I welcome the Minister for Justice, Mrs. Owen, to the House.
Death of Member. - Criminal Law (Incest Proceedings) (No. 2) Bill, 1995: Second Stage.
Question proposed: "That the Bill be now read a Second Time."
I am honoured to introduce this first piece of legislation in the Seanad today. It underlines the importance of the Seanad's work.
This is a short but important Bill which has been quickly introduced to deal with problems which have arisen out of two recent judgments of the Central Criminal Court in connection with an incest case dealt with by that court. I thank Senator Honan and Deputy O'Donoghue for the Private Members' Bills they have introduced to resolve those problems. Unfortunately, I believe that their Bills would not achieve that purpose. The effect of the judgements I have referred to is that information relating to the hearing of a prosecution for an incest offence cannot be disclosed. The result is that a health board social worker, for example, concerned for the welfare of a child incest victim, could not be told whether the child's offending father had received a sentence for incest. The social worker could not even be told that there had been a prosecution. This situation is manifestly damaging to the interests of victims and potential victims of child sexual abuse. It must be remedied without delay. The main purpose of the Bill is to provide this remedy.
For the avoidance of any doubt. I should say that in commenting on the adverse effects of these judgements — something which I must do in the course of my statement — I am not, in the same breath, implying any criticism of the judge who made the decisions. He dealt fully and carefully with the logic of the relevant statute. It is evident from his judgments that he was most unhappy with the conclusions he felt obliged to reach. The problem here is one for the Legislature, not the courts. The Bill does not deal with all of the issues raised by the judgments — only with those which require an immediate and obvious response, if we are to ensure the protection of victims or potential victims of incest.
With regard to the issues raised by the judgments, and indeed certain important issues in this area which are not affected by these judgments at all, it is, in my view vital, before we proceed to legislate, that we receive the opinions of others, including especially those with expertise in the area of child offending. To facilitate the necessary consultation process, I will shortly publish a comprehensive discussion paper on the issues involved. I will return again to this consultation paper in the course of my statement.
Before I proceed to describe the provisions of the Bill it would be useful, by way of background, for me to clarify what is involved in the offence of incest and to outline the details of the Central Criminal Court judgments I have referred to.
Incest is an offence which was created by the Punishment of Incest Act, 1908. Under section 1 of that Act, it is an offence for a male person to have sexual intercourse with a person who is, to his knowledge, his granddaughter, daughter, sister or mother. Section 2 is the counterpart of section 1 and it provides that the offence is also committed by a female who, with consent and full knowledge of the family relationship involved, has intercourse with her grandfather, father, brother or son.
Consent is not a defence to a charge of incest. In that sense it is an absolute offence which is committed once intercourse takes place. It should also be noted that where two adults within the same family engage in consensual intercourse, both the man and woman are liable to prosecution.
Incest is, of course, one of the charges that is frequently brought where a child has been sexually abused by a very close relative. One of the reasons for this is that, as I have mentioned, it is an absolute offence, in so far as a male person is concerned and an absence of consent does not have to be proved. Non-consensual intercourse constitutes rape and frequently both rape and incest are jointly charged. Similarly if a girl victim is under age the perpetrator may be prosecuted for the offence of unlawful carnal knowledge of a girl under 15 or 17, as the case may be, under section 1 or section 2 of the Criminal Law (Amendment) Act, 1935, in addition to incest.
As I have indicated, the Bill arises directly from the judgments of the Central Criminal Court in an incest case. On 1 February 1995, the court held that section 5 of the Punishment of Incest Act, 1908, continues to have full force and effect. That section provides that "...all proceeding under this Act are to be held in camera". The important words in this context are "in camera" because the court went on to rule that they must be taken to mean that all such proceedings must be held, to quote the court. "...in total privacy and secrecy with the admission of no persons, other than the immediate parties, including the Press... with the community at large not being entitled to know even of the happening of the case, let alone any sentence which might be imposed".
A further judgment was delivered by the Central Criminal Court on 17 February, 1995, in connection with the same case, in which the court ruled that it was precluded by section 5 of the 1908 Act from disclosing whether the accused had been sentenced. This was in response to an approach from the Eastern Health Board which had sought the relevant information because it was concerned for the health and safety of the children of the accused man.
In this particular case the accused man had been charged with two counts of rape and two of incest. He pleaded guilty to the incest charges and the rape charges were not proceeded with. The application of section 5 of the 1908 Act only arose in relation to the passing of sentence for the incest offences. In the light of its interpretation of section 5, the court determined that it had no discretion but to decide that sentencing should take place in the absence of interested parties — as distinct from immediate parties — the press and the general public.
The significance of the Central Criminal Court rulings lies in the way in which the court interpreted the words "in camera” in the 1908 Act. As far as I am aware, this is the first occasion that section 5 has been taken to have such a restrictive meaning. Up to now the practice in the Circuit Court, where cases in which the sole charge is incest are tried, has been to exclude the public but to permit the press to attend and to report on the proceedings subject to certain restrictions. Where incest has been joined with other charges triable in the Central Criminal Court under the Rape Acts, the practice has been to apply the provisions of those Acts which allow the general public to be excluded but the case to be reported by the press in accordance with a number of important conditions, for example, protection of the identity of the victim.
I should also mention that it would not appear to have been open to the State, or any other party, to appeal the recent Central Criminal Court rulings to the Supreme Court. The only way in which the Supreme Court could be asked to rule on these issues would be by way of separate legal proceedings which would have to be initiated in the High Court and it would inevitably take some time before the matter reached the Supreme Court.
I have received representations from various parties with an interest in the protection of children who have expressed very strong concerns to me about the effects of the recent judgments. I share those concerns and, in particular, I believe that we should not tolerate a situation, which arose in the case in question, in which information vital to the interests of a child should be denied to a caring agency such as a health board. Furthermore, I am personally convinced of the need to keep the public aware and vigilant of the fact that child sex abuse is actually occurring and that it is a crime of the most serious kind. I fully recognise that the holding of incest cases in total secrecy could have the result of gradually pushing the subject under the carpet. No right-thinking person wants that.
I also recognise that the judgments have given rise to anxiety among the Members of the Oireachtas. In that context I specifically acknowledge the Private Members' Bill which has been introduced by Senator Cathy Honan. While I have no disagreement, in principle, with what the Senator has sought to achieve, I am satisfied, on the basis of the advice available to me, that her Bill could, if enacted, create serious — though obviously unintended — difficulties in the law relating to sexual offences. Without going into detail in that regard, I might mention that the word "complainant" which would be applied to incest cases, through the Rape Acts, under Senator Honan's Bill would not be appropriate to a situation where incest is being charged arising out of consensual intercourse between adults. In the circumstances I regret that I could not support that Bill. Similarly, I am also afraid that I cannot accept the Private Members' Bill which has been presented in the other House.
In relation to the Bill which is being taken in this House today, there are a number of preliminary comments I would like to make. As I mentioned earlier, incest can be charged with other offences which are covered by the Rape Acts. This is something that very frequently happens in cases involving child sex abuse. The effect of the Bill in those cases will be to apply to them the provisions of the Rape Acts, which deal with the exclusion of the general public from court proceedings. This will mean that the in camera rule of the 1908 Incest Act will not apply; the public will be excluded from any hearing but the press may attend and report on the proceedings subject to certain restrictions; the anonymity of the victim will be protected; and the verdict and sentence, if any, will be announced in public. It is clear that, where they operate, these measures will fully address the concerns that have arisen out of the judgments of the Central Criminal Court.
In relation to those cases where the sole charge is incest, the Bill provides that the sentence and verdict, if any, will be announced in public and, while the in camera provision of the 1908 Act will otherwise continue in force, it will not be permitted to prohibit reporting of the sentence and verdict which does not identify the parties.
Senators may feel that the Bill should go further by, in effect, restoring the position whereby the media could carry detailed reports, as distinct from reports confined to verdict and sentence, in cases where the sole charge was one of incest. The Bill, of course, makes it clear that the pre-judgment reporting situation applies where there is a charge of rape as well as incest.
Senator Honan's Bill endeavours to deal with this point but not. I am advised, successfully. My best advice is that there are technical and legal difficulties in the way of applying the Rape Acts provisions, as they stand, to cases of incest. This has to do with the fact that incest can technically be deemed a consensual act where the parties to the offence are both adults.
Given that the number of cases where the sole charge is one of incest is quite small, and the sizeable risk that the legislative adjustments necessary to remove the technicalities to which I have referred would delay the enactment of the essential protections for abused children in this Bill, my judgment was that it would be better to provide the core protections now and deal with the technicalities surrounding the issue of detailed media reporting in my discussion document.
The net result of the course I have adopted is that social workers and other interested parties concerned with the protection of children, who need to have essential information concerning prosecutions, verdicts and so on for child sexual abuse, will be able to get that information, irrespective of whether the charge is one of incest alone or whether the incest charge is joined by a further charge. That is a crucial point. Where, as in the majority of cases, the incest charge is joined by a rape charge, the media reporting regime will be that applying under the Rape Acts.
I will, of course, be glad to listen to what Senators may wish to say on this point, in particular, on Committee Stage. I certainly intend to address the issue of reporting in my discussion paper. I am aware, as most public representatives who deal day in and day out with members of the public will also be aware, that the nature of newspaper reporting on child sexual abuse cases is a subject on which many people have views. It is right, in a democracy, that we provide room for debate on matters of this kind and it is absolutely vital that we acknowledge the enormous contribution made by the media in bringing the problem of child sexual abuse out from under the carpet and keeping it before our eyes. Far too many children have been the victims of secrecy and silence
While I am on the subject of the discussion paper, I should also mention that in it I also propose to raise the question of what reporting and related arrangements should operate in respect of other sexual offences where consent may or may not be an issue. In addition to incest these include the following: unlawful carnal knowledge of a girl under 15 or 17; sexual intercourse or buggery with a mentally impaired person; buggery of a person under 17; and gross indecency with a male under 17.
I also intend to ascertain whether there is support for having a similar regime of reporting in relation to the offence of sexual abuse. That offence, while it is provided as an offence in the Rape Acts, is not subject to the same reporting restrictions as rape offences in that regard, i.e. it is not an offence to prohibit the disclosure of the victim's name. Senators may query the need for including various matters in a discussion paper rather than proceeding now to legislate on those matters. I have decided on the former course, not out of any reluctance on my part to act, but simply in recognition of the wisdom of taking account of the views of individuals and organisations with recognised expertise on such matters before I act, and also because to do so in this Bill might cause a delay in dealing with this very important issue of the lack of protection of victims. What I am doing today in this Bill is ensuring that if a similar case arises again in our courts the victim will be protected. That is paramount in our considerations today. The victims of incest must be protected by our laws.
I am not referring here to legal expertise alone. I am particularly concerned to ensure that I have the benefit of the insight of individuals and organisations who have expertise in dealing with the problems of sexual offending generally, and a special understanding of the real needs of its victims. I would urge that Senators accept the good sense of proceeding with the benefit of insight. The sometimes obvious answer is not necessarily the right or complete one. I am not being critical of anybody but sometimes we can jump to conclusions as to how a complex matter such as this should be handled. I believe that the course of action I am taking today is the right one.
Having said that, I do not of course envisage that the process of consultation should be allowed to drag on indefinitely. The preparation of my consultation paper is already well under way and my plan is to publish it within weeks, with a tight timetable for the receipt of responses and a firm commitment and determination on my part to bring such further proposals for law reform as may be required in this area before the Oireachtas with minimum delay. I will listen very carefully to what Senators will say in the course of debate on this Bill on the need for further changes to the law relating to sexual offending.
I now turn to the provisions of the Bill. Sections 1 and 4 are standard provisions concerned with definition and the short title of the Bill and they do not require any special explanation.
