Dáil Éireann díospóireacht -
Tuesday, 3 Mar 1981

Vol. 327 No. 4

Criminal Law (Rape) Bill, 1980: Committee Stage (Resumed).

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

Mr. Keating

We have already traversed a variety of aspects of this section of the Bill. I do not intend to become embroiled in repeating the arguments we made. Essentially they related to three issues. I will just mention them to refresh the Minister's memory about the issues on which we were at loggerheads to some degree. The definition of rape was a problem. Perhaps we can deal with that more fully on section 2. The sticking point was the degree to which some types of sexual assault are allegedly at least as serious as the crime of rape itself but are not dealt with as such in the Bill.

Secondly, there was the degree to which the Bill compounds and continues the distinction in relation to some categories of women and their right to take an action. I refer to married women. I tried to show some anomalies, contradictions and injustices which the Bill proposes to legislate into existence. Thirdly, there was the question of the age of a defendant which is referred to and, in this regard, lines 20 and onwards are relevant. I wondered why it was necessary to have any age in the Bill, and whether it would be desirable that a court should have the right under other statutes to adjudicate on what would be appropriate, taking into account the individual circumstances of the case.

There is another anomaly. The age of criminal responsibility here, as we all know, is the lowest in Europe at seven years. This Bill would seem to rule out the possibility of somebody under the age of 14 years being charged with rape which, I have no doubt in 99.9 per cent of cases, would be right and just. There might be circumstances where that might not be appropriate, although I will admit they are hard to envisage. It seems to me that each case should be looked at on its merits. I wonder what the merit is in writing into law an age cut-off point in any case.

The Minister has indicated that he takes the view that the Bill deals with the issue I raised in relation to what has come to be known as marital rape. He said it is very likely that this Bill would facilitate such a prosecution. I should like him to confirm that for us. I should also like him to refer to the other two points: the degree to which there is a relative weakness in respect of crimes of sexual assault, or abuse, which in the eyes of many people would be at least as serious as the repugnant crime of rape but for which the offence would not be the same, or open to being the same and could he give us some rationale for introducing the age into this legislation?

Minister of State at the Department of Justice (Mr. Doherty)

On the last evening, on more than one occasion, I gave what I regarded as very detailed explanations in answer to questions put to me. I do not intend today to go back on ground we have already rehashed repeatedly.

An Leas-Cheann Comhairle

The Chair points out that it would be completely out of order to do so. The Chair does not want to curtail the Deputy, but the arguments being put forward now were all dealt with on a number of occasions on the last two days.

Mr. Keating

I am not asking for a rehash of the arguments. I just want to give the Minister an opportunity to confirm or otherwise the impression he gave to the House and outside the House last week to the effect that the Bill facilitates prosecution in cases of rape of married women. When the Minister said it is likely that the Bill facilitates prosecutions in such cases, I assume he still thinks so. I thought there was a certain amount of doubt in the Minister's mind about it last week. We did not deal at any great length with the question of age. Indeed the Minister did not reply to points on that question. Qualms were expressed by these benches and Deputy Browne and I should like to have a comment from the Minister on it. That would not be rehashing.

Mr. Doherty

If I were to deal with the points the Deputy has now raised I would be repeating myself. I repeated myself several times last week.

Mr. Keating

I have not been given an answer in relation to age. I am entitled to an answer — that is what the debate is about.

An Leas-Cheann Comhairle

I heard this discussed on the previous occasion.

Mr. Keating

The Leas-Cheann Comhairle was not here all the time.

An Leas-Cheann Comhairle

I was here for most of it.

Mr. Keating

I defy contradiction from the Chair, from the Minister or anyone else, when I say we did not deal with the age cut-off except in a passing way. All I am looking for is two lines of an answer. I want to know if my interpretation of the Minister's remarks is correct. I do not want to engage in a farce. If I am not to be given answers I might as well walk out and forget about it.

An Leas-Cheann Comhairle

There is no farce, but repetition is out of order.

Mr. Doherty

I will give two lines of an answer: On the question of age, it is proposed to maintain the common law doctrine which applies to other sexual offences, we do not propose to change it.

Mr. Keating

I will not dissent on the section but we have had a major difference of opinion with the Minister on section 1. I still contend there is a grey area in the section, but the Minister has not chosen to clear it up.

Question put and agreed to.

SECTION 2.

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

Mr. Keating

I should like to know what is the point of the use of the word "unlawful" in line 25. Presumably any sexual intercourse with a woman against her consent at the time would be covered, but I wonder why the word is there.

Mr. Doherty

"Unlawful" means outside marriage.

Mr. Keating

Therefore, all acts of sexual intercourse outside marriage are unlawful — in other words it is not tautological from the point of view of the woman consenting to it: it is a different thing altogether?

Mr. Doherty

Yes.

Mr. Keating

I have a concern about this section which I will try to explain simply — I may be leaving myself open to a certain amount of misunderstanding in this matter. This Bill is only about acts of sexual violation committed by a man on a woman. However, there are institutions and places where acts of sexual brutality occur by one man on another man. It is known that this has happened in places of penal servitude and so on. The meaning of "rape" in the Bill is strictly in relation to the narrow definition of the word, an act of sexual intercourse, an act of penetration of the vagina by the penis. I contend it is time to look again at the fundamental definition of "rape" in the Bill. I submit it would be best if the definition were not, shall we say, sexist.

There have been acts not only in places of penal servitude but in other situations in which people have taken advantage of others younger or physically weaker which could reasonably be referred to as instances of rape. I wonder, therefore, if the Minister would consider in relation to the first lines of the section revising or rewording the definition to allow for a situation in which the crime of rape is not merely a crime by a man against a woman but also by a stronger man or a group of men on another male who is weaker or subordinate. Such acts do not seem to be covered in this Bill. I admit they may be covered in other legislation in relation to indecent assault, crimes of buggery or other types of sexual crimes. I have a certain doubt about a Bill which purports to interpret this crime as being merely one which can be committed by one sex on another. The crime, unfortunately, perversely and sadly, is committed sometimes by males on other males and these merit the definition of "rape". Therefore we should not only restrict the term "rape" to the traditional notion. I suggest there is need for a wider definition of "rape".

