Vol. 91 No. 11
I move:
That Seanad Eireann notes the Report of the Council for the Status of Women on rape.
This motion will be seconded by Senator Alexis FitzGerald, and another supporter is Senator Robinson, who is on her way as rapidly as possible from Sligo where she had urgent business. She hopes to be here before the end of the debate. Shall I wait for the Minister?
We have a Minister.
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.
I second the motion, which is a very proper one for this House to consider and to debate. I join with Senator Hussey in complimenting the Council for the Status of Women, for making the submission which is the subject of the debate.
The crime which is the subject matter of the submission, is among the most horrible types of crime that society has to deal with. If there is any need to improve our laws in regard to that crime, that repair should be made as quickly as possible. Where there are clear defects in the law they should be repaired and we should not await the settlement of questions that might be disputed before making the changes which can be agreed.
Apart from the bitter suffering of the unfortunate victim as a result of the assault, there is the continued suffering of that victim after the assault, caused to some extent by the state of our laws. The most important single defect in the law is that which gives rise to such pain for the victim in addition to the rape. That is the cross-examination to which the victim is liable as to her sexual intercourse, whether with the accused or with other persons, which under the law, as it is at the moment, is permissible to establish the proposition that she was likely to have consented to the rape. If the definition of rape were left as it is, and I am not satisfied that it should be, then I am convinced that the matter of the relevance of the cross-examination of the victim as to her other sexual activity should be entirely a matter for the judge in the absence of the jury, and that the judge should be entitled to hear evidence in any way he likes for as long as he likes in the absence of the jury to satisfy himself that the matter is relevant before that matter goes before a jury.
I am not satisfied with the present situation which arises from the peculiarly grave punishments that attach to the proven rape. Because of rape's definition, which requires proof of this matter of penetration, the victim is put to a very great deal of unnecessary agony additional to the agonies of the experience itself. I would welcome such a change in the law as would give to what I would describe as an aggravated sexual assault—whatever the nature of the sexual offence—the same penalties as attach at the moment to the proven rape. Of course, I agree with the report. I also agree with Senator Hussey on the question of the publication of the victim's name. That is no longer legally permissible in the United Kingdom. To be fair, to my knowledge, or according to my belief, in fact and practice the victims' names have not been published for some years in this country. I may be wrong in that, but I believe it to be so. It ought not to be possible to publish it without that publication being a very considerable offence.
Of course, this is so emotive a theme that it is hard for any of us who have thought about it to make the necessary strenuous effort to be detached and rational in dealing with it, but we must be. It is one thing to try to repair the crime and punish the criminal—though about that, more from me, it is another thing to have an innocent man charged with this crime and have the charge reported against him and his name published. Again, I agree that it is only in those cases of proven rapes, or, as I think, proven aggravated sexual assaults, that the accused person's name should be given.
There is another point, which is the matter of consent; this is the vital element in the crime. This does not, at the moment, have to be proved in the case. Absence of consent is assumed in the case of a girl under 15. A slightly different change may be required here, but, in recognition of the change in the rate of maturation and, indeed, changed sexual mores, in regard to statutory rape, as it is called, this requirement of proof should arise only in the case of children, girls under 13. Of course, I agree—unless there is some objection that I do not understand—that the victim should be given a note of what she said, by way of reminder. There may be general difficulties about this, but I have seen these cases and it is extraordinary how confused people can be. They have to give evidence about a matter, however horrible; events become telescoped; the order of events becomes confused at the time. All of us who have never been through such experiences would need the assistance of an aide memoire, which the victim may never have made, and the gravity of the offence, the nature of the experience, should entitle the prosecutor—as I should call her—to get the assistance of the statement.
I also think that here is, clearly, a case for legal aid and the question of recovery of compensation. It really is the epitome of perversion and the nature of the whole affair seems to turn our world upside down; of course there should be assistance given.
I am very doubtful, notwithstanding the British change, about the wisdom of the jury change. Here I would be open but I feel that there is the possibility that this could be regarded, using the concept which has been used recently by the United States Supreme Court in dealing with an educational case, as a case of reversed discrimination.
I should be less than honest if I did not say that I would be very hesitant about the law intervening within the marriage relationship. Having regard to the nature of a sexual relationship and having regard to the nature of marriage, I would be very hesitant—maybe I would be convinced but I would like to hear a great deal more than a complaint about the different treatment. Of course, if there remains in our laws any element with regard to this which represents continuation of the idea of a woman being the property of a man such an element should be purged from our laws.
The Senator has three minutes left.
I shall end by making reference to this question of punishment, to this question of being a rapist. The proposer has recommended research. I should like to follow up some of the references that Senator Hussey has given to this. This is an illustration of a matter which we should remember—that society is interested in the expression of sex; society is concerned to regulate, in a proper way, its expression. This is an illustration of that.
Senator Hussey mentioned the question of advertising. A much greater question arises with regard to all our easy acceptance of the rather curious consumer world we live in. Everyone agrees that it is right to complain about hard porn, but everyone laughs at anyone who complains about soft porn. I wonder whether, on due examination, some rapists themselves might not be victims of some of the purveyors of that porn. I end with the idea that any further review that is required should be carried out, but any possible agreed change should be made quickly. All the changes on which we may have debates could be left over until the reviews and examinations have been made.
