I move: "That this Bill be read a Second Time."
The Minister for Justice regrets that he is unable to be here. I am taking the Bill on his behalf. Deputies will recall that this Bill, the Criminal Law (Rape) (Amendment) Bill, 1988, which was passed by Seanad Éireann, had commenced Second Stage when the 25th Dáil was dissolved. One of the first actions taken by the newly appointed Minister for Justice was to arrange for the restoration of the Bill to the Order Paper. He recognises it as an important piece of reforming legislation not only for women but for the entire community.
His predecessor had already delivered a speech to this House at Second Stage outlining the details of the Bill. However, in view of the importance of the legislation and the changes in the Dáil since then it is considered that, not least as a matter of courtesy to the new Members of the House, I should deal in some detail with the main proposals of the Bill.
Rape is a very serious crime and has been recognised as such not only in Ireland but throughout the civilised world. In this jurisdiction it carries a maximum sentence of life imprisonment, the most severe sentence that can normally be imposed by our courts. The Supreme Court itself has stated that it regards rape as a very serious crime which clearly merits a substantial immediate period of detention or imprisonment even when it is committed without violence beyond that constituting the act of rape itself.
The law provides such a severe sentence not merely because of the physical consequences of the crime but also because rape involves a severe emotional and psychological trauma for the victim. Rape is a violation of a woman's bodily integrity and can leave the victim psychologically scarred for life. It is one of the most obnoxious and reprehensible crimes known to the law.
While those guilty of rape must be apprehended and punished — and, if I may say so, punished severely — justice demands that we always keep in mind that a person accused of rape may be innocent. Earlier this year in this country a man was identified by a woman as being the perpetrator of a rape on her but was subsequently shown to be innocent as the result of the new genetic profiling technique. We must always remember that an accused may not in fact be guilty and ensure that each and every accused obtains a fair and just trial. I recognise that it is difficult to strike the proper balance as between the accused and the victim but it is our responsibility as legislators to undertake this task.
Before I go on to discuss the provisions of the Bill itself I am aware that several Deputies in the 25th Dáil raised the question of the treatment of sexual offenders. This is a separate matter and outside the scope of the Bill. Programmes which are being carefully monitored are already under way in our prisons on the treatment of sexual offenders and, subject to the availability of resources, those which prove successful will be continued and, where appropriate, extended.
The Bill is confined to reforming the law on sexual assault offences and to provisions which relate to the trials of such offences. It does not purport to deal with the prevention or detection of such crimes. These are separate issues. Deputies will be aware of the Criminal Justice (Forensic Evidence) Bill, 1989, which has been restored to the Order Paper of the Seanad and which deals with the taking of samples by the Garda for forensic testing, including genetic profiling testing. That Bill will have important implications for the detection and prosecution of sexual offenders but we will all have a chance to discuss that at another time.
I now turn to the Bill itself. Briefly it provides for the following changes in the law: it abolishes the rule that in law a husband generally cannot be guilty of raping his wife. It replaces the offence of indecent assault, which has a maximum sentence of ten years' imprisonment, by two new offences of sexual assault, with a maximum penalty of five years, and aggravated sexual assault with a maximum sentence of life imprisonment. It provides that trials for rape and aggravated sexual assault will be tried in the Central Criminal Court and that the public will be excluded. It extends to all sexual assault victims the procedural, evidential and anonymity provisions which now protect the victim in rape cases. It abolishes the requirement for a mandatory warning about the dangers of convicting a person on the uncorroborated evidence of a complainant — leaving the question of a warning to the discretion of the judge. It abolishes the presumption that a boy under 14 is incapable of committing rape or other crimes involving sexual intercourse. It makes it clear that lack of physical resistance does not constitute consent to sexual intercourse.
Turning to the first of these changes, one of the major provisions in the Bill is the proposal to abolish the common law rule that a husband cannot generally be found guilty of raping his wife. There is general agreement that the marital rape exemption in so far as it existed until now should be abolished. The Law Reform Commission's provisional recommendation in their consultation paper in favour of abolition was, on the whole, generally welcomed although some misgivings were expressed as to whether it might not lead to fabricated complaints and unwarranted interference in the marriage relationship.
The interference of the criminal law in the relationship of husband and wife can, of course, be disruptive and can present evidential problems. However, that possibility has not prevented assault, indecent assault or buggery by a husband on his wife being criminal offences and I do not think that it should prevent the removal of the marital rape exemption. It is difficult to justify that exemption which appears to condone a type of behaviour which, I suggest, is not acceptable to the majority of Irish people.
Evidential difficulties will arise in marital rape cases but that is not a sufficient reason for maintaining the existing position.
With the abolition of the marital rape exemption it is possible that spiteful or mischievous complaints against a husband could be made by a wife or even by a third party. There is a danger that there might be an attempt to initiate a private prosecution. I think Deputies will agree that that should be guarded against. For this reason, and because of the evidential difficulties, the Bill provides, as was recommended by the Oireachtas Joint Committee in their fourth Report on Sexual Violence, that prosecutions for marital rape can only be initiated by the Director of Public Prosecutions. As the law stands, a prosecution for rape could progress as far as the preliminary investigation stage in the District Court without the consent of the Director of Public Prosecutions.
Another major reform of the existing law is the proposal to establish two new offences, namely, sexual assault and aggravated sexual assault — in place of the existing offence of indecent assault — and the extension to all sexual assault victims of the procedural, evidential and anonymity provisions which now protect the victims of rape.
