Dáil Éireann díospóireacht -
Tuesday, 30 Jan 1990

Vol. 394 No. 8

Criminal Law (Rape) (Amendment) Bill, 1988 [ Seanad ]: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. McCartan

I wish to resume my contribution on behalf of The Workers' Party in response to this Bill. In doing so at this stage, I want to put on record my unhappiness at the way in which the House has ordered its business and has sought to deal with this important legislation. The ordering and taking of this Bill for debate on Second Stage has been totally unsatisfactory and entirely haphazard. This is the sixth occasion in the very short life of this Dáil, since last October, that the Bill has been listed to be taken for Second Reading. It is, in fact, the second Second Stage dealing of the Bill that we have had since it was first published and circulated in the House. It has been termed the Criminal Law (Rape) (Amendment) Bill, 1988. We are now into the year 1990 and we will be well out of 1990 before we even get beyond Second Stage if progress to date is any indication.

Important sections in the Bill are drafted which refer to it as the Criminal Law (Rape) (Amendment) Act, 1989, and of necessity we will have to amend those. What year we will insert instead of 1989 remains to be seen. There is no guarantee that it will be 1990, though many of us hope it will be. I have raised this matter at meetings with the Whip and I am now formally raising it on the Floor of the House.

On 16 November, 21 November, 5 December, 7 December, and 14 December the Criminal Law (Rape) (Amendment) Bill was slotted in as back-up to other legislation to the extent that we had one rather inglorious occasion when a Minister had to stand in on behalf of the Minister for Justice, deliver his speech, and get to the stage where it was only two-thirds finished. That was no credit to the Minister who was asked to stand in or the Minister for Justice, who was elsewhere dealing with important business on the occasion. It does no credit to the very important amendment of the criminal law we are seeking to achieve with this Bill. I simply hope, again in the absence of the Minister, that he will bring it back to the table of Government if necessary.

This is crucial legislation. It deserves a consistent ordering of the business of the House so that we will be able, with some continuity, to discuss and deliberate on its important principles on Second Stage and beyond on Committee and Report Stages. This slotting in of the Bill as back-up to other legislation should cease so that it gets some priority in the ordering of business in the near future and is dealt with consistently and coherently. The debate was opened by one Minister on behalf of the Minister for Justice and then the Minister for Justice came in on another occasion and finished it. We have lost continuity of thought and debate on the provisions. There are very important contributions to be made on the legislation——

Mr. J. O'Keeffe

On a point of order, my colleague mentions that there are very important contributions to be made. I would point out to you, Sir, that we do not have a quorum in the House and I must ask you to have the House adjourned pending the presence of a quorum while these important contributions are made.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

Mr. MacCartan

I would like to acknowledge the point made by Deputy O'Keeffe in seeking a quorum. It is important legislation. The point I made before I sat down to allow the Deputy to make his point of order is that this legislation has not been given the priority, attention and continuity it deserves. I hope that will be resolved by us in the future. I do not want to make any undue remark about the fact that it seems to have been again slotted in to fill time before we get on tomorrow to what has been described as the business of the year, the budget. No doubt because of that the continuity of this debate will be broken again this evening and we will have to find another time to slot it in. I hope that point has been well made.

As Deputy O'Keeffe said this legislation is crucial. It is remarkable that within ten years we are, for the second time, discussing reforming legislation in the area of sexual assault, sexual abuse and rape. This is unique in the area of the criminal law generally. I cannot think of any other example in recent times where the Irish Parliament has succeeded in addressing an area of the criminal law and its reform. It is a credit to the strength of campaign that has been undertaken by those in the field concerned with this general area of sexual abuse.

On the last occasion I acknowledged the role played by the various Rape Crisis Centres in dealing with the problem, in highlighting the shortcomings of the law and in particular the amending legislation of 1981. The fact that we are addressing the law within such a short period of time is also an indication of the fact that the law, as it stands, is grossly inadequate and in urgent need of reform. It must be acknowledged that before 1980 the previous law in this area was enacted in substance in 1935, and prior to that in 1861 under the Offences Against the Person Act of that year. While it appears that we are giving remarkably vigilant attention to this area of the law, it is certainly an area where there was a huge amount of neglect unaddressed for decades and there is a lot of improvement needed.

The debate is all the more urgent in view of recent developments, some of which have taken place in the last month. The continuing problem in the Rape Crisis Centres and the sexual assault unit in the Rotunda must be addressed. The problem of sentencing in the whole area is a matter of grave urgency in view of a recent development. The third ground of concern is the fact that the law has remained unchanged since 1981.

First let me refer to the problems being faced by the victims of crime in this area. The work of the sexual assault unit at the Rotunda and indeed the various Rape Crisis Centres that are established on a voluntary basis around the country has exposed a major problem in Irish society, the sexual abuse of spouses, and, particularly and more worrying, of young children. I believe the scale of this abuse is far greater than many commentators active in the field over the years were prepared to admit, let alone acknowledge, existed. It is important that we as legislators are able to give this area the currency it requires so that we can keep abreast of what needs to be done and equip those agencies outside in the community, be they the courts, the police or otherwise, with the tools and means to effectively deal with the problems which exist.

In this regard I have to say in passing that the performance of the Government in supporting the different voluntary rape crisis centres leaves an awful lot to be desired. It is a great pity that those who are helping the victims of crime face orders of ejection from their premises and the closing of their doors because of a lack of funding, are unable to recruit staff to maintain existing services and have no capacity to expand existing premises or to open premises in other areas where their services are urgently needed. The centres in Cork, Waterford, Clonmel and Galway are working under extreme pressure.

In November 1988 I raised the question of the centres in Dublin and even though promises were made that matters would be put right, recently I read in the national papers that things have not changed one jot, that the funding made available to the centres was only of a stop-gap nature and that the magnitude of their problems has not been addressed by the Government. In the context of legislation in this area, all we might do in this House in reforming the law will be set virtually at naught if the agencies which help the victims of crime, for example the rape crisis centres, are not maintained and supported.

The second area which needs to be urgently looked at is that of sentencing, not simply the gravity of a sentence which might be imposed but the many anomolies which exist in sentencing procedures which are so ineffective in the long term in dealing with the problems of sexual offenders generally. This matter was dealt with in a submission prepared by many commentators working in the field, in particular, the Irish Association for Victims Support in their submission of January 1988, in which they acknowledged the point made by the Law Reform Commission that perhaps the Supreme Court is the tribunal which should be laying guidelines. I do not fully agree with this and I will come back to it shortly.

The Bill as drafted addresses the issue of sentencing in a number of ways. Firstly, it seeks to amend the definition of rape and sexual offences by introducing a limited extension of the definition of rape, introducing a new offence of aggravated assault and increasing the penalty for such an assault to life imprisonment, which is equivalent to that for the crime of rape. It also proposes that all such offences of rape and aggravated assault should be transferred to the Central Criminal Court exclusively.

With regard to the debate on the venue and jurisdiction for the trial of such offences, a strong case has been made by certain quarters that cases should not be taken away from the Circuit Criminal Court but should be left there primarily on two grounds: it would ensure a speedy trial and a hearing would be held in the area where the crime was first committed. Both grounds are important features in any attempt by the courts to act as a deterrent in the recurrance of these offences. Nonetheless, I believe the recent case in the Circuit Criminal Court involving a soldier and an 11 year old child destroys an argument which might be made for the non-transfer of these cases from the Circuit Criminal Court. I believe the Minister's argument in support of this provision will win out and that this House will support the proposal that the Central Criminal Court should be the exclusive venue for the trial of these types of offences. That should certainly be the case even if it is only for a period until some tribunal, such as the Central Criminal Court or a higher court, lays down standards of uniformity for dealing with sentences. This has been lacking to date.

The issue of sentencing is crucial to this debate and the reform of the law and there must be unanimous agreement in this House and elsewhere that the crime of rape and aggravated sexual assault must attract the sentence of custodial committal and punishment. Anyone who has commented on recent events in the Circuit Criminal Court would agree it is appropriate that people who are convicted or admit to serious crimes of sexual assault on women, young boys or young girls must in all circumstances face custody. Recent cases raise the question of important demands which must be made in the context of this legislation.

