Criminal Law (Sexual Offences) (Amendment) Bill 2018: Second Stage

I move: "That the Bill be now read a Second Time."

I am pleased to have the opportunity to present this legislation, which deals with aspects of sentencing for sexual offences, to the House. I know that Deputies on all sides are interested in the Bill and I look forward to hearing their contributions.

The Bill marks a further step in a programme of reforms to sexual offences legislation initiated by this Government. Members will recall the enactment last year of the Criminal Law (Sexual Offences) Act 2017, which was one of the most comprehensive and wide-ranging items of sexual offences legislation to be introduced in more than a decade. That Act updated existing laws to combat child pornography and introduced new measures to combat the sexual grooming of children. It also contained important provisions around criminal evidence in sexual offences trials.

The legislation on sexual offences has come under rightful scrutiny this year, prompted by high-profile cases both here and in Northern Ireland. I will continue to emphasise the importance of a robust legislative basis for the prosecution of sexual offences that is sensitive to the impact of these crimes on victims and, indeed, on society as a whole. In keeping with this commitment, I have initiated a review of protections for vulnerable witnesses in the investigation and prosecution of sexual offences. The review will examine: the adequacy of the mechanisms available in law and practice relating to protections for vulnerable witnesses; the investigation and prosecution of sexual offences, including measures to protect vulnerable witnesses during evidence; further practical and legal supports for victims; and restrictions on reporting of trials for sexual offences. The review will take place over a period of months. It will make recommendations in respect of legislative and practical changes that will reflect the needs of vulnerable witnesses. I thank Professor Tom O'Malley at the National University of Ireland Galway, a leading academic in this area, for undertaking to chair this review. I look forward to working closely with him and indeed hearing from him once he has completed the review. This review is in addition to the Bill before the House. Further legislation in this area is also being prepared. The Sex Offenders (Amendment) Bill 2018 currently being readied will enhance the monitoring of convicted sex offenders. I look forward to also bringing these proposals before the House.

The Bill represents a further branch of this programme of reform. It is vital and necessary that we enhance the current body of legislation with this measure. It is important that sentencing provisions for sexual offences are appropriate to the offences in question. I want to acknowledge the contribution of my colleague, the Minister of State at the Department of Public Expenditure and Reform, Deputy Kevin Boxer Moran, who initiated some of the provisions in this Bill while a private Member of the House representing the constituency of Longford-Westmeath. I acknowledge the importance of his Criminal Justice (Commission of Sexual Offences) (Amendment) Bill 2017, which provided for a scheme or arrangement of presumptive minimum sentences for repeat sex offenders. I am pleased that the broad scope of the Minister of State's proposals have been incorporated in the Bill before us. They seek to address some of the most serious offences in our society and protect the most vulnerable citizens from serious harm. In acknowledging the contribution and leadership of the Minister of State, I also want to acknowledge the important role played by civil society and by many victims in the production of this legislation. I want to mention Ms Debbie Cole, who, I understand, is one of the Minister of State's constituents. Arising from her experience, the Minister of State was very keen for the subject matter of this legislation to be brought before the House. I am very pleased that both of us as Ministers are now appealing to the all Members to debate this proposal, to move matters into the appropriate committee and, ultimately, to enact the legislation at the earliest opportunity.

The role of legislators in sentencing is to set out the maximum sentence that can be imposed. It is then a matter for the courts to decide the appropriate sentence in any particular case taking into account all of the circumstances. Sentencing in individual cases is a matter for the Judiciary, whose members apply sentences according to principles and the facts of the case, guided by what is provided for in legislation. Lest there be any doubt, I want to stress that the courts are wholly independent in the exercise of this judicial function. The court is required to impose a sentence which is proportionate not only to the crime but also to the individual offender, in that process identifying where in the sentencing range the particular case should lie and then applying any mitigating factors which may be present or any representations which might be made on the conclusion of the trial.