Mr. Doherty

The Bill before us deals with rape. The other matters the Deputy has raised, certain acts that can occur between males, adult or minor, and even between consenting males, are dealt with adequately in other legislation. It would not be appropriate or proper that there should be provision for them in this Bill, having regard to the fact that we are dealing specifically with rape as we have known it in the common law. We are proposing to give it a statutory definition here.

Mr. Keating

Is the sentence for crimes of sexual abuse of a minor, a boy ——

Mr. Doherty

A life sentence in the case of buggery.

Mr. Keating

Does the Minister think there is any wisdom in confining it just to the exploitation of one sex by another?

Mr. Doherty

I had not considered it and I do not think it would be proper for me to discuss some of the points raised because it is not proposed to include them in this legislation. We are dealing with rape, not with buggery or incest or other matters.

Mr. Keating

Subsection (1) (b) states:

at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it,

I should like some elaboration on this. The question of consent is an extraordinarily difficult area and I am not satisfied the Bill is clear. It could be open to some degree of misinterpretation or distortion. The section states that a man commits rape if at that time he knows she does not consent to the intercourse.

That is fairly clear, but how can it be proved? It posits some kind of apprehension of a person's state of mind although obviously there could be a rebuttal of the man's advances. However, there are circumstances where through fear, blackmail or some kind of moral pressure the question of consent and the ease in ascertaining that a person was opposed to the act no longer exists. If a woman does not physically resist, has she consented? I would say she has not. She might not resist physically because she would fear not just rape but also a bad beating. The Bill is unclear on this matter.

The Bill provides that a man commits rape if he is reckless as to whether a woman does or does not consent. I have certain anxieties in this matter because we must be just on both sides. I should like the Ministrer to elaborate on what is meant by recklessness. Does it mean the man is to define the state of mind of the woman in a way that is beyond dispute? The phrasing in the Bill is loose and it leaves room for charges and counter-charges as to whether there was consent. A man could say that the woman did not physically resist, that there was no suggestion of rebuttal or opposition, that she participated willingly in the act and that she was now trying to disown the act because it had become public or for some other reason. I should like to know the thinking behind the phrase used in the Bill.

Mr. Doherty

If the man believes the woman consented he would seek to show he had reasonable grounds for such belief and that his belief was not something that was established recklessly. The other point is that if a woman were forced the question of consent not being forthcoming would be automatically evident. It is a matter for the jury to assess whether consent was given or not given.

Mr. Keating

I realise this is a very difficult area. I am worried about the person who is open to this charge because I realise the man would have great difficulty in proving consent in some circumstances. On Second Stage we discussed some of the myths attaching to the crime of rape. For example, we discovered that the majority of crimes of rape were not committed by people unknown to each other, that the majority of the crimes were among people who were at least on acquaintanceship terms and in some cases were friends. leaving open to confusion or the question of consent, I wonder if may be some injustices? "Reckless" is an interesting word; it implies a kind of cavalier approach to finding out if a person wanted sexual intercourse. I find it difficult to see how a person could prove or disprove that. I am anxious to ensure that the Bill will be as tightly worded as possible so that there will not be an injustice on either side.

We know that in the majority of cases the assault takes place either in the home of the assailant or of the person being attacked or in some other location acceptable to both parties. We know that in most cases rape is not a crime of a sudden sexual urge of some kind, that usually it is deliberately and carefully planned. In such circumstances, where there is what we might call a relationship of some kind between the parties, does the Minister consider that the degree to which consent is to be proved leaves open the door to an injustice being done? If a woman says that she did not consent, I do not see how a man could prove otherwise, and vice versa. Perhaps the wording of this section could be tightened up before Report Stage.

Mr. Doherty

The presence or absence of reasonable grounds for such a belief is a matter for the jury. A man could not genuinely believe a woman was consenting if he was recklessly indifferent about whether or not she was consenting. If a man honestly held that belief, he was not guilty and the jury would have to consider the presence or absence of reasonable grounds for such a belief. I do not think the Deputy need have any worry about what is proposed in this section.

Mr. Keating

I should like to read from the report of the Special Advisory Committee on Sexual Offences submitted to the British Government in 1975. On the question of consent in rape there was the following comment in paragraph 20:

Until the second half of the nineteenth century, the courts seem to have had no problems about what amounted to consent. If a woman was made by the use of force to have sexual intercourse, or submitted in fear under a threat of force, she was adjudged to have been raped. She had not consented to the intercourse. This is still the law and, in our opinion should continue to be the law. In the ordinary case of rape there has been force or the threat of force. Where sexual intercourse is procured by fraud, there is under section 3 of the Act of 1956 a special offence which we propose should continue.

In paragraph 22 there is the following comment:

A well known and much used textbook on the criminal law — that is a book by Smith and Hogan —is very critical of this situation. If a woman knows what is happening to her and that is penile penetration, it is not easy to understand why the law should distinguish a mistake as to the purpose of the penetration from a mistake as to the identity of the man doing the penetrating, or should distinguish between the woman who believes she is having intercourse with her husband and the woman who believes the other party is her lover. It is arguable that all these cases should amount to rape, or none. In all these cases the woman's consent has been obtained by statements or conduct intended to deceive. This is what the law regards as fraud, which can take many forms. The question arises why in rape one form of fraud should provide a defence and others not. The two kinds of fraud illustrated by such cases as Flattery and Barrow are not the only ones. Take, for example, the case of a homeless young woman with a child who is told untruthfully by a housing official of a local authority that he will provide her with accommodation if she will have sexual intercourse with him. In her desperation she agrees and then finds out that the man had no authority to provide her with accommodation. This is not rape under the present law; but it is arguable that it should be. The difficulty lies in knowing where to draw the line. Few would consider that a young woman had been raped if she consented to sexual intercourse because she believed her seducer when he told her untruthfully that he owned a valuable piece of jewellery which he would give her the next day.

