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Seanad Éireann debate -
Thursday, 15 Dec 1988

Vol. 121 No. 13

Criminal Law (Rape) (Amendment) Bill, 1988: Second Stage.

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

The purpose of this Bill is to amend the law on rape in order to provide additional protection for women who suffer sexual attacks. The 1987 Fianna Fáil Programme for National Recovery contains a commitment to reform the law on rape. The previous Government had requested the Law Reform Commission to examine the law on sexual offences generally including, in particular, the law relating to rape. On taking office I conveyed to the commission the Government's desire to have legislation on rape as a matter of the highest priority. Having issued a consultation paper in December 1987 and organised a seminar in January 1988 the Law Reform Commission published their final recommendations for changes in the law on rape on 2 June 1988.

I would like to take this opportunity to convey publicly to the commission and its president the Government's appreciation of the efforts made by the commission in response to the Government's concern in this matter. I might also remind Senators that the law on rape was the subject of a report in January 1987 by the Oireachtas Joint Committee on Women's Rights. All of these documents were examined and considered in depth prior to drawing up the proposals in the present Bill.

There are few who will disagree with me when I say that what we are dealing with in the crime of rape is one of the most obnoxious and reprehensible crimes known to the law. Rape involves a severe degree of emotional and psychological trauma for the woman victim. Its physical consequences may be equally severe. There is the actual physical harm which may be caused by the act of forced intercourse itself and the associated violence and degradation to which victims are sometimes subjected. Rape will normally give rise to subsequent feelings of insecurity and there is also the very real fear of disease or pregnancy. For all these reasons it is a particularly abhorrent crime.

Having said that, I must sound a note of warning. It has always to be borne in mind that a person charged with rape may be innocent of the crime. Any proposals for changes in the law must take account of that possibility and must seek to achieve, as far as it is humanly possible to so do, a proper balance between the need to bring the perpetrators of this horrific crime to justice and the right of an accused person to a fair trial.

I now turn to the Bill itself. I have already indicated that there are certain features of the crime of rape which distinguish it from other crimes of a sexual nature. It is this view of rape as a distinctive crime, as it has been regarded for centuries and, in my view, is still so regarded by the community today, that has prompted the Government, following very careful consideration, to reject the majority recommendation of the Law Reform Commission in their final report to widen the definition of rape. The Government prefer the views of the minority of the commission, including its president, that the definition of rape should remain unchanged and for much the same reasons as those advanced in the minority report. That is not to say, however, that the Government do not accept the principal criticisms of the existing law which have given rise to the majority recommendation.

The main reasons advanced for extending the definition of rape so as to include such acts as non-consensual buggery, non-consensual oral intercourse and the penetration of a woman's vagina by objects are, first, that these other acts which are as humiliating and degrading as rape are now charged — apart, that is, from the offence of buggery — as indecent assault with a lesser maximum penalty than rape and without the protection at present afforded to victims of rape by the 1981 Act. Secondly, it is argued that indecent assault can be anything from a minor assault with sexual overtones to a serious aggravated sexual assault so that the term "indecent assault" does not adequately describe brutal attacks at the top end of the scale. These are criticisms that can be tackled, and are being tackled in this Bill, without interfering with the definition of rape.

Henceforth, the offence of indecent assault, whether on a male or female, will be known as sexual assault and a new offence of aggravated sexual assault will be created. Sections 2 and 3 of the Bill contain the relevant provisions. At present the offence of indecent assault carries a maximum penalty of ten years imprisonment. The Bill proposes that the lesser offence of sexual assault carry a maximum penalty of five years imprisonment and aggravated sexual assault a maximum of life imprisonment.

Senators will note that there is a general definition of aggravated sexual assault in section 3 of the Bill and the section then goes on to specify certain types of sexual offence which will always be regarded as an aggravated sexual assault without of course prejudicing the generality of the definition of the offence. The particular sexual assaults that will always amount to an aggravated sexual assault are generally those which it was sought to bring within the definition of rape. However, that does not mean that any other type of sexual assault of a specially nasty kind will not also be prosecutable as aggravated sexual assault. I am satisfied that this change in the law will meet one of the major criticisms of the existing law on indecent assault.

The second major criticism of the existing law which I have already referred to is that the protection that is presently afforded to rape victims by the 1981 Criminal Law (Rape) Act is not available to victims of indecent assault. The Bill remedies that situation by providing that the relevant provisions in the 1981 Act which restrict the cross-examination of a complainant concerning her previous sexual history and provide for her anonymity will now extend to all sexual assaults and will apply equally to male and female complainants. However, the Bill does not extend the anonymity provisions relating to an accused. These will continue to apply only in the case of a rape offence and, indeed, there is some tightening up of the existing law in section 13 of the Bill by virtue of which the Director of Public Prosecutions may apply to court to lift the anomymity of the accused in the public interest.

I now turn to another major provision in the Bill, the proposal to abolish the marital exemption in relation to rape. I recall that when the question of abolishing the marital rape exemption was discussed during the passage of the 1981 Rape Act through the Dáil and Seanad strong, opposing views, which I may say crossed party lines, were expressed. The decision that time was to leave the law as it stood, that is, a husband could not generally be convicted of the rape of his wife. The courts in England have held that the exemption does not apply where the spouses have been separated by court order and in other limited circumstances of that nature and it is presumed that that is the position here also although the Law Reform Commission have said that there may be constitutional grounds for supposing that the "marital rape exemption" has not survived in Irish law since 1937.

Whatever about that last point, it seems to me that the consensus is now in favour of change. The Law Reform Commission's provisional recommendation in their consultation paper in favour of abolition was, on the whole, generally welcomed although some misgivings were expressed as to whether it might not lead to fabricated complaints and unwarranted intrusions in the marital relationship.

I am, of course, conscious that the intrusion of the criminal law into the relationship of husband and wife can be disruptive and can present evidential problems. However, the possibility of the criminal law disrupting the marriage relationship has not prevented assault, indecent assault or buggery by a husband on his wife being criminal offences and, therefore, I do not think that such a possibility should prevent the removal of the marital rape exemption.

The existence of that exemption is difficult to justify and appears to condone a type of behaviour which, I suggest, is not acceptable to the majority of Irish people. In view of the evidential difficulties that will invariably arise in marital rape cases and in order to prevent the institution of spiteful or mischievous proceedings by a spouse or an interfering third party, I am proposing that a prosecution of marital rape can only be brought with the consent of the Director of Public Prosecutions. In effect that will mean that no private prosecutions for marital rape can be initiated without the DPP's consent.

Another major provision in the Bill is contained in section 9 which proposes that, after the Bill comes into force, all rape and aggravated sexual assault cases will be heard in the Central Criminal Court. That the Government have agreed that rape and aggravated sexual assault cases should be heard in the Central Criminal Court should not in any way be taken as a criticism of the Circuit Court or the judges in that court who have handled rape cases but rather as an expression of the seriousness with which the Government views these offences.

I might emphasise that the Government's decision was taken solely with reference to the particular crimes in question and should not be seen as supporting the Law Reform Commission's view that the transfer of rape and aggravated sexual assault trials to the Central Criminal Court should be the beginning of a process of returning a wider criminal jurisdiction to the High Court. That wider question is a matter that will be considered separately in due course.

The Bill in section 10 follows another recommendation of the Law Reform Commission — that the public be excluded from hearings of rape and aggravated sexual assault cases in the Central Criminal Court. The Government considered the commission's recommendation in the light of Article 34.1 of the Constitution which provides that justice shall be administered in public "save in such special and limited cases as may be prescribed by law". The Government are fully satisfied that the circumstances of rape and aggravated sexual assault trials are such as would justify bringing them within the saver in Article 34.1. Such trials will, of course, be kept open to public scrutiny by the presence of the press and this, I think will afford adequate protection of the public interest.

Section 10 of the Bill also repeats the provision in section 6 of the 1981 Act whereby, in addition to the exclusion of the public, the jury and the press will be excluded from applications made during the trial to cross-examine a complainant about his or her previous sexual history. The Law Reform Commission recommended that such applications should be made at the commencement of the trial but I have been advised that this would give rise to innumerable difficulties without conferring any particular benefit.

I would now like to turn to the other proposals contained in the Bill. Under existing law it is mandatory for the judge in trials of sexual offences to warn the jury of the danger of convicting on the uncorroborated evidence of the complainant. The commission recommend that the mandatory element be removed from the rule on the basis that there are cases where it would be superflous and could, indeed, raise unnecessary doubts in the minds of jurors. Whether such a warning should be given and, if so, its terms should, in the commission's view be left to the discretion of the judge. The Government agree with this view and section 6 of the Bill provides accordingly.

The Law Reform Commission also recommended that the rule of law under which a boy under 14 is regarded as being incapable of sexual intercourse and therefore of committing an offence involving sexual intercourse be abolished. The Government agree that this rule is anomalous and section 5 of the Bill provides for its abolition.

Section 7 of the Bill provides for alternative verdicts as between charges of rape, aggravated sexual assault, sexual assault and certain other sexual offences and follows a recommendation of the Law Reform Commission.

Section 8 of the Bill confirms the existing law that physical resistance is not a necessary element in proving absence of consent. The Oireachtas Joint Committee on Women's Rights are in favour of having a clarifying provision of this nature. The Law Reform Commission had recommended a more extensive provision based on a definition in the law of Western Australia. The definition proposed by the commission would, however, have introduced difficulties into an area where none exists at present. Indeed, in a report published in June 1987 the Law Reform Commission of the State of Victoria rejected the approach of Western Australia for the very reasons that it would give rise to difficulties.

The remaining sections of the Bill deal with matters consequential on the proposals to extend the protection of the 1981 Act to victims of all sexual offences and the transfer of rape and aggravated sexual assault trials to the Central Criminal Court.

I would now like to comment on a number of other recommendations in the Law Reform Commission's report. The commission recommend that section 3 (1) of the 1981 Rape Act which, I might remind Senators, requires an application to the court before questions can be asked concerning the previous sexual experience of the complainant with a person other than the accused, should be amended so as to require an application in respect of questions relating to the previous sexual experience of a complainant with the accused also. The Government have accepted this recommendation and section 12 of the Bill contains the necessary provision.

The Law Reform Commission are opposed, however, to the recommendations made by the Oireachtas joint committee that evidence of the previous sexual experience of the complainant should no longer be admissible at a rape trial in any circumstances. The Government strongly support the commission's views on this matter. All commentators on the law on rape, including prominent advocates for the protection of complainants in rape trials, agree that there are cases where evidence of a complainant's previous sexual experience can be relevant to an issue in a rape trial. The commission in their consultation paper, at paragraphs 84 and 85, give examples where such evidence would be relevant. There is no legal system of which I am aware that absolutely forbids such evidence. Indeed to totally exclude such evidence could be grossly unfair to an accused and could lead to a miscarriage of justice. It is likely that any legislation which would ban totally or even drastically restrict the admissibility of such evidence would be regarded as unconstitutional on the grounds that it violated the right of an accused to a fair trial.

The Law Reform Commission were also opposed to the recommendation made by the Oireachtas joint committee and by Rape Crisis Centre that separate free legal representation be made available to complainants in rape and aggravated sexual assault cases. It is clear that the reason why separate legal rep-representation is being sought is the perception that complainants are not being adequately protected by counsel for the prosecution during the trial. The commission are not satisfied, however, that the complaints made as to the manner in which the present system operates are sufficient ground for introducing so radical a change in the law as the extending of representation to a person who is not a party to the proceedings and whose interests do not necessarily coincide with the paramount objective of the trial, the ascertainment of the guilt or innocence of the accused person.

