I thought, Sir, that perhaps you were going to read a message from the Government Chief Whip to the effect that Standing Orders have been suspended to allow a debate on health. Unfortunately, we will have to wait for another day.
I will refer briefly to some of the points made by Deputy Dempsey. I do not doubt his sincerity when he stated that this is perhaps the most urgent and important legislation before the House. I welcome his comments and hope he now will exercise sufficient clout with the Government Whip's office and with his own parliamentary party to ensure the speedy passage of the Bill and that it will be placed a little higher on the agenda of the House and on the Order Paper than heretofore. I am sure he has noticed that the title of the Bill is the Criminal Law (Rape) (Amendment) Bill, 1988, yet since 1987 he has been supportive of a Government who have allowed this matter to gather dust. Accepting his sincerity, I hope we can get speedily through Second Stage of this Bill and then deal with the appropriate amendments on Committee Stage to ensure that the Bill is passed prior to the summer of 1990. I look forward to keeping a close eye on Deputy Dempsey's contribution in that regard.
It was said in this debate that this is the second occasion on which we are dealing with such legislation since the early eighties, that in ten years — and this I believe is unprecedented — we have a second Bill dealing with the same subject. It has been pointed out that this is a reflection of changing attitudes. I am not so sure. Rather than a reflection of the changing attitudes, could it not be that we got it wrong in 1981 and that is why we are again dealing with this subject in 1988, 1989 and 1990? Rather than pointing to a massive change in Irish society, a massive shift in regard to concern about rapists, victims of sexual assault and criminal law generally, could we not say we may have got it wrong in 1981, that while the 1981 Bill went some way towards addressing the problem, it did not go far enough, and that we are back with the 1988 Bill in an endeavour to come to grips with the omissions or the positive faults in that legislation? I hope that at some time in the future we will not say we got it wrong in 1990 and we should introduce another Bill.
If we are to get it right in 1990 it is important that we pay sufficient attention to the various reports and articles that have been written on the subject and the submissions made by many bodies over the past few years. Having considered the Law Reform Commission's final report — I take it the Government have done so — it is a pity so many of their recommendations have not been taken on board. I hope that as soon as we pass this legislation we, as legislators, will not be lobbied by interest groups from every sector of the community asking why we did not pay more attention to the Law Reform Commission report and that we will be back here in five or six years with further amending legislation. I think we will have a very interesting Committee Stage debate where many amendments can be thrashed out.
For almost all victims, rape is the most traumatic experience of their lives. In addition to the violence used against the women, the stigma of having been sexually assaulted leads to long-term feelings of guilt and degradation, fear and humiliation — fear of a similar attack and fear of becoming integrated into the community to live what we can best describe as a normal life. Undoubtedly rape victims are traumatised in the extreme by the experience. Statistics show that many are forced to leave their jobs and homes. Many families break up as a result of there being a victim of rape in the household. Not surprisingly, many find it impossible to form natural and steady relationships with men thereafter.
There are a number of cases in this regard which need no highlighting by me, but it is important when dealing with legislation such as this to remember that we are dealing with a crime that is in many ways unique within society. It is important then that society's attitude towards the victim is changed, that society becomes far more compassionate and helpful to the victim of a sexual assault. For too long we have ignored the plight of the victim, often too easily wrongly blaming the women for being the architect of her own downfall. More often than not victims are left alone to suffer long lasting feelings of guilt, sorrow and extreme remorse. That is tragic. No matter what legislation we enact, we are not going to deal with the problem of the plight of the victim unless we change our attitude.
We must look to the attitudes of the Garda Síochána and the Judiciary towards rape victims or anybody involved in the crime of rape. There is a feeling on the part of the powers that be that they should not interfere, that it is not the duty of the Garda Síochána, or in many ways of the Judiciary, to be seen to interfere in a personal relationship. That inhibition must be hit on the head and cast aside. Judges must be seen to take a more lenient view of the victim. Unfortunately, in many cases on conviction there is a plea on behalf of the offender, the assailant, that it was a once off offence, out of character, and a pledge will be given that such an offence will not take place again.
I accept but will not repeat the alarming statistics given here this evening by Deputy Dempsey. In fact, he said out of 87 cases brought before one court circuit there were no convictions. In the case of a conviction, pleas of mitigating factors such as, it was a once-off incident", or "there was provocation" are made. One can see with little difficulty that there are gross inefficiencies in the present law.