It is not quite as simple as the Minister puts across. In paragraph 24 the following point is made:

A majority of us are of the opinion that the offence of rape should not apply when a woman has knowingly consented to the defendant putting his penis into her vagina. Mistake as to his identity, whether as a husband or otherwise, or as to the purpose for which the penetration has been made should be irrelevant. Nor should the use of threats or other intimidation short of threats of force amount to rape. Most of us are of the opinion that the distinction drawn in the cases cannot bear the weight they have been made to carry....

What is the situation of a defendant and a person who alleges that she has been raped, where in fact consent of some kind was obtained although the reasons for the consent being obtained may have been completely fraudulent, that is where the consent was given under duress? The Bill does not seem to me to refer comprehensively to that possibility. Is that consent? Is it consent where there is a case of a woman who for one reason or another has been seduced into believing that her co-operation is in her best interest? this section is vague in that respect. I believe we will get cases where it will be impossible to prove one way or the other. If that is the case it is not good law. I deliberately refrained from tabling an amendment to the Bill because of the genuine difficulty which exists. There certainly is a difficulty and I am not satisfied that the Bill meets it. In regard to section 2 (1) (b), what is the Minister's view of the situation where that woman, having been gulled into co-operating, clearly gives her consent, although under duress?

Mr. Doherty

There is no intention to change the law in this regard. The law is the same as the British law and it takes into account the Morgan case. Furthermore, where a woman had intercourse under duress, clearly consent would not be forthcoming there. The absence of reasonable grounds for the belief by the man that consent was forthcoming would be a matter for the jury and might be evidence to suggest that the consent was not forthcoming.

Mr. Keating

I will enter my uneasiness about the matter. It is not as satisfactory and as explicit as I would like it but time will tell. The purpose of sub-section (2) is that the jury in a rape case have to take into account that it is a defence of the crime if the accused argues that he did not believe the woman to be opposed to the alleged rape and that he believed her to be consenting. It is also stated that it is not necessary for the man to have reasonable grounds for believing her to have consented but that such a belief is a matter for the jury to take into account in considering if a man did believe she consented. It is not necessary, according to my interpretation of the section, for the man to have reasonable grounds for believing her to have consented. That is something for the jury to take into account.

I am concerned about that because it might in some circumstances leave too open a situation where the co-operation and full knowledge of the woman involved was being taken for granted and where the circumstances of the trial were the ones that predominated. It could be argued that, basically, it is a subjective test of the motives and actions of the accused whereas the woman who is surely the victim in the case is obliged to prove by forensic evidence and so on and beyond reasonable doubt that she did not consent to being raped. The onus of proof is put on the victim which is rather novel and is not a principle to be widely embraced. This clause could be used by a defendant as a defence against a crime even after it has been conclusively proved that he raped a woman against her will. Where there has been clear, incontrovertible evidence, satisfactory to any reasonable objective observer that this man had raped a woman against her will, he could still enter a defence that it was not necessary for him to have reasonable grounds for believing her to have consented. Are there grounds for amending the section and tightening it up to ensure that the man in the case of an act of such fundamental, social and other importance, should have an obligation on him to insist that that consent be explicit and clear rather than have a situation where somebody who is a rapist could get off because it is not necessary for him to have had that reasonable belief according to the section?

Mr. Doherty

This particular section is not novel and it does not propose to change the law in this matter at all. As I already said, the presence or absence of reasonable grounds is a matter for the jury. The absence of reasonable grounds might be evidence of the fact that consent was not forthcoming. There is nothing new or novel about the particular subsection.

Mr. Keating

It is no reason for not improving it merely because it is not novel or new.

Mr. Doherty

The Deputy said that it was novel. It is not. The existing law is being maintained.

Mr. Keating

I concede the Minister's point in relation to the novelty of it. I am more concerned about the content, which is to try to get the right thing done. There are many things in our present law which are not novel but which should be changed. I am only suggesting that we have a section wherein somebody who has been conclusively, on the basis of the available evidence, shown to be a rapist, can appeal to the jury and could seek a direction from the presiding judge, that under this section he did not have to take reasonable precautions to ensure that the woman's consent was forthcoming. That is a let-out in a situation where, in the past, the victim, who is the woman, has been the person who suffered most even in the context of the trial. I am only asking to see if we can tighten this up a little bit so that it is mandatory and obligatory for somebody engaging in this act to insist on having ascertained that his belief of her consent is well grounded. I am asking the Minister if he will consider this, which is a reasonable objection and a point which a lawyer would be quick to pick up in his defence of the accused person.

Mr. Doherty

I have no intention of changing what is proposed in the section. This provision is considered to be in accordance with the accepted principles within the law.

Question put and agreed to.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Mr. Keating

Would the Minister try to prise open his clam-like mind to the possibility that something which some of us on this side of the House might have to say would actually be worthy of some consideration between now and Report Stage, because we are, like the Minister, concerned about justice in this respect? The Minister could give us a little more co-operation.

Section 3 restricts the right of an accused person to cross-examine the complainant or any other witness. It restricts the right of an accused person at the trial for the rape offence to cross-examine the complainant or any other witness or to adduce evidence about sexual experience of the complainant with any person other than himself. It provides for the accused seeking an application from the judge for leave to cross-examine on such matters and this decision to be made in the absence of the jury. According to the section it is up to the judge to decide if he will consider such evidence essential in fairness to the offender.

Is there a case here where it could be argued that a woman's past sexual history with men other than the accused is never relevant, or should never be relevant, no more than the relationships or activities or, indeed, her list of convictions — if she was in that category — are not relevant? Ideally, there should not be any machinery in existence to permit the inclusion of a history of relations in the context of the court hearing. Cross-examination of the complainant should relate to the parameters of the crime. To have a section which could be used for winkling out all the old ghosts of the past, bringing out the skeletons in the cupboard which I am sure very few of us are completely without, is wrong because it has an intimidatory effect.

I can envisage somebody who would wish to take a case being told by nods and winks that there were a couple of unsavoury incidents in the background which could be the subject of an appeal to the judge, under the terms of the Bill. That person could be told that if the appeal to the judge was granted the outcome would be extremely damaging to her character. Is it not reasonable that all that should be relevant are the circumstances of the crime and those reasonably related immediately to the crime rather than a person's history which could go back for years and could be designed to show that the complainant was of a morally weak character and was prone to engage in acts of sexual licence? The idea would be to show that the defendant in the case was probably involved in some other act other than the act of rape. Why does the Bill allow for a woman's sexual history, or lack of it, to be paraded through the courtrooms when for any other crime it would be extremely unlikely that such evidence would be entertained? In most cases there is no machinery for its insinuation into the case.