The commission also question the constitutional propriety of the proposal and refer to the serious uncertainty as to the effect it would have on the trial of such cases and the possibility that it might so complicate the hearing and alienate the jury as to result in unjustified acquittals. Finally, the commission consider that the complaints which have given rise to the proposal can and should be adequately redressed within the confines of the present system.

The Government are in full agreement with the commission on this issue. It is absurd that the State should, in effect, be asked to pay on the double for the prosecution of sexual offences because it is alleged, rightly or wrongly, that prosecution counsel are not fulfilling their responsibilities in protecting witnesses during the trial. The Law Reform Commission expressed the view that serious consideration should be given to the role played by prosecution counsel in rape cases. I am sure this recommendation is receiving the closest attention from the Director of Public Prosecutions, who retains them.

Furthermore, there is a responsibility on the presiding judge to ensure that the specific provisions of the 1981 Act, which are being extended in this Bill, restricting evidence of a complainant's previous sexual history are complied with. Over and above that he also has the duty to ensure that no other irrelevant or improper cross-examination of the complainant takes place. Under the Bill this duty will now be placed on judges of the High Court.

The Law Reform Commission proposed that there should be an express statutory provision enabling a judge to order the accused on conviction to pay compensation to the victim of a sexual offence in addition to any other penalty imposed. The commission have made a similar type recommendation in their Report on Receiving Stolen Property. Both these proposals raise an issue of more general application in relation to compensation by the criminal in all kinds of cases. I consider that it is a matter that should be decided on separately as a broad policy issue rather than in relation to individual offences.

Another proposal from the commission also gives rise to a broad policy issue with constitutional implications. That is the proposal that the new offence of sexual assault should only be prosecutable on indictment at the election of the prosecution. Under present law, the general position is that where an accused is charged with an indictable offence he can opt for trial by jury even though the district justice who is holding the preliminary examination and the DPP are of the view that it should be dealt with summarily. As with the question of compensation I do not consider that the summary prosecution of indictable offences is a matter that should be decided in relation to an individual offence. It must be considered in the context of all offences. I have, therefore, referred the general question of the summary disposal of indictable offences for consideration by the Committee on Court Practice and Procedure.

The commission have also recommended that section 4 of the 1935 Criminal Law (Amendment) Act should be amended by replacing expressions such as "idiot" and "imbecile" with expressions more appropriate to describing the mentally handicapped and the incapacitated. While I am in complete sympathy with this recommendation I am advised that the matter is not straightforward. It is not simply a question of changing one set of terms for another. Furthermore, I think that any change in the wording of the 1935 provision should await consideration of the general question of sexual offences against the mentally handicapped. This is a matter which the commission indicated in their report they hope to address in the context of their examination of the subject of sexual offences against children.

In conclusion, I want to say that I am firmly convinced that the changes in the law being proposed in this Bill will, taken as a whole, have a very significant impact. This Bill is a clear indication of how seriously the Government view the crime of rape and other serious sexual assaults. There has been a welcome change in attitude in recent years towards the victim of sexual attacks and I believe that generally speaking the Irish criminal justice system is now more sympathetic to, and more understanding of, the trauma of sexual assault victims.

The Garda Síochána — and I would like to pay tribute to them for their work in this regard — have been to the forefront in making the necessary changes in their procedures in order to be of the greatest assistance possible to the victim. I would hope that other involved in the criminal justice system would follow suit. The changes that I am proposing in this Bill will relieve some of the trauma and distress that victims inevitably have to suffer in re-living the ordeal of the attack again in the course of the court proceedings. I recommend the Bill to the House.

I would like to welcome this Bill and to thank the Minister for bringing it so expeditiously before the Oireachtas. I am very pleased that it has come into this House because we in this House have a fine tradition and record for dealing with what might be called sensitive legislation. It is a very strong, good Bill and I think it will put us to the forefront in European countries and perhaps wider afield in terms of advanced legislation against rape.

Although I welcome the Bill in general and specifically many of the proposals such as the abolition of the exemption for marital rape, the acceptance that a male under 14 can be capable of rape, the hearings in camera, the changes of venue to the Central Criminal Court for hearings and some other minor changes, I do have reservations about for instance, there being no independent legal representation for the victim and the fact that the definition of rape does not include non-consensual sexual penetration of the vagina, anus or mouth by the penis or by an inanimate object. I will deal with that later. That it should include such acts has always been a very strong recommendation and was recommended by the Law Reform Commission. Hopefully, during the debate we can look for changes in a Bill that is otherwise comprehensive and strong.

In view of the fact that it is such a commendable Bill it is worth looking at the conception or the gestation of this legislation. The conditions of it were first proposed by the Rape Crisis Centre about four or five years ago. The Rape Crisis Centre is a singular dedicated group of people who have dogmatically monitored cases in court over the years. They have supported and helped victims of rape but, in tandem with this work, they have lobbied the Government for change. They knew six years ago what they wanted. The Act of 1981 was only piecemeal legislation and they most professionally pursued this objective. They did this in the most effective way by educating public opinion. They tried to win support for legal change which was necessary and they did it in almost every stratum of society. They had a very good ally in their cause. In May 1986 the Rape Crisis Centre made a submission to the first Joint Committee on Women's Rights. Many of their demands are here in this Bill. The women's rights committee at that time incorporated their proposals in their report. It was well publicised and very broadly welcomed.

I am glad to say this issue never became a party matter. There was a wide consensus that new and radical measures were needed and the political will was a reality. The ways and means of structuring the legislative changes had to be worked out. This was done most efficiently and thoroughly by the Law Reform Commission under the very able presidency of Mr. Justice Ronan Keane.

Having considered all the proposals for a few months, the commission then consulted with all organisations and individuals who had views to offer. This was a dynamic exercise. For an entire day about 40 people listened to proposals, examined perceived difficulties and had open and very frank discussion on the subject of rape, other sexual offences and their treatment by the Garda, by lawyers and the courts. I was present at that one day seminar and it was most revealing — indeed, revealing not least because on several occasions during the day the discussion by the participants became sharply divided as between the men and women who attended. The dialogue was honest, if at times heated, and everyone — not least the members of the commission — learned a great deal from the discussion.

Finally, the commission brought out their final report, which met almost all the proposals of both the Joint Committee on Women's Rights and the Rape Crisis Centre. I know there could be little reason for the delay in drafting after such wide consultation but I thank the officials in the Department of Justice for their work and again for bringing it forward what could be considered quickly.

If Members appear to be pressing for further change I would ask the Minister to be open-minded and receptive to arguments for those changes. This Bill must be as good as possible. We do not want there to be any oversighting or underestimation on this occasion. We are dealing with a heinous crime, one that mainly is perpetrated by men against women. I do not think any man could understand the legacy of distress, the fear, the emotional scarring that sexual assault and rape leave. Because men may not feel this horror as women can, I am not saying that leaves them uncaring or unsupportive — of course not. But it is something that men in general have not confronted and have not challenged. I cannot imagine, if women were responsible for such violent behaviour traits, that they would not have taken a serious critical approach to it, to know more about the motives for it, to seek some way to deal with the perpetrators of this sexual violence. I think it tells probably a lot about the reactions of men and women to specific problems dealing with sex.

As it has been left to women, through their organisations, to deal with the trauma of victims, without the work and dedication of people such as those who run the Rape Crisis Centres throughout the country we would have a very serious problem indeed. It is sad that in the context of this debate the Dublin Rape Crisis Centre are in such a depressed state financially. There have been very fine words and worthy statements made, but no money so far to secure their future. We could easily have in the new year a fine new Act but no crisis centres to deal with the victims. I would like some assurance that funds will be made available to this voluntary organisation and a concrete response given to their appeals. It is not good enough to let them pass away through Government inaction.

There is a responsibility on this administration to settle the problems of the centre and nothing less will do. I know, and everybody else knows, that at the end of every financial year, before allocations are made for the new year, there is money surplus to needs in many Departments. This is usually used for causes or indeed for once-off payments for some particular issue. Out of these funds I feel the Rape Crisis Centre could have their present problems resolved and then all concerned, health boards, Government Departments and the Rape Crisis Centre could work out a reasonable plan for survival and for the future.

To deal with the sections of the Bill I should like to put my reservations on record. As I mentioned, I regret that the definition of rape has not been extended to cover the kinds of offences now called aggravated sexual assault, as recommended by the Law Reform Commission — I accept that there was a minority report on this. Section 3 (b) does not include the penetration of the anus by an object. I wonder if this can be an omission. There is no reference whatever to independent legal representation for the victim — again I know the Minister dealt very conclusively with this in his speech. This has all along been a very fundamental requirement by those involved in rape reporting, and I feel I should put on record the views of the Rape Crisis Centre in their report to the Oireachtas Joint Committee on Women's Rights. They say:

Most complainants of rape with whom we have worked, found the experience of a criminal hearing to be horrific, degrading and humiliating. Many of our clients experienced the court case as being worse than the actual rape describing it as ‘like being raped again in public', in a hostile and frightening environment.

In no other criminal case would the complainant be subjected to the type of cross-examination and humiliation prevalent in rape cases during the defendant's efforts to prove her consent to the alleged rape. It is futile to argue, as do many members of the legal profession, that the role of the victim of rape is identical to that of the victim of other crimes, such as robbery, common assault, larceny etc., as a witness in court. She is clearly placed in quite a different and greatly more taxing and upsetting role as a witness, and therefore deserves to be prepared for the experience ahead of her. Even from the State's point of view, it is surely desirable that their first witness be as confident and relaxed a witness as possible under the circumstances. Her lack of preparation can and often does result in the prosecution not being successful.

A defendant in a rape or sexual assault case has access to legal advice throughout the proceedings. He can apply for legal aid and be provided with free legal representation. Under the Criminal Law no complainant of a crime has access to discussion or consultation with any of the legal representatives of the State. This practice is unacceptable to us in the special and unique circumstances which apply in rape and sexual assault cases.

Traditionally, the State, in criminal cases, does not fight the case but simply presents it to the court. Most of our clients who have been complainants in court cases have reported how stressful they have found the proceedings to be, and that they have felt totally alone and unrepresented while in the witness box. They have not felt any sense of being protected from humiliating and highly personal cross-examination about their sexual behaviour and general character. They feel as if it is they who are on trial throughout the court proceedings. The present legislation and current legal practice in rape cases do not protect complainants from unfair and unnecessary distress and harassment. We recommend that, in the interests of justice and equality for all parties, all complainants of rape or sexual assault should automatically in all cases be granted state funding to employ their own legal representation. The situation in court would then be as follows:

(a) the accused would have his own legal representation as at present

(b) the State would present its case against the accused, as at present

(c) the complainant would have her own legal representation, protecting her interests and more actively fighting the case on her behalf, ensuring that unsuitable and irrelevant cross-examination would not be permitted. The presence of her own counsel would make the complainant feel less like she is on trial and less like she is being raped yet again in court.

That is the submission from the Rape Crisis Centre and I really think it speaks for itself. It certainly puts in context the suggestion that a rape trial is different from any other criminal trial. The women, as witness, plays a different role from that of any other witness. That is a very fundamental area and will need more examination and response.

In dealing further with the Bill, on section 6, I regret that the evidence as to the past sexual history of a woman is still admissible in certain circumstances, although this area certainly has been tightened up. I am pleased that the marital rape concept has been accepted. I am very glad that section 10 will exclude the public from hearings — this is another very fundamental area of change — while still permitting media reporting. A rape trial should not be a spectator sport with people attending for all kinds of questionable motives. All concerned, but particularly the complainant, deserve to be shielded from public gaping. There is no dignity for her in what she has to go through anyway, but closing the court to likely voyeurs from highways and byways will be some help.

