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Seanad Éireann debate -
Friday, 2 Jun 2006

Vol. 183 No. 22

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

Question again proposed: "That section 2 stand part of the Bill."

I do not wish to labour a point I made earlier regarding subsection (4) but can the rules of court make it clear that a person was a member of the family or a close neighbour of the victim who, therefore, knew the age of the child and could not claim not to know? This would obviate the need to bring the child into court for cross-examination.

We know that this legislation cannot be applied retrospectively. A number of people have been charged under the old legislation and there is some suggestion that cases are pending. One would hope that the defendants in those cases would be charged under the alternative charges that the Minister has said are available.

A number of issues have been raised by Senator Maurice Hayes. Under the Constitution, the Houses of the Oireachtas cannot declare acts to be infringements of the law retrospectively. That is very clear. Therefore, between the time of the Supreme Court judgment and this evening — I am assuming the President will accede to our request to sign the Bill into law but I do not want to be disrespectful to her — everything has to be dealt with under the statute law valid during that period. That is the strict legal position. We are legislating here for what happens henceforth.

Yes, but the point I was trying to make was that if a person could not be charged with unlawful carnal knowledge, I understood from the Minister that perhaps he or she could be charged with sexual assault or some other aggravated offence. I hope that will be proceeded with.

Absolutely. That is the position. All valid offences on the existing Statute Book are available to the prosecuting authorities. The exercise we are engaged upon in the Oireachtas today is to increase the armoury of the prosecuting authorities from the time the President signs this Bill. A substantial amount of legislation and a number of designated offences can be availed of. As the discussion in both Houses has illustrated, some of these offences involve far greater evidential difficulties because the issue of consent can be raised. The judgment of the Oireachtas both in 1935 and today is that it is highly inappropriate in the case of a child to have to raise the question of consent. That is the fundamental policy issue we are trying to address. It is interesting that seven decades have not altered our consciousness on this issue.

Senator Brian Hayes was rightly concerned that what we do today would have a prejudicial effect on the litigation currently working its way through the courts. For the reason I explained to Senator Maurice Hayes, it will not do so. What we do today is prospective in effect. The court must consider the retrospective picture of the consequences of the invalidity declared by the Supreme Court last Tuesday week. That issue does not arise. I assure the Senator that whatever we do in terms of the defence of honest mistake will not have any implication for existing cases which fall to be determined.

I have not had an opportunity, as I am sure Senator Brian Hayes will appreciate, of studying the detail of the Supreme Court judgment this afternoon. From the limited information I obtained, my understanding is that it is, as the lawyers state, a decision turning on its own facts. Hence, other decisions must be arrived at in other cases which may arrive before the courts. I assure the Senator that anything we do this evening will not have implications for the litigation which will, and can, take place as a result of the Supreme Court decision.

The question was canvassed by Senators Walsh and Brian Hayes on the precise meaning of section 2(4) and its implications for the nature of the confrontation which a child will face in giving evidence in any subsequent criminal proceedings. In drawing up the text of section 2(4), the Government had regard to a number of factors.

This section analyses the nature of the mental capacity which an offender must have to commit an offence. Lawyers escape into the refuge of Latin to describe it as mens rea. In fact, it is a simple issue of what mental capacity and degree of intention the offender has to substantiate all of the constituent elements of the offence. The decision arrived at and reflected in the legislation is that the defence of honest mistake as to age should have both a subjective and objective element. The subjective element is essential because it flows from the Supreme Court decision. The person must have, in his or her own mind, the subjective belief that he or she was honestly mistaken as to the age.

The Government was convinced that it was also essential to insert an objective requirement that the court "shall have regard to the presence or absence of reasonable grounds for the defendant's so believing and all other relevant circumstances". The court is obliged to take that into account. That is inserted to ensure a degree of objectivity regarding the state of mind of the accused as well as subjectivity. Some will argue that the test should be purely objective. Having examined this issue, the Government, acting on the advice of the Attorney General, was satisfied that the subjective element must be part of that determination by the court.

I want to focus on the wording of subsection 2(4). In his Second Stage reply, the Minister referred to the manner in which court cases would now be held. He suggested this would radically change the approach to this crime and that was why successive Governments ignored the issue previously. It would put the spotlight on the victim, in this case the child. However, 1935 and 2006 are very different as has been acknowledged in nearly all of the contributions today and this seems to have been in the minds of the parliamentary draughtsmen and the Government in formulating this Bill.

