Over the last ten years there has been a growing concern about the incidence of rape and the laws concerning rape. This has resulted in a review of such laws in many countries both in Europe and further afield, such as the United States and Australia as well as countries in the EEC. The original voicing of this concern came mostly from the women's movement in those countries and has mostly met with sympathy and appropriate action from the Legislatures where it has been brought up.
In Ireland recently the increasing political awareness of women has also led to an anxiety that our laws and attitudes towards this very distressing crime may lead to a situation where the criminals go unscathed, thereby indirectly assisting to increase the incidence of this crime.
This growing anxiety of Irishwomen was shown most dramatically in a demonstration of unparalleled size on 13 October last when 5,000 women marched through Dublin in a torchlight procession. This march was intended by the organisers to symbolise woman's right to walk in the street unmolested. Further evidence of this deep concern has been the recent establishment of a rape crisis centre in Dublin along the lines of such centres in many parts of the world. The voluntary group of women who support thus the victims of rape have also brought out a document entitled "First Report" to set out their reasons for establishing the centre and the goals they have set themselves. They have examined the legal systems here and overseas. Their work and their concern is admirable and deserves generous financial support from the State and from the public.
On 18 October the Council for the Status of Women presented the Minister for Justice with the results of their work over 18 months, and this document entitled "Submission on Rape in Ireland" is the subject of this debate. I congratulate the council on taking this initiative. We all know that it is quite easy to criticise and to condemn the legal system, but the serious contributors are people who come forward with positive suggestions for a replacement of what they see is wrong. Such positive action represents an input to the democratic process which women have only begun to make in very recent times and is very much welcomed by all of us.
In the time available to me I cannot go through this report section by section. I hope that other Senators will examine different sections of particular interest to them. I will stick to the principal areas which are causing the most concern.
The rape victim will usually report the crime in a Garda station, and as soon as possible there will be a medical examination. It cannot be stressed too much how extremely important it is that a medical examination should be carried out very rapidly after the crime is reported. Given the type of trauma involved, the victim naturally needs an enormous amount of consideration at that time. I am advised by very many people that the Garda are most kind and helpful to rape victims at this stage. However, it is obviously desirable that a ban-gharda should be always available to a rape victim when she is reporting the crime. Ideally, a rape victim should also have the support of a friend or relative. The rape crisis centre has a valuable role to play in this regard in providing the kind of help and support of an expert nature which they are voluntarily prepared to give.
The medical examination is of absolutely crucial importance since so very much depends on it at a later stage at the subsequent trial. There is a great need for some change in present procedures here. One is that the Garda should automatically inform the victim—this is not automatic at the moment—that she may see her own doctor or a doctor of her choice. This happens automatically with things like breathalyser offences. There should be a forsensically adequate medical kit available and ready in Garda stations and in major centres for the specialised examination and evidence needed in rape cases. The casualty department of major hospitals should always have facilities and personnel available for the examination, which will have such a crucial bearing on subsequent developments. That, I am advised, is not always the case at the moment.
It goes without saying that the doctors who carry out these examinations should be aware of the deep psychological and often physical trauma of their patients and should have the necessary expertise. Therefore, the training and equipment of doctors needs to be looked at here. I hope that this point may get further development in this debate.
The rape victim's statement is taken by the Garda. Under present procedure she may never see that statement again, or not until the trial has begun at a very much later stage. This is because the rape victim is in fact only a witness for the prosecution. The rape victim who faces the trial should be given her statement at least a week before the trial. The legal adviser who will be provided for her from the Director of Public Prosecutions Office should always prepare her well in advance for the trial. It may happen, at present, that the rape victim comes to court totally unprepared for the ordeal which she is about to face.
It is essential that there should be a system of automatic referral of rape victims to a social worker or other expert who can arrange for counselling both of the victim and of those near to her. The kind of help offered by rape crisis centres in various countries is totally admirable for this purpose. There is an undoubted deep psychological damage and confusion caused to rape victims which can affect them permanently and can have grave effects on their immediate family also.
Now we come to the procedures of the trial itself, a trial which only takes place if the district justice has been convinced by weight of evidence presented to him that the case is strong enough to bring to trial at the Central Criminal Court or the Circuit Criminal Court. It is at this stage that the gravest ordeal arises for the rape victim, and present procedures can put the rape victim on trial in the most cruel manner.
Anonymity, at the moment, is not by any means automatic for the rape victim. Given society's attitudes in general and the deeply disturbing nature of this crime it is vital that the victim be protected by anonymity. It should, therefore, be automatic with heavy penalties for infringement. No newspaper or broadcaster should betray by any clue the possible identity of the victim. If a judge feels that publication is necessary in order to seek out witnesses, which is the only possible ground for publication, then such restrictions could possibly be raised. Anonymity for the accused is also a matter of great concern, and suggestions have been made that those pleading guilty will not remain anonymous, but those who plead not guilty should be protected by anonymity unless and until they are found guilty. These are very serious questions which need very serious study.