The Minister should now give a clear indication that his Department will put in place, either in this Bill or at an early stage, powers so that the Director of Public Prosecutions can appeal against sentences which he considers to be far too lenient and inappropriate. This right has been bestowed upon the Director of Public Prosecutions in Britain and Northern Ireland and it is clearly one that should be introduced into our criminal law at a very early stage. This would ensure that cases such as the recent case involving the soldier and the young child would be addressed by a higher tribunal and reviewed against some form of standard. In this way the community could be satisfied that all agencies take the problem of sexual abuse of children and women seriously.

There is a second need which the Minister must address. It is time he took action to ensure that guidelines are laid down. There is a precedent to this where the Attorney General, in consultation with the Minister or his counterpart in other jurisdictions, addressed courts of criminal jurisdiction and requested guidelines. This was done in the context of rape when the Attorney General addressed the Court of Criminal Appeal. The court expressed the view at the time that there was not enough statistical data or information available to enable it to draw conclusions and lay down guidelines.

As has been stated by a commentator in the national media recently, the absence of such information is unforgivable in a country the size of Ireland. The agencies working with the victims of these crimes have this information but there is no co-ordination between them and the Minister to present this information in intelligible form to those who might have recourse to it, particularly those who are interested in developing a policy of sentencing in all criminal trials.

The point was made that information, statistical and otherwise, on the incidence of various crimes in our community should be made available annually from four different sources — the Garda Síochána, the prisons, the probationary service and the Department. This has not been analysed in any co-ordinated fashion to help those who want to work towards the formulation of guidelines. I say this in the context of the submission of the Irish Association for Victims Support. Having regard to the views of the Commission on Law Reform, the Minister has an active role to play in this area. We should not sit back and hope tribunals of law will do the work for us, as they have shown a distinct disinclination to do so in the past. There is nothing wrong with the Minister assembling and analysing the information which is available and coming to the conclusion that guidelines can be formulated on the appropriate term of imprisonment to be imposed in certain instances and, following consultations with the Judiciary, giving directions and guidelines to them. These guidelines would not, by definition, take away from the general principal that each case should stand on its own right and be judged in the context of the facts.

There is certainly a need for us to give such guidelines to the Judiciary, and I believe within the Judiciary itself there is a desire to have guidelines of a general nature to help them establish at various jurisdictions what sentence should be considered by a court.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

Mr. McCartan

I was making the point that allied to the question of developing and putting in place a sentencing policy there is the urgent need for the Minister to consider putting in place an on-going educational programme for members of the Judiciary. I say this without any hesitation whatsoever. The members of the Judiciary, and there is absolutely no secret about this, are appointed on a party political basis and on the basis of their allegiance in the past and their service to whatever party are in Government. All of them obviously have very good grounding in the law and they are experienced and competent members of the legal profession, but there is no pre-appointment education. They are simply plucked from the chambers of the professions and appointed to the Bench. There is no educational process leading to their appointment. Once there, they are left to their own devices until they retire at the late age of 65 or 70. None of them is expected or requested to attend courses of education on what is going on in the broader community.

The failure of the system has been manifested time and again, the last most blatant example took place in the days when communities in Dublin and elsewhere were afflicted with a huge heroin problem. When police forces and community groups were attempting to address in their communities the problem of heroin abuse the courts were still handing out suspended sentences to drug traffickers. Quite simply, the message — the seriousness of the problem — had not come home to them. In 1977 we passed the Misuse of Drugs Act which made provision for very serious penalties but a short few years later we had to come back to increase those penalties, from 15 years to life imprisonment for drug trafficking, to try to bring home to the courts the urgent need to deal with drug traffickers in a serious fashion. We have now achieved this, but it took a long number of years to bring home to the Judiciary the extent of the problem, the damage these people were causing and the dangers they were bringing into our communities.

The same in some respects has to be said with regard to crimes of sexual abuse and rape. The fact that in 1989 a judge of the Circuit Court would feel it appropriate in whatever circumstances to impose a suspended sentence on a person who had raped an 11 year old child and left that child psychologically damaged is a feature of a Judiciary totally out of touch with what is happening on the ground and in particular with regard to what we as a community expect of our Judiciary in trying to address what I believe is only most recently understood and exposed by the activities of people working in the field of sexual abuse, the major extent and problem of these crimes in Ireland. Therefore, education is central and important.

The fourth aspect highlighted by recent developments is the question of sentencing, the question of what do we do with the offender. The point has been made very succinctly in some editorials recently that we lock people up and put them in prison as punishment, not for punishment, but there is a strong and cogent case made that those convicted of sexual offences — the type we are addressing in this legislation — and sentenced, are in need of more than mere punishment and incarceration. This issue has been raised through the Probation and Welfare Officers Branch of the UPTCS. The case they make is for the establishment, as a universal feature of all sentences to be imposed on sexual offenders, of a proper regime of psychiatric and psychological assessment and treatment. I sent their submission to the Minister by way of letter of 12 December 1988. I wish to read that letter because I think this is an essential and important aspect of this legislation. The issue was raised by the Probation and Welfare Service and not only in their submission to the Minister. They had, on a voluntary basis and on their own initiative started two pilot projects, one in Mountjoy and one in Arbour Hill, borrowing on their own good time and initiative to provide pilot schemes for sexual offenders in both those institutions. Building on their experiences there and their contacts internationally, they made a submission to the Minister in which they made the case that the Department and the Minister in particular must act in the area of establishing, as a feature of our prison service, psychiatric and psychological services for sexual offenders, making the point that not to do so would simply mean putting these people back on the streets, if anything worse off than when they went in on the first day of their sentence.

The case was raised subsequently at a conference under the heading "Alternatives to Custody" held in Dublin on 7 and 8 April 1988, which the Minister of State at the Department of the Taoiseach, Deputy Vincent Brady, attended. The association brought together many experts in the field and discussed over those two days the whole issue of alternatives to custody and highlighted in papers — presented particularly by Mr. Ray Wyer, at the time director of the Gracewell Clinic treatment centre in Birmingham for sexual offenders and himself a former probation officer — the case for the treatment of offenders of a sexual nature once incarcerated.

As I said, I wrote to the Minister in 1988 asking him to address this matter in the context of the Bill which had then been in circulation in the Seanad. I wish to quote in brief. Referring to the Bill I stated:

In general, The Workers' Party is happy with the content of the Bill and will be supporting the main thrust of the Bill when it reaches the Dáil. However, there is one area not covered by the Bill, which I would ask you to consider at this stage with a view to introducing an appropriate amendment or addition to the Bill or undertaking to consider amendment of related legislation to cover the issue.

I understand that you have received a submission and representations from the Probation and Welfare Officer Branch of the Union of Public & Technical Civil Servants (UPTCS). This touches directly upon the treatment afforded to sexual offenders once in prison and the total absence of any ongoing supervision, once released. I have spoken with Anthony Cotter, the Press Officer of the Branch, and Anna Ryan both of whom are directly involved in an innovative and pilot scheme for the treatment of sexual offenders at Arbour Hill; a similar project has recently been initiated at Mountjoy Prison. In short, the Probation and Welfare Officer Service is convinced that the problems and needs of sexual offenders are unique and require intensive care, confrontation and treatment while in custody, combined with continued supervision and assessment on release after sentence, unlicence or under other order. Having considered their submission and listened to their arguments, The Workers' Party would be disposed to their view. We feel that the opportunity of the current Bill is an important time to address this issue, as it is not anticipated that there will be further amending legislation in this area for some considerable time.

I would therefore be anxious if you might please consider the matter in full and for these purposes, I enclose a copy of the submission of the Service for easy reference. It is hoped that you might be in a position to respond favourably to their views and consider the drafting of appropriate provisions for inclusion in this Bill when it arrives in the Dáil for discussion.

I await hearing from you in response and thank you in anticipation.