I have made an appeal for the victims of rape. After all, the horrific ordeal scars them greatly. Society cannot do enough to help relieve the problems they experience.

I now question the rapists. What about the men who commit these crimes? At the moment little or nothing is being done for them when they are sentenced and go to prison. I know one runs a great risk in even talking about convicted rapists because they are held in such contempt that any indication that they may be given comfort or care is greatly disapproved of. It indicates the low level of regard in which they are held by society. This is perfectly understandable, but many of those men will be getting out of prison and are likely to again be a danger to women if counselling has not been done with them. In jail they are shunned by other prisoners. I do not know exactly what the number of convicted rapists is but there is a big number in our prisons now. I wonder if their problems are being dealt with by welfare people or by social workers, because they will be getting out of prison and will again be a risk and a danger to women.

The question I find difficult is: how can we reduce the incidence of rape? Is it possible? Do we know enough about the men who commit rape and about their motives? Rape is undoubtedly on the increase. In my office I have a substantial file of newspaper cuttings on rape cases and it makes for very disturbing reading. There are cases reported in both provincial and national newspapers of rape of young girls, old women and gang rapes throughout the country, and I believe these are increasing instances. Underlying these offences runs a deep and sordid dislike of women manifested by this sexual violence. I know there is no simplistic answer to the question of why do men rape; but, given the increased instances of it and the horrific sadism of the types of rape, we must look at our contemporary society. We must question how much pornography, particularly hard porn videos, contribute, or do they contribute, to instances of sexual violence and rape. For instance, how much does the trivialising of women's bodies in advertising contribute? Is the page three concept — and in the case of one Sunday newspaper, page one concept — a culprit? Many women firmly believe that this could be.

In my research for this debate I was interested to find a cutting from the London Times in which the MP, Clair Short, who is a redoubtable opposer of page three journalism, took exception in print to the editor of the paper on 28 July 1987. She wrote to correct or take umbrage at the views expressed in an editorial about women's views on rape. She said:

Your editorial writer knows, it seems, better than 120 women representing a wide range of women's organisations throughout the UK. This conference put forward 25 proposals for action. Those which were considered most important were more financial help and security for rape crisis centres, action against pornography and, in particular, the mass circulation of pictures in newspapers which portray women as compliant sex objects, making rape in marriage a criminal offence...

She goes on:

But the man who wrote your editorial tells us that it is wrong to attempt to remove page three from the press. The first reason is that it will blur what he sees as an important distinction between hard core pornography and mild titillation. His second reason is that we assume that such material provokes sexual violence. He believes that it is just as likely that obscene material provides a useful safety value for the frustrated and perverted. One is tempted to inquire how much porn the writer consumes and how it helps with his frustrations. He goes on to reject the proposal that rape in marriage should become a criminal offence. He thinks such a law would be ineffective. This is, of course, a good argument for repealing the laws on incest, racial discrimination, domestic violence, burglary, car theft, etc. It is interesting that he is concerned only to ensure that men who are married to women should be legally entitled to rape them. This change in the law is important because one of the reasons that so few rapes are reported is the myth that a rape is not a rape unless the man is a stranger and the woman is a virgin. Most women believe that the root source of the problem is that men are brought up to believe that women are available to be used and abused for men's pleasure. Teachers will testify that when newspapers are brought into school small boys gather to snigger over page three and small girls are troubled and embarrassed. We believe that to begin to change male attitudes and the legitimacy of such images for women we should start with the crudity of page three to which almost 20 million of our fellow citizens are exposed every day. Too many men like to denounce rape but perpetuate the values that generate it. The man who wrote your editorial has either thought too little or shares that hypocritical look. Perhaps he might try listening to women.

An Leas-Chathaoirleach

Would the Senator give the name of the paper?

The London Times of 28 July 1986. Finally, I would hope that the subject of rape is seen for all its chilling awfulness as a heinous crime against women. We should have one attitude only to it. Regrettably, we still hear in some comedy sketches thinly disguised jokes about rape and there is still the nudge, nudge, wink, wink old boys network, many of whom cannot really accept that a woman would ever say no to sexual intercourse.

This is an enlightened and good piece of legislation. I wish it a speedy passage through the Oireachtas and a useful life thereafter.

I would like to take the opportunity to welcome wholeheartedly this Bill and to compliment the Minister on his initiative. I believe it is one of the most important pieces of legislation that have come into this House, certainly since I came into it myself.

The main purpose of the Bill is to replace the offence of indecent assault on a male or female, which at present attracts a maximum penalty of ten years' imprisonment, with aggravated assault, which will have a maximum penalty of life imprisonment, and that of sexual assault with a maximum penalty of five year's imprisonment. It will also abolish the rule of law under which a husband cannot in general be guilty of rape of his wife. The trials of persons will be held in the Central Criminal Court. The public will be excluded. The admissibility of sexual experience in the past will be excluded and also there will be anonymity. I concur with the Minister that the crime of rape is one of the most obnoxious and reprehensible crimes known to the law.

As the Minister has stated, the Bill is a significant improvement of the legal protection afforded to victims of sexual assaults and it reforms those areas of the law on sexual assault where changes have been called for. I will give unqualified support to any measures which will protect people from all kinds of sexual cruelty. It is important to acknowledge that the Bill gives explicit expression to the existing rule that lack of physical resistance does not of itself constitute consent in cases involving rape or sexual assualt. All of us are aware of cases where the victim does not resist out of fear or, indeed, in some cases, out of ignorance. We are also aware — and reference has been made to it — of cases where mentally handicapped females have been sexually abused.

A very important factor relating to violence in the home is that of drunkenness, and this is an important area. Very often the violence through drunkenness on the husband's part includes sexual assault on the wife. Many marriages have broken down because of sexual abuse in drunkenness by the husband. Being drunk is no excuse. I would have no sympathy whatever for husbands who abuse their wives in any way through drunkenness. There is an old saying that people show their true colours when they are drunk. It is very important to bear that in mind. It is absolutely horrible and revolting to read and hear about husbands who in a drunken stupor demand their conjugal rights, even in cases where the wife may be well advanced in pregnancy. That is absolutely horrible. The life these unfortunate women have to live is dreadful and any legislation that improves their lot will have my total and enthusiastic support.

The idea that a person should be treated sympathetically because he had one too many is a very lame excuse and rings very hollow when we appreciate the terrible suffering that sexually abused wives must endure. In many cases the wives suffer in silence for the sake of their children. This is a tragedy that somehow we must strive to correct. In many of these cases the husband begins at a later stage to sexually abuse his daughter or daughters. That to me is the crime of all crimes. If I were to be asked if I would support the death penalty, I would definitely support it in cases of fathers who sexually assault their children. Reading a newspaper recently I was sickened and horrified to see of a case in Britain where the judge gave the Probation Act to a sailor who sexually assaulted two of his daughters over a period of years. Mitigating circumstances were offered on the grounds that he was away from home for long periods and that his wife would not have sexual intercourse with him.

We can make all the laws we like but I find it absolutely reprehensible where you have a judge who will interpret a situation of that nature like that. I find it unbelievable that a judge could come up with a decision of that nature in view of the terrible effect such dreadful happenings would have on the children. I would definitely have sentenced that individual to the very minimum of life imprisonment. People such as he have destroyed numerous young people who would surely find it almost impossible to cope with life having gone through such traumatic experiences.

As a lay person I find it extremely difficult to understand the thinking behind severe penalties being meted out to somebody caught for shoplifting, while people who commit these horrible sexual abuses walk free. By no means am I advocating shoplifting, but I think that the penalty should fit the crime and to me the crime of sexual abuse ranks at the top of the list.

I am happy that efforts are being made in this Bill to encourage people to come forward by reducing the degree of trauma and ordeal to which victims of sexual abuse are subjected by court proceedings. As Senator Fennell said earlier, a court is a very intimidating place at any time, even for people who are there for relatively minor matters just as witnesses in ordinary civil cases or something like that. These people find the trappings of a court very intimidating. I cannot imagine what it must be like for someone who feels they have to describe intimate and very private details, and that against a background in this country where there is still this attitude of pointing an accusing finger, that if a woman is sexually assaulted she was in some way asking for it. A woman, who in a courtroom must graphically relate — and indeed relive — probably the most painful and degrading experience of her life, should be protected in every way possible from any extra unnecessary trauma.

Again, I would like to take the opportunity to compliment the Minister on his initiative. I wholeheartedly welcome this Bill. It is an area that for some reason some people are slow to talk about. perhaps this is one of the reasons that in many cases it would appear that women who are being sexually abused and sexually assaulted find it extremely difficult to come forward. I can imagine in a lot of cases where wives are being sexually abused that it must be for them an unbelievably difficult decision to decide to go to the Garda and report the fact that they are being sexually abused, bearing in mind all the repercussions that are going to follow from that.

Senator Fennell mentioned the reasons why there is rape and sexual abuse and that the incidence of it would appear to be on the increase. She mentioned page three of the newspapers. There is a difficulty in relation to that — in no way am I advocating page three; in fact, I never see it because I do not buy these papers — because in rural areas where there is rape and sexual abuse the reason for it could not be attributed to page three or anything like that. If a start is being made to try to remedy the situation it could begin in our schools. Senator Fennell mentioned this in passing. There are a number of programmes being set up in the schools in relation to education for life and education for living in which the whole area of sexual development is being explained and taught. If young people at a developing age are taught the importance of treating their fellowmen with respect — and that is what the whole thing is about: treating each other with respect, whether male or female — a great start can be made there. I know from surveys and reactions where these programmes have been in operation for a period that this whole area of sexuality is not the nudge, nudge, wink, wink situation and that people are quite prepared to talk about sexuality and, indeed, respect each other. The start must be made in our schools to improve the situation.

I wholeheartedly welcome this Bill and I compliment the Minister on his efforts.

May I also compliment the Minister? It is admirable that we should have this Bill. It is also admirable that what is a difficult area, and an area that obviously requires a considerable amount of reflection and thought, should have been acted upon expeditiously. The Bill is by and large to be welcomed. It would not be characteristic of me to give any Bill an absolutely uncritical welcome and neither would it be my job, being as I am permanently consigned to this side of the House.

You have a choice in that.

I do not think they would have me.

I would say the Senator has not a choice.

I was about to say that for the Minister but I am very glad he said if for me. I did not think that my position was that undefined.

(Interruptions.)

I know that. I did not intend to introduce a note of levity to the subject. I am sorry if I gave that impression.

Men in particular, whatever their public utterances, very often find it difficult to handle this seriously in all male company. It is one of the important things that men have to contribute to a debate on any issue to do with sexual assault on women. This is to offer society, and particularly women in society, some insight into the differences between male conversation in mixed company and male conversation in exclusively male company. I am not saying this applies to all men, but it is true that the attitudes articulated towards women very often in exclusively male company can be quite different from the enlightened attitudes we would all use in more public view.

I am not issuing this criticism against other men. I would say it is true of most men including myself from time to time. I am thinking of the extreme examples, the things we tolerate. I am not talking about pornography. We all agree about certain things and I agree with Senators Fallon and Fennell about page three, not necessarily because you could say this causes rape but because it embodies an image of women which makes it difficult to be utterly opposed to some of the things that will result in rape. It creates an uncertainly about the absolute right of women not to be treated in any way as objects of male sexual interest. As well as that, there are other areas such as rugby songs which embody an attitude to women which is less than wholesome. One has to ask why are there so many areas where men apparently want to have male only functions. What is it that they feel would happen to them if women were allowed to be full members of golf clubs? I do not know if it still happens but until recently, for instance, the after match function of a rugby international was an all male function to which spouses and girlfriends were not invited.