In dealing with the question of mitigating factors, I must refer to our attitude to drink. In rape, sexual assault and criminal cases drink is put forward as a mitigating factor. The defendants plead to his lordship that "unfortunately we sexually assaulted this poor girl but we were very drunk on the occasion and did not know what we were doing". A common occurrence throughout our court system is that the judge is prevailed upon to take a more lenient view of the fact that somebody had taken so much drink that they were not capable of making a decision and did not even know what they were doing. In other European countries and in countries throughout the world the fact that somebody had been drinking would command a heavier sentence from a sitting judge than we would impose in this State. During a court trial of an alleged rape case it is reprehensible that drink can be put forward as a mitigating excuse as to why the assault might have taken place. I believe that until such time as the full weight of our legal system is brought to bear on the mitigating excuse of drink, persons and to a lesser extent property, will not be adequately protected.
Research in the area of rape shows that rape is not a sexually motivated crime but is borne out of anger and frustration, jealousy and hatred and is a sign of psychological disfunction, either temporary or chronic anxiety, on the part of a person to inflict a level of violence on another person. It is important that we do not treat rape as a sexual crime but as a violent crime and if we do that, we should have no difficulty in meting out the proper sentence and retribution to a person convicted of such an odious offence.
I believe, and it has been referred to earlier but it bears repetition, that the prevailing attitudes will have to change. It is important that we remember that men in our society are still categorised in a way which allows many to consider violence to be an acceptable reaction when things go wrong. It is often considered manly to give somebody a clout in the ear. It is considered manly to exercise physical force to prove a point, and an argument to prove a point in a public house often escalates quite easily into violence.
There is an acceptance on behalf of the male sex that it is good to engage in physical violence and to be at the ready if one is called upon to prove one's manhood in the form of physical violence. I believe that in far too many homes fathers are setting a bad example for their sons by engaging in physical violence from time to time as a sign of their manliness. Is it any wonder that young people can grow up in an atmosphere where physical violence is the order of the day if we do not prevail on fathers to take a less active role in meting out physical violence? I believe parents and teachers have a tremendous role to play in this regard. As I said earlier, we can have all the legislation in the world but we cannot force a change of attitude on people. It is very important that we have a hard long look at the relationship between the sexes. Ireland more than any other country has refused to accept the changes in western society, as the previous speaker has said, that have been foisted on us over the past ten years.
Unfortunately, we still have segregated education. Prevailing now as it was 50 years ago is the incredible taboo on the part of the Church as far as matters pertaining to sexuality are concerned. There has been no thawing of the attitudes there. However, I believe it is very important if we are to put the sexes on an even footing and if we are to have a healthy relationship between the sexes that the Church would change its attitude in this regard. We still have the traditional separation between the sexes at most social events which taken with segregated education and the attitude of the Church has led to a deep lack of understanding between the sexes from a very early age. I think that is perhaps a reason that signs in a relationship may be interpreted wrongly from the female to the male and gives rise to a position of supremacy being exercised by the male that ends up in the tragedy of a sexual assault or rape. It is of fundamental importance to change our attitudes and it is something that our schools, parents and Church leaders will have to pay particular attention to.
I will now deal with the specifics of the Bill. One of the fundamental changes envisaged by the legislation is the making of rape within marriage an offence. I was not in the House in 1980-81 when the present Act was being debated and I am not sure if any Member present here tonight was, but I would like to know why this was not incorporated in that legislation? It seems absolutely amazing and shocking that we should pass reforming legislation in the eighties that did not incorporate a provision that allows for a husband to be brought before the courts on a charge of raping his spouse. Certainly one can only point to a ludicrous anomaly which exists at present, that a co-habitating couple would appear to have far more protection from the law in this instance than would a husband and wife. Yet, we are a country in favour of the family and we give the family an important role in our Constitution. Nevertheless, we have this glaring anomaly and it is certainly time we did something about it.
Expert groups have shown that the vast majority of rapes occur within marriage and if one looks at the reports of groups such as Family Aid and the Rape Crisis Centre who have been doing trojan work within society one can see that there is a very high incidence of complaints by wives of alleged rape by their husbands. I cannot for the life of me understand why for so long we have given this proprietorial role to the husband that on marriage he became master over his wife and could exact sexual favours from her at each and every opportunity and should he force himself upon her she was left with little redress under the law. That is a disgrace and I regard that section as being of crucial importance.