The Bill has two substantive provisions which are sections 2 and 3 and in practice they will operate as alternatives. Section 2 is specifically designed to mitigate the effect of the very restrictive interpretation adopted by the Central Criminal Court in respect of section 5 — the in camera provision — of the 1908 Punishment of Incest Act. Subsection (1) provides that in all proceedings relating to incest the verdict or decision and sentence, if any, must be announced in public notwithstanding the in camera provision of the 1908 Act. This will mean that the general public and press will have a right to be present at that stage and the conviction and sentence will be a matter of public record. In particular, it will put it beyond any doubt that caring agencies with an interest in establishing whether or not an accused has been convicted of incest and sentenced to a term of imprisonment will be able to do so. In that sense the subsection overcomes the specific problem that was highlighted in the ruling of 17 February 1995.
Although the verdict and sentence will be announced in public and could disclose the name of the accused, section 2 will not allow general publication in newspapers or elsewhere of the names of the parties involved and the subsection makes this clear. It is obvious why that must be there: the name of the accused in an incest case will immediately identify the victim.
Subsection (2) of section 2 deals with a different matter. One implication of the recent ruling is that the requirement to hold the proceedings in camera means not only that the public or the press cannot have access to the proceedings themselves but that there can be no reporting of any kind of what went on in the proceedings. Up to now it has always been accepted practice that incest proceedings can be reported, provided that confidential matters are not revealed. If no reporting of any kind were to be allowed then important legal and social issues might never come to light. Accordingly, subsection (2) makes it clear that, notwithstanding section 5 of the 1908 Act, there will be no prohibition on a report of verdict and sentence in incest proceedings being prepared, and there will be no prohibition on such matters being published provided the identity of the parties and sensitive information is not given out. This will ensure that incest cases can be reported in the media and that they can also be appropriately covered in law reports etc.
In practice, section 2 of the Bill will only be relevant in incest cases where there is no associated charge of rape or aggravated sexual assault because the effect of section 3 is that section 5 of the 1908 Act will not apply to proceedings where rape is charged along with incest.
Section 3 is concerned with incest cases where both a rape offence and incest have been charged in the same proceedings and, in practice, it is likely to apply to the vast majority of incest cases which come before the courts, particularly those relating to child sex abuse. The main reason it has been included in the Bill is to prevent a situation developing where, because of the recent Central Criminal Court rulings, the court would feel it necessary to direct that joint incest and rape charges should be tried separately. I am sure Senators would agree with me that such a development would be wholly undesirable, especially since a victim could be faced with having to give evidence in different sets of proceedings.
Subsection (1) is the substantive provision and applies to proceedings which relate to both incest and rape, rape under section 4 of the 1990 Act or aggravated sexual assault. The subsection also specifically covers proceedings which "at any time, related" to both incest and rape. This wording is intended to include proceedings, such as the recent case in the Central Criminal Court, where the accused was originally charged with both rape and incest but at a later stage he pleaded guilty to incest alone and the rape charges were not pursued. In such cases the subsection provides that section 5 of the 1908 Act will not apply so that the proceedings will not be held in camera. However, section 6 of the 1981 Rape Act will apply so that the general public will be excluded but the bona fide representatives of the press and other persons permitted by the judge can attend, and the verdict or decision and the sentence, if any, will be announced in public.
Because of the link with the rape offence charge there is no need to make any specific provision for the anonymity of the victim. Section 7 of the 1981 Rape Act applies once a rape charge is brought and continues to apply, even if the rape charge is subsequently dropped. The wording of section 7 of that Act is such that it would be an offence to publish or broadcast, without a court order, the name of any party in an incest case where rape has also been charged. Section 8 of the 1981 Rape Act which provides for the anonymity, up to conviction, of the accused would also apply but it is of no significance as clearly in an incest case the name of the accused or convicted person could not be published without revealing the identity of the victim.
To sum up, this Bill is not being put forward as a solution to all the problems which have emerged following the rulings of the Central Criminal Court to the effect that section 5 of the 1908 Act requires that incest proceedings must take place in secrecy. Rather, it is intended to address immediately the concerns that arise from those rulings which can and ought to be addressed now. The effect is to make certain that the outcome of incest cases can be disclosed to interested parties and can be published in the media subject, of course, to certain restrictions. The Bill provides for these matters in respect of all incest proceedings.
I fully appreciate that there are other issues which also arise in that context and I propose to deal with them in a discussion paper. I will also be listening to what is said here in the House. I would, of course, be more than willing to consider any specific proposals Senators may have in relation to what might go into that discussion paper.
I believe that the approach I have adopted — to deal with the immediate problems now and the wider issues which arise after appropriate consultations — is the correct one and certainly the best way of ensuring that the legislation which is undoubtedly required in relation to the operation of section 5 of the Incest Act is enacted as quickly as possible. I could delay bringing in this Bill and run the risk of another similar incest case coming before our courts while we have discussions and another victim of incest could be unprotected by the rules which have existed since the Central Criminal Court decision. I will listen carefully to what Senators say on this Bill. If improvements or better solutions are proposed I will take them on board. My position when dealing with legislation will be not to keep a text simply because it is mine if a manifestly better solution is offered. I believe there is widespread general support for the provisions of the Bill and I hope and expect that support will be shared by Members of this House.
I realise Senator Honan's Bill may go further than this one but I ask Senators to recognise this is an urgent step which is required to change our legislation. While it may not do all everyone wants, it is better to pass this Bill and work on further provisions to ensure that the rights and safety of victims of child sexual abuse, however and wherever it happens, are protected in our legislation.
I welcome the Minister to the Seanad; this is her second visit in a short time. It is a compliment to this House that she chose to introduce this important legislation here. It is also a good idea to do so because it gives us a chance to deal with some of the issues the Minister is keen to address, perhaps not in great detail but covering the broader policy areas. I thank her for her speech, which set out the meaning of the Bill's provisions and some background as to her thinking on what is to come in the future.
It is good for democracy that the Legislature and the Executive can act quickly when a matter of this urgency arises. Since the original judgment by Mr. Justice Carney was delivered on 1 February and the second judgment on 17 February, we have had, barely a month later, in strict chronological order, Deputy O'Donoghue's Bill, the Progressive Democrats' Bill and the Minister's Bill.
Senator Honan's Bill came first, mine was second and Deputy O'Donoghue's was third.
I see. There has been no delay in the response of the Legislature and the Executive to this serious problem.
The nature of incest has not changed since 1908 but what has happened is that people are more aware, social agencies are more active in helping and people are more educated. We are increasingly aware of a problem which appears to be fairly widespread. I use those words carefully because as the Minister will agree we do not know the extent of the problem. I was informed that only 5 per cent of confirmed incest cases and confirmed child sexual abuse cases go to court. I do not know whether that figure is correct, nor what percentage of abuse, child sexual abuse in particular, is prosecuted or successfully prosecuted.
One point the Minister is seeking to address is the need for more information and I support her in that. Until we have the information we will not know the extent of the problem. That is a basic matter and in her consultation with the agencies the Minister will have been informed of the total lack of information. There are no national statistics on child sexual abuse and I ask her to address that as a matter of urgency in her consultation paper.
The position is similar in relation to rape cases. Only 30 per cent of such cases reported to the Rape Crisis Centre are reported to the Garda. Not everyone who is unfortunate enough to be a victim of rape makes a complaint; and of those cases that are reported only 30 per cent are prosecuted by the Garda. A small proportion of those will be prosecuted once the DPP has made a decision. Although the Bill is primarily about incest some of its provisions address rape. The Minister will accept that in relation to cases of incest and rape we do not have a full body of knowledge. The Minister is anxious to deal with the problem but we cannot do so comprehensively unless we have adequate information.
In 1908 there was no television, the cinema had barely started and there were some newspapers being sold on street corners. There were no active media. When it was decided that incest cases would be heard in camera there was unlikely to be a furore about it. Although humanity's interest in crime has always been intense, censorship acted at that time to deny the public an interest in these cases.
The Minister has correctly pointed out the implications of the two recent decisions, the principal one being that of Mr. Justice Carney on 1 February 1995. The National Newspapers of Ireland said it would launch a constitutional challenge but it appears the Minister's advice is the decision was not necessarily a bad one and may have been correct on the law as it stands.
That is not quite what I said.
She basically said that had the 1908 Act not been brought back into force by the 1961 Act it would have been repugnant to the Constitution.
That is correct.
As it was mentioned in the 1961 Act the previous provisions gained a measure of constitutionality. The Constitution states the administration of justice will be conducted in public save in accordance with law. We as legislators will have to decide, in respect of any class of cases, whether this is to be one of the exceptions to the principle that justice be administered in public.
I do not think anyone will advocate that incest cases should be reported in public and I would disagree with anyone who did. As the Minister said the first principle of all legislation dealing with such cases is that the victim must be protected; that must be the primary and paramount consideration. Where the case is proven, victims' lives may have been shattered or ruined. They may never recover; they may have had their childhood stolen from them.
The least they can expect from us as legislators is the protection of anonymity. After a case, they should be able to pick up the pieces of their lives and proceed in a dignified and private way. There is no question that the identity of the victim must be protected. Such protection must be strong, vigorous and beyond the discretion of a judge. This may have to be teased out on Committee Stage.
The final sentence of section 2(2) which states "and do not include information that the judge or the court has directed should not be made public" seems to give the judge a discretion. It would, of course, be dangerous to fetter totally the discretion of a judge hearing a case because there might be exceptional cases where something would have to be mentioned. However, as a general principle, the revelation of the identity of a victim should almost be beyond discretion. Any legislation doing that will have my support and that of the Fianna Fáil Party.
I echo the Leader of our party in the Seanad in saying that we will not, in principle, be opposing this Bill. We commend what the Minister has done because there is an urgent need, especially vis-á-vis the health and welfare agencies which, acting on behalf of the people, have a legitimate interest in finding out whether a child who has been abused is in danger of being abused again. In so far as the Minister's Bill focuses primarily on the ambition to protect the identity of the victim and the need for welfare agencies to protect the victim from further abuse, it is to be supported. I am happy that section 2 (1) achieves that. There might be room for some amendments. I ask whether the word “charges” should be included with the verdict, decision and sentence but again that is a matter for Committee Stage.
The Minister has done something which is sometimes done to us in local authorities and she will be aware of this, having been a member of a local authority. Members may propose something to the city or county manager who will say that he or she has taken advice on the matter and that it cannot be done. The Minister will know from her own experience that this can be very frustrating because when one asks to see or argue against the advice, the manager replies that he or she has the advice of the law agent and going against it could mean that the authority would be surcharged, abolished or get into difficulties. The Minister is, to an extent, using that device. She said that in considering the two other Bills which were published — the Progressive Democrats' Bill and the Fianna Fáil Bill introduced in the Dáil by Deputy O'Donoghue — her advice was that the inclusion of the word "complainant" might introduce legal difficulties and technicalities.
It does.
I will not disagree with the Minister, not because I am not capable of it but because I do not have the time, resources and expertise which were available to her. I accept the bona fides of the Minister when she says that she will come back to the Oireachtas with more wide ranging proposals. Having said that, we have to deal with the document before us and ask whether it is a good Bill.
I have to say that parts of section 2 (2) give me difficulty. It states "nothing in the said section 5 shall be construed as prohibiting the publication of reports of proceedings...". Reports of proceedings are not defined. Could it be open to the interpretation that it is merely a legal report of proceedings? That question will have to be addressed. The subsection continues "...that do not identify, or include anything likely to lead members of the public to identify, a person involved in the proceedings and do not include information that the judge or the court has directed should not be made public". I have already referred to the issue of judicial discretion and I will return to it.