That was a letter of 12 December 1988, and I apologise in part for reading it at length. I did so because to date I have not received even an acknowledgement let alone an answer. The Minister, I suppose, if not in deference to a Member of the House in correspondence, at least in response to the submission that had been forwarded to him by the union, sought to address this matter on Second Stage when opening the debate on the Bill. Indeed, he did not do so himself; Deputy Woods was asked to read his speech for him. I have not got his speech as reported in the Official Report but in the text as delivered and circulated in the House under the heading "General" he said, before going on to discuss the provisions of the Bill itself, that he was aware that several Deputies of the 25th Dáil raised the question of the treatment of sexual offenders but that this was a separate matter and outside the scope of the Bill. He went on to say that programmes which had been carefully monitored were already under way in our prisons on the treatment of sexual offenders and, subject to the availability of resources, those which proved resourceful would be continued, and where appropriate extended. He said that the Bill was confined to reforming the law on sexual assault offences and to provisions which related to trials of such offences. It did not purport to deal with the prevention or detection of such crimes; these were separate issues. The speech went on to make reference to the Criminal Justice (Forensic Evidence) Bill as an aspect of what the Minister is doing in an attempt to detect crime. I find utterly and totally ridiculous and unacceptable such response by any Minister concerned actively with this area of the law. To suggest that the Bill is not about the detection and prevention of crimes in this area means the Minister misunderstands totally what the Bill is about. It means he does not know what he is talking about.

The Bill is explicitly designed to deal with the prevention and detection of crime. How does it do so? It proposes to redefine the crimes involved. It proposes to deal with the rules of evidence dealing with the conduct of trials in these cases. What is the purpose of these features if they are not to deal with the detection or the prevention of such crime?

To suggest that the question of sentencing is separate as an issue from the general thrust of this Bill is insulting, in particular to those people who have voluntarily worked to establish these schemes within the prisons. The Minister has taken them on board in the context of his delivery on Second Stage, suggesting that they are official departmental developments. In fact, they were pushed on the Department by people working in the field who were concerned about the inaction of the Department, who decided themselves that they should of their own volition, on their own initiative and in their own time, establish pilot schemes of work in this area, and the Minister suggests they are being carefully monitored. He does not even acknowledge in the course of his address exactly who had thought of these schemes, had put them in place and were working them. He gives us the impression they were departmentally contrived and established. They were not, and he is being dishonest in his remarks to the House, but he is being completely disingenuous in suggesting he can cast this whole area of debate and issue aside by suggesting that they have no relevance to this Bill. They are totally relevant to the Bill.

The point I made in my letter to the Minister some 13 months ago is that it will be a long day again before we come back to address this area of the law and that this is the only opportunity that this Minister will have during his term of office, however long that may be — and I hope it will be as long as the Minister wishes it to be — to address the question of sentencing and the conditions of the sentence once imposed. Consequently, it is criminally irresponsible of him to walk away from the Second Stage debate on this Bill and merely try to suggest that the conditions of sentencing have no part to play in the context of the legislation. It is essential that the Minister address this point. His fobbing off and throwing the issue aside is utterly unacceptable and in fact raises grave questions about his commitment and that of his Department to address the problems seriously.

Sentencing is directly addressed in the Bill. Sentences are being increased for certain redefined offences, and if that is so why can we not address the issue of sentencing and the conditions and terms of sentences once imposed? From examining the submission of the probation and welfare service of the Department the reasons that they must be linked become absolutely clear. I will quote briefly from their submission to help me make the point that it is not simply good enough to talk about how long we lock people up for sexual offences, but how we deal with them in prison is as important as the length of their sentence. I will quote from a policy document prepared by the Probation and Welfare Officers. Under the heading "Community Safety, Treatment and Punishment", they say:

The use of punishment without treatment/counselling must be regarded as short sighted. Research and those who have experience of working with sex offenders inform us that convicted sex offenders would often have committed other similar offences apart from the ones for which they were convicted in Court. They also inform us that sex offending is a learned behaviour and unless it is unlearned the possibility of re-offending on release from prison is very high.

Surely that is an argument for prevention, but the Minister says he does not want to deal with it. The submission continues:

However most sex offenders are released back into the community without having undergone a systematic treatment counselling programme. We feel——

that is, the Probation and Welfare officers——

the time is opportune to change this situation and establish systematic programmes for sex offenders in our prison system.

I agree with the submission for the reasons I have outlined. The time is opportune. There is no more relevant time than the present when we are debating the Criminal Law (Rape) (Amendment) Bill, 1988, to address this issue. The Minister must ensure before this Bill passes into law that there is a provision that makes it obligatory on the prison service to subject all persons sentenced to terms of imprisonment for sexual offences to undergo a regime of psychiatric and psychological assessment and treatment and that they then be subject to on-going treatment on licence once released at the end of the term of sentence to ensure that the very high risk of re-offending as discussed in the submission is addressed and dealt with effectively. Under the heading "After Prison — Supervision and Support", it is suggested in the submission that:

In addition to the prison programme we strongly recommend the setting up by the Probation Service of a structured supervision and after-care programme for sex offenders on their release from prison. When released, sex offenders need ongoing supervision and counselling so that they have to continue to face the reality of their offence, avoid re-offending and reintegrate into society.

Under the heading "Community Based Supervision", in cases of child molestation and incest, where non-custodial sentences might be imposed — let us face it, they occur unfortunately all too often — the submission states:

In these cases we recommend community based statutory supervision and counselling as the appropriate disposal. Indeed an extended (up to five years) statutory Probation/Supervision Order might be a more appropriate sentencing option than a short prison sentence, especially for some cases of incest, child molestation and paedophilia.

Again in seeking to draw at some length from the submission I want to illustrate for the purposes of this debate that the people working in the field have made a clear and succinct proposition of what should be done in a concise submission to the Minister. For the Minister to come in here on Second Stage and with a wave of the hand say that the issue is not to be addressed by this Bill and has nothing to do with this Bill is completely and utterly contemptible and unacceptable. The basis and need for this approach was addressed in a two-day conference in April 1988 convened by an organising committee comprising people working in the service in Ireland, and also involved those working in the prison and welfare service in Northern Ireland. The main speakers included a Minister of State in the present Government, Dr. Ken Whitaker, the chairman of the review committee on the prison service, whose report in 1985 has been assiduously ignored since then and a very important contributor, Mr. Ray Wyre, who works in a special unit for the treatment of sexual offenders in Birmingham, England. He delivered a very useful paper underlining the research and reasons behind the approach now being sought by the Probation and Welfare service here. In the context of the potential of an offender to re-offend, he said that the sexual offender is not someone who can be easily stereotyped and thrown into a cast of their own. In the booklet Crime in Ireland: Alternatives to Custody Mr. Wyre states on page 23:

The one thing about the offenders whom I worked with is that they came from every class and background, more so than any other criminal group. He can be a teacher, unemployed, a police-man, clergyman. Some of the offenders I am presently working with, (who are nearly all probation clients), are a head teacher, a barrister, a watchmaker, an electronics engineer, the owner of a security firm, two retired men, a waiter and two men who are presently unemployed.

He continues:

Some of you who heard me talk the last time, heard me give the New York figures, but I just want to repeat them again. In one study that was done of the New York Psychiatric Institute in New York City, 411 men admitted they had committed offences against 138, 137 — 232 child molesters had molested 117,585 children, and 89 rapists had raped 744 women.

He went on to explain that studies in England where he worked showed comparable statistics. Given the socio-economic climate in Ireland there is no reason to doubt that the pattern is any different here. The point he is making is that which has been made in the submission from the welfare service, that this type of offence is a condition that is learned and, once acquired, is of pathological dimensions.

Mr. Wyre referred to three clients, all of whom had been punished and sent to prison but all of whom came out of prison exactly the same as they went in, simply because nothing was done with them when they were in prison. That is exactly the situation that exists in our prison service for the vast majority of sexual offenders, except for those who are lucky to come under the two pilot schemes established by the initiative of the Probation and Welfare Service which the Minister now says he is carefully monitoring for his own purposes.

