Skip to main content
Normal View

Seanad Éireann debate -
Wednesday, 8 Mar 1989

Vol. 122 No. 5

Criminal Law (Rape) (Amendment) Bill, 1988: Report and Final Stages.

Before we proceed with the amendments I should like to remind Senators that the proposer of an amendment may close the debate on that amendment but no other speaker may speak more than once on each amendment. Amendment No. 5 is consequential on amendment No. 1 and they may be discussed together.

I move amendment No. 1:

In page 3, line 32, to delete "assaulted or includes—" and in page 4, to delete lines 1 to 5 inclusive and substitute "assaulted.".

Amendment No. 1 and amendment No. 5 arise out of a debate we had on Committee Stage. On that occasion the Minister argued cogently—the amendment was in Senator Fennell's name — that the amendment did not actually attempt to change the definition of rape but attempted instead to change the definition of a rape offence. I have, therefore, in order to make it clear what we are deciding, introduced these two amendments to, on the one hand, meet what I thought was a reasonable objection by the Minister to Senator Fennell's amendment on Committee Stage and also to offer the House, as carefully as I can, a definition of rape which would go along with the majority recommendation of the Law Reform Commission. Amendment No. 1 simply leaves section 3 (1) with the term "aggravated sexual assault". I think that particular crime and that particular term is a useful addition to the criminal law and the whole area of sexual violence but it leaves it simply as meaning:

a sexual assault that involves serious violence or the threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted.

But does not go on to include certain specified offences, all of which have one thing is common, which is that they involve forcible sexual penetration of bodily orifices. We had a discussion indirectly the last day on it. I have suggested that the Principal Act, the Criminal Law (Rape) Act, 1981, be amended by the insertion of the following:

A man commits rape if—

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

That is as in the Principal Act—

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

That is as it is in the present Act. I then propose that we extend the definition of rape by saying: A person commits rape if—

he commits an aggravated sexual assault against a person and that assault includes

—That, of course, is building on the Minister's definition of "aggravated sexual assault" as contained in the Bill but specifies an aggravated sexual assault which includes—

(i) penetration (however slight), by his penis of the anus or mouth of the person assaulted; or (ii) penetration (however slight) of the vagina of the woman assaulted by any object held or manipulated by him.

In other words, I propose that those two forms of aggravated sexual assault ought to be incorporated in a definition of rape. I propose it without an enormous amount of optimism that the Minister is going to accept the amendment, but I think it is necessary on such a fundamental matter to have a clear decision by this House for or against it. I do not want to go through the report of the Law Reform Commission at length, but I will refer to a couple of pertinent chapters from it. The Law Reform Commission referred to a seminar which they held on this whole issue. On the question of the extension of the definition of rape they say:

We attach considerable significance to the fact that these views

—these are views supporting an extension of the definition of rape—

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

The point they are making in that paragraph on page 7 of the Law Reform Commission's report on rape — and this is the critical point in this whole discussion — is that the views of persons who are in daily contact with the victims of what the Minister would call "aggravated sexual assault", but which I think we should call "rape", are that labelling and terminology are of extreme importance to the victims. That concern that labelling and terminology are of extreme concern to the victims is extremely important in terms of the dissenting report which is referred to in paragraph 56. The nub of the dissenting report — the minority report of the president and of Mr. O'Leary — is that the objective of the law as they see it is the apprehension, conviction and punishment of the guilty. The nub of the argument in the minority report is that changing the definition would not in their view contribute anything to the apprehension, conviction and punishment of the guilty.

If one considers these two views, the view of those who work with the victims of rape of how important it is to them that proper terminology be used to describe their experience, and then look at the minority report which effectively gives that a secondary role and talks about the role of the law in terms of the apprehension, conviction and punishment of the guilty, the problem is clearly illustrated. It is a matter of whom the law is for. The minority report sees the function of the law — it is obviously a major function although not necessarily the only, and probably in this case not the most important function of the law — in terms of apprehension, conviction and punishment of the guilty. Many other people, judging by the Law Reform Commission's report, see the function of the law as having the effect of giving some vindication to victims, of giving some sense of support to victims and of the fact that many people express outrage to those who deal with the victims of rape when they discover that what was done to them and what they feel to have been rape is described as some other different offence.

I fully accept the Minister's argument that it is important that similar penalties should apply to these offences, but I do not think we should allow ourselves to be influenced, however weighty the persons who produced this minority report, to be swayed away from the overwhelming interest which should lie at the whole attitude of the State and the community to crime which is not just the punishment of the guilty but also the vindication of the victims. It is an area in the whole area of crime which we have only begun to talk about, only begun to look at, and that is the whole area of victim support.

Having said that, I think it is necessary to make some comments on some of the statements of the minority report because I do not want to draw this into a man-woman conflict or anything like that but some of the phraseology used in the minority report is, to say the least of it, distinctly unhelpful to women and arguably unsympathetic to them.

The concluding paragraph of their dissenting report says:

Nor does the creation of the two new offences of sexual assault and aggravated sexual assault present the same problems of definition that arise when one attempts to find a generally accepted basis for a definition of rape, other than vaginal sexual intercourse without the consent of the woman, the description traditionally attached to it by the community and the law for centuries.

