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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."

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,

Deputy Flanagan must be the second most popular man in this Chamber.

There appears to be a feeling on the Government side of the House that it is not their duty to maintain a quorum. We heard their attitude to the Order of Business but Standing Orders should be honoured to ensure that there are sufficient Members here.

Let us get back to the Bill before the House and the subject matter thereof.

No reference to this legislation can be made without dealing with the consistency of sentences. We can decide to pass this legislation but unless there is uniformity and guidelines laid down in regard to sentencing, matters will, unfortunately, be left to chance.

I will not elaborate on the case in Wicklow Circuit Court which has already been referred to but one can go far beyond that to show a record of gross inconsistency in relation to convictions for rape and indecent assault over the past number of years. In Wexford District Court in 1982, on conviction of a crime of rape of a 13 year old girl, a three months suspended sentence was handed down. In many recent cases of rape, terms of 14, 15 or 16 years were handed down. I am not saying that is wrong but certain guidelines should be laid down to ensure that justice is seen to be done on a uniform basis. If someone commits an offence in an area where a judge takes a more lenient view than a judge in another part of the country we are not doing much to inspire confidence in our judicial system.

Of course the question of sentencing has not just cropped up over the last few weeks in the light of recent decisions. The Rape Crisis Centre produced a submission dated 7 February 1984 and, as far back as 1983, made recommendations on sentencing procedures. At that time the Rape Crisis Centre stated that they have kept records of the outcome of court hearings on rape and sexual assault cases between 1977 and 1983. They were astounded by the inconsistencies of the sentences, ranging from the one I quoted, a three months suspended sentence imposed on a man who raped a 13 year old in Wexford — that sentence was handed down on 4 February 1982 — to a 15 years' penal servitude sentence imposed on a man convicted of rape at Dublin Circuit Court in 1979. Those sentences speak for themselves. I am not saying that every case is the same, each case must be judged on the circumstances, nevertheless there are gross inconsistencies in sentencing and we must look at how that matter can be redressed.

There have been calls to the Minister to address himself to this problem immediately but, before he does, the Presidents of the High Court and Circuit Court should call their colleagues on the Bench together to formulate guidelines for sentencing, not just in relation to rape and sexual assault, but right across the board in criminal matters. If that is not done immediately, there is a very positive role for the Minister for Justice in calling the parties together and ensuring, through the office of the Attorney General, that guidelines for sentencing are drawn up at the earliest opportunity.

Page 21 of the 1983 report states:

In fairness to both the victim and the accused, we recommend that sentencing guidelines be established to regularise the inconsistencies which currently exist. It is quite obvious that sentences reflect the level of seriousness afforded to the crime of rape by the particular presiding judge. The personal whims of judges can hardly be a sound basis for fair criminal hearings.

It is unfortunate that that report was not acted upon. If it had been acted on, we would probably not be talking about inconsistencies. As I said, the Presidents of the respective courts should endeavour, with their colleagues, having guidelines issued to ensure that the type of sentencing we have seen in the recent past will not continue. It is important that we should have a system of training, and retraining, for our judges so that the sentences they impose will reflect the attitude of society to the crime the defendant is convicted of. It is important to note that the vast majority of judges who hear rape cases are middle-aged men who at law school did not get any basic training in family law matters. They are, perhaps, in need of training as far as sentencing in such cases is concerned to reflect the odium for these crimes. I sympathise with those judges who are faced with this difficulty but they are divorced from society to such an extent that they are in need of retraining from time to time to remind them of the way society reacts to certain crimes. A course should be arranged for our judges every three to five years. If that was done I do not think we would have the criticism that we are hearing across the board about the inconsistency of sentences.

I am not recommending direct ministerial intervention in this regard. It is important that the Minister, and Members, keep as far away as possible from the Judiciary. The Judiciary should maintain their independence at all times but the time may come when the Minister will have to intervene in regard to sentencing. It should be pointed out that very high sentences have been meted out to people convicted of rape in the Circuit Court. It has not all been one-way traffic. The move from the Circuit Criminal Court to the Central Criminal Court may not, as many people expect, mean that the crime of rape will be dealt with more severely by a High Court judge. One gets the impression from what some people have stated that there is a lack of understanding or a flaw in the Circuit Court but I do not accept that. In looking at the Wicklow case one should also consider that two of the longest sentences for rape were handed down by the Circuit Court, a 20-year sentence by the President of the Circuit Court and a 21-year sentence by the late Mr. Justice Neylon who died recently. The latter sentence was reduced to 17 years on appeal by the Supreme Court. Those who state that the transfer of cases from the Circuit Court to the Central Criminal Court will mean that those convicted will receive longer sentences are not giving a true picture of what is taking place.

