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Seanad Éireann debate -
Friday, 2 Jun 2006

Vol. 183 No. 22

Criminal Law (Sexual Offences) Bill 2006: Committee Stage.


I move amendment No. 1:

In page 1, to delete lines 19 to 21 and substitute the following:

"the victim,

(c) any person who is, for the time being, responsible for the education, supervision or welfare of the victim;

(d) any person who is more than 60 months older than the victim;”.

The effect of this amendment is to include a person who is more than five years older than the victim under the definition of a person in authority. This would, for example, cover uncles-in-law, godparents, adult family friends, etc., who did not actually have any responsibility for the child or who never acted in loco parentis. The amendment also reflects a recommendation in the Law Reform Commission’s 1990 report on child sex abuse.

As I understand the amendment, the Senator seeks to add that any person who is more than five years older than the victim would be a person in authority. That might have the effect of diluting the position of those who have real authority, such as parents or guardians and close relatives of the victim and those acting in loco parentis, such as teachers and others in supervisory positions in, for example, sports organisations. I am not sure that dilution would be a good thing. It is probably better to categorise those people, otherwise one is creating an offence.

The effect of what the Senator is seeking is that the person would be exposed to a greater sentence. In that case it would be better to increase the sentence in section 3(1) rather than seek to categorise everybody who is five years older than the victim. I have some sympathy with the view that the sentences, which are in line with those which operated heretofore, are on the low side, given that they are maximum sentences.

The concern raised by Senator Walsh is adequately dealt with given that "person in authority" means a parent, step-parent, guardian, grandparent, uncle or aunt of the victim. The other point raised by my colleague in regard to the Law Reform Commission report seeking a broader definition of a victim is important. Earlier this week Senator Maurice Hayes reminded the House that too often we have heard and read significant reports from the Law Reform Commission which are not acted upon either by Government or Opposition. Where the Law Reform Commission makes a recommendation, such as that contained in our amendment No. 1, we have an opportunity to reflect on it and attempt to implement it in law when the opportunity arises.

The difficulty we have on Committee Stage is a procedural one. I presume the Government cannot accept any amendment for the reason that it would have to go back to the Dáil for approval, which would have the effect of slowing up the entire process. I am mindful of that but it does not prevent me from making the argument. That point, which is a significant one, was made earlier in the week by Senator Maurice Hayes. Where considerable expertise in this area of law has been brought to bear on a recommendation such as this from the Law Reform Commission, it would be unwise to rule it out of order immediately or not to consider it. It might well be an issue the committee, which the Minister and the Minister of State have said ought to be established, could examine. It would be unwise for any part of the Legislature to rule out of order immediately a proposal from the Law Reform Commission which in essence gives a much broader definition in the context of section 1.

The recommendations of the Law Reform Commission should be listened to. There will be further attempts at clarification and definition through the courts process. I am supported in this view by an interesting article by Carol Coulter in today's edition of The Irish Times in which she said difficulties could also arise when the courts come to define further a person in authority. She wonders how wide the net will be flung in this area. That suggests there will be scope for the court to define things. She also points to the rather loose phrase, “for the time being”. That is fairly vague. In my opinion that will certainly come in for scrutiny.

I cannot agree with what Senator Walsh said about higher sentences because of the present framing of the law. The age of consent of 17 is, in certain circumstances, too high. Without reducing that or without examining the question of a principle of consent, which I have repeatedly urged, injustice will be done to people. I would be happy with severe stringent sentences for the kind of horrible offence for which this man has rightly been sent back to jail today by a decision of the Supreme Court. However, it is plainly wrong to, for example, increase the penalties and make the situation more perilous for two male adolescents aged 16 and a half having an experimental sexual relationship. Due to the mix and the balance, I would not agree with higher sentencing.