There are very few instances in which mandatory or minimum sentences are specified in law. There is a mandatory sentence of life imprisonment for murder. Minimum sentences are also in place for a number of serious offences such as crimes involving drugs or firearms. The use of minimum sentences is intended to reflect the impact of such crimes on society as a whole as well as individuals, often traumatised families and indeed communities. This Bill sets out presumptive minimum sentences for repeat sex offenders. These provisions will apply to those who have been convicted of a serious sexual offence and received a sentence of at least five years. If those offenders go on to commit a further offence within ten years, a presumptive minimum sentence will apply. It should be acknowledged that many convicted sex offenders are effectively managed through the Probation Service and the Garda Síochána on their release from prison and do not go on to commit further offences. However, it is clear that some do go on to reoffend and often offend again and again. By putting these provisions in place the Government is recognising the impact of sexual offences, both on individual victims and on society as a whole. It is ensuring that appropriate measures are available to the Judiciary at sentencing in order to ensure that these crimes can be dealt with both appropriately and effectively.

The Bill also proposes to equalise the penalties for incest by both male and female offenders.

Currently, the sentence for a male committing incest is life imprisonment. For a female, the maximum sentence is seven years. It is proposed to equalise these penalties by lowering the sentence for a male to ten years and increasing the sentence for a female to the same level. This matter was the subject of debate on a number of occasions and was contemplated by a number of reports that formed the basis for this legislation. It is an issue I am sure we will have an opportunity to consider in detail on Committee Stage.

As Deputies will recall, provisions on sentencing for incest were proposed for inclusion in the wide-ranging reforms of the Criminal Law (Sexual Offences) Bill that went on to become the Criminal Law (Sexual Offences) Act 2017. At the time, proposals were brought forward to raise the sentence for females convicted of incest to life, to match that in place for males. However, these provisions were removed on Report Stage to allow for further consideration and advice on the issue. The impetus to equalise the sentences for males and females is based on advice from the Attorney General that the gender disparity in sentencing has the potential to give rise to constitutional challenge. It is important, therefore, that this issue be dealt with through legislation in order to avoid any potential legal difficulties that may surround this offence.

While this provision will have the effect of lowering the potential sentence for a male convicted of incest, it still provides for a sentence befitting the seriousness of the offence. Sexual offences are among the most serious offences and the sentencing provisions in place reflect this, as is appropriate. In considering this provision, I note that Part 5 of the Criminal Law (Sexual Offences) Act 2017 contains a number of other provisions regarding the penalty for incest that have been enacted. These provisions have not yet been commenced pending the equalisation of the penalty for incest in this legislation.

Turning to the Bill, I would like to draw the attention of the House to the main proposals contained therein. Sections 2 and 3 of the Bill equalise the maximum penalty for incest by a male and incest by a female at ten years imprisonment by way of amendment to the Punishment of Incest Act 1908. Under the 1908 Act, incest by a male carries a sentence of up to life imprisonment whereas incest by a female carries a maximum sentence of seven years imprisonment. As I have noted, the Department of Justice and Equality has been advised by the Office of the Attorney General that the difference in penalty between a man and a woman could give rise to a constitutional challenge. The proposed legislation equalises the maximum penalties for the separate offences of incest by a male and incest by a female at a period of imprisonment of ten years.

Section 2 provides for an amendment to section 1 of the Punishment of Incest Act 1908 regarding incest offences committed by males. It introduces an amendment to the maximum term of imprisonment from a life sentence to one not exceeding a period of ten years.

Section 3 provides for an amendment to section 2 of the Punishment of Incest Act 1908 relating to incest offences committed by females, and introduces an amendment to the maximum term of imprisonment to one not exceeding ten years. The section substitutes in its entirety section 2 of the Punishment of Incest Act 1908, which provides for punishment of incest by females of or above the age of 17. The new provision brings the provisions up to date and in line with section 1 of the 1908 Act and provides for a sentence of up to ten years imprisonment. At present, a female of or over 17 years convicted of an incest offence is liable to up to seven years imprisonment.