Deputy McCartan suggested that the sentence similar to that handed down in the Wicklow case would not be imposed if such a case was heard in the Central Criminal Court but I must remind him that five or six years ago there was an outcry about the Fairview case. Has he forgotten that that case was heard by the Central Criminal Court? I do not think that the transferring of these cases to the Central Criminal Court will mean that we will not have an inconsistency in regard to sentencing. It is important that guidelines on sentencing are given to our judges.

The right of appeal by the Director of Public Prosecutions is important and I hope the Minister will give that serious consideration between now and Committee Stage. It is important that the concern of the State is manifested in an avenue of appeal. Under the British system — I am not saying it is flawless — one can appeal from a lower court to a higher court in a criminal matter in regard to sentencing but there is no avenue of appeal from an acquittal. The Director of Public Prosecution should have an avenue of appeal in regard to the severity or leniency of a sentence. The Minister should give this serious consideration.

We must take a serious look at the rehabilitation programmes, if any, that are available to those convicted of rape. There is not much point in locking a person up for 14 or 15 years if they do not receive some form of professional counselling while in prison. We have failed to provide that help for prisoners. I urge the Minister to address that problem which I consider to be as important as the level of sentencing. We must ensure that when people who have been convicted of rape return to society they will have learned the folly of their ways.

I welcome section 10 which provides that rape cases be heard in camera. The holding of a rape case in public can be a degrading and horrifying experience for the victim. It is worth considering the way the media report such cases. Without being too critical of the media I must say that the reporting of such cases is less than sensitive. The media, while doing a duty to society by highlighting sexual assault and rape cases should be more sensitive to the feelings of the victims. There should not be any glamourising in the reporting of rape cases.

Most Members are in favour of removing rape cases entirely from the ambit of the District Court. At present, with the consent of the Director of Public Prosecutions a defendant can on a plea of guilty have his case dealt with by the District Court. I am glad the Bill redresses that. In view of the sentences that can be imposed by a district justice there is no doubt that the penalty can never fit the crime. The fact that a person pleads guilty to such a charge should not mean that he will get a favourable sentence.

The argument about which court should deal with these cases should be considered on Committee Stage. The Central Criminal Court is not beyond criticism as far as its sentencing policy is concerned. I have no doubt that if the Minister proceeds with the Bill as presented there will be a need to appoint additional High Court judges because it is important that there should not be any delay in the hearing of such cases. Members have referred to delays that have occurred in the Circuit Court in the hearing of rape cases. I do not believe that delay exists. When one looks at Circuit Courts throughout the country over the past 18 months or so one finds there has been a delay of no more than six months in many cases of rape. I do not believe there is room for criticism of the Circuit Court in regard to delays.

I am not sure we can give a universal welcome to the transfer of all cases to Dublin, even if the Minister appoints sufficient High Court judges to deal with the problem. There would be great inconvenience for gardaí, for victims and those supporting them and for witnesses coming from the country who could incur considerable expense while staying in the city for the duration of the case. With the sentencing guidelines I have mentioned and with priority case listing, perhaps there is an argument in favour of leaving Circuit Court jurisdiction in regard to these cases. We can discuss this matter in more detail on Committee Stage. Certainly the taking of cases out of the jurisdiction of the Circuit Court should not be seen as a reflection on that court. Most Circuit Court judges work long and hard and night sittings take place on most circuits. This section of the Bill should not be seen as being in any way critical of the workload of the Circuit Court judge. I would welcome an assurance from the Minister that more High Court judges will be appointed. More women judges should also be appointed, given the imbalance in the Judiciary.

There is no reference in the Bill to the question of temporary release orders, a matter which has from time to time given rise to complaint and criticism. I hope it is a matter with which we can deal in this legislation. Perhaps crimes of rape or of aggravated sexual assault should not come under the temporary release order scheme. This was part of a submission to the Select Committee on Crime, Lawlessness and Vandalism. The Rape Crisis Centre recommended in 1984 that the Department of Justice be ordered to explain the breaking of their own assurance that in future no temporary release orders would be given for those prisoners serving sentences for armed robbery, rape and serious sexual offences. These people should never be considered for temporary release. I do not have the figures for the late eighties. I am awaiting them from the Department of Justice but I would be very critical if it were the case that temporary release orders were still being granted for people convicted of these more serious crimes. I would have no hesitation in placing rape on top of the list.

