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Seanad Éireann debate -
Wednesday, 12 Dec 1990

Vol. 127 No. 1

Criminal Law (Rape) (Amendment) Bill, 1988 [ Seanad Bill amended by the Dáil ]: Report and Final Stages.

I welcome the Minister to the House. Our Order of Business went on a little longer than usual today and we regret any delay it may have caused.

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 82, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question, "That the Bill be received for final consideration," the Minister may explain the purpose of the amendments made by the Dáil and this is looked upon as a report of the Dáil amendments to the Seanad. The only matter, therefore, that may be discussed are the amendments made by the Dáil. For the convenience of Senators, I have arranged for the printing and circulation to them of those amendments.

Question proposed: "That the Bill be received for final consideration".

As Members are aware, they may speak only once on this question. I now call on the Minister for Justice.

The Criminal Law (Rape) (Amendment) Bill was presented to Seanad Éireann on 25 November 1988. The Bill received a very favourable first reception in this House as a major piece of reforming legislation. However, there were reservations expressed about a limited number of issues. During the passage of the Bill through the Dáil I put forward a number of initiatives to address these reservations and I hope the Members of this House will agree that the Bill as amended in Dáil Éireann represents a major step forward in the law's treatment of sexual assault offences and the victims thereof.

The Bill was introduced by the Government because of their desire to ensure that victims of serious sexual assaults and, in particular, women victims, should have the full protection of the criminal law and that the trauma and distress suffered by victims should be reduced to a minimum. In pursuit of these objectives the Bill proposed to introduce a number of major reforms.

The Bill as first presented to the Seanad abolished the common law rule that a husband could not generally be found guilty of raping his wife. In future, a husband who rapes his wife will be liable to the full rigours of the criminal law. The Bill also abolished the old common law rule which presumed that a boy under 14 was physically incapable of sexual intercourse and as such could not be charged with rape.

In recognition of the gravity with which the Government view serious sexual assaults the Bill provided that trials for such offences will henceforth be held in the Central Criminal Court rather than the Circuit Court. To reduce the distress to the victim the public will be excluded from these trials.

The existing provisions protecting the identity of rape victims and restricting cross-examination on previous sexual history were stengthened by the Bill and extended to all victims of sexual assaults.

One of the major criticisms had been that the existing criminal law did not recognise that certain types of serious sexual assaults can be as traumatic for the victims as rape. In response to this, the Bill provided for the creation of a new offence of aggravated sexual assault with the same penalty and procedures as rape.

Notwithstanding the creation of the new offence of aggravated sexual assault there were still calls that the term "rape" should be applied to such offences. This was, perhaps, the most controversial issue to arise during the debate on the Bill. The Law Reform Commission themselves were split on the matter. Three of the commissioners were in favour of an extended definition of rape while the remaining two, including the president of the commission, argued strongly against an extended definition.

This is a matter in which I took a special interest. From my discussions with individuals and various women's interest groups, I was aware that this was an issue over which many women felt strongly. It was represented to me that certain serious sexual assaults, particularly those involving forced oral or anal intercourse, or penetration of the women's vagina by objects, need to be termed rape to provide the psychological re-assurance and sense of vindication necessary for the well-being of the victims of those horrendous offences.

We will want to ensure that this legislation is the best possible. If there is something which can be done which might reduce the trauma and distress suffered by victims of these terrible crimes then we will have to give it serious consideration.

My proposal which provides for the new offence of rape under section 4 was well received in the Dáil. The amendments relating to this proposal are amendments Nos. 1, 4 to 10, 12, 13, 19, 20 and 22.

Amendment No. 5 is the key amendment. Because of its importance I think that it would be appropriate to read out in full the new section 4 which is being inserted in the Bill.

4. (1) In this Act ‘rape under section 4' means a sexual assault that includes;

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

(b) penetration (however slight) of the vagina by any object held or manipulated by another person.

(2) A person guilty of rape under section 4 shall be liable on conviction on indictment to imprisonment for life.

(3) Rape under section 4 shall be a felony.

By virtue of this provision it will be possible to provide the psychological re-assurance sought by victims of these crimes without attracting any of the disadvantages of interfering with the existing definition of rape.

The new offence of rape under section 4 will be limited to serious sexual assaults involving penetration of the body by a sexual organ or penetration of a sexual organ by an object. It is intended to retain the offence of aggravated sexual assault to cover those serious sexual assaults not involving sexual penetration. However, the definition of aggravated sexual assault is being altered by amendment No. 4 to delete the specific references to the matters which will form the new offence of rape under section 4. The existing offence of rape is not affected in any way by these amendments.

Amendments Nos. 1, 6 to 10, 12, 13, 19, 20 and 22 are all consequential on the creation of the new offence of rape under section 4.

Before I go on to deal with the other amendments not relating to rape under section 4, I feel that, as a matter of courtesy, I should inform this House about certain measures being taken to reduce the sense of isolation and bewilderment felt by complainants during court proceedings. In both Houses the question of separate legal representation for the complainant was raised. Such a proposal has been examined by the Law Reform Commission and was strongly rejected. The Government agreed with the views of the Law Reform Commission on this issue. The Commission did, however, point out in their consultation paper that it is already perfectly permissible for a woman who has been raped to consult a lawyer and to bring a lawyer with her, in the capacity of a friend, to the court during the hearing of the trial.

There is already a provision in the civil legal aid scheme under which legal advice may be given in connection with criminal proceedings where the matter arises out of the same circumstances which have already given rise to the grant of civil legal aid or advice. In such a situation the board's solicitor would provide "such additional services to the assisted person in respect of the criminal proceedings to the extent that a solicitor in private practice would do".

I have decided to make the necessary changes to the scheme so that in future this provision will apply to victims of rape, rape under section 4 and aggravated sexual assault regardless of whether these victims have already received legal services under the civil legal aid scheme. I appreciate that this may place extra pressure on the scheme and I envisage that extra staff will be made available to the Legal Aid Board for this purpose.

In future, therefore, when criminal proceedings are initiated the victims of these offences will, subject to the usual conditions as to means under the scheme, be able to consult with a legal aid solicitor in advance of the trial who will be able to explain to her how the criminal law process works in relation to the offence in question and what her position will be in that process. In addition, if she so wishes, the legal aid solicitor may accompany her into court and provide support for her during the trial without, however, having the right to participate in the trial.

This is a major step forward and should go a long way in reducing the sense of isolation, bewilderment and helplessness that many victims feel when called as witnesses in rape trials. This initiative is being taken in addition to measures being implemented by the Director of Public Prosecutions providing for pre-trial consultations with all witnesses and the familiarisation of the complainant with the procedure and layout of the court.

I will turn now to the less controversial areas which were the subject of amendments in the Dáil. Amendment No. 2 is merely a drafting matter and need not detain us. Amendment No. 3 provides that sexual assault shall be a felony. This amendment was made at the request of the Director of Public Prosecutions who wished that in appropriate cases the Garda should have power to arrest a person where they suspect a sexual assault has been committed. By making sexual assault a felony the offence attracts a common law power of arrest without warrant.

