Seanad Éireann debate -
Wednesday, 29 Apr 1981

Vol. 95 No. 17

Criminal Law (Rape) Bill, 1980: Committee and Final Stages.

Question proposed: "That section 1 stand part of the Bill."

Mrs. Hussey

In section 1 we come immediately to a very important part of the Bill and it is important to say, before we proceed to talk about the section, that it was very suitable that we should have taken some considerable time to pause between the Second Stage of this Bill and Committee Stage. It gave us time to consider the Second Stage debate which was conducted in a somewhat unusual form, and there are several unanswered questions which we will come to on Committee Stage, some of them referring to section 1.

It is important for us to establish on section 1 the reason why it has been felt necessary in this Bill to limit the definition of the crime of rape to the traditional definition and not to consider widening it at all to include other offences which are described as gross sexual offences and have been proved to be as traumatic and damaging mentally and physically to the victims as rape. I describe that kind of gross sexual assault as rape. I believe that some of the assaults we have been talking about are worse than what we describe in the Bill as rape. Therefore, I cannot understand why we have chosen in the Bill to stay within the confines of traditional definitions of rape. Subsection (2) states:

In this Act references to sexual intercourse 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).

There were lengthy discussions here and in the Dáil on this aspect of the Bill and it has been stated that intercourse resulting in possible pregnancy is what makes rape so totally different from other sexual assaults. I accept that there is such a difference, but one of the results of refusing to widen the definition might well be decisions taken by people in cold blood because unfortunately it has been shown that a great many rapes and sexual assaults generally have been deliberate acts and not because men have been somehow carried away by some involuntary instinct or something like that.

The research that has been carried out into the crime of rape shows the chilling fact that a majority of rape crimes are planned in advance. I refer to this because I contend that our failure to widen the definition of rape may be making it more possible for aggravated gross sexual assaults to take place but which fall short of the law's definition of rape. People who work in this and other cities with victims of gross sexual assaults will tell the Minister that the physical and mental trauma is extremely grave, at least as serious in many cases as the trauma following our legally defined rape offence.

Therefore, it is necessary for us to be quite clear why it has been seen necessary to omit these matters. One of my reasons for opposing and voting against the Bill on Second Stage was because of this problem. We seem to have ducked the issue and it is important that we have a discussion on it at this stage.

Mrs. McGuinness

I support Senator Hussey on the definition of rape in the Bill and I will add a little to what she said on subsection (2). It seems to me that though we have been told it is because it is a sexual attack that might end in pregnancy that makes rape so different from other gross sexual assaults, that this not so, because as has been stated, it is already the law that rape is sexual intercourse which is completed on proof of penetration but there is no necessity to prove emission. An act which does not result in pregnancy or could not possibly do so can constitute rape. Therefore, this cannot be used as a cut-off for defining rape.

When I spoke on Second Stage, the Minister pointed out, when we said anal intercourse, for instance, should be included in the definition of rape, that this is already heavily punishable under the Offences Against the Persons Act. I am well aware of that, but the result of omitting it from the Bill is that the kind of protection provided for the victim under section 3 in regard to evidence and so on, is confined to the victim of the kind of rape defined in this Bill. It does not extend to the person who is attacked in other ways. The person who is grossly sexually assaulted in a way outside the definition of rape in the Bill has legal remedies open to her, but she is not offered the sort of protection which all of us feel to be necessary. This is my worry about the limitation of the definition.

Minister of State at the Department of Justice (Mr. Doherty)

I referred in the Dáil to the points that Senators Hussey and McGuinness referred to. I want to state again that there is a very significant distinctiveness about the crime of rape. It is a unique crime and it would be wrong to lessen it or confuse it with any other crime. I have ensured, in the Bill, that aggravated cases of indecent assault will be punishable by very heavy penalties when the Bill becomes law.

Senator McGuinness stated that the crime of buggery should be included in the definition of rape in this legislation. The crime of buggery is different from the crime of rape. It does not require the absence of consent. For the purposes of this Bill, there is that fundamental difference apart altogether from the other reasons I have given. I want to thank the Senators for the views they have expressed and to assure them that I am satisfied that there is no need for an extension of the definition. Furthermore, there will be opportunities for me to look at sexual crimes in new legislation rather than to interfere with the distinctiveness of the horrific crime of rape and I do not propose to make any changes.