I should like, first of all, to congratulate the Council for the Status of Women on preparing this submission on rape in Ireland and for the thoroughness and care with which they have done the report and their initiative in doing so. I should like to make it quite clear, without in any way anticipating the comments of the Minister, that we on this side of the House fully acknowledge and sympathise with the sentiments behind this submission.
This is, clearly, a very difficult and emotional subject. It is an appalling ordeal for the unfortunate victim of rape to go through. One should emphasise consideration and sympathy in this situation to the actual victim involved and to the family and all concerned.
It also means a change in our general attitude—Senator FitzGerald hinted at this. It is obviously important to have sympathy for the particular victim, but if the climate of opinion, generally, is such that people make jokes and so on, then it is very difficult to translate that sympathy and consideration into effective action for the unfortunate person involved. This is one of the great difficulties in that the person who has been subjected—and let us be clear about this—to an appalling assault, an assault next only to murder itself, nonetheless finds herself virtually the victim of a further horrible experience, one from which, very often, she does not ever fully recover herself. We should be quite clear about the absolute heinousness of this crime.
We are in a great difficulty about matters of evidence. I shall come to some of the medical aspects of this in a moment. As Senator FitzGerald and Senator Hussey have said already—Senator FitzGerald in particular—there is the other aspect to this: that to be convicted, or even accused, of such a crime is, in itself, also something from which that person will probably never recover for the rest of his life. Therefore there is a great onus in any such situation to make sure that an innocent person is not either accused or, worse still, found guilty. This situation, unfortunately, results in almost intolerable circumstances for the victim herself and, possibly, for someone innocently or mistakenly accused. So, perhaps, the burden of proof is particularly important. This burden of proof, of course, is further made onerous by the fact that the penalties involved are, rightly, severe.
In practice—as indeed the council in their report indicate—there is usually a defence to these cases and you have a victim making the statement that she was raped by the given person and the person denying it. You have an immediate direct conflict of evidence. This means that in many cases it is the medical evidence which is likely to be the crucial, effective evidence. Here I should like to agree with Senator Hussey that the gardai and the medical people involved usually show the greatest possible sympathy, and quite rightly so, to the person who is already in the most appallingly distressing circumstances. Again, the medical person has a double responsibility here. He or she has a responsibility to the person who is the patient; he or she also has the responsibility of knowing that the medical evidence given may well be the crucial evidence when the case is brought to trial.
I strongly recommend—although the members of my own profession are very well aware of the problems involved—that, if anything, greater emphasis be placed in our medical schools on this particular matter and on the appropriate procedures to be followed.
The suggestion that such patients should be brought to a hospital's casualty department—although a very reasonable suggestion—is perhaps a little inappropriate, though, in practice, this is often what happens. As Senator FitzGerald has indicated, this is basically a sexual crime and it would seem far more appropriate that, where feasible, such people should attend one of the gynaecological/obstetric hospitals where you have the facilities for more readily available and fully experienced personnel. I suggest strongly that where possible women doctors should be available in these circumstances. It is not always feasible but certainly every effort should be made to see that one is available, as well as a ban-gharda, as suggested.
All this knowledge of procedure, all this sympathy, all this consideration, effectively falls entirely by the wayside if the person who has been assaulted does not rapidly bring the circumstances to the attention of the authorities and go, as soon as possible, for a medical examination. It is tragic and distressing to have a woman brought in, 24 hours, or perhaps 48 hours afterwards, reporting that she has been raped—she may be brought in by her parents—and at that stage, from a medical point of view, it is no longer, often, practicable to provide any definitive evidence.
I would strongly suggest in relation to the victims, that their parents or anyone who is advising them urge, most strongly of all, that they go immediately to the gardai and to have a medical examination. This is absolutely essential, both from the point of view of their own immediate case, to have it dealt with straight away instead of, after an interval of hours or days, having to undergo a second ordeal and, also, from the point of view of ensuring that, in so far as is possible, the assailant is not allowed to escape without due penalty simply because of this lapse of a few hours, or a day or so, on the part of the unfortunate victim.
There is no doubt that this crime, unfortunately, is increasing. This is a world-wide phenomenon and it is a sad fact that it is increasing in this country. I wholeheartedly agree with Senator Hussey where she refers to studies which indicate that only a very small percentage of rape cases are reported. This, perhaps, applies in this country even more than in many other countries, that people are ashamed—or their parents are ashamed—to report this crime. This is very understandable and one must have the greatest sympathy with them. One can only appeal that nonetheless they endeavour to do so, for the sake of other people if for no other reason.
I am very glad to see this motion on the Order Paper and I again congratulate the Council for the Status of Women. I hope that any action that can be taken will be taken in this matter.
In the first place, I congratulate Senator Hussey on having brought this report before the Seanad and, in the second place, I congratulate her on her extremely able speech, her exposition of all the issues that are involved in and arise from the report. Indeed the contributions already made have been very valuable contributions. I hope that the debate itself will bring the issue to the attention of the public at large.
A certain amount of reticence has always surrounded this theme and Senator Conroy very accurately outlined the reasons for it in his speech. We all recognise, at the basis of our thinking on this subject, that there is a psychological notion that there is something disgraceful in being assaulted in this way, that there is some kind of stigma, or shame, attached to being the victim of sexual assault or rape. Therefore one of the things most to be urged is the attempt to try to change the mind of the public on that particular issue because, if it is true that rape is on the increase, and if it is true that most rapes go unreported, and if these two facts are related—and I suspect that they are—it means that, at the very centre of our thinking, at the very centre of our whole community, there exists a huge ambiguity or question mark on the subject.