I wish to advert to one other matter raised by Senator Brian Hayes. I wondered when to make this point and considered not doing so until we discuss the section. It is lamentable that we now know that there is no chance whatever of any of these amendments being accepted because the Dáil has adjourned following voting on the Bill. That renders the Seanad redundant. The function of this House is to revise legislation and table amendments to it. We have been quite deliberately frustrated in this by the act of Government in allowing the Dáil to adjourn until next week.

Hear, hear.

It would not have killed those in the Dáil to have been asked to wait around for a couple of hours in order to pass the amendments. It is perfectly clear that the contribution of this House is not taken seriously by the Government. I deplore that.

Our tabling of amendments is largely redundant, apart from the exercise of making the case for what may well be a re-examination of this legislation. No doubt there must be such a re-examination. We have been frustrated in our primary function as the second Chamber and that is a great pity. I look to the Minister of State, Deputy Brian Lenihan, to relay to the Government this view, which I am sure is shared on all sides of the House, although some may be inhibited in expressing it. I ask him to relay to Government that, on serious issues of this nature, Seanad Éireann should be permitted to fulfil its obligations. None of use want to be in here at this hour on a beautiful summer's day, but we have a duty to the people of the State and we should be assisted, rather than frustrated, in fulfilling our role.

I wish to make the same point as Senator Norris. While I may not agree with the amendments — I compliment the Minister and the Minister of State on bringing forward this legislation in such detail following round the clock analytical observation of the process — I want to listen to the discussion on them. Although I probably would not agree with the last amendment tabled by Senator Cummins, nevertheless more than ever we need to revisit this matter and perhaps the joint Oireachtas committee is the place where we can tease out other aspects about which I certainly would have reservations. I did not have the opportunity to contribute on Second Stage and I still feel that there is much to be said. I welcome the decision to oblige a joint Oireachtas committee to tease out other related matters. Although I am grateful to the Minister and his staff for bringing the matter this far, and to the Supreme Court for the ruling torearrest Mr. A, there are other minor details that need to be thrashed out further.

I appreciate the point made by Senators Norris and Ormonde regarding the functions of Seanad Éireann, which primarily relate to the revision of legislation. In the Government's defence, it has agreed that many of the issues that cannot be visited in this legislation will be revisited in the context of all-party consultations. In addition, extensive all-party consultations preceded the introduction of the legislation. While that does not address the interests of Independent Senators, who make such a marked contribution to the proceedings of Seanad Éireann, we are faced with the fact that since the Supreme Court decision last Tuesday week, an essential weapon in our armoury for the protection of children against predators has been absent and there is, therefore, considerable urgency about the enactment of this legislation. The Government has been criticised for not having a Bill ready the following day. This debate and our discussions in Government have demonstrated that these issues are not simple. Drafting legislation to address the immediate situation requires much consideration. I offer this as a defence to the criticism by Senators Norris and Ormonde of the expedition of this process.

I am aware that the Fine Gael Party is concerned to include targeting those with responsibility for children for penal sanction when they abuse the trust vested in them. The Government went some way to accommodating this by including different penalties and categories in section 3(1) for any person who defiles a child under the age of 17 years. Normally the penalty is imprisonment for a term not exceeding five years but where he or she is a person in authority, the sentence is a term not exceeding ten years. A definition of a person in authority is included in the interpretation section, similar to the amendment tabled by Senator Cummins.

The Senator also proposes to legislate for a person more than 60 months older than the victim. I agree with the Senator's ambition but the Supreme Court judgment was based on the principle that a person making an honest mistake as to age should have a defence. For this reason, we should be cautious about introducing further terms or age limits in the primary legislation. We will not change the basic age limits prescribed in the 1935 legislation. It would be dangerous to introduce other periods of age or time in the context of the response to a Supreme Court judgment that stated that honest mistake as to age could be a defence.

Amendment, by leave, withdrawn.
Question proposed: "That section 1 stand part of the Bill."