Mr. Wyre goes on to say:

In identifying the problem as I would see it, I want us to remember the following: firstly, that many types of sex offending are extremely addictive, once you get into it, it is incredibly difficult to get out of it. Second we are not looking at cure, we are looking at control, everybody in this room——

it equally applies to this Chamber here today——

——controls their sexuality, you don't get cured of it you are actually involved in controlling it. You might not break the law if you let those controls go, but you would get into a hell of a mess. With regard to your present relationships we are all into controlling sexuality and in a sense that is what I am going to attempt to do with the offender.

What we are talking about is identifying a problem. We are not talking about cure but about the fact that the problem can be controlled from within the prison and also outside it once the offender has been released into the community. Mr. Wyre goes on to say:

As I said before sex offending is not spontaneous, it is part of a cycle of behaviour that one can identify and therefore one can seek to control it. What then is presently being done with regard to sex offenders either in prison or in the community? On the whole it is a very simple answer — nothing.

When referring to sex offenders Mr. Wyre says:

As a society we would actually rather have these men in the community in secret, in bed-sit land somewhere rather than going through some form of programme in a hostel because nobody wants the hostel in their street. The fact is that we are actually placing sex offenders in the most vulnerable part of society, we are putting them into bed-sits, the other occupants are often single parents with children and yet we still carry on exposing this vulnerable group to high risks because we will not face up to the problem that the majority of sex offenders are in the community.

Mr. Wyre goes on:

We need to know right from the assessment stage that even if he goes to prison he is going to be in the community in a relatively short time; we must recognise this and actually do something about it. When an offender is in prison, we need to set up within the regimes something that would look at how he normalises, justifies and excuses, and examine the addictive behaviour of his offending.

Those are the reasons advanced by Mr. Wyre in his contribution, a contribution, I have no doubt, that was fully reported back to the Minister in due course by his officials and people who attended that conference. Those are the reasons borrowed by the Probation and Welfare Service when they made their submission to the Minister over two years ago. Those are the reasons that prompted me in December to put before the Minister a very specific request, that he would address the need to put in place on a statutory basis a scheme of sentencing and treatment of offenders once sentenced. I find it utterly contemptible of the Minister first that he has never acknowledged or indeed answered the correspondence I sent to him and that he has failed utterly to respond to or even acknowledge the existence of the submission made to him by the Probation and Welfare Service. In his speech he suggested that the issue had been raised with him by several Deputies in the 25th Dáil. There was no reference to the prison service, who had made submissions to him. Most importantly, it is contemptible of him that he has not indicated that he would work in this House to introduce a new section or an amendment to the existing law to deal with the problem. He did not even indicate that he is prepared to consider that it is a matter for amending legislation or for putting on a statutory basis the need for such a service in our prisons.

I acknowledge I have gone on at length about this issue but I have done so simply because I believe it is important to put on the record on this occasion, as broadly as possible, that this Minister has been equipped with all the arguments, the reasons and the research to act in this area, lest the message might go out that perhaps it is some new-fangled idea that had been thought up by individuals within the service or by a few Deputies in the 25th Dáil and that really there was not a central or core issue at hand. There is, and it is this. Sentencing and the conditions under which sentences are imposed are central to this Bill and, more importantly, are central to the way in which we would hope to try to address the problem of sexual offending in our community, a problem which, as I have said, has been totally exposed and the extent of which we are beginning to wake up to as it affects women and young children and family life in Ireland. For that reason it is an issue that I and The Workers' Party are not going to treat lightly in the context of this Bill. If the Minister is not prepared to bring in an amendment we will put one down and I hope the people on the Opposition benches who are concerned with this legislation will join with us to try to make the Minister see reason in this matter.

Moving to the provisions of this Bill——

Mr. J. O'Keeffe

I hate to interrupt Deputy McCartan again but I have to observe that the Government have failed in their duty to maintain a sufficient number in the House and I seek that we adjourn until they discharge that duty. There is not a quorum present.

Minister of State at the Department of Tourism and Transport (Mr. Lyons)

Has the Deputy not got enough publicity without trying again?

Notice taken that 20 Members were not present; House counted and 20 Members being present,

Mr. McCartan

I have no difficulty at all with Deputy O'Keeffe calling a quorum. I do not mind being interrupted for that.

Mr. Lyons

The Deputy should not mind, as he did enough of that sort of thing himself. He learned it from the Deputy.

An Leas-Cheann Comhairle

Deputy McCartan without interruption.

Mr. Lyons

The Deputy is disrupting the business of this House. It is a disgrace that they are complimenting each other on what they are doing. Let us get on with the Bill and stop the charade.

Mr. McCartan

It is a pity that Fianna Fáil will not get the message and maintain a quorum in the House; then we would not have these interruptions.

(Interruptions.)

An Leas-Cheann Comhairle

Deputy McCartan without further interruption, please.

(Interruptions.)

Mr. McCartan

I will continue if I can, without the interruption of other Deputies.

An Leas-Cheann Comhairle

Order please, Deputies.

Mr. McCartan

I will comment on some of the provisions in the Bill. In the submission prepared by the justice and civil liberties committee in The Workers' Party in January of last year we indicated general agreement with the Bill, and I conveyed this agreement to the Minister subsequently in correspondence. We intend to support the Bill in its general thrust. However, a number of issues do not entirely satisfy us.

We are not satisfied with the definition sections and the attempt to deal with a proper definition of rape. The Rape Crisis Centre analysed the current law and have argued very strongly for the repeal of the Criminal Law (Rape) Act, 1981, and its replacement. They identified in their document "Rape Legislation and Investigative Procedures", which they submitted to the Oireachtas Joint Committee on Women's Rights, the major problems with the existing law and I agree with them. They say that the 1981 Act fails to criminalise rape within marriage, to define rape in its broadest sense, to protect the anonymity of the victim, to restrict the admissibility of irrelevant evidence as to the complainant's past sexual history, and to protect the complainant from feeling that she is on trial and that she is being raped again in court. Most of those complaints with regard to the 1981 Act are dealt with under this Bill. I understand that there is dissatisfacation in the way some aspects of the complaints of the Rape Crisis Centre have been addressed.

We in The Workers' Party recognise that there are technical difficulties with broadening the definition of rape, but a broader definition is a better option and the Minister should have adopted that option in drafting the legislation. The Minister's construction of a third offence, namely aggravated sexual assault, is avoiding the issue. It is crucial that the public understands the crime of rape and we should emphasise that the crime is one of violence and not of sexual passion. The Bill should reflect this. Making a major distinction between rape by natural intercourse and other horrific forms of assault seeks to undermine this understanding. It seems to us that the offence of aggravated sexual assault will be viewed as less serious than that of rape. While we acknowledge that the Bill goes some way to meet our requirements, it falls short of what is desirable.

The Law Reform Commission's report contained a majority recommendation that the Minister should adopt the broader definition. That is the proper way to deal with it. Before reading what the report recommends, particular regard must be given to the Law Reform Commission for their work in this whole area. In March 1987 the then Attorney General, Mr. Rogers, requested the Commission to look at the whole area of the law and to recommend its reform. The Commission responded by seeking extensive information from the Garda Síochána and then had regard to the fourth report of the Oireachtas Joint Committee on Women's Rights entitled "Sexual Violence". They provided interested parties and the public with a comprehensive report and consultation paper in October 1987. Within a few short months the Commission had provided those concerned in the area of reform with this very extensive document outlining all the arguments, running to 80 pages, surrounding the issues which were then — and still are — current in the area of reform.

They also gave us a very good synopsis of the law and a very good discourse on comparative laws in other countries of like regimes. In January 1988 the Commission convened an all-day seminar which I was happy to attend. Subsequently, having regard to a large number of written submissions, they prepared their final report in May 1988. They produced 21 basic recommendations and provided a general scheme for a reform of the law as it existed, recommending how a new amendment Bill could be drafted and giving general guidelines in that regard.

It must be acknowledged that the Minister followed, reasonably closely, the Commission's recommendations. Perhaps one would say this was untypical having regard to the debate on the Larceny Bill in the area of receiving. Nonetheless, the Minister did have regard to the findings of the Commission.