The first question on that is whether we should attach much weight to traditional definitions about things which involve sexual violence against women, given the traditionally unequal role that has been allocated to women throughout the centuries. Therefore, I think it is a very dicey area to quote tradition in terms of how we legislate for something as sensitive as sexual violence, and particularly sexual violence against women, given the historical context of the hostility to women, of discrimination against women and, indeed, the whole context of marital law which we are now almost rid of, which saw women as subjects and chattels and possessions and, indeed, in some cases, sexual playthings of men. All of the historical base for legislation about things like this is flawed by the fact that all of that history was a history of discrimination against women and that is why there is an inadequate argument for not changing the law.

The argument for changing it has come from women, from those who work with women and from those who feel they know the minds of women. The majority of the Law Reform Commission, who presumably were present when all these views were being expressed, were swayed by those arguments. On the one hand, you have the majority of the Law Reform Commission swayed by the arguments and, on the other hand, you have what I think is a limited view of the law by the minority report based on a perception of the law as being responsible for apprehension, conviction and punishment. I think that is a limited and inadequate view and it does not satisfactorily take into consideration the important symbolic view of law, the whole value of law as a statement of values of a society, the whole value of law as a statement of the parameters within which a society operates. All of that is equally important.

The law is not just something for the courts and the Garda; is it a statement of the values of a community, the statement of the values of a country and the statement of the values of a society. In that statement questions of apprehension, conviction and punishment must also have added on to them questions of how society sees a crime, how those who suffer the crime see the crime. I believe that in that context and in the context of the victims of rape it is particularly important that the minority report of the Law Reform Commission, which is in my view a little bit dispassionate, a little distanced from the suffering of the victims, ought to be treated as it is, as a minority report. The majority report, which I have attempted to introduce in this amendment, and based on a clearly held view of the victims of rape and a clearly held view of any woman I have asked as to how she would describe forcible oral intercourse. Every woman I know to whom I have asked that question says it is rape, as sure as the traditional definition of rape. It is something about which women in particular feel threatened.

It is a fact worth mentioning — though I do not want to labour it — that the authors of the minority report were both men. Men, in particular, have an obligation to be particularly sensitive in their use of language in this area. As I said, some of the language in this report, particularly the slightly over-inflated status given to tradition in this area, suggests a slight male dominance in thinking and a dominance based on an area of activity, namely, the law which has been male-dominated for centuries.

The more I read about it, the more I think about it and the more I listen to women and to those who speak for the victims of rape, the more convinced I become that we are doing women a disservice if we do not do what most of them to whom I have spoken to, most of those who have spoken to the Law Reform Commission, want done, namely, extend the definition of rape not enormously but simply to involve forcible penetration of the orifices of the body. In my mind, that involves no legal niceties; it is clear-cut, definite and it meets the needs of those who have suffered to speak a name for the offence that is committed against them that satisfies them and describes in our language what they have felt.

It is appropriate as it is International Women's Day today that we should be discussing legislation which is going to affect the position of women very radically and very fundamentally. This Bill is to be welcomed. There is a great deal in it that is good and that has long been sought. I am pleased to have the opportunity to once more come back to the kernel of the Bill that I feel concerned about with the amendments put down by Senator Ryan. They are certainly tidier and easier to deal with in terms of what we want to change than the amendments I put down on Committee Stage. It is very good that on Report Stage we can get another chance to discuss them.

I absolutely accept and support all the points made by Senator Ryan. He has certainly got a very good grasp, insight and understanding of what we are talking about in our appeal to the Minister to listen and act on these changes. I make no apologies at all for labouring this particular area of the legislation because it is very important that we get this Bill absolutely right. This legislation will have to stand for many years; hopefully it will be the right legislation and we will not have to come back to it as quickly as we have had to come back to the 1981 Act. Therefore, it should reflect the contemporary lifestyle and what happens in our country at the present time.

We must extend the concept of rape to deal with other serious violent sexual offences. This is crucial and I emphasise it once more. I suggest that perhaps this issue has not been discussed enough. I know many people will think this subject has been over-laboured and over-discussed and that there is nothing more to be said about it, but it seems we need to slow down a little bit on this one because we seem to have a very definite difficulty with it. Perhaps it is something that we should take as a section, maybe we should take it on its own as a section and bring it into the all-party committee and discuss it on its own — this concept of rape and whether it should be extended or why it should be extended. I believe that the approach that is being taken at present is against the interests and the feelings of the vast majority of the people who will be influenced by this legislation, that is, women.

The Minister must be aware that today particularly, and in the run-up to today, the abiding call from women's organisations has been that you take another look at the legislation, that you listen to appeals to change it and bring in the amendment which is before you today. I feel that labelling and terminology are very important.

I know that this Bill will make a very firm statement. It should go out loud and clear to would-be rapists that they cannot and must not rape, and also they cannot and must not seriously offend and gravely assault women in the way we read so often in court reports, that is, women are being effectively raped with bottles, screwdrivers or broom handles. This is something that perhaps was not seen in years past, but is certainly too often happening in today's Ireland. To all intents and purposes this is rape. Therefore, we must make our legislation reflect this and call it by what most people see it as, and seriously question the traditional definition of rape: sexual intercourse without consent.