Reporting of proceedings has to be addressed because, although there are disadvantages, it is better that society be allowed report in a general way on these cases. We must of course protect the identity of the persons concerned. There are people who say that some of the reporting of sexual offences is lurid while others say that it is merely designed to sell newspapers or increase circulation. However, another argument is that Ireland, as a country, has learnt from the reporting of these cases.
It is a question of balance.
I agree it is a question of balance and there is no easy answer. The recent terrible case from the west of Ireland was an incest case. Perhaps the Minister knows why it was reported notwithstanding the sanction of the 1908 Act.
There were other charges involved.
Yes. However horrible that may have been, it may have helped us to grow up as a nation. It may help us learn something about ourselves that, since 1908, has been swept under the carpet. The Minister said that in her own speech. We may have to report these matters for a while in order to become aware of the nature and extent of the problem.
It is important for sociologists and people working for the agencies dealing with child abuse and sexual abuse to know the detail of some of these cases. This is the central criticism of this Bill. As the Minister said, it maintains the in camera status of incest cases, meaning that people from the welfare agencies, the rape crisis centres and the child support agencies will not be able to attend these court hearings. The Minister will agree that is correct.
I am not sure if the Minister intends to address this in the future but the point is often made by the agencies that the victim in many incest cases can be so alienated from their family that they do not want a member of the family with them and would often prefer to be accompanied by a friend. That is a very important point. Even though this is an emergency Bill, it offers an opportunity to the Minister to consider allowing friends of victims of child sexual abuse and incest to go into court with them to assist them through their trauma. That is not to say that people from the agencies should be prosecutors or persecutors. Victims need support and there is a case for allowing people from support agencies to go into court with them as a friend.
Section 3 of the Bill can be referred to on Committee Stage. It is an important technical matter. There will not be much disagreement on it because it remedies an obvious problem. Subject to the legal advice the Minister has, I believe that the remedy proposed by Deputy O'Donoghue was a very good one. The proposal was to take the provision in the 1990 Criminal Law (Rape) (Amendment) Act which deals with the attendance of other people in court and simply apply it to incest cases.
Section 11 of the 1990 Criminal Law (Rape) (Amendment) Act, in relation to rape and sexual assault cases, states:
...shall exclude from the court during the hearing all persons except officers of the court, persons directly concerned in the proceedings, bona fide representatives of the Press and other such persons (if any) as the judge, the justice or the court, as the case may be, may in his or its discretion permit to remain.
Section 11(3) is very important. It states:
Subsections (1) and (2) are without prejudice to the right of a parent, relative or friend of the complainant or, where the accused is not of full age, of the accused to remain in court.
The Minister may correct me, but, as I understand the Bill, if these proceedings are to maintain their in camera status, there is now the possibility that parents, relatives or friends would not be allowed into the courtroom if a judge took a very restrictive view of the 1908 Act. The Minister is shaking her head so I think she will assist me in this matter. It would be a terrible result if — to use a horrible phrase — the friendly parent of a child sexual abuse victim was not allowed in court. It would also be terrible if the friend or relative of such a victim was not allowed in court.
I welcome the speed with which the Minister has introduced this Bill. I fully endorse the part of the Bill which undoes the inability of health care agencies to get vital information from the courts about prosecutions under the incest Act. However, I wish to insert a caveat in relation to section 2 (2), which requires further consideration, and the Fianna Fáil Party will be most constructive in seeking to amend the Bill on Committee Stage.
I welcome the Minister to the House and congratulate her on producing her first piece of comprehensive legislation as Minister for Justice. I also congratulate her for the speed with which she has responded to the decision of the court in the matter of DPP v. W.M. It is important that such issues are responded to as quickly and comprehensively as possible. The Minister has made it quite clear that to take a full and comprehensive approach would take an inordinate amount of time and the situation at present, which is totally unacceptable, would pertain during that time. We welcome the speed of the response and it is important to acknowledge it.
When delivering his judgment on 1 February in the Central Criminal Court, in the case of DPP v. W.M., Mr. Justice Carney was well aware of the anomaly created in the administration of justice by his judgment that incest cases must be heard in camera. As the judge said, whatever the law states, hundreds of people, whether directly involved in the case as members of the jury panel or through reports passed by word of mouth, will effectively penetrate the secrecy in every detail. In other words, there is no such thing as absolute secrecy in such situations.
However, nothing can appear in the newspapers or the broadcast media. Under the law as it stands, they are forbidden to report on what is one of the most frightening and important aspects of Irish life in the 1990s. As the law stands, the public must remain totally unaware of the nature of the crime, the torture it inflicts on victims, often for many years, and the extent and type of terror imposed on the family involved in such crimes. I congratulate the Minister for moving so quickly to address the immediate problem which has arisen as a result of the decision on 1 February and the statements on 17 February in the Central Criminal Court.
The Minister has acted with a sense of urgency to introduce amending legislation to deal with the ruling that section 5 of the Punishment of Incest Act, 1908, precludes the disclosure of the verdict and sentence in the case of incest, even to a health board official and others involved in the caring professions who are perhaps responsible at the time for the child victim. It inhibits and restricts the treatment and response of the caring professions to a victim who may be experiencing extreme difficulties.
In our democracy, it is most important that one of the most dreadful crimes must not be judged in secret. The public is entitled to know that such cases exist and the details of any sentences which are imposed. There must be transparency regarding the application of the law. The situation at present is unacceptable and reading through Mr. Justice Carney's impeccable judgment, it is clear that this is also his view. The 1908 statute, which introduced in camera hearings for incest cases, lapsed as a result of the Constitution, which allowed secrecy only in special and limited cases as defined by subsequent legislation.
It was revised by the 1961 Act, which effectively reintroduced the provisions of the 1908 Act. It has survived further changes in the law which have given the media a right to attend and report on rape cases, subject to certain safeguards. The legislation passed in 1981 and amended in 1990 did not extend to incest cases, though there is no conceivable reason why all sexual crimes cannot be treated in exactly the same way as under those Acts.
What in the 1908 Act was suppressed, in order to maintain the fiction of innocence in family relationships, provides a poor guide today when suppression means that many young victims are kept in a state of ignorance about the crime to which they are subjected. Ignorance means that they remain vulnerable to exploitation and are discouraged from seeking help. It is intolerable that a law which has this result should remain on the Statute Book.
The Bill provides that in every case under the Punishment of Incest Act, 1908, the verdict and sentence, if any, must be announced in public. This means that the fact that an incest prosecution has taken place and the sentence is a matter of public record. This is as it should be; it is important that such information is available to the public.
It is important for the credibility of the administration of justice and the agencies of justice, from the Garda to the Judiciary, that the public is informed of what is happening and how the process is used. Secrecy breeds suspicion. It is a main plank of our democratic institutions that the public is informed of the application of justice. This information oils and enhances the acceptability of the system. It is important that the Bill also ensures that persons with an interest in the outcome of particular cases will be able to establish whether the accused has been convicted and, if so, the sentence handed down by the courts. I have already referred to these agencies.
The greater openness in recent years about the crime of rape, as mentioned by Senator Mulcahy, has had a salutary effect on public understanding of the issue. It has made it easier for victims to come forward and give evidence. Incest imposes even greater psychological and social barriers to disclosure and this must be acknowledged. I am pleased the Minister has responded so quickly to Mr. Justice Carney's ruling which highlighted the inadequacy of the present legislation.
It is important in cases of incest that the victim is fully protected. In the Bill the approach proposed by the Minister is that where a verdict or sentence is announced in public no information which is likely to lead to the identification of the persons involved in the case may be published. Specific provisions are also made for the reporting of incest cases provided the identity of the parties is protected and confidential information is not disclosed.
The Minister has stated that in a further examination of the effects of these rulings consideration will also be given to amending the legislation further to bring it into line with the conditions that exist for the attendance of the press and certain other persons as allowed under the Criminal Law (Rape) (Amendment) Act, 1990. The Minister has pointed out that the inclusion of wider reporting facilities in this amendment would have caused undue delay in tackling the immediate problem of lack of disclosure of the verdict and the sentence to the caring agencies.
I welcome the provision made in the Bill to cover cases where a person is charged with incest and rape or an aggravated sexual assault, which is almost invariably the case. There is a potential conflict between the recent Central Criminal Court interpretation of section 5 of the Punishment of Incest Act, 1908 and the Criminal Law (Rape) Acts, 1981 and 1990, under which the public is excluded from hearings but the press and certain other persons may attend, and the verdict and sentence must be announced in public.
To remove this conflict the Bill provides that where incest and rape are charged jointly the provisions of the Acts dealing with rape will apply in so far as attendance at the proceedings is concerned. This will also be the position where a person is originally charged with both rape and incest but the rape charges are not proceeded with.
Child abuse is a fact of Irish society in the 1990s. It must be recognised and eliminated as far as possible. Everything possible must be done to help eliminate it. No resources of the State must be spared in doing this. The State has a special duty to children and it must respond to its responsibility with all available resources. Abuse or neglect is not confined to children too young to run away or to inform the authorities. It exists in all communities; it occurs in settled rural communities just as it may occur in high social stress urban areas. Social isolation may be a feature in families in which incest, child abuse or neglect occurs.
As has been shown in several high profile cases in recent times, ongoing contact with services is, unfortunately, no guarantee the abuse will be identified and stopped. Professionals can often find it impossible to get to the truth. This problem must be addressed; there must be an acceptable code of practice or procedure of co-operation for parents. We do not want such a code to be overtly intrusive but professionals too often find cases where resistance, deceit, hostility and even threats or intimidation can thwart their best efforts in trying to obtain information where incest and abuse is suspected.
It is a thankless task for a lone professional to visit isolated and sometimes hostile households, especially if the professional is a young person and is alone, as often is the case. We should acknowledge the debt we owe to individual social workers. We need to ensure they have the legal powers, training, supervision and physical back-up to protect the child, to help them preserve their own objectivity and good judgment, and to guarantee their physical safety in doing their work.
For the authorities to act in a case of incest, child neglect or abuse they must first know about it. That may sound obvious but it is important. The victim must be able to tell and be heard and adults must be able to speak for the child. Victims are often isolated and intimidated into silence, even where they are old enough to speak for themselves.
Adult relations or even professionals may also be intimidated, ignorant of the harm being caused to the child. They may fear the consequences of reporting for themselves, or the consequences for the child of telling the authorities. They may fear legal or physical retribution, or may feel in some way contaminated by association with the terrible events they know about. Sometimes adults wonder whether action will be taken by the authorities which will improve the child's position. Cases of abuse of children while they are in care for their protection indicate how such doubts are not necessarily unfounded.
What is to be done to ensure that cases come to light in time? First, it is essential for all professionals and citizens to believe that abuse and neglect occur, and that abuse and neglect are harmful and, sometimes, potentially lethal. This may seem obvious but we are still in a stage of understanding what is happening in society in this regard. Second, it is essential that everybody be alert to the possibility that children may be suffering maltreatment in the most unlikely situations and at the hands of the most unlikely perpetrators. Third, parents, teachers and, indeed, all of us must listen carefully to what children are trying to tell us in words, appearances, behaviour and body language.
In response to the problem of finding cases in time there have been frequent calls for the introduction of mandatory reporting. Mandatory reporting is in operation in a number of jurisdictions abroad and places a legal duty to report concerns or suspicions of child abuse on named categories or professionals, for example, doctors, social workers and teachers. Those who favour it see mandatory reporting as a way of making sure that no known or suspected cases remain hidden because of professional ambivalence or fear of repercussions.
Those who oppose it worry that it could lead to a flood of referrals, not all urgent, which would snarl up an already hard pressed system and distract attention from the really serious new cases and from the routine work necessary to support the monitoring of existing cases. I do not know if this is an issue for consideration by the Minister for Justice as it may be in the Minister for Health's ambit. However, it is important this aspect be looked at in the broadest sense to see how it would operate in practice in present circumstances.