At the root of the problem about the relationship between men and women, which is manifested in its most negative extreme in rape, is the fact that a lot of men do not like women. They may have a very strong sexual attachment to women but they do not like them. They do not like like intelligent women. They do not like articulate women. They do not like women who can stand up and defend themselves. This is true on a very wide scale. It has often been said that rape is not primarily a matter of sexual gratification; it is an assertion of power.

Considerable research has been done which would support this view. I do not have sources to hand but I have read documents produced by the Rape Crisis Centre and other bodies which confirm that a lot of sexual attacks, and particularly rape, are as much to do with power over women and attitudes to women as they are to do with straightforward sexual gratification. To put it another way, sexual gratification is used as a way of asserting power over women. That less clear area of relationships between men and women is one that needs to be identified with, dealt with and analysed if we are to work out why it is that rape takes place.

I accept all of what has been said. Pornography plays a part and so does page three but I suggest that, in terms of distorting relationships between men and women, things that are not regarded in the least bit as pornographic, like the glossy American soap opera that we are treated to, deals with women in a most offensive way. There is hardly a woman in either Dynasty or Dallas who could be regarded as a whole person in any way with a complete set of feelings and attitudes. They are largely portrayed as either devious or dim-witted in serials like that. That defines an attitude to women which is not possible to legislate for because you cannot obviously ban programmes like that. It defines an attitude to women and the consumption of such programmes suggests that that attitude to women generates an accepting response in the public at large. Those issues, which are not as easily identified as pornography, have a large part to play in defining and delineating the question of male-female relationships out of which in its extreme negative form comes something like rape.

There is a lot that men must reflect about in their attitudes to women, the sort of macho gestures that are often used to describe the attractiveness of a particular woman which would not be used in female company but which are still used, the way we talk about women when women are not around. It is not so much that one should feel guilty about things but they reflect deeper attitudes than the ones we are happy with. Having said that, they are issues for the longer term.

There is not doubt that the serious sexual offences we are talking about are frowned upon by everybody. It is as Senator Fennell said, a fact that sexual offenders are extremely unpopular with the prison population at large. People who commit offences against children and people who commit sexual offences are probably at greater risk within the prison population than they would be amongst the population at large. For various reasons I know many people who have been in and out of the prison system and I know that the tolerance for sexual offenders is even less amongst the prison population that it would be in the population at large.

I do not intend to be critical of the Minister but we must ask why it has taken us so long to straighten out legislation on such a heinous offence. Why was it that women had to wait God knows how many thousands years until the sort of legislation we got in 1981? We are not that much different from any other society. It took thousands of years for society to come to the position where it could honestly face in legislation the whole trauma that a woman goes through when she is raped. That implied if not covert approval at least a certain ambivalence throughout the development of society towards the question of rape.

There is no doubt that one of the spoils of war for centuries that was available to conquering troops were the women of the defeated foe. This was accepted and taken for granted as an acceptable reward for those who had fought bravely. We need to go very deeply into our experience, into our subconscious, into our psychology as men, to understand what it is that motivates such an extraordinary offence, what it is that motivates a man of 18 or 19 to rape a woman in her seventies or eighties. I am not condoning it. I will not stand here and be in the least bit ambivalent. That is so appallingly wrong as to be beyond even condemnation. It does not need to be condemned because we know it is awfully wrong. There will never be any argument about it. It also raises interesting questions. I do not think, for instance, that it could ever be acceptable to allow anybody to argue that there was any uncertainty in these areas so we will not discuss it.

If we are to get to the bottom of what causes this we have to look a lot more at men than at the portrayal of women because the portrayal of women is largely a production by men for men anyway. The de-intellectualisation of women, the suggestion that they do not have feelings reflect a considerable male distrust of and remoteness from women, and, as I said, a considerable manifestation that many men, whatever they may say and do with women, actually do not like them very much as equals and do not like the idea that they will be equals. That is a view that I have heard articulated by men in all areas of society. I do not exclude the male membership of Leinster House from that because it is a good microcosm of Irish society representing virtually every strand of it. We have a lot to learn.

As far as the Bill goes, we have the problem that most of those involved in drafting this legislation, most of the members of the Law Reform Commission, most of the Judiciary and most of the legal profession are not women. This is, with the best will in the world, a production by men, not overwhelmingly or deliberately so, but it is our production. It reflects our attitudes, however enlightened. They are still ours. They are not those of the victims. We all accept at this stage that no man can really understand what it is like to be raped. The only minor comparison which ought to remind men of how horrific rape must be is the experience of having your home burgled and the sense of invasion that causes.

You must be joking.

I am sorry but I suggest to men that when they realise the sort of shock and horror that minor offences like that can cause them, the infinite leap beyond that cannot be grasped. No man can grasp what it is like to be raped. Therefore, no man can satisfactorily respond to that experience because we do not know what it is like. I have said this about a vast range of areas of human experience before. No man can understand it because we do not know what it is like. All our attempts will be inadequate and will be seen to be inadequate in particular by women. I have a considerable difficulty, therefore, in disagreeing with women, or any group who represent women, or who have spoken to women on issues like this.

That brings me to the Bill. All the positive provisions of the Bill are most welcome. The only question is why it has taken society, not us, so long to develop this enlightened view. Having said that, it is a pity that some of the recommendations of the Law Reform Commission were not introduced. The Minister should explain why in the minority report the penetration of the anus by an inanimate object was referred to as capable of being covered by aggravated sexual assault. For some reason or another, it is not referred to in the Bill. I would like to know why. It is an omission that I do not understand. I cannot see what great principle is involved that prevents it from being there. I do not know whether I support the majority or the minority view in the Law Reform Commission's report but most of the women I know who speak about this issue feel that it would be preferable to extend the definition of rape. The major thing is that these other offences will be treated with equal seriousness. The problem I have is with the omission of the reference to an inanimate object. I do not understand that.

The second question is the one the Minister referred to, that is, the proposal by the Law Reform Commission to amend section 4 of the 1935 Criminal Law Amendment Act. I do not like phrases like "idiot", "imbecile" or "feeble-minded" and I do not like the fact that the phrase refers to idiot, imbecile or feeble-minded women. That sort of phraseology is past history. The Law Reform Commission which had a range of submissions from High Court judges, lawyers, etc., found no reason why that phraseology should not be deleted from the Criminal Law Amendment Act, 1935.

The Minister said he as been advised that it is not straightforward. I would be grateful if, in his reply, the Minister finds it possible to elaborate on the advice as to why it is not straightforward. It is not the nub of this Bill but it is an important recommendation that was made and one that should not go on the long finger.

It would have been worthwhile to have had greater discussion on the definition of consent. In the Bill it is proposed that the question of consent should be to some extent addressed but I do not think we have gone far enough. It is fair enough to say that lack of physical resistance should not be used to imply consent. If you take a step back from it, the sheer shock of the implication that the failure to offer physical resistance could ever have been taken as implying consent reflects on our society and on our values. It reflects on our attitude to sexuality and the sexual relationship between men and women. The implication that non-physical resistance implies consent is used to transfer a burden of responsibility away from men on to women and again it reflects the dominance of a male ethos and male thinking in a lot of legislation dealing with matters like this.

I would have been happier if we had gone beyond that and followed the Law Reform Commission's recommendation on the absence of consent. They recommend that legislation should provide that consent means a consent freely and voluntarily given and without in any way affecting or limiting the meaning otherwise attributed to these words. A consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means. Women are entitled to have that made clear in our legislation. It should be perfectly clear and not open to court interpretation that consent is something that can be affected not just by the force but by circumstances, by intimidation. It ought to be very clearly the responsibility of a man to be satisfied that consent is given and not to be able to assume that because circumstances are not entirely hostile consent is being given.

It would have been useful to introduce more legislation on the question of consent rather than simply legislating away the possibility that any failure or omission by the person to offer resistance does not, of itself, constitute consent. That is a very niggling concession to make to people who have suffered so traumatically. They deserve more from us. I hope the Minister will rewrite the section on consent to make it clear that we are not simply talking about people physically resisting but that any sort of covert or overt threat, intimidation, force or deception cannot be used to imply consent. People deserve more from us.

This is a worthwhile, positive, constructive and liberal legislation, liberal in the sense of an insight into the sufferings of women, which ought to improve considerably the way the law deals with them. As I said, as long as the overwhelming majority of the Judiciary and the legal profession are men, the whole sensitivity in dealing with the victims of rape and of protecting the interests of a complainant in a trial will be less than adequate.

The fundamental problem is the attitude of men to women and the huge chasm of understanding that exists on so many issues between men and women, even men and women who are close and lifelong friends. It is only as we develop into a society that really believes what we claim to believe, which is that men and women are entirely equal — it is such a trite thing to say and yet our society perpetually implies the opposite — that we can begin to legislate adequately for such an appalling invasion of another human being's body.

I welcome the Bill. I congratulate the Minister and I look forward to an interesting Committee Stage.

I was a member of the Oireachtas Joint Committee on Women's Rights and I feel that I have an obligation to make a contribution on this Bill. It is a Bill on which we can make a bigger input on Committee Stage and later stages and so, on Second Stage, I will confine my remarks to a general overview of some areas of the Bill.

In an area like this the professionals involved such as doctors, psychiatrists or even lawyers would be capable of making a greater input but any individual who thinks seriously about matters of this kind must have some kind of input to make into legislation of this nature.

I am concerned like many other people about the financial state of the Rape Crisis Centres in Dublin and in other areas around the country. I note that £20,000 is being provided by the national lottery fund. As I stated before, I regard the national lottery as despicable. I regard it as one of the greatest con jobs since Houdini. I regret that funds are used on such a massive scale to hoodwink and cajole people into parting with their money.

The microphone is not on and I cannot hear the speaker.

The results of the national lottery are negative with the sole exception of the financial one. At this time of year, coming up to Christmas there will be many people——

That is removed from the legislation before us.

It is removed, but not totally. As Michael O'Hehir said, I am making an angle for myself. While playing you cannot have the ball all the time in your hands. While I may have gone over the sideline I am still on the pitch.

I judge whether you are still on the pitch.

I respect your judgement. Voluntary bodies depend to a great extent on local funds. The national lottery has interfered with such funding. To that extent it is not irrelevant to the debate. To depend on funds from the national lottery is not meeting the problem in the way I would expect the Government to meet it. Separate and sufficient funds should be provided. The funds being provided are totally inadequate.

Senator Fennell and other speakers referred to the situation that has developed with regard to sexual abuse. To put it in an historical aspect I will quote from the Reports from Commissioners; Fifteen Volumes. Poor Laws (Ireland) 1836, volume XXXII, page 75. It deals with the condition of the poor:

Cabin 12 feet by 8, no chimney nor hole in the roof for the smoke, nor in the wall for light or air; no aperture whatever but the door. Only one room, which is inhabited by a man, his wife, six children, a pig (when they had one), and a donkey, the latter being tied up in a corner of the cabin night and day, unless when at work.

It states:

In several other villages or hamlets in this barony the Assistant Commissioners met with much the same thing. Cabins of single rooms, containing families of man, wife, and four, five or six children, all sleeping in one bed — with a donkey or pig, or both, lying in the corners of the cabin, and the family sleeping on rushes and old bagging, and with only rags to cover them.

Further on it states:

The Archdeacon of Meath stated, at the public examination, that he had travelled all over Europe, but had never seen so miserable a peasantry in any other country, and that it was a perfect mystery to him how more than half of them managed to exist.