Although I have not tabled an amendment I wish to raise a point that should be borne in mind. The Minister explained that a sexual act meant an act consisting of sexual intercourse or buggery between persons who are not married to each other. He explained that it was crucial people could not have their married life interfered with and that it was possible for people younger than the age of consent to get married. This suggests an acknowledgement by the State that the age of 17 is not appropriate in certain situations. It is absurd that we are prepared to make exceptions. I regret that, under pressure from Fine Gael, the Government withdrew the suggestion to consider the age of consent in a rational fashion.

I am pleased the Minister has treated the House with great courtesy. A few hours would not make any difference to the application of law so his defence is not satisfactory. While I was having coffee, ordinary people, not Members of this House, stated that this House serves as a rubber stamp. Indeed, for the purposes of this Bill, this House serves as a rubber stamp but we could have done so far more effectively if our capacity to introduce amendments had been respected.

When my party's name is mentioned, my ears always prick up, and I was glad that Senator Norris referred to the fact that we put our view on this issue to the Government so squarely. We must be honest and accept that views differ on the age of consent and that there is no consensus position. I suspect that there is no agreement even within the two largest parties, which by definition are broadly based.

Rather than suggest that we can insert such a change at this stage, let us put the matter to one side, deal with it on an all-party basis and determine the consensus position. That is infinitely better than rushing into a position now at two minutes to midnight, making a decision that will have profound implications for everyone's future. On behalf of my party, I state that we will take part in those discussions. I do not suggest for a moment that they be open-ended and that in ten years' time the matter should not have been resolved.

However, let us be honest and fair with each other, acknowledging a variety of views on this subject. I fully respect that of Senator Norris, but my party thinks differently. If we are honest, we will admit that there are various views within it. To suggest that the matter be dealt with definitively in the context of this legislation is a step too far, and that is why we expressed our view honestly and publicly.

In recent years we have all registered with horror the fact that most abuse is perpetrated by people who know their victims. It is family members or those in the care of adults who are abused. As Senator Maurice Hayes said, we must return to the issue and ensure that adequate resources be put into counselling for those who have been abused.

Last night on "Prime Time" we saw the two young women from Donegal and understood how horrible it is in our adversarial system that they must give evidence. We must develop and put more resources into video testimony, since the victims know the perpetrators. The Minister has made the point that the person should be able to defend himself or herself, but the normal situation should not apply in such abuse cases. We must fund counselling and video evidence. It is critical that we return to this as quickly as possible.

Question put and agreed to.

I move amendment No. 2:

In page 2, between lines 20 and 21, to insert the following new subsection:

"(5) Where a person charged with an offence under this section—

(a) avails of a defence under subsection (4), and

(b) believed, at the time of the commission of the offence, that the child with whom he or she engaged or attempted to engage in a sexual act, was under the age of 17 years,

he or she shall be charged with an offence under section 3 in the alternative.”.

This is a most important amendment since it plugs a significant loophole pertaining to the defence of mistake in section 2. As the Bill stands, if a male is charged with having sex with a child of 14, and successfully convinces the court that he was mistaken and thought that the girl was 16, he cannot be convicted under section 2, which covers sex with a child under 15.

There is no problem with that, but he could not then be charged with an offence under section 3, which covers sex with a child aged 15 or 16, since charges have already been preferred and cannot be amended. This amendment would mean that the section 2 charge would automatically become a section 3 charge and that the person would be liable to penalties under the latter. We contend that one cannot be charged under both section 2 and section 3, just as one cannot be charged with manslaughter and murder.

I entirely understand the spirit in which this amendment has been tabled. If one examines the legislation within its four corners, the obvious question arises of whether one is creating a difficulty by having two distinct offences. First, it should be noted that the offence in section 2 can be committed only regarding a person under the age of 16 at the time. Section 3 can apply only where the child is under 17.

It must be noted that this is new legislation creating new criminal offences. We will later be inviting the Seanad to table a resolution requesting the President to consider whether this Bill should receive an earlier signature. From the moment of signature, whenever it takes place, the legislation will be law. Under the Constitution the Oireachtas can only declare Acts to be infringements of the law prospectively. That is a crucial point regarding our consideration of what is happening and has happened in the Supreme Court in recent days.

