When we adjourned on the last day, I had dealt with the Minister's general approach to the definition of rape and aggravated sexual assault. I have had the opportunity to consider the matter further in the interim and I hold firmly to my original view.
I fundamentally agreed with the Government's approach to this problem but there is one aspect of the definition of aggravated sexual assault to which I wish to draw the Minister's attention. The Law Reform Commission in their report defined aggravated sexual assault in a general manner in section 3 (1) as follows:
aggravated sexual assault means a sexual assault that involves 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 Law Reform Commission suggested a definition which was markedly different from the statutory definition. Their suggested definition included the subject matter of section 3 (1) to which I have just referred but it also included a case where a sexual assault is "committed while the accused has with him a weapon of offence or by a person in a relationship of authority over the victim".
That extension of the definition of aggravated sexual assault is not included in the statutory definition in section 3. I read the Minister's speech on Second Stage and I do not see any reason for its omission. I would imagine that the wording used by the Law Reform Commission in this context is not of itself sufficient to achieve the objective which they obviously want to achieve. For instance, there is a marked difference between a person who commits a sexual assault while in possession of a concealed weapon which the victim does not know he has and a person who commits a sexual assault by intimidating the victim with a weapon. The wording will have to make it clear that the possession of the weapon was an ingredient in the offence, that the weapon was used by the alleged perpetrator of the offence to aid or help him in some way to carry out the offence. The same thing applies to the other aspect of the extended definition suggested by the Law Reform Commission. The wording will have to make it clear, although in this case a presumption could be implied, that the possession of the authority over the victim was in some way connected with or aided the commission of the offence.
The Bill contains in section 4 a radical departure in that it makes it clear for the first time in Irish criminal law that marital rape is now an offence. The Law Reform Commission expressed the opinion that this was already probably a crime. That opinion seems to me to be contradicted to some extent by some of the case law. However, the confusion is now swept away in section 4. Various arguments have been used against including a provision in Irish statute law to make marital rape an offence. Those arguments were dealt with, and to my way of thinking effectively demolished, in the report of the Law Reform Commission. Despite that, objections are still being raised. It is suggested, for example, that the creation of an offence of marital rape will lead to an unwarranted intrusion into the marital relationship. The question is being posed, "is it right or proper that the criminal law should be available as a weapon in family rows?" The spectre of late night calls to police stations and so on has been conjured up.
The reality is that criminal law already interferes in the marital relationship. For instance, as the law stands a person can commit buggery against his wife, he can commit ordinary assault against his wife and he can commit indecent assault against his wife. In view of that it would be illogical and perverse if he could not also commit rape against his wife. Whatever about the confusion that existed in the common law I welcome the fact that the Minister has availed of this opportunity to put this matter beyond any doubt. There is no reason why the distinction should exist in this case.
To those who are worried about the extension of the law in this direction I should like to point out that some years ago the offence of marital rape was created in statute law in Australia. We must presume that people in Australia are subject to the same pressures, problems and emotions as people in Ireland and to date the creation of an offence of marital rape has caused no great difficulties in that jurisdiction. The Minister was aware of the possibility that frivolous or vexatious complaints could be made. In order to eliminate that in advance the Minister has provided that proceedings for marital rape can only be initiated with the consent of the Director of Public Prosecutions. To some extent, when one considers this, there is an inconsistency there. To me it shows that the Minister is virtually bending over backwards to meet all possible points of view. I welcome that.
The present common law is that boys under the age of 14 are treated as being legally incapable of committing rape. The basis for that is an English case, the Crown v. Waite, 1892. However, in 1893 in a case before the then English Court of Criminal Appeal, the Crown v. Williams, it was held that a boy under 14, even though he is presumed to be legally incapable of committing rape, is legally capable of committing indecent assault. I must point out that that decision has been heavily criticised but in so far as I can conclude from my research on the subject it has never been specifically overruled by a court either here or in the United Kingdom. However, any difficulties or confusion that might arise have now been eliminated by section 5. It is made clear in that section that it is no longer to be presumed that just because a boy is under the age of 14 he is incapable of committing rape or aggravated sexual assault. Some Opposition speakers went on from that to discuss the age of criminal responsibility. There is no doubt in my mind that in so far as the age of criminal responsibility is concerned 14 years is too high. I do not know, and I do not pretend to know what the correct age should be but it is my view that seven years is certainly too low. The answer lies somewhere in between. That is a subject for another debate and I will not deal with it today.