Mrs. Hussey

I am very interested to hear the Minister mention new legislation in the area of sexual crime. It is a breakthrough which we have not heard about. The Minister referred in the Dáil, when the Bill was being discussed, to further studies which would bring more information to light. He has now mentioned possible new legislation. The assertion that to widen the definition of rape might somehow confuse rape with other crimes, to use the Minister's own words, is not a full answer to the valid point which Senator McGuinness made. The whole point of having this legislation in the first place was because there was unease about what seemed to be an increasing number of crimes of rape. That was the increasing number we knew about. There was great unease that the number which we knew about might be somewhat similar to American studies, which showed that 10 per cent of rapes committed were actually reported. If 50 rapes are reported in Dublin and if that is only 10 per cent of the actual number committed, then we are talking about 500 rapes. It is rape which we are talking about, not the allied crimes of gross or aggravated sexual assault. That also refers to the insertion of various weapons into the body. Since that kind of assault is as outrageous and as damaging to the unfortunate victim as what is traditionally referred to as rape, surely the same protection of the law should be given to victims of that crime so that they will not find themselves in a witness box with a defence lawyer free to ask questions which he would be forbidden to ask if the victim had been subjected to the traditional form of rape. It is a gross dereliction of our duty not to recognise the similarity of the two crimes. It is very interesting and significant that the Minister can tell us he is thinking about new legislation to provide protection for victims of this kind of gross sexual assault from attacks on their character from which we are going to protect other victims of rape. Could the Minister spell out what he meant by possible new legislation? I know the Minister cannot give chapter and verse in detail but, because the protection of victims of other crimes of sexual assault has been mentioned, could we have some indication of what is going to be done for those victims?

Mr. Doherty

Entering into that area for the purpose of contributing to this Bill would be inappropriate, I have been very interested in many of the views expressed to me by the Council for the Status of Women, by representatives from the Dublin Rape Crisis Centre and by individual Deputies and Senators. For that reason. I am prepared to examine the desirabilty or necessity to have further legislation in that area.

Senator Hussey ignores the fact that the Government have not been unaware of the seriousness of these other types of sexual offences. For that reason, as I have already stated, the Government feel that it is better that these other forms of sexual offences should be dealt with by increased penalties as is proposed in section 10 of the Bill. Senator McGuinness rightly stated that the Offences Against the Persons Act, 1861, provides considerable protection in these areas. To suggest that a comparison should be made between the crime of rape and these other crimes is contrary to the whole spirit of this legislation in so far as I want to deal with what is understood to mean rape as it is defined in this Bill. In that regard, it is important to ensure that the uniqueness and distinctiveness of that crime would be clearly maintained in separate legislation. The Government's fundamental purpose in this Bill is to ensure that individual victims would be prepared, as a result of this legislation, to come forward and report this type of crime and to ensure that protection would be afforded to the victim. For too long many of the unfortunate women and girls who endured the crime of rape were not prepared to seek advice or assistance, never mind reporting the matter to the Garda Síochána.

The provisions in this Bill are desirable. They are to ensure that this very distinctive type of crime will be reported by the victim or by somebody on her behalf and that the full rigours of the law will be used to provide a remedy. The provisions of the Bill will also ensure that the culprit will not have the same opportunity as he had in the past, where his crime was not investigated or detected because the victim was not prepared to come forward.

Mrs. McGuinness

There is one matter that arises on this section which was mentioned on Second Stage and which I should like to refer to now. I am referring to subsection (3) which states that "a male person is treated by reason of his age as being incapable of committing an offence of any particular kind". This refers to the old rule that in the case of a male under the age of 14 years there is an irrebuttable presumption he is incapable of sexual intercourse. It has been put to the Minister by the Rape Crisis Centre, among others, that this should be made a rebuttable presumption. There is a lot to be said for this point of view.

The original rule regarding the irrebuttable presumption is an old rule. Presumably it was made at a time when children came to maturity at a later age than is the case now. It is a well-known medical fact that nowadays because of better diet and improved medical facilities boys and girls are coming to sexual maturity at an earlier age. Medically speaking, there must be a number of boys under the age of 14 who are capable of committing rape. An offence that, sadly, is becoming more prevalent is the crime of gang rape. Quite a number of the people involved in this type of crime have been very young. I am not suggesting it should be presumed that a child of 14 years is guilty but that the presumption that is there in law should be a rebuttable presumption, rather than an irrebuttable presumption where one has not a chance of finding a person of this age to be guilty.