We as legislators have to set our sights on removing from society the many forms of violence against women. If we are to do that, we could not do better than take the advice contained in the fourth report of the Oireachtas Joint Committee on Women's Rights dealing with sexual violence. That report contains three recommendations which can be a lesson to us in our role as legislators. The first recommendation is to ensure a greater measure of protection and support for the victims of rape and serious sexual crimes. The second recommendation is to establish a strong deterrent to potential rapists and other sexual offenders and the third is to help in establishing a better environment in which men and women will feel safer in business, in social life and in the home itself.

I recognise that this Bill goes some way along that road. It needs amending, tightening up and fleshing out and I hope we will proceed to do that on Committee Stage so that this legislation will not be criticised from day one, as unfortunately our previous attempt to reform the law in this regard was criticised in 1981.

As every other speaker in this debate has done, I welcome this Bill and compliment the Minister on his initiative in introducing it. This is the third, if not the fourth, time in the life of the present Dáil that I have had occasion to compliment the Minister, Deputy Burke, on the introduction of necessary reforming legislation. That is an eloquent testimony to the performance of his duties as Minister for Justice since he was appointed to this onerous Department last year. I would also mention the contribution of my fellow county man, Deputy Gerry Collins, now Minister for Foreign Affairs, who laid the groundwork for much of this legislation. He is also to be complimented.

This is the second time in this decade that we have addressed this subject. Many speakers have said the reason is that social attitudes within society have changed, as has society itself, during the past decade. Deputy Flanagan's theory is that we got it wrong in 1981. Whether we decide with the benefit of hindsight that this was so or whether it is because of changing attitudes in society that we are again discussing this subject does not concern me. The critical thing is to ensure that we get it right now. If anybody has any delusions about this being an easy task, that it is a simple thing to deal with this sensitive and delicate area, he or she has only to look at the report of the Law Reform Commission. The commission in their report divided down the middle, in so far as it is possible for a five-person commission to do so. On the central issue the commission divided three to two.

A majority.

That was on the question of whether the definition of rape should be extended. One of the two who dissented was none other than the chairman of the commission, for whom I have tremendous respect. That is in no way to denigrate or downgrade the other dissenting member of the Law Reform Commission, Mr. Simon O'Leary, barrister-at-law.

The central question is whether the definition of rape should be extended. There are compelling and persuasive arguments either way. The Law Reform Commission adverted to the arguments in favour of an extended definition of rape. I will summarise those three arguments. The first argument is that the present offence of rape is no more distinctive than other similarly serious forms of sexual offence. The counter argument has been used that it is a distinctive offence in the sense that it is the only form of sexual assault that can give rise to pregnancy. A supporting argument is that the concept of rape has existed for centuries and people have a concept of rape which has developed over those centuries.

The second argument used by the majority of the Law Reform Commission who advocated the extension of the definition was that the present definition reflects an unwanted paternalism towards women. In support of their argument to that effect the Law Reform Commission referred to the 1987 report of the Law Reform Commission of Victoria who stated that the modern emphasis is not on the protection of virginity, the risk of pregnancy or disease or the defilement of another man's wife or daughter, but rather on providing the appropriate level of protection for the sexual autonomy of men and women.

The third argument used by the majority of the Law Reform Commission is that in Ireland today the usage of the term "rape" has a broader meaning than the legal definition of rape contained in the 1981 legislation. These arguments by and large have been supported and elaborated on by other Members of this House. Because one or two further arguments have been advanced during the course of the Second Stage debate I would like to refer briefly to what a number of other speakers have said. For the record I am paraphrasing what was said as I do not want to go back over the Second Stage debate again. As reported at column 224 of the Official Report, volume 394, Deputy Jim O'Keeffe, the Fine Gael spokesman on Justice, said:

On reading the Bill, and in particular the definition of aggravated sexual assault, my own reaction was that in many ways the offence of aggravated sexual assault is even more horrific than rape...

It has been very strongly suggested that women who have been traumatised in this manner feel and react as if they have been raped. It was also suggested that it would be of some solace to women who have been treated in such an appalling fashion if the offence with which the perpetrator was charged was called rape. I am strongly influenced by that case. I wish to make the proposal that the Minister should have a rethink to see if an extension in the definition, to include such conduct, would bring some comfort and solace to women who have been degraded in such an appalling fashion. There is a strong case for going along that road.