For instance, when the recent torchlight procession took place, I think that males in our society, by and large, were stunned. They were shocked at the degree of serious vehemence that was expressed by women on that occasion—women of every possible age, social class, education, outlook. It became clear to many people that there is a genuine trauma here; that, at the very centre of our society, there is a fear and a lot of intelligent and sensible, mature women whom I asked on the subject will admit that, in fact, they are afraid; that they are very often, for long periods of the day, afraid to walk the streets, afraid to go between the bus stop and their home at night, even though it can sometimes be no more than a few hundred yards. If this is the case, it reflects a dreadful failure in our society. That failure is related to this notion of the stigma, the notion that to be assaulted thus is, somehow or other, a reflection on oneself. If one brings that fact to its psychological conclusion, it is bound to be due, in some measure, to the manner in which the rape victim is treated by our police, by our courts and by the public at large.
I leave aside the jocose manner in which the whole issue is sometimes treated by insensitive males. Unfortunately, sex is a subject that gives rise to great deal of jocose treatment; some of our best jokes are about sex because sex involves a great deal of incongruity in human relationships, absurdities of all kinds and, therefore, it, naturally, gives rise to jokes. That that kind of helping sense of fun should be extended towards a crime which is so basically repulsive, traumatic and degrading is, again, a reflection on ourselves. However, I leave that important aspect of it aside; it has to do with general current attitudes towards the entire issue of sexism in our society.
If a woman who has been raped is faced with the choice as to whether to report it or not, or to report it quickly so as that her reporting of it can be effective, obviously her decision, her option, will be largely influenced by the panorama that opens up before her if she takes this step. She can see herself being, perhaps, insensitively interrogated by male policemen in a police station. She can see herself squirming in public court while she is being probingly questioned about her whole sexual behaviour in life—in other words, about an area of her life which has, hitherto, been private, and properly so. She can see herself, for instance, being held up in front of her children, perhaps, her parents, her relatives, her neighbours, all the people whose esteem she wishes to hold on to; she may, in fact, be questioned about her own sexual morality and in many cases she may be vulnerable to certain current mores in that respect and she may, as a result, not bring her case to justice, to the courts at all. In other words she may feel that she will lose more than she will gain.
That is a fairly common case; that is almost an identikit of a lot of people who do not bring cases of rape before the courts; they are afraid that the procedures which begin in that police station will eventually subject them to even greater humiliation than they have already suffered.
If this is so, and it is for the lawyers among us to specify and clarify that more—then there is a deep, serious cancer at the very root of our society because if what I say is true, consequent upon that, is the inevitable fact that she will not bring such a case and that the perpetrator of the crime will go free and he will be free to commit it again and again until some woman summons up the courage to bring him to book. That seems to me the most serious aspect of the whole situation. I am not a lawyer but I think this report which is drawn up in very sober terms—it is by no means a polemical document—puts these issues very clearly in front of us. A lot of them revolve around that central issue, the manner in which the victim is gradually treated and finally treated by our processes. In Senator Hussey's summing up she mentioned a number of issues which are worth reiteration, that is that the medical practices and procedures should be reformed and that a climate should be created where a person who is raped should feel an overwhelming desire to have that rapist brought to book and should feel an overwhelming reassurance that she is not going to suffer any further degradation in going about that duty of citizenship. There should, of course, be a woman, a ban-gharda, immediately called, if not immediately on the spot when this procedure gets under way, when the crime is reported. There should be social workers standing by in order to reassure the victim during the lapse between the crime and its being brought to justice and that that lapse should not be long. In other words, the traumata surrounding the case should not be lengthened by the passing of time, and legal assistance should be given before the case and, of course, that the aide memoire to which Senator Hussey and Senator FitzGerald referred be available to the victim.
Above all, the private sexual life of that woman in question should be a matter that is entirely her own business and certainly not, in any circumstance, up for discussion in court. This should even apply in the case of people of notorious character; they are entitled to their secrets too. There should be women on the jury, quite clearly.
Finally the question of rape within marriage. I am, again, a bit at sea with regard to that. Assault is possible within marriage, is it not? Surely a wife who can bring an action for assault against a husband can bring an action for sexual assault against him? Obviously, demonstratively, rape within marriage is abominable and if it is allowed by our laws, it should be very swiftly disallowed.
Many Senators have stressed that this is an abhorrent crime because it inflicts not only injury but indignity. It invades privacy. It subjects the woman to a dreadful ordeal surpassed, as Senator Conroy has said, only by murder. The crime should be seen in its full repulsiveness. We stress its repulsiveness in order to protect the victim, not to cast odium and hatred upon the perpetrators. The person who commits a rape is almost, by definition a twisted individual, a pathological person. A rapist very rarely goes after normal sexual gratification. There is something else wrong with him. He should be very severely punished and in so far as he is entirely responsible he should be severely and publicly punished.
The purpose of law is not to incite hatred against such a person, it is to bring him to book and, if possible, in the long run to reform him. But none of these things can happen unless a climate is created within which the victim can openly, without shame or without any sense of a stigma, bring her case immediately to the police and to the courts and have redress. There is a big job to be done, first, educating the public conscience in the matter, and second, there is a very strong case for the reform of our legal procedures in the matter. It is in those terms that I welcome very enthusiastically the debate on this motion which Senator Hussey has brought before the Seanad.
