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.