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

Before Committee Stage begins I would like to inform the House that the following amendments have been ruled out of order — amendment No. 4 as it involves a potential charge on the revenue, amendments Nos. 6 and 7 are not relevant to the Bill as read a Second Time.

Section 1 agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."

The first point I would like to raise on this is the question of what happens on summary conviction. I would like some clarification from the Minister because all we have here is a penalty on indictment. On the general issue of sexual assault, even assuming for the moment the Bill's provisions on aggravated sexual assault are retained, which I hope is not to be the case——

To be helpful to Senator Ryan, I think the point he is raising is more appropriate to section 15. Perhaps he might have a quick check with section 15 and see if I am correct on that. Section 15 provides for the District Court with jurisdiction to trial summarily a case of sexual assault.

Can I then go on to my second question under section 2, which refers to whether you call it indecent assault or sexual assault? Has the Minister given any thought to the possibility that the general area of sexual harassment could, or ought to be, covered under the general heading of "sexual assault" or "indecent assault"? I refer to section 3 of the Bill — aggravated sexual assault means the sexual assault that involves serious violence or is such as to cause injury, humiliation or degradation of a grave nature to a person. It is perfectly reasonable, therefore, to argue that the general activity of sexual harassment, particularly within employment, is calculated to cause some degree of humiliation or degradation to a person in such a fashion.

In terms of the objective of this Bill, which is to further indicate society's disapproval of sexual attacks on women, the whole question of the use by an employer, or anybody in authority, of their position to imply sexual demands as was highlighted in a recent Labour Court hearing, to imply sexual ambiguity or to make sexual innuendoes, in my view quite clearly is calculated to humiliate people. I would suggest to the Minister that perhaps we ought to think about extending the whole idea of sexual assault and indencent assault since it does involve not just physical threats but humiliation and psychological threats as well.

I would say to the Senator that I understand the Minister for Labour is paying attention to this particular issue as of now — the issue of sexual harassment at a place of employment. There have been a number of court cases in the recent past that have highlighted this particular issue. If there is an assault in the sexual harassment, then that would be covered by sexual assault. The area generally is being looked at by the Minister for Labour.

Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."

I am opposing the section and the Minister knows the reasons. It is because I believe it is the wrong approach. This section starts off by having the wrong approach to this Bill. As I will discuss in debate on the later amendments, I feel we should have an extension of the concept of rape to include the aspects dealt with under this new section concerning aggravated sexual assault.

Many reasons for this are given by competent people who have knowledge and information about the whole area of rape law and the treatment of rape victims. The overwhelming weight of opinion suggests that we should have the approach to this Bill which has been suggested by the Law Reform Commission, the Rape Crisis Centre, the all-party Committee on Women's Rights and by most of the people who have spoken on this side of the House. The Minister is going against this very strong tide by pursuing the approach taken in this legislation. This is the reason I am opposing this section. I believe that the matters dealt with in this section should, more rightly, be dealt with under the extended concept and definition of rape.

With due respects to Senator Fennell, I cannot accept that I am going against a strong tide of thinking in this particular area. The Senator's primary concern in this matter is the question of an extended definition of rape. As she knows, I do not share her views on that issue and we will be discussing that matter in detail when we get to her amendments later on. The deletion of section 3 could have serious detrimental effects, irrespective of whether or not the definition of rape is extended. This is a point we must bear in mind.

As Senators will be aware, the Law Reform Commission, both in their consultation paper and their final report on rape and allied offences, recommended the replacement of "indecent assault" by the offences of "sexual assault" and "aggravated sexual assault". The Government accepted that the existing offence of indencent assault, which carries a maximum penalty of ten years' imprisonment, did not adequately reflect the seriousness of certain types of sexual assaults. In the light of the recommendation of the Law Reform Commission, the Government decided that the name of the offence "indecent assault" should be changed to "sexual assault" and that a new offence of "aggravated sexual assault" should be created.

The maximum penalty for sexual assault is set at five years' imprisonment under section 2 of the Bill. This was done on the premise that less serious forms of indecent assault would be prosecuted under section 2, while the more serious forms of sexual assault would be prosecuted as "aggravated sexual assault" which, under section 3 of the Bill, carries a maximum penalty of life imprisonment. If section 3 of the Bill were to be deleted it would mean that the maximum penalty which could be imposed for an indecent assault which did not constitute rape would be five years' imprisonment. We would be reducing the term of imprisonment as this would be less than the existing maximum penalty of ten years imprisonment for indecent assault.

It can be seen then that the effect of deleting section 3 of the Bill would be to reduce the maximum penalty which could be imposed for serious sexual assaults other than rape and I am quite sure that would not be the intention of Senator Fennell.

I think we should scrutinise sections 1 and 2 separately. There is no definition there of what we are talking about regarding indecent assault. There are very clear definitions in section 3 of the kind of assault we are talking about. In the context of the act of rape — this is probably more appropriate to my later amendments — it is really a very fine point. For example, if a 70 year old woman is forced to have oral sex with violence, does she believe she has not been raped? I suggest that most people would agree that that was rape. Under the proposals and the changes the Minister wishes to make, that is aggravated sexual assault. I have talked at a number of meetings since we were last here discussing Second Stage of the Bill. There is very definitely a gender gap here — I am not suggesting that I wish the Minister was a woman but it might be helpful.

I do not know how I should react to a suggestion like that.

He is grand the way he is.

It is very difficult to convince the Minister of the kind of feelings the majority of women have about this. The Minister is bringing all the traditional, patriarchal attitudes to women into this. His rigidity does not enable him to be a little more liberal and open, to think about this and to understand what I am trying to say. This is an issue on which women feel very strongly. They ask why does the Minister take this stance when the crimes are so awful, so abhorrent and equal to rape. Why are we niggling about this, whatever the Minister might feel about the other sections and the penalties for indecent assault?

It would be very wrong if we were to reduce this debate to an issue of men versus women. I am satisfied, and I am sure the Members of the Seanad would be satisfied also, that this matter must be decided on its merits. It should be obvious that the whole thrust of this legislation is to afford the best possible protection, for both men and women, against sexual assault, no matter what form it takes. The protection in respect of anonymity and restrictions on cross-examination will apply equally to men and women victims. I am very happy that the Bill will achieve this primary purpose in this very difficult area.

As I said, the Law Reform Commission, both in its consultation paper and in its final report on rape and allied offences, recommended the replacement of the offence of "indecent assault" with the offences of "sexual assault" and "aggravated sexual assault". We can argue, discuss and debate, as we will when we come to other amendments tabled by Senator Fennell on section 11, but I honestly believe at this stage that if the Criminal Law (Rape) (Amendment) Bill, 1988 did not have section 3, as it now stands, the situation would disimprove to such a degree that it would be clearly seen as going backwards rather than going forward, as we are all trying to do.

I take the Senator's point. I know she has a case to make and she gave me fair notice of this during the course of Second Stage. I respect the Senator's viewpoint but I do not share it. That is no secret and she is aware of that. I have very good reasons, which I gave in reply during the Second Stage debate, as to why I cannot share the Senator's views. It is more appropriate that we debate the issue again on Senator Fennell's amendment. I say, in all earnestness, that if this section is opposed and if that opposition is carried, we will not be going in the right direction.

I indended to speak on the Second Stage of this Bill but, unfortunately, I was late and it concluded rather quickly. Reading the papers from the Law Reform Commission, it is very obvious that they agonised at some length on this very point which we are discussing and they came to the conclusion that they were not anxious to extend the definition of rape. However, having listened to people giving evidence to them and having read submissions by a number of people they changed their minds. This is the kind of evidence Senator Fennell is now bringing to our attention. That is the view of people she has met and consulted with. Certainly, that changed the view of the Law Reform Commission. They recommended — which the Minister has not accepted — an extension of the definition of rape.