Like those who spoke before me, I too am very concerned about this problem. When Senator Hussey raised this in the House last week and asked the Leader of the House when he intended to have the motion discussed, she said that everybody on the other side of the House was very concerned about it, and that she had tried to make it an all-party motion. One of the things that interests me is why Senator Hussey did not approach any of the women members of Fianna Fáil. I, for my part, would have had no objection to having my name listed under that motion calling for the Seanad to note the report of the Council for the Status of Women.
Like those, too, who have spoken before me, I would like to congratulate the Council for the Status of Women for drawing up this report and for giving us an opportunity in this House of having it discussed. I would like to congratulate the Government, and in particular the Minister, for coming along today and giving us an opportunity of discussing this very important subject which we are all concerned about. Rape is not merely a sexual crime but is a violent crime. It is a crime against our society. Fathers, as well as mothers, are very concerned and affected if their daughter is raped; a brother is as concerned if his sister is raped, as is another sister. Therefore, it affects all our society. It is something we must spare no effort in trying to resolve and to come to some kind of solution.
The present law in this regard is in urgent need of reform. Our archaic system inflicts terrible trauma on any woman who has been raped. In discussing this subject we must look at it in a reasonable way to make sure that justice is done to everybody. I do not think any fair-minded and reasonable person could in any circumstances—and that includes circumstances within marriage—condone rape. The popularly held myth, which thankfully has gone, that a woman by her dress or her behaviour could provoke a man's sexual urges to such an extent that he lost normal self-control, does not exist any longer, and rightfully so. Neither do I believe the myth still exists that a woman was a man's property. In so far as it is still in the Statute Book in relation to criminal conversation, it is time that, too, was removed.
Senator Hussey quoted figures from the London Crisis Rape Centre and the FBI in America which showed that the vast majority of rape cases are planned; 51 per cent of those reported are carried out by a man on his own; 87 per cent are carried out in pairs and 91 per cent are gang rapes. Another interesting figure which she quoted was that 50 per cent of the women who were raped were known to their attackers. These are interesting statistics. It is unfortunate that we do not have similar statistics about the incidence of rape and the type of people who are involved in rape in this country. As the report so rightly points out, in Ireland there is no statutory definition of rape. It is defined in common law as having unlawful sexual intercourse with a woman without her consent, by force, fear or fraud. Lack of consent then constitutes the essense of the crime. But contrary to a popularly held opinion, a woman need not show signs of injury or always resist physically before there can be a conviction of rape. The prosecution in rape cases must be able to establish that the act took place with force and without the consent of the woman.
Senator Hussey rightly pointed out, and those who have spoken drew attention to it, that very few cases in Ireland are reported. Whilst the figures available at the moment show that in 1976 there were 32 cases, in 1977 60 cases, in 1978 48 cases, one might misleadingly draw the conclusion that the incidence of rape was on the decrease. On the contrary, as Senator Conroy rightly pointed out, and most doctors will tell you from their experience, the incidence of rape in this country is rising rapidly.
After the trauma and brutality of rape, few women can or want to face the ordeal of Garda investigation and possible court procedure. It is a horrifying thought to have to go through a system of answering very personal and embarrassing questions. No matter what system we adopt, I do not believe many people will ever be forced to report the cases. That is the unfortunate thing about this. We must try to draw up some framework whereby women will be encouraged and helped in every way and that it will be made much easier for them to report these cases. One thing that would help would be if court cases were held in camera. I believe this would cause problems with the jury, because already there are 12-man juries, members of the public, who would listen to the case. If there was no report in the newspapers, if a person's name, be it the victim or the rapist, was not used it would make it much easier for people to report the cases.
Like any other crime, the normal rules of justice must always apply, and that is that a person must be innocent until proven guilty. Every person should have the fullest possible defence in a trial. I would not be in favour of any recommendations that would in any way curtail evidence. All the circumstances surrounding the rape must be taken into account. We must, like in all other crimes, protect the rights of the accused as well as the rights of the victim. There are times when certain questions may be relevant regarding the relationship the woman had with the accused. Senator FitzGerald made the point that perhaps some questions relating to the victim's previous sexual experience may be relevant and that this should be heard by the judge in the absence of the jury. I would go along with that.
Justice has to be done and justice must be done to the victim and the accused. This is a criminal offence. It is second only to murder. For that reason we must be careful that everything is taken into account in the evidence and that no innocent person can ever be accused of rape. The penalty for attempted rape, which at present is five years, should be increased. Many people, when talking on this subject, have called for changes in the definition of "rape". This is such a strange crime that a precise definition would be very difficult. It would be impossible to keep to a clear and explicit definition. A jury must be allowed to apply commonsense to the situation. If there is a precise definition the jury will probably end up thinking like a computer.
The Council for the Status of Women have given us an opportunity of discussing this very important subject. I know everyone involved in politics is very concerned about it. Changes in the law to protect women against sexual assault are necessary. I also believe that any changes that are brought about must help the victim, somebody who will never get over it. It is something that is with her all her life. It has very permanent effects and for that reason our whole attitude in society to the question of rape should be examined. There can be no doubt that the nature of the trial, the delay in the trial, the fact that the woman may not have a copy of her statement are very relevant. It is also very necessary that a bangharda be called to investigate the crime.