Visitors to this country and many others who wrote about Ireland stated quite clearly that there was a very high standard of sexual morality. We must ask ourselves, as Senator Fennell said, what has happened to bring us to the situation where we have the newspapers on a monthly basis if not on a daily one reporting cases of incest, sexual abuse and rape. At that time in a sworn inquiry before the UK Parliament, Daniel O'Connell swore that he was not aware of one instance of incent. What has happened since or were things as rosy at that time as they were supposed to be? Will revisionist history find out and state clearly that things were almost as bad then? If at that time we had that high standard of morality with people in such deprivation and poverty and living like animals, is the problem related to the improvement in the standard of living? Is it related to what Senator Fennell said: the media, television, newspapers and radio? I do not know.

Women have suffered on a massive scale. I do not agree with Senator Ryan when he said that male offenders are outcasts. I agree that perhaps in prison they may be ostracised. In my experience, the unmarried father has never hung his head in shame. In a society dominated by male thinking it seemed totally unChristian and unacceptable for an unmarried mother to be ostracised. I am glad, as many others are, that the situation has been redressed to a considerable extent, perhaps not to the extent that we would all wish but strides have been made. At present the unmarried mother can hold her head as high as any other individual in society. I am pleased about that.

This is a Bill which will be teased out to a considerable extent on Committee and later stages. As regards the definition of rape, I understand to some extent the Minister's approach and his attitude. As a man of compassion the Minister must look at the two sides of the coin where innocent people are prosecuted. Senator Fennell has dealt with the subject of rape in some detail. I simply want to state as a member of the Oireachtas Joint Committee on Women's Rights that we have on a number of occasions dealt with this aspect. The fourth report on sexual violence on page 10 states:

Under the existing legislation 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 and

(b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it.

Page 11, paragraph 1.3 states:

Having given the matter careful consideration the members of the Joint Committee agree that the definition of rape be widened to include the types of indecent assault referred to at (a) on page 8.

These are:

to define rape in its broadcast sense, to include oral sex, buggery and the use of objects such as sticks, bottles and other articles to violate a woman's vagina.

Paragraph 1.3 further states:

The existing Criminal Law (Rape) Act, 1981, ignores the seriousness of other forms of sexual assault, such as forced anal and oral sex, apart from penile penetration, and in so doing it implies that one form of sexual attack is more serious than another. It is important that the gravity of forced sexual penetration through the use of objects is fully recognised and that the protection at present afforded to victims of rape be extended to the victims of such sexual acts. The members agree that there is no logic in keeping separate the treatment by the law of offences that reflect a correspondingly degrading level of sexual violence against women. This is a view shared by many other people and reflected in the report on "Violence Against Women" by the Women's Rights Committee of the European Parliament.

On subsequent occasions the committee reiterated what is stated there.

The Law Reform Commission, while pointing out that there was not unanimity in this regard, nevertheless came down on the side of this extension of the definition. On page 8 of their report on rape the commission stated:

We accordingly recommend that the crime of rape should be defined by statute so as to include non-consensual sexual penetration of the vagina, anus and mouth of a person by the penis of another person or of the vagina or anus of a person by an inanimate object held or manipulated by another person and that in this form the crime should be capable of being committed against men and women.

At the last meeting of the Joint Committee on Women's rights it was decided that we would press to have the Minister reconsider the Bill with regard to this matter. I am sure he will and that on Committee Stage many Members will put all their views before the Minister and that he will consider them with great sympathy.

I, too, would like to pay tribute to the Law Reform Commission which provided the consultation paper and then the report. The Government acted with commendable speed with regard to this matter. On 6 March 1987 the Attorney General asked the Law reform Commission to review the situation with regard to sexual abuse. On 1 December 1987 the commission published the consultation paper on rape, which is a very comprehensive document and which was discussed at great length. A seminar was held on 30 January 1988 with regard to that consultation paper. The Bill now before the House indicates the serious manner in which the Government view this matter.

I welcome the Minister taking on board most of the suggestions made by the Law Reform Commission. We will be able to go into that further on the later stages. I agree with Senator Brendan Ryan that the great problem is that women have not been granted equality. At the present rate of progress it will be a long time before we reach that desirable goal. It must come and this type of legislation will bring us further along the way.

I would like to pay tribute to the Oireachtas Joint Committee on Women's Rights and in particular to Deputy Monica Barnes for her hard work. She is always approachable on matters which are dealt with at committee level. I attempted to get in touch with Deputy Barnes to have one point clarified and I discovered she has suffered a bereavement in the last few days by the loss of her mother. I am sure Members of this House join with me in extending sympathy to Deputy Barnes and her family. I understand that Deputy Barnes in her capacity as chairperson will be writing to the Minister about the definition of rape.

I hope that on Committee Stage this aspect will be discussed in considerable detail and that we will eventually decide on legislation with which the joint committee will be satisfied. The Joint Committee on Women's Rights are glad that the Minister has included marital rape in the Bill. This has been discussed by previous speakers and I do not have to go into it in any great extent.

This is a very fine Bill. I congratulate the Government on the speed with which they brought the Bill before this House. I am particularly pleased that the Minister has selected the Seanad for its introduction. I look forward to the debate on the remaining stages and hope that the Minister in his reply to Second Stage will cover the points that have been raised.

I am grateful for the opportunity to extend even a guarded welcome to legislation presented to this House by the Minister and prepared by the Department of Justice. As the Cathaoirleach will recall, I have not been in a position to give anything like a welcome to some of the other measures recently introduced by the same Minister whom I describe as being niggardly and parsimonious with legal reform.

Senator Norris, the Minister for Justice is not in the House. If that remark you have just made about the Minister for Justice sounded to you as severe as it sounded to me you will have to withdraw it.

A Chathaoirligh, I will be guided by you but this is, in fact, a matter of record in another debate.

We are now dealing with today's Bill. We will leave aside what you did on other days in other debates.

I am sure you will allow me to say that I am able to give a more positive welcome to this Bill.

Hear, hear.

I knew that would find a response in various parts of the House. Of course, your own impartial self will not be wishing to respond too positively because that is an enthusiasm which would appear less than your usual professional standards.

I give a fairly high degree of welcome to this Bill. It is very appropriate. There is no doubt whatever that it represents an advance on the present position with regard to rape. I hesitate to use the word "liberal" because I understand that in international terms this word has recently become a term of abuse. Particularly having been just reprimanded very gently by the Cathaoirleach I would not wish, on this occasion, to leave myself open to the implication of abusing the Minister. However, in addition to a general welcome — there is no doubt at all that this is a forward looking piece of legislation — I have some reservation which the Minister may be in a position to clear up. I welcome particularly the fact — I may not be correct on this — that the Committee Stage of this Bill will not now be taken until after Christmas. That leaves a certain time for the continuing study of the various interesting documents produced both by the Oireachtas Joint Committee on Women's Rights and also by the Law Reform Commission and it gives the Minister an opportunity to take into account the various suggestions made on Second Stage, in a very considered way, by Senators.

The Minister said that the purpose of the Bill was to amend the law on rape in order to provide additional protection for women who suffer sexual attacks. He returns on a number of occasions to this exclusive concern with women in principal sections of the Bill, making it quite clear that he is against the extension of the notation of rape in various ways which are recommended, including the extension of the terms "rape" to cover what he describes as aggravated sexual assault upon men by men. I urge him to think again upon this.

I believe that the Law Reform Commission's majority report, which calls for the extension of the definition of rape, is worthy of a further examination. I say this although I am aware of the fact that the argument is that the offences of aggravated sexual assault will be regarded as sufficiently serious to constitute a parallel offence to the statutory offence of rape. However, I would have to place on the record of the House the very clear understanding that I have, although not a woman, from women that they feel a psychological problem about the niceties of this definition.

As I heard on the radio, during the preamble to this, a woman who has had various orifices of her body penetrated by solid objects such as bottles, pieces of metal and so on, does not actually feel that she has been aggravatedly sexually assaulted. She feels that she has been raped. The same, I would maintain, is true of males who are subject to what may be described as aggravated sexual assault. There are, of course, degrees of aggravation. There is on question in my mind that phrase "aggravated sexual assault" carries less of a bite and less of a stigma than the word "rape".

I would point out to the Minister that in the conditions he gives for meeting the definition of rape at least two of them are covered by these other forms of sexual assault on both men and women. He says:

Rape will normally give rise to subsequent feelings of insecurity and there is also the very real fear of disease or pregnancy.

So the two major sections of that concern are met by the other forms of aggravated sexual assault, with the single exception of pregnancy, which obviously will not arise. I hope the Minister will reconsider the possibility of extending the definition of rape rather than creating this additional category of offence.

It is a pity that the Minister felt it was necessary to reject the majority recommendation, particularly when this majority recommendation, as I understand it, had been made subsequent to very considerable discussion and debate within the commission, so that if their proceedings are to be really taken seriously, the Minister must take on board the fact that the Law Reform Commission saw this as a problematic area and were persuaded by the arguments from the Rape Crisis Centre and the Oireachtas Joint Committee on Women's Rights. I see it as part of a process in which the Minister may wish to participate by following the lead given by the Law Reform Commission.

The Minister is scrupulously fair-minded because he listed the reasons why such an extension of the definition of rape should be given. I feel that this subject has probably already been read into the record, not just by the Minister, but also by other speakers in response. I will just refer to that section without exposing the House to the tedium of endless and unnecessary repetition. The Minister does say, however, that these are criticisms that can be tackled and are being tackled in this Bill without interfering with the definition of rape. I feel it is incumbent on me to state that this is not the view I have formed and it does not appear to be the view of a very considerable body of women. I hope that the Minister will consider this with an open mind.

I would like some clarification of another aspect, that is, section 13 of the Bill, under which the Director of Public Prosecutions is entitled to apply to the court to lift the anonymity of the accused in the public interest. Section 13 says:

Section 8 of the principal Act is hereby amended by the insertion of the following subsection after subsection (7):

"(8) The Director of Public prosecutions may apply to a judge of the High Court, at any time after a person is charged with a rape offence, for a direction in pursuance of this subsection and, if, on such an application, the judge is satisfied that it is in the public interest to do so, he shall direct that subsection (1) shall not apply to such matter relating to the person charged with the offence as is specified in the direction.".

Perhaps, the Minister could give some further amplification here because it seems to me to be a serious thing to remove the anonymity of somebody who is merely charged with an offence. The Minister refers to the presumption of innocence, which is a cardinal foundation of our attitude towards the law. There may very well be certain circumstances in which this is necessary and is in the public good. I would be grateful if the Minister could be a little bit more specific.

I have always felt that changes, not just with regard to rape laws, but with regard to various criminal charges relayed in the courts of this land, were necessary because from time to time people are accused and their names, addresses and occupations are given. To my mind, this constitutes a violation of natural justice because somebody whose name, address and occupation appear in the newspapers as an accused is frequently held in the public opinion to have been at least guilty to the degree that suspicion was sufficient to cause a charge to be laid against him or her. Very frequently, particularly if there is a sensational element in the case, the fact that somebody is subsequently acquitted does not get the same prominence. I would need to be assured that there were serious reasons why this protection of anonymity for somebody who is presumed to be innocent should be lifted, although such reasons may very well exist.

With regard to marital rape I have to say that I very much welcome the fact that there has clearly been an advance since the period when both Houses were discussing the 1981 Act during which period apparently there was some considerable resistence to this notion. The view of the wife as a chattel is, I hope, a discredited notion in this country and the view that a woman is obliged by virtue of marriage to allow sexual activity, whether or not she wishes it to take place with her husband, is a most offensive one.