What needs to happen to reduce the risk of such cases? Over the past few years we have called for the full implementation of the Child Care Act, 1991 and the recommendations of the report on the Kilkenny incest case. We have had comprehensive discussions on them in this House and they are being mentioned again. We should let health boards address the factors which inhibit people from making referrals, including misunderstandings on how cases should be dealt with, and must ensure legal immunity for those who make a referral to the authorities in good faith out of concern for the child. Key professionals like casualty officers in hospitals, general practitioners, teachers, psychiatrists and psychologists should receive intensive training on their role and responsibilities in these cases.
I want to refer to an important statement on children made recently by the Minister of State at the Department of Justice, Deputy Currie. He said that too much emphasis may be placed on the perpetrator rather than on the child victim at the centre of the case. In cases of this nature our focus has to be unambiguously child centred. A crucial and central factor to this and other recent cases have been the breach of trust in child-adult relationships. In any area where an adult is in a position of responsibility, either explicitly or implicitly, for a minor, it is clear that great power for good or ill is vested in the adult. The maintenance of relationships of trust between an adult and a minor is of particular importance in all areas of child care. Indeed, it is central and essential that a grave abuse of trust by an adult in relation to a child should be regarded with the utmost severity by society. We cannot over-emphasise what the Minster of State has stated with regard to this matter. Indeed, in traditional, so called unsophisticated societies, violations of a trusting relationship involving children and females were taboo, putting the perpetrator outside the pale of society.
I welcome the fact that the Minister is publishing a discussion paper. The complexities surrounding this area must be fully explored and the views of all the relevant organisations — the NGOs — who have an interest in this area must be considered. This is an important consultative process which ensures that when the legislation is finally introduced, it covers all aspects of the situation. All the interest groups and caring organisations should feel that they have had an input and can feel that they have ownership by virtue of the fact that they were consulted. It is important when legislating that we have the confidence of the people who are closest to this issue. Surely there must be nobody closer than the caring associations. The Minister is correct in ensuring that time is taken to introduce the final legislation in this area while correcting the immediate problem. I am confident that the Minister will introduce the legislation as soon as possible because it is urgently required.
I welcome the fact that the Minister will extend the area with regard to reporting and related arrangements in respect of other sexual offences where consent may or may not be an issue and that she will include the area of unlawful carnal knowledge of a girl under 17 years of age, of sexual intercourse or buggery with a mentally impaired person, buggery of a person under 17 years of age and gross indecency with a male under 17 years of age.
This Bill, as the Minister has said, is not being put forward as a solution to all the problems that have emerged following the ruling of the Central Criminal Court to the effect that section 5 of the 1908 Act requires that incest proceedings must take place in secrecy. It is important to address the concerns that arise from these rulings and we welcome the fact that this is happening. It is important that the outcome of incest cases can be disclosed to interested parties and published in the media, subject of course to the restrictions contained in the Bill. The Bill provides for these matters in respect of all incest proceedings.
The Minister has said that she fully appreciates there are other issues that give rise to concern and they will be dealt with in the discussion paper.
I commend the Minister for introducing the Bill in this House. This House is in a unique position, because of our role and the elective process, to consider these matters and deal with these issues in a more apolitical and objective way than the Dáil, as we have already seen from Senator Mulcahy's contribution. A development like this should be encouraged. If there are restrictions in doing this, the House should take them on board as well. I again commend the Minister for bringing this Bill to the House.
From one constituency colleague to another, I wish the Minister well in her new portfolio. It seems to be a tradition in north Dublin that we provide Ministers for Justice on a regular basis. I also welcome the Minister's commitment to listen to what Senators have to say. However, I am afraid to tell the Minister that those are the most positive comments I will be making.
I do not have any great problem with the contents of the Bill. It meets the needs that arose out of Mr. Justice Carney's judgment. My concern lies with what is not in the Bill and I am not prepared to put this on hold any longer.
I would like to quote from the Punishment of Incest Act, 1908: "Any male person who has carnal knowledge of a female person who is to his knowledge, a granddaughter, daughter, sister, mother etc. shall be guilty of a misdemeanour". I do not believe the Minister is happy to allow incest to be continued to be described in this fashion in our law. It does not reflect the Minister's views on the matter. At the end of the day, I could not support a Bill which does not even seek to address that issue.
In her speech, the Minister clearly explained the issues that brought her to the point of producing this legislation. However, this Bill is not enough. It is not acceptable for the Minister to say that it is not enough and that she will come back with more. This is the time to do it. After all the pain, suffering, angst, debate and rhetoric following the apparently unceasing stream of child abuse cases with which we have occupied ourselves over the last two years, it is incomprehensible and reprehensible that the Government should continue to hold the view that incest is merely a misdemeanour. We are dealing with this problem on a day to day basis.
The Bill is minimalist. It is almost invisible in addressing the issues. It fails to address those aspects of incest and child abuse which have regularly impacted on and occupied all our minds over the last few years. The Bill in its present form is unacceptable, not for what is in it but for what should be, which I hope can be added to it during the course of discussion in this House. It is inadequate because it does not deal in any additional way with the protection of children or in the punishment of offenders. It allows incest to remain a misdemeanour and a crime less serious than rape. It does not deal with sexual assault and fails to protect children from rape.
This Bill sends out a most negative signal. I must put it in a context which I know will make the Minister feel as uncomfortable as it makes me. We are in breach of the UN Charter on the rights of the child — I have said that many times — but closer to home, we have failed to implement more than 50 sections of the Child Care Act and the recommendations of the report on the Kilkenny incest case. We may now be failing to grasp an opportunity to protect young people from rape, incest and child abuse. Somebody must shout stop, but who will if the Minister does not?
I would like to clarify something Senator O'Toole said. In 1993, under the Criminal Justice Act, the offence of incest was changed dramatically by introducing a maximum penalty of 20 years. The misdemeanour argument which the Senator made was addressed in 1993.
I am aware of that and it is a valid point. I would like to give an example as to why it should not be a misdemeanour. Members will have read about a horrific case in the newspapers three weeks ago where an uncaring, irresponsible father forced his son to have sex with his daughter. This father is not guilty of any offence under this legislation because the crime is a misdemeanour. I will put down an amendment to replace the word "misdemeanour" with "felony" so anybody who aids or abets such a crime is himself or herself guilty. That was the point I was making. I accept what the Minister said but I hope she will accept my amendment. I will also put down an amendment which will do something similar to what was done in the 1993 Act, except I will give discretion to the court to leave it at imprisonment for life without a minimum sentence. There is a minimum sentence in the 1908 Act, although I am not enamoured by minimum or mandatory sentencing policy.
I want to take issue with another point in the Minister's speech which, I believe, is inadequate. The Minister said: "Consent is not a defence to a charge of incest. In that sense it is an absolute offence which is committed once intercourse takes place". That is another major flaw in this legislation. To indicate that incest can only take place in the event of proven full sexual intercourse is unacceptable. The Minister must include sexual assault in the category of incest. I will put down an amendment to include sexual assault as described under sections 4 and 12 of the 1990 or 1981 Act. That will, therefore, constitute incest in this area.
I would like to make another point about that comment in the Minister's speech. I am not speaking as a lawyer — I have taken no legal advice — but as a politician. It states that it is an offence once intercourse takes place. I have already given one reason why I have difficulty with that and why it should include sexual assault. Section 1(3) of the 1908 Act states that if any male person attempts to commit any such offence he shall be guilty of it. It is not right that somebody is guilty only if intercourse takes place. There is also attempted sexual assault. This is unclear in the Bill because it does not define incest so I must go along with what is written there and what has been done in the meantime in terms of amending legislation. This issue must be addressed.
We talk about sexual intercourse between people who are under age and what we must do about it. Ten years ago a Member of this House and of the Minister's party lost the whip on the basis that he refused to accept that criminal responsibility should be set at seven years of age. I was not a Member of the House at that time — I was outside the gate protesting. I am still sore about criminal responsibility being on a par with the lowest in Europe.
An eight year old can be found guilty and held responsible for taking a decision to murder somebody under our legislation, but a 13 or 14 year old cannot give consent to sexual intercourse. I am not raising that issue, but the reverse side of it. Because he or she does not have the legal entitlement to give consent, he or she cannot refuse it. Hence we have come up with an extraordinary crime — unlawful carnal knowledge. If an under aged girl is forced to have sex, it becomes unlawful carnal knowledge. Words are important and the Minister knows that is rape and should be called rape. Somebody said to me that unlawful carnal knowledge sounds good or, at worst, it is no more than looking at a dirty book. We must address these issues. I will put down another amendment to include sexual assault under incest.
I got post last week from teachers who were appalled at the judgment in the X case. I cannot come to terms with that, but I will not go into it now. Senator Neville spoke about the involvement of teachers and other workers in this area. I plead with the Minister to bring in mandatory reporting as soon as possible. The only way teachers, who are the same as neighbours, care workers and others in charge of children, can be protected is if they do not have to decide whether they should or should not pass on information. It should be part of what they do.
The worst thing about the 1908 Act is that it reflects that time when the family was inviolable and the father ran the family. If he did something wrong with his daughter, it was a misdemeanour. I take issue with Senator Neville who said child sexual abuse is something we must come to terms with or is something of modern times. It always happened, but has only now come to light. Attempts were made to deal with it in 1908. The Minister now has an opportunity to deal with it and the issues I raised.
I am not an expert in this area; I am simply responding to this legislation as an ordinary punter who has experience in the teaching area, who is an elected public representative and who, like the Minister, must respond to what people are worried about. I note that Senator Honan has put down a strongly worded amendment. The arguments she put forward are valid and I look forward to hearing her develop them. I will listen to the Minister's response to Senator Honan. I am not ready to vote against Second Stage of the Bill because I am not opposed to its contents and I would be hypocritical or foolish to vote against something I have no fundamental disagreement with. However, I fundamentally disagree with the Minister's decision not to make the Bill more comprehensive. I therefore hope that we can take the Minister at her word, that we will make the changes on Committee and Report Stages of this Bill. By Report Stage we should have made significant changes on issues on which I do not think there is any great difference of opinion in terms of Government policy or the Minister's own views. They are issues which will not cost the taxpayer a bundle of money. I ask the Minister to let this Bill run a bit, broaden it, listen to what we put forward. We will put forward amendments in good time, change the words, make them fit in a bit better and make sure they relate to other changes in legislation. Let us move forward on that basis. We have a huge problem in that it is not an amending Act as it sets out to be; in some of the documentation it mentions that this is an Act to amend the punishment of incest.
It is to amend a very specific problem that has arisen which needs to be tackled immediately.
I accept that point. I am putting the case to the Minister. I have given her a clear signal on three or four areas and I will put down amendments tonight which I have just finished drafting. I ask her and her advisers to look at them very closely. The arguments I put forward are arguments on which both sides, including herself, agree. The Minister is at the disadvantage that I know her well enough to know her views on many issues. I ask her to respond to them in the open way which she has done in regard to other issues in the past and to accept them.
I intend taking a very active part on Committee Stage of the Bill. In the meantime I put it to the Minister that incest deserves a heavier penalty and that there are other reasons why I would wish it to be seen as a felony rather than a misdemeanour. I gave one reason in regard to aiders and abettors. Another reason is this — correct me if I am wrong — but in regard to a felony the Garda are allowed to arrest somebody on suspicion of the offence. This is a signally important issue in this case, because if we are talking about it being brought to the attention of the appropriate agencies and the Garda, and if the Garda are of the view that a child is at risk now, they should be able to do something immediately without having to wait to get a warrant or whatever would be required. I could make a lot of arguments why this should be a felony rather than a misdemeanour. Another argument would be the label. A person who does something like this should clearly be a felon in the eyes of the State.
