I welcome the Minister to the House. Amendment No. 1 is consequential on amendment No. 6. Amendments Nos. 7, 8, 9, and 10 form an alternative proposal and all may be discussed together.
Criminal Law (Incest Proceedings) (No. 2) Bill, 1995: Committee Stage.
SECTION 1.
I move amendment No. 1:
In page 2, between lines 11 and 12, to insert the following:
‘the Act of 1981' means the Criminal Law (Rape) Act, 1981;
‘the Act of 1990' means the Criminal Law (Rape) (Amendment) Act, 1990."
Amendments Nos. 1 and 6 provide comprehensive guidelines for the hearing and reporting of incest proceedings. They provide for an integrated scheme which will bring incest trials into line with trials for other sexual offences. These amendments recognise that the public has a legislative right to be informed, not only of the verdict but also of the conduct and details of the proceedings of incest trials and the fact they have taken place.
My problem with the Minister's Bill, as I said on Second Stage, is that the verdict of guilty or not guilty and the sentence will be announced in public, but the nature of the offence or its gravity will not be revealed. We will not know if the offender has been found guilty of the rape of a child or of becoming involved on a consensual basis in an emotional relationship with a sibling. In addition, we will not know if the offence is an isolated one or represents a continuous reign of terror for a child, or if it is accompanied by aggravating or mitigating circumstances. Furthermore, if the Bill is passed without amendment, judges will be deprived of the means of knowing how other incest cases have been dealt with by their colleagues. This will militate against consistency in sentencing. Concern has been expressed in recent weeks that judges should be assisted in making their judgments more consistent.
The deficiencies I have outlined are addressed in my amendments. If the Bill is amended accordingly in relation to incest trials the system will work as well as it has done in rape trials. The media have shown responsibility in their reporting in this regard.
May I discuss amendment No. 6 with amendment No. 1?
Yes.
On a point of order, perhaps the Senator could read her first amendment as I am a little confused about it.
Amendment No. 1 states:
In page 2, between lines 11 and 12, to insert the following:
‘the Act of 1981' means the Criminal Law (Rape) Act, 1981;
‘the Act of 1990' means the Criminal Law (Rape) (Amendment) Act, 1990."
Amendment No. 6 states:
In page 2, before section 2, to insert the following new section:
"2.—(1) The provisions of sections 3, 4, 5, 6, 7, 8, and 11 of the Act of 1981 shall apply to any criminal proceedings for—
(a) an offence under section 1 or 2 of the Act of 1908, or
as if the said proceedings were proceedings for a rape offence within the meaning of the Act of 1981.
(2) References in subsection (1) to sections of the Act of 1981 shall be construed as references to such sections as amended by the Act of 1990.
(3) (a) Section 5 of the Act of 1908 is hereby repealed.
(b) Section 45 (3) of the Courts (Supplemental Provisions) Act, 1961, shall no longer apply to the Act of 1908.
(4) The provisions of this Act shall apply to any prosecution pending at the commencement of this Act."
Section 3 of the Criminal Law (Rape) Act, 1981, restricts the rights of counsel for the accused to question the victim about any sexual experience with anyone other than the accused. The provisions of section 3 apply in the case of trials and section 4 restricts the rights in the case of preliminary examination. Section 5 of the 1981 Act deals with the trials of juveniles. It is a technical section in relation to trial before a jury. It takes account of the fact that in trials of juveniles in certain cases there is provision for a trial to be heard without a jury. This section allows this to apply in the case of rape trials. By including it in my amendment, it will apply in the case of incest trials.
Section 6 of the 1981 Act is replaced by section 11 of the Criminal Law (Rape) (Amendment) Act, 1990. This deals with the exclusion of the public from hearings. This is the central point of my argument. In the case of rape trials the judge shall exclude from the court all persons except officers of the court, persons directly concerned in the proceedings and bona fide representatives of the press. The judge, justice or the court, as the case may be, may, at his discretion, permit certain people to remain in the court. This is the main point of my argument. We want the same reporting provisions to apply to incest and rape trials.
Sections 7 and 8 of the 1981 Act provide for a system of anonymity for the victim and the accused. These two sections provide a system of checks and balances to protect the victim and the accused. That system is just as necessary in incest cases as it is in rape cases. All of these apply to offences under sections 1 and 2 of the 1908 Act, which relate to incest committed by a man or a woman of or over 16 years.
The Minister's Bill makes no provision for penalties. Although the press is not permitted to identify the parties, there is no criminal sanction to support this. By applying section 11 of the 1981 Act the same penalties would apply to incest trials as apply to rape trials. Under amendment No. 6 (3) (a) "Section 5 of the Act of 1908 is hereby repealed.". This section provides that all proceedings are to be held in camera. My amendment sets down guidelines as to who may or may not be in court during the hearing and the nature of what can be printed about the proceedings and about the verdict. It provides for penalties and anonymity. In these circumstances section 5 of the 1908 Act is redundant and should be repealed.
Amendment No. 6 (3) (b) is a technical section. This section revived section 5 of the 1908 Act. If section 5 is repealed this provision is no longer necessary. Amendment No. 6 (4) provides that the "Act shall apply to any prosecution pending at the commencement of this Act.". It would apply immediately to cases now pending.
All of us would like to see the provisions that apply to rape trials also applying to incest trials. The public has a right to know. We have learned from our experiences with the Kilkenny incest case, the X case and the Kerwick case that only then will steps be taken to rectify the lack of justice and the lack of legislation to take care of women and children who are victims of incest and sexual offences. The provisions of the Bill regarding reporting do not go far enough. I am concerned that we might be taking a retrograde step instead of moving forward. I urge the Minister to accept my amendments.
Fianna Fáil drafted its amendments in the same spirit in which the Minister introduced the Bill. That spirit was that this was essentially emergency legislation necessitated by two decisions of the Central Criminal Court. The primary decision was by Mr. Justice Carney, who ruled — in my view correctly — that as a result of legislation passed since the enactment of Bunreacht na hÉireann in 1937, section 5 of the Incest Act was constitutional and accordingly all incest cases were to be held in camera.
The Minister's immediate problem was that the caring agencies and health boards would be unable to get sufficient information from court cases held in camera in order to protect people from abusers in the future. They did not know who was being prosecuted and what were the outcomes of such proceedings. Following the publication of a Bill by the Progressive Democrats and Fianna Fáil, the Minister speedily introduced this short Bill. In essence it contains two sections. One section permits the reporting of incest cases. The second permits, where an incest and rape case are taken together and the rape prosecution is subsequently dropped, that the incest case can then be heard not in camera. Those, in layman's terms, are the provisions of the two sections as I understand them.
The Fianna Fáil amendments are quite simple. Without straying from the topic of incest and without referring to rape cases and defilement, our amendment proposes that the same provisions that apply to the reporting of rape cases should now apply to incest cases. Our amendment is in the same form as the relevant provision in the Criminal Law (Rape) Act, 1981. The amendment reads:
Section 5 of the Punishment of Incest Act, 1908 is hereby amended by the substitution of the following section for section 5:
‘5.—In any proceedings for an offence contrary to this Act the judge or the court, as the case may be, 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 such other persons (if any) as the judge or the court, as the case may be, may in his or in its discretion permit to remain.'.
This is to facilitate, in circumstances where the incest victim feels alienated from his or her family, the incest victim bringing a friend into court. I have been informed by the caring agencies that this is frequently the case. This provision would permit that.
Amendment No. 8 protects confidentiality and everybody agrees that it should be protected. It reads:
3(1).—After a person is charged with an offence contrary to the Punishment of Incest Act, 1908, no matters likely to lead members of the public to identify a person as the complainant in relation to that charge shall be published in a written publication available to the public or be broadcast.
This provision is also taken from the Criminal Law (Rape) Act, 1981.
Amendment No. 9 states:
A person guilty of an offence under section 3 [that is, somebody who publishes a report likely to identify the personal shall be liable on conviction on indictment to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding 3 years or to both such fine and imprisonment."
The Minister cannot really object to this provision. It is the same sanction that is provided in our rape legislation. Perhaps one could say that it is a greater crime to identify the victim of an incest case, but that might be stretching the point.