There is no doubt whatever that rape is possible within marriage. I believe we all know this. The only reason that marriage would provide an exemption from a charge of rape would be if one took so low a view of women that one regarded them simply as a commodity to be used for the pleasure of and at the whim of the male partner. I find it very difficult to believe that anybody in this day and age would subscribe to that view. I am rather shocked to find that people expressed reservations in 1981 and I hope we have moved on from that.

I can understand some of the hesitations that have been expressed here that there might be malicious prosecution in a case of marital breakdown and that there might be allegations that subsequently were unfounded. I note that the Minister has introduced certain technical means which will meet even this fairly remote fear.

I also welcome the fact that the Minister has taken on board the Law Reform Commission's recommendation that the rule of law under which a boy of 14 is regarded as incapable of sexual intercourse and, therefore, of committing an offence involving sexual intercourse should be abolished. This is simple common sense. We are at last beginning to square up to the physical realities of life. There are boys of 11, 12 and 13 who have demonstrated themselves to be capable of fathering children. If one is capable of fathering children one is certainly capable of rape. In my opinion it is appropriate that this provision should be introduced. I also welcome the fact that there has been confirmation of the notion concerning consent and that the Bill confirms the existing law that physical resistance is not a necessary element in proving absence of consent.

I turn now to the matter of previous sexual history of the complainant which is a very delicate area. There might well be reason for further consideration here because I take several elements in the Bill together and the Minister's approach, with the greatest respect, appears to be slightly inconsistent. The Minister is introducing a situation where there will continue to be admissibility of evidence of previous sexual history and takes comfort from the fact that the Law Reform Commission apparently support this view, although significantly the Oireachtas Joint Committee on Women's Rights does not. This is an attempt to be fair to the accused. I have already mentioned the question of presumption of innocence which is an important element in our law.

I am a little delicate about it because it is such a sensitive area. It is not very pleasant for anybody to have their sexual history gone through in a court of law. Not all courts take anything like an Olympian view of these matters. I do not know about the courts in which these cases will be tried, but I could certainly place on record experiences that I have seen in lower courts of individuals exposed to ridicule. I am very glad that this will not be allowed to take place in rape cases under the machinery suggested in this Bill. If people are to have their sexual history exposed in open court and if they are to be placed in a situation where counsel for the defence can go into the very intimate details of their private life, both with the accused and with other parties, why is the Minister refusing to grant separate free legal representation?

This is not acceptable. If people are to be put into a pillory and cross-examined with regard to their previous sexual history when they are the alleged victims of the assault, surely they ought to be entitled to representation so that their rights and well being can be safeguarded? This need not necessarily be taken as an attack upon counsel for the prosecution because counsel for the prosecution has a very specific intention, that is, to prosecute. The Minister indicated that he knows this. His prime intention is to secure a conviction, whatever the cost to the complainant.

It is only simple decency that a person who makes a complaint should be protected in this way. If the Minister is serious about dealing with the crime of rape, everything that will encourage and support women who go through this process must be undertaken in the Bill. It is not so being undertaken by this provision. The Bill will be substantially weakened if this provision for assistance is not taken on board. We are getting dangerously close to something like class justice because if those previous politicians referred to as the well-heeled Dublin 4 brigade get themselves raped, one can be assured that they will have there own privately paid legal representation in court. What about somebody in the area of Dublin in which I live where the rate of employment is 85 per cent, where people are living on the borderline and sometimes in conditions of real poverty? They will not be able to afford the protection. Once again I wish that the words of the Easter Declaration of 1916 about cherishing all the children of the nation equally were part of the constitution because this Bill does not address all the children of the nation equally, particularly with this parsimoniousness on the part of the Exchequer in providing a reasonable protection to people who have the courage to report this kind of offence.

I will not be tedious and, therefore, I do not intend to repeat everything that Senator Brendan Ryan said with regard to offensive terminology. I can understand some of the difficulties of the Minister with regard to drafting but surely this is a problem that could be cleared up. I do not think that, in this day and age, it is any longer necessary to refer to female idiots and imbeciles. We are not dealing with a Victorian society. We are dealing with a society in which the less advantaged are increasingly becoming part of our community and there is no way that I am prepared to accept that offensive terminology should be continued in legislation. It simply gives support to prejudice.

I would like to concur with the remarks of my colleague who spoke of the excellent work done by Deputy Monica Barnes and the members of the Oireachtas Joint Comittee on Women's Rights. The Minister will be aware, in the context of this Bill dealing with rape, that the Oireachtas Joint Committee on Women's Rights are greatly concerned about the future of the Rape Crisis Centre. It would be appropriate, with the introduction of this Bill, for the Minister to get together with his Cabinet colleagues and actually do something practical about those who suffer the indignity, humiliation and physical abuse of rape. Everybody knows that the Rape Crisis Centre is itself in a crisis at the moment due to under-funding. The suggestion that funds are being made available from the lottery simply covers a sleight-of-hand conjuring trick with regard to book-keeping. The Rape Crisis centre really are not getting any money at all. It is all being taken out of other allocations. We are actually still in the same crisis situation with regard to the Rape Crisis Centre as we were before the announcement of lottery funds.

I do not share Senator Fitzsimon's delicacy about taking money from the lottery. I have quite a number of projects on hand at the moment and if lottery money were available for them I would be very grateful, indeed, to accept it. It does amuse me to see that on some occasions Ministers come into the House and say there is no money left in the lottery. The next day you see that £150,000 has gone to some place not unconnected with electoral ambitions, but that appears to be the case. I have not quite understood the lottery, so perhaps I will pass that. As a member of the committee I would not worry if the money came from the lottery, but the money must come from somewhere. As far as I am concerned the sooner the better.

I have one final thing to say. It might be regarded as flying a kite, but I hope that it is a helpful kite. I noticed it in the Schedule of an Act that was repealed. The Minister has got rid of a small snippet of the Offences Against the Person Act, 1861. I would hope that over Christmas he might consider doing the decent thing — a neat little surgical exercise — which might not, perhaps, attract an enormous glare of publicity. Why does he not snip out sections 61 and 62 entirely and perhaps also the Le Boucheur amendment of 1885, thereby meeting the requirements of the judgment in my own case at Strasbourg, and moving in the general direction indicated by this Bill and treating offences provided for under this legislation as matters of sexual assault rather than using the antiquated terminology referred to of buggery and sodomy, and so on. I offer, as my Christmas present, to the Minister for Justice, Deputy Collins, the possibility of a neat way off the hook using some small emendations to this legislation, which I am glad to welcome.

I am pleased that the Minister has introduced this legislation in the Seanad. It is a disturbing feature of our times that the number of sexual assaults continues to rise. Add to this the severity of many attacks and the grounds for public concern are obvious to us all. To examine the reasons for such developments which degrade the persons and reveal a sickness in society would be a useful exercise. Today, however, we are concerned with measures to deal with the offender.

I welcome the new Criminal Law (Rape) (Amendment) Bill, 1988. It is good to see that the deliberations of the Law Reform Commission have yielded a comprehensive treatment of this area and even more so that the Minister has seen fit to endorse the major recommendations with the exception of the one on the extension of the definition of rape. It is with this recommendation dealing with the extension of the definition I propose to deal initially. Throughout the report of the commission, agreement as to the reforms necessary is evident. However, on the question of redefining the crime of rape there was clear division among the commissioners. While three members favoured a new broad wording, two, including the president, put forward a strong argument against the extension of the definition. On this question I feel that the primary concern must be that changes in the definition of crime which will result in a more inefficient realisation of the criminal law's main objective of apprehension, conviction and punishment of the guilty should be avoided, unless absolutely necessary.

In our enthusiasm to reform outdated and inappropriate law we must be careful, as the minority view in the report holds, not to enact legislation which could lead to problems of a technical nature, and perhaps give rise to unsatisfactory verdicts. The benefits that should result from an extension of the definition of rape must be balanced against the resulting difficulties that may arise in court cases. The existing concept of rape is clear. It is well known and has been established for generations. Indeed, practitioners attest to the fact that the present definition does not create problems in the prosecution of cases. When this view is held by a judge of the standing and experience of Justice Keane, the advisability of retaining the existing position must be considered. Also, there is the point that an attempt at extending the definition might serve to reduce the stigma which is attached to the crime at present. It has been pointed out that in other jurisdictions extended definitions of rape give rise to problems in so far as they include what might in circumstances be considered minor assaults, relatively speaking of course.

As many Members will be aware from their dealings with the public, there are appalling attacks which do not involve sexual intercourse but which are as traumatic for the victim as rape. With this in mind, the Bill provides for the new offence of aggravated sexual assault which carries the same penalty as rape. This is a welcome development when one considers that in the years 1980 to 1987 there were an average of 141 reported cases of indecent assault on females. It is confidently hoped and, indeed, expected that the new offence and the harshness of the sentence available will act as an adequate deterrent.

Given the violence used in many instances, I am pleased to see that the failure or omission to offer resistance to an act that would constitute an offence does not, in itself, constitute consent to the act in question in this Bill. It is most welcome that the failure to resist shall no longer be used against a complainant in court. Frequently the victim lets herself in for further injury by putting up physical opposition.

Generally I am encouraged by the care for the victim which this Bill shows. In many cases reliving the event in court can be a traumatic experience. Indeed, it is always a traumatic experience. While the anguish cannot be erased, a number of reforms display more humanity than has been evident heretofore. The fact is that since 1981 the name of the rape victim cannot be made public. There are restrictions on the introduction of evidence by cross-examination or otherwise about the sexual history of the victim. These have been features of our law. That these measures should now be extended in the Bill and will in future apply to all victims of sexual assault is a most positive development.

Limitations on the numbers permitted in court are long overdue. For a woman to have the intimate details of her private life discussed is harrowing enough without the entire proceedings being conducted before an audience. I am glad that painful and needless element of a trial are to be kept to a minimum.

In a similar vein the provision that permits trials for rape and aggravated assault to be held in the Central Criminal Court, rather than in the Circuit Court, is timely. This expresses in a tangible manner the seriousness with which the Government view these offences. Particularly in rural areas it entails that the court case need not take place in his or her own locality. It is something to be welcomed. Very significant also is the decision to provide for the abolition of the mandatory warning about the dangers of convicting a person on the uncorroborated evidence of a complainant in offences of a sexual nature. I feel that allowing the trial judge to decide whether to give such a warning is a sound and practical move showing an appreciation of the realities of litigation.

Finally, no contribution to the Bill would be complete without reference to the proposed removal of any rule by virtue of which a husband may not be guilty of the rape of his wife. This is an excellent reform. It represents the emphatic declaration by the State that a wife cannot be treated as the chattel of her husband to be used and abused with impunity. I recognise the vulnerable position of women who live lives of fear and trauma. For such spouses married life is a complete negation of all that marriage is intended to be. If the tiny minority of husbands who abuse their wives could not up to now be moved to stop the misery inflicted, I trust that the provision in this Bill will act as an adequate deterrent and as some protection for the unfortunate wife involved.

Ultimately the Bill introduces most welcome reforms. The appropriate balance between that which is possible and that which is practical has been struck. For this reason I commend the Bill to the House and appreciate the fact that it has been introduced here.

I welcome the introduction of this Bill to amend the law on rape, but I am deeply disappointed that the Government have failed to accept the need for amendment of the definition of rape itself. Like other Senators, I find it difficult to understand why the Government has ignored the advice of the Law Reform Commission and, indeed, the earlier advice of the Joint Committee on Women's Rights on the need to broaden the definition of the crime of rape. I find it particularly difficult to understand because this matter was considered in great depth by the Law Reform Commission.