I am rather surprised that in discussing rape the possibility of pregnancy is always mentioned. The Minister made this reference in his closing speech and it was mentioned in a Supreme Court judgment also. I do not think there has to be a possibility of pregnancy to have the crime of rape described as rape.

That is not true.

The Minister said that is not true.

I have the Minister's speech before me. I do not think he said that the possibility of pregnancy had to be present, but he did refer to the possibility of pregnancy as one of the distinguishing characteristics of rape, which is arguable. If there are more or less offensive forms of rape, some of those have been committed against elderly women where the possibility of pregnancy does not arise.

I came in here fully intending to support this amendment, but I have to concede that the Minister has a point. Subsection (1) of section 3 ought to remain as a definition of aggravated sexual assault. The remainder ought to be what we discussed, namely, whether those particular forms of aggravated sexual assualt, as referred to on the top of page 4, should or should not be included in the definition of rape.

It is quite right that a general section which refers to aggravated sexual assault — a sexual assault which involves serious violence or the threat of serious violence or such as to cause injury, humiliation or degradation of a grave nature to the person assaulted — is a worthwhile addition to our legal definitions. Any such attack ought to carry the penalties the Minister is suggesting. That is why I have a difficulty with supporting the amendment because of the fact that it would take out of the legislation a definition of aggravated sexual assault separate from the two specific categories referred to at the top of page 4 which is penetration of the anus or mouth of the person assaulted by the penis of another, which I believe should be defined as rape. Similarily, penetration of the vagina of the woman assaulted by any object held and manipulated by any other person, I also believe, ought to be defined as rape. There is a generalised category of offence in subsection (1) which deserves to be distinguished from what used to be called "indecent assault". That is the point the Minister is making. Most reluctantly, I have to concede the point to him that——

Not reluctantly, surely? On its merits.

——it is not my style any more than it is the Minister's style.

You have to be gracious about all these things.

It is one of the qualities of politics I have not learned yet. It is probably for the price of perpetual opposition. May I draw the Minister's attention to some phraseology in section 3 because I am acutely conscious of it myself in my own use of language. It portrays this male-female conflict quite graphically, in the way that it is implied that there are two categories of people — a person and a woman and, of itself, that implies a slight subordination. It states on the top of page 4:

penetration, however slight, of the anus or the mouth of the person assaulted by the penis of another person.

It is only men who have penises. We use the word "person" allegedly generically, but in fact we mean men. Then we use a sub-category of people to describe women. There is no particular reason why the word "person" should be there rather than "man". We do it because we men particularly, have only begun to understand our language and to understand the extent to which it is actually full of stereotyping, categorisation and implications of a difference which implies a slight inferiority. Why otherwise would one refer to the penis of a "person"? Half of humanity does not have a penis.

I accept — more graciously than the Senator accepted my point of view earlier — that he has a point there, and I certainly bring it to the attention of the parliamentary draftsman.

Thank you. If the Minister is as gracious as that I must stop being truculent. I will accept your guidance, a Chathaoirligh. Are we now talking at this stage about the definition of rape or are we talking about——

I take your point. We are on the amendments to section 11.

Are we now——

No. We are on section 3.

I have to say — and I hope it does not offend Senator Fennell too much — I could not support her on this, not because I do not agree with her in principle but because of the way the amendment is worded. We can look at it on Report Stage when I would have a very clear idea in my mind at that stage.

The Minister has stated at this stage that we are not dealing with the extension of the definition of rape. It seems that the debate has drifted in that direction and I thought this might be the appropriate time to come in.

I am totally consistent on this. I want to be consistent on it. If I were arguing for the extension of the definition that would be superfluous. However, I am not absolute about it. I will be prepared to withdraw my objection, and enter an amendment on Report Stage, if necessary.

We will have ample opportunity of discussing the real issue on your amendments to section 11.

Yes, I will withdraw my objection.

This was a sort of a "catchall" situation.

In reference to what Senator B. Ryan said about the substitution of the word "man" for the word "person" in subsection (3) (a), perhaps we might let the word "person" stand, because there have been cases of people with two sets of reproductive organs and the legislation may just need to stand in that case to cover all eventualities.

I, too, would like to say to the Senator that I will bring his views and comments to the attention of the parliamentary draftsman, together with those of Senator B. Ryan.

Question put and agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."

This is the section which deals with the abolition of the marital exemption in relation to rape. The treatment of the case is going to be different from other rapes in that criminal proceedings against a man in respect of rape by him of his wife shall not be instituted except by or with the consent of the Director of Public Prosecutions. I am a little concerned that this might be a delaying tactic or could prove to be difficult in this very important area which, again, has been seen for many years as a necessary change. I wonder if the Minister could elaborate a little on that?

Subsection (2) means that criminal proceedings in the case of a rape by a man of his wife can only be instituted by or with the consent of the Director of Public Prosecutions. The purpose of this is to prevent private prosecutions by a wife or a third party being brought where they might be vexatious or where there is not sufficient evidence to warrant prosecution. The existing law is that Article 30.3 of the Constitution prevents a person prosecuting a criminal offence except in the court of summary jurisdiction, that is, the District Court. In the case of a serious crime such as rape, it effectively means a private prosecution could only reach the stage of the preliminary hearing of the District Court and go no further. Subsection (2) proposes that even this preliminary stage could not be initiated without the consent of the Director of Public Prosecutions.

Question put and agreed to.
Sections 5 to 7, inclusive, agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."

Could I say there was an oversight on my part? I will be introducing an amendment on Report Stage on the matter of consent. I am not entirely happy. I read the Minister's response. It was a fair response to the question I raised about the Law Reform Commission's definition of consent, to the issue that has been raised by the Law Reform Commission. However, I simply want to give notice now that I will be introducing an amendment on Report Stage on the matter of consent.

Question put and agreed to.
Section 9 agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."

I have a small question. Under section 6 (1) of the Principal Act, as amended, at the end of that paragraph: "...and such other persons as the judge, the justice or the court, as the case may be, in his or its discretion permit to remain". That effectively means that the judge, the justice or the court may effectively ignore this section completely if they see fit. That is how it appears to me. Is that because of a constitutional necessity not to interfere with the independence of the Judiciary, or is there a particular reason for it? That is the first question.

The second question is on section 6 (3) of the Act, as amended. "Parent" is singular. It appears to me there should be no good reason why a complainant in a rape case should not have the right to have both of his or her parents present and it should not be a matter of discretion for the judge or the court. I would ask the Minister to consider substituting "parents" for "parent" there. I do not know why it should have to be a matter for pleading to the court for a child, for instance, who is giving evidence or who is a complainant in a rape case, to have a guarantee that she, in particular, or he, which is less likely, could have both parents present. I would ask the Minister to consider changing it.

With regard to the point which Senator Ryan has raised, that subsection (3) of section 6 of the 1981 Act, as substituted by section 10 of this Bill, might be interpreted in such a way that only one and not both parents of the complainant or the accused, where not of full age, could attend the trial, a similar provision to this was contained in section 6 of the Criminal Law (Rape) Act, 1981, and in the Criminal Justice Act, 1951, and no problem has arisen as a result of this. In practice, the court takes a common sense approach when applying a provision of this nature and allows both parents to attend. I would point out that, even if a court did decide that it was bound by the provisions of subsection (3) to allow only one parent to attend the full trial, it still has the power to allow the other parent to attend under the provisions of subsection (1). That subsection gives a general discretion to the court to allow such persons as it considers appropriate to remain for the main proceedings.

In all proceedings, other than where applications are being made under section 3 or 4 of the 1981 Act, officers of the court, persons directly concerned in the proceedings, the press, a friend or parent or complainant and of the accused, if under 18, will have the right to be present. However, there may be circumstances where persons other than those just mentioned may wish to attend the proceedings and have a valid reason for doing so. For example, they may be persons involved in research of a legal or scientific nature, or it may be desirable to have a medical person present if a person involved in the proceedings is unwell. It would not be feasible to foresee and list every such circumstance and therefore the court is being given this discretion to decide what other persons may attend in the light of the circumstances of the particular case. This follows the pattern provided for in section 20 of the Criminal Justice Act, 1951. It is to give that little bit of flexibility. If we were to list, as I have already said, all the instances, we might not cover all situations that might arise and it is best to leave it to the discretion of the judge. This has worked well as we see from examination of the situation of the Criminal Justice Act, 1951.