Amendments Nos. 11 and 14 are minor drafting improvements. Amendment No. 15 relates to the anonymity of the accused. Part (b) is merely a restatement of what was already in the Bill. Part (a), however, is new. It is possible that revealing the identity of the accused might indirectly reveal the identity of the complainant; for example, in a case where a man is charged with raping his wife. The purpose of this amendment and the related amendment, amendment No. 16, is to make it clear that a judge should not lift the restrictions on revealing the identity of the accused until they have considered how that might affect the anonymity of the complainant under the provisions of section 7 of the Criminal Law (Rape) Act, 1981.

Amendment No. 17 arose out of concern expressed in the Dáil about the low level of the penalty for the offence of indecent exposure. The amendment increases the maximum penalty for public indecency under section 17 of the Criminal Law Amendment Act, 1935 from a fine of £2 or one month's imprisonment to a fine of £500 and/or six months imprisonment. Amendment No. 18 was required because of amendments made to the Defence Act, 1954 by the Criminal Justice Act, 1990.

The last amendment I need to refer to is amendment No. 21 which substituted a new section for the original section in the Bill dealing with the Criminal Procedure Act, 1967. Under the original provision the District Court in the case of rape or aggravated sexual assault, would not have had jurisdiction to (i) grant bail; (ii) send forward for sentencing an accused on a signed plea of guilty, or (iii) deal summarily with the offence. The case was made by the Law Society and in the Dáil that the District Court should continue to have jurisdiction to grant bail in these cases. The Director of Public Prosecutions was consulted and he also was in favour of retaining the District Court jurisdiction to grant bail. Furtheremore, he was anxious that the District Court should continue to be in a position to send an accused forward on a signed plea of guilty. Amendment No. 21 takes these views into account. The District Court will now retain jurisdiction to grant bail or send forward an accused on a signed plea of guilty. However, the District Court will not have the jurisdiction to try summarily a case of rape, rape under section 4 or aggravated sexual assault.

In conclusion, I would like to say that I believe that the amendments made to the Criminal Law (Rape) (Amendment) Bill have improved the legislation. I hope the Bill as amended will receive the wholehearted support of this House.

I welcome the Minister and congratulate him on bringing the Bill to a conclusion before Christmas and allowing our new President, as one of her first official acts, to sign the Bill. It is appropriate that she should do this. The Bill is a major step forward in regard to the definition of rape and sexual assault offences and in regard to the victims thereof. I welcome the extension of the Act to include serious sexual assaults outside the accepted meaning of rape. These assaults can be as traumatic, and perhaps more traumatic, than rape as at present defined. The Bill recognises the seriousness of those acts. It provides a psychological reassurance for victims of rape of all kinds. Such acts now attract the stigma and odium which is attached to the crime of rape. A person who suffers from such an horrendous assault is entitled to be protected under the law as outlined in the Bill. The amendment meets the recommendations of the Rape Crisis Centre and, to some extent, the Law Reform Commission and this is welcome. It corrects the central deficiency inherent in the Bill originally introduced in the Seanad. To pass the legislation in its original form would be to pass defective legislation.

Will the Minister consider the whole area of pornography and its link with rape, as now defined in the Bill, and other sexual assaults? This is a difficult area with overtones of suppressive censorship. We must not return to the days of restrictive censorship. We must, however, ensure that standards of decency are maintained in the interests of society. Pornographic material must not be allowed where it results in bodily violation and humiliation of victims.

The increase of sanctions for indecent exposure from a £2 fine and/or six months' imprisonment is also welcomed. The Minister is to be congratulated for extending free legal aid to victims of rape on the basis of assistance from a friend rather than in an official capacity which the law would not allow.

The trauma of a victim of rape going to court and giving evidence cannot be over-emphasised. The victim becomes the focal point at the hearing and is exposed to detailed discussion and cross-examination of her experiences during the crime. The victim is often made to feel like a defendant rather than a victim and the Bill redresses this to some extent. The extension of the facility of free legal aid to victims who cannot afford it is to be welcomed. It is extending common justice to people who cannot afford such aid.

I welcome amendment No. 3 which provides that sexual assault will be a felony. It is a necessary improvement that the Garda have the power to arrest where they suspect a sexual assault has been committed and that they can do so immediately without the necessity to obtain a warrant.

I again congratulate the Minister on his initiative in bringing the Bill to the House before Christmas, and, again, I endorse the Bill in its entirety.

Like Senator Neville I, too, welcome the Minister and congratulate him on the manner in which he took on board certain amendments to the original Bill which was introduced here almost three years ago. The legislation is, indeed, widely welcomed. I would like to take this opportunity to place on record my welcome for this Bill. The whole thrust of the Bill is a step in the right direction to ensure that certain anomalies and shortfall in our legislation, particularly in relation to the abominable crime of rape, are addressed.

The broadening of the term "rape" should be welcomed by all interested parties in the legal system. In the past, rape basically dealt with penetration by the penis. This has now been extended to cover other types of penetration, such as penetration by objects and so on. This is, indeed, widely welcomed and should be lauded.

The Bill has created a felony out of sexual assaults and has brought with it the serious penalty that attaches to such crimes and this must also be welcomed. The abolishing of the marital exemption is one which I welcome. Under the old legislation and in common law a man could not be found guilty of raping his wife. That has now been amended and this is indeed a welcome amendment. The old common law defence, where a male under the age of 14 years could not be found guilty or capable of committing an act of rape, has been dealt with and this defence has been deleted in the new legislation.

Some changes were made to the Bill in the Dáil. A particular one, which I have already covered in relation to the broadening of the term "rape", is the protection of the complainant and providing greater anonymity to a complainant, whether in the case of marital rape or otherwise. Statistics have proved that, as serious as rape is in the criminal law code, a great deal of women in particular are afraid to come forward and face cross-examination. They do not like going to court and relating to the prosecution, and to the court generally, the trauma of what they encountered. The judge now has the discretion in certain cases to refuse to disclose the name of the complainant. This is a pretty wide discretion and is, indeed welcome.

I want also to compliment the Minister on his vision in extending the civil legal aid scheme to cover victims. The complainant can now avail of the civil legal aid scheme and, indeed, the criminal legal aid scheme. There was some criticism in the media over the weekend about a problem in relation to the funding of the civil legal aid scheme. The Minister for Justice, Deputy Burke, has established the framework for this important aspect to enable the civil legal aid scheme to apply to people, particularly women, who can get advice and are prepared for the trauma of going to court. For many it will be their first time in a court system which in itself, is somewhat traumatic. This is very welcome and the Minister must be lauded in this respect.

In view of the fact that the Bill has gone through this House and the Dáil and that today we are merely concerning ourselves with a number of very important amendments, it would be wrong of me to go through the whole Bill again. The amendments made in the Dáil were wise and prudent and all those concerned, both the Minister and the speakers from the Opposition, must be lauded for their sensible approach to this important legislation. This legislation will go down in history as being forward looking, innovative and grasping the nettle as far as certain problems are concerned. I am quite certain that this legislation will be well received. I would recommend it to the House and ask that it be given unanimous support and a safe passage through the House.