That is my first input into this Bill. I hope I have given the Minister food for thought. I hope she will respond to what I have said in the general area and that she will move away from the minimalist response which I agree and accept was required of her in terms of responding to the judgment. I do not disagree with the point she made in that regard. I have indicated some of the areas — there are some more — which should be dealt with. We need to give a clear signal out there to people who are worried, to parents, people in the care area, the educational area and the medical area who are worried about this, and to politicians who want to respond in a responsible way to the needs of the community.
I ask the Minister to take on board some of the things I have said. I will listen carefully to her response at the end of Second Stage. I look forward to Committee Stage and Report Stage. I will not take up any more of the House's time, but I will plague the Minister on the next two Stages.
I look forward to that.
I have listened with interest to the debate which I think will be helpful to the Minister in dealing with the broader issues. I compliment the Minister on reacting so speedily to the recent cases which brought this about and on bringing the Bill to this House. I listened with interest to her speech and it gives a good outline of the background of this case and of what we are dealing with. It is helpful to all of us in that sense. A deliberate attempt was made to explain the issues in great detail. In many ways I suppose it also pre-empts our concerns and attempts to limit what we can deal with in this particular Bill. I do not know if that is a good or a bad thing, but it certainly will not stop the Members of this House from addressing all matters relating to sexual crimes generally.
As I said, the Bill deals with a very specific issue. It is limited to that and deals simply with an amendment to what was section 5 of the 1908 Act. As Senator O'Toole has said, it is only necessary to read that Act to know the level of importance that was given to such offences at that time. The fact that the provision still exists in any shape or form is a surprise to me in view of the fact that we have seen so much reforming legislation in various areas. Section 5 survived critical amendment through other legislation such as the Criminal Law (Rape) Act of 1981, the subsequent Act of 1990, the Criminal Law (Incest Proceedings) (No. 2) legislation in 1935, and other legislation on similar matters, so it goes to show that sometimes legislation is not amended where required.
I suppose it is human nature but we must all make it our duty to watch out when dealing with a particular Bill that we deal with it in a comprehensive fashion and in a way that does not leave loopholes such as this which has managed to exist from 1908. As has been said, I welcome the Minister's commitment towards introducing a comprehensive discussion paper. I am very keen that that is not put on the long finger. I believe the Minister mentioned a number of weeks. That is crucial because it is not so much that it is in the news this week but some of us are particularly interested in this area of law and it is not something that we would like to see put on the long finger.
It is our duty as politicians to legislate in areas which are now a matter of particular public concern but which have always been a matter of concern. I have not actually seen Senator Honan's Bill and for that reason I will not comment on it, but the areas are quite complicated and quite wide ranging; we must look at every issue involved. It impinges not just on the criminal law and the Minister's brief but also on education, child care legislation etc. We must take the overall view of what is needed at this time and hopefully address that in legislation within a short time. It is not, as I said, something that can be dealt with later; it is extremely urgent. It is on the basis that we will deal with the other issues in a comprehensive fashion very shortly that I will support this Bill.
It is vital that information be given in the interests of the child. It is not helpful to anybody to keep that kind of information hidden away. The carers in our society, whether they are psychologists, doctors, teachers, the health board, whoever, are entitled to vital information such as that. It is about time that was made quite clear. The Bill is effective in what it seeks to do in that narrow sense.
There are a number of matters that I hope to deal with in this debate. They may be disjointed, but they are all matters of consideration and one of them is the issue of mandatory reporting. It is something that we must address. People have a job, whether they are social workers or whatever, they work from 9 a.m. to 5 p.m., they deal with the same types of problems on an ongoing basis. It is possible that they become cynical or used to it. It is possible they feel helpless in the whole situation, where the Garda come in and where they do not, but mandatory reporting would solve all of that. It would be crucial and vitally important for everybody who becomes aware of a possible abuse to report it. That is only a starting point, so we must have that.
In relation to in camera proceedings, maybe Members of this House will remember that I raised this matter in relation to family law cases quite recently, because it is something that applies there also. Family law cases are also held in camera, as we know, and are not reported as a result. This means we are losing out on a vital source of information regarding family law. This should not happen in a society where we must address this issue and where legislation is being introduced to deal with it. We are losing out on vital information of which the public, experts and judges need to be aware.
While I respect the necessity for confidentiality for the parties involved, we would be able to benefit from proper reporting. Headlines which announce a case do not reflect the facts. Journalists have a duty to behave responsibly in these matters. Reporting is of benefit to the public and law reporting is crucial, because judges who implement the law can only base their judgments on information before them. If they lose out on information about how these cases are dealt with in other jurisdictions, then they lose out on valuable information on which to base their judgments.
Much has been said about the fact that the victim must be spared the trouble and difficulty of being forced to give evidence. However, if a case goes to trial, that person has already given evidence to carers who have come to their assistance, to the Garda Síochána, solicitors and barristers. As a result, it will not be a big hurdle to jump when it goes to trial. This saves the victim the trouble of giving evidence, but it also saves the accused from having to listen to the victim's detailed report of what happened to them and how they were affected by it. It would be a lesson to any convicted person to be forced to sit and listen to such evidence. Our law does not address these procedures and, therefore, we must examine it.
It is easy, as I have seen in many cases, to give evidence in camera when one knows there will be no adverse response or opposition to what one is saying. This suits the victim; but it is too easy for the accused, because one must realise that a person has not been prosecuted unless there is evidence. Cases where there have been convictions prove it is of benefit to hear both sides of the story in evidence.
Admitting the offence — a plea of guilty — ensures that no evidence is taken from either side; in other words, to plead guilty at the last minute saves the accused from having to go through the hassle of giving evidence, being reported and being cross-examined about what has happened. We should examine this area. A plea of guilty should not automatically mean that the accused does not have to answer questions from the judge. It is essential that the judge is given an opportunity to question the accused in order to decide how sorry they are, their intent and ongoing attitude to the crime of which they are accused. That is important in assessing the guilt of the accused and, therefore, in determining the sentence. We should look at this issue. It is absurd to offer it as an excuse for a reduction of a sentence. I cannot understand why that should be allowed at the time of trial when the accused has already gone through everything, unless the accused has admitted the offence at the time of arrest. If that is the case, it might be allowed in terms of the leniency of the sentence, but it should not be allowed in any other circumstance.
We should consider victim impact studies in every case of sexual abuse. Such studies are required in other jurisdictions, but they are not used here in general abuse or family law cases. Psychiatrists, psychologists, social workers, etc. have a vast amount of experience and knowledge and they work with the people involved, but their expertise is not heard when the case goes to trial. In addition, this would also make the accused realise that this is not a matter which goes away after sentencing or on completion of a sentence; the victim is a victim for life. It would help our system of justice if we ensured that not only is justice done, but is seen to be done by giving time and attention to the impact of the crime on the victim.
An issue I mentioned here on many occasions, not only when it was highlighted in the media, was the need to provide a system for the education and training of judges. It is not specifically related to this legislation, but it is related to other legislation and indirectly to all sexual crimes. As Senator O'Toole said, legislation which enshrines a sexual crime as a misdemeanour, whether that term is now used or not, gives the impression that it is not too serious. Recent judgments have shown that that is the opinion of the Judiciary. We must examine this area. I have great respect for our judicial system and the work our judges do on a daily basis but, like all of us, the law changes radically on a day-to-day basis. I must do courses as a solicitor and I would like to see a system which facilitates other professions and the people who make these decisions, the judges, to update their knowledge on laws and their impact and on how victims react to these offences.
Education has a role to play in the detection of these offences and the abuse of children. While we talk about the implementation of the Child Care Act, there is no specific training — correct me if I am wrong because I am happy to hear what the situation is — for teachers in primary or secondary school education to deal with detection and counselling. There is no specific module for teachers in the training colleges and we must examine this. I know this is not in the Minister's brief, but we must consider this issue if we are serious about the situation. We are introducing a curriculum which includes sex education. Teachers meet the children on a one to one basis and they are seen as a friend, yet the teachers are given no training in the detection of abuse. This must be rectified as soon as possible.
The Minister in her speech referred to the various types of offences. I am in favour of increasing the penalties for many offences. I know the maximum penalty for incest is 20 years, but it should be life. We should also increase the penalties for defilement, gross indecency and unlawful carnal knowledge, because until the law reflects the seriousness of those offences nobody else will. They are viewed as the misdemeanours the law states they are, therefore we must increase those penalties. We must show that we are not a society which will tolerate this and show how we will punish it. The criminal procedural system ensures that the victim of such crimes are witnesses. They do not have independent rights of appearance or the right to have cross examination of the accused and so on. This must be considered, because while these cases may well come under the criminal law in that they are prosecutions by the DPP, the Attorney General or the Garda, it is the victim versus the accused and the victim does not get a proper hearing throughout the entire case. Victims are the excuse, the reason for the case, but they are not part of the case in so far as they may be entitled to cross examine the accused, to have the accused listen to their side of the case, and so on. We must therefore consider how we handle such cases in the future and how to amend the administration of the law to deal with the matter properly.
This is not something which has arisen in 1994 or 1995. I watched a horrifying programme recently on "The Oprah Winfrey Show" which dealt with incest in the USA. It featured a mother and daughter — where the daughter was by the mother's father — and all of the scenarious involved in incest cases. It was frightening to see what was happening and how the mother of the child who was abused could appear and say that she knew it was going on but that she felt she was not in a position to do anything about it. We cannot console ourselves by saying that this does not happen here. What happens in the USA happens throughout the world as human nature has not changed. Furthermore, incidents such as this have happened throughout time and will continue to happen.
The one thing we as a society must do is introduce not only legislation but a system which will stamp out this problem, a system which will identify the issue, punish the perpetrators and let them know that it is viewed so seriously by society that we will not condone it. Such a system should also allow people to come to the aid of the abused person and should rehabilitate the offender, if possible.
Legislation can only go so far, but we should consider the matter once and for all and see what we can do about it. We have heard so much about abortion and the rights of the child. The rights of the living child are paramount in a society which often gives lip service to them. We must put children at the centre of the system we are dealing with and give them an opportunity to have their say.
In terms of court administration, there are ways which would allow the child victim to give evidence and be heard in court, such as through a microphone and where they are screened and not viewed or named in public and so on. This would preserve confidentiality while allowing them to be heard, to ask and to listen. We must therefore consider the proper use of modern methods of communication to facilitate this kind of hearing in court.
It would be helpful if the legislation would state that the information should include the charges brought against the accused. On the issue of bringing a friend to court, section 6 (2) of the Criminal Law (Rape) Act, 1981, allows for this. I am not aware if this has been changed by the 1990 legislation, and perhaps the Minister could advise in this respect.
The Minister has been very open in stating that the Bill deals specifically with an urgent situation which has arisen, and I accept this, but we as politicians have a duty to tackle this area of sexual abuse in the best way possible. This will entail an input from more than those involved in the Minister's Department. It is time that we took the issue seriously and addressed it urgently.
I move amendment No. 1: To delete all words after "that" and substitute the following:
"Seanad Éireann declines to give a Second Reading to the Bill for the following reasons,
(a) the Bill proposes to retain in camera status for incest prosecutions,
(b) that the Bill makes no provision for the presence in Court of, and reporting by, the media of incest cases, subject to the guarantees of anonymity provided in prosecution for sexual offences,
(c) that the Bill makes no provision for anonymity in the case of prosecutions for defilement under Sections 1 and 2 of the Criminal Justice Act, 1935,
(d) that the Bill makes no provision for public awareness of the procedures employed in incest cases, the behaviour of witnesses, the role of the judiciary and the principles of sentencing."
I second the amendment.
I welcome the Minister to the House. I am pleased that the Minister has introduced the Bill in the House today, although she is aware of my feelings with regard to the proposed legislation. It is a minimalist approach to the problems we are addressing which is why I have moved this reasoned amendment.
