It is obvious that the aim of the Bill is to endeavour to reduce the type of rape crimes we are talking about. However, its aim should be not just to reduce them but to eliminate them totally. Gang rapes which we have all read about — one as recently as yesterday — are extremely henious. While this legislation is an objective of the women's rights movement, 99 per cent of the men of Ireland support the aspirations contained in it. Perhaps it does not go far enough but I agree with the basic thrust of it. The vast majority of Irish men support the view that rape is an extremely henious, horrible crime.
Criminal Law (Rape) (Amendment) Bill, 1988: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
I have no doubt that that is so.
Much of the cause of the problem has been levelled at drink and certainly one has to agree with this. Many rape attacks are committed by men who have taken a lot of drink. Most cases of violence against the wife are as a result of drink and rape within marriage is, for the most part, caused by excessive drinking. It is true to say that many married women live in fear of violence, including rape, from husbands who have too much drink taken but just because a rapist had drink taken he should not be treated with any greater sympathy by the courts.
My criticism of the Bill is that the penalties are not severe enough. If the Minister decided to stiffen them severely I would support him, but is is a good start and I congratulate the Minister for introducing the Bill. I do not intend to go into the detail of it. I have read it but I am sure other Members are far more competent in understanding it than I am. However, it goes a long way towards helping in the matter and I welcome the Bill. I congratulate the Minister for bringing it forward so speedily and I wish it success.
I thank Senator for their contributions to the debate on this very important legislation and for their general welcome for the Bill. The welcome given by Senators Manning and Fennell to the Bill on behalf of their party is particularly appreciated. I know that the law in regard to rape was a matter of particular interest to Senator Fennell when she was a Minister of State.
The Bill represents a concerned and progressive approach to the law on sexual assaults. As a result of the changes which the law will bring about, our law on rape and other sexual offences will be considerably more advanced than in many other jurisdictions and will show a real concern for women. When considering what changes in the law should be included in this Bill, the Government fully examined all proposals for change that had been made whether by the Law Reform Commission, the Oireachtas Joint Committee on Women's Rights or any other group. Where a proposal for change was not accepted by the Government it was because following careful examination of the matter, it was considered not to be in the public interest, including the interests of women, to accept it.
One proposal which the Government did not accept — and a number of Senators including Senators Fennell, Manning, Bulbulia, Robinson and Fitzsimons have commented on it — is the proposal made by the Oireachtas Joint Committee and a majority of three to two of the Law Reform Commission that the definition of rape be broadened to include certain types of sexual assault which do not at present amount to rape. In deference to the Senators who spoke on this question on the previous occasion I will deal at some length with the issues involved.
The question of extending the definition of rape was considered fully by the Government before they came to their decision not to do so. Careful consideration was given not only to the report, including the minority report, of the Law Reform Commission but also to the views of the Oireachtas Joint Committee on Women's Rights which reported on the crime of rape in January 1987. The Government's decision was arrived at with one view only in mind: what the Government considered would be in the best interests of the victims of rape and other serious sexual assaults and of the public generally. This is in no way a political issue and I want to make that quite clear. It is a legal and social issue which must be considered in the context of what is the best provision we can make for the purpose of fulfilling our obligations to the public generally and in particular to the victims and would-be victims of these offences.
On the question itself, the Government were faced with an issue on which clearly there were opposing views. On the one hand, the joint committee and three members of the Law Reform Commission were in favour of the extension of the definition of rape. However, two members of the commission — its President, a distinguished High Court judge and its full-time commissioner, with considerable experience in the Office of the Director of Public Prosecutions — were against an extended definition. Senators will also be aware that submissions received by the joint committee from the Garda Síochána and the Law Society also argued against broadening the definition or rape. Clearly, objections can be made to certain aspects of the existing law on serious sexual assaults which do not amount to rape yet, equally clearly, many of those who have experience in administering the criminal law are not in favour of including these assaults in an extended definition of rape. In view of the obvious disagreement about the proposal to extend the definition of rape, if for no other reason, it was necessary for the Government to examine the issue fully. Even if the Law Reform Commission had been unanimous in recommending this change, this fact would not have relieved the Government of the obligation to form their own view on the question. I will deal with the report of the Oireachtas Joint Committee on Women's Rights first.
It was the view of the committee that "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". The Government accept that such sexual assaults can be as distressing as rape and it is for that very reason that the Bill creates the new offence of aggravated sexual assault with the same penalty as for rape and which along with rape, will be tried in the Central Criminal Court. The committee's report goes on to say:
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 should be extended to the victims of such sexual acts.
Again, the Government agree with this proposition and the Bill provides for the extension to all sexual assault victims the protection both as to cross-examination on previous sexual history and anonymity at present afforded to rape victims. Finally the report says:
Members agree that there is no logic in keeping as separate the treatment by law of offences that reflect a correspondingly degrading level of sexual violence.