Another initiative proposed in the Bill is that trials for rape or aggravated sexual assault be held before the Central Criminal Court. Various arguments were advanced against that proposition. They were effectively demolished by the Law Reform Commission in paragraph 19 of their report. I do not propose to go over those answers again. However, I should like to make a point in this connection. The Law Reform Commission saw a need to extend the criminal jurisdiction of the High Court. That is the intellectual underpinning of their reasoning for making rape an aggravated sexual assault triable exclusively by the Central Criminal Court. I disagree with that approach. There are good and adequate reasons for making those crimes triable in Dublin by the Central Criminal Court apart from arguing that the criminal jurisdiction of the High Court should be extended in some way.
In 1981 all serious crimes, with the exception of treason, piracy, genocide and murder-related offences, were transferred to the exclusive jurisdiction of the Circuit Criminal Court. One has to ask oneself — the answer will invariably be in the negative — if this has given rise to any difficulty in practice, if it has given rise to obvious cases of injustice or if it has given rise to administrative difficulties? The answer to those questions is in the negative. If that be so, why should we begin the whole process of reversing what we did out of necessity in 1981? The reasons, it would seem to me, would have to be good and compelling. The reasons advanced by the Law Reform Commission in what otherwise was an excellent report are, to say the least of it, inadequate.
The Minister stated on Second Stage, as reported at column 930, volume 393, of the Official Report:
...the Bill provides that in future all rape and aggravated sexual assault cases will be tried in the Central Criminal Court. I would like to make it clear that this decision is intended to be seen as an expression of the seriousness with which the Government view the crime of rape and, indeed, the crime of aggravated sexual assault. It should not in any way be taken as a criticism of the Circuit Court or the judges in that court who have dealt with rape cases. I might also emphasise that the Government's decision was taken solely with reference to the particular crimes in question and should not be seen as supporting the Law Reform Commission's view that the transfer of rape and aggravated sexual assault trials to the Central Criminal Court should be the beginning of a process of returning a wider criminal jurisdiction to the High Court. That is a separate matter to be considered on its merits.
I was delighted that the Minister said that and, for the most profound and fundamental reasons, I agree with his approach.
Anybody who has experience of the criminal law will know that frequently requests are made to have rape cases which occur outside Dublin transferred to Dublin anyway. Looking at it generally it could be said to be more appropriate for both the complainant and the accused that rape cases be held in Dublin. There is only one matter to which I would advert here. While I agree with the section of the Bill which provides that the Central Criminal Court is the appropriate court, I would be most concerned if this change of jurisdiction gave rise in any way to delays in relation to this type of crime. I do not have to emphasise to the House the patent injustice of delays in criminal trials. Even though I do not want to put one particular category of crime above or below another, as the case may be, I would point out to the House that, in so far as the victim is concerned, long delays in relation to trials for offences of this nature give rise to particular injustice. I was very glad to hear the Minister's assurance in his Second Stage speech that such delays will not occur. I would like, if at all possible, that that assurance be underpinned by another assurance that if, in practice, delays occur the necessary administrative arrangements will be put in place to eliminate them immediately.
In their report the Law Reform Commission dealt with the question of consent. The crime of rape and the crime of aggravated sexual assault is a crime, which of course, takes place without the consent of the victim. If consent can be proved, then the crime is not committed; the mens rea, the guilty intent, is absent. That is why anybody who has experience of a rape trial will find that invariably the defence counsel's line will be to try to demonstrate that in some way consent was given whether expressly or implied by the victim. The Law Reform Commission felt that the absence of a definition of consent has helped some guilty people to go free. The Law Reform Commission report states:
While no cases have been drawn to out attention in which the present law created serious difficulty, it was represented to us that it was certainly capable of doing so. The Irish Association for Victims Support was strongly of the opinion that the absence of a definition had influenced verdicts. It would be accordingly advantageous if the legislature were to clarify the law so as to put it beyond doubt that consent obtained by force or fraud was not consent. It was urged that there was a real danger of juries equating a failure to offer physical resistance with consent.