The Minister's explanation makes perfect sense as far as the discretionary element contained in subsection (1) goes. I am still not clear why we cannot say "parents" rather than "a parent".

There is a certain symbolism in the Oireachtas discussing an issue like rape and trying to make it quite clear how abhorrent an offence it is; and in that symbolism is contained also our feeling for the victim. In that feeling for the victim we ought to make it crystal clear that particularly a victim who is under age, or indeed any victim who might wish it, is entitled to the full support of both parents. I accept that it would be a very unreasonable judge — though, dare I say it, there may be one or two about — but it would be a very unreasonable member of the Judiciary who would not agree to both parents being present. That is not the issue. The issue is——

I accept that you are making a very logical argument indeed. I think it is here because it was in the 1951 Act and on the assumption that singular also includes the plural. I will bring it to the attention of the parliamentary draftsman. I cannot disagree with anything you say.

Thank you Minister.

This is one of the very important new sections dealing with rape hearings. I have to say that, even though I disagree with the Minister on very fundamental points in the Bill, it is a good piece of legislation, and in many instances as good as I expected. It is great to think that all of the consultation and all of the discussions, seminars and all the rest of it have borne fruit. However, this is a very basic need. We must consider the history of court cases for rape in which you had the complainant, the witness, in court — mostly, I would say almost entirely, for the first time — in the witness box being grilled in many instances very aggressively, very brutally by defending counsel and having to cope with this dreadful trauma.

Now one of the main complaints over the years has been that there were not enough people there, that there were not people there who could help her. This, again, is the subject of a later amendment of mine but it was also the case that there were strangers in the court, people who, whether they came for vicarious reasons or not, one perceived and believed that they did; and the whole environment of the court was a very alien and frightening place for the witness. I am very pleased that this section is dealing with that. It means that the sightseers, or people who come to a rape trial as a spectator sport, as it were, will be barred and in future will not be allowed in.

I hope that this section will clarify the position of counsellors — a rape centre counsellor who would have been helping a woman prior to her court case and in preparation for it, should be allowed in. I also agree with Senator Ryan that there should not really be any ambivalence about this section because in many instances the witness concerned could be under age; and, even if they are not, I think somebody of 18, 19, 20, 21 or 22 in many instances would want to have both parents at the hearing and at the trial. If possible we should take the ambivalence out of that and make it quite specific. May I ask the Minister if there is any other comparable area in criminal law where cases are held in camera, or will this be the first of its kind, and will there be rules of court determining it.

There are such cases, I understand. Cases of incest are held in camera as well.

Question put and agreed to.
SECTION 11.

Amendments Nos. 1 and 3 are related and will be discussed together.

I move amendment No. 1:

In page 5, to delete lines 48 to 50 and substitute "‘sexual assault' has the meaning assigned to it by the Criminal Law (Rape) (Amendment) Act, 1988;'".

Again, this is the basic and important aspect of this legislation. I stress the need to have the sections dealing with aggravated sexual assault taken as defined as rape and included in the Bill as part of the rape Act, given that it carries the same penalty as rape, is dealt with in the in camera hearings as rape and dealt with in all other aspects as rape.

In making this case again I have to harp back to the consultations, submissions and the points that were put forward by the various groups dealing with rape. They wanted to have the definition extended and this is in line with thinking abroad. The Law Reform Commission, having considered this very deeply indeed — having had a one day seminar bringing in all the interest groups to consult with them on all the proposed sections for a new Bill — state in their report on rape:

We conclude, accordingly, that the case has been established for extending the definition of rape to encompass any non-consensual sexual penetration of the vagina, anus or mouth of a person by the penis of another person or of the vagina or anus of a person by an inanimate object held and mainipulated by another person.

Are you discussing amendments Nos. 1, 2 and 3 together whereas we are actually only doing amendments Nos. 1 and 2.

I think they are all related.

Amendments Nos. 1, 2 and 3.

I will continue with the quote:

An appropriate model is to be found in the definition contained in the Crimes (Sexual Offences) Act, 1980, in Victoria which is quoted in our consultation paper. We think it worth pointing out in this context that the Law Reform Commission of Victoria in its review of rape and allied offences (Discussion Paper No. 2, August 1986) was of opinion that the 1980 reforms were satisfactory noting that there was something important and distinctive about sexual penetration of body orifices. The common law crime of rape was restricted to vaginal penetration by the penis. In 1980 rape became an offence involving various bodily orifices and the use of objects as opposed simply to the penis. It also became a gender neutral offence. These changes would appear to have received community support. There has been no obvious signs of opposition and 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 and manipulated by another person.

The commission qualify that, but that is the main thrust of the argument I am putting forward here and on which the amendments are based. That is the kind of thinking that has been brought into rape legislation abroad and the Law Reform Commission saw fit to accept that. The Minister mentioned in his speech on Second Stage that the Garda were opposed to the definition. However, in their submission opposing the extension of the definition, they refer again to pregnancy:

The Garda Síochána and the Law Society argued against the broadening of the definition of rape. The Garda authorities indicated that they were satisfied that sufficient legislation existed to deal adequately with other forms of penetration as distinct from sexual intercourse and they made the point that the possible consequence of unlawful intercourse, i.e. pregnancy, makes rape a unique crime.

That is the kernel of the whole matter. They say that the instance of pregnancy makes rape a unique crime. I am saying to you that that may have been the case 40 or 50 years ago, but it is not the case now. I do not believe there is any special place for the penis as an implement in the context of the kind of outrageous crimes that have been committed and about which we have all read in the papers in recent years. Let us not take the risk of pregnancy as the main factor in this. Other implements are equally as damaging, cause the same psychological problems and, therefore, I would ask the Minister to get away from the traditional concept on which he has based this section.

I must say that as a member of the Joint Committee on Women's Rights, I have great sympathy with this amendment. In fact, the Minister will recall that I asked him during Second Stage, in the light of the views of the committee to reconsider this. I want to pay tribute to the Minister for the forthright manner in which he has dealt with all the problems which have arisen in this respect, particularly in relation to the work of the Joint Committee on Women's Rights. I cannot speak for all the Members but I believe the general view is that everybody is satisfied with this legislation, as Senator Fennell has already said.

I am convinced by the argument which the Minister makes because although the Minister has stated that we should not view this legislation in terms of men and women, it is inevitable that this will be so. Te extend the definition of rape to cover penetration, however slight, of the anus or mouth of the person assaulted by the penis of another person or the penetration, however slight, of the vagina of the woman assaulted by any object held or manipulated by another person could be justified because under present legislation the punishment for that crime is the same as for rape and the procedure through the court is exactly the same. Therefore, from that point of view it must be satisfactory.

The only major problem I see is that society will say that this problem has been dealt with and that the correct punishment has been meted out. However, for the victim Senator Ryan spoke about, the woman involved, is there a difference between rape or aggravated sexual assault? I am sure we would all agree that a victim subjected to that type of degrading treatment would have suffered to the same extent as a rape where sexual intercourse took place. The woman concerned, whatever her age, would feel psychologically and in other ways the same as if she was raped, as defined and as we understand it at the moment. As the Law Reform Commission has said, it is simply a matter of language. I am not convinced that it would be possible in legislation to deal with that aspect of it, to cover the psychological injury to the individual.