I have two reasons for objecting to this. It is somewhat unjust in the circumstances of the crime and, secondly, we should consider the effect and potential of that mechanism of introducing matter of a damaging or embarrassing nature. The substance of that mechanism would be likely to intimidate a person from taking a case and might lead to under-reporting of this crime even though it is widely alleged that it is the most unreported crime of all. What is the reason for including this provision?

Mr. Doherty

The groups who had consultations with me on the provisions of this Bill did not ask for total exclusion. The reason this provision is included is to ensure, in certain circumstances, that the accused is protected and not unfairly treated by the court. In certain circumstances, with the consent of the judge after he has heard the application in the absence of the jury, this provision can be availed of. There are certain circumstances in which previous sexual experience is relevant. For instance, in the case of a woman who is not necessarily a prostitute but is in the habit of frequenting licensed premises or places of ill repute to pick up men, to subsequently have intercourse with them and then demand money, the evidence might be relevant for the purpose of proving consent. It would be part of the case for the accused that what had occurred in such a case was similar to what had occurred in the cases of other men and that because he had refused to give her money the charge of rape followed. It would be a matter for the judge to decide on the relevance of the evidence in all cases. The judge will only allow such evidence if he is satisfied that to exclude it would not provide justice or fair play in the hearing of the case.

Mr. Keating

The proposal is an improvement and that is to be welcomed. Up to now a rape trial, frankly, has been more of a field-day for the prurient rather than a question of trying to obtain justice. Usually what happened up to now was that the person victimised in the rape case finished up most victimised of all when the trial concluded. The provision in the Bill is an advance but because of the experience in this area I wonder if there is a need for the mechanism. The Minister has said that if there had been previous incidents where there was a degree of extortion or consentual sexual relations with subsequent extortion of money it could be argued that that was the reason why the case at issue was not rape. There is a thin line there where one begins to say a complainant is of that nature. It is a difficulty which troubles me a lot in a number of areas. There is no reason to assume that a prostitute is more open to being raped than anybody else.

Mr. Doherty

I was referring to the case of a woman who was not necessarily a prostitute. Any inference that I was referring to a prostitute is wrong.

Mr. Keating

In the classical literature on this matter the reference to history appears to predominantly relate to prostitution and prostitutes, so much so that one could be led into believing——

Mr. Doherty

That is the Deputy's concept of an historical fact.

Mr. Keating

That is my reading of it, that one argues that the sexual history related primarily to people of easy virtue — or whatever the quaint expression was — and for some reason prostitutes were more likely to be raped. I am not an expert in this area but I imagine the contrary is true, for obvious reasons. Does the Minister feel it is essential to have in the Bill a mechanism whereby those largely extraneous matters, particularly relating to a person's sexual history, can be dragged into court?

Mr. Doherty

I would not like the view to go abroad that these matters can be dragged into court simply. I appreciate the Deputy's remarks to the effect that this represents a significant improvement. It is a necessary and desirable improvement because the position that obtains causes many problems for the victim. In the past certainly this caused many problems for the victim and indeed, on many occasions, prevented the reporting of rape to the Garda. In this situation what we are doing is to provide the mechanism whereby the judge assesses the relevance or not of the particular previous history of a woman, a woman alleged to be the victim. He does so and must be satisfied, having examined the application in the absence of the jury, that the exclusion of that evidence would be unjust or unfair to the accused. The proposed section would be inadequate if there was not a provision for that type of evidence to be forthcoming in certain circumstances and for the fair play to which the accused would be entitled to be provided for.

Mr. Keating

We would be very concerned that the accused would have an opportunity as well. But the research available, admittedly of a rather scanty nature, indicated that probably no more than 4 per cent of people who are victims of the crime of rape have been engaged in anything that one could call any kind of precipitate behaviour or behaviour which would contribute to the crime. I wonder why there has to be this dispossition to facilitate the exploration of a person's history at all. For example, there is a figure available to us from the American Government's Federal Commission on Crimes of Violence which reports that in the American case 4 per cent only of reported rapes involved any precipitate behaviour. Of course that is a very difficult figure to prove and the American experience may not be the case here. I could see the justification for it if, for example, there was conclusive evidence that in a substantial number of rape cases the behaviour, disposition, or some manner of the activities of the woman was a major or contributory factor, but the evidence is to the contrary. Therefore, it seems that this is more likely to be an intimidatory factor against woman taking a case than anything else.

I do stress, as the Minister said, that the situation is better than it was, that at least the appeal has to be heard by the judge, has to be heard in private, and that he may decide that that exploration of her history should not form part of the case. I have voiced on previous occasions some concern. Shall I put it like this? Perhaps there are cases in which we are asking some of the judges to do too much for us. Here is a case in point where we are thrusting another burden on the Judiciary, a very difficult and delicate chore. I do not think we are going to give them any guidelines. We are simply saying to the judge: "You decide on the basis of what is in front of you whether or not it is relevant." What process, if any, will there be of communicating to the Judiciary the kind of guidelines or criteria on which they should make their assessment, or will that be a matter completely for themselves? Or does the Minister envisage the problem here as being regional, or involving other vagaries, as we call them, in the manner in which the Act might be interpretated? As we are all aware, there are sometimes fairly significant difficulties in interpretation in law. I would not like to see a pattern emerging in respect of any area of the country, any set of judges, or any Member of the Judiciary. Are we being fair to the judges here? Are we asking them to do too much without being more explicit as to what is meant, if the Minister thinks the mechanism essential?

Mr. Doherty

First of all, we must maintain a balance in this regard by protecting the complainant on the one hand and ensuring a fair trial for the accused on the other.