The provisions in sections 4 and 5 have been developed based on the proposals brought forward by Minister of State, Deputy Boxer Moran, in the Criminal Justice (Commission of Sexual Offences) (Amendment) Bill. Section 4 provides for the insertion of a new section 58 into the Criminal Law (Sexual Offences) Act 2017. The new section provides that where an offender is convicted of a sexual offence listed in Schedule 1 of the 2017 Act and sentenced to imprisonment for a period of at least five years, and is convicted of a further offence listed in Schedule 1 within ten years, the court shall, when imposing sentence for that offence, specify the minimum term of imprisonment to be served by the person. According to these provisions, the minimum period of imprisonment shall be three quarters of the maximum term of imprisonment prescribed by law in respect of such an offence and, where the maximum term is life imprisonment, the minimum shall be specified as a term of not less than ten years. However, the court will have discretion in the application of the sentence if it is satisfied that this would be disproportionate in all the circumstances of the case.

Section 5 inserts a schedule into the Criminal Law (Sexual Offences) Act 2017. The schedule lists the offences to which the provisions of the new section 58 of the 2017 Act will apply. All of the scheduled offences are offences of a serious nature where the maximum penalty on conviction on indictment is five years imprisonment or above.

The House will agree that any measure that seeks to strengthen legislation governing sexual offences is of the utmost importance, and I hope these issues are given due consideration by Members in order that we can proceed to enshrine them in our body of law in due course. I look forward to hearing and discussing these proposals with the Members. I thank once again the Minister of State, Deputy Boxer Moran, for his collaboration on the proposals contained in the Bill. I acknowledge the important role played by a number of victims of crime, in particular Ms Debbie Cole. I look forward to a constructive and fruitful debate on the provisions of the Bill, and I hope Members will support these efforts to strengthen our legislation governing serious sexual offences. We do so with the objective of protecting all members of our society from serious harm.

Fianna Fáil will support the Bill and we will work to strengthen the measures outlined in it on Committee Stage. The recent statistics published by the Central Statistics Office on the recorded incidents of sexual offences in the first quarter of 2018 show a 10.6% increase in the number compared with the first quarter of 2017. This makes sexual offences a category with one of the highest percentage increases in all recorded crime. This is sad and shocking. The actual number is likely to be higher than indicated due to the fact that reporting rates for crimes of rape and sexual abuse are extremely low in this country. This trend of under-reporting is largely because the victims of these heinous crimes are left in a state of fear that our criminal and legal system will fail them, that the perpetrators will avoid just sentencing and that the victims themselves will be put on trial. We have certainly seen this over the past 12 months. The Bill is a welcome step towards removing this fear from the victims.

Establishing consistency in the courts with regard to sexual offences is a vital step that we should have taken long ago. The Bill will help assure victims that there are strong standards of justice to which we hold everyone to account. The Bill also calls for the long overdue establishment of a judicial sentencing commission that would prepare sentencing guidelines for the Judiciary. We welcome this provision.

The State must provide adequate resources to the office for Internet safety in the Department of Justice and Equality, knowing it will be able to effectively target those abusers who use computers and smart phones to commit their crimes. Prioritising post-release supervision of convicted sexual offenders is another important aspect that has been overlooked. Victims, as well as those convicted, need to know we have not forgotten about them and that we hope to keep society informed and safer because of this.

The provisions in the Bill will, no doubt, mean more stringent sentences for repeat sex offenders. This is very much welcomed as sexual offences are among the most abhorrent of crimes. The leniency of sentences handed down to persons convicted of sexual offences has been consistently in the headlines and rightly so. The public is rightfully disgusted and angered about this. Behind the headlines are victims who are left feeling totally devastated by the system and who are negatively affected once again.

There is no doubt, and it is only right to say, that lenient sentences can have a real and damaging impact on survivors and deter others from reporting offences. That is if the Minister wishes to listen.

Increased sentences for these awful crimes are to be welcomed but the failure of this Government to establish a sentencing commission means that even when this legislation is in place, there will continue to be major inconsistencies in cases of this nature. In April 2018, Ms Justice Úna Ní Raifeartaigh, in sentencing a man convicted of the repeated rape of his granddaughter, described the lack of rape sentencing guidelines as "somewhat bizarre". She specifically pointed to the fact that whereas there was much authority as to general sentencing principles, there was very little in the way of actual figures to guide her in making her decision.