Similarly, as regards the capacity of a person under the age of 14 to commit a rape or sexual assault, the media as well as the interest groups to which I have referred earlier have highlighted over the past number of years instances where such offences were committed by boys under that age. One only has to point to the statistics that show that boys under the age of 14 have become fathers. Surely if that could happen in society, it is irrefutable evidence of the fact that somebody under the age of 14 could be in a position to commit a rape. The fact that these people had immunity under the law amounted to something of an injustice.
The fourth report of the Oireachtas Joint Committee on Women's Rights referred to this point, reference which, I am sure, the chairperson will address when she is making her contribution. I would like to put on the annals of this House the tremendous work that the Committee on Women's Rights have done in highlighting rape and other related women's issues and bringing them to the Floor of this House with a level of urgency that perhaps would not exist had such a committee not been in operation. It is perhaps testimony to the work of this committee that we are dealing with such reformist legislation this evening.
There is a number of points of controversy in the Bill, points that have drawn conflicting comment from many of the interested parties. Some sections will undoubtedly draw very interesting debate on Committee Stage. The first confrontational aspect of the legislation is the whole question of separate legal representation. This is a matter that has been considered by a number of groups, not least the Law Reform Commission. It was with some justification that bodies such as the Rape Crisis Centre and the Oireachtas Joint Committee on Women's Rights proposed that an element of separate legal representation be afforded to the victim of a rape or a sexual assault. This is not surprising having regard to the atmosphere within the court area and to the lack of professional help available to the victim. It is not surprising that, in order to ensure that the alleged aggressor is punished, there were calls for separate representation for the victim in a court of law. There was also the feeling that the State prosecution team probably do not afford the victim the amount of help to which she is entitled.
It was following considerable debate and weighing up of the pros and cons of the matter that the Law Reform Commission recommended that there be no change in the present position. Having had a look at both sides of the argument I am in agreement with their position. It would probably give rise to constitutional difficulties if certain changes were made, given the set up of our court structures. Perhaps there is another way around the problem. I will briefly quote from the Law Reform Commission report. They dealt with the shortcomings of the present system and stated that it was urged that the complainant should be separately represented throughout the proceedings by a barrister or solicitor of his or her choice who would be entitled to intervene in the proceedings to protect his or her interests whenever he considered it appropriate to do so. They said also, and rightly so:
In some cases, far from assisting in the conviction of guilty rapists, it might so complicate the hearing and alienate the jury as to result in unjustified acquittals...we are satisfied that the complaints to which we have referred can and should be adequately redressed within the confines of the present system. Accordingly, we do not recommend that there should be any provision for separate legal representation of the complainant.
What the Law Reform Commission are saying, prior to saying that there should not be separate representation, is that they believe that the complaints should be adequately redressed within the confines of the present system and that is very important. We must look at the present system and build on that in the hope that there should not be a need for separate and individual representation. If we had paid sufficient reference to working the system as it exists, perhaps these various groups would not be calling for separate and individual representation. The nub of the argument has to be the amount of help we afford to the victim. Since the Bill does not allow for representation, we must work the system from within.
Section 10 of the Bill is to be recommended in so far as the holding of cases in camera is concerned. There is a lot more that we can do in order to minimise the trauma but that will be a very difficult undertaking. There will have to be a familiarisation course which would bring the victim into the court system, show the victim around and organise meetings between the victim and the prosecuting counsel, Chief State Solicitor's office or whoever is representing the Director of Public Prosecutions. There should be a communication team from the very first day who would keep the victim fully informed and try to do something to minimise the trauma she will undoubtedly suffer.
This course of help to the victim can take two forms. First, it would deal with the immediate aftermath of the crime when the victim has to tell somebody about her tragic ordeal. In many cases the victim will not do that because of the lack of structures that are available to her; instead she will keep it to herself. The second form of victim support would take place prior to the court proceedings. In this day and age, given the level of general medical service practitioners we have in the country and the statistical breakdown of male and female, there is no reason, in every capital town in every county, that there is not for each Garda station a panel of women doctors, one of whom would be on call at all times so as to come to the aid of the victim of an alleged sexual assault.