Having thus concluded, the Law Reform Commission went on to give us their definition of consent as follows:
1 "Consent" means a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to those words, a consent is not freely and volutarily given if it is obtained by force, threat, intimidation, deception or fraudulent means and
2 A failure to offer physical resistance to a sexual assault does not of itself constitute consent to a sexual assault.
I think I might be permitted to disagree with that approach by the Law Reform Commission. Anybody who will look at the textbooks, particularly the older textbooks in criminal law, in relation to sexual offences will see that there is a whole line of cases such as the case of the Crown v. Captain, the Crown v. Hallett, the Crown v. Fletcher, all venerable cases more than 150 years old, which make it clear that consent obtained by force, by threat, by intimidation, by duress, by fraud or deceit is not real consent. One does not have to go back that far; there are more modern cases if one wants to regard 1937 as modern. The Scottish case of the Crown v. Logan in 1937 makes that clear beyond any doubt. I had thought the reason this issue was not argued more recently than the 1930s was that the matter was so clear and so much beyond doubt.
I agree with the Minister's approach. It is entirely unnecessary to define consent statutorily. I would be concerned that any attempt to define consent in this way would allow exactly what the Law Reform Commission fear, namely, that the guilty would go free. The Minister went some of the way with the Law Reform Commission. Section 8 provides that a failure to offer resistance does not of itself constitute consent. This is similar to part 2 of the Law Reform definition but the Law Reform Commission definition simply stated that a failure to offer physical resistance would not constitute consent. The Minister is going further and is saying that a failure to offer any resistance does not necessarily constitute consent. The reason the parliamentary draftsman may have taken that option is to compensate in some way for the fact that part 1 of the Law Reform Commission definition is not included in the term "consent". Section 8 of the Bill implies that a person could possibly be guilty of rape or aggravated sexual assault if there is no fear, fraud, duress etc., if no physical resistance, verbal resistance or verbal protest of any kind is offered and if at the same time the victim is fully sane, conscious etc. It is very difficult to see how that can arise in practice.
This is a matter that will have to be teased out on Committee Stage to see if that inclusion by the Minister, in response to the arguments used by the Law Reform Commission and others, opens the door. Also in relation to section 8, I wonder if the wording is wide enough to encompass criminal offences other than the offences dealt with in the Bill? That is a matter we can deal with on Committee Stage.
The present offence of indecent assault carries a maximum of ten years imprisonment. Under the proposals in the Bill aggravated sexual assault and rape will carry a maximum sentence of life imprisonment. The lesser offence created in the Bill of sexual assault will carry a maximum of five years imprisonment. The effect of this is that there are certain types of assault for which an accused could now get up to ten years but after the passing of this Bill he can get only five years. I would regard that as not being too significant as it was only the more heinous types of indecent assault, which are now dealt with under the heading of aggravated sexual assault, that drew sentences of more than five years in practice. The maximum penalty for those crimes is increased to life imprisonment. That is a welcome development.
On the question of sentencing policy generally, the argument will be advanced — and there is no doubt it has some validity — that having maximum sentences does not imply that the accused will necessarily draw any sentence. Perhaps the Minister could consider a proposal that there be a mandatory sentence for rape or aggravated sexual assault. I am aware of all the arguments about rehabilitation, etc., and I subscribe fully to them in case anybody thinks otherwise. I do not have time to dwell on them now because of the time constraint. In relation to sentencing, the Minister should look at the possibility of a mandatory sentence even if it is only 12 months for rape or aggravated sexual assault. The same argument cannot be used in murder because all sorts of justifications can be used as to why some person kills another with malice aforethought. No such moral justification can be used in the case of a person who is convicted of rape or aggravated sexual assault as defined in this legislation. The whole concept of mandatory penalties is not something new. There is a very obvious precedent in road traffic legislation where if somebody is caught driving while over the permitted limit of alcohol it is mandatory for the District Court to disqualify him for driving for 12 months. The question of mandatory sentencing in this area should now be looked at.