The record of the Houses of the Oireachtas in legislating for the protection of children and for sexual offence cases is one of which no Member of either House could be proud. The history surrounding these issues — issues of rape, of child abuse and violence against women has been one of inertia, intellectual dishonesty and an unwillingness to face up to child abuse once and for all, to take the steps which are necessary to protect women and children from this most horrible of crimes and to take the steps necessary to administer swift and sure justice to those who commit them.
We in the Houses of the Oireachtas have much to answer for to the abused children and women of Ireland. The sentencing decision in the X case has led to expressions of shock and outrage, both outside and inside this House. However, in some ways it should come as no surprise, because successive Governments have failed to grasp the issues which this case raised. I refer especially to how best to support the victims of sexual assault and abuse and the issue of sentencing.
Successive Governments have failed to give any clear guidelines to judges on sentencing, and the X case, the Kilkenny incest case and the Kerwick case contain many lesson for us. Recent figures have shown that less than 5 per cent of all confirmed cases of child abuse are ever prosecuted. This is a stinging indictment of those State authorities involved in the bringing of these prosecutions. It may well be the case that many of the victims of these offences are unwilling to go to court, and in the wake of the sentencing in the X case this attitude is understandable. What guarantees do victims have that their rights and grievances will be vindicated? What guarantee do they have that their voices will be heard?
All the recent cases to which I have referred should be a cause of deep reflection on all of the issues involved and I do not put it too strongly when I say that they should even be a cause for shame at the way we as a society treat victims of these crimes. However, they should also give rise to a call for action and a call for a strong arm to be extended to victims of sexual crime, an arm which offers them protection and compassion.
We as legislators are primarily called upon to address these issues. The hearts and minds revolution has already taken place in society. After years of society denying that these actions took place, it is now demanding of us that we take action. However, we have largely ignored this call, which is why I was disappointed when the Bill was published. It is a minimalist approach to the problems which have arisen and a narrow response to the issues which were identified by and flow from Mr. Justice Carney's judgement.
The Minister has an ideal opportunity to plug loopholes in the law regarding the reporting of trials in sexual offence cases and to extend the protection offered in rape cases to prosecutions for under age sexual intercourse. However, the Minister has not availed of this opportunity and the Bill is another knee jerk reaction to a very high profile case. It is another act of gesture politics. It enables us to say that the Minister is doing something to tackle the difficulties identified. In the literal sense that is very true. However, it is a sad day when we are debating a Bill which is a half baked measure. With a little more time and thought a much stronger, more purposeful and effective Bill could be put in its place. As the Minister has acknowledged, there are three Bill before both Houses which attempt to address the judgment of Mr. Justice Carney. Before I discuss their contents I want to set out the kind of issues which, in my view, this Bill should address.
The first issue is of course the necessity arising from the judgment of Mr. Justice Carney to abolish the anomaly identified by him arising from section 5 of the Punishment of Incest Act, 1908. The effect of this section is that incest trials must be heard in total secrecy with the effect that no one, not even health boards caring for child victims, is entitled to know the result of the incest prosecution. Everyone in this House agrees there is no justification for such an approach. The provision of the 1908 Act was laid down in a time when issues of child abuse and sexual violence were shrouded in secrecy, shame and denial.
However, recently there has been a recognition that we need to get these crimes out into the open and expose the fact that they happen in order to foster the development of a climate of public opinion that is supportive of victims of these terrible crimes. Victims must be made aware that they are not alone, that these types of crimes occur, that they will be helped and that the perpetrators will be dealt with severely.
This Bill simply amends the existing law so as to ensure that the verdict and the sentence in an incest case will be delivered in public. The Minister has confined herself to this and I have a major problem with this minimalist approach. We all learned the lesson in the X case, if we learned nothing else, that there is a need for transparency and consistency in sentencing. We need transparency because the public has a vital interest in knowing the kind of sentence which will attach to particular kinds of acts. We need consistency for the sake of protecting victims and punishing offenders in a manner consistent with principles of fairness and justice.
Under the provisions of this Bill the verdict of guilty or not guilty will be announced in public and so will the sentence, but the nature of the offence will not be revealed nor will its gravity. We will still not know if the offender has been found guilty of the brutal rape of a child or whether he has been found guilty of becoming involved in one of these unusual cases, which I understand occasionally happen, of long parted siblings who embark on a consensual basis upon an emotional relationship. We will not know if the offence was an isolated one or whether it was the result of a reign of terror lasting for years. We will not know if the offence was accompanied by aggravating or mitigating circumstances.
Furthermore, if this Bill is passed, judges will be deprived of the means of knowing how other incest cases have been dealt with by their colleagues. In effect, this Bill militates against consistency in sentencing at a time when there is a massive concern that judges be assisted to become more consistent. I find it incomprehensible that such legislation would be introduced in the light of what we were all forced to confront last week.
The Bill was out before last week.
I am talking about what happened in the X case with regard to sentencing.
The Senator implied that I brought this Bill out after that.
Sorry, I was talking about the judgment in the X case. My other objection to the Bill is that it retains the in camera rule for the prosecution of incest in all its aspects except in relation to the announcement in public of the verdict and the sentence. The House will be aware that in cases of rape and sexual assault, under the provisions of the Criminal Law (Amendment) Act, 1990, in any proceedings for a rape offence or the offence of aggravated sexual assault, the judge is required to exclude from the court during the hearing all persons except officers of the court, persons directly concerned with the proceedings or — this is the significant exception in relation to this Bill — bona fide representatives of the press.
This exception in favour of the press in the general rule that the court must be cleared reflects a recognition by the Oireachtas that society has a strong and legitimate interest in being informed through sensitive and restrained reporting of the kind of offences which are perpetrated against women and children so as to foster a climate of public opinion that is supportive of abused women and children and to encourage them to come forward and report offences. If the facts behind these offences are not made known, their seriousness and gravity will never be fully appreciated. Ignorance of sexual offences may well be bliss for our society but it is hell for the victims of these crimes, whose voices are unheard and whose feelings of pain and fear are unacknowledged. Victims of these unspeakable crimes must be made aware that they are not alone, that others have suffered as they have, that they will be helped and supported and that perpetrators will be dealt with.
Society also has a strong and legitimate interest in knowing how these offences are dealt with in our courts and by other State agencies. This was fully illustrated in the Kerwick case, the Kilkenny incest case and, most recently, in the X case. In this Bill there is no provision that bona fide members of the press may be admitted to incest trials for reporting purposes. I believe this is a very serious omission. It is worth nothing that Judge Catherine McGuinness has called for the admission of bona fide members of the press to family law cases, which at the moment are also heard entirely in camera, on the basis that the public has a legitimate interest in knowing what is going on in the family courts. We raised this matter with the Minister for Equality and Law Reform when we discussed the Family Law Bill and he said he would have discussions with the Minister for Justice. The more society knows about these matters the better we can respond to dealing with the problems which arise from them.
Another objection I have is that many prosecutions for child abuse are brought under the provisions of sections 1 and 2 of the Criminal Law (Amendment) Act, 1935, which deals with unlawful carnal knowledge of girls aged under 15. In my view this offence ought simply to be renamed child abuse since this is what it really is. These are the sections under which the man in the X case was prosecuted.
While the Criminal Law (Rape) Act, 1981 and the Criminal Law (Rape) (Amendment) Act, 1990, extend to the victim a guarantee that she will be anonymous, no such guarantee is extended to victims of child abuse where the perpetrator is prosecuted under the Act of 1935. The Minister outlined other examples of this and said she will address this issue. This is a very serious anomaly. It goes without saying that victims of sexual abuse must be given every encouragement to come forward and report the crime against them.
The Minister had an ideal opportunity to remedy this anomaly. I accept she has said this is a stop gap measure to deal with very specific issues raised in the Mr. Justice Carney decision and that the other issues can be considered in time. I ask the Minister why she did not plug this particular gap as well and if she could give some indication if she is also waiting until we have this discussion document.
There are three Bills before the Oireachtas — Deputy John O'Donoghue's Bill, which was introduced in the other House, the Bill we introduced and this Bill. I believe this Bill is the weakest. The other two go much further in addressing the issues to which I have drawn attention. There are differences between the Fianna Fáil Bill and ours but essentially they are both directed towards the same end, which is to carry out a meaningful reform of the law in this area.
Why has the Minister failed to do what is crying out to be done? Why has she failed to integrate the treatment of victims of incest and victims of rape? If she could point to any good reason for her failure in this regard, I would like to hear it. I know she has said she needs time to consider whether the reporting restrictions attaching to trials of incest need to be brought into line with those applying to rape and other sexual offences. How long will this take? It has been seven weeks to the day since Mr. Justice Carney delivered the judgment this Bill is designed to meet. The issues which that judgment raised are clear cut and simple.
The task for the Minister arising out of that judgment was to integrate the reporting conditions for incest trials and anonymity provisions in trials for defilement of young girls with those applicable to other sexual offences. I believed that was a simple task.
It never is.
I feel that it could have been tackled within those seven weeks. Instead this Bill has done the very least that is required and other very important issues have been long fingered. Cases of rape, incest and defilement of girls under 15 are essentially similar; they all involve the sexual abuse of women or children. I see no reason why they should be treated differently and I have not heard any compelling reasons from the Minister today.
The Minister has said that she is going to bring forward this discussion document but she has not given us a specific period in which that will be done. My fear is that the inertia which has characterised the response of the Oireachtas to rape and sexual abuse will come into play and that the issue will be shelved and gather dust until the courts force us to confront it yet again. Accordingly, the Minister should indicate what timescale she has in mind for the purposes of carrying out the review of integrating the reporting rules on rape and incest. I would like the Minister to indicate also when she intends to bring the fruits of this review before the Oireachtas. I am asking the Minister to give a serious commitment to this House and to honour it.
If we, as legislators, want to do the right thing by victims of sexual offences we need to start here today. We need to assure victims of sexual abuse that their anonymity will be guaranteed as well as providing for the responsible reporting of incest trials and assisting judges to sentence in a consistent way. That is why I am asking Members of this House to support my motion. We need to send out a strong signal to the victims of sexual abuse that their problems are taken seriously in this House. We need to let them know that we have has enough of half-baked measures, the political gesture and the empty promise. The Minister could have taken decisive action on these issues but it has taken seven weeks to come up with this measure which achieves as close to nothing as it is possible to do.
The courts will not say that.
Victims of sexual abuse deserve far more. If the Bill as presented by the Minister passes Second Stage, the Progressive Democrats will in due course be proposing amendments designed to target the flaws that I have identified. I urge all Members of this House to support them in the wake of the Kerwick case and the X case. It is the very least that we can do.
The Minister has acted swiftly to remedy the anomalies of the 1908 Incest Act, which were recently highlighted in the High Court, and I welcome her initiative. The Judiciary quite rightly put the ball firmly back in the court of the Legislature and the Minister has reacted responsibly. The central issue, however, goes far beyond the 1908 Act. We are dealing with a body of antiquated legislation, as has been referred to by previous speakers. I am thinking not only of the 1908 Incest Act but also of the 1904 Prevention of Cruelty to Children Act, which is ill-suited to the needs of the 21st century.
Our concept of childrens' rights has changed radically since the Victorian era. For example, the 1908 Act placed limitations on the ability of children to give evidence as it was framed at a time when children were quite literally seen and not heard. However, we have moved on since then and today we recognise the vital importance of listening to children. Indeed, that recognition is embodied in services such as Childline.
I am glad that the Minister has acted to remove the most glaring anomalies in the 1908 Act, but I would argue that in the longer term we need an entirely new Act. It is sad that in recent years such issues have arisen in relation to children who have been particularly ill-served by political sticking plasters. We need to revisit our entire body of child protection legislation and a start has been made with the 1991 Child Care Act. I welcome the Government's commitment to implementing all sections of the Act.