Mr. Doherty

I accept that the retention of this provision may be anomalous but I am satisfied the same position obtains in connection with other crimes of indecent assault and so on. It would be more appropriate to have that aspect examined in the context of legislation dealing with children or, perhaps, with sexual offences in general rather than to make a change which could not have effect across the board in relation to other violent crimes such as indecent assault, defilement of young girls, homosexuality and so on.

Mrs. Hussey

I would ask the Minister to elaborate on what he meant by other legislation. He said he had been very interested during the debate on this Bill to hear the views of Members of the Dáil and Seanad. I do not intend to go into the history of how long it has taken to get this Bill before us. During the passage of this Bill through the Dáil and Seanad many people have given reasons for extending the definition of rape and obviously this finally convinced the Minister that the matter should be examined.

I do not understand why we cannot amend this legislation rather than going the long road of more legislation. Why do we not decide that this kind of sexual assault is so closely allied to the crime of rape, as we have traditionally understood it, that we must afford the same protection to the victim? It has taken from last October to the present to get this Bill to Committee Stage in the Seanad and, consequently, it cannot be said that the matter has come to us as a surprise. The Minister has shown some openness of mind and has said he might consider some other legislation. We do not have to pass this Bill today. I should much prefer no legislation today if we could have complete and total legislation in the end.

Mr. Doherty

The Senator and myself are talking about two different matters. On more than one occasion I have given my reasons why the definition of rape as proposed in this Bill should be retained. I consider it desirable to examine the necessity to have further legislation and I do not think I should go further than that today when speaking on this Bill. Senator Hussey is well aware of the difficulties that arose and which caused delay in introducing this legislation. It is a very delicate matter. At all times I was available to the various groups who were interested in this legislation and I got their views on the subject. Circulation of the Bill was delayed owing to the death of the Ceann Comhairle. I do not think that the Senator's criticism of the Government with regard to this matter was fair or accurate. I wish to repeat what I said before, namely, that I intend for good and sound reasons to retain the distinctiveness of the crime of rape.

Mrs. Hussey

I do not want to enter into argument with the Minister on the history of this. To bring up last summer's unfortunate death of the Ceann Comhairle is going a bit too far. The Council for the Status of Women first gave the Government their lengthy submission in October 1978 in which month there was a huge march through Dublin on this issue. Nothing happened. There was not even a reply to the Council for the Status of Women until April 1979, when this House debated the issue at length and the urgency of reform was acknowledged on all sides but nothing happened. In June 1980 a Private Bill was brought into the House when a great deal of public attention was focused on this. That is all I am going to say, but I could not let any excuses pass. I believe that the reason for the long delay in bringing this Bill before this House and the other House was a sheer lack of interest and the matter was not going only when women themselves brought it to the attention of the Government. I do not accept that there are good reasons for taking away from the victims of gross sexual assaults the protection that this legislation is giving to victims of rape. However, it is quite clear to me that I am beating my head against a stone wall here and therefore I do not propose to continue on this section.

Question put and agreed to.

SECTION 2.

Question proposed: "That section 2 stand part of the Bill."

Mrs. Hussey

On section 2 we come to the whole question of what constitutes lawful or unlawful sexual intercourse. The section says:

—(1) A man commits rape if—

(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it,...

I want to discuss that because it is the word "unlawful" here which must give us pause. I am aware also that this aspect which I am going to discuss now is a difficult and delicate one. However, that is no excuse at all for not discussing it. Of course, what we must get down to is a discussion of whether a man may commit rape on his wife. This is a very vexed question. I have read the Official Report of the Dáil Debates on this and I have listened to the Minister and many other people and still I have not been able to decide what exactly the position is on this matter. We should look at a hypothetical case. Say, for example, a woman of any age is brought into a Garda station and she exhibits all the symptoms of having been raped and is looked after, helped and cared for and the gardaí are treating this as a case of rape. Suddenly somebody notices that she has a wedding ring on her finger and then she is asked, "Who is the man?" And she says, "It was my husband." The whole situation then is completely changed. "Ah, well, that is a different kettle of fish altogether. You have not been raped because you have a wedding ring on your finger. If you had not got that wedding ring or that marriage certificate it would be a crime of rape." If that is the case it seems that we are letting down a huge section of the population, that we have once again failed married women and that we have really taken a very cowardly way out.