The Law Reform Commission, as Senators are aware, initially produced a discussion document and invited written and oral submissions from interested parties and members of the public. A considerable number of written submissions were made. A special conference was held by the Law Reform Commission on the subject. That is a new and very welcome development of the role of the Law Reform Commission to enter into a dialogue on an important area. Having carried out this very careful examination, the Law Reform Commission — albeit by a majority but nonetheless the report of the majority is a report of the Law Reform Commission at that stage — recommended and I quote the relevant recommendation:

... that the crime of rape should be defined by statute so as to include nonconsensual sexual penetration of the vagina, anus and mouth of a person by the penis of another person or of the vagina or anus of a person by an inanimate object held or manipulated by another person and that in this form the crime should be capable of being committed against men and women.

That was the recommended extension of the crime of rape. It is, I think, fundamental to any assessment of a Bill proposing to change the law and amend the law from where it stood under the 1981 Act. It is also very relevant that this approach of broadening the definition was supported by the Joint Committee on Women's Rights in its fourth report on sexual violence, and has been more recently supported by the Joint Committee on Women's Rights in criticising the narrow approach adopted by the Government. It is worth asking the question as to why this advice has been ignored.

The Minister, in introducing the Bill, really fell into a sort of language trap which does not answer the question at all. In his introductory speech he said:

There are certain features of the crime of rape which distinguish from other crimes of a sexual nature. It is this view of rape as a distinctive crime as it has been regarded for centuries and in my view is still so regarded by the community today that has prompted the Government, following very careful consideration, to reject the majority recommendation of the Law Reform Commission in their final report to widen the definition of rape.

I just wonder where the Government can say that it has found a community view that differs from the very public process which the Law Reform Commission initiated. The Law Reform Commission went to the trouble of operating a consultative process and came up with a clear view from the public, which was also the view of the majority of the Law Reform Commission. Certainly, I think it is completely unverifiable, unjustifiable and unwarranted to say that there is a distinctive view of rape. For women who have been very severely assaulted in a particular way, it makes little difference whether it has been a penetration of the vagina or the anus or the mouth. A woman knows when she is raped in that sense and her use, her understanding, her degradation, her humiliation and her suffering is not because of some technical way in which she has been penetrated or what particular part of her body. It is the form of the crime.

It is that essential fundamental that has been understood by the Law Reform Commission. They have listened to those who had views to put. I do not accept that the views which were put forward to the Law Reform Commission in this regard were views of a narrow sector of people working with rape victims or involved in counselling people who had their own particular viewpoint to put forward. It is clear from the report of the Law Reform Commission — I am quoting from page 7 of that report — that in a number of instances the views that were being put forward were representing what the victims themselves — the women who had been raped — had expressed as their perception of the matter. The Law Reform Commission encapsulate this in paragraph 11 of the report as follows:

We attach considerable significance to the fact that these views are held by persons who are in daily contact with the victims of assaults and who are in the position to observe their use of language. We were also told by them that appropriate labelling of offences contributes to the victim's sense of being vindicated and protected by the State and that any description which seems to understate the gravity of an offence or put it in a lesser category will be resented by the victim. Consistently with such an approach, we have already decided that we should take terminology into account by suggesting that indecent assault is a wholly inappropriate expression to describe the more serious forms of sexual assault.

Paragraph 12 states:

There is some indication of prosecutorial problems and increased plea bargaining in jurisdictions which have chosen to introduce complex gradations within sexual offences. There is little evidence, however, that an expanded definition of rape would necessarily lead to prosecutorial difficulties, provided that the expansion is within reasonably clearly defined limits. It may even be that in some respects prosecution would be facilitated, particularly in respect of attempts. There is no obvious reason why an expanded definition of rape, if limited to a range of reasonably well defined acts, should cause any more prosecutorial problems than those attendant on the present narrowly defined offence. It is true that difficult problems of definition arise, as is illustrated by the different approaches to the problem in other jurisdictions, but this is not of itself a good reason for declining to implement desirable reforms.

It does seem to me that the Law Reform Commission, having taken so much trouble and care and having consulted so widely and listened to the views put to it and clearly represented those views in its report, was entitled to be supported by the Government. It was entitled to have those views taken on board, not to have them second guessed by a Government who apparently feel they know better about the attitude of the community or the attitude of women victims of rape, or whatever. I just do not find that convincing at all. I find it extremely disappointing. I am hoping that in the course of the debate on this Bill in the Seanad on Committee Stage we will amend the Bill and provide a definition of the crime of rape itself. It is fundamental to any reform of the law which conforms with the views put forward by those who made representations to the Law Reform Commission, by the majority of the Law Reform Commission and by the Oireachtas Joint Committee on Womens' Rights.

There is, perhaps, a subliminal reluctance to extending the crime of rape to include also rape on men, or rape on boys. It may well be there is some hangup there that the Government should be examining or some residual difficulty in admitting that men and boys can also be raped, and that this is how we should describe and how we should address that particular act. Having said that — it is a major criticism of the Bill — there are some very welcome proposals for reform which, I think, are badly needed and will be an improvement in the law. In particular, I support the abolition of the concept of indecent assault and the replacement — but the replacement as recommended by the Law Reform Commission — of the offences of aggravated sexual assault and sexual assault.

I also support the restriction on the cross-examination of a complainant concerning her previous sexual history in relation to those complaints and the further protection, therefore, offered to a victim of either an aggravated sexual assault or a sexual assault. Like other Senators who have spoken, I very much welcome the abolition of the exemption of husbands in relation to rape — the marital exemption. This is something which I supported in 1981 but which we could not achieve at that time. Views have become stronger on the side of those of us who advocated that change and that point has ultimately being accepted. It is an important change. I am not worried about the arguments that have been raised either that it intrudes on the marital relationship — because we do that in other ways quite substantially — or that there might be unwarranted complaints. I am of the view that there have been incidents of very serious marital rape in effect which have not been the subject of any proper criminal proceedings because of the fact that the crime did not extend to marital rape.

I am also pleased that in section 9 of the Bill the Government propose to accept the recommendation of the Law Reform Commission that rape and aggravated sexual assault cases would only be heard in the Central Criminal Court. I would share a broad worry about the way in which rape cases are tried before the courts. It is not at all an easy issue. There has to be a balance in the matter. There has to be a balance in recognising that one of the fundamental rules in our society is the presumption of innocence. There is a very real need for an authoritative senior level court to deal with some difficult and serious crimes.

I may say that I share the view that the Law Reform Commission evidenced in their report that the transfer of rape and aggravated sexual assault trials to the Central Criminal Court should be the beginning of a process of returning a wider criminal jurisdiction to the High Court. I would like to see it on that basis. I note that in his speech introducing this Bill on a number of these kinds of issues the Minister dodged the general issue. He said he was dealing with a particular case and that was a matter of general policy which did not have to be dealt with in the context of this Bill. The issues of general policy that are raised in the Minister's speech are extremely important issues. I would certainly hope that at a very early stage they will be the subject of broader debate and, in appropriate circumstances, broader reform.

Again, I support the proposal in section 10, following the recommendation of the Law Reform Commission, that the public should be excluded from hearings of rape and aggravated sexual assault cases in the Central Criminal Court. That is very important. The provision is similar to section 6 of the 1981 Act where, in addition to the exclusion of the public, the jury and the press will be excluded from applications made during the trial to cross-examine a complainant about his or her previous sexual history. I think, again, that is welcome.

I also support the change from the requirement on a judge to give a mandatory warning to the jury of the danger of convicting on the uncorroborated evidence of the complainant to leaving it as a matter of discretion for the judge. That is important. It is properly a matter for the exercise of discretion. Like other Senators, I very much welcome the abolition of the strict rule of law under which a boy of 14 years was regarded of being incapable of sexual intercourse. Unfortunately, that did not comply with the physical attributes of 14-year-old boys. It was a case of the law having lost touch with reality. It was an unhelpful provision which, I am glad, to see has now gone.

On the issue of consent under section 8 of the Bill, it is probably important to have an express provision making it clear that it is not necessary to establish that there was physical resistance to the advances made as a necessary element in proving the absence of consent on the part of the victim. I would certainly take that as having been accurate in the attributes of the crime, but it was not always clear from cases that this was evidence either to the victim or to the manner in which the case was prosecuted.

I am sorry that the Minister, in his speech, dismissed so totally the representations of the Joint Committee on Women's Rights and the Rape Crisis Centre about the need for separate legal representation of rape victims. I appreciate that the Law Reform Commission did not support this proposal. It is important to realise why there is such concern for having that representation. It gets back to a broadly felt unhappiness and worry about the way rape cases are tried in our courts. That remains a major problem. I do not think it is enough to simply say the Government are not going to pay two sets of legal fees for prosecuting a sexual assault or a rape case. It is much more important that the Government should take on board how much worry and concern there is about rape trials.

This, I may say, also extends to civil cases. It applies to complaints of sexual harassment under our equality code and under our employment equality code. I have personally been involved in advising on and making submissions in support of claimants of sexual harassment. They are very like rape victims and the same kind of problems arise. They are very difficult and very real problems. The complainant quickly becomes the real victim of the matter if great care is not taken.

It is more important that the Government should appreciate the thinking behind the view of the Oireachtas Joint Committee on Women's Rights and the Rape Crisis Centres that it is necessary to have some form of representation. What they are really saying — and I think it is at least implicitly brought out in the Minister's speech — is that in a number of cases the counsel for the prosecution is not sufficiently concerned to protect the woman who has been raped from the cross-examination by his or her colleague. People can, therefore, find themselves exposed to a great deal of further humiliation and degradation in the course of the trial. That is something to be borne in mind. We are not a country that has been good at having training or refresher courses for members of the judiciary or for lawyers involved in particular types of trials.

In sexual assault cases there is a need for more guidance, through discussion in conferences or courses, on the issues that arise. Another important issue which the Government have not taken on board is the proposal by the Law Reform Commission that there should be an express statutory provision enabling a judge to order the accused on conviction to pay compensation to the victim of a sexual offence in addition to any other penalty imposed. The reason for dodging that one is that it introduces a more general principle. But why dodge it? In discrimination cases, if there is proof of discrimination in a prosecution in the District Court, the person can be required to pay the sum of money directly to the victim. That is an exception to the general rule in a criminal prosecution before the District Court in anti-discrimination cases. That is only one example that I can think of. Why not start a new process in relation to compensation which may or may not become a more general principle by doing so in the context of one of the most serious crimes against the person, the crime of rape and aggravated sexual assault of the kind that is being dealt with? Again, this should be the subject of amendment when the Bill is being discussed on Committee Stage. It is an important issue and I do not accept that the Government have a proper basis for rejecting the carefully considered recommendation of the Law Reform Commission.

The further recommendation of the Law Reform Commission in relation to the prosecutions on indictment, that the offence should only be prosecutable on indictment at the election of the prosecution, in the view of the Government gives rise to more general considerations and they propose to refer it to the Committee on Court Practice and Procedure. I do not feel quite as strongly about that as I do about the compensation issue, but I do not accept that it is an answer to a considered recommendation of the Law Reform Commission to say that this would have implications for other areas. Let the other areas be looked at on their merits.

I would also join with the other Senators who have raised this point, Senators Ryan and Norris, that the com-mission's recommendation to replace statutory expressions which no longer conform with our use of language and which, again, are hurtful and degrading to those against whom they are applied, such as "idiot" and "imbecile" should be adopted. This is something which we can look at on Committee Stage.