Our amendments are in keeping with the spirit of what the Minister is seeking to achieve. The Minister said that the Bill was simply an emergency measure. We are not trying to reform and update the law on incest, rape or defilement.
I wish to broaden my comments and speak about a matter which I wish had been available on Second Stage. It is so critically important to many people that I would be failing in my duty if I did not raise the speech of the Director of Public Prosecutions. Mr. Éamon Barnes, which was made over the weekend — I am sure the Minister has read it. I beg your indulgence, a Chathaoirligh, because this is important.
The DPP is totally independent in the exercise of his statutory functions. He rarely makes a speech but when he does it is a fine speech, with a good deal of content. In his address to the Burren Law School last weekend, he advanced the thesis — which has much merit — that sexual offences are imitative. By that he means he has seen a huge increase in the number of sexual offence, including incest, files in the last 20 years and has little doubt that pornography, violence on television, etc. has led to this increase. Many of us share that view and there are statistics which support it.
This is a critical area so it behoves us to look carefully at what we are putting into legislation. It is fine to say the press should have free access to these cases so they can be reported, because it will help the nation grow up — which we will, because it will highlight something which has been under the carpet for too long. However, if the Minister had evidence that the graphic and gory publication of these incest cases was leading to an increase in the incidence of incest, she would be compelled to make legislative changes to stop that.
Mr. Barnes advances the thesis that newspaper editors may be unaware of the effect these articles may have. There is a big difference between letting in the press and letting in people from caring agencies or from legal reporting agencies who report the cases in the legal journals so the facts are available to the health care professionals. It will be extremely explosive if we allow the press to reproduce these cases in gory detail.
I may be out of order here, because these points should have been made on Second Stage. That having been said, the Fianna Fáil amendments allow the press and other interested parties in; the in camera rule is unacceptable vis-a-vis the caring agencies. The Minister should realise that if a link is proven between the reporting of these cases and the incidence of incest, legislation will have to follow to control such reporting. I have spoken at length because I regard this as a matter of the utmost seriousness. Perhaps the Minister can comment on the DPP's speech.
I listened carefully on Second Stage to Senator Honan and Senator Mulcahy and again today to their submissions on amendments. I reiterate what I said on Second Stage. When Mr. Justice Carney gave his judgments on 1 and 17 February, particularly the latter decision not to make known to the caring agencies any information about a person accused of incest, I was deeply concerned about any cases currently going through the courts or which might come up immediately after that decision. I was anxious to close that loophole and Senator Mulcahy has recognised that was my aim.
I moved quickly to prepare legislation to bring to either House so at least the loophole would be closed. In bringing forward the legislation I made clear that all I was doing was closing that dangerous loophole; I did not say the Bill was comprehensive but it deals with a number of matters allied to Mr. Justice Carney's decisions and other issues concerning incest and unlawful carnal knowledge which have needed addressing for some time.
My intention was that the Bill would be quickly brought forward in the Dáil. In the event, because of other legislation, it did not come up as quickly as I had hoped. I did not introduce it here immediately because my intention was to initiate it in the Dáil but I was glad of the opportunity to bring it before the Seanad.
In introducing the legislation as quickly as possible I felt that publishing the Bill would stay the hand of any judge examining Mr. Justice Carney's decision on in camera rulings, in other cases where the principle might have been suspect. I was afraid the ruling might become a precedent so I was anxious to publish Government legislation.
I say that notwithstanding the fine work done by Senator Honan. who published her Bill before mine, and Deputy O'Donoghue, whose Bill was published after mine. I am conscious that they too were anxious to close off loopholes but I felt it important that Government legislation be published so that no judge would make a decision based on Mr. Justice Carney's precedent.
I am anxious to be as accommodating and helpful as I can to amendments Senators have put down in the interests of improving the Bill. If I had more time before publishing my Bill I would have included many of the provisions in the amendments. It is good for democracy to allow a debate such as this, so that I as Minister can say I understand the intent behind the amendments; that I am willing to accept some of them; and where I cannot accept them, I will explain why. I will also indicate that in not accepting some amendments, it is not that I do not accept the principle behind them but my advice is that the phrasing and wording of those amendments would introduce more difficulties into the law. However, I will be able to accept the principle of some of the amendments; if the wording is not acceptable I will introduce my own versions on Report Stage.
Senators will recall that when concluding the Second Stage debate, the Minister of State at the Department of Justice, Deputy Currie, who has special responsibility for matters concerning children, gave a specific undertaking on my behalf that I would be positive about Committee Stage amendments. Because time had passed, I believed the Bill would be strengthened, given the contributions on Second Stage by Senators and myself.
I reiterate my thanks and appreciation to Senators Honan, Mulcahy, O'Toole, Neville and Gallagher for their work on and their contributions to this legislation. A number of Members raised the same issues. The amendments before the House attempt to put into effect issues raised by Members at that time.
Essentially, Senator Honan is proposing that the provisions of sections 3, 4, 5, 6, 7, 8 and 11 of the Criminal Law (Rape) Act, 1981, as amended by the Criminal Law (Amendment) Act, 1990, should be extended to incest. Incest with a girl under the age of 15 is an absolute offence in the sense that consent is not a defence. It is essential to apply many of the provisions in the Criminal Law (Rape) Act, 1981, as amended in 1990, to the crime of incest. However, some sections of this Act are not applicable to the crime of incest. I will go through some of those and my reasons for not accepting some of the amendments.
Senator Honan's amendment is very comprehensive and essentially wipes out the main part of the Bill. If she had divided that long amendment into shorter individual amendments I might have been able to accept some of them. However, because she has put down such a composite amendment here and because of the difficulties of applying the provisions of the rape Acts without alteration to the crime of incest, I cannot accept her amendment totally as phrased here. I can, however, accept the principle of her amendment and will be able to accept some of Senator Mulcahy's amendments because he has dealt with each change in a separate amendment.
Sections 3, 4 and 5 of the 1981 Act are concerned in particular with restrictions that apply to questions that can be put to a rape victim about sexual experience with a person other than the accused. This is a mechanism to stop the accused from using the fact that a victim may have had intercourse with others as a means of showing that consent was not lacking in his own case. This is not relevant to the offence of incest in the case of a girl under 15. Accordingly there is no point in applying sections 3, 4 and 5 to that offence and any attempt to do so, I submit, could only give rise to confusion and perhaps to the mistaken belief that consent could operate as a defence in respect of an offence of incest.
If we applied sections 3, 4 and 5 of the rape Act to the crime of incest somebody accused of incest with a girl under 15 could say that she consented. A charge of incest in respect of a girl under 15 is an absolute offence. There is no question of somebody using consent as a defence, so I would be very concerned that there would be any confusion that prior consent could be used as a defence mechanism in a court case of this nature. For that reason I urge that we do not apply sections 3, 4 and 5 of the 1981 rape Act to the crime of incest.
Section 6 of the 1981 Act has essentially and substantially been amended by the 1990 Act. It provides for the exclusion of the general public from rape proceedings. Bona fide representatives of the press are entitled to attend and the verdict and sentence, if any, must be announced in public. I will come back to the principle behind that section in a moment. Section 7 deals with the anonymity of victims and section 8 is concerned with the anonymity of an accused which is removed following a conviction. Section 11 lays down the penalties for breaches under section 7, that is, where somebody has breached the anonymity of the victims.
The term "complainant" is used extensively in sections 3, 6 and 7 of the 1981 Act and I referred to this in my Second Stage speech. It is also relevant for the purposes of sections 4 and 5 of the 1981 Act. In the context of the rape Acts, a complainant is a person against whom an offence has been committed and it could be wholly inappropriate to apply the same wording to incest proceedings, which can involve the prosecution of fully consenting adults. In other words, there may not be a complainant in a case of incest. Where that happens there is no complainant in the sense that that term applies in the rape Acts. The complaint will probably be brought by a garda, which would render the relevant statutory provisions not only meaningless but also inoperable. I see the Senator nodding; it is important that we do not introduce an element into the crime of incest that does not exist there.