Subsection 4 of the Bill states "it falls to the court to consider whether the defendant honestly believed that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 15 years". This does not specify whether the 15 year old admitted to being that age, the person charged asked the question or whether that person assumed that the victim was over 15 years of age without establishing it.

This subject has often been explored in this country and other jurisdictions. It brought to mind "The Accused", a film starring Jodie Foster, where the central theme was closely related to what is being discussed today. Ms Foster played a teenager, not a child, who, because of the manner in which she dressed, conveyed a certain availability. She was raped in the movie and it took the courts a long time to establish that she was the victim, despite the best efforts of the legal team representing the defendant in trying to convey that the way she dressed made her available for sexual favours.

I use this example because I have concerns about putting victims of 15 years of age into the legal spotlight. I would like the Minister of State to address the point made by the Minister for Justice, Equality and Law Reform in his concluding speech. He said there was a need to examine the structures, for example video evidence. The Minister of State, as a barrister, will be familiar with such structures, I am not. I seek assurance that efforts will be made to improve legal structures to assist the victim. Two victims in a recent rape case said that the system was entirely against them. The perpetrator had a legal team, legal aid, counselling and the legal apparatus that we take for granted in a system where one is innocent until proven guilty. However, none of this was available to the victims. They were not given the book of evidence in advance. They were not given the assistance they felt they were owed and they believe many other young women will not pursue cases through the courts because of their experience.

This is a highly emotive subject and I want an assurance that when this section is passed, which changes the practice of the past 70 years, there will be a pro-active approach by this Government to ensure that victims of rape are given at least the same treatment in the legal system as the defendant. The legal system should not work against them but should give them the opportunity to prove their status as victims.

I welcome the Leader's indication that she will be flexible and will review the time allowed for the debate. It is important that every Member who wants to make a contribution on the amendments can do so. The amendments should be taken. Senator Hayes made a good point in highlighting that less than a third of the amendments tabled in the Dáil were taken — they were not even heard. It is important that we should be given the opportunity to deal with them.

The Minister mentioned the question of mens rea. The principle of mens rea — if I am correct in my understanding of this and the Minister of State who is a barrister will be able to correct me — was contemplated by the 1885 Act but was dropped in the 1935 Act, which was odd. That is where all the trouble comes from. There was an oversight there. The Minister of State dealt with the question of honest doubt as opposed to reasonable doubt. He has perhaps short-circuited the debate on one of my amendments by giving me at least part of the answer. I will leave it at that as other Members wish to make extensive contributions on their amendments.

I indicated that I wished to speak but on reflection I will defer to the next speaker and speak in detail on section 5.

I thank the Senators for their contribution on the section. Senator Mooney raised the point that every protection and assistance should be given to witnesses in a criminal trial involving a sexual offence and under the Criminal Evidence Act 1992 an ample legislative foundation has been laid for that. Under Part 3 of the 1992 Act, evidence by way of video link can be given by any child victim witness in a trial involving the prosecution of a sexual offence. That is provided for in Part 3 which has been commenced. In a sense, that addresses many of the issues that arise because in cross-examination evidence can be heard by way of video link. It is a substantial protection for a child witness.

However, the issue that remains to be addressed, to which Senator Mooney at least hinted, is the question of section 16 of the 1992 Act, which has not yet been commenced. Section 16 envisaged that the evidence in chief, the statement of the child who has been abused, can be given by way of video recording and not in open court. Senators will appreciate that while that section has been on the Statute Book since 1992, there are enormous practical difficulties in devising the appropriate protocols for the production of evidence by way of video recording in open court. The Minister for Justice, Equality and Law Reform certainly indicated in the other House this morning that it is now our intention, given the Supreme Court decision, to proceed with this immediately and to give the child witness the protection of being able to give his or her evidence in a contemporaneous way by means of video link and then simply make himself or herself available for cross-examination in the court. It is our intention to expedite the deliberations of the Health Service Executive and the Department of Justice, Equality and Law Reform on this issue within the next month.