The Deputy said we may be asking too much of the judge, by requiring him to decide on the question of the relevance or otherwise of particular evidence which would be raised with him, first of all by way of application in the absence of the jury. In every court the judge, on a daily basis, has the responsibility of deciding whether or not something is admissible. Therefore what is proposed would not constitute any departure from what is established practice and I do not intend to change it in this Bill.

Question put and agreed to.

SECTION 4.

An Leas-Cheann Comhairle

The Minister to move amendment No. 1. Amendments Nos, 2, 3 and 4 are cognate and may be discussed with No. 1.

Mr. Doherty

I move amendment No. 1:

In page 3, line 39, subsection (1), to delete "consent" and substitute "leave".

These are drafting amendments. For the sake of consistency the amendments propose to use the word "leave" in lines 39, 43, 44 and 47 instead of the word "consent". The word "leave" is used in sections 3 and 4 in relation to a judge. There is no reason why it should not be used also in the case of a justice. From a drafting point of view there is a particular reason for the amendment in that section 4 (3) applies section 3 (3), which uses the word "leave" to applications under section 4.

Amendment agreed to.

Mr. Doherty

I move amendment No. 2:

In page 3, line 43, subsection (2), to delete "consent" and substitute "leave".

Amendment agreed to.

Mr. Doherty

I move amendment No. 3:

In page 3, line 44, subsection (2), to delete "consent" and substitute "leave".

Mr. Keating

I think these are technical amendments. They are significant but are not a matter of substance to the Bill.

Mr. Doherty

No.

Amendment agreed to.

Mr. Doherty

I move amendment No. 4:

In page 3, line 47, subsection (2), to delete "consent" and substitute "leave".

Amendment agreed to.

Question proposed: "That section 4, as amended, stand part of the Bill."

Mr. Keating

This is the section that provides that in a preliminary examination in the District Court of a charge of rape the same restrictions on the right of cross-examination and adducing evidence as to any sexual experience of the complainant with a person other than the accused shall apply.

I want to say here again that in general we are asking in this section that a district justice will give leave only if he is satisfied that if the examination were a trial the judge would be likely to give leave. In general I would think that it might be timely to endeavour to help our Judiciary in certain respects. Increasingly we are asking them to undertake a major burden of legislation. Any kind of discussion on the matter would not be appropriate here. But here is another case of a very sensitive nature in which we are putting another burden on judges, similar to that imposed in other sections. Of course the section says that the district justice will give leave only if he is satisfied that if the examination were a trial the judge would be likely to give leave. This means that once again we are asking the Judiciary to make distinctions and judgements — which of course are the functions of a judge — the criteria for which are very often reluctantly communicated from a Government. I am saying that there is perhaps growing evidence that we should try to assist the Judiciary in educating themselves, on occasion, as to what is legal, what is the state of present law and so on. I make that point in passing, that we should be aware that we are increasing the burden on judges. We have done that in a number of very major cases recently, including major constitutional cases, when in some instances the job of Government was almost taken on by Members of the Judiciary — and I am glad they are doing it — but I am contending that we should not increasingly foist burdens on them without realising their implications.

Question put and agreed to.

SECTION 5.

Mr. Doherty

I move amendment No. 5:

In page 4, to delete lines 7 to 13, and substitute:

"(a) sections 2 (2) and 3 (2) (b) shall have effect as if for the references to the jury there were substituted references to the court,

(b) section 3 (2) (a) shall have effect as if the words ‘in the absence of the jury' were omitted, and

(c) section 3, subsections (3) and (4) of section 7 and subsections (2), (4) and (5) of section 8 shall have effect as if for the references to the judge there were substituted references to the court."

This is a drafting amendment. The purpose of this section is to adapt the words "judge" and "jury" where they appear in the Bill to suit the circumstances of trials of juveniles charged with rape offences which might take place in the District Court. The section, as it appears in the Bill, does not contain an adaptation in respect of the references to the judge in subsections (3) and (4) of section 7 and in subsections (2), (4) and (5) of section 8. These provisions in sections 7 and 8 could have relevance for trials in the juvenile Court. While it could be argued that the adaptation of the word "judge" in these provisions is not really necessary, the amendment makes the adaptation for the sake of consistency and completeness. Also section 5 as drafted does not deal with the reference to the jury in subsection (2) (b) of section 3. The amendment covers this point also.

Amendment agreed to.

Section, as amended, agreed to.

SECTION 6.

Question proposed: "That section 6 stand part of the Bill."

Mr. Keating

This section is in certain respects quite important and significant in so far as it provides for the public to be excluded from the court during the hearing of an application under sections 3, 4 and 5, for leave to cross examine and should, in my view, not go without comment. The motivation for it is a good one. It is presumably to try to minimise the amount of trauma and detrimental effects particularly for the plaintiff. But we could just spend a moment or two looking at it. The section itself, even though it does not continue the practice whereby all and sundry were entitled to be there, nevertheless does cut across a fairly fundamental principle, the principle of the open court, access by the public and so on.

I would like to think that we could at some stage in our development as a society grow up adequately to a situation where we did not have to have certain cases held in camera, where the reasons that the public are presently excluded would no longer be relevant, the reason of course being that the salacious interests of some members of the public in these matters is likely to redound to the disadvantage of the parties involved. Apart from hoping for a change in human nature, one cannot say much about that. There have been those who expressed the view that they would like to see a situation where certain cases could actually be held in camera on application by the victim of the crime of rape or indeed by the defendant. Some family law cases are so held. I wonder if there are circumstances where the arguments which could be put forward might, in the Minister's view, be worthy of being considered for that kind of treatment.

I remember a case of a professional person who was accused of rape. Those who know him, and indeed the court at that particular time, considered him and found him completely innocent. The fact is, though, that the man is destroyed in his family, in his profession and is now practicing in some far off country. There are therefore areas where justice may be done in a technical sense or the law is carried out, but where justice is not done in truth.

I wonder if the Minister would consider that there might be cases which should be dealt with by a measure going a little bit beyond what is in this section and which would actually allow, at the discretion of the judge or judges, that the case be held in camera in order to prevent major psychological damage or other damage to either the parties involved or those closely related to them. It is sad that we should have to consider that kind of suggestion but that is the way the world is at present. Ideally I would prefer that there would be no restrictions in the courts but there are and they are there for good reasons. Does the Minister think there is any merit in that request?