I firmly believe in consultation on legislation pending or on amendments that are sought. A great deal of conflict, argument and opposition can be avoided if various interest group are consulted in advance of legislation. If we consider this legislation, surely the crucial group to consult would have been the Oireachtas Joint Committee on Women's Rights a committee comprising Members of the Dáil and Seanad which brought out an excellent report, a report which, I think set the course of this Bill. In their report entitled Sexual Violence, they explained under the heading "Definition of Rape" how they went about their report. They took submissions from the incorporated Law Society and from the Garda Síochána and in the submissions from the Garda Síochána — I think I said this on Committee Stage and even on Second Stage, but I think it is worth saying it again — the Garda Authorities:

indicated that they were satisfied that sufficient legislation exists 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.

However, they did inform members that they would have no objection in principle to broadening the definition of rape, so they would not at the end of the day object to this. Therefore, the women's groups, women's committees, and the Garda Síochána have not a fundamental objection to it. We have to come down again to the Law Society and, as Senator Ryan pointed out, to the two lawyers — one a High Court judge — who were party to the minority report of the Law Reform Commission. Having listened to all these submissions and reflected again the Joint Committee came back with their recommendation. After "careful consideration" the members of the Joint Committee agree that "the definition of rape should be widened to include the types of indecent assault referred to at (a) on page 8" of the report.

I appeal to the Minister to reflect seriously on this. If the Minister has any doubts at all or believes that we could be right and that we could be putting forward a case that should be listened to and action should be taken. I suggest that he takes his time, and does not go ahead with it, but admits that he is having second thoughts and that something should be done. I am sure that a suitable and practical alternative could be arrived at.

I feel very strongly about this one. It is an issue that is not going to go away. I appeal to the Minister to seriously consider it and in this particular case have an understanding of what the women are saying.

I want to make a few points on amendment No. 5. It is with some reluctance that I speak on this subject because it is difficult to speak on it. Since I am a member of the Joint Committee on Women's Rights and originally I did take the line which Senator Fennell has expanded on and since I have been influenced by the Minister's logic, it is only fair that I should again go over very briefly the area that I have dealt with on Committee Stage.

Senator Brendan Ryan is in agreement with the term "aggravated sexual assault" in section 3. I have to say that I was tempted to put down a motion asking the Minister to change that to the term "sexual violation" for the simple reason that sexual assault seems to me to be an incomplete situation whereas violation is an act completed. It seems to me from the debates we have had in this House that sexual violation would to some extent satisfy the case that is being made by Senator Fennell. I realised that on Report Stage it is necessary to have a seconder to a motion. It would not be an easy thing to do and perhaps it might not be the proper thing to put down an amendment. I suggested to the Minister that perhaps "sexual violation" would be a better term. I realise, of course, that the term "aggravated sexual assault" has been suggested by the Law Reform Commission and has been considered at great length.

I have been influenced by the case the Minister has made. The Judicial Separation and Family Law Reform Bill, 1987, came before this House, and in the early stages in another place, I was concerned with the course it was taking, but seeing that the Minister and those with opposing views came together and drafted legislation which satisfied both sides, I think it is clear that the Minister wants and has attempted in every case to meet many of the points raised. I have no doubt that in this particular Bill it will be exactly the same. I would like to quote from the Minister's reply, at column 127 volume 122, on 16 February in this House as follows:

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.

That specific case has not been dealt with by Senators Fennell and Ryan. That still remains and that must be a considerable influence on anyone who is concerned with this legislation. Furthermore, I would like to quote what my colleague, Senator Lydon, said on that occasion, at Column 124 of Volume 122 of the Official Report of the Seanad:

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 agree with Senator Fennell that it is appropriate that on this particular day we should be dealing with this legislation and hopefully we will conclude the debate. I would have to ask, as I said before, would the legislation be better because of this amendment. Taking into consideration what Senator Brendan Ryan has said, that the law is there not alone to punish the criminal but to vindicate the victim, and everything else it comes down to a definition of language, as the Minister has clearly stated. I must agree, of course, with Senator Fennell and others who have stated clearly that it is women who are the victims, and of course their views must be given priority. I have no doubt about that.

As I have said before, my simple understanding of the objections to the wording and to the Minister's decision not to extend the definition is that women who have been sexually assaulted or assaulted in a way that would come under the term "aggravated sexual assault" would feel that the term does not cover the injustice that has been done. In all other ways, the punishment, penal servitude for life, and the procedure through the courts are identical to the procedures for those charged for a rape offence. At the end of the day, to change the definition would not seem to me to improve the legislation. I think that is the important consideration.

I realise there is a difficulty with the legislation satisfying the psychological damage done to the victim. There is a difficulty, but I think the Minister has been very forthright with this legislation and indeed all the members of the Joint Committee on Women's Rights have accepted it. While I too agree that we should perhaps pause in a situation like this, I certainly would not agree with Senator Fennell's suggestion that we should put this legislation more or less on the shelf even for a short time, because I think it is a very considerable step forward and is seen as such by every individual. I think it would be unfortunate to delay its passage through this House.