The Government agree generally with this proposition also and henceforth, following the enactment of this legislation, victims of the various sexual offences in question and the offences themselves will be treated in the same way as rape and the perpetrators will be subject to the same penalty. But equal treatment by the law of these offences does not necessarily mean that the name "rape" should be applied to those offences which do not come within the definition of rape as at present. On the contrary, there are good reasons why the concept of rape should not be applied to the offences in question.
I now turn to the Law Reform Commission's report. Those members of the Law Reform Commission who favoured change argued, for instance, that the existing law does not reflect the community's concept of rape. The Government are not convinced that this is the case. Neither, indeed, were all the members of the commission. There is, of course, no research which can prove or disprove this argument. However, it would surely be regarded as strange and misleading to read that a man had a number of convictions for rape where the offences were, in fact, buggery of men or boys. It would seem, however, that in the view of the majority of the commission the main objection to the present definition of rape is that rape is "a form of sexual assault which is no more distinctive than any other similarly serious forms of sexual assault which are grouped together within a single offence". The Government did not accept this argument.
The crime of rape clearly has certain features which distinguish it from other crimes of a sexual nature. Indeed, in a recent important judgment the Supreme Court laid emphasis on the distinctive features of rape, including the possibility of pregnancy, when emphasising that the crime of rape must always be viewed as one of the most serious offences contained in our criminal law. This is so even when rape is committed without violence beyond that constituting the act of rape itself.
Apart from the risk of pregnancy, the essential feature of the crime of rape is that it consists of an act which is not in itself criminal but becomes criminal where there is an absence of consent by the woman. Although in many cases the act of rape is also an act of savage violence, it is the absence of consent to intercourse rather than the use of force that is the essential feature of rape. To extend the definition of rape to cover the grosser acts of serious sexual assault, such as forcing a bottle into the vagina of a woman, by providing as the Law Reform Commission proposed that the offence should embrace non-consensual acts of this nature seems to the Government to be wrong in principle. There is the implication that such acts, if consensual, would be acceptable. It is also an inescapable fact that no matter how the issue is dealt with, the presence or absence of consent would always be the issue in a trial for rape but would not normally be a real issue in relation to other serious assaults.
Another concern of the Government relates to the following. The view has been expressed that by applying the term "rape" to those serious sexual assaults that at present do not amount to rape, all such assaults would thereby attract the odium and stigma associated in the public's mind with the crime of rape. This argument seems to be based on the view that the seriousness of the grosser forms of sexual assault apart from rape is not fully appreciated and that a change in the law is needed to stigmatise more adequately these acts. In the Government's view, these assaults are viewed with total abhorrence by people. If there is any need to reinforce that perception by changes in the law the provisions of the Bill, particularly the penalty of life imprisonment and trial in the Central Criminal Court, fully meet that need.
However, a broadening of the definition of rape could work against the interests of women. The effect of bringing a number of offences within the definition of rape might well be to change the public perception of rape. The public would no longer know when a rape as at present defined had been committed and, as a result, the stigma and odium which the public attach to rape could be reduced, thus bringing about the opposite result to that desired.
A benefit which the majority of the commission claim for extending the definition of rape is that such a change could offer to victims of serious sexual assaults other than rape some degree of psychological reassurance by describing the experience to which they had been subjected to as rape. In the Government's view this claim, even if it has any substance, is not an adequate reason for changing the long-established concept of rape. Again, it can be replied that any psychological reassurance that may be thought to be needed will be supplied by the obvious seriousness with which the Bill treats serious sexual assaults other than rape; in effect, the Bill equates these assaults to rape in seriousness.
In summary, therefore, in the Government's view the substantive arguments advanced for extending the definition of rape are met by the creation of the new offence of aggravated sexual assault, by providing that these offences will be triable in the Central Criminal Court and by the extension to victims of all sexual assaults of the protection at present afforded to rape victims. I hope that on reconsideration of the matter and taking into account the considerations which decided the Government not to propose extending the definition of rape, Senators who spoke on this question will agree that in a difficult area in which there are conflicting views the proposals in the Bill are a proper response to the concerns expressed.
Senator Fennell, Senator Ryan and others raised the question of the penetration of the anus by an object not being specifically included in the definition of aggravated sexual assault. There are difficulties in this regard but I assure Senators at the outset that if there was a grave sexual assault involving penetration of the anus by an object it would come within the general definition in the Bill of aggravated sexual assault. There is no doubt about that. The difficulty relates to making specific mention in section 3 (1) of the penetration of the anus by an object. There are circumstances where penetration of the anus by an object might not, in fact, amount to an aggravated sexual assault. For example, you could have horseplay between schoolboys which results in penetration of the anus by an object such as a pencil and it would not normally be appropriate in such circumstances to charge aggravated sexual assault. I am sure Senators could think of other examples. If in such cases the violation amounted to a sexual assault, then it would have to be charged as aggravated sexual assault and tried in the Central Criminal Court if the Bill, in section 3 (1) (b), included penetration of the anus by an object.