In 2013, Fianna Fáil published a Bill calling for the establishment of a judicial sentencing commission that would prepare sentencing guidelines for the Judiciary. This also formed part of our manifesto for the 2016 general election. Similar Bills have followed from other parties but despite paying lipservice to the need for consistency in sentencing, the Government has repeatedly failed to prioritise legislation of this nature. Judges, victim groups and Opposition parties are in unison in calling for this legislation. It is impossible to understand why the Government is dragging its feet on such an important matter. The Bill also equalises the maximum penalty for incest by males and females aged 17 years or over at ten years' imprisonment, which is welcome.

Sadly, we must acknowledge that rates of crime of a sexual nature, in particular repeat sexual offences, are on the rise. We owe it to the people of Ireland to prioritise this Bill and start gaining the trust of victims. They must know that persons convicted of sexual offences will not be handed lax sentences. They must know that we hear them in this House and that we will take a strong unified stance against all crimes of a sexual nature. The Minister will not find Fianna Fáil wanting in supporting this Bill.

I thank the Minister and I welcome this Bill, which seeks to introduce more stringent sentences for repeat sex offenders. Fianna Fáil will support the Bill. The rising rates of crimes of a sexual nature is deeply worrying for society but horrendous for victims. We know how sexual offences have become more prevalent in recent years. The Central Statistics Office noted a 10.6% increase in the number of recorded cases of sexual offences in the first quarter of this year compared with the first quarter of 2017. In truth, the figures are likely far higher, and it is accepted that the reporting rates for crimes of sexual abuse are much lower than the real incidence.

The Bill before the House is urgently needed. We are all familiar with cases where the leniency of sentences handed down to sexual offenders has been called into question. Lenient sentences can have a damaging impact on survivors of sexual abuse. When people hear of cases where the sentence handed down is reportedly lenient, those who may have considered reporting a sexual offence are often deterred from doing so. There can be a perception that the criminal justice system is not on the side of the victim, and one area that certainly must be addressed is the matter of consistent sentencing. That would help to address that perception. There is also stereotyping and stigma around the victims of sexual assault, which must be absolutely ended. Evidence is clear there is no particular profile of a victim of sexual assault, and it can happen to absolutely anybody. Nevertheless, certain groups are more vulnerable than others.

My party welcomes the Bill and we hope to strengthen it with proposed changes on Committee Stage. I have practised criminal law and I am aware of a couple of lacunae in and around the sexual assault areas of law. I hope they will be addressed in the Bill. The Government has not addressed the need for consistent sentencing for sexual offences with enough urgency. In 2013, Fianna Fáil published a Bill calling for the establishment of a judicial sentencing commission and in 2016 our general election manifesto included the need to provide sentencing guidelines for the Judiciary. However, we are now in the final quarter of 2018 and the Government has yet to prioritise legislation that would encourage consistent sentencing in our courts. It must take action and set up a sentencing council to issue sentencing guidelines and provide clarity and consistency in sentencing. We need to see that convicted sex offenders will be subject to more vigorous supervision after their release, with the Government providing proper resources for the Office for Internet Safety to target sex abusers preying on vulnerable people. Unfortunately, it is a growing trend for predators to use the Internet to target vulnerable people. In that respect, I would also like to see the appointment of a digital safety commissioner, as that role is absolutely crucial.

I thank the Minister for bringing this Bill before the House. I am pleased to get the opportunity to discuss both the legislation and the topic more broadly. It is legislation that Sinn Féin broadly supports and we are happy to engage with the Minister for Justice and Equality on the relevant Stages as it progresses through the Houses.

The Bill appears to contain what my party believes to be changes in the law that are sensible and necessary, particularly in respect of the equalisation of proposed sentencing between genders. Although it is a step forward in laws and cases involving sexual offences, it is somewhat piecemeal and much more could be done regarding consistency in sentencing, a point that my colleague, Deputy Ó Laoghaire, has previously raised with the Minister. This relates to sentencing guidelines, a point I intend to return to and one on which I hope the Minister can provide some commentary.