I will not delay the House. Like previous Senators, I agree that the amending legislation does not call for any extended debate. I was interested in some of the public comments made on the amended Bill over the last few days. I am glad to see that the Minister has promised that the legal aid advice will be strengthened by additonal recruitment. This was one criticism made by people who felt that the scheme would clog up at this point. Also, the director of the Rape Crisis Centre is reported in The Irish Times of 10 December as welcoming the legal aid advice but complaining that it does not go far enough, that what is called for is separate legal representation so that the victim will have a direct voice in court. However, the present state will have to be accepted. There is, after all a role for the judge here as always. I think that this legislation when passed will put a new psychological pressure on judges and on cross-examining lawyers which will further improve the atmosphere in which the unfortunate victim has to give evidence. I think that introducing a direct legal representation would confuse the procedures and would also deprive or, perhaps, put at risk the legal rights of the accused, and the accused does have legal rights.

The atmosphere of revulsion or repugnance against the alleged perpetrators of rape is such that we sometimes are tempted to express ourselves in very vehement terms — as a Member of the other House did — as to what should happen to these alleged perpetrators but we must remember that first and foremost we simply cannot intern or arbitrarily proceed to execute justice on these alleged perpetrators. They are entitled, even in the interests of their victims and in the interests of society at large, to proper examination in the court. The introduction of an additional legal representation, as requested by people like the Rape Crisis Centre would not in the end serve the interests of justice.

I have some sympathy, however, with another criticism: while there was some unease about extending the definition of rape it seems to me that if it has to be extended, and we have to, as it were, flesh out the semantic definitions of rape, then it is illogical not to extend it all the way. I had much sympathy with a view expressed in the other House that rape should logically be extended to constitute the penetration of all bodily orifices by the penis or all inanimate objects.

Finally, there is substance in the view that transferring the hearing of rape cases to the Central Criminal Court is in the nature of a gesture. I welcome the psychological move underlining the importance that the State attaches to the new law, but this will be counterproductive if cases clog up the Central Criminal Court. After all, the important thing is the severity of the sentences rather than the actual location of the court. But none of those criticisms merit any serious pushing at this stage and I am happy to congratulate the Minister on very progressive legislation.

I want to add my voice to the congratulations that have been extended to the Minister on this legislation. It is historic legislation. What strikes me, in particular is that in formulating this Bill and these amendments, he took on board the advice that was given to him by various women's groups and the Rape Crisis Centre. I do not want to bore everybody by going over all the ground again but, in particular, I welcome the inclusion of a section on aggravated sexual assault. As Senator Murphy said, I have some sympathy with the idea that the widened scope, under section 4, could have included an amendment which might have made the offence less gender-related, but I would not quarrel with the Minister over the thrust of that.

I welcome the section on the abolition of marital exemption in relation to rape, and I am sure that is something we all welcome. It was also mentioned that trials would now take place in the Central Criminal Court. To a certain extent that might be seen as a cosmetic exercise but psychologically, that is very important because, after all, that is the court where murderers are tried and if we take on board the fact that rape is a heinous crime, an extremely serious crime, it gives a recognition and an acceptance of the seriousness of the crime. It is up to the Judiciary and the bureaucrats to ensure there is no delay in any of the trials.

There is no point in picking holes in this. The fact that the victims will have recourse to legal aid advice is very good and I am delighted with the assurance we got from the Minister this afternoon that there will be more resources available to that body. I am sure the succour that the victim will get will also encourage women who are frightened or dismayed at the ordeal they feel they will have to undergo in court. They will now feel that the law is more on their side and that they will not have to suffer, as they have in the past, the type of harassment, which is the only way I can describe the approach of some defending barristers.

In conclusion, I congratulate the Minister; this is a tremendous tribute to his zeal in reforming this Bill.

I welcome the Minister to the House. I also very much welcome the Bill before us. The amendments the Minister has taken on board in the other House in many ways make this Bill and turn it into a very substantial and important Bill. I certainly congratulate the Minister on his willingness to take on board relevant and very useful amendments.

There are three major areas that I consider have been dealt with in the amendments and have contributed enormously to the quality of the Bill. The first one is, of course, the extension of the definition of rape. The Bill would have been sorely lacking in strength if the definition of rape had not been extended under section 4 by amendment No. 5. This means that rape can be dealt with in a much more comprehensive fashion rather than in the restricted fashion proposed in the original legislation. Secondly, in the area of marriage, previously marital rape does not exist in law but it did, of course, exist in practice. That is a very important amendment in section 5 (1) of the new legislation. I am glad the Minister has taken that one on board as well.

Another area in which this Bill is of tremendous importance is in regard to court proceedings, in that it has improved and facilitated court proceedings to the extent that now it is much more feasible for a victim to deal with court procedures compared to the almost traumatic experience that it was in the past. Certainly, the legislation has improved that to a considerable degree in relation to the manner in which uncorroborated evidence is available, in the manner in which previous sexual experience or past history cannot be delved into. These are very welcome developments.

The new definition in section 9 in relation to consent is very welcome because too often the argument had come forward that somebody, simply because they did not resist in an agressive fashion, had, therefore, consented to what had happened.

The penalities in the Bill underline the enormity of this offence. On the other side of the coin, I have reservations on some matters that I would like the Minister to address. First, in relation to the definitions and the interpretations, in line 15 of the new Bill sexual assault has the meaning assigned to it by section 2 but, of course, section 2 does not go on to define anything. It simply states: "The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault". But what is the offence? How do we define it? That is simply a further description, another title given to the same act, but we are not told what the act is. Therefore, to call "sexual assault""indecent assault" and vice versa does not elaborate or elucidate in any way. Perhaps the Minister might refer to that even though it is not specifically part of the amendments.

Section 5(2) is the one about which I have most reservations. Criminal proceedings against a man in respect of the rape by him of his wife shall not be instituted except by or with the consent of the Director of Public Prosecutions. It is strange that a distinction should be made in that respect, that an action by the wife can only be taken with the say so of the Director of Public Prosecutions and with him actually prosecuting. It seems to take from the credibility of a wife taking an action against her husband if it can only be done on the authority of the DPP. Why can an action not be taken directly without having to go through that particular process? Perhaps the Minister might refer to that. That ties up with the fact that actions are to be taken in the Central Criminal Court as distinct from the District Court and I would have certain reservations about that also. The intention is good in that it underlines the enormity of the offence, but with the extension of the definition it means that many more cases will be going before the courts. With the easing up of the procedures in the courts I would imagine that we could easily have a situation where the courts would get clogged up and it could be difficult to deal with cases simply from a logistical point of view.

In relation to section 7, there is a new element there that I have not seen in any other legislation, the question of the possibility of convicting a person on the uncorroborated evidence of the complainant. I understand the intent and the purpose of this but it certainly raises a question, perhaps a constitutional question, about our due process, about somebody being convicted on uncorroborated evidence. It is a matter that we are well aware of in this country, in the totality of the island, and I wonder if that has a strict legal and constitutional basis.

In relation to civil legal aid — and I welcome the Minister's statement that he is extending civil legal aid to cover the area that is covered in this Bill — I am concerned about the manner in which it can be done, that the victim can be accompanied only by a solicitor. That solicitor cannot act on behalf of the victim. That is a flaw in the legislation, because the major point that comes through from reading the newspapers in relation to any type of sexual harassment case is the attempt by the opposing barrister to blacken the character of the complainant. That is where they are particularly vulnerable and I would be worried that they would still be subject to harrassment. Certainly a solicitor or a lawyer representing a victim should be able to represent her in court and should at least have the authority to ward off damaging emotional type questions that are directed to undermine the evidence of the complainant.