However, our legislation still lags behind changes in public opinion. Just last week the nation was outraged when the man at the centre of the X case had his sentence reduced from 14 to four years. I do not wish to revisit the debate on sentencing policy at this stage, but to a large extent the sentences passed by our Judiciary reflect the content of our laws and the definitions contained in them. On issues ranging from incest to unlawful carnal knowledge and cruelty to children, our laws are rooted in an era which viewed children as chattels rather than as individual entities.
We agree that a wholesale review of these laws cannot be undertaken overnight. Any such review should take on board the views of those directly involved: parents, teachers, lawyers and child care professionals. The Government should initiate such a review urgently, or perhaps ask the Law Reform Commission to examine the body of legislation relating to children and to make appropriate recommendations.
I welcome the Minister to the House and, naturally, I welcome the Bill, limited as it is. This is a complex issue which has not been dealt with in a clear manner. For example, even following the Minister's speech. I am still not clear whether the Bill deals with the fact that there will not have to be two trials — one for incest and one for rape — if both are involved.
Section 3(1) says that
Where the same proceedings relate or, at any time, related to both an offence under the Act of 1908 and an offence referred to in section 10 of the Act of 1990——
Surely it should be "either, or". Other Senators have addressed many of the things that I wanted to say. The Minister is again talking about a discussion document while we have in front of us the Kilkenny incest investigation, whose recommendations of two years ago have yet to be implemented. If we have a discussion document now will it not mean that two years further on we will be trying to do the same thing with the results of this discussion document?
The fact that sensitive cases, particularly if they have anything to do with sex and, worse still, with the family, are held in camera has not been helpful because there has been too much secrecy. Family law cases should be held openly under the same reporting restrictions which apply to other sensitive cases. With the divorce legislation coming up shortly it is important for people to see the violent, horrific abuse that goes on in some families. This is the reason so many people want to make a clean break of the marriage they were in and try to establish a new family and relationship with someone else.
Senator Mulcahy mentioned the fact that this Bill does not seem to allow for a friend of the victim to be present in rape cases. This is most important because the child may have no friend within the family to come forward. Someone from outside the family may need to be appointed. That is a great pity. I will put down an amendment about this because it is not clear to me that a friend would be allowed to come forward. Secrecy has been behind all these cases.
It is important to remember the importance of eugenics with regard to incest cases. Indeed, it was the knowledge of the children who resulted from consanguineous relationships — and we can go back to Leviticus to see that — that led to laws against incest being introduced. They are older than the 1908 Act. One aspect of the 1908 Act which should be looked at again is the ages to which the different types of offences apply. I also support Senators who have said that "carnal knowledge" and "defilement of young females" are not suitable phrases to use in 1995. It is child rape in these cases.
The age groups are divided into categories of under 13, under 15 and under 17. It is important to remember that children under 13 were considered at that time to have been too young to conceive. However, in the last two weeks we have been made aware of a pregnant child in Cork, not as a result of incest, and, as The Sunday Tribune report pointed out, we have had many cases in this country of children that young being pregnant. This should be rectified in this Bill and I will bring that to the Minister's attention. It is also important to remember with regard to cases of incest that children do not have a statutory right to health care. A child who is being abused and who may be pregnant or who may have venereal disease or both — I have known of such cases — is not in a position to have treatment without the consent of the parents.
With regard to the Kilkenny incest case report and its guidelines, reporting of such cases must be made mandatory. Senator O'Toole discussed this from the point of view of teachers and I can talk about it from the point of view of the medical profession. The report recommends:
...that the Medical Council should ensure that all doctors are circulated with ethical guidelines... and that it should be made clear that, if a doctor has reasonable grounds for believing that a child is being abused, not only is it permissible for the doctor to disclose information to a third party, but it is the duty of the doctor to do so. Where a client admits to child abuse or discloses child abuse, clinical responsibility to that client cannot take precedence over a doctor's responsibility in relation to child protection and the client should be so advised.
It is all very well to have this recommendation and to rely on the Medical Council. However, this is once again an instance of our relying on extra-legal guidelines rather than legislation. We as legislators should take it upon ourselves to introduce legislation making it mandatory for people in such responsible positions — be they doctors, teachers or whatever — to report to the appropriate authority, the community care officer in these cases. Otherwise, we are seriously shirking our responsibility.
Finally, we must look at the Judiciary. It is important to stress constantly that consent can never be given in these cases. The fact that physical violence was not involved does not mean that there was no intimidation or threat of physical violence or even enticement. We must urge the legal profession to realise that it must become involved in seminars to update its thinking to take into account the feelings of the general public. At present there appears to be, if not in the thinking certainly in the language of the Judiciary when it expresses its views on these cases, a sad difference between the views of general public on the proper way for us to go forward and those of the Judiciary. I understand the Judiciary's position. It must weigh up the problems of the accused while we might be too enthusiastic in seeing the plight of the victim. However, it must be remembered, particularly in the cases under consideration today, that nothing like consent can be given.
It is most important that we as legislators urgently take action on mandatory reporting of cases and proper sentencing and that we do not end up — which could easily be the case looking at this Bill — with another long discussion document which we will be considering again two years hence.
I welcome the opportunity to speak on this Bill. I congratulate the Minister for introducing the Bill in the Seanad. I also welcome the Minister of State, Deputy Currie, to the House and congratulate him on his work since his appointment.
I welcome the provisions of the Bill which ensure that social workers and others concerned with children's protection can now secure essential information concerning prosecutions and verdicts in child sexual abuse cases. It is important that they have such information whether the offence is incest or otherwise. We must recognise that these problems in our society are extensive and appear to be increasing. As public representatives we are all aware of cases of incest, rape and unlawful carnal knowledge. I agree that the term "unlawful carnal knowledge" is a somewhat nonsensical term to have on the Statute Book in 1995. It is nothing other than child rape and that is what the offence should be called.
My worry about this area is the veil of secrecy that is shrouded over it in our society. The sooner we deal directly and specifically with it the better. The recent decisions in the courts regarding the refusal to issue information to social workers in relation to specific cases were not necessarily a reflection on the judge concerned but on the legislation under which he had to operate. This Bill is welcome in so far as it rectifies that difficulty. However, it only touches on the problems that must be addressed.
There is not one school in this country that does not have one pupil — indeed many pupils in some schools — who is a victim of incest or unlawful carnal knowledge. As a former teacher, I am fully aware of that and of its extent in some schools. It must be condemned. However, it begs one question — if the name of the perpetrator of the crime was published after the verdict and conviction in a case, would that act as a deterrent to other perpetrators? This is an issue which we as legislators should address. The argument in incest cases is that publication of the name of the perpetrator leads to the victim being identified. That is true and everything must be done to ensure that the victim is not identified. The victim suffers enough trauma and is psychologically scarred for life. We have a responsibility to ensure that they are scarred no further following the court proceedings.
However, we must look at the position of the perpetrator in society while protecting the victim. Each case should be assessed as to whether the name of the perpetrator should be published. If it is the child's father it would be easy to identify the victim so special care and judicious thinking should be applied in that case. However, a neighbour, friend or associate using his or her position of trust to abuse the innocence of a young person knows that, even if the case is brought to court, his or her name will never be made public. There is, in a sense, no protection for victims or potential victims.
When somebody convicted of murder is released from jail, he or she is known in society as a murderer and people are wary of them. Equally, if a professional person in a position of trust, such as an accountant, is convicted of embezzlement, at least those people seeking the advice or services of an accountant are protected because they know that that person has been convicted. However, in the case of rape or unlawful carnal knowledge, nobody knows who the perpetrator is as his or her name is never published. It is the only crime on the Statute Book where the name is not published, which is an issue we must address.
We have seen the benefits of the publication of names. As a result of the publicity which surrounded the recent Fr. Brendan Smyth case, quite a number of other victims came forward as they realised that they were not the only victim. If names were published, a number of victims who are not now prepared to come forward would do so. The sooner that there is greater openness and transparency in relation to this issue, the better. We should ask ourselves honestly why we are currently protecting the perpetrator. Why are we withholding the name of the perpetrator from publication? We will argue that we are doing it to protect the victim, which I agree is true in the case of incest. However, in most other cases that is not true and the name should be published.
This matter is not addressed in this Bill which I know is a response to a specific court decision. However, I welcome the Minister's announcement that she will publish a discussion paper on this issue. Until it is addressed in an open fashion, the problem will continue and, unfortunately, it appears to be very much on the increase.
A child sex abuser released back into the community after spending a term in jail may move from town A to town B and apply for a job dealing with children. The fact is that those dealing with his application would have no full detail of his history or the inherent dangers to children. In a sense, we are not protecting potential victims by not publishing the name of the perpetrator. We have seen from recent cases that it is not an isolated incident in most cases but is repeated. The power of public persuasion and odium in relation to their behaviour could be a far greater deterrent than any sentence. I had hoped that this issue could be addressed in this Bill. I have no doubt that it will be addressed in the discussion paper and, I hope, in legislation.
While stating that the perpetrator's name should be published, at the same time everything possible must be done to protect the victim, whose innocence has been abused, usually by a person in a position of trust. Although it may be claimed that there was consent, the fact is that consent can never be used as a justification in such cases because the victims are under age children who were taken advantage of by somebody in a position of trust. That total abuse and undermining of the confidence which people have in their superiors must be condemned, and everything must be done to ensure that these misfortunate young people are supported in every possible way.
While there is a reasonable support mechanism in place in specific areas of the country, in many rural areas there is a hidden Ireland which only comes to the surface in dramatic cases covered by the media, such as the recent case in Athy or the case in Granard ten or 12 years ago. There is a great sense of hush-hush in rural communities and a reluctance to face issues of this nature. The sooner that we open up the situation, the better. We have only touched the surface of the problem on a national scale.
This Bill is welcome in so far as it is at least changing the law in relation to social workers and others securing the necessary information to protect innocent children and potential victims. However, I would like to see a Bill coming before this House dealing in much greater detail with all the issues in this area. I will rely on the Minister, Deputy Owen, and the Minister of State, Deputy Currie, to combine their abilities to ensure that all these matters are brought into legislation. Instead of too many discussion documents and White and Green Papers, we need very specific legislation and to stop avoiding the real issue.
As I said before, in regard to every other crime the name of the defendant can be published for everyone to see. Why is the name of the defendant in sex abuse cases not published? The reality is that there is no good reason — the one answer which is given is that it is to protect the victim. That is true in some but not all cases. We have a responsibility to ensure that potential victims are not damaged in the future because of our cowardice and lack of courage in dealing with the issue.
We have no problem dealing with matters relating to money but we have a major problem with anything related to sex; we are not able to deal with the issue in a matter of fact fashion. Perhaps it is our conditioning over the years, our religious background or just Irish society. I am not sure what the reason is. I am confident the Minister in her discussion paper will manage to find out some of the reasons behind the psyche of the Irish people in relation to this issue. We need to mature and face realities and not to shirk our responsibilities.
I wish to welcome the Minister of State to the House and, in her absence, to congratulate the Minister, Deputy Owen, who is a colleague of mine on the local authority and is recognised as a very capable and competent public representative. I also wish to congratulate Senator Honan who took the initiative and drafted legislation to deal with the legal loophole which this Bill attempts to address.
The legislation, as the Minister would admit, addresses a specific problem and is limited to the crisis situation which the judgment provoked. The problem was caused by one judge's interpretation of section 5 of the Punishment of Incest Act, 1908. The Minister says it was evident from the judgment that the judge was most unhappy with the conclusions he felt obliged to reach and she rightly points out the problem is one for the Legislature, not for the courts. While I accept it is a legislative responsibility, the Minister said in her contribution that as far as she is aware this is the first occasion section 5 has been taken to have such a restrictive meaning. One may wonder whether the judge's interpretation of the section is correct, but the judgment has been given and the Minister has to deal with it.