Senators Fennell, Manning, Bulbulia, Robinson and others referred to a proposal that has been made that there be separate legal representation for rape victims. This proposal was examined by the Law Reform Commission and was strongly rejected. They raised the question of the constitutional propriety of the proposal and went on to point out that in some cases separate legal representation might actually lead to unjustified acquittals of the accused. My understanding of the situation is that the reason this proposal was put forward in the first place was a perception that complainants were not being sufficiently protected by prosecuting counsel and they felt alienated from the legal process. The commission were of the view that these problems could be resolved within the confines of the existing legal system. I agree with them on this point.
For the information of the House, I might say, that I raised this matter with the Director of Public Prosecutions and he agrees with the general approach of the Law Reform Commission. There are certain administrative steps that he has taken or intends taking in the near future which, when fully implemented, will be of particular benefit to complainants in sexual cases. The Director of Public Prosecutions considers it important that the complainant in a sexual case be furnished without delay with a copy of her statement and be afforded access to the solicitor and counsel acting for the prosecution before the hearing of the case in court. Such consultation already happens in the great majority of cases as a result of arrangements made by his office some years ago, although there is still some residual opposition from individual barristers.
The Director of Public Prosecutions now proposes that when it has been decided that a case is being prosecuted on indictment and the book of evidence is being prepared, all proposed witnesses, except gardaí and certain professional witnesses, will be sent a copy of their statement on which will be endorsed a request to study it carefully and to notify any alterations or additions which the witness may wish to make to a named prosecuting lawyer, usually a State solicitor. This will be in addition to the complainant receiving a copy of his or her statement at an earlier stage. It is further proposed by the Director of Public Prosecutions that a pre-trial consultation will be held with all witnesses at which they would collectively be asked if their evidence will correspond with their statements and, if not, to specify the variations.
Of the proposed arrangements only the supplying of the statements to the witnesses has so far been implemented to any extent. However, it is hoped to implement the arrangements in full very shortly. This will ensure that in sexual cases there will always be contact between the complainant and the prosecuting team. In addition, what could be described as a familiarisation course will be made available to the complainant on request in which the layout and procedure of the court will be explained to the complainant and in which she will be advised, in very general terms, of the type of question which she might be asked.
Senators Fennell, Fitzsimons, Cassidy and others referred to the funding of the Dublin Rape Crisis Centre. The Senators will no doubt be aware that the Government, as the Minister for Finance announced in his budget speech, have decided to provide £100,000 for the Dublin Rape Crisis Centre. I am glad to know that Senators on all sides of the House welcome this announcement and other comments made in this regard today will be brought by me to the attention of the Minister for Health who has overall responsibility in this area.
I agree entirely with what was said by Senators McKenna, Fallon and others when they referred to the abuse of wives by drunken husbands. The law makes no excuse for a man who, in a drunken state, rapes a woman. I also agree with the Senators when they say that serious sexual abuse merits substantial penalties and the Bill reflects that view very strongly. Senator Ryan referred to the recommendation of the Law Reform Commission that the words "imbecile", "idiot" and "feeble-minded" in the 1935 Criminal Law (Amendment) Act, be replaced by the words "mentally handicapped". As I have said, the matter is not free from difficulty. The reason is that it is not simply a matter of replacing existing words with new words. It would probably be necessary to define any new phraseology that might be used and establishing such new definitions raises complex, legal, psychiatric and social issues. A balance has to be struck between protecting persons with severe mental handicap or infirmity from sexual abuse and avoiding what might be regarded as an unwarranted intrusion into the personal life of persons only slightly handicapped who feel they have a right to lead a full life.
To come up with a definition that is accepted in legal, psychiatric and social terms would require detailed consideration and consultation. The Law Reform Commission will be looking at the general law, including the 1935 Act relating to sexual offences on the mentally handicapped in connection with their examination of the law on child sexual abuse. It would be far preferable to deal with the particular definitions in the 1935 Act in the context of the overall review which has been promised by the Law Reform Commission. However, I agree entirely that words such as "imbecile", "idiot" and "feeble-minded" are no longer acceptable.
Another point raised by Senator Ryan was the question of having a definition of consent in the Bill on the lines suggested by the Law Reform Commission. The Bill, of course, already provides that any failure or omission by a person to offer resistance to an act does not of itself constitute consent to the act. Senator Ryan thinks we should go further than that but I must disagree with him on that point. As far as I am aware, and indeed as far as the Law Reform Commission were aware when producing their consultation paper and report, the fact that consent is not statutorily defined has not given rise to any problems in rape trials. On this basis alone I see no justification for including a definition of consent in the Bill.