In similar vein we have the contribution of Deputy Kavanagh, the Labour spokesman on Justice, column 235 of the same volume of the Official Report. He said:

The Minister should have taken the opportunity to redefine that section——

That is section 2 of the 1981 legislation—

——of the old Bill rather than have introduced the new sections dealing with sexual assault and aggravated sexual assault. Indeed, the definitions are already in the new Bill under the heading of aggravated sexual assault. I believe they should have been included as a new definition of rape in section 3....since that would make it absolutely clear why we all want to see this addition to the definition and would make it clear to people if they commit rape what is included in the definition.

Deputy McCartan of The Workers' Party expanded on that and brought in a few new arguments in support of his contention that the definition should be broadened. As we read at column 245 of the same volume of the Official Report, Deputy McCartan said:

We recognise that there are technical difficulties in broadening the definition of rape but we feel it is a better option than the approach taken in the Bill. It is crucial to public understanding of the nature of the crime of rape to emphasise that rape is a crime of violence and not sexual passion. The Bill should reflect that. There is a grave danger in creating the categories set out in the Bill that we will perpetuate the notion of myth, call it what you will, that there is something different and apart in the crime of rape from other serious sexual assaults. There is not.

Deputy McCartan went on to say, column 246:

it seems that the offence of aggravated sexual assault will be viewed as less serious than rape, and for that reason we are not happy with the approach taken in the Bill.

Deputy McCartan further stated:

Criminal law must have a wider, more positive and active role to play than merely the primary objective as set out by the two people who comprised the minority dissent. There must be more to our legislation than merely the apprehension, conviction and punishment of the guilty. As legislators, we should use our legislation to attempt to lay down social parameters and directives from this House. It is important in this context, particularly as we are addressing a definition of rape for the second time in this decade, that we get it right on this occasion.

Nobody can disagree with the last sentence I have quoted from Deputy McCartan's contribution. Nevertheless, the powerful minority of the Law Reform Commission, which included the chairman of the commission, argued that the paramount importance of any criminal provision is the apprehension, prosecution and conviction of the perpetrators of the crime with which the legislation is designed to deal. The paramount objective of criminal law relating to sexual assault is the apprehension, prosecution and conviction of people who engage in sexual assault. Of course, Deputy McCartan is absolutely right — and I, too, have used this argument on occasion — that the criminal law should be used to make statements, it should be used to send signals. We did it in the Larceny Bill where we created a greater maximum sentence for receiving than for ordinary larceny; the intention being to send out a signal from this House that the Government regarded the crime of receiving as more heinous than the crime of simple larceny. While everybody would agree that it is right, that it is the done thing and has been the done thing for centuries, that the criminal law should send out signals and make statements, nobody could argue — and I do not think anybody has sought to argue — Deputy McCartan certainly did not seek to do so — that that should be the paramount objective of the criminal law. Certainly it is an important objective but it cannot be put on the same plain as the main objective of the criminal law which the minority report of the Law Reform Commission rightly stated to be the apprehension, prosecution and conviction of criminals.

What about the majority of women?

I will deal with the majority of women. When the Deputy is making her contribution I will treat her with more courtesy than she is affording me. If that is the paramount importance of criminal legislation, it seems to me that in view of the serious division of opinion among legislators, in view of the serious difference of opinion among academic writers on this subject, in view of the serious divergencies of opinion among the criminal Bar and in view of the serious divergencies of opinion among many other people who have more than a passing interest in this area——

Not women.

——I would say there is a heavy onus on the people who suggest this fundamental change to extend the definition of rape to establish a case for that.

That is further paternalism, Deputy O'Dea.

I do not think they have succeeded in discharging that onus. As I have said, it is important to make statements — I will come back to that later in my contribution — but there is genuine division of opinion on this point. If one were to accept — and I think everybody in this House, including Deputy Barnes, would accept — that the primary purpose of any criminal provision is the apprehension, prosecution and conviction of criminals, the onus is placed firmly on the people who are advocating this radical change to state and to make a compelling case as to why this change should occur. In my opinion the onus is not discharged.

In the United Kingdom the definition of rape has not been extended despite intensive research and representations. The Law Reform Commission referred to the report of the Heilbron Committee who stated:

the concept of rape as a distinct form of criminal misconduct is well established in popular thought and corresponds to a distinctive form of wrong-doing.

The matter was again considered at length by the Criminal Law Revision Committee in the United Kingdom who again recommended against an extension of the definition. That commission stated in their report:

we consider it likely to be harmful to the administration of justice if the definition of a serious offence becomes out of step with the understanding of a large section of the public. We appreciate that other forms of penetration are serious, degrading and can lead to pain and injury, but we take the view that they are distinct from rape.