The Oireachtas Joint Committee took the view that the existing law ignores the seriousness of other forms of sexual assault such as forced anal and oral intercourse and that, in so doing, it implies that one form of sexual assault is more serious than another. The committee also felt that the gravity of forced sexual penetration through the use of objects should be fully recognised. The committee recommended that the protection at present afforded to rape victims should be extended to victims of these acts. Finally the committee felt that there was no logic in keeping separate the treatment by the law of offences that reflect a correspondingly degrading level of sexual violence against women. The solution proposed by the committee was to redefine rape to include these offences.
The Government agree fully with the committee in their expression of abhorrence of these other forms of sexual assault which can be as distressing and degrading as rape and it is for this very reason that the Bill creates the new offence of aggravated sexual assault which will have the same penalty as rape and which, along with rape, will be tried in the Central Criminal Court. However, the Government do not agree that equal treatment by the law of these offences necessarily means that the name `rape' should be applied to them. Indeed in their report the Joint Committee put forward no arguments in support of their proposed solution that the definition of rape should be extended to include the offences in question.
The Law Reform Commission also considered the question of changing the definition of rape and split three-two on the issue. The majority of the commission recommended the replacement of the existing definition by a gender neutral offence which would include, in addition to non-consensual intercourse per vaginum, non-consensual oral intercourse and the penetration of a woman's vagina by objects. The majority's main argument in favour of this recommendation was that rape is a form of sexual assault which is no more distinctive than other similarly serious forms of sexual assault.
That argument does not stand up to scrutiny. Rape has been known as a distinctive crime for centuries, and is clearly distinguishable from all other forms of aggravated sexual assault. The essential ingredient of rape is the absence of consent to an act which in proper circumstances constitutes an expression of human love. Although in many cases rape will be accompanied by violence the essence of the crime is absence of consent which has to be proved in every case.
A further distinguishing feature of rape is that, unlike any of the other offences in question, only the act of rape can give rise to pregnancy. One cannot get away from that fact.
The only substantive argument that has been advanced in favour of an extended definition of rape is that victims of serious sexual assaults not amounting to rape would suffer less distress psychologically if the experience they have been subjected to were described as rape. That argument has some validity in the context of the present law where, no matter how serious the assault, the offence charged is indecent assault and the maximum sentence is ten years' imprisonment. However, any psychological reassurance that may be thought to be needed will be supplied by the obvious seriousness with which the Bill as at present drafted treats these serious sexual assaults. On the other hand, to extend the definition of rape might only serve to reduce the stigma which attaches to the crime of rape and rather than being in aid of women could work against their interests.
I might add for the information of Deputies that a very recent study in the United Kingdom (Home Office Research Study No. 106) suggests that only in one or two per cent of cases is the victim subject to the aggravated sexual offences in question without also being subject to rape. In practice, therefore, the perpetrators of these acts will in any event normally be facing a charge of rape.
Finally on this point, if the Government felt the correct approach would be to extend the definition of rape they would have no hesitation in doing so. It should be obvious that the objective of this legislation is to afford the best possible protection to both men and women against sexual assault, no matter what form it takes. Indeed in the international context this Bill is on any view a radical measure. It must be equally obvious that on the question of the definition of rape there is no consensus that what the majority of the Law Reform Commission propose is the right approach. The conclusion the Government have come to is that we should retain the existing definition of rape, which has not given rise to any legal difficulties. The creation of the new offences of sexual assault and aggravated sexual assault, the trial of the latter offence, along with rape, in the Central Criminal Court and the extension to all sexual assault victims of the legal protection at present afforded to rape victims, will, in the Government's considered view meet all the criticisms of the existing law as it pertains to sexual assaults not amounting to rape.
I have already referred to the fact that the Bill provides that in future all rape and aggravated sexual assault cases will be tried in the Central Criminal Court. I would like to make it clear that this decision is intended to be seen as an expression of the seriousness with which the Government view the crime of rape, and, indeed, the crime of aggravated sexual assault. It should not in any way be taken as a criticism of the Circuit Court or the judges in that court who have dealt with rape cases. I might also emphasise that the Government's decision was taken solely with reference to the particular crimes in question and should not be seen as supporting the Law Reform Commission's view that the transfer of rape and aggravated sexual assault trials to the Central Criminal Court should be the beginning of a process of returning a wider criminal jurisdiction to the High Court. That is a separate matter to be considered on its merits.
Some concern has been expressed about the impact the proposed change will have on rural circuits and about the possibility of delays in the central Criminal Court. The figures show that the impact of the provision on rural circuits will be only slight. On average only just over six rape trials per annum are at present held outside Dublin. Neither do I envisage this provision leading to any delays in the holding of these trials in the Central Criminal Court.
The Bill proposes, in section 18 (b), that applications for bail in the case of rape and aggravated sexual assault may only be made in the High Court. It has been represented to me that the present provision on bail applications for these offences should continue to apply, i.e. that applications for bail should continue to be made in the first place to the District Court. This would be different from the position that applies in the case of offences which are triable only in the Central Criminal Court. However, procedures for granting bail in rape and serious sexual assault cases in the District Court are well established — the law is very clear in this area — and, of course, the preliminary examination of the charges will be taking place in the District Court. This is a matter to which further consideration will be given between now and Committee Stage.