More importantly, however, there are strong reasons for not attempting to provide a statutory definition of consent and any attempt to do so could give rise to considerable difficulties. The draft suggested by the commission, which is based on a definition in the law of Western Australia but subsequently rejected by the Law Reform Commission of the State of Victoria, is flawed and could effect significant changes in the existing law, changes which the commission do not advocate.
The difficulties arise particularly in cases where consent is vitiated by the fact that it was obtained by fraud or threats. In the case of fraud, for example, there is no consent where a man induces a woman to have sexual intercourse by impersonating her husband. In such a case the man can be found guilty of rape. Nor is there any consent where the fraud relates to the nature of the act. However, misrepresentations by a man as to his wealth or willingness to marry would not vitiate consent to intercourse and rape would not be committed in such circumstances.
In the case of sexual intercourse obtained by threats, it would be impossible in a statutory definition to draw the line between those threats under which the act would constitute rape and those which would not constitute a basis for a charge of rape. Sexual intercourse obtained by a threat to kill or seriously injure a woman clearly constitutes rape but a threat to break off an engagement if the woman does not consent to sexual intercourse would surely not be sufficient to ground a charge for rape. In between these two points is a grey area which can only be resolved case by case. Therefore, I would be opposed to having consent statutorily defined as it would inevitably cause considerable difficulty and confusion without, on the other hand, effecting any improvement in the existing situation.
Senator Norris quite legitimately asked for an explanation of section 13 of the Bill. Section 8 of the 1981 Act provides for the anonymity of the accused after he has been charged with a rape offence. Restrictions on the publication or broadcasting of matter likely to identify the accused as having been charged with a rape offence may at present only be lifted on the application of the accused himself or another person charged with a rape offence at the trial or after he has been convicted.
Section 13, by inserting a new subsection (8) in section 8 of the 1981 Act, provides for another circumstance where the restrictions on publication or broadcasting may be lifted, that is, on the application of the Director of Public Prosecutions on the grounds of public interest. This is to cover a situation where, for example, a person charged with a rape offence escapes before the conclusion of his trial and the publication of his identity is necessary to assist in his apprehension. It would seem that under existing law, even in these circumstances no matter could be published which would be likely to identify the accused. No situation has yet arisen where the restrictions on publication or broadcasting has led to difficulties but that is not to say that such a difficulty might not arise in the future. This section should resolve any potential problems.
Senator Norris dealt with the question of previous sexual history. The 1981 Act introduced a very specific test to deal with this question. A judge will only allow questions about a complainant's previous sexual history if allowing or not allowing that questioning would make the difference between conviction and acquittal. The matter, therefore, is not open-ended. This test was introduced in 1981 so that the judge trying the case in coming to his decision would have to direct his attention specifically to whether such questioning would have an effect on the verdict of the jury. Senator Norris also raised the recent judgment of the European Court of Human Rights in his case. The matter dealt with in that judgment is a separate matter requiring detailed consideration and will be dealt with separately.
Senator Robinson referred to the Law Reform Commission's recommendation on the matter of compensation. She felt that each crime should be dealt with separately in so far as it relates to compensation. I am afraid I cannot agree. In my view, it is generally preferable to consider the question as a general issue in the context of all crimes and that I intend to do.
I thank Members for their warm welcome for this Bill. I would like them to consider the replies I made to matters of importance and concern which they raised during the course of their participation in the debate. I thank them for the way in which they approached the Bill and I look forward to much discussion during Committee Stage whenever the debate takes place.
I would like to thank the Minister for his very detailed reply. Indeed, I am very happy that we did not get the premature reply which we nearly got in his absence at the start of the debate. It was well worth while and this is why I wanted the Minister to be there. I have to say that his adherence to the traditional view as to why the concept of rape should not be extended or defined is regrettable, I suggest that, again, it is because of the pregnancy element. May I suggest that the Minister listens a bit more to women in this particular area because the people surrounding him are men and a lot of the people he spoke about are men. This is terribly important because I believe the Minister will go off and deliberate. He should ask the Minister of State, Deputy Geoghegan-Quinn, about this because I know she feels very strongly about it. I would like to thank the Minister very sincerely. We will be seeing him another day on all this.
Question put and agreed to.
When is it proposed to take Committee Stage?
The House would need at least two weeks to consider amendments and we will let the Whips agree on a time between themselves. It is important legislation but it is important that we do not rush it. I would like to explain to the House that through no fault of mine I was missing when the debate went on because of serious family business. I apologise for that. The views of all persons are always taken into account and I never differentiate between female views and male views.
This is why I think it is important.
I am sure the Seanad will agree it is very important that I listen to all sides, as I do.
Committee Stage ordered for Wednesday, 15 February 1989.