Mr. Doherty

First of all, the exclusion of the public would only occur where and when the application is being made, and of course in subsection (1) there is a provision for the rights of parents, relatives and friends to remain on in certain circumstances. The illustration that the Deputy gave of somebody professionally involved and going through a trial where he is charged with rape and being subsequently acquitted is dealt with by the provision for anonymity in this Bill. That is one very important feature of the Bill, and I am delighted to be able to tell the House today that under the proposed legislation a person, if acquitted, will not have his name made public and all aspects relating to the relevance and inclusion of certain evidence will be raised by way of application to the judge with everybody excluded, except in certain situations the people specified. So there is adequate protection in this regard.

Mr. Keating

With regard to line 24 in section 6 (2) where the point is made that the section is without prejudice to the right of a parent, relative or friend of the complainant or, where the accused is a person under 21 years of age, the accused to remain in court, does the Minister think there is a case to be made for perhaps writing in the need to have the consent of the accused in these circumstances? Would the Minister consider that the accused might have a preference one way or the other? It seems to be reasonable that a person, say, over 18 years of age and under 21, might if they so wished be able to dictate whether or not their parents or relatives or friends, in some circumstances at least, might or might not be in court. It seems reasonable that they should at least be asked their view on it. Does that come into the reckoning at all?

Mr. Doherty

He can have a relative or friend in court.

Mr. Keating

It is also possible for him not to have a relative or friend in court?

Mr. Doherty

If he so wishes.

Mr. Keating

He can in fact choose.

Question put and agreed to.

SECTION 7.

Question proposed: "That section 7 stand part of the Bill."

Mr. Keating

This is the section that provides that, once a person is charged with a rape offence, no matter likely to lead members of the public to identify a woman as a complainant may be published in a written publication available to the public or broadcast except as authorised by direction under this section. That, in a sense, is welcome. The section seeks to try to get rid of one of the main areas of contention in these cases, which was that the woman — already victimised and brutalised by this act — found that she had to be further scandalised, as it were, particularly in relatively less populated areas and had to suffer a certain amount of curiosity or derision by virtue of the fact that everybody knew that she was the woman who took the case.

The section will ensure that that can no longer occur. That is welcome, because what is more important than law in these cases is the justice of it all. I wonder if the Minister would nevertheless comment to this extent: the section deals with the anonymity of the complainant and we are told that none of the matters which might be likely to lead a person to identify a person should be broadcast. Is it a little too loosely drafted? Again we are back to the area of the discretion of the judge. Subsection (4) provides for a case where the trial judge is satisfied that the effect of the prohibition under the section is to impose a substantial and unreasonable restriction on the reporting of the trial and that it is in the public interest to remove or relax the restriction. The explanatory memorandum makes the case that, for example, the identity of the complainant may be public knowledge owing to the circumstances surrounding the offence or the subsequent investigations of it, in which case there would be no point in requiring the press to pretend to conceal her identity. Presumably other circumstances are envisaged as well, though they are not spelled out there. Once again I am very worried lest there might be any suggestion in the legislation that would intimidate or frighten off women who might want to take an action.

Section 7 (4) mentions "a substantial and reasonable restriction". The word "restriction" is interesting because you either restrict or you do not restrict. The restriction is undoubtedly substantial. It is not a question really of how substantial it is. It is either yes or no, either you allow publication or you do not. Therefore, obviously it is substantial in all cases. If it is insubstantial or partially substantial then it is pointless. It has to be all or nothing. You either restrict or you do not, and the unreasonableness of it is probably more to the point. How reasonable something is, of course, is a subjective matter. The point being put forward is that somehow if the name had already been noised about or had leaked out or slipped out or if it was the name of somebody in high society, there would be no point in concealment, I wonder if we are running into a grey area here. In cases somewhat lower down the scale, for example taking a country town where it was generally assumed locally that X was the person involved, where it had been talked about locally, where it might even have been published in a local paper or magazine, is that grounds for removing the restriction? What degree of publication is necessary to make it unreasonable to restrict?

Also the point about being in the public interest is of concern in that it needs to be spelled out a little and I would like the Minister to do that. That seems to be fairly vague and nebulous, not adequately defined in the Bill. Conversely, maybe we should argue that if the woman so wishes — though I cannot imagine circumstances where she might be likely to do so — she should have the right to have the restriction removed. After all, she is ultimately the person who suffers or the beneficiary, one or the other. It is possible, therefore, that the woman can if she wishes have this restriction removed? It seems to me that she can by appealing to the judge or to her counsel, but I would like that confirmed. The latter point could be important if, for example, a woman wanted to make public the inadequacies of the legal and investigative procedures and the red tape surrounding the treatment of complainants. It seems that at the moment under this Bill only the judge has the right to remove the restriction on anonymity.

Mr. Doherty

The section states that only in a case of public interest should the restriction be relaxed or removed and there may be situation where in the public interest it might be necessary to do that. I am satisfied that such situations would be very rare. For example, if the complainant was the daughter of the accused you could have a situation where——

Mr. Keating

Would not that be incest?

Mr. Doherty

The accused would be liable to be charged with the crime of incest because of the relationship but also with the crime of rape as defined in the Bill. There could be incest or rape — both charges might be included. Also the complainant might be the wife of the accused in one of the exceptional cases that I mentioned on the last evening.

Mr. Keating

The Minister of State is back to that again.

Mr. Doherty

I might refuel the Deputy.

Mr. Keating

These would be the likely cases?

Mr. Doherty

These would be the exceptional cases. How exceptional I do not know.

Mr. Keating

The second point is the degree to which a woman, if she wished it, would have that right.

Mr. Doherty

She has not that right and the reason for her not having that right is a very good one. In all of the public debates leading up to the introduction of this Bill one of the main points of discussion was the fact that the anonymity of the complainant was not adequately protected at all in the existing laws. Consequently, the Bill includes that very important change. To have a situation provided for where an individual woman could make known her identity and subsequently appear in the public media might just do the reverse of what we have been trying to do in this Bill by frightening women or creating the erroneous belief that this was the practice. For that reason it is desirable that it be excluded and that it be known to all the public, particularly any unfortunate individual who is the victim of such a horrific crime, that the victim has absolute protection where anonymity is concerned and that there is no likelihood of her name appearing.