A group of voluntary women set up a rape crisis centre in this country some months ago, and now the time has come for something along those lines to be set up by the Government. It is not sufficient for a voluntary body to have responsibility for helping women in situations like this.
The time has come for our society to examine the problem of rape, to examine our attitude to it and, in particular, our attitude to rape within marriage. There can be no doubt that somebody who commits the crime of rape is obviously very sick, mentally disturbed. It leaves an effect on a woman that she will never get over. Reforms and legal changes are necessary, and as a society we must educate ourselves to this problem. It has been with us for a long time and we have been reluctant to discuss it. I welcome the opportunity given to us by the Council for the Status of Women and by the Government in having it discussed here today.
This debate will make a vital input into any new legislation on this subject that is brought about by the Government. For that reason it is important that it has come at this time. I look forward to what the Minister has to say. He is very concerned about this subject. I hope that in the not too distant future it will be easier for a person to report a case and that she will get every help and encouragement. I hope too that our attitude as a society as to why it happens and what can be done to help the victim will change. I think that is important. In cases like this we need not necessarily talk about punishment; we must also talk about reforming, rehabilitating and helping the rapist in every possible way. The Government should set up something along the lines of the rape crisis centre which was set up some time ago. That, I believe, would go a long way to help to solve these very difficult, serious problems that will only get worse in our society.
I feel a great personal gratitude to the people who put down this motion, for a reason that I ought to put on the record, but it is also a reason I am ashamed of. When they put it down, I read the report of the Council on the Status of Women and subsequently I read the first report of the Dublin Rape Crisis Centre. I am ashamed to say that at my age the things that were in those two documents in regard to the extent of the legislative frightfulness of this island came as a surprise to me. I should have known; I did not know. I would therefore draw this conclusion, that there must be a lot of other people like me. I could not too highly commend to people in Ireland, perhaps men more than women, to read more especially the first report of the Dublin Rape Crisis Centre which is on sale at a cost of 75p, and which I look on as an extremely important document. I feel a sense of shame in many ways because as legislators we often feel that we ought to be defenders of the laws; we make them, after all. But how can one defend this law, and how can one urge respect for this law on any members of our society? Shame, I think, that this sort of legislation could have continued to exist in our society. It was not first put on the Statute Book by our society, but it was by our society suffered to continue here. I do not want to talk about the law in detail. I have heard extraordinarily good speeches and there is very little I disagree with in them, and I will indicate some minor disagreement in relevant places.
I do not, therefore, want to talk about details of the reforms. The Minister is here and I believe we are going to have some legislation. I do not want even to talk very much about the individual victim of rape; it has been done well by others. I would simply say this: my belief is that the effect of rape lasts forever on the person raped, and that the greater damage is due to the social attitudes afterwards. Therefore, in that belief, I want to talk about wider aspects. I want to talk about rape and rape legislation as they affect the relationship between the sexes. I want to talk about women's equality; I want to talk about women's self-image; I want to talk about the liberation of women, because present legislation is a major barrier to it. It does not, therefore, simply affect the relatively small number of people, much more numerous than statistics indicate but still the relatively small number of people, who are raped; it affects absolutely everyone, all women and all men. There is a saying that I often quote, that I believe to be true and that I approve of, which says that a nation which oppresses another can never itself be free. The corruption that arises from that oppression, the corruption of all aspects of society, inhibits the full development of the individuals in that society. I believe profoundly that that is true. I believe it is also true that the sex which oppresses another can never itself be free. I believe that men do oppress women, and I believe that that is a barrier not just to the development of women, but to the development of men also. I believe that anything men may do in this area is not a matter of fairness to women, or of conferring benefits on them. It is a matter of having the sort of society in which all the people, men and women, can develop fully.
I have another sense of shame. The original report that brings this to our notice, and which we are debating, is from a council for the status of women, because it is necessary for our society to have such a council, and the people doing it are women. I would be prouder of my sex if there had been some male activity in the bringing of these things to the attention of the Oireachtas. Men should want the liberation of women for men's own sake, and for the sake of our species as a whole, as well as wanting it as an act of justice for the sake of women.
These ideas are not new. The three words that were the slogans of the French Revolution were liberty, equality and fraternity, but we have only started to think very recently in the relationship between men and women of what liberty and equality mean. That thinking about it has found no expression yet in law. It seems to me utterly appalling that in law—and I did not know it—that women were regarded as property in this way. It seems to me totally appalling, for example, that a man cannot rape his wife. We cannot pass by without reference to two important sectors of society. "What were you doing all these years, because this was your responsibility?" We cannot pass by without saying that to the legal profession. They knew the law and every new law student was taught it. Why did the legal profession, collectively, say nothing about this for so long, and why did the churches say nothing about it for so long? I have to ask that question. The law has a significance, apart from the people who are subjected to individual crime, that extends through the whole of society.
In this first rape report mention is made of lynching. Lynching does not only affect the person lynched, whom it affects most profoundly by putting him out of the world, but it affects all the members of his peer group, and that is what it is meant to do. It is not meant to kill one individual on that day; it is meant to intimidate all the individuals in his group. The same thing applies to terrorism. Rape is a form of terrorism by men against women, and rape affects the relationship of all women to all men, and vice versa. It is not universal in nature. We happen to be a species where there is sexual dimorphism, where men are bigger than women. If you make allowance for the extra fat that women carry, for good biological reasons, men are considerably stronger than women. So the possibility of rape is continuous.