I am concerned that a potential conflict could arise by applying both sections 6 and 7 of the 1981 rape Act to incest cases. Those sections provide respectively for the anonymity of the victims and the accused. In so far as the victim is concerned, that anonymity cannot be breached at any stage. In the case of the accused, however, identity can be disclosed after a conviction.
In view of the inevitable link between the parties where incest is involved, the Senator's amendment could, if interpreted literally, have the result that the names of child sex abuse victims who had suffered at the hands of a close relative could very easily be ascertained. I understand the Senator's intent; she wants to make sure that the accused person in an incest case is given no comfort. However, in a case of incest it is not possible to disclose the name of the accused because the very nature of the crime of incest is that it has to be committed by a close family relative; in identifying the close family relative there is a risk that the victim's identity could be easily ascertained, so there would be a serious danger in such a provision.
In the light of the points I have just made, it is clear that whatever legislative changes might be required, it would not be sufficient to simply bring incest proceedings within the scope of the rape Acts which is in effect what Senator Honan's amendment proposes. If she had divided up her amendment I would have been more easily able to accept individual amendments from her. I know the Senator will understand. I accept in principle some of what she is proposing in her amendment but I cannot as Minister for Justice introduce any risk to incest victims by automatically transferring the provisions of the rape Act into the crime of incest. In the circumstances, I believe Senator Honan will accept my bona fides as I accept hers in bringing forward these amendments.
Senator Mulcahy has introduced a set of amendments which would have the effect of extending the scope of the Bill. I have no problem in that regard and, for the most part subject to a number of matters that I will outline, I can agree in principle with the changes he has proposed. They run parallel to a number of the changes that Senator Honan proposed in her amendments.
The first of Senator Mulcahy's amendments, amendment No. 7, proposes to replace section 2 of the Bill with a provision similar to that in the rape Acts which would require that the general public be excluded from incest proceedings but would allow the press and other persons permitted by the court, for example, a friend or relative of a victim, to attend. I am concerned, however, that in Senator Mulcahy's desire to introduce that part of the amendment, a provision which I have already indicated I am very open to, he left out the intent of my own section.
The Senator has sought to dispense with what is contained in section 2 (1) of the Bill, namely, the requirements that any verdict or sentence arising out of an incest case should be announced in public. That is included in the rape Act and perhaps it was an oversight on Senator Mulcahy's part that he did not include it in transposing that provision to this Bill because I believe it should be included. Our recent experience in relation to incest matters would have demonstrated the importance of including the provisions in section 2 (1) of my Bill. This provision is found in section 6 of the Criminal Law (Rape) Act, 1981, as amended by the 1990 Act. In other words, I am prepared to accept Senator Mulcahy's amendment but I must also include the public announcement in it.
It is conceivable to allow the bona fide press in to report an incest case once this amendment is passed and goes into the Bill. I want to be sure that the verdict and sentence are actually made public. It is possible that health care workers who may not want to sit through the whole case will be able to get a report on it, but they may want to know very definitely what the verdict and sentence were. I am prepared to accept amendment No. 7 on the basis that the following additional subsection (2) would be added to the Senator's proposed section, as follows:
In any proceedings to which subsection (1) applies, the verdict or decision and the sentence, if any, shall be announced in public.
Not only will the press be present in court but the verdict and sentence must be announced in public. I believe it strengthens Senator Mulcahy's amendment and also includes what is in the Bill. The Senator will appreciate that I am trying to facilitate his amendment and I hope that he can accept this addition.
I am accepting this amendment and am making an oral amendment to it. I will have to get the parliamentary draftsman to make sure that the wording runs well together. If I find that an "and" or a "but" needs to be included I will bring it back on Report Stage. I am accepting amendment No. 7 with that extra provision and perhaps Senator Mulcahy will indicate that he is prepared to accept that addition. That would have the intent of accepting some of Senator Honan's amendment, which is built into our composite amendment, while accepting Senator Mulcahy's amendment with my own section in the Bill as well.
Amendment No. 8 seeks to create an offence of "publishing or broadcasting information likely to lead a member of the public to identify an incest victim". It is proposed to replace the direction procedure provided for in section 2(2) of the Bill with a more direct method of ensuring that the names and other details of victims are not disclosed. From that point of view I can accept the substance of the amendment, but I do not believe that it should be incorporated in the Bill in its current form. In that context it refers to the protection of the identity of a complainant which I have already indicated would not exist, or necessarily be appropriate, in an incest case.
Furthermore, Senator Mulcahy's amendment has not defined the expressions "written publication" or "broadcast" which are the subject of specific definitions in the equivalent provision of the rape Acts. In other words, I accept that the Senator is trying to move some more provisions from the rape Acts into this Bill, but if he is doing that he must also bring in all the sections with it and he has not done so. In the circumstances, I would ask him not to press amendment No. 8 but to give me time to consult the parliamentary draftsman for the purpose of preparing an appropriate amendment on Report Stage.
Yes.
I am perfectly willing to accept the substance of what the Senator is saying. It goes along very much with my own thinking and indication on section 2 (2) of the Bill, as well as with my feeling that as much of the rape Act as possible should apply with regard to publishing in this Bill. However, I am afraid that the Senator's wording is faulty and I will come back on Report Stage with a new wording.
Amendment No. 9 provides for certain penalties in respect of the offence proposed in amendment No. 8. That follows on from the Senator's amendment No. 8 and I would ask him not to press that one either. It would make no sense to press it if he accepts that I will come back on Report Stage with an improved provision for the offence of publishing and broadcasting, with all the proper definitions.
I would be equally concerned that amendment No. 9 does not deal with certain matters which have been included in the provision of the rape Acts under similar circumstances. For example, in the rape Acts there is a provision whereby somebody can claim they did not know the information that was being published was going to have the effect of making the name of the accused known. That defence clause is built into the rape Act. I am thinking of a corporate liability clause and the defence that might be available to a person who could prove that he or she was not aware, and neither suspected nor had any reason to suspect, that the publication or broadcast of particular information could lead to the identification of a victim.
That was built into the rape Act because a case was made at the time that a journalist who might talk about a case happening in a particular part of the country might not realise that by identifying that part of the country and because everyone in that area knew that something had gone on, people might be able to identify the victim. That clause was built into the rape Act amendment in 1990. It has not been transposed with Senator Mulcahy's amendments and I would like it to be included.
These are items that should be catered for in an effort to bring as much similarity as possible into the reporting of rape and incest trials, while guarding all the time against any danger to incest victims by introducing amendments from the rape Act that would not be appropriate for the crime of incest.
I hope the Senator will accept that both amendments Nos. 8 and 9 are contingent on each other and that in withdrawing amendment No. 8 he would also withdraw amendment No. 9 on that basis. I will bring them back on Report Stage.
I want to finish by summing up the conclusions that I have reached in relation to both Senator Honan's and Senator Mulcahy's amendments. While accepting that there is a great deal of wisdom in the amendments that have been moved by both the Progressive Democrats and Fianna Fáil Parties, I regret that I cannot accept Senator Honan's amendment for the reasons I have outlined. It is too composite and it brings in issues I do not want to accept here that would be damaging and dangerous in the case of incest. I can accept amendment No. 7. subject to the small addition I wish to include under subsection 2 (3). I am prepared to accept amendments Nos. 8 and 9 in principle but they require a good deal more work before they can suitably be included in the Bill. To that end I will undertake the necessary work by the parliamentary draftsman before Report Stage.
Because of the time-lag since I published this Bill, we have had a chance to debate these amendments and the principles behind them. I hope that Senators will agree to my proposals on Report Stage. I thank the Senators who contributed on Second Stage because their speeches were extremely useful and matched what I would have done if I had had more time following Judge Carney's decision of 17 February, which had to be tackled instantly.
Too often in this House and in the Lower House Members complain that we allow too much time to elapse when something like this happens in the courts. Consequently, I was anxious that neither the Government nor myself, as Minister for Justice, would be accused of any delay. In this instance, the time lapse has allowed us to improve the Bill. I thank Senators for their co-operation.