A major area which causes great concern relates to the laws of evidence. They very badly need to be changed here and have been changed fundamentally in Britain and elsewhere. At the moment the rape victim can be questioned about her sexual relations with men other than the accused. These questions are brought up in order to damage the credibility of the rape victim as a witness in the eyes of the jury, and possibly establish consent. This procedure is one of the principal reasons why the whole rape trial process is so very daunting to victims. Indeed women who are becoming more and more aware of this procedure may opt quite simply not to report the crime in the first place. The law needs to be changed. It was changed in Britain in 1976. Now in Britain the defence may not raise such questions in rape trials except by leave of the judge on application made to him in the absence of the jury, and his decision is based on clear principles laid down in legislation. The grounds for admitting such evidence are, that there was strikingly similar behaviour on the part of the plaintiff as is being alleged in the rape case presently being heard or that the relevance is such as to make it unfair to the accused to exclude it. Society nowadays imposes the kind of criteria for sexual behaviour which are manifestly irrelevant to most of that society. Moreover, juries must not be invited to imagine, as they are, that a sexual relationship freely entered into with one man implies consent to being raped by another. If we leave such concepts concerning rape in our legal procedures we are being grossly negligent in our attitudes towards this crime.
In 1976, 32 cases of rape were reported to the Garda, in 1977,60 cases, and in 1978, 48 cases. It was a great relief to a great many people that the number fell from 60 to 48 in 1978. Unfortunately there may be a quite simple and sinister explanation for that drop. It was early in 1978 that women began to take notice publicly, and in large numbers, of the kind of procedures surrounding the reporting, but particularly the trying, of rape cases. American studies in 1971 pointed to the conclusion that only 10 per cent of rape cases were actually reported to police because of the fear of women of the ordeal that they knew lay ahead of them. In the absence of any such studies on this question in Ireland there should be no complacency about an apparent drop in rape figures.
It is necessary, unfortunately, to stress that certain myths surround the whole question of rape. It is in fact a crime of straightforward violence and aggression, not an impulsive act carried out in a moment of passion. It must be clearly stated that authoritative studies of convicted rapists in Britain and America show that the vast majority of them, including those committed by one person, are planned. As high as 90 per cent of gang rapes and 83 per cent of pair rapes were carefully planned long in advance, and 50 per cent of all rapes were committed on a woman already known to the rapist. It is not, therefore, a crime which happens mostly, or even often, in a dark alley or to a hitchhiker on a lonely road. The figures I quote are from an American Study entitled "Patterns of Forcible Rape" by Dr. Menachem Amir of Chicago.
If we could even comfort ourselves with the thought that those committing the crime were somehow mentally unbalanced perhaps it would be easier to contemplate. Unfortunately the overwhelming majority of rapists are otherwise quite normal except for a tendency towards violent behaviour. Recent British studies show that 96 per cent of rapists had no mental problems or incapacities, and the American studies showed that more than 50 per cent of the rapists were married men with normal patterns of sexual behaviour.
In any study of the laws and practices surrounding the whole question of rape it is essential that considerable research be carried out into how and why rape actually occurs. Women, quite rightly, resent and fear any suggestion that they somehow provoke or cause this violent attack on themselves. It is very sad but true that there is a deep and incapacitating guilt common among rape victims. This guilt can colour the rape victim's total outlook on future life and future relationships with anybody of the opposite sex. This guilt is often present no matter how violent or how brutal the attack has been. It has its roots in the kind of attitudes which young girls are taught to adapt by society. Women have been told by priests, nuns, and by other authority figures that, in fact, men quite often are victims of uncontrollable passion which must never be provoked by any dress or behaviour on the woman's part. In present courtroom procedures that attitude is reinforced by the relentless inquiry into past sexual history of the victim which is at present permitted. The inaccuracy and damaging results of the kind of attitude I have mentioned are seen in many aspects of social behaviour of men and women.
Advertising which involves the blatant use of women's bodies to sell things like cars is another aspect of social attitudes which bears examination and indeed, if one examines the RTE advertising practices, there is a distressing lack of any guidelines in that area.
There is one grave problem which involves the definition of rape. In cases involving sexual assault, there are many variations of sexual attack apart from the single kind which is now defined as rape, that is the penetration of the vagina by the penis. Such other forms of sexual violation involving insertion of the penis into the mouth or anus, or the use of objects thrust into the vagina, can be as damaging mentally and even more damaging physically to the victim than the present defined crime of rape. It therefore seems obvious that a careful study needs to be made of the present legal definition of rape and whether it is wide enough to ensure that justice is meted out to the perpetrators of other violations of women which have at present a lesser implication legally but no less and sometimes even greater effect on their victim, both mentally and physically.