My colleague, Senator Mulcahy, said the nature of incest had not changed, but perhaps without knowing it he has highlighted the kernel of the problem. The question is: should the meaning of incest have changed? I concur with Senator O'Toole; the old definition of incest is incorrect and is not applicable today. The definition provides it shall be an offence for a male person to have sexual intercourse with a person who is to his knowledge his grand-daughter, daughter, sister or mother. Perhaps this crime could be called incest when it involves a sister or a mother but it is totally inappropriate that the definition be applied to sexual intercourse involving a grand-daughter or daughter. Repeatedly in the Chamber today the case has been made for seeing this as rape of a minor. The term of incest is not appropriate in these cases.
The Minister is introducing this legislation because the accused in the case in question had been charged with two counts of rape and two of incest. He pleaded guilty to the incest charges and the prosecutor did not proceed with the rape charges. Had the rape charges been proceeded with, the reporting restrictions under the 1908 Act would not have applied. This further reinforces my view that incest is not the correct charge to bring in cases involving a minor. I further ask the Minister to explain why the rape charges were dropped after the accused pleaded guilty to incest. It was totally unacceptable that this happened and had those charges not been dropped the reporting necessary in this case would have been permissible.
I did not know what the thrust of Senator O'Toole's contribution was going to be; the thrust of my contribution is that the definition of the crime is the core issue. This legislation deals with a legal loophole but we must deal with the definition of crimes, specifically those involving a sexual offence. As the Senator said, it can never be acceptable that sexual offences are deemed to be a misdemeanour. No-one in these Houses would deem that to be appropriate for a sexual offence, particularly one involving children, but that is the position in relation to unlawful carnal knowledge and other offences mentioned by Members today. The public would also see this as inappropriate. We must address those issues.
The Minister said this judgment gave rise to anxiety, but it does more than that and its effect must be examined. Our Constitution says it will give protection to children and that we will cherish all the children of the nation equally. The effect of this legislation is that not only do we not cherish all children equally, but we can allow the guardianship of a child to be awarded to a known child sex abuser. The fact that the 1908 Act permits this has given rise to public anxiety and outrage. In cases where a social worker should be informed that a person has been charged or found guilty of such a crime, they cannot be so informed. Not only does the effect of this judgment leave us legislators open to ridicule, but, more importantly, it exposes children to further abuse. We must address this.
Senator Honan said this is minimalist legislation and the Minister admitted as much; it simply addresses a specific crisis. She went on to say that her discussion document would invite contributions and she would address anomalies based on the input she gets. The definition of the crime is the core issue and the charges brought will ultimately decide the sentence an accused will receive.
Other Senators have said it is inconceivable that there could be consent to a sexual act where the victim is a minor. The public undoubtedly would agree and that is the first area the Minister will be asked to address in her discussion document. Irrespective of whether that is a technicality or otherwise, it is unacceptable that consent can be inferred in cases involving sexual offences against a minor. This is clearly rape of a child and we must bite the bullet in terms of defining sexual offences and what charges are brought against those who perpetrate them. This can never be treated as a misdemeanour.
The Minister said reporting restrictions will be dealt with in her discussion document. That is only one issue she will have to address. As Senator Gallagher said, mandatory reporting of cases of suspected abuse will also have to be considered. The introduction of this legislation has already provoked wide ranging contributions and discussion from all sides of the House. The Minister will see the floodgates open when she launches her discussion paper, and I look forward to it.
The Minister is well aware that the inconsistency of sentences in crimes of a sexual nature is a subject of public disquiet. I have difficulties with the reduction of sentences when a perpetrator pleads guilty to a crime. It may make it easier on a person being abused and reduce the time and effort put into a case, but I question the rationale behind an automatic expectation of leniency and a reduction of the sentence of someone who pleads guilty, particularly in sex abuse cases. This may be acceptable in other areas of criminal law but it is a nonsense in sex abuses.
The Minister said that in her discussion paper she is concerned to ensure she has the benefit of the insight of individuals and organisations who have expertise in dealing with the problems of sexual offending generally and a special understanding of the plight and the real needs of the victims. I support that. Missing completely from her speech is any mention of establishing programmes or support for offenders. We do very little by simply locking up offenders and saying we have dealt with the case. It certainly administers punishment, but our system of justice should do more than administer justice. We are simply opening the gates in two, seven or 14 years' time and allowing a known sex abuser back out on to the streets without any intervention during the period of imprisonment. The Minister should incorporate a programme for offenders in the discussion paper to which she referred.
I listened carefully to Senator Taylor-Quinn and all the other contributions today. For the first time I realised why we have a system of debate and discussion. It sometimes seems as if we are all repeating what the previous person said, but today all the contributions seemed to hone in on particular areas of concern. Senator Taylor-Quinn mentioned the naming of perpetrators of offences. She accepts that incest cases should be excluded but suggests that serious consideration should be given to this in other cases. I support what she said up to a point, but very often in cases of sexual abuse and rape it is not the abuser or perpetrator who suffers when the abuser is named but their family. I had experience of a case where the wife and family of a convicted rapist experienced intimidation and harassment in their community and had to move away. I take the point the Senator made.
If it was not automatically the case that the perpetrator would not be named, it might have some beneficial effect in terms of reducing the instances of sexual abuse. There may be some benefit if the perpetrator was not guaranteed anonymity. However, if, when all of the circumstances are taken into account, anonymity would protect his family, it should certainly be granted. We might consider whether we should automatically grant anonymity to somebody who perpetrates the crime.
The Senator made another point which is not addressed in this Bill but which was mentioned in crisis debates in this House. She mentioned people seeking employment involving work with young children, the relevance of whether they have committed crimes such as incest and whether information can be given to specific agencies with an interest. I do not know whether this legislation covers the position of someone applying for a job with young children, and Senator Taylor-Quinn was wise to raise that point. The Minister should outline whether this Bill addresses that situation.
I accept what the Minister said: this is a minimalist piece of legislation to address a crisis situation. If there was another case tomorrow we would be attacking her for not introducing emergency legislation. It is emergency legislation. The Minister admits that it does not deal with the whole area of crimes of a sexual nature, and that is where the big debate is. Her discussion paper is to be welcomed, but if she is to be held to her word — and Senators will hold her to her word — she will find herself in this House on a regular basis introducing legislation to update existing legislation and addressing the whole area of crimes of a sexual nature which are being committed in this country.
Before the Minister replies, may I suggest, since it is 5.55 p.m. that if the Minister goes beyond 6 p.m. we would extend this debate into Private Members' Time and add any lost time at the end? Rather than have the Minister finish after five minutes, it would be more satisfactory to take the time to finish, if that is agreeable to the House.
Is that agreed? Agreed.
I listened with interest to the valuable contributions of Senators Henry, Taylor-Quinn and McGennis. Many important and real concerns have been expressed here today on the wider subject of child sexual abuse. These are concerns which I share. However, this Bill does not attempt to address broad issues. It has a limited purpose. It is an urgent response to recent Central Criminal Court rulings and its purpose, in a nutshell, is to firmly close the gap opened by the rulings and to do so as quickly as possible to ensure that persons with a legitimate interest, such as the press, can continue to have access to joint rape and incest proceedings and, in particular, to ensure that information on convictions for incest cannot be denied to bodies with responsibility for child welfare.
The Minister acted quickly to bring this Bill forward so that children's welfare could not be put at risk as a result of the rulings. Many Senators have indicated that they do not think this Bill goes far enough. I certainly agree that wider issues have been raised by the rulings — for example, whether the Rape Acts should be extended to cover other sexual offences. These are legitimate questions which the Minister has indicated she will be happy to address.
The Minister hopes to be in a position to publish a discussion paper on the subject in the next few weeks. When the discussion paper is issued she intends to consult widely with interested bodies and, if necessary, bring forward appropriate legislation. However, the Minister chose a limited approach to this Bill because what is needed at this time is a short and immediate remedy to the problems presented. A more extensive Bill would simply take time and such a delay could not be justified in the circumstances in which we find ourselves.
The provisions of this Bill will ensure that the provisions of the Rape Acts will be applied, as they were in practice before these rulings, to joint rape and incest proceedings. The Bill will also ensure that the verdict in incest cases should be announced in public so that persons with a genuine interest in child welfare can have access to the information they require to safeguard the welfare of the children. I have no doubt that the Members of this House share my belief that the provisions of the Bill are essential and must be enacted as quickly as possible.
Senator Mulcahy raised a number of specific points where he thought that the Bill could be improved. I know that the Minister, Deputy Owen, has taken careful note of his comments and, in keeping with the commitment she gave in her statement, she will be happy to consider any amendments the Senator may wish to put forward on Committee Stage. I thank the Senator for the general support he expressed for the Bill.
Senator Neville also dealt with a number of issues which are particularly relevant to the problem of child sex abuse. In particular, he referred to the question of mandatory sentencing in suspected child abuse cases. This is obviously a matter where appropriate arrangements will have to be worked out. Senator O'Toole expressed general concern about the provisions of the 1908 Punishment of Incest Act which are in need of substantial strengthening. He also said that he would put down amendments to achieve that purpose on Committee Stage. If he does so, they will be given the necessary consideration.
Senator Gallagher referred to the general need for effective and appropriate legislation to tackle the scourage of child abuse. She also raised the issue of whether the use of the in camera rule in family law cases should be reviewed. This is already being done by the Minister for Equality and Law Reform.
Senator Honan moved a motion which in effect proposes that the Bill should be scrapped. As the Minister, Deputy Owen, explained, the Bill is not intended to provide a full solution to all the problems that arise. This approach is being pursued because of the need to overcome the difficulty under existing law whereby the caring agency with the interest of preventing incest cannot be told of the outcome of an incest trial. Senator Honan in my opinion has failed to take account of the very strong commitment by the Minister to publish very shortly a discussion paper which will cover all of the relevant matters. The Minister is disappointed at the reaction of the Senator.
Senator Taylor-Quinn was concerned that the identity of the culprit in sexual offence cases should not be protected because to do so can shield the culprit and fail to protect potential victims. This is an issue which can be considered in the Minister's discussion paper.
Senator McGennis raised the question of why rape charges were dropped in the case which gave rise to the Bill. The charges prosecuted in any criminal case are a matter for the Director of Public Prosecutions, who is fully independent in the exercise of his functions.
I thank the Chair for allowing me to go a little over my time. In conclusion, I wish to emphasise on behalf of the Minister for Justice that she could have delayed the introduction of the Bill in order to deal with a comprehensive review of a wide range of sexual offences. In our opinion, this would most certainly have led to the criticism, if another incest case arose where the health agencies could not be informed, that she had not acted on Mr. Justice Carney's judgment.
Hear, hear.
That is a realistic assessment of the situation and explains why the Minister thought it necessary to bring forward the Bill. There will be time before Committee Stage to examine some of the issues raised by Senators. The Minister said I may indicate in the strongest terms, as she indicated, that she will not stick rigidly to the Bill just because it is her Bill.
Hear, hear.
I have her full authority to say that on Committee Stage she will have given full consideration to the points raised and made her judgments accordingly.
Could we have a timescale for the introduction of the discussion paper to which the Minister referred?
I am sorry, Senator, but the Minister has concluded. Is the amendment to the motion for the Second Reading of the Bill being pressed?
Yes.
Question: "That the words proposed to be deleted stand", put and declared carried.
On the basis of what the Minister said, I do not intend to go through the charade of asking people to go through the lobbies when the result is quite apparent. However, I will remind the Minister on Committee Stage about not sticking rigidly to the Bill as it stands.
Amendment declared lost.
Question put and agreed to.
When is it proposed to take Committee Stage?
In two weeks, to allow time for amendments to be tabled.
Committee Stage ordered for Wednesday, 5 April 1995.