I welcome the Minister's comments relating to what she is prepared to accept and what changes she will bring in on Report Stage. Two weeks ago, on Second Stage. I said that with more time a more comprehensive Bill could be brought in. The considerations that the Minister has given to the issues we raised will enable a better Bill to be brought before the House. As the Minister said, my amendment No. 6 was too composite, but perhaps if it had been divided into various amendments she could have accepted some of them. The spirit or main thrust of my amendment was that the press should be allowed into incest trials but with the same restrictions that apply to rape trials. The Minister is to introduce an amendment that will do this. I think the Minister also indicated that she will bring in amendments on Report Stage to deal with criminal sanction on publication, who it is being published by and the fines and criminal sanctions that can be imposed on people who breach those regulations. I will study what the Minister has said and consider whether I should bring in an amendment or amendments that would be acceptable or look at the amendments the Minister is prepared to bring in on Report Stage.
Reporting should take place because it is necessary — the public has a right to know. From the point of view of consistency in sentencing, we must send out the message that people who perpetrate crimes of incest, rape or sexual offences against women are not protected in any way. We must show how society views these crimes and that we, as legislators, are prepared to introduce legislation that will punish in a fair manner the people who perpetrate these crimes. From the point of view of women and young girls coming forward to report cases of incest, rape and other sexual offences committed against them, it is essential that they have confidence in the system. We must also send out the message that they will be treated fairly if they go through the difficult stages of bringing their case to court.
I will consider what the Minister has said. I welcome the fact that the Minister seems prepared to go a long way towards meeting what I and those on this side of the House were trying to do in regard to these matters.
The Minister was slightly inaccurate in describing Senator Honan's Bill as a PD Bill. It could not have seen the light of day without my collaboration and I remain firmly Independent.
I beg Senator Norris's pardon. My sincere apologies to him.
I also very much regret the fact that lecture engagements abroad prevented me from speaking on Second Stage. The Minister has raised a number of very interesting points and dealt very clearly and effectively with some of the matters, particularly the question of consent. It is perfectly clear that consent cannot be a defence in the case of incest and for that reason the amendment involved clearly falls. It would be highly dangerous to introduce because it might lead the way to counsel introducing tendentious arguments in a rather nasty way about the sexual history of the victim in an incest case and that would be extremely regrettable.
Publication of the verdict, the judgment of the court and the conviction would be a welcome step for a number of reasons and I would like to take some time on that. I tend to differ from both the Director of Public Prosecutions and Senator Mulcahy on the question of reporting, for the following reason. My information is that one of the principal newspapers in the State. The Irish Times, frequently reports these very distressing cases in some detail, although editorial judgment is exercised to ensure that there is nothing put in for prurient or salacious reasons. I have been told that there have not been a great number of complaints from the general public about this. Indeed — this is the cardinal point — not one single victim has ever complained. The victims have always made the point that part of the resolution of their trauma is the publication given to what happened and it is important not to neglect the interest of the victims in these cases.
The Minister is perfectly right in saying that this Government has responded very quickly to the Justice Carney judgment. I imagine that his judgment was so provocative as to be an invitation to the Oireachtas to intervene. One of the matters that amendment No. 7 clears up is the anomalous position of the health boards, where, for example, they would not have any knowledge whatever of the convictions or of the circumstances of the case. It is very frequently said that people in the area knew and that people may have reported this to the health board. It is one thing to know something like that in the generally accepted sense of the word "knowledge", but it is quite another to have legal knowledge that will stand up in court. This amendment largely cures this problem, but it was a very particular problem.
One of the essential aspects of criminal law is that when a crime is committed the case is taken against defendants on behalf of the State and not the individual. This is one of the main reasons such cases must be conducted in public, since it is seen as a matter of interest to all citizens. This is the same public dimension that prevents, for example, victims of sexual assault from getting their own legal representation. They are mere witnesses on behalf of the State and not there in their own right. This has led to all kinds of problems, most notably those raised by Lavinia Kerwick in her rape trial, when she believed that her views and the degree of her suffering were not sufficiently taken into account in the trial of her rapist, where ironically, the judge sitting in that case was the same Justice Carney.
One important distinction between incest and other forms of family cases is that the outcome of family law can be determined even if the identity of the parties is concealed. Law reports are published at regular intervals on significant cases and evidence can be introduced in one civil case about the outcome of another. As a result of the Bill, as amended, it seems that this will continue to be the case, even in incest cases.
I also wish to raise the question of carnal knowledge, which is a troubled area. The prohibition brought about by the 1908 Act, due to the peculiar legal definition of incest — this should be looked at in this debate — means that if a male is charged with the rape of an underage family member as opposed to incest — sexual intercourse with a female family member — there are no reporting restrictions once the identity of the victim is concealed. An amendment by Senator Honan which dealt with the question of carnal knowledge was apparently ruled out of order as being outside the scope of the Bill. In my opinion, this is complete and utter nonsense because the scope of the Bill is determined by its contents and not by its title. It is open to this House to enlarge the scope of the Bill, particularly where it deals with matters which are clearly germane and relevant.
The Minister indicated that her response was one in which she intended to include as many areas as possible. However, this argument was used before in this House — I think it was during the rape Act — when I attempted to put down amendments which would have knocked out certain sections of the 1861 and 1885 Acts and which would have obviated all of the difficulties we had in introducing legislation governing homosexual relations in this State. As it turned out, it was probably better that we had the full debate and introduced a very good law; but the technical point still remains that this was ruled out of order. This amendment was moved by my friend and colleague, Senator O'Toole, and the ruling was given that it was not a matter that was contemplated by the Title of the Bill, that it was outside its scope and so on. I do not accept that all. We are the Oireachtas and the sovereign Parliament. We can determine what is in the Bill and its effects should derive from the provisions of its text and not from any arbitrary or narrow definition of what the scope of the Bill should be by persons who are not public representatives. I strongly feel that this amendment should not have been ruled out of order and I am challenging that ruling.
An Leas-Chathaoirleach
I must remind the Senator that he is straying away from the amendments under discussion. We are on Committee Stage and are discussing amendment No. 1, together with amendments Nos. 6 to 10. You have strayed well off line, Senator.
I am making a point about an amendment that should be there, but I have concluded that argument. I hope the House will take note of it because it is something that I feel very strongly about and on which the House may have been incorrectly advised.
I understood and fully sympathised with the Minister's difficulties, which she expounded very clearly, with the question of consent and the anonymity of the accused. It is obvious in an incest case that it is usually the father, the uncle or the brother and one cannot name them without clearly labelling the family. It is a clear and logical problem which has been demonstrated by the Minister. If I understand her correctly, she indicated that if the substance and positive, non-contentious areas of Senator Honan's amendments could be teased out and presented in a form which did not cause these complications, she would be prepared to accept them. Perhaps Senator Honan would consider doing this on Report Stage which, I understand, will not be taken today.
My final point wanders only marginally and I am invited to make it by the Minister's remarks about all the attendant matters. Before I was contacted by the Progressive Democrats I proposed to introduce a Criminal Law (Amendment) Bill, 1995, but I was impressed by the eminent legal advice they had. However, one area which has not been addressed but which may be addressed in a subsequent Bill is the giving of evidence on video by minors which, as I understand it, is not permitted in this jurisdiction. The law has been amended in England and it is a very important area.
Is the Senator sure?
I think so. There are a number of areas like this and, without going into them in detail in case I am factually misinformed——
The Criminal Evidence Act, 1992, allows for the video recording of the evidence of minors under the age of 17.
I stand corrected on that matter but there are a number of others. The Bill introduced by Senator Honan and myself, which addressed this issue with even greater alacrity than that of which the Minister was capable, was not accepted by the Government and the Government's own legislation was introduced. I take it that this should not be regarded as an indication that the Government will never accept a Bill from this side of the House should one be presented. It would be a good principle to establish that, if there is sufficient expertise and initiative on this side of the House and a Bill which is largely satisfactory to the Government is introduced by this side of the House, the Government can support it with amendments.
An Leas-Chathaoirleach
Once more Senator, we are straying from the amendments.
I cease straying; I am brought back to the fold.