I know that there is some discussion about when a husband may or may not be charged with the crime of rape and there are some British precedents. The Minister, I am sure, is as conversant as I am, if not more so, with the much-quoted Criminal Law Revision Committee of Britain and their Working Paper on Sexual Offences published in October 1980 in which they have a lengthy discussion on this whole question. They quote the famous Hale and I am quoting paragraph 29 of the Criminal Law Revision Committee's working paper:

The present law, which is part of the common law, has an archaic flavour to it. It is generally taken to be as stated by Hale in his Pleas of the Crown, which he wrote in the 1650's:

"The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract."

In the opinion of the Criminal Law Revision Committee the present law is based on that statement by Hale. Obviously, times have changed since 1650 although not always as much as one would think, and now the British Criminal Law Revision Committee point out that women nowadays can retract this consent and can get divorces and separation orders. In this country, of course, they can get a different kind of divorce and they can get separation orders. The committee go on to quote another case, Miller of 1954 in which it was held that a husband had a right to sexual intercourse but he was not entitled to use force or violence. In fact a husband can still force his wife to have sexual intercourse with him without being guilty of rape even if she has left him, provided he does so before she gets a protective order from a court.

It seems to me that the whole area is shrouded in confusion and problems which were quite evident to this very distinguished criminal law committee who sat in Britain to discuss it. Obviously, many people feel that the law is better left unaltered because of the much-repeated problems caused by the impression of this kind of problem into the intimacies of private married life. On Second Stage of this debate in the Seanad the Minister quoted from this committee to demonstrate to us their great reluctance to allow the concept of marital rape into the law. The committee in fact in the end came down firmly on the side of getting rid of this anomaly and allowing a charge of rape to be brought against a husband. They felt that it should be referred to the Director of Public Prosecutions for his consent for a prosecution of marital rape. The Director of Public Prosecutions who spoke to the Criminal Law Revision Committee foresaw difficulties, of course, and he felt it would be hard in many cases to exercise his usual function of judging whether the public interest would be served by prosecuting. The committee conclude by saying:

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.

Therefore, the committee came to the conclusion that, despite the difficulties, despite the problems, the requirements of natural justice were that married women cohabiting with their husbands should not be excluded from protection against the crime of rape. If we in this country could actually arrive at some kind of definition of when the crime of marital rape could happen, it would be a great advance. If we could talk about cohabitation, if we could talk about establishing rules when rape might have happened because the husband is not cohabiting or has not been for some particular length of time which we could specify, if we could clear our minds on the problem of common law unions — the woman in a common law union is protected by the law but the woman who has in fact done what Church and State really prefer everyone to do and has got married finds herself unprotected by the law — it would be a great advance.

Perhaps the Minister was not listening to the radio at 2 o'clock today as I was, but in this context the chairwoman of the Council for the Status of Women was asked on the radio today at 2 O'clock what her attitude was towards this Bill, namely, the Criminal Law (Rape) Bill. She professed herself glad that the Bill had actually been brought forward and that so much of the council's submissions had been included in it. She was asked then how did she feel about marital rape being left out of the Bill and she said that they had been assured by the Minister that he would be very quickly looking after that. Her words were that he would be looking after that very soon. It was on the basis of that assurance that marital rape would be provided for in law that they decided to support this Bill and not to object to it. I assure the Minister that I was not hearing the things. I was very pleased to hear that statement of the chairwoman of the Council for the Status of Women who is obviously under a very clear impression — given, she says, by the Minister — that he will look into this very quickly and make sure that the whole concept of marital rape is brought into law. I would be very glad if the Minister could now tell the House what he plans to do in that area.

Mr. Brennan

I am as anxious as Senator Hussey that the question of rape within marriage be examined. Hopefully, some legislation will be brought forward on it in the future. But we should be careful not to delay this legislation a moment longer than is necessary. We have to take particular notice of the fact that after much study in Britain they have not been able to come down very firmly on how precisely to handle the question of rape within marriage, the whole question of consent and so on. Areas like that are extremely difficult. I am glad to see, however, that the Government have taken the step of increasing the penalties for the crime of indecent assault. It is not the ideal solution but it affords some protection while the question is being examined.