The other aspect of my contribution concerns allegations made by those who have gone through the system who were subject to heinous sexual assaults, whose perpetrators were jailed. Those victims have accused the legal system of not giving them the same equality in dealing with their case in terms of the provision of a book of evidence, counselling and all the other components of the architecture that was given to the defendant, who would have been given counselling, free legal aid and all the other apparatus required to defend oneself. Given the changes in the law and the fact that we are passing a law which will oblige the victim to come before the courts and be subject to cross-examination, there is a more acute need to ensure that every possible assistance is given.

The victim has the right to be accompanied by a legal aid solicitor in this type of case and that has been the practice in recent years. Every criminal trial is a prosecution instituted in the name of the people of Ireland against a particular accused person. Counsel for the Director of Public Prosecutions, solicitors and necessary support staff represent the public interest in that context. I appreciate that there can be separate and distinct representation for the victim even though the DPP, in the public interest, has instituted proceedings against a particular accused. We have acknowledged that distinct right to the extent that there is the right to have a legal aid solicitor accompanying the victim of a crime of this type. That is the existing practice. To go above and beyond that would require a major consideration of the nature of a criminal trial in our system of the administration of justice.

Question put and agreed to.

I move amendment No. 3:

In page 3, between lines 6 and 7, to insert the following subsection:

"(5) Where a person guilty of an offence under this section—

(a) is not more than 24 months older than the child under the age of 17 years with whom he or she engaged or attempted to engage in a sexual act, and

(b) was not—

(i) in respect of the child under the age of 17 years with whom he or she engaged or attempted to engage in a sexual act, and

(ii) at the time of the commission of the offence, a person in authority, he or she shall be liable on summary conviction to a fine not exceeding €1,000.".

This amendment seeks to reduce the seriousness of an offence committed by a person under 17 years of age. Under the present terms of the Bill if two 16 year olds have sexual intercourse not only is the female not committing an offence because of section 5 but the male is liable to a five-year prison sentence. Senator Norris and others mentioned this on Second Stage. The Bill should not aim to criminalise peer sex but to catch older sexual predators.

To add to what Senator Cummins said, on Second Stage I cited a hypothetical case which is real in prospect, namely, that a 16 year old girl could seduce a 14 year old boy and if the boy complained and his parents went to the police the girl might get off scot free while he went to jail. That is obviously a nonsense and is the kind of area in which this legislation needs to be scrutinised.

I have put down an amendment to section 5 on this point, although that may not be the right way to deal with it. It is a fact of life that 15, 16 and 17 year olds have consensual sex. A difficulty arises if somebody challenges this behaviour and reports it to the Garda. I may be incorrect on a point of law but if the DPP has no discretion to prosecute a prima facie case against either of the individuals, the girl is protected under section 5 but the young man is not and will suffer from having a criminal record and serving time in jail.

The Minister of State said earlier we must protect all children, irrespective of gender. We have been swayed into concentrating more on young women than on young men but boys must be protected as much as girls. The Minister of State also said that children should not be born out of criminality. If we allow a young man, under the age of 17, to be prosecuted and the girl is not prosecuted, any child of that union would be born out of the criminality of the father rather than the mother.

Hear, hear.

There is a great deal of common sense in what Senator Cox has said although we are encroaching on section 5 which is related to this issue. My colleague's amendment is very sensible because it distinguishes between peer group and predatory sex, which are fundamentally different. What is wrong with putting into law a clear statement to the effect that while we do not approve of it, a totally different range of offences attaches to it?

I listened to the Minister for Justice, Equality and Law Reform when he spoke on the issue of the €1,000 fine in the other House. He said he did not want working class young men to have to pay €1,000 on the back of a District Court conviction. I pointed out, however, that the current minimum sentence and penalty is €6,000 and-or three months imprisonment. There is no consistency in the Minister's position on our amendment and the minimum penalties that exist. I understand we are in difficult circumstances but we need to return to this because there is a fundamental distinction between the offence of a predatory sex offender and the circumstances of peer group sex.

On the issue of age, we need only examine the statistics from the sexually transmitted disease units in Temple Street and the Mater to see that those involved are getting younger. We must take that into account. We can debate the differentiation between male and female, but age is something that must be given very careful consideration. Children are sexually active a lot younger than they used to be and we must be realistic about that.

Will people convicted on these charges be included on the sex offenders' list? An issue was raised with me in that regard. It concerned an individual who had been in prison on serious sex offence charges and who was released early, long before the term of his imprisonment was due to be finished. When attempts were made to check whether he was still on the list, it was impossible to obtain that information. It can only be obtained by going through senior Garda sources. Can more information be obtained about the list and whether it might be possible to obtain access to it more easily than is the case at present?