We have, for reasons into which I do not now propose to go, a whole series of fictions about the sex relations of men and women, one of which is that the pleasure is one-sided. The sex-drive is similar in both sexes, though in our culture the rate of arousal may be a little different. I believe the one-sidedness is a fiction and the only real definition of rape liberty is total freedom of both parties to choose freely—will I or will I not—with equality. Therefore the definition of rape given in the first report is the right one—any sex act without the will of both parties is rape. I have not quoted the words accurately but that seems to be the sense of what they say and it seems a correct definition.
We have a desperate need to improve the relation between the sexes in all sorts of ways, and, perhaps as important as any, is in its specifically sex aspect. I believe intercourse is a positive good and anything that makes an atmosphere in which it is loving and trustful and cementing stronger is a positive good in our society. Our rape laws have the opposite effect. We cannot have a good relationship between the sexes, let alone a healthy institution of matrimony, which I am amazed has endured as much as it has for so long on the basis of a property relationship, as long as a wife is regarded as property from the point of view of her non-rapability. Or on the approach which says that if it is somebody else's wife who is raped the damage to her is as the property of her husband. Or on the approach that if the victim is nobody's wife at that moment her potential value as a future spouse will be diminished.
I am totally appalled by the gradations that exist in our law that say "you cannot rape your own wife and it is an awful thing to rape someone else's wife, but if it is a prostitute who is nobody's property except for 15 minutes at a time for a cash consideration, then it is all right to rape her". That seems so outrageous and so at variance with the attitudes we profess so busily, as to make real equality and real trust between the sexes almost impossible.
Contrary to what some other speakers said I do not think rape is all that much about sex—the actual practice of rape. The nice comforting male myth is that of a passionate randy man, that it is a good man's fault and all that sort of thing. I do not know enough and I have not read the bibliography given here or elsewhere but it seems to me to be about domination, power, humiliation, about forcing the oppressed half of the population to conform to a stereotype. Senator Martin says that very many women are frightened. That is right. Most women are frightened. The real social damage is precisely that fright which extends and that diminution of self-image.
I heard talk about due penalty, and I hope I do not misquote here, but Senator Harney emphasised the side of rehabilitation. I am not much interested in punishing people as punishment. I am extremely interested in two things—the rehabilitation of the wronged, the damaged and the injured, and the prevention of such wrong. We are told that this crime is increasing. I am not an expert on the statistics but I allow myself to wonder if that is true. I have no doubt that the reporting of it is increasing. I have also no doubt that it might increase ten times, perhaps 100 times more if we only told the truth about it. There are certain things we know to be widespread in this island that are so awful that we do not report them at all because the whole question of incest is almost untouchable, almost unmentionable, although we know it is widespread. This violence is a sub-category of rape in many cases.
I do not think that the punishment as punishment is very important. We must have the laws changed; and in this I agree very much with Senator Martin who talked about the stigma that attached to the victim. It is because of that stigma that the power to destroy the person's life exists. If there were a different social attitude, particularly on the part of men, then the awful effects would echo down the decades of the raped person's life very much less. It is important to change the law because it is a beginning to changing the social attitude. It is important to change the law so that many more people come forward so that the truth will be told about it, so that we can get changed social attitudes and carry out as much prevention as possible in terms of shutting out of the possibility of doing further damage by people who have done this once already.
Rehabilitation is important, and the generation of social attitude is important. Change of legislation is useful in that regard, but I see this as something which is, at its widest, an act of warfare by men against women, which is not the act of madmen. Often it is the act of quite normal people, but people who are determined that women shall conform to a received stereotype of inferiority, of people who feel themselves so inadequate, so weak and so threatened that they are determined that women shall not be permitted by our society to reach a position either of equality or of liberty. We will not get liberty or equality for women by changing the law, but we will make a small contribution towards it by so doing.
Early in this report there is a definition of rape. It is defined as "having unlawful sexual intercourse without consent by force, fear or fraud". Rape is a combination of two things, violence and fornication and as such, must be one of the most reprehensible crimes in the catalogue of crime. For most of my teaching career I have been in charged of a mixed school. We had boys and girls, brothers and sisters, neighbours and friends. When I would read in the newspapers of another case of rape, the tears often came to my eyes as I looked at my children and said: "Maybe some day one of you will be waylaid on your way home from school, from business or, when you are settled down and married, on your way home from a shopping centre, or you may be assaulted even in your own house, if you are living alone." Everything that can possibly be done to prevent that crime should be done.
There is a big deficiency in the report inasmuch as the people who prepared it did not seem to look for the causes of rape. Senator Alexis FitzGerald gave a hint of what was in his mind regarding the causes of rape. Rape is committed by a male with the object, the intention of, firstly, fornication and, secondly, since consent would not be given, he uses violence, fear or fraud.
In the society we live in, many men, some of whom have not got a complete moral training, or have very little self-discipline, are encouraged to commit this crime. We seem at present to have a glut of suggestive journals, books and pictures both in picture halls and on television and plays. People of weak will with sexual tendencies are roused. They see that fornication is accepted by many people as a norm and as a natural way to live and to conduct themselves. Since they do not have opportunities of seducing or committing fornication with a female they use force to do so.