The other side of the problem is the difficulty in having the civil legal aid system operating efficiently. The Minister has again suggested that extra resources will be put into that area but the present position in relation to the civil legal aid system is totally unsatisfactory. I am sure the Minister knows this. It is totally under-staffed, under-resourced and it is unable to deal with the existing matters that come before it. That is not putting it too strongly. We do not have an adequate system of civil legal aid and, therefore, I am not at all satisfied that our civil legal aid system will be able to function effectively in providing the service that, no doubt, the Minister intends and which we would also like to see in place. The resources will be a key area in providing the backing and the underpinning of this new legislation. I would like to see substantial recruitment in that area.

Finally, I would like to refer to something I find I have to refer to in all legislation of a criminal nature that comes before the House, that is the nature of penalties. While I welcome the strength of the penalties that are being put in place in this legislation I would always refer to the fact that we have a limited number of penalties on offer. It is simply imprisonment or fines and we have not gone beyond that. Certainly, research that has been done suggests that there may be in many cases considerable medical and psychological problems in relation to people who commit these horrendous crimes. Rather than the blunt instrument of a prison sentence, I would love to have seen some attempt to put in place some community-based or therapeutic-based sanction. The legislation makes no reference to this whatsoever. That is a disappointment just as it is a disappointment in every piece of legislation that comes up with a sanction for criminal activity. I would ask the Minister — I presume he is not going to be able to address it in this legislation — in future to take that proposal on board, to see that sanction can reflect not just the enormity of the offence but also the appropriateness so that you have the appropriate sanction to the appropriate offence.

I want to welcome the Minister here this afternoon and thank him sincerely for the extraordinary amount of common sense and attention he gave in the Seanad on the amendments to this important legislation. This is the way all legislation should be dealt with and it is nice to see that the Minister, Deputy Burke, has gone down that road on this most important Bill. There is an extraordinary amount of cruelty and sadness involved and for that reason legislation such as this is needed. It is important to put on record here this afternoon that when this Bill is signed by Uachtarán na hÉireann we will be way ahead of some of the EC member states in regard to such legislation. The Minister listened to the Law Reform Commission, the Oireachtas Joint Committee on Women's Rights and many other groups. I put emphasis again on the fact that he listened and I thank the Minister for doing that.

This Bill came into this House away back in November 1988 at the time I was in another place. I am pleased to be back here again going through the Final Stages of the Bill. The Bill is much improved as a result of the amendments. There is no doubt that the offenders must pay the price for the dreadful deeds they do. We do not know how common rape is. I understand that only about 30 per cent of victims come forward and of that number only a very small percentage bring the case to court. I presume this is because we in Ireland have not grasped that offenders must be brought to court and dealt with for their offences. It is important to point out that this is not just a city offence; it is happening in rural Ireland. Some people are afraid to talk about rape, as if it is not happening. Other people talk about it as if it is only a city occurrence. The reality is that in rural areas there are old women and widows living alone who are attacked in their homes. This legislation will deal with that crime.

My only concern is that there would be delay in implementing the legislation. I know that this would not be the fault of the Minister or of his Department, but sometimes we are slow to ensure that tough legislation is implemented and offenders dealt with. Also there may be a waiting list in the courts: God preserve us from waiting lists in other areas. The last thing we need is a delay in getting a rape case to court. I would therefore ask the Minister to ensure that these cases be dealt with immediately. I would put it to him that more judges should be appointed. Perhaps he would appoint a woman or two. A woman can do the job as good as a man.

(Interruptions.)

No, I would not qualify. Every sane person knows that tough legislation is needed to deal with the crime of rape. Everybody would like to see this legislation go through and be a success. Rape is an outrageous crime. I rarely speak as a woman, but on this occasion I am going to say that I think it is wrong to accuse some women of looking for rape to happen. That is a wrong image. That is not so.

The Minister in his address here this afternoon put emphasis on section 4. I will not read it through because the House has it before it. He made reference to all of his amendments. He said:

This is a major step forward and should go a long way in reducing the sense of isolation, bewilderment and helplessness that many victims feel when called as witnesses in rape trials.

That confirms how clear the Minister was about the way he wanted the problem addressed when bringing this legislation before the Government.

I would like to refer to something in the Bill but about which I hope the Minister will see his way to doing something about at another time. I refer to the treatment of sexual offences against the mentally handicpaped. I would ask the Minister in his own time to look at this matter. He knows my close association with this group. I was disappointed that it was not included in the Bill and I am sure there is a reason. I would ask him to ensure that the mentally handicapped are also protected. They are a very vulnerable group of people in our society.

I want to refer now to the treatment and punishment of offenders. Both the victim and the offender need treatment. The person who commits the crime of rape certainly needs treatment; the victim needs great care and treatment. I would ask the Minister to ensure that both the offender and the victim receive the proper treatment.

I thank the Minister for this very progressive legislation and for his whole approach to it. Since I came in here in 1977 I always felt, whether we were in Opposition or in Government, that Ministers should be big enough to accept amendments and to listen with care to the views of all TDs and Senators, because it is they who have the ear of the people who elected them. The Minister has done this and I thank him for it.

Again, like the other speakers, I welcome the Minister and thank him, as Senator Honan has said, for listening so carefully to the strong lobbies, going back through the last number of months, from women's groups throughout the country and particularly from rape crisis centres, who work so hard under very small budgets to assist victims of rape. I am glad he took on board many of the amendments that they wish to see in the Bill — not all but the very important ones.

The first one, obviously, is the extension of the definition of rape. It is a well known fact that women who have been attacked sexually other than raped suffer the same trauma and feel they have been raped. They consider themselves to have been raped and are so considered by society in general. Therefore, the extension to define and itemise will give women in general the feeling that they are protected in society. There are specifics, as enumerated in section 4 (1) (a) and (b).

The second point I welcome from the Minister is the interpretation of rape as a crime of violence, to see it as a crime of violence and not of sexual passion as has often been suggested in court. By putting it under the title of felony deals with that and I am glad the Minister saw fit to include that.

Again, I welcome the free legal aid facility for victims who cannot afford to pay for legal advice. I welcome the abolition of marital exemption in relation to rape, but as Senator Honan said, in relation to sentencing there is one aspect I feel the Minister could have taken on board. The sentence handed down must reflect the seriousness of the crime. I accept that in relation to sentencing that is so but it is an issue of community safety. It is rural and urban. It can extend the lack of safety, as it were, towards young children and older women. The extension of the definition takes those aspects into account. But it is the safety aspect that I feel very concerned about.

On the question of treatment and punishment, it is well known internationally from research that there is a high risk of reoffending when the prisoners are released from prison. As we well know, patterns of behaviour can be changed through therapeutic help. It is very important that the risk of reoffending is reduced. So, I would have hoped that the Minister would have looked at the treatment section. I suppose community sympathy goes to the victim, but the offender too, particularly if he continues to offend on being released, must be taken into account. Provision for a treatment programme is very important. The community for safety reasons needs to know that when a sex offender is released from prison a statutory body is monitoring his rehabilitation. That is very important. Senator Honan pointed out that at the end of the day the community really can feel safe as a result of therapeutic help for people who commit the crime.

