration are acts that should be included in rape. I am sure that both Senators know that an act involving anal penetration on a woman is buggery. There is the same penalty for buggery as for rape — life imprisonment.

Senator Hussey criticised the delay in bringing the Bill forward. I have dealt with that, and I am almost sure she will be satisfied that there was justification for any delay which occurred. It was outside my control. The Bill is a very complicated measure and there was a considerable amount of time given by me to meeting interested groups who had much to contribute

The question of forensic kits, procedural matters and such have been raised. Arrangements are being made for supplying forensic kits to Garda district headquarters. Senator McGuinness compared the provision of facilities in Garda stations for catering for cases of drunken driving. While drunken driving poses a very difficult social problem — the numbers of drunken drivers is much greater than the number of people who are raped — I do not think one can make a fair comparison in that connection. I also believe that the type of examination that is involved in the circumstances of rape — a horrific experience has been endured by the victim of rape — also makes it a much different situation from that where a drunken driver is taken to a Garda station. As I stated in my Second Stage speech, the victim would be taken either to the nearest hospital or to a doctor's surgery for such an intimate examination.

Senator Harney suggested that the penalty for serious and indecent assaults should be nearer to that of rape. Ten years is the new penalty. It is very substantial penalty even allowing for the usual remission. For example, the punishment for rape is life imprisonment and in many instances the time served is seven or eight years. On Committee Stage I will be in a position to give some details in that connection.

Senator FitzGerald wanted to know whether the Bill will prevent the identitication of the complainant in all reports of the rape trial, even those which appear in legal journals for the use of lawyers. The Bill will make it an offence to publish any report of a rape trial which contains identifying particulars. The only exception is the cases where a successful application is made under section 7 to have anonymity lifted.

Senator FitzGerald also raised the question of boys under 14 years of age. I accept there is an anomaly here, in so far as a boy under 14 cannot be regarded as a principal in a rape offence. The problem is that if the rule is to be removed it should be removed in a Bill dealing with sexual offences generally or with children in general. To do so in the case of rape only, would only create further anomalies. While I accept that you can have physical ability, nevertheless for the purpose of the law, it is presumed that a boy under 14 would not be capable of the act of intercourse.

That concludes my reply, and any aspects that have not been handled in depth by me on this occasion will be given every consideration on Committee Stage.

Question put.
The Seanad divided. Tá, 22; Níl, 12.

  • Brennan, Séamus.
  • Brugha, Ruairí.
  • Cranitch, Mícheál.
  • de Brún, Séamus.
  • Donnelly, Michael Patrick.
  • Doolan, Jim.
  • Dowling, Joseph.
  • Ellis, John.
  • Harney, Mary.
  • Herbert, Anthony.
  • Hillery, Brian.
  • Honan, Tras.
  • Hyland, Liam.
  • Kiely, Rory.
  • Kitt, Michael.
  • Lanigan, Michael.
  • McGlinchey, Bernard.
  • Mulcahy, Noel William.
  • O'Toole, Martin J.
  • Ruttle, James.
  • Ryan, Eoin.
  • Ryan, William.

Níl

  • Blennerhassett, John.
  • Butler, Pierce.
  • Governey, Desmond.
  • Howard, Michael.
  • Hussey, Gemma.
  • Kilbride, Thomas.
  • McAuliffe, Timothy.
  • McDonald, Charles.
  • McGuinness, Catherine.
  • Markey, Bernard.
  • O'Brien, Andy.
  • Robinson, Mary T.W.
Tellers: Tá, Senators Brennan and W. Ryan; Níl, Senators Butler and O'Brien.
Question declared carried.
Committee Stage ordered for first sitting day after the Easter recess.
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