I have gone through in small detail the work which the Commission undertook because they should be applauded for the way in which — between March 1987 and May 1988 — they went over, as comprehensively as we could have hoped, the whole area of the law and the work involved. We are very grateful to them for their succinct and concise report. We are glad that the report has been considered and acted upon. Having said that, it is curious that the Minister did not accept the recommendation that the report delivered on page 8 on the whole issue of the definition of rape. I quote:

We, accordingly, recommend that the crime of rape should be defined by statute so as to include non-consentual sexual penetration of the vagina, anus and mouth of a person by the penis of another person or of the vagina or anus of a person by an inanimate object held or manipulated by another person and that, in this form, the crime would be capable of being committed against men and women.

It is important to have a statutory definition of rape, not just of women but of men.

The Commission deliberated the pros and cons and indicated the difficulties there might be in relation to drafting and acknowledging some of the arguments of those against the broader definition, that the law has a particular function, namely to apprehend the criminal, to bring him to trial and have his case disposed of quickly with little fuss or complication. I do not necessarily accept that argument and I criticise the very narrow view taken by members of the Commission who dissented on this issue and whose views the Minister has adopted. By inference, I reject the thinking of the Minister that there are insuperable difficulties in the area of definition. That is not the case, especially when one considers the talent available to the Minister in the department in the draftsman's section and in the Attorney General's office. Surely we could come up with a definition which would meet the very succinct recommendations of the Commission.

The minority view also was that the function of the criminal law is to put people on trial and, where necessary, to put them away. Criminal law has a far wider responsibility of responding to community needs, of giving a clear indication that it is sensitive to the views of the community generally, it should reflect those views and give a platform to them in the form of a trial when a person is brought before a court. It is crucial that the public understand the nature of the crime of rape. Differentiating between one form of sexual assault as non-rape — although we all believe it to be rape — develops the view that there is a difference when really there is none. It is important to get it right in legislation and we should be clear that the penetration of the vagina, anus or mouth is horrendous for the victim, regardless of whether the penetration is by the penis or an inanimate object. It makes no difference, it is humiliating, degrading and a violent form of assault. It is rape. No one in this House will argue otherwise. It is certainly the view in the community and I do not think anyone will take the opposite view.

The Minister said he will not accept that argument because he perceives legal drafting difficulties. I do not believe these difficulties are insurmountable. We should, in this legislation, ensure that the definition of rape is of the broadest sense and reflects the view held by the community. They should certainly heed the views of every victim of a crime of aggravated assault of a sexual nature under our current laws. The Government must realise that an assault involving an inanimate object is as horrendous, degrading and humiliating as an assault with a penile projection erect.

Even in the definition in section 3 there is an even more unnecessary narrowing of the definition in regard to aggravated sexual assault. The Minister suggests at subparagraph (a) that aggravated sexual assault should include serious violence or the threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted. The section went on to deal with the particular and stated:

...includes —

(a) penetration (however slight) of the anus or mouth by the penis, or (b) penetration (however slight) of the vagina by any object held or manipulated by another person.

That in itself, if we are thrown back to accepting the Minister's formula, is unnecessarily narrow. It should, in subparagraph (a) include, penetration (however slight) of the anus or the mouth by the penis or any inanimate object. The Minister has lost the point by suggesting that the forced penetration of the anus or the mouth is only objectionable in this context if it involves a penis. The use of an inanimate object, a bottle, a knife, a poker or a phallic object is as degrading and as violent when forced into the anus or the mouth as it would be if it was by the penis.

I wonder why the Minister is narrowing his definition. It appears that he does not accept the suggestion that we should be legislating to deal with rape of the male adult. That is missing entirely in the Bill. The Law Reform Commission advocate that we should work towards a universal definition of rape, that it is an offence equally capable of being visited on a man as on a woman or on a child, male or female. The Minister loses that entirely in the narrow way in which he has refused to adopt the broad definition. He creates the offence of aggravated sexual offence and in defining that offence omitted anal or oral penetration by an inanimate object.

We advocate the broad definition, we accept the arguments of the majority of the Law Reform Commission and we will be pressing them by way of amendment on Committee Stage. I urge the Minister, if he is not disposed to accept that approach, to look at the suggestion that he should have a wider definition of aggravated sexual assault in section 3.

I welcome section 4 which outlaws marital rape. The only observation I should like to make at this stage is to wonder aloud why it has taken the Legislature so long to address the urgent need to amend the law in that respect. It has been argued for decades that rape within marriage was, unfortunately, a regular and constant form of degradation of the woman. A change in our criminal code in regard to that is long overdue. It is a poor reflection on the House that it has taken it so long to address that feature of our law.

The suggestion that a boy of 14 years or under was incapable of sexual intercourse is a joke. That should have been addressed in our law a long time ago. I welcome the fact that it has been addressed in the Bill and that it will no longer be a defence for those of 14 years and under who commit such offences. It is a major anomaly in our law that while we criminalise people who are seven years and upwards we have maintained this odd exception for those of 14 years and under in the context of rape.

The amending provisions relating to the restriction on the right to cross-examine a complainant, or to adduce evidence about sexual experiences of the complainant with any person other than the accused without an application being approved by a judge in the absence of the jury in advance, is a welcome development of the law in that it will seek to protect the victim or the complainant in the witness box. There is no doubt that our law was unduly weighted against a person who was the victim of the crime of rape or serious sexual assault. It was simply a further rape of the victim in a trial to allow her to be questioned at length about previous sexual experiences that had no direct bearing on the particular incident involved.

I am in agreement with the Minister's amendments in that regard but I suggest that the application to restrict cross-examination should relate to any previous sexual experience. It should be made at the beginning of the trial in the absence of the jury so that a victim will be in a position to assess at the outset where she stands with regard to the overall direction the cross-examination will take and will not be in the position of having to go into the witness box unsure of what road she may be brought down. She should not be left sitting in the witness box or other location while an application is made, leaving her in the difficult position of having to give evidence immediately afterwards, probably incapable of composing herself into a calm condition so that she can address whatever questions are directed at her in further cross-examination. That is the best way to approach this issue.

The attempt to address the definition of consent is welcome. There is no doubt that there was a lot of confusion in our minds after the law concerning that was dealt with in 1981. It can be suggested that what was in the mind of the accused, or what he reasonably might have thought to be in the mind of the complainant or victim, was an unsatisfactory approach to this issue. There was the possibility that drink as an excuse could be used. In that regard some explanation might be found for the remarkable decision of the case involving the soldier to which I referred. One of the excusing factors seemed to be that the person was drunk at the time. That clearly can have no part in excusing crimes of this sort. The definition in the 1981 Act was ambivalent when it came to understanding whether consent existed. The Bill as it proposes to amend the law in that regard is welcome and will be supported by us.

The provision to do away with the need for corroboration in section 6 is welcome. The Bill leaves it to the discretion of the judge in any case to warn the jury of the dangers that might arise if they convict without corroboration. That is an established procedure and is a sensible one. It should be left to the judge in any case to rely upon it but to have it, as it has been, as a universal principle that had to be applied in all cases because it was a woman who was giving testimony was an insult to women in general. Again, I wonder why it has taken us so long to address that insult and strike it from our Statute Book. It seems incredible that we had of necessity, because it was a woman who was giving testimony, to warn a jury that her testimony in those circumstances was unreliable unless supported by independent extraneous evidence when the testimony of a woman in all other circumstances, and men in every case, could be accepted without corroboration in instances of assault. I welcome the change in this area. Equally the efforts in the Bill to protect the anonymity of the victim and of the accused until such time as he is convicted are a welcome extension of what was attempted, without success, in the 1981 Act.

We welcome these developments and will support them on Committee Stage. Our one proviso is that the complainant in a sexual assault offence trial should, in the interests of justice, be accorded full anonymity and the Criminal Law (Rape) (Amendment) Bill should be amended to include the following: "No matter likely to lead members of the public to identify a person as complainant may be published or broadcast". It is our view that the Minister's provision in this regard is not as absolute as it should be and that it can be improved upon by a simple amendment along the lines I have suggested. I hope the Minister will consider this point.