Mr. Keating

There is a strong argument in what the Minister is saying, but I do not accept that the absolute guarantee of anonymity that the complainant requires is done an injury by considering the possibility that the name of a person who has been raped — subject to an appeal to the courts, presumably, not off the top of her head for very good reasons — could be broadcast if she wished it. That would not do the principle of anonymity any great injury. Obviously it could be made clear that the woman feels that the safeguard which the Bill extends to her is not necessary in her case. Ideally she should be the judge of it herself.

If the purpose of this section is, as I believe, to protect people, that is fine and if the protection is offered and accepted, as it would be in the majority of cases, that is to the good, but where the protection of the woman in her judgment warranted her asserting for example, the inadequacies in connection with her case, it would seem to be reasonable that she should have her name noised abroad. I do not think that there will be many cases of that nature, but one could envisage a situation where a woman would say, "In the circumstances I think I am entitled at least to apply to a judge for leave to have this matter published and I believe that is in my best interests". Otherwise we are tying a person hand and foot against that person's will. The section deals with protecting people and in the majority of cases they would agree with that but there could be exceptions, not off the top of the person's head but on the person's appeal to the judge.

Mr. Doherty

The Deputy will agree that much of what he has said does not deal with any of the changes sought in this proposed legislation. I might also state that we have been very concerned in the preparation of this Bill to secure absolutely the anonymity of the complainant for the very reasons that the Deputy so well appreciates and knows. Anything that would put at risk the situation that is proposed would, I am satisfied, be likely to do the reverse, to some degree, and totally in some instances. As I have already said, it might create an erroneous belief about the actual position as to the protection which is provided in the Bill. Furthermore, if that right were to exist for an individual woman, I can envisage circumstances where pressure could and would be applied to other women to make known their names. If they refused to reveal their identities you might have the accusation levelled elsewhere that they did so because they had something to hide. I genuinely believe it would not be in the best interest of what we are trying to achieve and the spirit of the law as we wish to see it enacted. For that reason, I do not propose to make any changes in that regard in this section.

Mr. Keating

I accept what the Minister says. I think he is right. I have some minor reservations but I think the weight of argument is in his favour. I have a query about subsection (9) of the section:

A direction in pursuance of this section does not affect the operation of subsection (1) at any time before the direction is given.

That seems to imply, according to the explanatory memorandum, that any liability which has been incurred by reason of the disclosure of information in contravention of subsection (1) will not be affected, if disclosure of the information is later permitted by a direction under subsection (2). I want to confirm that subsequent approval of the disclosure would not mitigate the offence committed earlier on. Does that mean that the subsequent approval of a disclosure would not affect the responsibility of the person or the offence would not affect the gravity of the offence if it had been committed prior to the disclosure being facilitated?

Mr. Doherty

If the identity were revealed before restrictions were lifted, liability would not be subsequently affected if the restriction was subsequently lifted. If it was subsequently lifted, the court might consider mitigating circumstances where the punishment was concerned, but the liability would remain the same.

Question put and agreed to.

SECTION 8.

Question proposed: "That section 8 stand part of the Bill."

Mr. Keating

I still have some worries about the substantial and reasonable restriction. It seems a little vague but as it is the same as section 7, I suppose the Minister has nothing to add to section 8.

Question put and agreed to.

SECTION 9.

Mr. Doherty

I move amendment No. 6:

In page 7, subsection (2), to delete lines 30 to 33 and substitute "convening authority, and".

This is a drafting amendment relating to the description of the classes of persons who convene courts-martial, under sections 7 and 8. A person to be tried in an ordinary criminal court for a rape offence may apply in advance of the trial to a justice of the district court to remove the ban on the disclosure of his identity or to a judge of the High Court or Circuit Court to remove or relax the ban on disclosure of the identity of the complainant or of the co-accused. In the case of a court martial, section 9 (2) (a) in its present form adapts these provisions so that the application is to be made to the convening officer, that is to say the officer who is authorised to convene or has convened the court-martial or his successor in office. The Minister for Defence has advised me that the section is technically incorrect in referring to the person who convenes a court-martial as an "officer", because under section 187 of the Army Act 1954 the Minister for Defence, as well as certain officers, is authorised to convene a court-martial. That section uses the expression "convening authority" to cover the person so authorised and the amendment proposes, accordingly, to use this expression in the Bill. The use of this expression makes it unnecessary to refer separately to the person who is authorised to convene the court-martial, to the person who has done so and to his successor, because, owing to the structure of the Defence Act and the Rules of Procedure (Defence Forces) 1954, which provide for the procedure in relation to courts-martial, the expression "convening authority" will serve to indicate the appropriate person to whom the accused is to apply in every case that can arise.

Amendment agreed to.

Section 9, as amended, agreed to.

SECTION 10.

Question proposed: "That section 10 stand part of the Bill."

Mr. Keating

I want to ask the Minister to agree with my proposal for a significant amendment to section 10. This section increases the maximum penalty on conviction on indictment for indecent assault on a female, which at present is two years imprisonment on a first conviction and five years on a second or any subsequent conviction, to 10 years. I welcome the fact that the section proposes to increase the maximum penalty at least in line with the same assault on a man, which was one of these discriminations, which those of us who were concerned about getting rid of the inequalities in relation to law which adversely affected women perhaps did not refer to. This is a case where the improvement which has been proposed is of some substance. I am assuming for the purposes of this brief discussion that imprisonment is the right answer to crimes of indecent assault. It is not an assumption which has been adequately borne out but we will not get into that now.

However, I feel very strongly that there are certain acts of sexual violation and abuse, the gravity and repugnance of which are so profoundly unacceptable and so ugly in their nature, that they are as serious as the crime of rape. I cannot, therefore, understand why somebody involved in this violation, this perversity, finds himself relatively better off under the law than somebody who is charged with rape. The offence of indecent assault should be looked at again in relation to the liability for imprisonment.