The Bill has two primary purposes. The first is to amend the Punishment of Incest Act 1908 to address a gender anomaly in penalties, something we support. It also seeks to amend the Criminal Law (Sexual Offences) Act 2017 to provide for presumptive minimum sentences for repeat sex offenders, which we also support. The first issue was raised during the debate on the 2017 Act when my colleague, Deputy Jonathan O’Brien, and Fianna Fáil's Deputy Jim O’Callaghan raised concerns around the approach to harmonisation. They argued that the benefit to the public of achieving harmonisation by providing for a sentence of up to life imprisonment had not been demonstrated. It appears the Minister has listened to this point and responded in this Bill with a sentence of up to ten years, to apply to men and women.

There are still anomalies in the law on incest that require further consideration. The wording still implies that a woman cannot initiate incest, as it is worded, "any woman who permits". Likewise, it is limited to carnal knowledge and therefore excludes acts of abuse and incest that fall short of intercourse. It also excludes certain same sex relationships. These are elements that require amendment and I ask the Minister to consider this an opportunity to address them.

The significant amendment to the Act of 2017 is detailed and welcome. Where an offender is convicted of a sexual offence listed in the Schedule to the Criminal Law (Sexual Offences) Act 2017 and is sentenced to imprisonment for a period of at least five years, and is subsequently – within a period of ten years – convicted of a further offence listed in the Schedule, the court shall, when imposing sentence for that offence, specify the minimum term of imprisonment to be served by the person. The minimum period of imprisonment shall be three quarters of the maximum term of imprisonment prescribed by law in respect of such an offence and, where the maximum term is life imprisonment, the minimum shall be specified as a term of not less than ten years. The court will have discretion in the application of the sentence if it is satisfied that this would be disproportionate in all the circumstances of the case. Section 25 can be triggered by a subsequent offence committed while in prison.

The Minister will agree it takes two or three readings of the specific proposal to understand it entirely. Essentially, it means that with a person who has committed a serious sexual offence, in the calculation of the sentence of a further relevant sexual offence, the length of the sentence handed down for that second offence will be a minimum of three quarters of the first sentence. This provision is similar to provisions in the Criminal Justice Act 2007 and, as in that Act, it includes scope for deviation from the minimum sentence where it is deemed disproportionate. Hence it is a presumptive minimum as opposed to a mandatory minimum. This has been described by Mr. Thomas O’Malley in Sentencing Law and Practice as "a significant safety valve".

This makes sense for the most part in that those who repeatedly offend, carrying out such heinous crimes and leaving a trail of devastation in their wake, have clearly not engaged in or benefited from any rehabilitation attempts or services provided to them, making them a live danger to others.

Sexual assault, or any crime of a sexual nature, is a very serious crime that must carry one of the highest penalties. I need not go into the detail of both the psychological and physical scars that assault leaves on any victim. While not perfect, the law around sexual offences is ever changing, but we can still do much more in our efforts to protect victims of sexual offences, be that in their treatment by the courts, and in increasing funding to services to deal with the victims of such crimes.

More broadly, it is important that the Garda is recording its data accurately as it has a knock-on effect on the wider system and how we, as a society, deal with offences, in particular, sexual assaults. There are issues in the Garda about the culture and understanding of the importance of accurate data, that the current system being used by An Garda Síochána is not fit for purpose, and that its IT systems are in dire need of upgrading. This matter was also touched on by the Commission on the Future of Policing in Ireland. The Minister must address this as a matter of priority.

As I stated at the outset, a better and more comprehensive approach to reform of sentencing where it relates to sexual offences relates to sentencing guidelines. The Minister has agreed with my colleague, Deputy Ó Laoghaire, that this issue is one that he supports, and, indeed, that needs to be progressed.