In examining this there are a lot of questions as to whether or not it undermines marriages or in some way strengthens them. The question of seperated couples is obviously a difficult one. The fact that they have not been able to decide in Britain is an indication of how complex it is. I say that we should pass the legislation as quickly as possible and the Minister and the Government should get down to examining the very difficult areas that Senator Hussey has spoken about. We are all as anxious as Senator Hussey that this be done. That side of the House has no monopoly in caring about these issues. We on this side of the House care about these issues too and we have the very difficult and practical problem of trying to get to grips with them. In Britain this had very close examination and they have not reached very satisfactory conclusions. Therefore, I have no reason to believe that if we put in the same kind of work we will reach a solution any faster. I know that the Minister is anxious about this matter and I hope that some legislation will soon be brought forward on this, but I do appreciate the difficulties. For the moment I believe this necessary legislation should be passed without further ado.

Mrs. McGuinness

While I would share Senator Brennan's view that we should deal with this matter quickly — and I appreciate the difficulty in bringing in a general inclusion of matrimonial rape in this section — I would point out that the British studies have come down firmly on one side in that they are not still undecided about what has been going on. But at the very least it would not delay the Bill very long to bring in a clear indication that rape could occur where the actual factum of cohabitation had ceased. The present legal situation in Britain — and we were referred to the British cases on this in the Second Stage debate — is far from clear on where rape can occur, whether it can occur after a decree nisi but before a decree absolute or whether one has to have a decree absolute. With the confused state of our family law situation here it might be very difficult to establish where consent has legally been withdrawn in the course of, say, divorce a mensa et thoro proceedings. But it seems to me that it would be relatively simple to establish factually that cohabitation had ceased.

This is the first step. It would not be too difficult to amend this Bill and bring in an amendment on Report Stage to allow for rape in these situations because, undoubtedly, in a lot of these matrimonial separation cases where matrimonial violence is one of the issues, part of the matrimonial violence is sexual matrimonial violence and it is not impossible to prove it by any means. I have seen cases where the Garda have brought a woman who had been attacked by her husband to hospital and the hospital reports say the assaults included sexual assault. This is clear proof by medical evidence that this has occurred. It is not impossible of proof in these cases. I feel that it would not unduly delay the legislation at least to deal with this as a first step and then perhaps, as Senator Brennan has suggested, the more complex question of how to deal with the situation where the parties are still living together could receive further consideration.

Mr. Doherty

I think it is wrong to presume that consideration of the question of providing for marital rape in this Bill would not delay the progress of the Bill. I am satisfied that the examination that has gone on in Britain and the extensiveness of that examination, winding up as it did with disagreement between the individuals involved in the study as to the feasibility of providing for this type of situation in law, clearly indicates how sensitive and delicate an area this is. Senator Hussey is ignoring the fact that marriage is a very intimate relationship. I see Senator Hussey smiling. I regard marriage as a very stable contract between two people, as provided for in our Constitution and which the very great majority of the people of this land support and adhere to. I feel that in any area where we are going to legislate, particularly an area as sensitive and as delicate as the area of marriage and matters between husbands and wives, we must be satisfied about how we should go about it. There is no point in having a law unless it is a good law.

I respectfully suggest that Senator Hussey is aware, although she did not refer to the fact, that a Women's National Advisory Committee in England came out against a recommendation that provision for marital rape should be made in law. Even if legislation of this type were provided, I am satisfied that contrary to what Senator McGuinness has said, the proofs might be very difficult to obtain. Furthermore, as the law stands at present, it is for the Director of Public Prosecutions to decide, in certain cases, whether a charge of rape should be brought in a case where a husband and wife are concerned. I am satisfied that there are certain exceptions to the existing rule and I have stated this in the Dáil.

Again, let me put the facts for the record of the House. Senator Hussey and the other Senator hold strong views in this regard. Although Senator Hussey does hold strong views she has not given strong reasons for her justification of the type of provision she advocates. She has not put down an amendment to the section. The Senator quoted from a programme heard by her, but not by me, but what she said is not correct. For the information of the House, I informed the Council for the Status of Women at a meeting I had with them that I am prepared to have the question examined in detail at a further stage, especially in connection with what eventually might happen in the United Kingdom. I was very interested in the outcome of examinations and studies undertaken in England in this area. I also stated at that meeting with the Council that an extensive and exhaustive examination of this area could not be carried out without delaying this Bill.