In many of our general hospitals there should be a sexual assault centre. This is something that would not be a huge charge on each health board. A room should be made available, as should professional back-up and advice, to a victim in the immediate aftermath of the crime. There should be a victims examination room in the Garda station with medical and washroom facilities and there should be at least one trained person in each Garda station to deal with counselling a person in the immediate aftermath of the crime. In time there could be pre-court counselling where copies of statements could be made available to the victim along with professional counselling services. Progress reports on the case should be furnished to the victim from time to time. The victim should know whether there has been an application for an adjournment or whether there has been an application for bail and should know whether these applications were being granted. At the moment the victim knows nothing about the case other than that someone has been charged and that she will be told when the case will be heard. The victim should not be regarded as just a witness but must be given pride of place in the case. The prosecuting counsel and solicitors are the only people on the victim's side in securing a conviction.
Undoubtedly many victims are afraid of the male-dominated legal system and that could give rise to a woman's silence which could result in a rapist going free to strike again. It is vital to have these post-crime and pre-trial procedures and I will seek an undertaking from the Minister to have those procedures set up. If they are set up the call for separate representation will be rendered superfluous. I hope the Minister will make some reference to the way in which he will encourage the State to help the victim of rape from the time the offence is committed and the trial.
Another area which has given rise to much publicity relates to the definition of rape. In the early eighties the Dáil decided not to broaden the definition of rape but we now have another opportunity to do so. The Minister should look more seriously at this option than did his predecessor in the Seanad last year. The reasons for the Minister's non-acceptance of the broadening of the definition do not hold water and before Committee Stage the Minister must come up with a more reasoned argument than that put forward to date. According to the Irish Independent of Thursday, 22 February 1989 the then Minister for Justice, Deputy Collins, stated in relation to broadening the definition of rape that the effect of bringing a number of offences within the definition of rape might well be to change the public perception of it, that the public would no longer know when a rape as defined at present had been committed and that, as a result, the stigma and the odium which the public attach to rape could be reduced thus bringing about the opposite result to that desired. I have heard the Minister and other members of his party argue that point in the Seanad. I do not accept it. Rather than reducing the public perception of the crime we have to enhance the public perception of the horrific crime the Minister for Justice has described insufficiently as aggravated sexual assault.
An argument has been put forward that rape is unique simply because a pregnancy can result and that such actions must be distinguished from other horrific assaults of a sexual nature. That argument does not hold water either. If rape is defined as something that can result in a pregnancy it would mean that a woman over the age of 65 years could never be raped. I would like to hear the Minister's comments on that when replying to Second Stage. The sense of invasion is equally as shocking when one considers some of the fairly horrific sexual assaults which the Minister has chosen to ignore in his definition. Experts agree that non-penile rape is as degrading as orthodox rape, if I can call it that. The Law Reform Commission discussed this matter in great detail and in their report came out in favour of broadening the definition of rape. I hope the Minister will consider broadening the definition so that we can have legislation on rape that will not be criticised as the previous legislation has been since its enactment in 1981.
It is unfortunate that the Minister has chosen to ignore another valuable and important recommendation of the Law Reform Commission relating to compensation for the victims of rape and allied offences. The Law Reform Commission report at page 22, paragraph 55 says:
We had provisionally recommended that there should be express statutory provision enabling a judge to order the accused on conviction of rape and allied offences to pay compensation to the victim in addition to the provision for penalties. There has been little dissent from, and a wide welcome for, this proposal and we accordingly adhere to the recommendation.
It is unfortunate that the Minister has not taken that recommendation on board. The payment of compensation cannot in any way compensate the victim of rape for the invasion of privacy that has taken place and for the degradation and trauma that goes with it, but at least it would be an extra avenue available to the judge. I hope the Minister will address that issue and, if not, I hope my party will seriously consider putting down an amendment in that regard.
Having referred to the court atmosphere and to the fact that we are dealing with a legal system that is male dominated, one must look at the composition of juries in rape cases. We should have at least a 50-50 representation in crimes of a sexual nature having regard to the fact that the majority of High Court judges, all Circuit Court judges, and the vast majority of district justices are male. We need a balance to minimise the sense of alienation of the rape victim who goes to court.
Notice taken that 20 Members were not present; House counted and 20 Members being present,