Many rapists are not, as somebody suggested, people of slanted minds or of mental deficiency. They are normal people who make up their minds with complete deliberation beforehand as to who their victim will be and where they will waylay her in order to commit this terrible crime.
The crime of rape is on the increase. The figures prove that, and I have no doubt that there are many more cases that are not reported at all. The experience of a woman who has undergone this terrible ordeal is bad enough without having to make statements, almost in public, in order to get some sort of redress. That is the first point I want to make. It is a pity that the people who made out this report did not have a look at what was possibly the cause of rape. Rape is on the increase so it must have something to do with the changing society we are living in. Morals are not what they used to be.
On the summary of recommendations at the end of the document it states under paragraph 3:
The Court should forbid any question as to the chastity or general sexual disposition of the complainant nor should the Court receive any evidence in respect of these matters.
Furthermore, the complainant should not be cross-examined as to her sexual activities other than with the accused, and no evidence should be admitted as to the sexual activities of the complainant other than with the accused, except by leave of the court.
I cannot go along with that suggestion good, bad or indifferent. These things should be questioned because there is always the danger that a person completely innocent of the crime of rape may be brought to court. There are people in our society who would bring a person to court. We all know that. Some Senators have already made that point. They suggested that the judge should hear all this evidence even before it goes to the jury.
I was surprised when reading page 2 of the report that, in law, rape is akin to an offence of theft and trespass and that the law reflects the fact that women are socially and legally the property of particular men, their husbands and fathers. That may be in law, but in the Ireland we have been used to, no such circumstances ever existed. One had the husband and wife in a social partnership living in love and harmony with each other. I have never come across any other case so far in my life, and that is the way it should be.
If legislation is to be introduced or if amendments are to be made those who frame such legislation should bear in mind that something should be done to improve the environment in which we live as far as provocation to sexual assault, to intercourse or to sexual activity outside of the sacrament of matrimony, is concerned.
Confession is good for the soul. I could not be accused of lack of interest in the social area, but like other politicians I have not taken sufficient interest in this social evil and I confess that I should have. In the humdrum of affairs in the general political set up, very important things escape one's complete attention even though one has some appreciation of them. Since I read the submission from the Council for the Status of Women my concern about the problem has been generated. I would like to contribute in whatever way I can to see what can be done to help in this area. The Labour women's national council made reference in their submission to the administrative council some time ago to rape. They said:
The massively destructive impact on the individual victim of rape has traditionally been underestimated. There has been a tendency for society to defend against identifying with the victim and rather to denigrate her. The majority of women are now emancipated to the point where they readily identify with the physical and psychological insult of the crime and express their indignation accordingly. There is reason to believe that the forces of law and order have coped ineptly and insensitively with this problem and it is time for the State to react accordingly and provide a rape crisis centre from public funds, and to ensure the adequate education of public servants in coping with the victims and the circumstances of rape and domestic violence.
That brings me to the question of the crisis centre that has been set up. The fact that intelligent people decided to set up a crisis centre means that the circumstances have become so aggravated and intense that it was necessary for them to sit down and talk about what they could do in a specific and urgent way to deal with the problem of giving the victims of rape help and support. There is a fund of goodwill from lawyers, psycho-sexual counsellors, the Garda, psychiatrists and social workers. Generally speaking the vast majority of them backed the idea of the crisis centre in the sense that it is better to be counselled by one's peers than to be immediately steered off to professional help. They believe it is healthier, and I go along with that point of view.
The problem is a very severe social one. It does not matter what statistics one produces. There can be reasons—I will give examples later on—why no charges are made or there can be incidents where people do not like to pursue the charge. Consequently, the crisis centre is a place where they can go which will help to alleviate their distress. This also refers to people who are not immediate victims of rape but who may have been raped three or four years ago and did not feel like making charges. The rape may have occurred by a husband, a brother, a relative or even by a father and, consequently, the fear of retribution in the family circle plus the other psychological effects may have prevented charges being made.
We cannot have any real statistics about the extent of rape. We can only hazard an informed guess. The crisis centre will know the extent of the problem but they may not be able to convince the nation as a whole. The centre has been created out of a need like ever other organised group in society—to help the victims of rape. If we acknowledge that that is true then we, as public representatives, must recognise that these people should not have to create their own funds. The idea of it being voluntary should not be departed from. That is absolutely necessary in this kind of social service. I do not think for one moment that the Government or public representatives can opt out of it. We must opt into it. Running alongside their own endeavours to create funds by flag days and other means the Government and public representatives must be seen to give their attention to a greater extent to dealing with the problems that the crisis centres are facing.
I did not go into the details of the actual effects of a rape on a woman. Most speakers have covered that area. There is a cause and effect situation. In order to deal with the effects of the cause it is essential that we bend our minds to the whole concept of counselling by peers. We should also make up our minds that the centre delivers a very good service and that we have an obligation to supplement that service. It is easy enough for women to talk about what they would do if they happened to be in a rape situation. The fact is that many women would not take the course of action of going to court and would have to fall back on the crisis centre. That is where it is much more important than the law. I know the law needs changing and updating, particularly when one reads cases where something happened and nobody was charged. It raises the hairs on the back of the head but, at the same time, that is not the most important aspect. It is an aspect that has to be looked at but the most important aspect for the moment, until we can deliver statistics and so on in this area, is the crisis centre.