It is vitally important that the public has confidence that the courts will hand down appropriate sentences that are proportionate to the crimes committed. Unfortunately, that is currently not the case. There are wide disparities in a number of areas, including sexual offences. Some sentences have drawn considerable comment and, indeed, anger. Time and again, we have seen sentences handed down that are, quite frankly, inadequate. There are undoubtedly issues relating to inconsistency, leniency, and light sentences. There are problems in other areas unrelated to what is being discussed here today, such as assault, and in regard to road traffic issues. Research conducted on judicial sentencing habits has shown sentence lengths ranging from 14 days to five months in an assault case, while, for a theft case, sentences ranged between 30 days and nine months, and in road traffic and burglary cases, between two and 12 months. As a result, the public does not trust the justice system to deliver punishments that fit the crime. As legislators, we have a duty to address what is a considerable issue in relation to sentencing. It is my party's belief that collating, publishing and ensuring judges have these parameters is the best way to ensure consistency in sentencing.

Deputy Ó Laoghaire met the Minister over the summer and the Minister indicated that minimum sentence guidelines would be introduced at the next Stage of the Judicial Council Bill 2017. I hope that Stage will commence as a matter of urgency, as it would impact the specifics discussed within this Bill as well as addressing disparity in areas such as the ones I have outlined.

My party will be supporting this Bill. Sexual offences are especially heinous, intrusive, inherently violent, and leave long-lasting damage. It is important that we have strong enough legislation to tackle this to ensure that the sentences attached are fitting of the crime.

There are two parts to the Bill. The first deals with the maximum sentences for incest and the second deals with the introduction of new mandatory minimum sentences for repeat sexual offenders. I will deal with the two parts in reverse order.

First, in terms of the new mandatory minimum sentencing, I understand the motivation behind the proposal. Repeat sexual offenders have a considerable impact, both on their previous victims and, obviously, on those they go on to offend against. They are some of society's worst offences and we obviously all want a regime in place which makes it less likely that someone having committed one offence would ever go on to commit another. In that context, the Bill's sentencing proposals run along a bizarrely complex formula which makes no sense to me. Basically, what the Bill is calling for is that where somebody was convicted on indictment of an offence specified in the Schedule - the first offence - and was sentenced to imprisonment for at least five years, and is subsequently convicted of another scheduled offence committed within ten years of the first conviction, a presumptive minimum sentence applies to the second conviction. The sentence for the second offence must be at least three quarters of the maximum sentence which can be imposed for the second offence. If the maximum term for the second offence is life imprisonment, the minimum sentence should be at least ten years, and any suspended portions of a sentence do not apply. In other words, if someone was sentenced to seven years with three years suspended for an offence and then goes on to commit another offence, the person will not fall under this Bill's ambit because the person only served four years of the sentence. It is complex and hard to get one's head around it. To be honest, it seems completely arbitrary.

In any case, the proposal in the Bill to introduce mandatory minimum sentences will not achieve the goal of making offending less likely. In general, years of evidence shows us that mandatory minimum sentences for any crime are not effective deterrents. The fact is reflected in the findings of the 2013 Law Reform Commission report on mandatory sentencing and the 2014 strategic review of penal policy. Both made clear recommendations that no new mandatory sentencing scheme should be introduced. The strategic review of penal policy, in particular, was a cross-agency report which included victims' representative groups alongside agencies tasked with crime prevention and the IPRT. While deterrents might be an appealing concept in theory, the empirical evidence shows that there is no justification for that in reality. In fact, there is evidence that sanctions, in general, may provide some deterrent but no evidence to suggest that a more severe penalty is a greater deterrent than a less severe penalty. While mandatory minimums, I suppose, have a feel-good factor to them in that they give politicians the opportunity to vent their horror at particularly shocking crimes and give the appearance of taking action, the fact is that they do not deter criminals in general. In particular, given that the recidivism rates in terms of sexual offences are among some of the lower ones, I am at a lost as to why the Minister would think that this legislation would act as any deterrent to the particularly determined and particularly disturbed individuals who buck the trend and go on to become repeat sexual offenders.

On top of that, there is the point that Sinn Féin cut a deal with the Government during the Judicial Appointments Commission Bill 2017 in looking for sentencing guidelines linked to the new Judicial Council Bill 2017. In fact, in fairness to the Judiciary, it has been crying out for that for years, particularly for tricky cases. It is wrong to introduce a new regime while that is pending.