I join the Minister in thanking Senator Honan and the Progressive Democrats for their amendments——
And Senator Norris; he reminded us that he had an input to the Bill.
We had a brief conversation about it. My rationale for not supporting the amendment was that it was better to keep the Bill short and strictly to cover the judgments. This is an important area which requires great work and thought from the Minister and her Department to bring forward fresh proposals. I agree — and I think the Fianna Fáil Party will agree — with almost everything the Minister said about our amendments.
With regard to amendments Nos. 8 and 9, I agree with the Minister that the word "complainant" must be taken out. No doubt the parliamentary draftsman will come up with a solution. The phrase "written publication available to the public or be broadcast" needs to be changed if there is a legal difficulty. We agree with those two points relating to amendment No. 8.
The Minister has no objection to the fine in amendment No. 9. She made a point about ignorance of the law on the part of a person writing an article and mentioned the escape mechanism available in the rape legislation. I agree with that but there should be a heavy onus on broadcasters. They should not escape by saying their journalist did not know what would happen. The Minister might look at that in terms of a strict liability principle for the publisher as opposed to the writer of an article. I do not see why an incest victim should pay for the mistakes of a commercial broadcaster. I question that provision but agree with the other points made.
We agree with the provision dealing with the verdict and the sentence and we have no problem with it. However, I would add a caveat. I presume that when the verdict and the sentence are announced, the identity of the convicted person is not revealed nor is the identity of the victim revealed. Is that correct?
Sorry, I missed that; I was checking something.
The Minister's addition is that the verdict and the sentence shall be announced in public. Obviously, that is subject to the identity of the victims and the convicted person being kept confidential.
Yes, absolutely. The anonymity is built in there.
I add that caveat and ask if the draftsman could examine the issue of the verdict and the sentence and anonymity of both parties. Subject to that, everything is agreed and I would like to make a few brief concluding remarks.
I thank the Minister for the positive way she has opened her good offices and accepted the Fianna Fáil amendment which, I think she will agree, fully entered into the spirit of her Bill. We tried to assist and I believe we did so to a great degree. I also thank Deputy O'Donoghue who assisted me in bringing forward this amendment.
The Minister did not reply — perhaps quite correctly — to my comments on the speech of the Director of Public Prosecutions. I would like to take this opportunity to read one paragraph — it is very brief — into the record.
An Leas-Chathaoirleach
If it is not relevant to the amendments we are discussing, I ask the Senator to refrain from doing so.
I will tie it into amendment No. 7 which concerns press coverage of proceedings. The paragraph is on page 7 of his speech and reads:
Constant saturation in depravity produces first a general mentality hardened to depravity, leading to its acceptance as part of normal human behaviour. Above all, in a small but important minority——
An Leas-Chathaoirleach
Could the Senator give us the source or date of the speech?
The speech was made by the Director of Public Prosecutions on 1 April 1995 to the Burren Law School. The relevant paragraph states:
Constant saturation in depravity produces first a general mentality hardened to depravity, leading to its acceptance as part of normal human behaviour. Above all, in a small but important minority consisting of people especially susceptible to the malign influence of such behaviour, it produces imitative sexual offences. My personal conviction is that the public should be informed as fully as possible regarding the extraordinarily brutal and depraved crimes which are regularly committed in our country — here I am referring not just to sexual crimes — but that this information should be imparted in a manner which alerts people to the danger rather than one which ultimately dulls the perception of the evil of the violence in our midst.
I appreciate the difficulties the Minister would have with effectively introducing some form of censorship. However, does she agree that the Director of Public Prosecutions perhaps has a point, given that he has had access to these files for 20 years? In his opinion, there is an explosion of crimes of this nature and it is possible that pornography and/or over salacious court reporting leads to an increase in the number of such crimes. I ask the Minister to examine this issue and perhaps commission studies which may result in further legislation.
I thank the Minister for her graciousness in largely accepting the Fianna Fáil amendment.
I, too, compliment the Minister on her approach to the amendments. I congratulate Senator Honan and Senator Mulcahy for the formulation of their amendments. They initiated a discussion which has developed our knowledge of the Bill and of the wider issue.
It is important that incest victims are fully protected and that there is no danger of the absolute crime of incest being diluted in any way. The Minister's approach to such amendments is positive and augurs well for the future, given that we have experience of a different approach in the past.
The debate initiated by Senator Mulcahy with regard to the contribution of the Director of Public Prosecutions, Mr. Barnes, is interesting, as is Senator Norris's response. This area should be explored because there is merit on both sides of the argument. It is important to expose incest and sexual crimes and encourage people to do so. However, it is also important to know if the exposure leads to further crimes. It is a very complex area which should be explored in detail. It would be interesting to know if research has been done on this area in other jurisdictions. If so, it would be to our advantage to obtain this information and debate it in the House.
I also compliment the Opposition Senators for their effort in examining the various issues and putting forward worthwhile amendments. I also compliment the Minister on her explanations of the possible ramifications of the amendments so that Senators fully understand what would be best in terms of introducing proper legislation to deal with this area.
The discussion in the House some weeks ago was very helpful in highlighting various areas of the law relating to sexual crimes generally. The Minister will proceed with legislation in relation to the wider issues but I am delighted that many of the matters with which I agree will be considered on Report Stage. I look forward to that and I compliment the Minister on her work in this area.
I note that the speech of the Director of Public Prosecutions was made on 1 April. I also note that not one shred of evidence was induced in support of his contention that readers of the newspapers were inflamed and went out and committed copycat crimes. I do not believe that for one second. However, in common with Senator Neville, I would be happy to have a debate on this issue and examine whatever evidence exists.
With regard to the matter I raised about the treatment of children in abuse cases, my information is that a recent judgment was given in the Dublin Circuit Court which will have profound implications for children who are the subject of child care cases. Unless there is legislative reform in this regard, the civil courts will be greatly hampered in their scope to examine possible cases of child abuse, including cases involving custody and access disputes and proceedings by health boards to take children into care.
Following this judgment, in the absence of consent on both sides, no video evidence of interviews with children can be introduced, nor can evidence be given by professionals of their conversations with children where such material might prove prejudicial to one of the parties in the case. The only way this evidence could be introduced would be if the children themselves were to get into the witness box and give it directly. Given the age of some of the children, this is hardly a feasible alternative.
An Leas-Chathaoirleach
With respect, Senator, I do not see how the material to which you are referring has any bearing on any amendment.
It refers to a statement I made about the introduction of video evidence, which was one of the things I thought the Minister might——
An Leas-Chathaoirleach
It is not covered under any amendment.
I was then told that I was inaccurate. It would be regrettable if the record of the House showed that I was incorrect on this. In fact, I understand that I am correct. I have much more information.
That relates to a civil case. We are dealing here with criminal cases where that access is available.
Amendment, by leave, withdrawn.
Section 1 agreed to.
NEW SECTIONS.
I move amendment No. 2:
In page 2, before section 2, to insert the following new section:
"Section 1 (1) of the Act of 1908 is hereby amended by—
(i) the insertion after the word "who", where it firstly occurs, of the words "sexually assaults or",
(ii) the substitution of "felony" for "misdemeanour" and
(iii) the substitution of "imprisonment for life" for "be kept in penal servitude for any term not less than three years, and not exceeding seven years, or to be imprisoned for any time not exceeding two years with or without hard labour".'.".
The previous discussion was becoming similar to a Second Stage debate. I thought I had come in on the wrong day.
An Leas-Chathaoirleach
Do not blame the Chair.
I have tried to tie a number of issues together in this amendment. By virtue of amendment No. 5, I welcome the fact that the Minister has anticipated one aspect I intended to cover.
In my amendment to section 1 (1) of the 1908 Act I am attempting to extend the crime of incest beyond carnal knowledge to that of sexual assault. I am certain that much of the abuse of children can only be described as sexual assault in particular situations and therefore the capacity of the courts and Garda to act is restricted. I am attempting to ensure that it will also be punishable to sexually assault a child in the manner outlined in the 1908 Act. This would bring carnal knowledge and sexual assault under the terms of the Bill. As I said on Second Stage——
An Leas-Chathaoirleach
I apologise to the Senator, but I should have stated when I called amendment No. 2 that amendment No. 3 is related, amendment No. 4 is consequential and amendment No. 5 is an alternative and they may all be discussed together. I apologise to the Senator.