I want to state as clearly as I can my attitude to the legislation. I feel I understand the points that have been made by Senator Fennell and Senator Ryan and by and large I agree with them, but as I have said at the end of the day we are concerned with legislation that will deal with the criminal and, as Senator Ryan has said, that will vindicate the victim. This legislation does that. I honestly believe that the Minister has given great consideration to this legislation and I accept the logic of his statements. The Law Reform Commission changed its attitude and we have this minority report. When you consider that erudite men and eminent lawyers are capable of doing that, obviously it must be hard to get unanimity in any general sense when it was impossible to get it there. However, taking everything into consideration and the case that the Minister has put, I feel that I must accept the Minister's point of view.

At the outset I would like to say on the amendments in the names of Senators Ryan, O'Toole and Fennell that the Government cannot be accused of conservatism in relation to the Bill. In the international context this Bill is on any view a radical measure. If the Government felt that the correct approach would be to extend the existing definition of rape they would have no hesitation in doing so. As I have already informed the House, this is not a political issue. That being so, what, then, are the arguments on each side? The main argument advanced for extending the definition of rape to include other serious sexual offences, and this was the argument put forward by the Oireachtas Joint Committee on Women's Rights, is that these other acts which are as humiliating and degrading as rape are now charged as indecent assault with a lesser maximum penalty than rape and without the protection at present afforded to victims of rape by the Criminal Law (Rape) Act, 1981. That argument has been met by the inclusion in the Bill of the new offence of aggravated sexual assault which will have the same penalty as rape, which will be tried in the Central Criminal Court along with rape and will attract the same procedures that presently protect the victims of rape.

The remaining arguments in favour of extending the definition of rape relate to the following: first, that the public's understanding of rape has changed and, in particular, that women who have been subjected to sexual assaults not amounting to rape feel that, in fact, they have been raped. Second, that calling these offences rape would benefit the victims psychologically. I am not at all convinced that the existing law does not coincide with the community's concept of rape, neither may I say were all the members of the Law Reform Commission. The difficulty, of course, is that there is no research which can prove or disprove this argument. Rape has always had a very distinctive meaning: non-consensual intercourse per vaginum; and it would be surprising, to say the least, if the community's view of what constituted rape has undergone a recent sudden change. It would appear from the English Law Reform Commission's report that no such change has taken place there. It may well be that some women have described what has happened to them as rape, although it does not amount to rape, as a form of convenient shorthand to describe what they have experienced. I can understand that, but that would not however seem sufficient reason to change the definition of rape. In addition the facts that rape crisis centres who assist victims of all sexual assaults put forward the view that all assaults involving sexual penetration of whatever kind should be classed as rape would undoubtedly encourage the use of such shorthand by women who come into contact with the centres.

Another argument is that victims of serious sexual assaults not amounting to rape would benefit psychologically by describing the experience they have been subjected to as rape. I can appreciate that argument being made in the context of the existing law where the offence charged is indecent assault and the maximum sentence is ten years imprisonment. However, any psychological assurance that may be thought to be needed will be supplied by the obvious seriousness with which the Bill as presently drafted treats these serious sexual assaults.

What we are talking about in reality is nothing more than a change in the nomenclature; that this is so is borne out by the amendments tabled by Senators Ryan, O'Toole and Fennell. Under the amendments, acts of penetration other than rape which constitute aggravated sexual assaults, which under the Bill and under their amendments could be charged as such with a maximum penalty of life imprisonment and the same safeguards for victims as exists at present for rape victims, could also be charged as rape. That is the only change contemplated in the amendments.

In my view the arguments against making that change far outweigh any arguments in favour. Firstly, there is no consensus in favour of the change. In the commission, the president, who is a distinguished High Court judge, and its fulltime commissioner, who has long experience in the office of the Director of Public Prosecutions, were against an extended definition of rape. The Law Society and the Garda Síochána argued against it before the Oireachtas Joint Committee on Women's Rights and it is clear therefore that many of those who have experience in administrating the criminal law are not in favour of the proposed change. Their views must carry considerable weight. The current edition of the Irish Law Times in its editorial also argues against the extended definition of rape and states:

The Bill sensibly proposes that there will be a new offence called aggravated sexual assault, ... for which the maximum penalty should be of imprisonment for life.

The next major argument against extending the definition of rape is that rape is clearly distinguishable from all other forms of aggravated sexual assault. As I have pointed out already on a number of occasions, the essential ingredient of rape is the absence of consent to sexual intercourse. Although in many cases rape will be accompanied by violence, the essence of the crime is the absence of consent to an act which in proper circumstances constitutes an expression of human love. Absence of consent has to be proved in every case. On the other hand, in the case of the aggravated sexual assaults we are talking about, consent will not normally arise as an issue. Indeed, Senators Ryan, O'Toole and Fennell acknowledge that fact in the way they have drafted their amendments. I take the point made by Senator Ryan on Committee Stage that consent might possibly be an issue in a case of oral intercourse, but I would imagine that that would be a rare occurrence. In respect of penetration by instruments, it is inconceivable that consent would ever be an issue in such a case.