I should also point out that the Minister is waiting for a review of presumptive minimum sentencing which was commissioned by this Department, and was due to be published in July. Why are we not waiting for the outcome of that before rushing in with this legislation? It does not make any sense.

The reality is that mandatory minimums are knee-jerk responses to media hype. Sentencing guidelines, on the other hand, are carefully considered, data based and evidence driven, and they are far more effective and useful. The Judiciary itself would feel that.

When one looks at it, the Bill, while recommending a presumptive minimum, allows judicial discretion in applying the minimum and, ultimately, it is bringing it back to the judges anyway. What is the point in having this legislation at all? It defeats its own stated objectives. Why not expedite the Judicial Council Bill 2017 which we have been promised since the start of this Government and create proper sentencing guidelines? If this is politics, it is pretty poor politics and it is selling people short.

If the goal of this Bill is to right the wrongs of the past, as other Deputies have said, I would say we have seen some shocking sentences handed down for some of the most appalling sexual crimes. In such cases where say sentences have been totally suspended or where the offender has been invited to make a financial contribution to the woman he raped or whatever, which, I accept, is appalling sentencing, the fact that suspended sentences are not counted in this legislation in calculating the minimum for the second offence means the Minister will not fix that problem with this legislation.

It also falls short on that count. It is completely wrong that we would introduce anything like this at present.

On the Bill's other provision regarding incest, I see no problem with aligning the maximum sentence that can be given to men or women. I have no problem with the reduction in the maximum sentences given that the Bill relates to consenting adults where other aspects of our criminal justice legislation deal with abusive or coercive incest. However, it is something we should look at in this legislation because sexual abuse and child sexual abuse in particular is something that sadly takes place overwhelmingly within families and extended families. It is something which is very much in focus at present. HIQA's recent report on how Tusla manages allegations of child sexual abuse was a scathing indictment of failures in the system and should greatly worry us all. It worries me a great deal. What worries me more still is the number of people who have contacted us who have seen children go through that system and have seen the system fail at multiple different points of the process.

The following example captures not only the problems that exist in how allegations of child sexual abuse are dealt with but also how those problems radiate out and compound the really serious problems that exist within our family law system. Let us say that a child makes a disclosure to her mother that her father is sexually abusing her. The mother, horrified, reports it to Tusla which does a preliminary assessment and decides the allegation is sufficiently credible for a full assessment to be done. Therefore the child goes in for interview. If she is lucky this will be done by a specialist unit, of which there are a couple around the country, but if there is no specialist unit nearby, then she will be assessed by social workers whose training and skill in the forensic interview techniques needed for this delicate work may not always be present. The full assessment might be a couple of 15-minute interviews, after which only two findings are available: the allegation is either founded or unfounded. Unlike criminal law, for example, where there can be a finding of insufficient evidence, that is not provided for here. Once a decision has been made that an allegation is unfounded, that is the end. The case is closed, and the file is put on the shelf to gather dust. Prior to the child's interview there was no risk assessment, no home visit or investigation, and once an allegation is declared unfounded there is no follow-up whatever. It is game over.

The Minister for Children and Youth Affairs recently told me about this blunt tool that Tusla are civil authorities making findings on the balance of probabilities. She continued that this may differ from the burden of proof for criminal prosecution required by investigations by An Garda Síochána, but that is precisely the problem. Tusla is making findings on the balance of probabilities, but if the agency gets it wrong and determines that an allegation is unfounded, the child is condemned to continue being abused. It applies particularly in cases where a child lives with a parent who is carrying out the abuse on him or her. Surely we should contemplate legislation which provides for a middle ground between founded and unfounded - it could be called insufficient evidence, perhaps - but there has to be something that puts in place a risk assessment that really protects children and provides meaningful engagement.