Overall it is a good day for — I do not want specifically to say the women of Ireland — but a good day for the whole community of Ireland that a Bill such as this has been widely accepted in the Dáil and here. It shows enlightened reaction towards something which up to years ago people would not even have dared comment on or have discussed openly. We have gone very much to the fore as regards the EC and other countries in putting this legislation through. I congratulate the Minister on listening to the various lobby groups, particularly when they fight so hard for something which at the end of the day will be of community benefit.

Like the previous speakers, I want to congratulate the Minister for coming here this evening and also on the way he has dealt with the various lobbies for the past number of months. It is historic legislation.

At this stage, with your permission, a Leas-Chathaoirligh I would like to avail of the opportunity to congratulate Miss Deirdre Lane on her well deserved promotion. As you know, she worked with us on the Committee of Public Accounts and we knew it was only a matter of time before she would achieve this well derserved promotion.

I believe that it is in its historic context that the Bill must be measured. Strictly speaking, the basic aim of the Bill is to ensure that someone who has gone through the trauma of rape or sexual assault will not have that trauma added to by their experience in court in the prosecution of the person responsible.

This Bill now improves the protection of the victim of rape or of a sexual crime, because the provisions set out in it are very substantial. They are most welcome since they remove serious defects in the 1981 Act. In particular it is proposed that all rape and sexual assault cases be heard in the Central Criminal Court, and to exclude the public from all cases. The Bill offers additional protection and will also make it somewhat easier for the victim to come forward to ensure that the rapist is convicted and punished. It will at least reduce the ordeal that has to be faced by the victim in a court case. The mere fact that it will be easier for the victim to go to court should have the effect of acting as a deterrent. It is well established that the less chance a person has of being detained and prosecuted, the higher the incidence of the particular crime.

This Bill will redress the balance in favour of the victim. In the past the woman unfortunately had a most embarrassing experience if she had to go to court to hear all the intimate details of her private life discussed before an audience. Thankfully, as a result of this Bill, this will not now be the position in the future. The extension of particular measures which currently apply to rape trials to cover all victims of sexual assault is welcome. Since the 1981 Act the name of the rape victim cannot be made public and under this Bill the names of the victims of sexual assault will also be protected. There are additional restrictions in regard to sexual assault cases in that the prohibition on the introduction of evidence by cross-examination or otherwise of the sexual history of the victim, which currently applies to rape cases, will also be extended to sexual assault cases.

I am satisfied that the Bill will lead to more successful prosecution for rape and facilitate and encourage the victims of rape to come forward to ensure that the rapist is prosecuted. I also welcome the statement of the Minister that in future a husband who rapes his wife will be liable to the full rigours of the criminal law. The Bill has also abolished the old Common Law rule which presumed that a boy under 14 was physically incapable of sexual intercourse and as such could not be charged with rape. I also welcome the civil aid extension to the remit of this Bill.

Amendment No. 3 was made at the request of the Director of Public Prosecutions and I certainly welcome it. It means that the Garda should have the power to arrest a person where they suspect a sexual assault has been committed. By making sexual assault a felony, the offence attracts a Common Law power of arrest without warrant.

Amendment No. 17, which increases the maximum penalty for public indecency under section 17 of the Criminal Law (Amendment) Act, 1935, from a fine of £2 or one month's imprisonment to a fine of £500 or six months imprisonment, is also to be welcomed.

In conclusion, I am satisfied that this Bill will help to improve the situation of the unfortunate victims of this terrible crime. I commend the Bill.

I suppose it is not inappropriate for me to say that this is a Bill which communicates and vindicates the rights of women in particular. It is appropriate that it will be among the first pieces of legislation that President Robinson will be signing. I also think it should go on the record that the campaign for the reform of our legislation with regard to rape began in this House many years ago, 13 years ago — the political campaign, the initial debates about reform. It is a function that this House has served consistently, not a function that I claim makes us better or superior to the other House of the Oireachtas. It is just that we are different. This House has been able to do that because of the difference in political priorities.

This is a fine piece of legislation. It is and will be a considerable memorial to the Minister, a tribute to his willingness to take on board the increasing depths of public concern about it, his willingness to listen to arguments. Wearing his other hat, I wish he had listened to arguments about a certain other piece of controversial legislation that came here before the summer. We will disagree on that one.

One of the central things — and it is specifically related to the first of these amendments — is the extension of the definition of rape in the rather creative way the Minister has done it there, rape under section 4, and also the extension to "penetration of the vagina by any object held or manipulated" and "penetration of the anus or mouth by the penis". This is extremely important because that together, particularly the specific reference to penetration of bodily orifices, particularly the penetration of the vagina by an object, encapsulates the very important fact that rape is an act of violence against women. It is not an act of sexual gratification; it is inherently and demonstratively an act of violence against women in particular. The amendments to this Bill which underline and extend that fact are most welcome and are a credit to the Minister. I do think he deserves to be credited for it.

It is also important, in terms of our affirmation of our view of a shared sense of outrage at the crime of rape, that we should use the terminology in our legislation to describe these offences which best describe what the person offended against feels. They feel violated, they feel raped and, therefore, it is quite right that whatever the complications — and I appreciate the arguments; we went through them at great length in this House when this Bill originally began in this House — but I still believe that it is extremely important in the sense of symbolically drawing all of our society together into a common outrage at the offence. It is important that the word which best describes the sense of violation of the victim should be attached to this offence. Therefore, I welcome and compliment the Minister on those amendments which include those sexual assaults which involve penetration of the anus or mouth by the penis or penetration of the vagina by an object held or manipulated by another person.

It is a good day for the Oireachtas to have these related amendments going through — and high time, because it needs to be said, by a man in particular, that there has been and still is, particularly in all male company, something close to ambivalence about violent sex if not about rape, not an endorsement but a capacity to be slightly less than forthright in the language that men will use in all male company about matters like this. Therefore, it is extremely important that our legislation should be vigorous in the assertion of society's — and male society in particular — rejection of anything which implies in any way the objectification of women as sexual objects.

There are other aspects of the amendments, and I will try and confine myself entirely to the amendments. I had a long session with the Minister on the original Bill and I do not propose to go through that again. On the question of legal representation I am glad about what the Minister has announced, but, at the risk of repeating what other people have said, I am not sure that it goes far enough; but that is perhaps a debate for another day about the degree of accessibility of the civil legal aid scheme and the degree of resources available to that scheme. I am not entirely sure, given the pressure of time on that scheme, that it would be possible to ensure, for instance, that the extra resources the Minister has announced will be available simply to the victims of rape; or will we still have problems about queues and delays. I am not talking about the marginal delays but extraordinary complaints about the extent of overburdening of that extremely important service, a service which in its broadest sense is a necessary condition for the operation of a constitutional democracy in which all of us are equal under the law and have, therefore, access to the law in order to assert that equality. The limitations of the civil legal aid scheme may well present problems and difficulties, but nevertheless I am glad to acknowledge that the Minister has accepted the difficulty and once more underlined and underscored — I know he has done consistently in this legislation — the increasing concern and solidarity of society with women who are victims of this most appalling crime.