The arguments made in favour of this amendment are strong. On Second Stage, I proposed a variation approaching this amendment which suggested that section 3(9) should be extended to cover this category of person. It would encompass people who would be excluded from the provisions of the Sex Offenders Act 2001, the peer group suggested in the amendment.

I think that was accepted in the Dáil earlier.

No, the Bill before us mentions a person from the peer group who is two years older than the victim. That group would not be subject to the provisions of the Sex Offenders Act. What I am saying is that the peer group should be in the category where the Director of Public Prosecutions would have discretion as to whether a person is prosecuted. Rather than provide a person with cover through the Bill, that might be a better way of dealing with it. There is another amendment put forward in that regard and it is a matter to which we should give serious consideration. The proposal before us suggests that it should be 24 months older, but I think it should be 36 months. The simple reason for this is that when, as a teenager, I was going out with the woman who is now my wife, I was three years older than her. I see 24 months as a bit tight. Perhaps it is worth another look.

Does the Senator want the peer group not to be subject to the Act?

Section 3(9) states, "No proceedings for an offence under this section against a child under the age of 17 years shall be brought except by, or with the consent of, the Director of Public Prosecutions". In other words, it is not mandatory for the DPP to take a case. I am saying that it should be a child under the age of 17 years, or a member of the peer group referred to in the amendment, who would be 24 months older than the person. The DPP would, therefore, have discretion, depending on the case compiled, to effect the prosecution. That might be better than enshrining it in legislation because people have a responsibility to bear once they are over that age.

I agree with Senator Norris that the age of consent should be 16. The issues of imprisonment, sentencing and penalties, which I said are too low, should, therefore, probably only be increased when that age of consent issue is addressed. However, there is not a consensus on that.

I note Senator Cummins included a pecuniary fine with regard to the offence in his amendment. That is not contained in the legislation. It is interesting that one of the cases before the High Court involved a person who got an eight-year sentence, with two years suspended. Subsequently, however, in a civil case taken by the victims, that individual was obliged to forfeit a substantial sum, in excess of €600,000, to them. There should be financial penalties in addition to custodial sentences, but they should not replace the latter. Financial penalties would provide part funding for counselling. We need joined-up thinking and it is ideal that the Minister of State, who has responsibility for children and who has concerns in this area, is present. Let us hope that the debate that will follow this legislation will address all these issues, that we shall reach a consensus and that the outcome will be really good legislation to protect children.

In my humble and non-legal way, I understood that Senator Cox moved an amendment in respect of section 5. We then referred to section 3. May I deal with the generality of section 5 because it relates to issues raised by Senators Cox, Walsh and Mooney?

We are dealing with amendment No. 3 to section 3.

I am aware of that. I stand corrected and will wait until we reach section 5.

On foot of personal experience, I am in favour of financial penalties. As an innocent bystander in Parnell Street talking to a neighbour, I was punched in the face by a young person — a queer basher from the working class. The pleasant consequence of that was that I received the sum of €1,000, which has been mentioned by Senator Cummins.

I wish to refer briefly to what Senator Higgins said about the discretion of the Director of Public Prosecutions. That is an interesting idea but they should go in the direction of a principle of consent rather than an age of consent because we are referring this in any event, but not to a court. As a result, the reasons will never be made public. The public will be concerned to know why, in certain cases, the Director of Public Prosecutions did not proceed. At present, there is no requirement whatever on the Office of the Director of Public Prosecutions to give any reason and it never does. We would, however, discover that reason in court. When the Government re-examines this matter, I hope it will at least consider the question of a principle of consent in respect of these difficult matters.

In a case such as that which has been satisfactorily resolved today, there could not be the slightest question of doubt. Nobody, no matter how liberal, would ever, in my opinion, suggest that a 12 year old girl who was deliberately made drunk and who was then interfered with while asleep or in the process of being sick gave consent. One could not possibly imagine that there was consent in that case. There is no doubt in my mind — I do not think there could be any doubt in anybody's mind — about that but there are cases that should be referred to court to investigate the entire matter of consent. I do not believe that the Director of Public Prosecutions is totally satisfactory precisely because he — or, in the future, possibly she — is not required to explain the reasons.