Furthermore, I do not fully understand the argument that the possibility of pregnancy should not be regarded as a distinguishing feature of rape. The Supreme Court certainly considers that it is. I would have thought that, although not the only one, the possibility of pregnancy is certainly one of its distinguishing features. It has been contended that the argument of pregnancy as a distinguishing feature is unsound because it ignores the cases of rapes committed on older women. That is to misunderstand the position. It is only the act of rape that can give rise to pregnancy, none of the other offences referred to can, and one cannot ignore that fact.

The effect of bringing a number of offences within the definition of rape would constitute a major change in the law and I have argued that the result of doing so might have the opposite effect to that intended, that the result might well be to change the public perception of rape. The public would no longer know when a rape as presently defined had been committed and as a result the stigma and odium which the public attach to rape could be reduced. Senator Ryan does not agree on that point but I think there is a real danger here.

There is another danger that once one starts to extend the definition of a well known crime such as rape where does one stop? This is a difficulty referred to in the minority commission report. The majority recommended an extension of the definition based on the Crimes Sexual Offences Act, 1980, of the State of Victoria. Yet only recently the Law Commission of that state has recommended further changes. There is a heavy onus on those who seek a fundamental change in the criminal law to establish the need for that change. The present law on rape is one of long standing and gives rise to no difficulties of definition. The Government cannot ignore the fact that the change being suggested might have results which have not been contemplated particularly when what is being proposed does not offer any material benefit in the prosecution of offences or in the legal protection afforded to victims or in deterring potential future offenders from committing offences.

In my view we should think long and hard before changing the definition of rape. I am fully satisfied that the changes in law at present contained in the Bill can be defended on the basis that they bring about obvious and desired improvements in the law. I cannot say the same in relation to the proposal to extend the definition of rape and for these very sound reasons I must oppose those amendments.

I might add one small point in relation to the amendments themselves. Despite the obvious effort made in the amendments to make the extended definition of rape neuter in gender it has not been altogether successful, because the masculine is used in some places as intending to refer to men only and in others to other men and women. The provisions particularly in paragraph (c) (ii) are clearly ambiguous in this regard.

I now call Senator Ryan to conclude.

I will not argue with the Minister about the ambiguity of paragraph (c) (ii). There is another House in which that could be tied up, so I am not going to argue about that.

I am sitting here with a slightly increasing sense of distaste. I fully accept there is no party political debate here, but there is a fairly fundamental debate about perception which has nothing to do with party politics and I am quite sure of that. I know Senator Fitzsimons a long time and I know he would not have changed his mind on this issue simply because the Minister and his party told him so. Senator Fitzsimons is a man whose record in this House on a number of issues is such that he is testimony to the Minister's eloquence and not to the Minister being a senior member of the same party. I have an increasing sense of distaste because, with the exception of Senator Fennell, we are all men here. The minority report of the Law Reform Commission was written by two men.

The bodies which have to a greater or lesser degree resisted the extension of the definition of rape have been the Garda Síochána, who are overwhemlingly male, and the Law Society, which are still overwhelmingly male and are doing their best to preserve their bastion by their strange practices of examination. Let us remember that the only woman member of the Law Reform Commission voted to support this change and let us remember who she was, because I think this is important if we are going to talk about needs, psychology and feelings. The person who voted in favour of that was Ms. Maureen Gaffney, B.A., M.A., Psychologist, Eastern Health Board and a research associate, presumably in psychology, with University College, Dublin. A psychologist, a woman who was a psychologist, and member of the Law Reform Commission, apparently she could see the validity of the extended definition. She could see it from the point of view of defining in law what the victims feel the crime to be.

I do not want to get involved in a long discussion about what is or is not the appropriate form of sexual intercourse. There is something delightfully old-fashioned about the description by the minority report: "the sexual act which can provide the most complete expression of love between men and women and normally enables conception to take place." With all due respect to the two men who wrote that, that has an echo of Humanae Vitae which should not be present in a legal document from a High Court judge and a professional solicitor. Sexual intercourse has developed a little bit beyond the normal conception of children stage. It is an unworthy phrase for two such august gentlemen to put into a report. There is a lot more to the love between men and women than the conception of children. It says something about the perception and views of the people who wrote that minority report that they put such language into it.

That is why I have an increasing sense of distaste, because the one thing that has been clear to me is that everybody who could claim to represent women and every woman who has spoken that I am aware of on this issue and all those who have dealt with the victims of rape from this issue have said two things since this Bill was published: first, that the Bill was most welcome in many aspects — that needs to be said again and again — but that the first major deficiency they say was the unwillingness to give the name of rape to offences whose victims feel themselves and believe themselves to have been raped. I accept that the Minister has come a long way. I accept that the idea of describing some of the appalling offences as indecent assault was wrong and that has been changed. I accept that the concept of aggravated sexual assault has come a long way. I accept that the trial procedures and all of those things have brought us a long way. I do not accept that we can simply stop there and for men to say to women — this is what it has really amounted to—"Until you can prove to us that this needs to be done, we will not do it." It seems to me the reverse ought to be the case: unless we can prove to women in particular that what we are doing is better than what they want, we are obliged to listen to those who carry the pain of this with them for the rest of their lives.