I understand; that was on the list circulated this morning. I am moving amendment No. 2 but I am also referring to the other amendments which are grouped with it, amendments Nos. 3, 4 and 5.
In the amendment, I am seeking the extension of the punishment for sexual assault to the crime of incest. The effect of the first part of the amendment is to extend it beyond carnal knowledge. I look forward to the Minister's reply. At this stage, I would prefer to hear what she has to say before making a response.
In amendment No. 4 I am attempting to give a definition of sexual assault by referring to section 4 of the Criminal Law (Rape) (Amendment) Act, 1990. This lists various definitions of sexual assault. I know this matter is of crucial importance from the evidence I have of child sexual abuse. It is critically important that this definition is included. I will not go into detail at this point, although I may need to do so later.
The second part of the amendment seeks to reclassify the crime as a felony rather than as a misdemeanour. I made a strong case for that on Second Stage. The difference between a felony and a misdemeanour in this case is that a person under suspicion of a felony can be held by the Garda immediately and an aider and abettor to a felony can be held responsible whereas aiding and abetting a misdemeanour is not really a crime. I cite as an example the recent horrific case in the west when a father forced his son to have sex with his daughter. Under the terms of this Act if we did not re-describe it as a felony the person would be technically not guilty.
I note the Minister has anticipated me on that point and I welcome the open way she has dealt with that. I take it we are agreed on that approach and I do not need to stress the point. I would feel I have achieved something important if after over 80 years incest is redefined as a felony rather than a misdemeanour.
A number of people have misunderstood what I have being trying to do with the third element of the amendment. I am attempting to replace the provision that a person can be kept in penal servitude for any period not less than three and not exceeding seven years with a provision for a life sentence. Some people misinterpret it as meaning all those convicted of incest should be given a life sentence. What I was doing was giving discretion back to the courts. I want to remove the minimum and maximum provision and leave it to the courts to decide a sentence of any period up to life.
There is not any great virtue in consistency, but I tend to try to be consistent in my opposition to mandatory sentencing. It defeats the purpose of the law and the courts. A life sentence should be allowed should an horrific case so require, but the court should have discretion and not be tied to the current minimum and maximum sentences.
Amendment No. 3 has the same effect on section 3. I note the Minister is proposing the elimination of subsection (3) of the Act. I am confused by that and I look forward to the Minister's proposal. Section 3 deals with attempted incest, which, I presume, the Minister will tell me is to be covered in some other way. The House would not for a moment countenance any weakening of the 1908 Act, which sees attempted incest as a crime in itself. I look forward to the Minister's explanation. I will come back at that point with my third amendment if need be.
Amendment No. 4 interprets sexual assault. I have taken the interpretation from sections 4 and 12 of the Criminal Law (Rape) (Amendment) Act, 1990 — section 12 deals with sexual assault in detail. My interpretation of section 4 is different to the Minister's, but I feel strongly that my section 12 reference should stand. My interpretation of section 4 of the Criminal Law (Rape) (Amendment) Act, 1990, might not be universally accepted and I would like the Minister's view on that.
I have tried to contextualise the amendments in terms of the earlier debate and what the Minister is proposing in her amendment. I fully agree and am delighted that she is accepting my proposal that this should be a felony. I do not understand what exactly she has in mind with the deletion of subsection (3) of section 1 of the 1908 Act, which says that: "If any male person attempts to commit any such offence as aforesaid he shall be guilty of a misdemeanour..." The Minister is proposing to delete that subsection. If that is done the Act would not cover attempted incest and I presume the Minister will tell me that it will be dealt with in another way.
Will we be taking a sos?
An Leas-Chathaoirleach
It was agreed on the Order of Business that the Leader would come back to us later. It will depend.
We may be finished before he comes back.
I was simply asking. The proposed change from misdemeanour to felony is correct and the Minister has wisely tabled an amendment to give it effect. The punishment would have been consistent with a misdemeanour. The maximum sentence for defilement, that is unlawful carnal knowledge, under the 1935 Act is life imprisonment. When the Minister is bringing in new legislation she will need to consider the issue of unlawful carnal knowledge itself. In the speech I referred to earlier the DPP points out that there are many cases in which both parties are under age and it is fully consensual — such are the times we live in. We will support the change from misdemeanour to felony.
The question of sexual assault is tied in which the issue of sentencing. It could be wrong that one could get life imprisonment for a sexual assault; that is a slight inconsistency in Senator O'Toole's position. I would prefer to keep the definition of incest as it is — in other words, it is the same act as defilement, unlawful carnal knowledge, except it is with a member of a family as defined in the 1908 Act. We would not agree to the amendment putting sexual assault in this legislation.
Senator O'Toole made a good point with regard to maximum sentences. Mandatory sentences are dangerous. There was a case in California recently where somebody on a second or third offence stole a hamburger and got life imprisonment.
It was a piece of pizza.
It beats a hamburger.
That is ridiculous. For certain offences in the Road Traffic Act, 1994, for example, there are minimum sentences. Perhaps, for incest we will also have to consider that, but it would have to be more fully considered. Fianna Fáil will not agree to the sexual assault provisions of Senator O'Toole's amendments but we will agree to the life imprisonment and the misdemeanour to felony changes.
I support all of Senator O'Toole's amendments, including the provision dealing with sexual assault. In commenting briefly on the question of felony, part of my mind is still in Los Angeles. My education in the law is being conducted extensively here. Perhaps if I had been here on Second Stage——
Is Senator Norris trying to tell us he is mindless, that his mind is in Los Angeles and his body is here?
No, I am just half-witted. On the question of felony, I understood it was an offence which carried a penalty of two years or more — no, then I am incorrect on that. In any case it is clearly a more serious matter than a misdemeanour. Public perception of something regarded as a misdemeanour would be that it is something comparatively light and that a slap on the wrist would be sufficient punishment.
I ask for further illumination. Is there a provision in the criminal law for an offence known as misprison of felony? This makes it a criminal offence for somebody to be party to knowledge of the commission of a criminal act and they may be liable to prosecution. That may have serious implications, although I am not sure if it could implicate a minor. Perhaps the Minister might look at the question of misprision of felony and whether it should be removed from criminal law. I fully support life imprisonment as opposed to maximum or minimum sentences and this amendment is most important.
As regards press coverage and the desire by some to restrict it because it might cause copycat crimes, one of the problems — although I support maximum coverage — is that there can be a heat of the moment response from the public which is not always sufficiently informed. This sometimes leads to ill-informed criticisms of judgments which, if the full evidence was known, are reasonable in the circumstances in the light of all cases. I particularly dislike the introduction of maximum and minimum sentences because they often conceal a distrust of the Judiciary and a refusal to rely on its good sense, which in most cases is firmly established.
I thank Senators O'Toole, Henry and Lee for putting down these amendments. I made a comment to Senator Norris about leaving his mind in Los Angeles and being here only in body, but he seems to be seriously exercising his mind in the House. Members will be conscious of how complex the area of sexual crime is. We must ensure that when a step is taken it does not damage that taken a week or a year ago. Senator Norris asked if this Government would be prepared to accept Bills from the Opposition. We have made it clear that we do not exercise a monopoly of all wisdom; the Government is not the Pope.
May I correct the Minister on a point of order? There are some who do not accept that the Pope is the font of all wisdom.
That is not a point of order.
I would welcome the Minister as Pope because she would be a considerable improvement on the present incumbent.
I hope we will see the day when there is a female Pope. Now that I have moved from the Opposition benches to Government, I realise that the facilities available for preparing legislation in Opposition are not always as good as those available to me, for example, in the Department of Justice, where all legislation is taken into consideration when new legislation is being drafted. Access to such information is not always available when in Opposition. Sometimes a Member of the Opposition introduces legislation which appears to be the answer to a problem which has arisen, but when examined difficulties are revealed which cannot be made into law. That is why the Government cannot immediately accept legislation introduced by the Opposition because it may need amendments to make it viable and workable. Opposition Bills introduced during our term in Government will be examined by the relevant Minister, although they may not always be accepted. However, the Taoiseach is open to this.