I agree generally with the spirit of the amendment but it can be left to the wider consideration that is to take place. I did take seriously the point raised by Senator Cox that we should not criminalise young people.

Perhaps the Minister of State would assist me in regard to the construction of section 3(9). It provides that no proceedings shall be taken against a person under the age of 17 for an offence, rather than no proceedings can be taken for an offence, committed by whoever, against the person under 17. The essence is not to proceed against a child under 17. Is that correct?

I thank the Minister of State.

I agree with Senator Maurice Hayes. An interesting question was raised by Senators Cox and Norris but it is one that must be raised in the context of the all-party discussions. It is clear from the debate in both Houses that there is no consensus on what should be the age of responsibility. Fine Gael has tabled an amendment suggesting there should be a lesser penalty, but its leader made an eloquent address in Dáil Éireann this morning urging us all to leave the clear signal there about the age of 17. That was the case he made in the House today.

We consulted with all the parties and we could not establish a consensus on what the appropriate age of responsibility should be. There is an option for the summary disposal of minor offences in this legislation. Although I accept that option is restricted to attempts under the different sections, the Director of Public Prosecutions asked us to specifically provide for that and we did so. The Government's decision, which is our recommendation to the Oireachtas, is that we should restate the basic prohibitions in the 1935 legislation and postpone the issue of the age of responsibility to a wider debate. I accept there is a wider debate, but we have inserted the safeguard, to which Senator Maurice Hayes referred, of the sanction of the DPP in any prosecution.

I want to address specifically an issue Senator Cox raised in that context. Senator Cox seemed to be under the misapprehension that the DPP's hands were tied in consideration of any prosecution. It is well established at common law that the DPP has a discretion as to whether or not to prosecute, and nothing in this legislation affects that. The DPP has a free hand in that matter. That is an important consideration. Certainly, the Government would not have been content bringing these proposals before the House if the DPP did not have that element of discretion in any prosecution.

Senator Cox was also concerned that we would be prosecuting young boys. Of course that is the position under the existing 1935 Act, which was considered by the Supreme Court. The Supreme Court did not condemn that element of the legislation. That is the existing law in practice. The Government, in arriving at a conclusion about what is appropriate today, had to consider the existing law. Certainly the Government is willing to have a debate on the existing law but it does not accept that such a debate can be concluded in a period of ten days.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 3, between lines 6 and 7, to insert the following subsection:

"(5) Where a person guilty of an offence under this section is, at the time of the commission of the offence, under the age of 17 years, any record of a conviction under this section shall be expunged once he or she reaches the age of majority.".

This follows from the previous amendment. The effect of this amendment is to ensure that, in line with the aim of not seriously criminalising peer sex but to catch older sexual predators, teenage sexual partners, specifically males, in light of section 5 which we have discussed, would not be forced to carry a criminal record throughout their lives. That is a matter to which Senator Hayes has alluded. Let us face it. Such a record would prevent them from getting visas to the USA or Australia, and possibly affect future job prospects.

Section 258 of the Children Act 2001, which is commenced, deals with this position and provides for the expunging of the record of an offence committed by a person who has not attained the age of 18. There is, in effect, a detailed statutory scheme, under section 258 of the Children Act 2001, for the elimination of such records.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 3, between lines 6 and 7, to insert the following subsection:

"(5) Where a person guilty of an offence under this section is under the age of 17 years, the Court shall have regard to Part 7 of the Children Act 2001.".

Senator Cummins's amendment refers to Part 7 of the Children Act 2001 and the Children's Court. That is, of course, a part of the Children Act 2001 which has been commenced and it places the Children's Court and its procedures on a statutory basis. The Children's Court deals with children who are charged summarily. That would exclude most offences under this Bill from its jurisdiction but where a person is charged with a minor offence under this legislation, Part 7 will apply.

I am not clear as to the purpose of the amendment which seeks to insert, "Where a person guilty of an offence under this section is under the age of 17 years, the Court shall have regard to Part 7 of the Children Act 2001", because that part of the Children Act deals with the issue of jurisdiction. The offence must find a venue first and in the serious types offence envisaged in the legislation the venue would be the Circuit Criminal Court. In the case of a minor offence, it will arise before the Children's Court.

Amendment, by leave, withdrawn.

As it is now 7.15 p.m., I am required to put the following question in accordance with the amended Order of Business.