It appears to me that overwhelmingly they say we should change the law and we have not the right to place on them the onus of proof. In my view the onus of proof lies on us. I do not like too much of this juxtaposition of men and women. But it appears to me that everybody who can talk authoritatively about the perceptions of women or the perceptions of the victims say one thing and a lot of other people say the opposite. It is wrong to suggest that we cannot change until they prove to us. In fact, quite the opposite should be the case: we should change unless we can prove to them and persuade them that what we are doing is necessary, just and right.

May I say, in conclusion, that I accept what the Minister says. He has a valid point about the whole relationship between rape and the possibility of pregnancy. I want to repeat again — and the Minister agreed with this on Committee Stage — that probably the worst threat of all now is the possibility of AIDS, which is worse than pregnancy. Pregnancy as a result of rape must be awful, but let us be clear that forcible anal intercourse, involving as it probably would, blood being released, is probably the single greatest risk to a person of contracting AIDS; and, given the possibility of these crimes being committed by people who perhaps had other reasons to have contracted AIDS, this must and will be a serious and frightening experience. That is not the central issue. The central issue is the perception of those who are the victims of rape and the perceptions of women generally. I do not think their arguments have been adequately argued.

Therefore, I have a considerable regret about this and I look forward to what I hope will be a resumed argument in the other House. I know a number of the Opposition parties take a similar view to myself and my colleagues. I sat back and tried to listen to the debate and it seems to me that what has happened is that the Minister and the minority have said: "Maybe it is true, but until they can prove to us that it is true, we will not do it." I do not think that is an adequate response. I appeal to the Minister even between now and when the Bill comes before the other House, to think about what this looks like to those out there who want something different. How do they see it? How do they interpret it? What do they think we are doing? We are in danger — and I regret this very much — of spoiling the public perception of an otherwise fine piece of legislation by virtue of the omission to do what most people who want reform have asked the Minister to do.

We are on Report Stage and Senator Fennell only has the right to speak once.

I would like to express my disappointment and join in the remarks of Senator Ryan on this.

Is the amendment withdrawn?

I am putting the question: "That the words proposed to be deleted stand."

The Seanad divided: Tá, 23; Níl, 14.

  • Bohan, Edward Joseph.
  • Bromell, John A. (Tony)
  • Byrne, Seán.
  • Cassidy, Donie.
  • Doherty, Michael.
  • Fallon, Seán.
  • Farrell, Willie.
  • Fitzgerald, Tom.
  • McEllistrim, Tom.
  • McGowan, Patrick.
  • Mullooly, Brian.
  • Fitzsimons, Jack.
  • Haughey, Seán F.
  • Hillery, Brian.
  • Hussey, Thomas.
  • Kiely, Dan.
  • Kiely, Rory.
  • Lanigan, Mick.
  • Lydon, Donal.
  • O'Connell, John.
  • Ó Conchubhair, Nioclás.
  • Ryan, William.
  • Wallace, Mary.

Níl

  • Bradford, Paul.
  • Bulbulia, Katharine.
  • Connor, John.
  • Cregan, Denis.
  • Doyle, Joe.
  • Fennell, Nuala.
  • Ferris, Michael.
  • Harte, John.
  • Hogan, Philip.
  • Kelleher, Peter.
  • O'Shea, Brian.
  • O'Toole, Joe.
  • Ross, Shane P.N.
  • Ryan, Brendan.
Tellers: Tá, Senators W. Ryan and S. Haughey; Níl, Senators B. Ryan and Doyle.
Question declared carried.
Amendment declared lost.

Amendments Nos. 2 and 3 are related and may be discussed together.

Government amendment No. 2:
In page 4, lines 1 and 2, to delete "of the person assaulted" and "of another person".

On Committee Stage Senator Ryan raised a question in relation to the drafting of paragraphs (a) and (b) of section 3 (1), in particular the apparent inconsistency in referring in paragraph (a) to the penis of another person while referring in paragraph (b) to the vagina of the woman. I undertook to consult with the parliamentary draftsman on the matter and the amendments now proposed by me will, I believe, solve the problem raised in a satisfactory manner. I am thankful to Senator Ryan for raising the matter.

Amendment agreed to.
Government amendment No. 3:
In page 4, lines 3 and 4, to delete "of the woman assaulted".
Amendment agreed to.

I move amendment No. 4:

In page 6, between lines 2 and 3, to insert the following—

"‘consent' means a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to these words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means;".

I want to raise with the Minister a particular problem. The Bill contains the following wording in section 8. This is to do with the question of consent. It states:

It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of that person any failure or omission by that person to offer resistance to the act does not of itself constitute consent to the act.

That is a very welcome step forward. That was, unfortunately, the second part of a two-part recommendation from the Law Reform Commission, the first part of which contained a recommendation to insert a definition of consent into the Bill. The more I thought about it, the more I became somewhat concerned that the absence of a definition of consent, while I accept what the Minister has said that it has not been a problem in successfully prosecuting cases, may have been a serious deterrent to the initiation of prosecutions. There is an area in which we do not have much information. We are trying to clarify the fact that a person who is raped does not have to show evidence of physical resistance. There are a whole lot of other ways of putting a person under enormous pressure to consent to sexual intercourse. The amendment I have inserted to define the word "consent" is taken verbatim from the report of the Law Reform Commission. It states:

"‘consent means a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to these words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means;".