I listened carefully to what Senator O'Toole and other Members said about the amendments put down by him and Senators Henry and Lee. I share the concerns expressed and I have no difficult accepting the principles behind the amendments; but I cannot accept them as worded in some instances. I introduced an amendment in regard to a misdemeanour and felony and I propose to put down further amendment on Report Stage.
Senator Mulcahy anticipated some of the difficulties I have with the amendments. Amendment No. 2 causes me the most difficulty as it seeks to amend the Act, inter alia, to alter the provisions of the Punishment of Incest Act, 1908, so that sexual assault as defined in legislation by a male on a person who is to his knowledge his granddaughter, sister or mother would become punishable in the same manner as incest. There is a tendency to use the term “sexual assault” when referring to anything to do with sexual assault in the broadest sense. In law sexual assault has a specific meaning, which is indecent touching without consent. That is an offence which, in accordance with the Criminal Law (Rape Amendment) Act, 1990, is punishable by imprisonment for a term not exceeding five years and it is a felony.
I accept that sexual assault by a parent or a close family member is a serious matter. However, we must accept that there is an element of degree involved. It would not be correct to equate touching a member of a family with the more serious offence of full incest. That is not to underestimate what Senator O'Toole is trying to get at, that is, that often a child may be subjected to many years of what is defined by law as sexual assault without full intercourse taking place or act of incest. A child's life could be ruined by constant touching or caressing by a member of a family, which is the first step towards full incest.
The Minister only instanced female family members, mothers, sisters and granddaughters. Does this extend to male relatives being subject to sexual assault?
Yes. Senators will know that in law incest by a male member of a family as opposed to a female member is dealt with differently as far sentencing is concerned in that maximum sentences for incest carried out by females are lower.
My point was that it could be perpetrated against a male member, not necessarily by female.
That is covered as well. Equating sexual assault by giving it the same sentence as full incest would not be a good step to take. If the crime against a person, a family member or otherwise, is one of sexual assault, a case may be taken under other Acts. If a child is being subjected to what is essentially a long period of sexual assault which does not result in incest under the Act, the perpetrator can be prosecuted under the Criminal Law (Rape) Act, 1981, and the Criminal Law (Rape) (Amendment) Act, 1990.
The 1990 Act provides for the offence of aggravated sexual assault, which is sexual assault that involves serious violence or the threat of such violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted. The maximum penalty for an aggravated sexual assault is life imprisonment and the offence is a felony. The offence is applicable irrespective of the relationship between the parties. Where a child is subjected to long term sexual assault as opposed to actual incest, a prosecution can be taken under the Criminal Law (Rape) (Amendment) Act, 1990, and the offence can be regarded as aggravated sexual assault, the full sentence for which is life.
Existing laws allow for this kind of grievous sentence to be imposed for this kind of grievous offence. The law adequately caters for the degrees of sexual assault which Senator O'Toole wants to be catered for in this Bill. Aggravated sexual assault can occur within and outside families. Where it occurs within a family the appropriate sentence is life imprisonment. It would not be appropriate in this Bill to equate sexual assault with incest. Incest is a very grievous and absolute offence whereas sexual assault can be of different degrees. Some instances of it can be far more serious than others.
The Senators have tabled a related amendment which defines sexual assault by reference to sections 4 and 12 of the Criminal Law (Rape) (Amendment) Act, 1990. The Senators appear to have in mind that a light sentence should be a possibility for a whole range of sexual offences. I think that, on reflection, Senators will accept that it would not be appropriate for a life sentence to be imposed on a person convicted of touching somebody without their permission. Somebody who has subjected someone, particularly a young person, to a long series of aggravated sexual assaults, should be liable to a life sentence. We must keep a balance in our laws with regard to the crime of sexual assault, With the exception of sexual assault and complicity in such an assault, a person convicted of any of the offences in question can be sentenced to life imprisonment under existing legislation for aggravated sexual assault.
Moving to the other amendments, I accept the proposal that life imprisonment should be the maximum penalty for incest. I am anxious to achieve consistency and I do not think it has existed in our laws with regard to sexual offences. I am anxious that in any laws I introduce there is as much consistency as possible and a recognition of the heinousness of sexual crimes so that such crimes, whether they be incest or rape, are perceived by people to be of the same seriousness.
For that reason I accept that a sentence of 20 years is in effect one of life but it gives the impression that is a different kind of sentence to life. Section 1 (1) of the 1908 Act was amended by the Criminal Justice Act, 1993, which provided for a sentence of 20 years. Previously a paltry sentence existed. This was entirely wrong. I am satisfied that a sentence of 20 years is generally in keeping with a life sentence. I accept that we should move to calling it a life sentence and I will introduce an amendment on Report Stage to change the 20 years sentence provided for in the 1993 Act to one of life for incest. Unfortunately, the relevant part of the Senator's amendment is defective in that he is trying to amend a non-operative section of the 1908 Act, because it was itself amended in 1908.
I accept that.
Therefore, there is no need for me to accept this amendment. The House should accept my reservations about including sexual assault in the Bill. If it is in order I will move amendment No. 5, in my name, which proposes the substitution of "felony" for "misdemeanour".
The Minister has to be elected to the House before she is allowed to propose amendments.
Is that why my name does not appear after it? I tried very hard to get into this House so that I could understand its rules and regulations but, unfortunately, I was not elected.
Acting Chairman
That amendment is more appropriate to section 4.
Amendment No. 5 is relevant to Senator O'Toole's amendment No. 3 as they both propose the substitution of "felony" for "misdemeanour".
An interesting piece of history is that the 1908 Act was introduced not as a Government Bill but as a Private Members' Bill. The forerunner of some of the lobby groups of today encouraged a Member to introduce this Bill and it was accepted by the Government. It was accepted for social reasons and not to protect children because simultaneously the Government introduced its own Children Bill in that year.
The incest Act was introduced because of the impression that incest was not nice and should not happen in society. It was regarded as a misdemeanour because the attitude then was very different to the attitude today towards the awful crime of incest. The language used in the 1908 Act — such as calling the offence a misdemeanour, which made it seem very minimal — was because of the attitude of the time to the fact that there was a great deal of overcrowding in families and incest was seen by society to be not the done thing but was not regarded as criminal or dangerous. The Children Act, which was also introduced in 1908 but has since been amended, was a child protection Act. Child protection was not the basis for the incest Act.
It is appropriate that we change the term "misdemeanour" to " felony". I am preparing a criminal law amendment Act which will remove these terms and refer to them as arrestable crimes. The main difference between a crime being a misdemeanour and a felony is that once a felony is suspected there is the power of arrest whereas this power does not exist in the case of a misdemeanour.
The main difference is one of a trial by jury.
Yes, but the power of arrest where the Garda suspect a felony has been committed is also very important. It is particularly important, where there is a suspicion that incest is taking place, that the Garda have the power of immediate arrest to remove the suspected person from the family home or wherever the crime is being committed.
I accept in principle most of what Senator O'Toole has proposed. Senator Neville and Senator Gallagher have not tabled amendments but spoke on Second Stage. The debate on the Bill has been extremely useful in identifying and highlighting the complexity of the matter and the non-simplistic way with which it must be dealt. It is easy to give a very quick reaction when an issue like this arises, it happens all the time, but we must be careful that anything we do will stand the test of time and will not create another problem with another Bill.
These crimes are often intricately bound up with each other. The issues of degree, intimidation and coercion are very often hard to define. We must accept the effect on people's lives of something insidious and evil which has gone on for a very long time. For that reason, I very much welcome the statements by Senators that we need to make sure that our society is aware of these crimes.
Senator Mulcahy invited me to comment on the DPP's statement at the Burren school. As Senators know, the DPP is an utterly independent officer of this State and I would not dare to comment on what he says. However, the media have played a vital role in opening up and uncovering what has been going on in our society. It is very easy for us to pretend that these things do not happen if we do not read about them. There is an onus on both the broadcasting and print media to ensure that they are not publishing material simply for prurient reasons but in order to let us know what has been going on.