Something deserves to be said about what the Minister mentioned here: the initiative being taken in addition to measures being implemented by the Director of Public Prosecutions providing for pre-trial consultations with all witnesses. It is important in those pre-trial consultations that people whose means perhaps would not allow them to avail of the free legal aid scheme should be advised of the value of getting a legal representative to assist them and advise them in the course of the pre-trial period. I must say I cannot imagine anything more painful or stressful than the situation of a woman who has been raped and who has to wait for the usual perhaps three months or six months for a court case in anticipation of the possibilities of the sort of cross-examinations that, no matter what we try to do, seem to be unavoidable in cases of rape.

I have never been able to and cannot offer here a solution to the trauma of a rape victim, where in some cases they can feel that they are actually more severely treated in the case than the accused. It is apparently inherent in our legal system, this type of adversarial position and quite horrific cross-questioning. I am moving more and more to the position that the previous sexual history of a victim of rape should be totally excluded. I appreciate the problems. I have been through this with this Minister and with other people before. More and more, in order to protect people from extraordinary traumatic attacks, by I am sure well intentioned defending counsel, I am coming to the conclusion that the decision about rape ought to be on the evidence of the specific act. I know the restrictions are considerably greater, but we have to move further and further along.

I accept fully the validity of amendment No. 3 providing that a sexual assault should be a felony. It seems extraordinary that until this amendment was introduced there was not the possibility of arrest without warrant where the Garda suspect a sexual assault has been committed, a crime of that degree of foulness — and I rarely use language like this about crime. I think a lot of what is said about law and order is excessive and intemperate and does no more than create fears in our society that are perhaps unjustified by the statistics but rape is, short of murder, one of the most profoundly degrading offences that can be committed against another human being. Some of the cases that have come before the courts of women in their seventies, and almost in their eighties, being raped in a violent fashion deserve the fullest and most complete condemnation. It is quite surprising and I am glad this amendment has been introduced. The House is aware that I am not among those who are most enthusiastic about arresting people without warrant. It seems there are good reasons to do with the safety of the victim, the validity of the use of evidence and the access to evidence. The Criminal Justice Act, which provided for detention for questioning, did not give powers of arrest in this case without, presumably longer procedures. Therefore, I compliment the Minister.

I am glad the Minister has made further amendments to secure the anonymity of the accused. Again it is an all-important part of the assertion by all of us of an identification with the trauma of the victims of rape that no hint of evidence should be available that would identify a victim. Enough has been suffered by the victims without having to go through with that.

Contrary to a larger held view, I am not entirely happy with amendment No. 17 in relation to indecent exposure. It covers a wide variety of offences from some which are blantantly and offensively sexual to people who through the influence of alcohol or for other reasons, perhaps urinate in public. It covers a large spectrum of offences from the slightly disturbing to the profoundly offensive and threatening. Somebody who exposes himself in an offensive way to young children is in my view a different category of offender from somebody who is intoxicated and urinates in public. I am not sure that the same offence should cover them. I have had acquaintance with people who have been convicted of indecent exposure because of intoxication among other things. A possible penalty of six months imprisonment seems just a little bit in the line of adding to the enormous problems the Minister already has with the prison service. He is adding to the list of people who in many cases should not be in prison for what constitutes the offence of indecent exposure.

This Bill, soon to become an Act, containing as it does the provision for penalities of life imprisonment, could and should raise the question of whether our prisons are in a position to handle offenders like this. It is a fact that persons convicted of sexual offences are at considerable risk in our prisons, that most prisoners take a very hostile view of sexual offenders and, therefore, in most jurisdictions they need to be kept in separate confinement. I cannot imagine given the state of at least one of our biggest prisons, Mountjoy, how that can be done in a way that is reasonable and humane. All of us are perfectly right to express our support for severe penalties for rape and the severe penalty is the extent of deprivation of liberty. Severe penalty does not involve further degradation in a degrading prison system and should not be interpreted as such. The deprivation of liberty is both a necessary and sufficient penalty for serious offences like this.

With that small reservation, I want to say that this is legislation for which the Minister deserves congratulations. He has moved in considerable degree with the opinion of all sides of the Houses of the Oireachtas, about the need to extend the provisions of the law.

May I say, in conclusion, and I would have said this two months ago as much as I say it now, it is further evidence of our position to some who would categorise this as a backward country. Let us remember there are considerable parts of this legislation that are still not part of the law of our nearest neighbour, for instance, the specific statement that there is no such thing as protection for rape within marriage. It has taken the Judiciary in Britain to push the legislators and they still have not entirely caught up with where are now. Those who would categorise this country as being backward would want to recognise areas of legislation like this which are forthcoming, positive and extraordinarily assertive of the rights of women in particular and in a particular area, and particularly of the right of women within marriage not to be subjected to degradation or violence in the name of some strange concept of the marital contract. This is very welcome legislation for which the Minister, and the Government, deserve to be congratulated.

First, I welcome the Minister to the House, and like other Senators, I welcome the legislation before the House. All of us totally condemn and repudiate any assault on people. What would horrify us even more is any type of sexual assault on women and children. We have read in recent times of horrific cases of rape of elderly women, attacks on children, teenagers and on women of other ages. All of us condemn this in no uncertain way and want to see such offences firmly dealt with, in a way that will ensure that the perpetrators of such crimes will not be able to escape under any technical copout when charged with the offence of rape.

I ask the Minister to ensure that an organisation such as the Rape Crisis Centre be given adequate funding for the very delicate and important cases they deal with. I am sure the Minister would agree that compensation and support can undo some of the damage or try to ameliorate the position. Any type of psychiatric support given to victims would be welcome.

I welcome in section 4 the new offence of rape and the extended definition of rape to include a husband who rapes his wife. It is important that the law as amended, be rigorously enforced.

In relation to trials, I would like to ask the Minister when he is replying to give us some information, first, on the extra advice which will be available to parties and be provided by the civil legal aid centres. He has indicated that extra resources and/or staff will be made available. I am sure the Minister is aware that such centres carry out very considerable duties, that they are undermanned and, generally, not given enough support. I ask the Minister to make a special effort in relation to providing extra facilities, extra support, extra manpower because the staff in many of these places work very long hours against deadlines trying to deal with some very difficult and very human and tragic situations. They certainly deserve all of our support, I would ask the Minister in considering his Department's Estimate, to pay particular attention to giving extra support to them.

I also want to speak to the Minister in relation to the question of these trials now taking place in the Central Criminal Court. I recently heard an eminent Senior Counsel who does a lot of criminal work saying that he can see all the courts getting bogged down and delays taking place. It is clear that extra judges will have to be appointed. I am sure the Minister does not want such cases being delayed unduly, causing further anguish and grief to the complainant. In order that these extra cases can be dealt with as speedily as possible the Minister should consider whether it is necessary to have a special judge on stand-by, when the Books of Evidence are ready. In most cases now, even those involving common assault, this is necessary. There is a case where an assault took place about a year ago and the trial is unlikely to take place until March or April. It is a relatively straight-forward case. Is the Minister satisfied that the Central Criminal Court will have the necessary manpower?

I concur with what Senator Ryan said in regard to the menfolk in this Chamber, that they would give total support. At times, there is double-think and when men are in male company, there are jokes and comments made and they do not give serious attention or thought to matters such as we are discussing here. It is important that all of us would support this legislation in a very positive manner.