I have read through all the reports of the Law Reform Commission. Indeed, we could spend the whole afternoon here going through and quoting from these reports. To some extent the original report, which was already quoted by Senator Fennell, is somewhat unclear, in my view. It says in one sentence "While some of us remain unconvinced, this latter argument is entirely logical". Some of us. How many? How unconvinced? Can something be 50 per cent logical or otherwise? We could go into that aspect of it. But, basically, with regard to the specific amendment, it is the view of the Oireachtas Joint Committee on Women's Rights that the definition should be extended. However, I must say that, for my own part as a committed member of the Joint Committee, I feel I must accept the logic of the Minister's argument. The punishment for this specific crime is on a par with that for rape and I think that is as far as the legislation can go.

I did not get an opportunity to speak on Second Stage of the Bill. In any case there was not very much else for me to say because, like my colleagues, I would have welcomed the Bill and, like my colleagues, I would have expressed certain reservations. I am totally in favour of the amendments being moved by Senator Fennell.

If I had spoken on Second Stage of the Bill I would have made one point and, if you would bear with me briefly, I would like to make it now. As a man, I have a certain unease about some of the attitudes being expressed by certain of my male colleagues on this matter. I get the impression somehow that because this is mainly a male crime against females, then somehow all males need to beat their breasts as it were. I do not accept this new version of events which says that because society is structured in a certain way, because it is a male structured society, therefore our culture conditions people to commit these dreadful crimes. I think there are very large and loose assumptions in this argument. What I am saying is because on the accident of gender I am a man, I certainly do not accept that there is a universal male collectivity of guilt in this matter of the heinous crime of rape, anymore than because I am an Irishman I should feel guilty because IRA terrorists are doing awful things in my name. I just wanted to make that point clear. As far as I am concerned, this is a heinous crime. It should not necessarily involve unnecessary, to say the least, male attitudes.

On the matter of the amendments, the reason I support Senator Fennell's amendments is because aggravated sexual assault simply does not convey the disapproval of society for this uniquely horrendous crime. It seems to me that the variations of the crime which were defined here are only variations as it were. To call them something else is to put them in another category. I do not think that is good enough. If you look at the Oxford English Dictionary you will be surprised how comprehensive the term "rape" is. The OED does not go in for physiological definitions. Perhaps they felt there was no need to; perhaps they were too prudish. I think the main thrust of the dictionary definition of rape is forceful violation. If forceful violation is accomplished in other than, shall we say, the conventional way, is seems to me that it still conforms to the definition of rape. I would suggest indeed that these actions are, in addition to being forceful violations, also additionally perverse and sadistic. There are extra reasons for including them under the hitherto restrictive definition of rape.

I have read the report of the Law Reform Commission. I have read the debates of the Seanad on Second Stage and on balance certainly I am inclined to support Senator Fennell's amendments.

I notice that Senator Fennell complimented the Minister at the end of his Second Stage speech, and may I say that his reply on Second Stage was comprehensive as well. I reread a few times the Minister's arguments for preserving a distinction between rape and aggravated sexual assault in so far as that encompasses penetration of the anus or mouth by the penis of another person or penetration of the vagina of the woman by an object held or manipulated by another person. In so far as aggravated sexual assault is extended to include those, and those are excluded from the definition of rape, I have read the Minister's arguments and I think it is fair to say that he does mention the possibility of pregnancy. He also mentions the fact that one of the distinguishing characteristics of rape is that it consists of an act which is of itself criminal but which becomes criminal because of the lack or absence of consent of one of the partners.

I do not want to get involved in a long wrangle about what is or is not appropriate sexual behaviour but I did not know, first of all, that oral intercource was illegal per se. I personally cannot find any reason to distinguish between forced oral intercourse and forced sexual intercourse as is conventionally defined. Therefore, I am not sure about the simple argument of one being something which of itself — it is an awful way to describe sex as being not illegal — is not an act which is criminal. That falls down for a number of reasons. Secondly, not enough attention has been given by the Minister, or indeed by the minority view of the Law Reform Commission, to how the victim feels. I do not think we can operate a distinction which does not make any sense to the victim of a crime.

I have read the dissenting view of the Law Reform Commission. I have read the Minister's arguments. The Minister went on to argue that the problem of the presence or absence of consent will always be argued for rape as it is up to now defined, whereas in the case of a number of the other actions — those that would come under the Minister's definition of aggravated sexual assault — such an argument would not arise. I am not sure that that would necessarily be the case — in some cases it would be the case, in some other cases it would not be. That seemed to me to be the most convincing of the reasons the Minister put forward — the question of the absence or presence of consent and the fact that, of course, by separating these offences from the definition of rape you might spare the victim the agony of having a long and probably very rough cross-examination on the question of consent. I am not sure that that would be the case and I would like the Minister to elaborate on the area of consent, particularly in the case of oral intercourse, for instance. Where is the basis for believing that the question of consent would not arise if a person was charged with aggravated sexual assault?

In regard to the other arguments the Minister used, I could not find it in his speech but I think he mentioned — and I was surprised because I heard it over the monitor — somebody who was convicted of sexual offences involving, I think, buggery and saying that this person should not be branded as a rapist. I think he should. I do not think there is any reason why he should not. I want to be very careful because I may have misunderstood it; I could not find the reference just now. Perhaps the Minister can tell me I am wrong, in which case I will be happy to withdraw the remark, or else I can sit down and find it.

The other matter in the Minister's reply which bothered me was his argument that public odium for rape would be diluted by extending the definition of it. I think the opposite would be the case. Public odium would see no difference in terms of the appalling nature of the crime, the appalling humiliation of the victim, the appalling physical imposition on the victim and the appalling psychological shock on the victim in all of these offences. I do not think any person in the community would accept that the experience of the victim if he or she were subject to rape as currently defined.

There is another overwhelming reason that has not been mentioned yet. Over the past seven or eight years the possibility of something much worse than pregnancy resulting from rape has arisen. I would suspect that if a woman were to be raped by an intravenous drug user she would now have two great fears, the first would be pregnancy, the scond would be the appalling possibility of the transmission of the AIDS virus. AIDS is a real fear. It is something that has to affect the values of every citizen in western society. It is not something we can put off out there affecting other people and it is as real a fear for the victim of rape as it is for the young person who is being counselled to change his or her sexual habits. The frightening reality is that some of the activities which are separated from rape in the Minister's proposal for example, anal intercourse are more likely to result in the transmission of the AIDS virus than sexual intercourse as conventionally described because of the greater likelihood of the intermingling of blood and semen or blood and blood which is the basic, fundamental requirement for the transmission of the AIDS virus.

In terms of the threat to the victim, anal intercourse is a more frightening threat now because of the increased risk of the transmisison of the AIDS virus which is a far greater threat to the woman than even the appalling fear of pregnancy. Society has got to get used to the fact that all of these activities are equally reprehensible and heinous and however good the basic principle of not changing the law until there is a good reason to do so, I think the perceptions of women, the fear of the transmission of AIDS, the view of society, all point in one direction and that is that society would regard all of these offences as the same thing — a violent violation of the body of a victim by a criminal — all of which should be treated in the same way. That is why I support these amendments and I appeal to the Minister and the Government to undertake to rethink this issue.

The question of AIDS was not mentioned in the Minister's reply. It is an important consideration and a frightening one. It transforms the fears of rape victims in a more frightening way. It extends a life-threatening element to the consequences of rape that did not exist before. It is not unreasonable to believe that those who would perpetrate crimes like rape are more likely to be the carriers of the AIDS virus. It is not unreasonable to believe that those who are involved in intravenous drug use will be involved in other unpleasant and offensive crimes. There is a good case for the Minister to undertake to have another look at this issue between now and Report Stage.

That was a very interesting contribution from Senator Ryan and I am glad he accepts the fact that the Minister in his reply quoted from a Supreme Court judgment stating the distinctive features of rape, including the possibility of pregnancy. I was in the courts some years ago on jury duty and there was a case of rape before the courts. The defendant pleaded guilty. It was a most horrific case: the victim had been violated on two occasions by the accused. After listening to the submission made on behalf of the accused, the judge asked what I felt was an extraordinary question — was the girl pregnant? That had little to do with the crime of rape because it was the violation of her body that was the real crime before the court.