Senator Hussey has mentioned delays occurring in the past in connection with the circulation of the Bill and has inferred unjustifiably that the tragic and untimely death of the Ceann Comhairle was not a technical and legal reason why the Bill could not proceed. Senator Hussey also ignores the fact that this is a very complex Bill and that any delay will seriously and adversely affect the victims of rape, in so far as the Bill will ensure certain protections which do not exist at present. If Senator Hussey wants to be a representative of women's views in a totally honest way — and I am sure that she is genuinely concerned in this regard — she should not, because of presumptions in the back of her mind associated with possible or likely political events, misrepresent in this House matters in which the Government and I have engaged ourselves and genuinely wish to see happen by provision of a legislative package which will ensure that victims of rape will be prepared to do what they have not been doing in the past, and that is report the occurrence in the knowledge that the law protects them more than it did in the past.

Mrs. Hussey

I want to say one brief word about my attitude towards marriage. If I were not concerned with upholding the stability of marriage in this country, I would not be so concerned at the exclusion of the concept of marital rape. The whole stability of marriage and the State's protection of it must extend to the protection of married women against a very sad shock. Unfortunately, not only are there very many cases of physical abuse of various kinds, but they are often accompanied by sexual assault in the kind of circumstances which are distressing in a very wide family context. I could not allow the Minister's remarks to pass without emphasising that the reason why bodies like the Council for the Status of Women have been so concerned about this aspect of the Bill is because they wish to protect marriage in that respect.

I am disappointed that there should be any wrangle on this Bill and reference to impending events. That is not worthy of the seriousness of the present discussion. I did not put down any amendments on this Bill because I wished this legislation to come into force as quickly as possible. I decided today to make one last effort to see if there could be a breakthrough in two areas which we have been discussing. It was clear to me from reading the Official Report that very little ground has been given. I can see that we are not going to get anywhere with a discussion into the details of whether or not a married man can be accused of raping his wife and in what circumstances. That is a pity. There were opportunities during the long run up to this Bill and the lengthy discussions on this Bill to have a good dialogue and to amend legislation which could have gone on the Statute Book as advanced legislation in this area.

Question put and agreed to.

Sections 3 to 13, inclusive, agreed to.

Title agreed to.

Bill reported without amendment.

Agreed to take remaining Stages today.

Bill received for final consideration.

Question proposed: "That the Bill do now pass."

Mrs. Hussey

I am very glad that we have finally got a Bill on the Statute Book to afford protection against the crime of rape and to make sure that the trial procedures and all the surrounding circumstances are now very much tightened up. I believe this Bill is the result of a very good democratic debate and very good use of democratic means by various groups of society to have their concern made known and have that concern met by the people who are in a position to look after the valid anxieties of the population. If this Bill is not as broad and wide-ranging as some would like it to be, that is not perhaps entirely unexpected in a society like ours which takes some time to address itself to new concepts particularly in the area dealing with women and anything to do with sexual activity of any kind. It is very important that what the Minister mentioned on Second Stage, a review of procedures should take place. He said the Garda were conducting a review of procedures in Garda stations at the reporting stage. That is very important and I hope that as part of the working of this Bill the Minister will ensure that the review of procedures will be carried out rapidly.

I also hope that in order to facilitate the reporting of the crime of rape, now that victims will have more protection, there will be a far greater use of banghardaí across the country, and that the recruitment of ban-ghardaí will be very much stepped up. They have a very important role to play in a wide variety of areas. They are performing splendidly in their existing role and I believe their male colleagues realise the great need for far more ban-ghardaí throughout the country.

I hope that what I see as deficiencies in the Bill will not prevent us from coming back to tackle them after continuing study by, I hope, more than just voluntary organisations. I hope there will be continuing study by official bodies of the working of this Bill and of the whole matter of rape and allied sexual offences. There has been a great lack of any kind of research in these areas and therefore much of the debate on a Bill like this is necessarily conducted sometimes on conjecture and sometimes on attitudes which perhaps do not always have their basis in solid fact. I believe that is the fault of the State for some time in not having set up the social research which we should have.