The extended definition is to be welcomed. It is important that when a complainant is being cross-examined or in court she is not questioned as if she were the accused. I welcome the fact that proceedings will be in camera and that certain rules and regulations in relation to naming persons will be reviewed. If the accused, is found guilty and named, he may be affected psychologically or another person could be affected — his wife or a person who would be known as somebody who was acquainted with the accused.

Like the other Members, I welcome the legislation at present before the House. I would ask the Minister to consider some of the matters I and other Senators have raised. We are all glad in this House that the Minister has brought forward this legislation following long consultation. This is a difficult area. It is difficult to get the legislation right and to ensure that it is fair and just and deals with the reality of the situation.

I would like to welcome the Minister to the House. I take a divided view of the Minister, I have to say. I always feel he is a little bit like Dr. Jekyll and Mr. Hyde. As Minister for Justice, he is definitely Dr. Jekyll; as Minister for Communications, I sometime feel there is a touch of the Mr. Hyde about him. However, he is always good-humoured and we always get an intelligent and considered response from him even if we do not agree with it.

I am not going to re-hash all the arguments. There are one or two things I would like to say. First, there is a general welcome for this Bill. It is sensitive, it is humane, it is progressive. I echo what Senator Brendan Ryan said about the people of this country that, on balance, they are tolerant, decent, and civilised people and I am glad this is now being expressed in law in this very precarious and difficult area of rape.

In general terms, I think the Minister is reflecting in this legislation, that rape is not really a sexual crime; it is a crime of violence and it expresses not a sexual interest in the victim but contempt for the victim and a desire to impose dominance. I am glad the Minister has introduced in this law, a non-gender specific approach to rape and has indicated that under the terms of the amendments rape can be committed upon a man. This is very important. Senator Ryan referred to the question of the situation inside prisons and the situation for sexual offenders because they are very frequently under attack. I would also like to expand on that and say that there is a considerable incidence of rape of men by men within the custodial system, not just in this country; it is a frequent phenomenon throughout the world. I welcome very much the fact that this is non-gender specific and that it addresses this problem. I am glad also that the Minister has decided to abolish the old common law principle that presumes that a male person is incapable of any form of rape under the age of 14. Here, again, an arbitrary and capricious line is being drawn. The Minister is quite right in what he has decided to do in this connection.

I note that the Minister has placed the trials of such offences in the Central Criminal Court rather than the Circuit Court and he says that to reduce the distress to the victim the public would be excluded from these trials. Again, I welcome that. I would like to put in a slight nuance here with regard to the victim. It comes up again with regard to the question of anonymity because I have to underline the fact that one has to have the highest regard for the question of the presumption of innocence. For that reason I feel it is very important that the anonymity of the accused be preserved also until that accused is found guilty. I am not saying that there are many false accusations of rape but it is not unknown for persons to be charged with rape and subsequently to be found not guilty. It seems to be an unnecessarily harsh penalty to exact upon somebody who is accused of rape, subsequently vindicated by a court, to have his name splashed all over the newspapers and his address possibly given. There is also the matter of publicity which will affect the family of this person.

I underline these points because I think it is very important that we pay due respect to the question of the presumption of innocence. I would also like to underline the fact that I am not making a case suggesting that women, or indeed men, make a great number of unsustainable allegations of rape. We should be prepared to bear this consideration in mind.

I was very impressed by the sensitivity displayed in the Minister's speech with regard to the question of language and his feeling with which I agree, that it is necessary in terms of psychological support for the victim to continue to employ the term rape. It is a crime that is disgusting and violent. I believe that people who have been the victims of this appalling crime need all the psychological reassurance they can get.

I notice that the Minister pays particular attention to amendment No. 5, which is a new section 4 in the Bill. I am not going to delay the House very long but I would like to make a technical point in this regard. It reads: "4.—(1) In this Act rape under section 4 means a sexual assault that includes (a) penetration, however slight, of the anus or mouth by the penis or (b) penetration, however slight, of the vagina held or manipulated by any other person."

May I just make the point from experience representing people in court that sexual assault can occur even where there is consent. I say this because I recall a case in which I was involved as an adviser. There was a very good solicitor in the case. It was a private consensual act betwen two young men, one of whom I think was 20 and the other was 17 years and 11 months or so. The fact that the second junior partner was under the age of 18 meant that the charge was sexual assault. The explanation given in court that day was that under a certain age it was impossible to give consent or something. I cannot remember the technicalities but I am sure the Minister's advisers will be able to bear out what I say or to challenge it technically. In other words, in certain circumstances — and I take the view that a person of 17 years and 11 months is capable of giving consent to sexual activity — the partner may very well be charged with assault simply because this is the correct legal charge because of the question of age. I would like the Minister perhaps to see if there is any implication for his legislation in this circumstance.

I welcome the fact that the Minister is aware that many victims of rape would like to be legally represented. This has been said by other Senators so I am not going into it in any great detail, but he says if the victim wishes — and I note he says consistently in this passage, "she", but I take it in this case the female pronoun includes the male, — she may get the legal aid solicitor to accompany her to court.

I wonder if the Minister could say something about funding because there seems to be an indication here that there will be a greater demand for services through the Legal Aid Board system and so on. In the Oireachtas Joint Committee on Women's Rights we recently had a submission from the Chairman of FLAC, for example, and it was quite clear that despite the best efforts, it is virtually impossible for them to carry out their work because of the deficiency in terms of funding. I wonder if the Minister could indicate in the light of this Bill and its excellent provisions, if additional funding will be made available to cater for the greater requirement placed upon the services of the State in this regard.

I have already mentioned the question of the anonymity of the victim but it is important to underline it because the Minister referred specifically to it when he is talking about amendment No. 15. He said:

Amendment No. 15 relates to the anonymity of the accused. Part B is merely a restatement of what was already in the Bill. Part A, however, is new. It is possible that revealing the identity of the accused might indirectly reveal the identity of the complainant, for example, in a case where a man is charged with raping his wife. The purpose of this amendment and a related amendment, amendment No. 16, is to make clear that a judge should not lift the restrictions on revealing the identity of the accused until they have considered how that might affect the anonymity of the complainant under the provisions of section 7 of the Criminal Law (Rape) Act, 1981.

The implication, it seems to me, in that is that it is perfectly legitimate to reveal the identity of the accused once they have satisfied the condition in the second half of that clause. In other words, if they have considered how revealing the identity of the accused would affect the anonymity of the complainant and if the learned judge is then satisfied that by revealing the identity of the accused he will not be prejudicing the anonymity of the complainant, then he can go ahead and reveal it. I do not think that is right. The accused should be entitled to the full protection of anonymity until proven guilty. I return again to this notion that one is presumed innocent until found guilty by a court of law in this land.

Probably the worst punishment for the family, anyway, is the surrounding publicity. You are going to have somebody who may be innocent — supposing he was discharged and he would already have been punished by the publicity. There would be many people in a little local town in Ireland or even in the suburbs of Dublin who would say, "Well, you know, there is no smoke without fire. Why did they charge him? What was he doing?" That is very unfortunate and extremely unfair.