There are other questions which need to be considered in any redrafting of legislation on rape. Some people consider that in rape cases it should be ensured that a minimum number of women shall serve on a jury for a rape trial. This is a debatable point and I am not convinced that this would make any great difference to the present conviction rate. However, I am opposed to the blind challenging of jurors on grounds of sex. There is something very wrong in a situation which happened in a recent rape and murder trial in Ireland, where women were challenged on the grounds that the evidence was too shocking and horrifying for them to contemplate it with equanimity, and that their judgment would be clouded. Consider what is right about being able to contemplate horror without emotion. Is it not admirable to be shocked and horrified by dreadful violence, or do we feel that some male attitudes towards violence are somewhat better and more just? These are questions which deserve examination in an even wider context than this present question under discussion. The Heilbron Committee which advised the British Government on rape legislation in 1975 recommended a minimum of four female jurors on a jury, and their recommendation was incorporated in the British Sexual Offences (Amendment) Act, 1976.
In covering the areas which strike me as being of particular importance, I have had to omit because of time limitation a great deal which I feel could have been usefully pursued. For example, no revision of the laws on rape can be undertaken without a study of the whole question of rape within marriage. The kind of attitude which was at large in the 18th century is sometimes still expressed in legal systems here. The History of the Pleas of the Crown by Hale, 1736 says:
...the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself up in this kind onto her husband, which she cannot retract.
Is this sort of attitude responsible for the fact that marital rape cannot be an offence at the moment? Is it because the woman has in fact said that she has totally given up her body and has no rights over it any more? Is it because of the concept of a woman belonging to her husband, or is it because it is a very complicated area that people do not want to enter into? None of those reasons for avoiding the whole question of rape within marriage stands up, because there is unquestionably rape within marriage. That question must be seriously studied in any amendment of the laws.
One other question is the question of delay in the trial of rape cases. There can be, as all know, considerable delay in all kinds of cases. The nature of the law is that it is rarely rapid. Unfortunately it is also valid to say that justice delayed is justice betrayed. There is a special kind of mental suffering involved in a rape case. This mental suffering is prolonged for every day of the period when the rape victim waits for the trial. It is a suffering which is quite different and quite distinct from other kinds of post-crime trauma. The question of delay of the trial of rape cases needs special attention. It is necessary to emphasise strongly that all who are concerned about this rape problem seek justice. Nobody seeks to alter the course of justice so that the accused might be in any way unfairly treated. Many people also feel unhappy that the present outdated legislation is serving no purpose and in fact is serving a negative purpose.
The Irish legislation dates from the Offences Against the Person Act 1861, the Children's Act 1908, both British laws, and the Irish Criminal Law (Amendment) Act, 1935. This legislation is grossly inadequate to deal with modern developments in knowledge about crime, about psychology and about sexuality. The procedures we use may be hindering the reporting of this crime and thereby achieving exactly the opposite to what they are intended to do.
I am grateful to the Minister for listening to this debate, and I look forward to hearing what actions will be taken by the Government to begin the process of urgently needed reform. In putting this document before the House, I do not expect everyone to agree with everything in it. I do not agree with all of it, and the Minister for Justice indicated in the other House that he has reservations about part of it. It is absolutely certain that such a document is an extremely useful addition to the material needed for the study of this question and its major recommendations are very much in line with international thinking on the reform of law in this area. The Council for the Status of Women in preparing this document, did not intend it to be a blueprint for legislation. They intended it as a discussion document.
I will, very briefly, go over the main points which seem to be causing the greatest concern. The first one was the medical practices and procedures surrounding the vital reporting stage of the crime. The second one was the absolute need for a ban-gharda and other supporters, friend or relative of the victim, to be available to the rape victim at the reporting stage of the crime. Thirdly, the garda should automatically refer a rape victim to a social worker or other expert help, to help allay the severe psychological problems which often follow a rape, and legal assistance should be available to the victim before the trial in order to familiarise and prepare her for this considerable ordeal. Her statement, made at the time of reporting the crime, should also be available to her well before the trial. Anonymity for the victim must be automatic except in very special circumstances and for the accused unless found or pleading guilty.
The laws of evidence of the trial need to be changed to exclude questioning of the victim about her sexual relations with persons other than the accused, except in very special circumstances to be laid down in law. The definition of rape needs to be widened, because other violations of the body just as damaging are considered less serious. It should be carefully considered whether the jury system is adequate at the moment and whether a single sex jury is a fair trial, given the nature of this crime. The question of rape within marriage must be discussed. At the moment there is no concept here of rape within marriage even if that marriage has broken down. The delay in bringing a rape case to trial has serious implications for the mental wellbeing of a victim and should be considered in a special light.
Given the number and complexities of the issues involved a serious study should be made of all these questions. I hope that the Minister will consider setting up an expert group to report to him on the actual legal changes required, as a matter of urgency, which would go on to consider the wide range of other questions of a medical, social and legal nature raised by so many concerned people. In any such group women from the groups who have proved their concern and their expertise already should be included as well as experts from related areas.
I look forward to hearing the Minister's plans and the contributions from other Senators.