I thought a lot about examples where this would arise. The one that comes to my mind and that requires a response on this issue from the Minister would relate to the offence of incest. I am thinking in particular of a father who induces, say, a 16 year old daughter to have sexual intercourse. It may well be that no force or threat of force was involved but I am not convinced at all that it would, by that definition of consent, be able to be said that the use of the authority of a father to induce a daughter to do something that she would otherwise not wish to do, result in a prosecution for rape under the present law. The problem is that incest carries a maximum penalty, according to the Punishment of Incest Act, 1908, of seven years in prison. By contrast, aggravated sexual assault and rape under previous legislation and this Bill carry a maximum penalty of life imprisonment. It does appear that by any reasonable standard of what should be free consent the use by a parent of the authority of a parent vis-à-vis a child; the use of, perhaps, financial dependence by a woman on a man where they are not married or even where they are married — the use of all of those things to induce a woman to consent to sexual intercourse involves such a diminishment of the person's freedom to dissent that consent is absent. I very much doubt if under the present law it would be possible or likely that a member of the Garda or the Director of Public Prosecutions would prosecute for rape. That is the specific example that I would offer.

There are ways of getting around the definition of consent which would not be susceptible to clear prosecution under the existing law. It is necessary to state clearly that any consent which is not freely or voluntarily given, if it is obtained by force, threat, intimidation, deception or fraudulent means, is not consent. The word "deception" in particular is significant. The whole area of incestuous relations, where a father uses his position vis-à-vis his daughter, seems to be an area in which by no standards could one believe that consent was involved in the way that we all understand it; but it could still leave young girls open to what would effectively be, in Senator Fitzsimon's phrase, a sexual violation which amounts to rape. It is important that we should address the issue of consent, not just in terms of previous experience in terms of achieving convictions but in terms of looking at whether the absence of a definition of consent is, in fact, an inhibition to prosecution in many cases where people should be and ought to be prosecuted, not for incest but what is effectively rape.

I would like to second this amendment. I am very pleased that Senator Ryan put it down. It was something that was dealt with in some substantial way in the report on rape of the Law Reform Commission. The Bill will be all the better for having this amendment and this definition of consent put in.

The Law Reform Commission stated in their consultation paper that they were not aware of any problems having arisen as a result of the non-definition of consent and at that point they said the law should be left as it is. They stated: "While no cases have been drawn to our attention in which the present law created serious difficulty, it was represented to us that it was certainly capable of doing so. The Irish Association for Victim Support was strongly of the opinion that the absence of a definition had influenced verdicts. It would be accordingly advantageous if the Legislature were to clarify the law so as to put it beyond doubt the consent obtained by force or fraud was not consent. It was urged that there was a real danger of juries equating a failure to offer physical resistance with consent." They went on to say: "We feel that there is considerable merit in these arguments. As we pointed out in the Consultation Paper, the law has been put beyond doubt by legislation in Western Australia, New Zealand and Canada. We think that the case has been established for making similar provision in this jurisdiction. Accordingly, we recommend that legislation should provide...."

They continue on to suggest that the wording of the amendment as put down should be included. I am sure that the Minister will reply and indicate his views in so far as he left out this particular section of the Law Reform Report in drafting the Bill. With regard to consent, I think it is something that is very fundamental in charges of rape and in the hearing of rape cases. Not very long ago a social worker in the country said to me that there are very many rape cases that are never reported and never dealt with. These are cases of young girls who get into a car with some fellow after a disco or a dance and are driven up the mountain and the car is locked and the girl cannot get out. She is petrified and terrified and she is raped in every true sense of the word. She feels so guilty and so bad about it but she is so unsure that she does not resist and does nothing about it. That, to me, is very regrettable. This definition of "consent" would make it quite clear that behaviour such as that would be defined as rape and the basis of the rape would be that the man was deceiving the woman. I will support this amendment and I will be very interested to hear the Minister's view.

I would like to support this amendment. I think the question of consent is a very important one. This Bill, although I regret that some of my amendments were not accepted, is a major move in the right direction and is greatly to be welcomed. It is appropriate that we deal with the issue of consent particularly on this day at this time because just about now there is a march of women "reclaiming the night" as their slogan is. There are people who are afraid of rape and afraid that this notion of consent may occasionally be interpreted in such a way as to suggest that women in some curious manner invite rape. However, I have a specific point to make with regard to the question of consent directly related to this amendment. I support very strongly what Senator Ryan has said on the question of incest. I would like to emphasise by making a specific point on this issue. I am sure the Minister will be aware that in the case of incest very frequently the child is damaged not just by the act and these acts take place frequently over a considerable number of years with what may well appear to be the consent of the victim.