We are creating new offences and they will fall to be considered in the context of new practice. Existing practice will not be affected. Those who are familiar with prosecution practices are well aware that it is common practice among prosecutors to lay alternative charges in respect of offences. For example, in the case of persons under the age of 15, it will be open to the prosecuting authorities to lay a count against those persons under both sections 2 and 3 of the legislation. If the victim is aged 15 or 16, the charge can only be brought under section 3 because, by definition, that person is excluded from section 2. The alternative will exist. This is the practice that I anticipate will develop under the legislation. The defence of having made an honest mistake about the age of the victim may well be used by an accused in a particular context involving persons aged 15 or 17.

There is an amount of existing legislation on alternative verdicts and we do not want to disturb it. Section 7(1) of the Bill extends that legislation so the offences listed in the Bill can be the subject of an alternative verdict. My legal advice is that the position Senator Cummins rightly anticipated in his amendment is dealt with adequately in the legislation. If one reads the Bill on its own terms, his point is obvious. If, however, one considers it in the context of existing legislation one will note that it is addressed.

As the Minister of State correctly indicated, new offences are being created on foot of the Supreme Court ruling. As my colleague stated, there is concern that charges can only be laid once. Our amendment and the Government's proposal are exactly the same in that we both believe this could happen. All we are doing in our amendment is providing for the power to address the concerns. The Minister of State said that he believes the proposed option exists through existing practice, which I do not doubt.

It is important to note that the transcripts of this debate may be used in future in the Supreme Court or High Court to establish what the Oireachtas meant in the legislation. It is, therefore, essential that Senator Cummins's amendments were tabled and spoken to. Although the positions of the Government and Fine Gael are the same on this matter, the Government makes no explicit reference to the ability to charge in the alternative. The Minister is relying on practice but, given recent practice in the Supreme Court, we surely need to be suspicious of the practices that have developed.

I very much appreciate that the amendment was tabled. A similar amendment was tabled in the Dáil and, because of time constraints, it was not elucidated adequately——

It was not debated.

——in the one minute that remained in which to do so. The position is that section 7 addresses specifically the issue in question by adding offences to the list captured by the alternative verdicts legislation and other legislation. Notwithstanding Senator Norris's reservations that the Seanad has been short-changed, the fact that we can elucidate this point is very valuable. I appreciate that the amendment was tabled because it has enabled me to put on the record of the House the fact that the legislation does address this issue.

Amendment, by leave, withdrawn.
Question proposed: "That section 2 stand part of the Bill."

Section 2(4) deals with the section to which the Supreme Court refers, namely, the right of the defendant to state that he believed that the person was not of a certain age. The Mr. A case dealt with a 12 year old girl and the accused's defence team never suggested that he did not know the girl's age. There are six similar cases in which the guilty party is currently serving time in prison.

Has the Government a view on whether the ramification of today's Supreme Court decision will affect those other cases? The convicted persons might use this section to attempt to have their convictions quashed. It is early days and I appreciate how early this judgment was delivered, but there are six other cases and public elucidation of this matter is important in establishing whether or not a sufficient case could be made by those individuals.

We can expect that this subsection will be relied upon as a defence. Therefore, it will be tested severely. The Minister of State explained this issue in a very clear fashion earlier, but I would like him to comment on the last sentence, which states "The court will have regard to the presence or absence of reasonable grounds for the defendant so believing, and all other relevant circumstances."

We must now legislate for this due to the Supreme Court decision. Even though it was felt over the years it would be unwise to do so, it must be monitored very closely in its operation. If it contains a lacuna that makes the prosecution of such cases less likely, we should not be shy about considering a constitutional referendum. There is a strong belief among the public that innocent people should not be defiled while the perpetrators are cleared due to technical loopholes in the Bill.