With regard to amendment 2 (a) which covers penetration of the mouth or the anus this can be a very serious offence and can be as horrific as the conventional type of rape as we understand it. For that reason I support the amendment.

It seems to me that we are at one on all sides of the House in supporting the Minister in much of what is being discussed here today. We are here as a committee trying to arrive at a definition and it never works. It always means finding some sort of a compromise position that takes into account the various valid views being put forward. This debate should be unnecessary if we had a wider understanding of what rape was. Despite what Senator Murphy said about the collective guilt of the male sex — I would agree with him but that is not the point — it is also clear, however, that attitudes have been formed and law has been formulated through the imposition of male-dominated opinion for centuries. That is the way the understanding of rape has come through legislation but the Acts described in the amendments which are being proposed here today by Senator Fennell have to be seen as rape. Any of the acts described in the proposed amendments constitute forceful violation and this should be the criterion we should apply to a definition of rape.

One of the great difficulties in having this discussion concerns the use of language. I hesitate to use words like "perverse, unnatural or abnormal" in describing sexual acts for the reason that normality is defined by what the majority believe to be normal and no more than that. It is a useless definition to us at this time and what might be seen as abnormal or perverse or unnatural in one culture might be totally acceptable in another. There is plenty of evidence for that around the globe. It seems to me that the person who has been the victim of the sexual act and forcefully violated in the way described in amendments Nos. 1, 2 and 3 has been raped in the literal sense of that word. It is not a matter of getting into semantics but I think we would all agree that this form of forceful violation has to be seen as a rape of the body, a forceful violation and intrustion of the body, and would have to be included.

I would ask the Minister in his response to take the arguments we have put forward and see how far he comes along the road with us. I hope that his objection — if there is going to be one — would be along the lines of the framing of the wording and perhaps he could indicate how the core of the arguments we are putting forward might be included in the Bill. There is no doubt in my mind that the public would agree that this type of forceful violation would certainly be rape. I do not know of any woman who would think otherwise. It sounds quite a sexist thing to say but I think that as a man I would defer to the woman's perception of the act on this occasion. It is not something I would do without thought but the experience of women in this matter is a vitally important part of the argument.

In supporting the amendments I would ask the Minister to indicate how, if the amendments as framed and worded are not acceptable, the core of the arguments and the essence of what we are saying can be encompassed in the Bill. As it is written at the moment they are not covered and the Bill is inadequate without extending the definition of rape to cover the amendments proposed by Senator Fennell. Other countries have had experience of having to change the legislation with regard to rape.

With reference to the point Senator Ryan made about the new additional risk arising from the AIDS virus which now attaches to rape, I am aware that it has now become necessary in some American states to extend the legislation covering rape in order to deal with rape perpetrated by someone who is HIV positive or has full blown AIDS. This is being created as a new offence with most severe penalties attaching to it. I refer to it as an indication of the way other legislatures have dealt with this matter. I ask the Minister if in the drafting of the legislation it was considered that a rape committed by someone who was aware that he was HIV positive or suffering from AIDS should be given special attention.

Finally, I fully support Senator Fennell's proposals. We have a duty to see that the definition of rape is extended to cover the point she makes. I appeal to the Minister to respond to these arguments in the most positive way possible.

In relation to the points made there, perhaps we are looking at this the wrong way around. I see aggravated sexual assault as a much more horrific crime even than rape. Rape is a horrific crime but to be penetrated by a knife is surely more horrific than to be penetrated by a penis. There are some crimes which are so horrific in the whole area of these perverse, sadistic sexual attacks that they can only be described as aggravated sexual assault and even the word "rape" does not cover them. I would like to look at it the other way around. The word "rape" has certain connotations in the public mind and it does not sufficiently cover some of the horrific crimes that can be committed and perpetrated against another, male or female. It is just another viewpoint and it is one of the reasons I agree with the Minister's wording.

I want to make one point in relation to contributions by Members who have already spoken. I am not conscious of that collective feeling of guilt on the part of male Members that Senator Murphy referred to. Of course I am very concerned with the offender. As other Members said on Second Stage, I would hope that some proper treatment would be given to offenders to enable them to resume their proper place in society. Even if I felt that I should argue for the amendment tabled by Senator Fennell I would argue for it because this would be normal practice in the House.

The Minister has a tremendous amount of goodwill going for him with regard to this legislation. Without exception everybody feels it is worthwhile legislation and will take us a considerable distance along the road to the first bend. When we consider that the Law Reform Commission changed their view with regard to this matter, it underlines that it is not a cut and dried case under any circumstances. I am not sure if that was normal procedure with the Law Reform Commission or if it was unusual but it seems rather unusual to me that something considered at great length by the Law Reform Commission and taking in the deliberations of committees concerned principally with women's rights — which was a proper course to take — should be changed.

With regard to what Senator Brendan Ryan said, I want to make this specific point with regard to the effect on society of extension of the definition of rape. I quote from page 34 of the Law Reform Commission's Report on Rape. It states:

A pragmatic, indirect, argument in favour of extending the definition of rape runs as follows; The Community at present stigmatises rapists and rape, and "rape" is a highly stigmatic word. Other forms of demeaning conduct are perhaps not so highly stigmatised. Nonetheless they should be as highly stigmatised as rape. Therefore the argument runs if we extend the name "rape" to these forms of demeaning conduct, there is a likelihood that the community, on hearing the word "rape" applied in this new context, will carry over some of the stigma from rape as meaning vaginal sexual intercourse, so that the overall effect will be to increase the stigma for those who engage in these other demeaning forms of conduct.

However, it is not clear to us that potential offenders will be significantly deterred by any such change in nomenclature. They are more likely to be deterred by a law which operates efficiently and punishes such offenders with appropriate severity.

That is the type of logic that influences my approach to this matter. They may have changed their view with regard to the extension of the definition but surely they cannot have changed their views with regard to the effect that would have. That still remains the same and in that sense it will have no effect. As far as I can see, from the point of view of legislation it is a question of language and from that point of view I subscribe to the logic of the Minister's argument.

During the debate on Second Stage of the Bill I listened very carefully to the various arguments put forward for extending the definition of rape. In my response to that debate I explained in very great detail why I was not convinced that an extended definition of rape was justified.

Part of the argument for extending the definition of rape is that there are forms of sexual assault which do not involve sexual intercourse but which are equally as horrific for the victim as rape. It is accepted that there are such assaults and for that reason the Bill provides for a new offence of aggravated sexual assault which has the same penalty as rape. In addition the procedures which at present protect victims of rape will also apply to victims of aggravated sexual assault and indeed to victims of sexual assault also. Therefore, when one talks of extending the definition of rape we are talking of nomenclature and not about a substantive issue. My view is that the existing concept of rape is well known and has been well settled for hundreds of years. It is a distinctive offence and is known as such by the general public and to change the definition could only confuse matters.

There was disagreement even within the commission as to whether the definition of rape should be broadened. While three of the five commissioners were in favour of extending the definition of rape, two, including the President of the Commission, High Court Judge Mr. Keane, put forward strong arguments against extending the definition so that there is no clear consensus, whatsoever that the definition should be extended. The creation of the new offence of aggravated sexual assault and the extension to that offence of the provisions dealing with anonymity and evidential matters meet all the objections to the existing law identified in the Fourth Report of the Joint Oireachtas Committee.

The proposal to extend the definition of rape does not offer any material benefit in the prosecution of offenders, in the legal protection afforded to victims or in deterring potential future offenders from committing offences. Indeed, there is the danger that I referred to on Second Stage that a broadening of the definition of rape could work against the interests of women; that danger is there. The perception of rape by the public could well be changed to the extent that the stigma and odium which the public attach to rape would be reduced, thus bringing about the opposite result to that desired. I have heard no new arguments that would justify change in the Government's position on this issue. The deficiencies in the existing law which give rise in the first place to the proposal to extend the definition of rape are, I am fully satisfied, being remedied in this Bill.