There are very important issues of principle and very important procedural safeguards which are to be introduced into the law of rape and sexual assault by this Bill but since we only have measures of this kind, say, every decade perhaps— our last one was in 1981 — after this Bill of 1988, is passed into law probably some time in 1989 it will be a long time again before the subject is looked at. It is extremely important that we get it right. We do not get it right unless we have a proper definition of the crime of rape which complies, as I say, with the very careful thinking and recommendation of the Law Reform Commission. This Bill, as I hope, substantially amended, will be a significant improvement in our law in this area. I therefore, extend to it a welcome for that reason.

I want to welcome this Bill which is very badly needed in our society. The few points I will make will be brief because I intend to come in at a later stage and I know another speaker who wants to come in before our time concludes.

In relation to the Rape Crisis Centre, I want to say that they are doing a very good job and play a very necessary and worthwhile role in our capital city. They are to be commended for their hard work and their efforts on behalf of the community up to now. I also believe that there should be some way in which they can be funded. Because of the importance of the work they are doing and because they are so very necessary in our society, I wonder if it is possible that they would come under and be financed by our health board system in some way? In relation to fund raising, from my experience I would consider them very amateur indeed in the way they have been conducting their affairs, when you see £87,000 collected while £43,000 or £44,000 is required to generate that amount of money. Considering the very worthwhile cause, it is appalling to say the least.

It is not——

It is extremely poor and you can take it from someone who is an expert in this field. It is a two-to-one situation. Two or three schoolboys would pick that up any Saturday at a pedestrian crossing at any country town. I have a very high regard for the Rape Crisis Centre and I am sure that regard is shared by many. It should be funded by the Government. If there is going to be fund-raising involved, professional people should be employed because I do not see why £250,000 could not be collected for this very worthwhile project. Enormous sums of money are collected from week to week every year on an annual basis for far less worthy causes. If there is anything I can do in relation to advice I would be too delighted to make myself available to advise them from time to time, perhaps at quarterly meetings.

Possibly one of the greatest crimes against humanity is the crime of rape. The hurt and the long-term depression, the physical hurt and everything that is endured by anyone who has been raped must be unthinkable. It is one of the crimes that causes a shiver down the spine when you even think of it. I abhor anyone who would lower themselves to committing this sin, in most cases against defenceless women. There are many categories but for it to happen to any woman is unthinkable. In respect of the sexual abuse of the wife in the home, where there is a family she is trying to protect, trying to keep the matter to herself and where perhaps the husband comes home after too many drinks and insists on sexual pleasure of some kind, I welcome the Bills provisions wholeheartedly. The quicker it gets through the Oireachtas the better for these unfortunate married women. This crime is also committed by fathers against their own daughters. As one other Senator said here in the past, "A penalty such as the death penalty I would not rule out". This is a crime of a very serious nature and could not be condoned.

This is one of the most important pieces of legislation that has come before the Seanad in my six and a half years here as a Member and I want to lend my support in every possible way to ensure that this Bill gets through as quickly as possible.

I welcome also the privacy in the courts regarding the victim's name and address which can protect her from long-term embarrassment. I also welcome the increase in the penalties to ten years and life imprisonment. That is very necessary and is to be commended.

All the other speakers have covered various other aspects of this Bill. It would only be repetitive for me to go through the various sections. Section 6 of the Bill also abolishes the presumption that a boy under 14 years of age is physically incapable of sexual intercourse and therefore incapable of committing rape and certain other offences. I know that is a marginal case but it is very necessary and should be included in the Bill. I hope to contribute to other parts of the Bill on Committee Stage. I congratulate the Minister and the Minister of State on bringing in this comprehensive and progressive piece of legislation which is very necessary.

On a point of information, could I ask if it is possible to have the debate adjourned to enable us to have the Minister for Justice here to reply? It is no slight on the Minister of State because I know he has not been here for the entire debate. It is a very technical issue and I want to ask if there is any precedent for doing this and for having the Minister here.

I shall have to consult——

We have no objection on our side.

Acting Chairman

Shall I call the Minister to conclude?

Is he available?

Acting Chairman

He is not.

Can we adjourn then?

Acting Chairman

There is another speaker.

I shall not take long. First of all, I welcome the main proposals in the Bill. This Bill is typical of the corpus of progressive legislation the Minister has brought forward since he was appointed. Some people have spoken previously about the definition of rape. I am not too worried about that. The definition of aggravated sexual assault will cover everything that is required. I am interested in the jail sentences that are proposed here. They cannot be too heavy. I say this from professional experience. I have seen a number of people who have been victims of both sexual assault and of rape. It is only when one interviews people afterwards and sees the effect that rape has upon them that one realises how horrific an experience it must be. I have seen victims of sexual assault as young as four months old. When you see something like that, you do not have much mercy for the person who did it, irrespective of what their motivations were or the particular illness that forced them to carry out this act.

The Bill proposes that the offence of indecent assault should carry a maximum of ten years imprisonment; for a lesser offence of sexual assault a maximum of five years imprisonment; and for an aggravated sexual assault life imprisonment. I would like to know if some provision could be included whereby the people who are the perpetrators of the crime could be given, while in custody, some counselling which might help them to readjust their life patterns so that when released they would not do such a thing again.

I welcome the section to which Senator Norris referred dealing with boys under 14 years of age being regarded up to now as incapable of sexual intercourse. Of course they are capable in many cases and they should be included in this Bill. The presumption in the aggravated sexual assault case is that it applies just from men to women but there are cases where women have been the aggressors — not in rape as defined by the Bill but I have seen one or two young boys who have been the victims of sexual assault by an older female. I presume the Bill will cover all of this.

One thing I would like to take up with the Minister on Committee Stage — I will probably get into trouble with this — is the provision for secrecy surrounding the trial. I agree with that but I would like to see some provision whereby in some cases even members of the press might be excluded. I am all for freedom of the press but I have noticed in some reports recently — I am not attacking the press by mentioning this — that some of the descriptions of the rape cases did not just mention the actual crime but went into lurid detail which I thought was unnecessary. I do not think it is necessary to refer to the woman's underclothes being taken off bit by bit and so on. That borders on titillation and does not serve the reporting of the crime in any way whatsoever.

In general, I welcome the thrust of the Bill and I welcome the sentences. I do not have any problems with the definition of rape as some people have. I have read the report of the commission on this. The concept of rape here is one that is understood worldwide. I do not know what other jurisdictions do about this but certainly what is proposed here as aggravated sexual assault will cover all the other crimes involved in this type of situation. In general, I welcome the Bill.

Like other speakers I welcome this Bill. It is said that we require so many laws to control the society in which we live. If we look at the wider dimension of nature this type of thing does not happen. The birds, bees and ordinary animals in the universe have no education but they can control their whole sex cycles and sex lives without any laws at all. It is sad that the human being cannot do so. People will say that many of those who commit this type of offence are in some way maladjusted. We are making far too many excuses for people who commit one kind or another of this type of crime. We try to hide them and in some way push those crimes aside. A lot of the sympathy seems to be with the criminal rather than with the person injured. I am glad that this Bill will take care of those who are injured.

It must be an awful experience. Anybody who has had the experience of his or her house being robbed — and that is a far cry from rape — knows the shock one gets when this happens. What must it be like for an unfortunate lady who is walking along the road, going about her business, or in some cases in the privacy of her own home, when a criminal breaks in, or criminals break in, gag her, lock her in her room and rape her. That is a dastardly crime and it cannot be allowed to continue. It has to be punished, and punished severely.

Of course, we must also be careful. We are living in a society where there is much emphasis on insurance and claims. Some innocent man might give somebody a lift home and later find himself charged with this type of offence. He could be held to ransom. There must be safeguards against this but where the case is genuine there is no doubt that the sentence must be very severe.

Is a jail sentence the answer to all this? I heard of a case recently where a man committed a crime to get back into jail because he had such a good time that he preferred to be inside rather than outside. Perhaps it is time to have penalties that are really effective. When we lock people up nowadays we give them many facilities. We see that many prisoners escape when they are brought to the pictures or to some type of entertainment. It is not a great deterrent when people know they can have a fairly good time in jail and enjoy themselves to a certain extent. Perhaps we could devise some other system to deal with this problem. The answer does not lie in just locking people up. We should be thinking of other deterrents.

I remember speaking to an old man who said he spent some time in jail. He was here during the time of the Black and Tans. He came over here to get out of jail. He said that when he was released he made a vow that he would never go back in again. At that time prison was tough and you really paid the penalty when you went behind bars. Now prison seems to be a kind of palatial residence where we give offenders a great time. For this type of crime, for the injuries and hurt it causes, the humiliation and the degradation caused to victims, perhaps there should be some other means of letting offenders know that it cannot be allowed to continue.

I am very pleased that this Bill is before us. There seems to be a lot of teenage and child abuse at present. Perhaps it was there years ago but we did not seem to hear or know about it. I am inclined to think that our moral standards seem to have crumbled and are decaying since the permissiveness and liberalisation of the sixties. Something may have to be done to try to raise moral standards again. It is rather a pity that a country such as ours, or any civilised country, should be so debased as to have a certain percentage of people involving themselves in this terrible activity. We must raise our moral standards. We all criticised the Victorian laws and said they should be abolished but perhaps there was good reason for implementing them. They probably sorted out a lot of things and we had a good society for a number of years. Then we seemed to become weak again and fall by the wayside. Perhaps it will take some type of Victorian system — much as we hate to talk about it — to straighten out society in the future.

Those involved in the health services are dealing with child abuse. What is even sadder is that we sometimes have people who call themselves men who attack the mentally and physically handicapped children under their care. That is terribly sad and you would not expect that sort of conduct from such people. There is the odd person who commits such an offence. It should carry a very heavy penalty.

I welcome this Bill. I sincerely hope we will be able to come to grips with many of the problems that were previously unknown to us. When I was growing up we did not hear of or know about much of this conduct. It seems to be very common now. It is sad that it is happening.

I welcome the fact that when those cases come up before the courts the courts can deal with them without allowing the public to attend because many people are in the public gallery for the "crack" and the joke. Much of the trouble stems from the publicity surrounding the case. If those cases were dealt with privately and quietly, without publicity, it would mean that many fewer people would get ideas about them. I am fully convinced that pornography in books and newspapers and programmes on television is polluting the minds of sections of our community who do not have the ballast, the will, or the determination to keep on the "straight and narrow". We have to come to grips with this. It is putting ideas into people's heads. Many crimes committed today are carbon copies and replicas of what is seen on television. It is time this was stopped.

Bishop Philbin said he hoped the day would never come when good news would be news. I could see his point in that. At the same time I think there is too much highlighting of bad news. There is a lot to be said for the system in the Isle of Man where a person who commits an offence receives a number of lashes and that is the end of it. There is no cost to the State and offenders are punished. It might have to come to that in this country, as well as in many other countries.

The time will come when we will have to implement that type of treatment, I think. Sex cases should not be made a sideshow in any way so that people can watch and listen. The hearing should be brought to a close, the correct sentence meted out speedily with no publicity or advertising because all that would tend to corrupt. After all, we would all be very innocent if we did not copy or emulate somebody who went before us. We are all doing what somebody else did. There is nothing done in this world today that has not been done by others down the years, but sex offences seem to be getting more common and more prevalent in all walks of life. The more sex is hyped up, seen and publicised the more it tends to create problems. I welcome the Bill.

Debate adjourned.

Acting Chairman

It is now 3 o'clock and that concludes the debate on the Criminal Law (Rape) (Amendment) Bill.

The Minister for Labour is not available until 3.40 p.m. and I propose that we adjourn until then.

Acting Chairman

Is that agreed? Agreed. The House stands adjourned until 3.45 p.m.

Sitting suspended at 3 p.m. and resumed at 3.45 p.m.
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