One of the consequences of this is that even when legal action is taken and when the culprit is punished or sent for treatment the victim is left with a very considerable sense of guilt, a sense that she or in certain circumstances he has been complicit in the sexual activities engaged in at the behest of the father. It is particularly to obviate or to get around this very damaging by-product of such situations that I wholeheartedly support the amendment by Senator Ryan. I am sure that this matter will be taken on board by somebody up there.

As was anticipated by the movers of the amendment, I am not in a position to accept it. The Law Reform Commission state in their annual report on rape and allied offences that they were not aware of any particular problems having arisen as a result of the non-definition of consent. The proposed amendment would effect significant changes in the existing law which I am opposed to and which were not advocated by the commission. The Law Reform Commission in their consultation papers were of the view that there was no need for any statutory definition of consent. In their final report, as a result of certain representations received, they thought it might be advantageous to clarify certain aspects of the existing law.

My concern is that any statutory definition of consent would lead to confusion rather than to greater clarity and could also lead to unintended changes in the law. The proposed amendment now before us only confirms this view. The amendment is derived from a definition in the law of Western Australia. A proposal to include a similar definition in the law of the state of Victoria was considered by the Law Reform Commission of Victoria in the context of their review of the law on rape in June 1987 and was strongly rejected because of the changes in the law which would be brought about by such a definition.

The difficulties arise particularly in cases where consent is vitiated by the fact that it was obtained by fraud or by threats. The existing law in the case of fraud is that there is no consent, for example, where a man induces a woman to have sexual intercourse by impersonating her husband. In such a case a 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 wealth or his willingness to marry would not vitiate consent to intercourse and rape would not be committed in such circumstances. I do not accept, as this amendment proposes, that a man who persuades a woman to have sexual intercourse with him by deception as to his willingness to marry should be guilty of rape and liable to life imprisonment.

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 women clearly constitutes rape but a threat by a fiancé to break off an engagement if the women does not consent to sexual intercourse would surely not be sufficient to ground a charge of rape. In between these two points is a grey area which can only be resolved case by case. Therefore, apart from the declaratory provision in section 8 of the Bill, I would be opposed to having consent statutorily defined as it would inevitably cause considerable difficulty and confusion without, on the other hand, affecting any improvement in the existing situation. For those reasons I am not in a position to accept the amendment.

The Minister has a point. I read the report. One of the very good things about this Minister is that his replies on Second Stage are usually comprehensive and deal with most of the points raised by Members. I wish he would have a word with some of his Cabinet colleagues on that because some of their replies are not nearly as comprehensive. I was trying to anticipate some views on a number of my amendments on other legislation and I must say the ministerial replies at the end of Second Stage did not enlighten me. To be fair, the Minister is very good at that. I would have anticipated a reply to my amendment. But I do not think the Minister addressed the issue. The Minister would agree with me that a father who, using his position as a father, induces a child of his to have sexual intercourse is guilty of rape. I do not think it is sufficient to describe it as incest. It is my view that society at large would see that as such. The relationship between a father and a child is so unique——

I know I am totally out of order but would the Senator allow me to state that in the case of incest consent is not a requirement of the law.

I appreciate that, but incest is a lesser crime in terms of penalty than rape. It carries a seven year sentence. Another way of putting it is that perhaps, in terms of the way in which the law is interpreted by those whose duty it is to enforce it, we should make sure that the concept of consent is clearly understood by the Garda. The view the Minister has of consent is a fairly wide and broad definition of consent. I accept that section 8 of the Bill is a contribution towards that widening. The example I am concerned about is the father who induces a child, by virtue of his position as her father, to have sexual intercourse. By any standards, and given the fact that this seems to be an increasing problem in our society, that ought to be defined as rape. As far as I am concerned, it should be clearly seen as rape. The question of what constitutes consent becomes difficult there. I do not propose to do more than raise the matter.

Senator Norris made a very good point in that one of the real long term consequences of incest is a sense of guilt that people carry with them. If the offence that the person was to be charged with were defined as rape it would have the consequence of transferring the guilt away from the victim and on to the perpetrator of the offence. I suggest to the Minister that while he may not wish to put in a definition of consent he and his officials should reflect over the next few weeks on how it would be possible to interpret consent, if not define it. I would worry about an employer who could make threats. We discussed this earlier on Committee Stage in terms of sexual harassment. There could be an implied threat by an employer. I worry about a parent vis-à-vis a daughter. There is an area of ambiguity there which would effectively allow somebody who had been guilty of forced sexual intercourse to plead guilty to a lesser offence of incest. I do not think that is what either I or the Minister would wish. I ask him to think about the matter again. I do not intend to pursue the matter. I will withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment No. 5 not moved.
Question, "That the Bill, as amended, be received for final consideration" put and agreed to.
Question proposed: "That the Bill do now pass."

I thank Members for what I consider to have been a well worthwhile debate on an exceptionally important issue. I am thankful for all their views and comments. I went as far as I could to try to meet the various points. I will do as was suggested by Senator Ryan. Between now and the time the matter is discussed in the Dáil, I will reflect carefully on other matters which I was not able to accommodate now.

I thank the Minister for the time he has given here. He sat through long debates and, while we did not agree on everything, I certainly appreciated his responses and his apparent efforts to help. I wish the Minister well with the Bill.

Question put and agreed to.
Top
Share