As to the amendment itself, it proposes to include certain specified acts within the definition of rape offences for the purposes of the Criminal Law Rape Act, 1981. The amendment would not extend the existing definition of rape which is set out in section 2 of the 1981 Act. In practice, it would probably not have any effect other than to create a certain amount of confusion and uncertainty. The term "rape offence" was defined in the 1981 Act so that the provisions dealing with anonymity and restrictions on the introduction of evidence on sexual experience would apply to offences ancillary to rape. The definition lists these offences with the result that even if the charge is not rape itself but a related charge, for example aiding and abetting rape, the anonymity and protective measures of the 1981 Act will apply to that charge also.

The literal effect of Senator Fennell's amendment would be that where a person was charged with one of the acts referred to in the amendment the evidential and anonymity provisions of the 1981 Act, as amended by this Bill, would apply. However, on the basis that these acts constitute aggravated sexual assault, that purpose is already achieved by the provisions of the Bill as it stands which extend the anonymity and protective provisions of the 1981 Act to victims of all sexual assaults.

In regard to AIDs, this adds an extra dimension to the crime of rape. However, the fear of sexually transmitted disease has always been a very important element in the crime of rape. I have no doubt that if a victim of rape were to be infected with AIDs, that is a matter which the court would obviously take into account in handing down its sentence. As Members know, the penalty for rape is a maximum sentence of life imprisonment. I am not sure that any Member of the House is suggesting going further than that.

I would like to thank the Minister for his detailed reply and to say how pleased I am to find that the contributions from the other side of the House and behind me were so consistent with the general approach to seeking this amendment. To take up one of the Minister's points about the attitude or general thinking with regard to serious sexual offences as defined by aggravated sexual assault as against rape, the Minister must know that the women to whom these things happen at present say, and their relatives say, and it is generally accepted, that they have been raped. If there is forced oral sex, that woman says she was raped; she does not say indecently assaulted or, as it will be, subjected to aggravated sexual assault. In her mind, in her thinking, in her whole concept of it, she has been raped. I coped with a number of these women when I was involved in the battered wives' home. This was a common feature. Women came in who had broken bottles and screwdrivers used on their vaginas and it was a very unpleasant notion and sight. They were raped as well and that is what I am trying to say.

This is one of the strongest points that the rape crisis centres all over the country have made. I will read their view on this out of their submission to the Joint Oireachtas Committee on Women's Rights. They said:

In seven years working with victims of rape and sex assault we can find no evidence that penile penetration is any more disturbing than other forms of vaginal penetration or violation. Many women found forced oral sex to be the most degrading form of sexual attack while others found forced anal intercourse more debasing. The Act ignores the seriousness of forms of sexual attack other than penile penetration and makes the false assumption that one particular form of sexual attack is more serious than another.

That is their view and it was the view of the Joint Committee. Eventually it was the view of the Law Reform Commission. As some other speakers said, we can talk around this for hours and hours and I can read out my quotes and the Minister can do the same. I can say what I think and he can say what he thinks and at the end of the day I certainly know what I want and the Minister is obviously determined to have what he wants.

While Government decisions were taken on all aspects of this legislation, and I have already said I think many of them are commendable; it is not a case that you cannot go and rethink and that the Government might not have a change of mind. We had this in the legislation I dealt with in the Status of Children Bill. It came out as one piece of legislation with a very definite approach but by the time it was finally passed it was fundamentally different from the original Bill. I think that is a good thing. I hope that trend will continue and that on reflection and further debate there will be a positive approach to proposals that are seen as a consensus of important views.

I am not surprised about the minority report of the Law Reform Commission. It is a typical legalistic approach. All the other people who want the changes I am proposing in the amendment are people who have dealt with victims, women themselves, many of them social workers, doctors and so on. The legalistic approach of the minority group in the Law Reform Commission is one which says: "Let us not make it uncertain. We have cosy law books which say this is rape and that is not rape. We have a clear definition that we know that and let us not get away from it". That is what is wrong. Legal opinion is, of course, conservative; traditionally they do not want to move away from what they have been used to and the status quo is always easier. I think they are reluctant to shift. I would not want to think that our laws were made by people who had a firm and rigid legalistic vision. I think in this instance we should be dictating the form to those who would hold that kind of traditional and rigid point view.

I would like to comment on what Senator Murphy said. It is wonderful that he is supporting the amendments. In regard to his statement that he should not feel a sense of collective guilt abut rape, I absolutely agree with him. I am not one of those people who believe that only women should be concerned about rape. Indeed, some years ago there was a march by women's organisations in Dublin which must have been one of the biggest marches on a single issue ever seen in O'Connell Street. Approximately 5,000 women came out for it. The organisers banned men from the march and this caused a lot of ill feeling and it was something I did not agree with.

This very violent crime, which is a crime by men against women, can only be dealt with if men confront it and challenge it, for men to say: "we have to have some concern about what is happening". For women today the crime of rape is a petrifying fear. Women of all ages are fearful of being out alone at night. They lock themselves into their cars. If their car breaks down they are afraid to get out of the car and walk for help if it is late at night. They come home early. Why should half of the human race have to be subject to a curfew because of this fear?

Somebody told me recently that in the fifties there was a particularly bad spell of rape attacks on women in Israel. Golda Meir was Prime Minister at the time. Requests were made to her that she should put a curfew on women. It was suggested that all women should be in by 10 o'clock. She said: "Curfew is a good idea but I am going to put it on men". She issued a curfew order that all men were to be in by 10 o'clock or 10.30 p.m. As far as I am aware that reduced the number of rapes. However, I am not suggesting that that is the solution.

I would like to think that this area of male violence — which is something similar but, of course, worse than wife battering, the domestic violence which came to our awareness in the seventies — would be questioned, confronted and challenged, that in some way men would say: "we are the sex that perpetrates this violence and we feel that in the interests of society and ameliorating this position we will try to see what it is in men that makes them commit these terrible crimes". It is a crime in which men use their strength, their muscle and their superior position to oppress women. It is as primitive and as basic as any oppression anywhere in the world.

I have very strong and definitive views about rape and how it affects all of us and that is why I am taking such a strong position on this amendment. I am aware that we will not get further legislation for a long time on this. Therefore, we should make it as up-to-date and as reflective of present-day society as we possibly can. I am pressing this amendment and I would ask the Minister to seriously consider it.

I totally agree with every sentence which Senator Fennell has uttered so eloquently. I also believe that Ministers should be amenable to suggestions that the primary duty of a Minister is to bring in the best legislation. I have no doubt but that this applies to the Minister in this particular issue. I have also the particular concerns expressed by Senator Fennell. We are all concerned about our children. I remember a poem in the old school books which was probably before Senator Fennell's time: "She is somebody's mother, boys, you know, although she is feeble and old and slow". When we become parents we think of our own daughters, the society they have to live in and how difficult it is. I agree also with Senator Fennell when she says that men to a large extent are responsible for some of the terrible conditions we have at the present time. Probably the primary responsibility rests on men.

With regard to this amendment, I have to ask myself if this Bill would be better legislation if this amendment is accepted by the Minister and I honestly have to answer I do not think so. I am not a lawyer and I do not think in terms of a lawyer. I believe that perhaps to have the qualifications of a lawyer would be a great asset to Members of both Houses of the Oireachtas. I am an ordinary individual looking at this with a particular concern for victims, which the Minister also has and I have no doubt that he is as anxious as we are to bring forward the best legislation possible. If he believed the amendment would improve the legislation he would accept it.

At the end of the day the person who commits the crimes which are covered in section 3 of the Bill will be given the same punishment as for rape. In my view the important aspect is that society will be protected, as far as possible this problem will be eliminated and the perpetrators of these crimes will be locked away or medically treated to allow them to be taken back into society. I do not think the legislation will be better if this amendment were accepted.