There are just two further points. I was glad to hear Senator Ryan introduce the business of indecent exposure. I rather agree with him. I do not think it is particularly pleasant, sanitary, or a hygienic thing to do when people get intoxicated and they urinate in public all over the place. I see it quite frequently in the inner city. It is unhealthy and disgusting but to fine somebody £500 or to send them to prison for a couple of months for doing this when, if you like, the balance of the mind is temporarily disturbed, is rather severe. The other point I would have to make is that people who do engage in acts of indecent exposure are, in my opinion, most times more to be pitied than to be feared. I believe that most people who expose themselves — flashers, or whatever they are called — are, very unlikely to move on to rape. They just get a cheap thrill out of showing off what they have got.

I recall, in fact, hearing a woman being interviewed on the radio and I thought she was remarkably sensible when she explained how a man had exposed himself to her in the street and she just looked at him and said "how silly". I am glad to say the man was completely deflated and he certainly did not do her any damage. I do not want to treat this with anything less than seriousness but for somebody like that there should be some form of remedial treatment rather than being jailed. Six months imprisonment seems rather harsh. Perhaps the Minister might comment on that.

My final point is a technical one. In a sense it relates back to this question of sexual assault as in the new section 4. I note the Minister stresses the fact that these new extended definitions of rape, and so on, are classified as a felony. That is a word that rather interests me because there is an antique provision in our law known as misprision of felony. Misprision of felony means that if somebody commits a crime which is categorised as a felony — and I think a felony is something that carries a penalty of over five years imprisonment, I am not quite sure — and reports the commission of this crime to a third party, that third party being thereby made aware of the commission of crime, that third party commits a criminal offence by not communicating knowledge of the commission of the offence to a prosecuting authority. This has substantial and serious implications, for example, for the confidentiality of the relationship between doctor and patient and between the priest in the Roman Catholic Church and the confessor in the sacrament of confession and bears particularly on material that we will be dealing with a little later this evening because homosexual offences are felonies. This means that under the law of the land at the moment — and it is directly relevant to the new section 4 because of the question of the theoretical non-existence of consent because of a difference in age — people who, for example, go to a counsellor or seek legal advice may be placing their adviser in a situation where by not reporting the crime or the alleged crime to the authorities, they are themselves committing a criminal offence.

Having made those few qualifications, this is excellent and forward-looking legislation. It is one with which we can be justly pleased. It is not perfect but very little in this life is perfect. I was pleased that Senator Ryan and others indicated that in this area we are in advance of our sister island particularly in terms of the question of rape within marriage.

I thank the Minister and congratulate him for introducing this fine legislation on which he has taken the advice of Members of both Houses. I look forward to the Bill becoming law very shortly.

Much of what I wanted to say has already been said. I will not detain the Minister. I congratulate him on this very imaginative legislation. He deserves a lot of credit. He has shown himself to be a mature and enlightened Minister and it is great to see legislation coming through that has so much support. Many people have told me how much they appreciate this Bill and how welcome it is.

Section 17 deals with a £500 fine for indecent exposure. Does that cover people urinating in public? As a city councillor I receive endless complaints about this. There is quite a big problem in the city of men urinating in the street after the pubs close. The gardaí have a problem in that the fine is only £2. Does section 17 cover it? If it does, many people will welcome it. It is just a habit with people. If more people were prosecuted then the problem would cease. It is a problem especially in Dublin.

I thank Senators from all sides for the welcome they have given the amendments which were made to this Bill in the Dáil and I thank them for their generous comments in relation to my handling of this Bill. A number of points were raised. I will not attempt to answer all of them.

In regard to the transfer of rape trials to the Central Criminal Court and the fear of delays in the Central Criminal Court, there is no appreciable delay in the hearing of criminal cases in the Central Criminal Court at present and I have no reason to believe that the transfer of rape trials to the court will change that position. The President of the High Court will, of course, have to make a judge available for more time in the Central Criminal Court to cope with these cases. The overall position in the High Court will become clear only after the arrangements have been worked for some time and I propose to keep the situation under review. I should point out that the delay sometimes associated with the hearing of civil cases in the High Court arise from a variety of factors which are not relevant to the hearing of criminal cases.

In regard to the civil legal aid scheme under which legal advice will from now on be available to rape victims, the position is, as I have stated, that my initiative may place extra pressure on the scheme but I envisage extra staff will be made available to the legal aid board for this purpose. Senator Honan raised the question of sexual offences against the mentally handicapped. The reason it was not dealt with in the Bill is that the matter was still under examination by the Law Reform Commission when the Bill was being drafted and handled. The report of the commission on sexual offences against the mentally handicapped has recently been published. It is now under examination in my Department and I will act on it.

Senator Norris raised the question of the anonymity of the accused. This is catered for in the Criminal Law (Rape) Act, 1981 where it is provided that an accused charged with a rape offence will remain anonymous unless and until he is convicted. In regard to revealing the identity of the accused, what we are dealing with in this Bill are applications by the accused himself to lift his own anonymity. There was no restriction on this in the 1981 Act. All amendment No. 15 seeks to do is to enable a judge who is dealing with an application from an acccused to lift his own anonymity to have regard to the anonymity of the complainant. This is particularly important in the situation that now arises where the exclusion of rape within marriage is being done away with.

Senator Ryan raised the question of indecent exposure and asked whether the behaviour he outlined was covered. The offence of public indecency covers all acts which offend against modesty and I am sure the situation outlined by Senator Ryan can now be tackled by the Garda. I share his concern that the fine was only £2. It has now been increased to £500.

A number of Senators raised the question of the treatment of offenders. To try to improve the situation and reduce the risk of people re-offending on release, various approaches are used by those dealing with prisoners. Individual counselling has up to recently been a major approach and this counselling is carried out by welfare officers, psychiatrists or psychologists and, of course, chaplins have a particular role to play in this area also. A group approach has been introduced at Arbour Hill Prison and the progress of this group will be carefully monitored to see what changes emerge. This multi-discipline approach is, I believe, appropriate and correct.

The general position in relation to the treatment of sex offenders is that programmes which prove successful will be continued and, where appropriate, extended. A point that must be emphasised is that there is no treatment or indeed assessment process to which people can be subjected which will lead to a cure. The efforts of those professionals dealing in this area must be commended but their efforts cannot be guaranteed to lead to success in any individual case. I should add that there can be no question that all sex offenders should have to undergo assessment and treatment. Apart from the human rights implications, what would be the value of a mandatory requirement that psychiatric treatment be provided in cases where the medical view was that the cause of an offence did not lie in any psychiatric disorder or where an offender simply refuses to speak with the psychiatrist?

I want to come back to the point raised in relation to anonymity of offenders. This was raised by Senator Norris. The anonymity of the accused is catered for in the Criminal Law (Rape) Act, 1981 which provided that an accused charged with a rape offence will remain anonymous unless and until he is convicted, so that is already covered.

I thank Senators for the welcome they have given to these amendments. It is major legislation and all sides in both Houses can be proud of the contribution they have made to the debate. As this is the final time I will speak on it, I would like to thank those who gave me advice, assistance and those who had consultations with me — members of the Rape Crisis Centre, other interested groups and individuals. I thank my own officials in the Department of Justice for the work and commitment that they have given to this legislation. I thank Members also for their words of praise and appreciation of my own efforts and I would be less than honest if I did not say that I am very proud of this legislation which is a major step forward in our enlightened approach to this horrendous crime. I hope the passage of this legislation will give psychological comfort and care to the victims of this horrendous crime.

Question put and agreed to.
Question: "That the Bill do now pass" put and agreed to.
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