Having said that, I am very glad that after such a long time we now have a law reflecting some kind of modern attitude towards this crime and I hope we will now begin really to tackle the crime of rape and that we will not have unreported rape or have a situation where we fear there may be several hundred rapists at large because the victims fear what they might have to go through if they reported the offence. That after all was the main purpose of this Bill and I am very glad that we have arrived at the present stage.

Mr. Brennan

I agree with Senator Hussey but I am reluctant to allow the impression to leave the House that somehow a monopoly of feeling and sensitivity for these difficult areas resides exclusively in the far side of the House and that the Fianna Fáil Party in particular are just responding to pressure from that side of the House in initiating these reforms. If one looks back over the past few years one can see the amount of family type legislation and family-related legislation which has come forward, the Family Law Protection Act, the Maintenance of Spouses Act, aspects of the Courts Bill, 1980, particularly in reducing a mensa et thoro actions to the lower courts and some progress with civil legal aid, commencing the family court structure. A further list of legislation combined with the step which I think is good of giving to a Minister of State responsibility specifically to cover this whole area and to push it forward is certainly evidence of some progress. Without wishing to make any political point out of it I should not like it to go out from this House that we are always responding to pressure from the Fine Gael liberals, as it were, to make concessions in all these regards. These are not concessions; these are areas with which we are concerned as much as anybody else in the House. More than in any other period of Government in the last four or five years we have made remarkable strides in this areas. I hastened to add that I am not satisfied with that and I am sure the Government are not satisfied either. I am happy that we have made a start and perhaps after the upcoming event we will be back here to continue the work.

I want to make the point lest the impression be given that somehow we are insensitive to these matters and do not really care about family and personal difficulties and human problems. On the contrary, this administration since its elections in 1977 did more I believe than the previous administration from 1973 to 1977. The list of legislation and the concrete moves made in that regard are there to be seen. While I agree with Senator Hussey's desire to have some changes made in this legislation, particularly as regards the rape within marriage section of the legislation, I also think that we have not had in this House — it is not that there is a lack of desire to do it but a question of how do you do it — a very specific recommendation or amendment from the Opposition as regards how specifically this could be achieved.

I conclude by welcoming the Bill and I wish to set the record straight as regards our concern for these issues. That concern I am sure is no stronger than that of the Opposition but it is certainly equal to it.

An Cathaoirleach

The Chair would point out that on Fifth Stage the debate is confined solely to what is actually in the Bill.

Mrs. McGuinness

I realise that the debate is so confined but as Senator Brennan was allowed a certain latitude perhaps I may be allowed a little latitude also. I want to join in welcoming the passing of the Bill and the Minister should not think that because some of us have criticised certain parts of the Bill we do not welcome it; we do indeed. Somehow in today's debate I felt that the Minister rather resented our criticisms of certain sections of the Bill and felt we were wasting time and repeating things said in the Dáil and so on. We are making these criticisms not only because we feel sincerely about them, but because that is what we are here for. No doubt it would be extremely convenient for all Government Ministers if nobody either in the Dáil or in the Seanad made any criticism of any legislation being put through, but we were elected to do a job and that is what we must do.

Regarding what was said by Senator Brennan, I do not think that any of us is suggesting that all the pressure came from this side. I am well aware that the pressure for this Bill came from a broad spectrum, chiefly women, though many men were involved, too. A number of people who were involved in this pressure were prominent members of Senator Brennan's party, but it is fair to say that it was all part of the democratic process and that to some extent it was a response to what is rightly a democratic pressure for a change in legislation. Nobody should be ashamed of this.

I would point out to Senator Brennan that the Acts in respect of family law maintenance and protection were enacted in 1976 and not since 1977. I accept that the Government are pressing ahead with the other two family law Bills that have been circulated, but I wish that these Bills had been circulated somewhat earlier so that we might have had a chance to have put them through the Oireachtas before what Senator Brennan refers to coyly as "the upcoming event" should take place.

An Leas-Chathaoirleach

The Senator may be going outside the scope of this Stage of the Bill.

Mrs. McGuinness

I apologise. I shall conclude by saying that I thoroughly support this legislation especially in respect of those aspects of it which deal with alterations in the procedure in court in respect of rape cases.

Question put and agreed to.