That is a male view.

Let it be said that the majority of the Law Reform Commission took the view that the apprehension, prosecution and conviction etc. of criminals is the primary purpose of this enactment and went along with the suggestion that the offence of indecent assault should be recategorised as aggravated sexual assault. It would appear to me that there is a certain contradiction here. It has been some time since I read the Law Reform Commission report. No doubt Deputy Barnes will correct me if I am wrong but my recollection is that the Law Reform Commission accepted that suggestion. However, I would make the point, and I am prepared to argue it with anyone who wishes to argue it with me, that the arguments in relation to the extension of the definition and recategorisation of the offence of indecent assault are separate and distinct arguments. Nobody could deny that in regard to some of those activities that will be categorised as aggravated sexual assault, if and when this Bill becomes law, the term indecent assault would be woefully inadequate to describe them.

Something that is allied to that, and which just strikes me in passing, is that one of the reasons this offence of indecent assault does not seem to have attracted the sort of odium and loathing that some manifestations of the offence should have attracted is that it includes all sorts of sexual offences, from the most grievous short of rape or similar to rape to some relatively minor sexual assaults. Another reason is that it has in some way become confused in the public mind with the other much lesser offence of indecent exposure. I am not suggesting for one moment that the offence of indecent exposure is not a reprehensible offence; it is quite a serious offence. In Ireland, however, we have to take reality as we find it and that offence of indecent exposure is looked on by large numbers of people as something of a joke. It is, therefore, imperative that we recategorise the offence of indecent assault.

The term "aggravated sexual assault" which the Minister has chosen to use certainly sounds more serious than indecent assault. That is the intention of the Government and it is along the lines recommended by the Law Reform Commission. Looking at it as objectively as possible from the point of view of the ordinary citizen listening to this debate, aggravated sexual assault certainly sounds more serious than indecent assault. When the facts of a few trials relating to aggravated sexual assault become known to the public, that type of crime will attract something akin to the loathing, contempt and odium that at present attaches to the offence of rape. The offence of rape has been around for centuries so naturally it will take some time for this to happen but it will happen when the facts become known to the public.

Hopefully we will have it changed before that, on Committee Stage.

The Deputy will have the opportunity to make her contribution.

I am sorry, a Leas-Cheann Comhairle——

The Deputy's liberalism is running away with her.

I suggest to Deputy O'Dea that perhaps he should not invite the assistance or interruption of Deputy Barnes.

I have been seriously provoked but I will accept the Chair's recommendation.

(Interruptions.)

I am making the point——

We are all looking forward to Deputy Barnes' contribution.

If Deputy O'Dea will be in the House for my response, that is all I ask.

Whether he is here or not, I am sure he will arrange to listen to Deputy Barnes.

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

Again, I refute the argument we have heard from Deputy Barnes in her disorderly interventions in this debate.

Representing women, Deputy O'Dea.

Are you being racist and saying we are not?

Time will tell. There will be other people to judge that, Deputy Barnes.

From Deputy O'Dea's contributions, he is certainly not representing women.

While we hope many trials involving the offence of aggravated sexual assault will not take place, inevitably some will and when the details of those trials are published that offence will attract the sort of odium, loathing and contempt which at present attaches to the offence of legal rape. Deputy Barnes is a bit premature, if I may use that expression, in her objections to this definition. The legal definition of rape used in the Bill is along the lines suggested by the minority report of the Law Reform Commission. It is a repetition of the definition used in 1981. The minority of the Law Reform Commission which included the President of the commission, Mr. Justice Keane, took the view — for the reasons I have stated I believe they rightly took the view — that the definition of legal rape should not be extended.

Everybody who deals with the victims of rape have asked for this definition to be changed. Let us get the legislation right after ten years.

Obviously Deputy Barnes——

The Deputy should listen to the victims.

——has not read the report of the Law Reform Commission which made it quite clear that that is exactly what did not happen. I recommend that between now and the resumption of the debate Deputy Barnes should read the report of the Law Reform Commission and study it so that she can come in here——

Of course she has read it.

Perhaps the Deputy would like——

On a point of information, I chaired the Oirechtas Joint Committee on Women's Rights from which most of the recommendations of the Law Reform Commission emerged. If the Deputy had read the reports of the committee he would have noted that.

I have read the reports of the committee and Deputy Barnes should read the Law Reform Commission report because what she is saying is contradictory.

Not alone has she read the report but she has debated it.

Debate adjourned.
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