I accept, as I stated earlier, that from the victim's point of view, and indeed as Senator Lydon has pointed out and as accepted by the Minister, the forms of assault we are speaking about may be more vicious than the crime of rape. There is the problem that the victims of aggrevated sexual assault may have suffered as much damage, or perhaps more, than the victim of rape. That is a psychological problem with regard to the victim and I cannot see that that is improved to any extent by the acceptance of this amendment. I believe the Minister has been very forthright with regard to dealing with this particular problem and I accept the logic of his arguments totally.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 20; Níl, 16.

  • Bohan, Edward Joseph.
  • Byrne, Seán.
  • Cullimore, Séamus.
  • Doherty, Michael.
  • Fitzgerald, Tom.
  • Fitzsimons, Jack.
  • Haughey, Seán F.
  • Hillery, Brian.
  • Hussey, Thomas.
  • Lanigan, Mick.
  • McEllistrim, Tom.
  • Mooney, Paschal.
  • Mullooly, Brian.
  • Mulroy, Jimmy.
  • O'Callaghan, Vivian.
  • O'Connell, John.
  • O'Conchubhair, Nioclás.
  • O'Toole, Martin J.
  • Ryan, William.
  • Wallace, Mary.

Níl

  • Bulbulia, Katharine.
  • Connor, John.
  • Doyle, Joe.
  • Fennell, Nuala.
  • Harte, John.
  • Hogan, Philip.
  • Kelleher, Peter.
  • Kennedy, Patrick.
  • McMahon, Larry.
  • Manning, Maurice.
  • Murphy, John A.
  • O'Shea, Brian.
  • O'Toole, Joe.
  • Reynolds, Gerry.
  • Ross, Shane P.N.
  • Ryan, Brendan.
Tellers: Tá, Senators W. Ryan and S. Haughey; Níl, Senators Fennell and Doyle.
Question declared carried.
Amendment declared lost.

I move amendment No. 2:

In page 6, line 6, after "rape" where it secondly occurs to add "and includes

(a) penetration (however slight) of the anus or mouth of the person assaulted by the penis of another person, or

(b) penetration (however slight) of the vagina of the woman assaulted by an object held or manipulated by another person.".

Amendment put.
The Committee divided: Tá, 15; Níl, 20.

  • Bulbulia, Katharine.
  • Doyle, Joe.
  • Fennell, Nuala.
  • Kennedy, Patrick.
  • McMahon, Larry.
  • Manning, Maurice.
  • Murphy, John A.
  • O'Shea, Brian.
  • Harte, John.
  • Hogan, Philip.
  • Kelleher, Peter.
  • O'Toole, Joe.
  • Reynolds, Gerry.
  • Ross, Shane P. N.
  • Ryan, Brendan.

Níl

  • Bohan, Edward Joseph.
  • Byrne, Seán.
  • Cullimore, Séamus.
  • Doherty, Michael.
  • Fitzgerald, Tom.
  • Fitzsimons, Jack.
  • Haughey, Seán F.
  • Hillery, Brian.
  • Hussey, Thomas.
  • Lanigan, Mick.
  • McEllistrim, Tom.
  • Mooney, Paschal.
  • Mullooly, Brian.
  • Mulroy, Jimmy.
  • O'Callaghan, Vivian.
  • O'Connell, John.
  • O'Conchubhair, Nioclás.
  • O'Toole, Martin J.
  • Ryan, William.
  • Wallace, Mary.
Tellers: Tá, Senators Fennell and Doyle; Níl, Senators W. Ryan and S. Haughey.
Amendment declared lost.
Amendment No. 3 not moved.
Section 11 agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."

One of the important things about legislation like this is that the language in it should be very carefully chosen. I am just a little unhappy with section 12, the purpose of which we all agree with. It states, in lines 21 and 22:

... No evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience (other than that to which the charge relates)

It is not the happiest of choices of phrase to describe a violent sexual assault on a person. The words "sexual experience" are not the words I would chose. I do not have an alternative word and would ask the Minister his opinion.

It is quite interesting that Senator Ryan raises that point. We also raised it with the parliamentary draftsman and he, on reflection, told us that there was no way he could cover the situation as it was to be covered except by using this particular type of language. We did raise it in an effort to try to do something about it.

I am glad the Minister raised it. It is an important point. It is not really the language I would like to use to describe something so awful. "Sexual experience" has a ring to it which does not convey what the Oireachtas ought to be conveying about an offence like this.

Question put and agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."

I ask the Minister if he has got clarification of section 13.

Section 8 of the Principal Act provides for the anonymity of the accused. 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 (a) on the application of the accused himself or another person charged with a rape offence at the trial or (b) 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 restriction on publication or broadcasting may be lifted. That is on the application of the Director of Public Prosecutions. This is to cover a situation where, for example, a person charged with a rape offence escapes before the conclusion of the trial and the publication of his identity is necessary to assist in his apprehension. No situation has yet arisen where the restrictions on publication and broadcasting led to difficulties in apprehending a person charged with rape but that is not to say that such a difficulty might not arise in the future. This section should resolve any potential problems.

Question put and agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."

This refers to courts-martial. Can the Minister clarify for me if the question of a court-martial for rape or related offences could only arise where a member of the Defence Force commits such an offence while on active service?

That is right.

Is it also correct that there are certain offences which, if committed on active service, would still be tried by the civil courts? I understand murder is one such offence. Can the Minister then explain to me why it should be that rape committed while on active service should be dealt with by court-martial and murder should not? It seems to a certain extent to be withdrawing the full force of the law. I am not suggesting that that person would not be tried with——

If, for instance, somebody on service abroad committed a crime and it was necessary to try him, he could be tried by court-martial because he would be outside our jurisdiction. That is the particular reason for this section.

I am not at all suggesting that this might happen but if a member of the Defence Force on active service were guilty of rape in this country would he be charged before a court-martial or before the criminal courts?

He would be tried in the criminal court if the offence was committed within this jurisdiction.

Even if he was on active service?

He would be subject to the ordinary court system.

Question put and agreed to.
Sections 15 to 18, inclusive, agreed to.
NEW SECTIONS.
Amendment No. 4 not moved.

I move amendment No. 5:

In page 7, before section 19, to insert a new section as follows:

".—Section 4 of the Criminal Law Amendment Act, 1935 is hereby amended by the deletion of ‘an idiot, or an imbecile or is feeble-minded' and ‘an idiot, or an imbicile or feeble-minded' and the substitution of ‘suffering from mental disorder or is otherwise so mentally incapacitated' therefor."

This is the other area where I mentioned on Second Stage I would be seeking amendment, again reflecting as far as I could the views and feelings of some of the groups involved. I am aware that the Law Reform Commission are not in favour of this recommendation and they give very detailed reasons in their final report. For me to put forward the case for allowing for separate legal representation for the woman I cannot do better than again refer to the Rape Crisis Centre's submission to the Oireachtas Joint Committee on Women's Rights. I will read what they say as a background for this change.

We are on amendment No. 5. Amendment No. 4 is out of order.

So we are not taking amendment No. 4. That is a pity. I cannot say anything about it now.

The Senator's amendment reads:

In page 7, before section 19, to insert a new section as follows:

".—Section 4 of the Criminal Law Amendment Act, 1935 is hereby amended by the deletion of ‘an idiot, or an imbecile or is feeble-minded' and ‘an idiot, or an imbecile or feeble-minded' and the substitution of ‘suffering from mental disorder or is otherwise so mentally incapacitated' therefor."

That is the last amendment. I wanted to deal with a section on legal representation but I see that is a new section and I cannot so, I will have to take that up at a different time in a different way.

This amendment No. 5 is self-evident. This is a point that many people made. The Law Reform Commission made a recommendation that it should be changed. I would hope that after all our discussion and disagreement this would be something we would not have any difference of opinion on because it stands by itself and if we have the opportunity to change this perhaps we could.