The provision to transfer cases of rape and aggravated sexual assault to the Central Criminal Court is one which our party will support. I understand there is some concern that this provision will downgrade the jurisdiction of the Circuit Court as a court of criminal jurisdiction and will place upon the Central Criminal Court an unnecessary workload which it may not be able to handle, considering its experiences in the past. There has also been in the past the feature of persons borrowing on the Central Criminal Court as a place to which they could seek to have recourse by transfer to delay trial. Here I note that it is at the power of the director and not at the election of the accused that trials will be taken up by the Central Criminal Court. They automatically go there and the problem I have mentioned will not arise.

A case has been made that considering the greater number of these cases emerging in recent years the work of the Central Criminal Court may back up unduly. There is the risk that removing these trials to the remote location of a court sitting in the Four Courts in Dublin could have an adverse effect on the role of courts in maintaining a deterrent function in this area. An offence committed in the provinces, in Galway, Limerick, Cork or Waterford, of the nature of rape or aggravated sexual assault will in time be transferred to the Central Criminal Court in Dublin and dealt with there. There is no practice of the Central Criminal Court sitting in circuit around the country, as the High Court does. It sits invariably in Dublin and sits as one court alone. I recall only once ever that any more than one division of the Central Criminal Court sat at one time and that was to deal with an inordinate backlog in the 1970s in that court.

A crime committed outside Dublin will be transferred to Dublin and dealt with at a later date at a remote location. I am worried that the fact of the crime might be lost in the community where it was committed and that its trial and all the trial can teach us about the horrific nature of these crimes will be lost if not adequately reported in the local newspapers, as inevitably it would be if dealt with in the local Circuit Court. That worry must be addressed. Possibly it could be addressed by the Central Criminal Court sitting in circuit or the High Court sitting in circuit could take up for a number of its days a Central Criminal Court jurisdiction to deal with crimes of this kind originating in that area. It could also be dealt with by ensuring some link between the national and provincial newspapers so that there would be full coverage of these crimes.

The simple case of the soldier receiving a suspended sentence for the rape of an 11 year old makes the argument unanswerable that this provision in the Bill must be supported. The Circuit Criminal Court scored the greatest own goal possible in the debate on where and how these cases should be tried. For the reasons I have given, I would propose that the transfer exclusively to the Central Criminal Court should be for a limited stated period in the first instance. I am suggesting a period of between three and five years.

Mr. Flanagan

The Fairview case was a High Court case and there was no outcry.

Mr. McCartan

At the end of that period we could address the question of whether it would be proper to continue the trial of these offences at that jurisdiction. We could also review whether a proper sentencing code had begun to emerge. One of the advantages of the Central Criminal Court's dealing with these crimes exclusively will be the enabling of the tribunal sitting in one location constantly dealing with these crimes to begin to lay down guidelines of some order in the area of sentencing. It is the ideal opportunity. If we decide in five years' time to revert these cases to the Circuit Criminal Court, at least there will be a clear picture of sentencing which will have evolved in the interim. For that reason we agree with what the Minister is proposing and with what is being argued strongly for by those working in the area of victim support and attempting to combat the crime of rape and serious sexual assault.

The provision dealing with the exclusion of the public from hearings is a good working provision that will help assure the victims of crime that more favourable and fairer conditions will exist when they will be called upon to give evidence at trial. It is a welcome provision which we support. The argument has been made by those working in the field, particularly in the Rape Crisis Centres, that more should be done to help the victim in addressing the trauma of giving evidence at trial.

An argument has been made for separate legal representation. We do not support that and I am not unduly concerned that the Minister has not addressed it in the Bill. It is generally accepted that the experience of complainants of rape as they go through the criminal justice process is unlike that of the complainants of any other crime. The trauma experienced in this area is unparallelled and unequalled when compared with the trauma experienced by the victim of any other serious crime. In no other criminal case is the complainant likely to be subjected to the type of cross-questioning and humiliation which is prevalent in rape cases. Thus, it is futile to argue that the role of a victim of a rape sexual assault offence is similar to that of the victim of other crime such as robbery, common assault etc. as a witness in court. For that reason different considerations should exist to ensure that a victim or witness in these circumstances is encouraged and helped, as far as possible, to give testimony in fair and favourable conditions.

The Workers' Party recommend that the complainant should have a right to full, independent legal assistance and full consultation with the Director of Public Prosecutions' office to ensure that they are fully informed of the workings of the criminal justice system, the complainant's rights and duties and the complainant's role in court. We accept that the representation should not involve the right of participation in legal argument or representation at the trial. It should involve someone who is assigned and available to the victim for assistance during the trial and in all stages leading to it. A victim should be advised of all the stages and decisions taken by the director or the prosecuting authority, whoever that might be, in a particular case and not necessarily have the right to influence decisions in that regard. There is a cause for concern abroad that victims do not know what is going on from day to day. They do not know whether they are likely to meet their alleged attacker on the public street, whether he has been granted bail, whether he is still in custody, whether the charges will be extended or whether charges will be dropped or amended. We believe the complainant should be given, as a matter of course, a copy of the statement they had given to the Garda so that it is available to them to refresh their memory and to prepare them for the purpose of giving testimony at the trial eventually. A standard booklet should be devised by the Minister for Justice which would be available to all the victims of sexual offences explaining all the circumstances attending the investigation and prosecution with particular emphasis on the role of the complainant as witness. This is something that the witness complainants could bring home with them and consult when problems recur in their minds as they live over the trauma of a nightmare of what has happened them. They can revert to the book to see if the answer is there concerning what is troubling them at the particular time.

A positive attempt should be made to ensure that some court officials or attendants at rape and sexual offence trials are women. This is important. Nothing can be more traumatic for a woman arriving on the day of the trial in the company of male gardaí or whoever conducts her into the court than to walk into a court full of male lawyers and a male judge — if it is at the Circuit Court the judge has to be male because there is no female Circuit Court judge in the country — and perhaps be faced by a jury which can be entirely male and the clerk of the court might well be male. It is important in these cases to ensure that there would be there a female presence either in terms of an attendant to assist, counsel, advise and comfort the person or an officer of the court, members of the jury or whatever.

This is important legislation and we, in The Workers' Party have given it much time and attention. I have already complained about the way in which the business of the House has been ordered to deal with it. I hope we will now address this legislation in a concerted and considered way in the future and that the Minister will take on board some of the points that have been made, particularly the one which I dealt with at more length than others, the question of sentencing and what is experienced by the offender once sentenced. The Bill is one we will support on Second Stage and will seek to amend in a fundamental way on Committee Stage. I hope the Minister will be in a position to meet us in this regard.

Mr. Dempsey

I could not agree more with Deputy McCartan in relation to the importance of this Bill. Unfortunately, I think members of the party opposite do not appear to share that view of the Bill. Yesterday morning on the radio programme "Morning Ireland" Deputy Seán Barrett referred to this Bill as not being important and one that could be postponed. That is something with which I could not agree.

Mr. Flanagan

It is a pity the Deputy did not talk to his Chief Whip on the last day of the session.

Mr. Dempsey

I did not interrupt Deputy McCartan who spoke for two hours in the House. I would expect the same courtesy——

An Leas-Cheann Comhairle

The Deputy can take it that I will not allow Deputy Flanagan to interupt you but please leave it to me. I will attend to that.

Mr. Flanagan

I will not interrupt, a Leas-Cheann Comhairle except under severe provocation from the Deputy——

An Leas-Cheann Comhairle

The Deputy will not interrupt at all, full stop, or else he can take himself to other quarters. The Deputy will sit as other Deputies have done to date and listen patiently — I am not suggesting he will learn — and when he makes his contribution I will give him the same protection as I intend now to give to Deputy Dempsey. I will not repeat that. Deputy Dempsey without interruption.

Mr. Dempsey

I hope Deputy Flanagan will learn as well as listen.