I find myself a little unhappy talking like this but, for the purpose of consistency, I cannot understand why there should be this distinction in the terms of imprisonment liable to be given for crimes which in all their natures, in their full ugliness, are equally unacceptable and repugnant. May be we should be talking of an offence of aggravated indecent assault or grievous indecent assault, because under present law there are circumstances under which someone having a passing or flippant sexual encounter, perhaps someone kissing a person against their will, could be charged with indecent assault. Nobody suggests that the penalty for that should be the same as for rape. It appears that an individual who had committed sexual assault and who was impotent, for example, or simply was not interested because of his particular fetish or perversity in what might be called traditional sexual intercourse, could apparently indulge himself in every kind of ugly and sordid sexual abuses and find that in the eyes of the law he was relatively better treated than somebody who had committed the crime of rape but without its attendant brutalities and ugliness.

What I am arguing for is consistency. If the Minister does not agree — and there is some strength in his point of view — that the definition of rape should not be extended, would he then consider increasing the punishment for indecent assault in some cases to penalities which are consistent with the crime of rape? I am sure the Minister will agree that there have been cases of crimes so repugnant in this area that some crimes of rape cannot be compared with them. I do not understand the logic of the difference in penalties in such circumstances. If prison sentences are the right response at all in these cases, there should be some consistency. Would the Minister consider reviewing the provision for a term of imprisonment not exceeding ten years?

Mr. Doherty

This proposal in section 10 was something that I said I would consider on foot of a demand from Deputy Keating in relation to increasing the penalty. Ten years' imprisonment is a very substantial penalty. Under the present operation of the system, life imprisonment is usually of seven or eight years' duration. As a penalty, ten years is substantially greater than that though that would be reducible also in accordance with the usual procedures. This increase in the penalty from two years to ten years is an enormous increase. In Britain the penalty for indecent assault is two years but the proposal there is to increase that to five years. I considered the matter on foot of a commitment given on Second Stage to Deputy Keating and I am satisfied that it would be neither desirable nor necessary to increase the penalty further.

We have a situation that, on the one hand, indecent assaults may be equally horrific or more horrific than the crime of rape itself; but, on the other hand, depending on a number of factors and on the circumstances that would be applicable in individual situations, we must be conscious also of the fact that indecent assault can be of a very minor nature. I am not suggesting in any way that this crime should be regarded lightly because of its not being as horrific in degree as some other cases of this type. All such assaults, minor or otherwise, are serious and must be taken seriously. However, there is a rather wide scope within the area of penalty for the courts to use their discretion in imposing a penalty and ten years is the maximum.

In the case of rape it might be interesting for the House to know that, while life sentence is the maximum penalty, the courts have been imposing the following penalties: in the case of one offender, 12 years; for four others, ten years; for eight others, eight years; for three others, seven years; for six others, five years; for one other, four years; for two others, three years and for another, two years. It can be seen, then, that the great majority of those sentenced for rape, for which the maximum penalty is life, received sentences of between five and ten years. Having considered the question of the desirability of increasing further the proposed sentence of ten years for indecent assault, I am satisfied that no such increase is necessary.

Mr. Keating

I would not disagree fundamentally with what the Minister says but there is an element of inconsistency in respect of sentencing. There is an interesting twist to the Minister's reply in that on the one hand it would be best on reflection not to increase the penalty for indecent assault — presumably to life — but on the other hand a life sentence turns out to be in effect less than the maximum sentence now proposed for the crime of indecent assault.

Mr. Doherty

It would be wrong to think that that is the situation. The maximum sentence for rape is life imprisonment but the operation of such a sentence is such that it is reducible.

Mr. Keating

I am aware of that.

Mr. Doherty

In the same way, presumably, the ten years' sentence proposed for indecent assault could turn out to be five or six years for the same reasons that would be applicable in the case of a life sentence. Therefore, it would not be a fair comparison to say that a ten year maximum sentence for indecent assault and a sentence of life for rape are necessarily of the same duration from the point of view of the time a prisoner would spend in prison.

Mr. Keating

I agree. When talking about these sentences both the Minister and I are inclined to throw out these references to sentences but we must remind ourselves that a sentence of ten years is very severe. While many of us might have reservations about whether imprisonment is the right response at all to crimes of a sexual deviation, I would have thought that since there are crimes that are outside the category of indecent assault but which are perhaps more horrific than the crime of rape, if that is conceivable, consistency might be appropriate and that we would provide for the same sentencing to apply in both cases sentencing which would allow for greater or lesser degrees of punishment in accordance with the crime. This would meet the point that is being made strongly and which will continue to be made, that is, that there have been and will continue to be crimes of sexual abuse resulting in physical injury. We have had such cases recently. After such an orgy of brutality the offence, at least on paper, is not considered as grave or as serious as the offence of rape. I am not suggesting in any way that rape is not a serious crime. One crime could be either as serious as or more serious than the other. Therefore, I would have thought that what would have been appropriate would have been to allow the levelling system of justice to apply. Instead the Minister is weighting the scale of justice on one side in this Bill, a Bill which, regardless of whether we may be of the opinion that imprisonment is the answer in these cases, is necessary at this time.

Question put and agreed to.

SECTION 11.

Question proposed: "That section 11 stand part of the Bill."

Mr. Keating

Section 11 (3) line 9 onwards says:

Where a person is charged with an offence to which sub-section (1) relates it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or broadcast in question was of such matter as is mentioned in section 7 (1) or section 8 (1) as the case may be.

I presume the Minister accepts that would be the standard recourse of people charged under the section. It is very hard to prove or disprove anything in this area but I cannot imagine a situation where a person charged with an offence under subsection (1) will not automatically endeavour to show that at the time of the alleged offence he was not aware and did not suspect nor had reason to suspect that the publication or broadcast in question was of such matter as mentioned earlier. I see a difficulty there but perhaps there is no way around it.

Mr. Doherty

It is a usual provision and nothing new is proposed in this connection.

Question put and agreed to.

Sections 12 and 13 agreed to.

Title agreed to.

Bill reported with amendments.

Report Stage ordered for Tuesday, 10 March 1981.