I would like to start off by saying I fully agree that the words "idiot", "imbecile" and "feeble-minded" are no longer acceptable in present-day legislation. I am concerned that this amendment in its present form will cause some serious problems. When the Bill was being prepared consideration was given to amending section 4 of the Criminal Law Amendment Act, 1935 but it soon became apparent that it was not as straightforward as was suggested by the Law Reform Commission and the question involved medical, legal and social problems. When it became evident that lengthy consultations with the various experts and interest groups concerned would be required and as the Law Reform Commission had indicated they intended to address the question of sexual abuse of the mentally handicapped, it was decided to defer consideration of the issue rather than delay this Bill.

I would very strongly urge that we await the detailed consideration of the issue before proceeding with any change to section 4 of the 1935 Act. I say to Senator Fennell that we agree but on examination of it, in an effort to try to do what the Senator suggests, we started running into such serious problems, medical, legal and social, that it would have taken us a very long time to come up with the type of solution we would require.

An examination of the amendment put forward by Senator Fennell reveals the type of problem I am talking about. Section 4 of the 1935 Act, if amended as suggested by Senator Fennell, would in effect provide that it would be an offence for a person to have sexual intercourse with a woman suffering from a mental disorder or who is otherwise mentally incapacitated. The problem is, what does mental disorder mean? Does it include a woman suffering from a psychiatric problem as well as women suffering from mental handicap? As the terms "mental disorder" and "mentally incapacitated" are used in the amendment without any qualification or without being defined, it would seem that it would be a criminal offence to have sexual intercourse with a woman who is suffering from any type of mental disorder, no matter of what type or how mild.

While I accept that women or girls suffering from severe mental handicap or infirmity must be protected by the criminal law, the question is how far does one go? The term "mental disorder" is far too broad. It would include people suffering from mild mental handicap who, though handicapped, still have sufficient mental capacity to lead normal lives but the question is, could it also include persons suffering from disorders such as anorexia nervosa or dyslexia which have no effect whatsoever on a person's ability to consent to sexual intercourse? To draft a provision in the proper terminology which will adequately protect persons who need protection from sexual abuse but which, at the same time, does not interfere with the personal lives of people suffering from a disability, which does not affect their capacity to consent to sexual intercourse, is certainly no easy task. As I pointed out in my reply on Second Stage, it is fraught with complex legal, psychiatric and social issues. It is, as I have already said, something that cannot be rushed and full consultation with all relevant parties and medical experts will be required before a decision can be reached on the issue.

While I accept the intention behind the amendment and fully appreciate the concern which the Senator has and which I share, we are not in a position to accept the amendment for the reasons I have given. I would hope that Senator Fennell, assured of my sympathy towards what she is attempting to accomplish, will understand my predicament and will withdraw the amendment.

I thank the Minister for his answer. Is the Minister saying that at present there is no definition to cope with the needs we have? Where is Senator Lydon now that we need him? He is the one who has the expertise in this area. Surely a less offensive definition could be used to describe the severely mentally handicapped? Perhaps the amendment I put forward is a little loose and could be tightened up.

There is no definition readily available to us. When we were talking about amending section 4 of the Criminal Law Act, 1935 we unearthed a whole lot of problems and that law would have to be amended as well to do what the Senator, and I too, would like to do. The Law Reform Commission have told us that they intend addressing the question of sexual abuse of the mentally handicapped. I think we would all be best advised to wait. We are all in agreement. The Law Reform Commission are turning their attention to it and it would be wise to wait and suffer a little longer with terminology that none of us wants.

One is always reluctant to let legislation go through that could be amended and which it would seem desirable to amend.

There would be unacceptable consequences, I believe and I have listed them as best I can.

I am one of those people who believes that there has to be some other way of addressing this while ending these offensive and very antiquarian concepts.

I had thought, as soon as the debate in both Houses is completed, to convey directly to the President of the Law Reform Commission the views of the Members of both Houses of the Oireachtas there should be unanimity in what we are trying to do. We should allow these people as the technical people to help us to get out of the difficulties I know we will find ourselves in if we do it here and now. There is only one other alternative; to leave this on ice, and I do not think anybody would want me to do that either.

I sympathise fully with the Minister's dilemma, but I think it is also necessary that parliamentarians should raise these issues to push others whose technical job it is to find a solution.

I welcome that.

That is the spirit in which the raising of these issues is intended. There must be existing legal definitions for these awful terms, "idiot", "imbecile" or "feeble-minded". I have the 1935 Act in front of me. I did not check the definition; but they are only words and they must have a meaning somewhere in the law as well. I am not trying to trip people up but perhaps if we knew the meaning of the words, in terms of interpretation, it would be easier.

The second thing, and this is more specific, is that section 4 of the 1935 Act deals with circumstances which do not amount to rape but involve unlawful carnal knowledge or attempting to have unlawful carnal knowledge of women who are in these unfortunate conditions. The penalty under that Act is two years. How does that fit in with the attempts to extend the law under this Bill? Would engaging in sexual activities with a mentally retarded person which did not amount to rape be covered by the provisions of this Bill?

It certainly would.

It would be covered under the Act as it is.

The Act says a man commits rape if he has unlawful sexual intercourse with a woman who does not consent to it. A person who is severely handicapped may not be aware of what he or she is consenting to so the question of what is consent arises. What the Act of 1935 says is that in circumstances which do not amount to rape which could involve the question of consent, the maximum penalty is two years, which seems to me to be out of line with the severity of penalties we have in mind for a range of other offences against women. I do not expect the Minister to have an answer now. I just think it is an important question.

I have an answer. In the case of a person who is not in a position to give consent, say through mental illness, that is regarded as rape. Taking into account that the person might not have the ability to consent or not, it would be regarded as rape.

On the question of the definition of "idiots", "imbeciles", "feeble-minded", "moral imbeciles", I have a whole lot of things here which I am not sure will readily meet the points raised by Senator Ryan and I do not think it will help the situation if I just read them all out. I am advised that we do not have readily available to us a definition in Irish legislation and that is our difficulty.

I do not want to trip people up. We were talking about this question of the Criminal Law Act and I had read something about this before, going back to the 19th century. Section 4 refers to "a person who in circumstances which do not amount to rape...". By definition, under section 4 of the 1935 Act, rape is excluded. This definition may well have been amended in the 1981 Act, but it appears to refer here to a person who in circumstances that do not amount to rape unlawfully or carnally knows or attempts to have unlawful carnal knowledge of any woman who is an idiot, an imbecile or feeble-minded. It is not clear to me — maybe it is my fault — that an activity which does not amount to rape but which could involve a very severe sexual abuse of somebody is not considered rape because rape seems to be based on two things, unlawful sexual intercourse and consent.

Basically my problem in dealing with the query raised by Senator Ryan is that it is in the 1935 Act and I do not think it has a direct link-up with the legislation we are dealing with at present. I will have the matter inquired into fully and I will communicate with the Senator.

I hope the Minister appreciates the point. It would be terrible if in an attempt to ensure that these things did not happen we left a clause there which could be a loophole for somebody who was severely exploiting a mentally handicapped girl.

I will have the matter fully examined and will communicate with Senator Ryan in a very short time.

In view of the fact that the Minister is going to look at this — and I will look at it also to see if I can help the Minister resolve his problem — I will withdraw this amendment.

Amendment, by leave, withdrawn.
Section 19 agreed to.
Section 20 agreed to.
SCHEDULE.
Amendments Nos. 6 and 7 not moved.
Schedule agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take the next Stage?

I suggest a date not before one week from today, say, Thursday, 23 February, subject to agreement between the Whips. Members who are contemplating amendments might help us by giving us the amendments as early as possible.

Report Stage ordered for Thursday, 23 February 1989.
Sitting suspended at 12.55 p.m. and resumed at 1.30 p.m.