An Leas-Cheann Comhairle

Do not invite him.

Mr. Flanagan

Thank you for the protection, a Leas-Cheann Comhairle——

Mr. Dempsey

Deputy Barrett made the statement on yesterday's "Morning Ireland" radio programme——

An Leas-Cheann Comhairle

Deputy Flanagan, the Chair will not take any comments like those. The Chair acts in an impartial manner towards every Member of this House and if Deputy Flanagan is suggesting otherwise I would ask him to withdraw it.

Mr. Flanagan

A Leas-Cheann Comhairle, the Chair has my full respect. Having regard to the importance of the debate I am sure I will be permitted to call for a quorum of the House. I wish to reiterate my respect for your position in the Chair at all times.

An Leas-Cheann Comhairle

The Deputy is entitled to call for a quorum and he shall have it.

Mr. Flanagan

I am sure Deputy Dempsey would agree that having regard to the importance of his contribution he should have a quorum in the House.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

Mr. Dempsey

I thank Deputy Flanagan for the opportunity of speaking before such a large audience. As I was saying, Deputy Barrett felt that this item was not important when he spoke on "Morning Ireland" yesterday morning. I refute that.

Mr. Flanagan

He made no reference to the Bill.

Mr. Dempsey

Deputy Barrett made a reference to the Bill. He said "it is not important" and proceeded from there to say that it could be postponed. In addition to that we have had the spectacle of the Fine Gael Party calling a quorum every 15 minutes to further delay and downgrade the importance of this legislation, despite the fact that they were facilitated by the postponement of the Child Care Bill committee meeting this evening. All of these things will be seen by the public in their proper light, a lot of play acting and messing by members of Fine Gael because they are a little piqued.

There is little doubt in my mind that when the record of the 26th Dáil is reviewed this legislation will, despite what is happening, probably rank as one of the most important pieces of legislation passed by the Dáil. I say that, mindful of all the other legislation that is already on the Order Paper and likely to come before us in the lifetime of this Dáil. What makes it so significant is the fact that it reflects the changing attitudes in our society over the past decade, particularly changes in social attitudes and the change in attitudes to women. The Bill is also significant because it resulted from a consultative process which, while it may not be unique, was certainly unusual. I refer to the fact that the Bill reflects most of the recommendations of the Law Reform Commission report on rape which itself was the result of widespread consultation through individual submissions in a seminar attended by many interested parties. Tribute is due to the Law Reform Commission, the Joint Oireachtas Committee on Women's Rights and the very many groups who participated in that consultative process and whose influence can be seen in the final recommendations of the Law Reform Commission and indeed in this Bill itself.

The Bill is also significant for the fact that we have it before us now a mere nine years after the previous law on rape was passed. It is not the usual practice for such fundamental changes to be made in major legislation in such a short space of time. This reflects the changing attitudes in our society and the fine work that was done by the various groups I have already mentioned.

The purpose of the Bill as outlined in the explanatory memorandum and by the Minister is to provide additional protection for women who suffer sexual attacks. It is against this yardstick that the Bill must be measured. In other words, the basic aim of the Bill is to ensure that someone who has gone through the trauma of rape or serious sexual assault will not have that trauma added to by their experience in court or in the prosecution of the person responsible. The Bill improves substantially the protection to the victim of rape and other sexual crimes. The provisions in this Bill aimed at this protection are very substantial and radical. They are also very welcome as they remove serious defects which were contained in the 1981 Act, in particular section 9 which proposes that all rape and aggravated assault cases be heard in the Central Criminal Court, section 10 which excludes the public from such cases and section 12 which requires a prior application to the court in respect of evidence of previous sexual experience of the complainant with the accused. These all offer additional protection and will also make it somewhat easier for the victim to come forward to ensure that a rapist is convicted and punished. They will at least reduce the ordeal that has to be faced by the victim in a court case. The very fact that it will be easier for the victim to go to court should have the effect of acting as a deterrent and it is well established that the less chance a person has of being detected and prosecuted the higher the incidence of the particular crime. This Bill will redress the balance in favour of the victim.

The Bill before us will, I believe, lead to more successful prosecutions for rape and facilitate and encourage the victims of rape to come forward to ensure that the rapist is prosecuted. The statistics indicate that the percentage of rapes actually reported is considerably lower than the official figures we have would indicate. According to the official figures from Garda sources the number of proceedings instituted for rape in the years 1984, 1985, 1986 and 1987 were 34, 31, 34 and 34 respectively. If one contrasts these figures with the number of calls to the Dublin Rape Crisis Centre for the same years there is a vast difference. The respective figures are 408, 1,004, 1,372 and 1,236. A fair percentage of those calls would relate to non-rape incidents and other incidents in the distant past but there is still a huge discrepency in the incidence of rape and the number of cases brought to court. I have no doubt that a major cause of that discrepancy in the figures is the reluctance of victims to come forward bacause of the ordeal they would have to undergo during a court case under the provisions of the 1981 Act. A number of sections in this Bill will be helpful in addressing that problem.

Apart from those difficulties and the difficulties associated with the victim going to court, the discrepancies can also be explained by certain social or even family pressures put on victims not to pursue a case. In a number of cases I am aware of, family members or indeed members of the clergy have been instrumental in convincing victims not to pursue a rapist or someone guilty of abuse. I do not question their motives for doing this but I would certainly question the desirability of this type of interference. Anything which makes it easier for a victim to go to court, as I believe this Bill will, is to be welcomed. However, there is little point in making it easier for a victim to pursue a case if the chances of a conviction are not reasonable. In this context the present situation is hardly encouraging. The percentage of convictions for rape in the years 1984-87 are as follows: 27 per cent of cases prosecuted in 1984, 10 per cent in 1985, 9 per cent in 1986 and 14 per cent in 1987. These figures would hardly inspire a victim of rape to go before the courts to try to have a rapist prosecuted. I have no doubt that these low numbers of convictions cannot be attributed solely to our courts. One need only refer to a Supreme Court decision of May 1988 in which the attitude of the court was clearly outlined by Mr. Justice Finlay, and I quote:

The crime of rape must always be viewed as one of the most serious offences contained in our criminal law even when committed without violence beyond that constituting the act of rape itself. In Attorney General v. Conroy, this Court stated that the nature of the offence was such as to render unconstitutional any statutory provision which could permit it ever to be regarded as a minor offence.

The act of forcible rape not only causes bodily harm but is also inevitably followed by emotional, psychological and psychiatric damage to the victim which can often be of long term, and sometimes of lifelong duration.

In addition to those damaging consequences, rape can distort the victim's approach to her own sexuality. In many instances, rape can also impose upon the victim a deeply distressing fear of sexually transmitted disease and the possibility of a pregnancy and of a birth whose innocent issue could inspire a distress and even a loathing utterly alien to motherhood.

Rape is a gross attack upon the human dignity and the bodily integrity of a woman and a violation of her human and constitutional rights. As such it must attract very severe legal sanctions.

That quotation by Mr. Justice Finlay in May 1988 clearly outlines the view of the highest court in the land to the crime of rape. However, I am not so sure that attitude pervades down to the lower courts or indeed to the general public and the members of juries. Despite the gravity with which the most senior court in the land views this despicable crime and the efforts of the Garda, very few convictions have taken place in the courts.

I believe the problem in this regard is one of attitudes. There has been a lack of convictions and criminal proceedings and attitudes will have to change. If someone who hitches a lift in a car is subsequently robbed by the occupant of the car their word would never be doubted when they reported the crime. The crime, as reported, would be investigated and pursued. If a person whose house is burgled reports the crime and claims insurance their word is not doubted and they are not questioned as to whether previous burglaries had taken place on their house. If someone is mugged or attacked on a street and they report the crime, again their word is very seldom doubted. The report would be accepted and acted upon almost immediately. There may not be witnesses in any of the above cases but I venture to suggest that the reports on all of them would be accepted. The first reaction of people to all of these cases is one of sympathy for the victim and condemnation of the perpetrators of the crime and a desire to bring them to justice.