Another proposal in the Bill related to the question of bail for a person who is on remand for the offence of rape or aggravated sexual assault. At present a person on remand for an offence of this nature could apply to the District Court for bail. It is proposed in section 18 of this Bill that such an accused will now have to apply to the High Court for bail. Presumably the reasoning behind that change is to bring uniformity into the legislation as these trials are now being transferred to the criminal division of the High Court.
The Minister expressed some reservations about this change and gave voice to his willingness to reconsider this matter during his introductory contribution. I was very glad to hear him do that because it is a change with which I disagree. The facts are that the procedures for granting bail in the District Court in serious sexual assault cases are well established. There is a clear body of law on this subject which should not be disturbed except for good and compelling reasons. Most important of all, the preliminary examination of the charges will be by the District Court and, therefore, the District Justice will be in the best position to judge whether bail should be granted in the individual case and what the terms of that bail should be. Therefore, I propose to the Minister that in line with his own reservations that proposal in section 18 of the Bill should be dropped.
The question of legal representation for the complainant has given rise to a good deal of debate. This issue was dealt with at length in page 17 of the Law Reform Commission report in which they stated:
Apart from the doubts ... as to the constitutional propriety of such a proposal, there must also be serious uncertainty as to the effect it would have on the trial of such cases. In some cases, far from assisting the conviction of guilty rapists, it might so complicate the hearing and alienate the jury as to result in unjustifiable 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.
I agree heartily with that approach. In dealing with this issue, the Minister, in agreeing with the Law Reform Commission approach, in his Second Stage speech said:
Furthermore the Director of Public Prosecutions agrees generally with the commission's approach. He is in the course of taking certain steps which when fully implemented will be of practical benefit to complainants in sexual offence cases. In particular these arrangements will ensure that a complainant in a sexual case will be furnished without delay with a copy of her statement and be afforded access to the solicitor and counsel acting for the prosecution before the hearing of the case in court. In addition he also proposes that a familiarisation course be made available to complainants on request in which the layout and procedure of the court will be explained to the complainant and in which she will be advised in very general terms of the type of questions which she might be asked.
I agree with that approach but I want to pose a number of questions to the Minister. First, will those rules be written down? I suggest that those rules should be enshrined in written form because if we have to depend on verbal practice of verbal directives, these will invariably differ from counsel to counsel, solicitor to solicitor and area to area, and will give rise to cases of injustice. If it is not the intention of the Director of Public Prosecutions to put these rules in written form I suggest that the Minister should incorporate a section in this Bill which would give him the power to make regulations to contain those rules.
I want to advert to paragraph 51 of the Law Reform Commission report which refers to section 4 of the Criminal Law (Amendment) Act, 1935. Section 4 of that Act refers to a mentally handicapped girl or women as an "idiot", "imbecile" and "feeble-minded". The Law Reform Commission suggested that that sort of terminology should be taken off our Statute Book, and I could not agree more. In paragraph 51 of their report the Law Reform Commission stated:
We have provisionally recommended that the offensive wording of section 4 ... should be amended by the substitution of words such as "mental incapacity" or "mental handicap".
It is an appalling insult to handicapped people to have words such as "idiot", "imbecile", or "feeble-minded" on our Statute Book in this day and age and unless there is some very good legal reason for it, this opportunity should be availed of to remove it.
I have already dealt in general with the Government's approach to the definition of aggravated sexual assault. I agree with the fundamental approach contained in section 3. This is a timely Bill which is being introduced to rectify particular problems. The question of whether we got it right or wrong in 1981 is now irrelevant. If we got it wrong in 1981 the reasons are irrelevant; the question now is: will we get it right this time? This is a difficult balance to strike. The Bill contains a number of radical initiatives and the Minister has just about got the balance right. I wish the Bill a speedy passage through this House.