As Senator Norris said, a journalist from The Irish Times stated on a programme the other evening that there has not been a backlash from the victims. That is not to say that some people will not be disgusted or upset in various ways by what is being said. I am not aware of any evidence that the printing of details of these cases has led to other crimes. However, I share some of the concerns expressed by Senators Mulcahy and Neville that we must always be conscious that allegations have been made in courts that the availability of pornography and certain videos have led people to commit such crimes.
I do not think that there is enough evidence or research for us to be able to draw those conclusions——
This is a vital area, especially for women. Would the Minister commission some research on this? I am not aware of any Irish governmental or government-sponsored research in this area and it is so important——
Acting Chairman
The Senator should not speak when the Minister is speaking.
I did not mean to, but we have been fairly flexible and informal.
This is a good day for democracy. I understand what the Senator is saying and I will check out the matter; there may well be some ongoing research of which I am not aware. I will consider the Senator's concerns and see what action I can take.
I said on Second Stage that I intended to publish a discussion paper — and to circulate it to the health boards, newspapers, all the caring agencies, groups such as the Rape Crisis Centre and the Council for the Status of Women and Members of the Oireachtas — covering a number of areas which have not yet been dealt with in our laws, including carnal knowledge to which many Senators referred. At present, there are no restrictions on reporting carnal knowledge cases. I want to get some feedback from the people who deal with the victims of these crimes.
It is appropriate for me to take some time rather than rushing into amending laws or bringing in new laws just because there are some very difficult cases at the moment. Some reflection on these wider issues would be good. That discussion paper will be available very shortly and I will ensure that it is circulated to Senators so that they can give me their views on it. It will cover whether newspaper reporting has had any effect and, I hope, will also result in feedback from people who share Senator Mulcahy's view that prurient or graphic reporting is in some way damaging to the victims and potential victims of incest, rape or any other sexual offence. If the Senators bear with me, some of those issues will be covered.
Senator Norris implied that somehow or other this Bill could be made a catchall. This discussion paper is my answer to that and perhaps he will let me have the benefit of his wisdom on these issues when his mind returns from Los Angeles.
If it ever does.
I cannot accept amendment No. 3 in its current form as I am unable to accept amendment No. 2. However, in my amendment to section 4 — which is the one Senator O'Toole was worried about — I intend to repeal the section of the Act which allows for a different penalty for attempted incest. In other words, attempted incest will be subject to the same penalty as incest. It is a throwback to the way in which incest was thought about in 1908 when they made it two separate crimes. Incest and attempted incest should be treated in the same way. That is what my amendment means but the Chair will probably not allow me to say that.
I am pleased to be in a position to accept what I believe are the main issues raised by the Senators. They match very much my own views and they would have been in the Bill if I had not been so anxious to publish the Bill quickly. I think that the Senators accept that that was done for very good reasons. I have promised to accept some of the amendments, particularly amendment No. 7 which is in the name of Senator Mulcahy with the slight addition of my subsection. I will bring forward the amendments which I indicated on Report Stage.
I believe I have accepted what I can of Senator Honan's amendments. I cannot accept the amendments with regard to sections 3, 4 and 5 of the rape Act for the reason I gave, even if she brings them back on Report Stage. Wherever the issue of complainant arises in any of Senator Honan's amendments, that is just not relevant to incest and, therefore, I will not be able to accept them. I think that the Senator will realise on reflection that what I have accepted at this Stage and what I will bring back on Report Stage is essentially accepting what I can of her amendments.
I thank the Senators for their information, knowledge and understanding of the need to deal with this matter sensitively. I look forward to their input when the discussion paper is published.
I very much appreciate the Minister's comprehensive response to the three amendments I tabled today. On section 2 she explained, as did Senator Mulcahy, her reservations about the words "sexually assault". I accept the points which were made. In effect, I had intended that to be "aggravated sexual assault" but, somewhere along the way, I dropped the word "aggravated"— perhaps the issue of teachers' pensions intervened. Having looked at sections 4 and 12 of the other Act, I am absolutely clear that the Minister is right that there is provision under the amended Act of 1990 to deal with aggravated sexual assault in a thoroughly acceptable way. Therefore, it would be inappropriate to accept the first section of my amendment.
I welcome and appreciate her taking on board the arguments I made on Second Stage for the need to distinguish this as a felony rather than a misdemeanour. I look forward to her amendment which I will support. Similarly, her acceptance that it should not be imprisonment for life. That gives more discretion and powers to the courts, sends a very clear signal and allows the crime to be dealt with positively.
On Second Stage, I referred to the point Senator Norris has just raised about the concealment of information. I did not get the chance to develop that point then and I intended so doing today. It is absolutely crucial and central to making concealment a felony. Where neighbours, teachers and others become aware of incest taking place, it might make life easier for the Minister if the disclosure of such information was made mandatory. It is also one of the recommendations of the Kilkenny incest report and it is an area which must be addressed. I will withdraw amendment No. 2 on the basis of the commitments given by the Minister.
With regard to amendment No. 3, the Minister has advised that she will delete the section which I sought to amend for reasons with which I agree, because she is now making attempted incest the same as incest. The Minister has not indicated how she will do this; presumably it will be introduced on Report Stage.
It is automatic.
On the basis that this measure will make both activities the same crime, which is what I have been seeking to do, I will withdraw amendment No. 3. Amendment No. 4 is tied into the first section of my first amendment, and I also withdraw it.
I thank the Minister for dealing so comprehensively, correctly and adequately with my proposals. It has been a good day's work and vital amendments will now have been made to the Bill when it is passed. I also thank the Minister for her courtesy in dealing with the matter.
Amendment put and declared lost.
Amendments Nos. 3 and 4 not moved.
Acting Chairman
Amendment No. 5 is out of sequence on the list of amendments and it will be taken after consideration of section 3.
Amendment No. 6 not moved.
Acting Chairman
I understand that amendment No. 7 is accepted by the Minister in an amended form.
That is correct.
Perhaps the Minister would prefer me to withdraw the amendment on the basis that she will move the same amendment with the new wording on Report Stage. I would prefer this to happen, because the matter is so important that I want the wording to be perfect.
I thank the Senator for that suggestion because I indicated that I would have to get the parliamentary draftsman to consider my revised amendment.
Amendment No. 7 not moved.
Section 2 agreed to.
NEW SECTIONS.
Acting Chairman
Amendment No. 8 has already been discussed with amendment No. 1.
Amendment No 8 not moved.
Acting Chairman
Amendment No. 9 has already been discussed with amendment No. 1.
Amendment No. 9 not moved.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
There is no need for section 3 and it is for the Government to withdraw the section.
I agree that the section be withdrawn.
Question put and declared lost.
NEW SECTION.
Acting Chairman
Amendment No. 5 has already been discussed with amendment No. 3.
Government amendment No. 5:
In page 2, before section 4, to insert the following new section:
4.—Section 1 of the Act of 1908 is hereby amended
(a) in subsection (1), by the substitution of ‘felony' for ‘misdemeanour', and
(b) by the deletion of subsection (3).".
Amendment agreed to.
Section 4 agreed to.
TITLE.
Acting Chairman
Amendment No. 10 has already been discussed with amendment No. 1.
I move amendment No. 10:
In page 2, line 8, to delete "A RELATED MATTER" and substitute "RELATED MATTERS".
I accept the amendment, as it simply involves deleting the letter "A" and adding the letter "S" at the relevant places.
Amendment agreed to.
Title, as amended, agreed to.
In her second summing up, the Minister appeared to indicate that my concern was whether or not victims were complaining about the issue of the reporting of their cases. That was not my point, rather it was that society at large might imitate these crimes in view of the over-salubrious reporting of them. That is the central point which was made by the DPP in his recent remarks.
Bill reported with amendments.
Acting Chairman
When is it proposed to take Report Stage?
It is proposed to take Report Stage on Wednesday, 26 April 1995.
Sitting suspended at 2.35 p.m. and resumed at 6 p.m.