However, if a woman is raped in circumstances similar to any of the above the attitude of many people, particularly of men, is quite different. Their first reaction might be one of sympathy for the victim, at least ostensibly, but after the initial sympathetic remarks the next remarks may throw a shadow of doubt on the victim. If a woman took a lift in a car, they ask what she was doing taking a lift from a stranger and did she not know it was dangerous. Immediately some doubt is cast on her version of the story and many people believe she is partly to blame. If a woman is raped during a break-in on her house, the same doubts are cast on the woman's role — did she know the person who broke in, could she not have got help or why did she not keep the house secure? If a woman is mugged and raped on the way home from a dance, a pub or after shopping, again doubt is cast on her story. In at least one case reported in the press sometime ago the fact that a woman had run half naked and badly bruised to a house was apparently not taken as sufficient evidence by a jury that she had been raped.

There seems to be a common male attitude, which of course would not be admitted to, that if a woman is raped she was somehow looking for it. If a woman invites a man back to her flat or house for a drink and he subsequently rapes her it is hard to get a jury to convict him, even if the physical evidence of the abuse is very strong. At present if a judge gives a direction to the jury on the dangers of convicting a person on uncorroborated evidence it is hard to get a jury to convict him at that stage. It is welcome that this practice will be changed by this Bill.

I have referred to attitudes, particularly male attitudes, in what is still, whether or not people like it, a male-dominated society. I think the belief underlying these attitudes is that a man can lose control much easier than a woman and, therefore, the responsibility is placed fairly and squarely on the woman to act responsibly at all times. If she does not do this and wears a miniskirt, does not wear a bra, has a few drinks or flirts with men, then the belief is that she must have been looking for it and must take the consequences. Unfortunately that seems to be the view of many people on juries, particularly when we take the number of convictions for rape into account.

In rape cases the defence have always tried to bring out evidence about what a woman was wearing and her character to strengthen doubts in the minds of juries. Nobody can blame defence lawyers for doing this — an accused person is entitled to the best defence — but juries should not be unduly influenced by it and they will not be if their attitudes are balanced. A woman who invites a virtual stranger to her flat or house for an after dance drink may be very unwise, but she does not deserve to be violently attacked and raped. Similarly, the woman who accepts a lift in a strange car, again, may be very unwise but she does not deserve to be raped. The point I am making is a very basic one: unless attitudes change in society, no law, not even the excellent legislation before us, will help in ensuring that justice is done in cases involving rape.

The record of the Circuit Criminal Court, which was referred to earlier by Deputy McCartan, is not very encouraging. The natural tendency is to blame the judge and the recent decision in the case involving the soldier, which has been referred to, will not help in instilling a sense of confidence in the judiciary. In most cases it is the jury who decide if a person is guilty or not guilty. In the four year period I mentioned 82 cases came before the Circuit Criminal Court, provincial circuit, and convictions were obtained in ten of those. It is very significant that in some court districts no convictions were obtained in cases involving rape. Perhaps I am reading the statistics wrong, but they worry me.

While the Bill before us will go some way towards strengthening the victim's hand in gaining a conviction further steps are required. I support the view that an accused is deemed innocent until proven guilty. I also support the doctrine that the burden of proving an accused's guilt should rest on the party asserting that guilt. However, I would question the standard or degree of proof required in rape cases whereby a conviction may be obtained. The degree of proof required in rape cases, as in all criminal cases, is that the accused's guilt must be established beyond reasonable doubt. Again, I pose the question as to what is reasonable doubt. Let me quote a gentleman I would not like to be caught quoting too often, Lord Justice Denning who said:

If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence, of course it is possible but not in the least probable, the case is proved beyond reasonable doubt.

The question I would pose to this House is: if it is possible to gain such strong evidence in rape cases. The essence of rape is a lack of consent on the part of a famale victim to sexual intercourse. What evidence will the victim have to show that there was a lack of consent? Fortunately, under this Bill she will no longer have to display the cuts and bruises to show that there was a lack of consent, but what witnesses will she be able to call to show that there was a lack of consent at the time of penetration?

Rape, unlike practically any other crime, rarely takes place in the public eye, yet the prosecution must prove the accused's guilt beyond reasonable doubt. That degree of proof may be appropriate where it is more than likely that there has been some witness to the commission of an offence. Here, with the help of witnesses, one will be able to seek with reasonable confidence to convict and to show guilt beyond reasonable doubt. However, the question must be asked, in the light of the statistics I outlined earlier, if it is virtually impossible to obtain a rape conviction if the standard of proof is so high. For example, this Bill introduces the crime of marital rape. This is a move I support and approve of but one must ask how can this crime be proved. By its very nature it is ultra-private. How can one prove beyond reasonable doubt what occurred in the matrimonial bedroom or home? At the very least, the fact of marriage could be said to raise a reasonable doubt and render this new offence absolutely meaningless.

I propose that this Bill be amended to incorporate a provision whereby the degree of proof in a rape case or at the very least in cases involving marital rape should be on the balance of probabilities, that is, what is the most likely version of events and who is more likely to have given a truthful version of the facts to the courts. This standard of proof would be less rigorous than requiring a case to be proved and established beyond reasonable doubt. It would be particularly appropriate in cases involving marital rape where the absence of witnesses would probably cause the prosecution's case to fail using the present test of beyond reasonable doubt.

I am aware that this proposal will be viewed as a departure from one of the very fundamental tenets of Irish criminal law, that in criminal cases the prosecution must prove its case beyond reasonable doubt. However, my proposal to lessen the required degree of proof to that generally found in civil cases would provide a useful step in protecting our female citizens from rapists and sexual attacks. I fully appreciate that there might be a reluctance to depart from the established practice of proving a criminal case beyond reasonable doubt. However, the Bill before us incorporates a fundamental departure from established practice, and Deputy McCartan referred to this in that under section 6 there will no longer be a requirement that a judge must give a mandatory warning in his charge to the jury when dealing with uncorroborated evidence but he or she may do so at her discretion.

From time to time there are calls for the removal of this presumption of innocence and certain people may view my proposal as an erosion of the rights of the accused, but I believe very strongly in civil rights for all citizens, be they an accused, a victim or otherwise. Again, I endorse the fundamental principle that an accused's innocence be presumed until guilt or otherwise is proven. However, in the case of rape just as accused persons must be given a fair chance to uphold their innocence victims must also be given a fair chance to prove their case. The standard of proof required in rape cases, particularly in marital rape cases, denies the victim a fair hearing. A fair hearing will be provided by altering the standard of proof required to one of the balance of probabilities.

I also suggest to the Minister that he examine the composition of juries which I believe, rightly or wrongly, influences the rate of convictions. The figures since 1979 indicate that in only 12 cases out of a total of 87 cases for which I have records did the number of women on a jury exceed that of men. In the vast majority of cases the charges were dismissed. I ask the Minister to take a look at that aspect to see if it would be possible to introduce a requirement that at least half the jury must be women. I am aware that there are various rules which allow the defence and prosecution to exclude people, but I do not know if it can be made a requirement that there be a certain number of each sex on a jury.

Let me make two final points on the Bill itself and on the question of the extension of the definition of rape. This call for the extension of a definition of rape which was a majority recommendation in the Law Reform Commission report is dealt with adequately under the creation of a new offence. If we extend the definition of rape I fear that we will lessen the perception at least of the seriousness of that crime. The concept of rape at the moment is clearly defined. Perhaps an extension could lead to unsatisfactory verdicts and we would be back to square one. For that reason I believe rape as defined should remain as it is.

Rape is a crime of violence using sex as a weapon. It is not about passion at any stage, sexuality or anything like that. It is about power. It is about a rapist seeking complete control over his victim. Rape is not committed for sexual gratification; it is all about power, and should be treated accordingly. A considerable body of research in the US more than in Britain or here shows that practically all rapes are planned. They do not just happen. It is not always that the poor man is sexually provoked and cannot control himself; it is more sinister than that. It is a crime which must be treated very seriously. This Bill treats it seriously and will be a major improvement in our legislation.

Debate adjourned.