Let us return to the hypothetical child. When the allegation is decided to be unfounded, Tusla closes the case, the mother cannot believe it and is further horrified when her daughter goes on to make further disclosures of sexual abuse by the father. In the meantime the relationship between the parents has broken down and custody proceedings have started. Every time her daughter discloses abuse by the father, the mother reports it but because it has been deemed to be unfounded, before long there are social workers sitting beside the mother telling her she is the one who is abusing the daughter by emotionally abusing her and coaching her. The child keeps coming back to say terrible things are happening, and things get worse because the mother, who now is being accused of coaching, will not shut up. Custody proceedings are in full swing and the court orders a section 47 report. This is something I have raised with the Minister. A section 47 report is compiled by either a psychotherapist, a psychologist or a psychiatrist, with the intention of providing a guidance to the judge. In practice, judges place a great deal of weight on these reports. They are not supposed to rely on them completely but they do so severely. In some instances, and in the hypothetical case I am outlining here, the person doing the section 47 report is a psychotherapist, which is an unregulated profession. Such individuals can essentially say what they like in a report that determines the fate of that child. Courts have ordered the child to remain with the abuser, and to go into his or her full custody, in that case. It is a crazy system. If we want to deal with abuse and sexual abuse within families, we must pay attention to this huge deficit in our system. Psychotherapists can theoretically do what they like during the interview process, which is about interviewing vulnerable children and there is nowhere for anyone to complain about it. If the child in that situation is in the middle of a custody battle, the psychotherapist doing the section 47 report has seen the report from Tusla with the assessment on the original allegation as unfounded, has been told that the mother will not let it go and that she is the one engaging in abuse. Suddenly, the process then unwinds. The mother has nowhere to go or to complain because the family court is held in camera. That means that it is a criminal offence to disclose to anyone not involved in the hearings what happened in that court case, which means there is nowhere to go. It is almost like a licence to facilitate paedophilia in this State. Sadly, the hypothetical instance I have given is not hypothetical at all. People in Ireland are in this situation today because of the shortcomings in our legal system. It will be the new scandal of our age. While I am sure and I hope people here are motivated to help the victims of sexual abuse, if we do not address the time bomb of this in camera rule and this appalling way of dealing with child sexual abuse in our State then we will have on our hands a new modern horror scene, the likes of which makes abuse that happened to children in our State in the past pale into insignificance. We should use the opportunities presented by legislation such as this to deal with these appalling deficits. While it is nice to equalise consensual incest, it is not comparable with the appalling child sexual abuse which goes on and is not dealt with in this State.

I call Deputy McGuinness. We have just about three minutes remaining.

I agree with much of what Deputy Clare Daly said. Sexual abuse must be dealt with in a definite way in the context of legislation but I must reflect on the role of Tusla in many of the cases I have come across where false allegations have been made by a professional within the family home and where those allegations have been proven to be false, but yet it is almost impossible to deal with the issue and have the family cleared. The allegation will have been reported to An Garda Síochána and to Tusla but there is no process by which the family can adequately clear its name. In a situation such as this, the moment sexual abuse is mentioned there is a presumption of guilt. That issue should be addressed in the Bill.

Deputy Clare Daly outlined many of my concerns. My other issue relates to children who are in the care of the State. This Bill has been debated by this House. We are all interested in getting issues right such as mandatory minimum sentencing and so on. However, what about when this House discussed the Grace case and when Members decided to hold an inquiry? Nothing has been heard about that since. We are talking about those who are most vulnerable and are in the care of the State, those who are mentally or physically challenged and who have been terribly abused in the past, such as Grace and the other 46 cases, yet the Government made every effort to narrow that investigation and to shut it down. Where within this Bill can we deal with cases like that? Where in this Bill is the State's responsibility outlined in respect of cases such as that relating to Grace?

Where stands that investigation? How will it be dealt with in the context of the principle of the legislation we are debating here today? It is an absolute shame that the Government has abandoned these 47 cases and has done nothing to ensure HSE compliance with the investigation. In that investigation, the families that were most affected by the most awful sexual abuse on family members were treated in an appalling way by the HSE. The investigation against them was so aggressive that they became the victims of the investigation. I ask the Minister to investigate that and see what can be done.

We will return to this important legislation in the near future.

Debate adjourned.