From my brief experience and having read this report from the Council on the Status of Women and one or two other items, the law is not certainly the immediate answer. There is a crying need now for the social services that these people provide. We should do everything to help them to gear themselves towards relieving the stress that is inflicted on people who are the victims of rape. The law cannot remove the emotional damage that people experience as a result of rape. The crisis centres must be given as much attention as possible by the relevant Government Department. I make that appeal very strongly.
We all know the strain and pressure we are under about a Bill coming before us or some other thing. If we can translate that into the thought of what the strain must be on a person who has been a victim of rape then we will be going a long way towards trying to reach the point where the crisis centres will become a very important part of the infrastructure of society.
With regard to pamphlets and so on, the crisis centres need a lot of help. They need a lot of help in trying to educate people generally, providing counsellors and in relating one experience to another and so on. Philip Molloy in The Irish Press on Monday, 27 November 1978 wrote about an incident where a girl was held for two days. She took a taxi, was set upon by two men, concealed in the car, kept for two days and raped repeatedly. She was given tablets to keep her quiet. No charges were made in that particular case. This gives emphasis to the value of the crisis centre. A girl of 15 was picked up at a shopping centre by two men, she was brought to a guesthouse where she was repeatedly raped by both people who picked her up. Again, no charges were made. Counselling services are becoming most important in dealing with the question of rape.
The evidence that rape is on the increase is there by virtue of the fact that people found it necessary to come together to help victims of rape and to form the crisis centre.
I am grateful to the Senators who contributed to this very important motion before the Seanad. I would also like to take the opportunity of thanking the Senators who put their names to the motion and also the people who, after all, in the first instance gave us the opportunity of bringing this matter to the attention of the Oireachtas, the Seanad in this instance. That is the Council for the Status of Women. I am grateful to the Seanad for giving me the opportunity, however briefly, of contributing to the debate on this very important submission, and for giving me this opportunity to comment on a number of points in relation to this matter. I welcome the document. The Government welcome the document. The Minister for Justice welcomes the document. Naturally this is an area which requires a very deep study and there are aspects of the proposals in the document which would have to be examined in considerable depth.
The document makes a number of important and significant points and also serves the purpose, as has already been stated by those Senators who contributed to the debate, of bringing the subject matter of the submission by the Council for the Status of Women to public attention. As has been stated by Senators, rape is undoubtedly one of the most heinous and gravest of crimes known to the legal system. As Senator Conroy said, in his pithy and succinct contribution to this debate, rape could be placed next to murder in the litany of heinous crimes as recognised by civilised communities. It is a social evil. It is a social evil that discriminates against one section of the community, namely the female section of our community. Under all the circumstances, anything we can do as a Government and anything we can do as a Legislature, the Oireachtas, to bring to an end this social evil as a matter of urgency should be done.
Senators, because of their own experience of debate on legislation, will be very much alive to the fact that one cannot simply adopt a report such as this particular one and proceed to draw up legislative proposals based on it. The report from the council has much merit and, as Senator Hussey, who is one of the proposers of the motion, herself said, she would not expect the document to be uplifted and translated into legislation. I think that is a very responsible and proper approach. I do not think, for example, that the authoresses of the report, namely the Council for the Status of Women, themselves would expect that the report be translated in toto into the legal system. I do not think that is what they intended. What they intended, as I interpret it, is that the matter be discussed by those people whose responsibility it is on the one hand to improve the social attitudes in relation to rape and on the other hand to update legislation which might make the legal atmosphere better. Proposals for changes in the law must be examined critically by various people and in this regard I would like to say that examination of the proposals is going on apace. Since the proposals came into the possession of the Minister for Justice he has instructed the members of the Department of Justice who are charged with examination of this important document to have it examined also by various other persons who would be concerned about the desirability of the proposals in the document. For example, the views of people experienced in the practical operation of the law have been sought, the views of medical practitioners have been and will be sought, since they are the people who are in the first instance concerned with the victims of this dreadful crime. In the final analysis the Oireachtas in their own wisdom or otherwise are not bound to accept the views of practitioners or, indeed, of any group, but it is essential to have the views of at least some persons experienced in the practice of the law and some persons who have experience in dealing with the victims of this dreadful crime perpetrated against the female species of our society, to use this expression with respect.
What has emerged is that there is a general consensus amongst Senators that any changes in the law of rape must be changes that would improve the protection of women against sexual assault and, if proposals for changes are not critically examined in the way I have just mentioned, I believe that there is a danger that we could introduce changes that could have the opposite effect to those which were intended. That is a danger that must be guarded against. Senator Hussey suggested that maybe the answer to the problem as a matter of immediacy is that the question be handed over to a committee. This proposition will be examined. On the other hand, I believe that we as the Legislature, and the Government in particular, have an obligation to study the matter as we are doing. If it is then found that it is necessary to make legislative changes it will be a matter for the Government to introduce such changes as a matter of urgency.
Senators in general and particularly Senators who are personally involved in putting down the motion will naturally be impatient that this work should be brought to a conclusion as soon as possible and that any legislation found desirable should be brought before the Oireachtas without delay. I can assure Senators who have proposed the motion and the Senators who have expressed their concern as to the urgency of the matter that there will not be any avoidable delay. If there are problems, and undoubtedly there are, found at the conclusion of our inquiries which require curing they will be cured, and urgently.
The Council for the Status of Women said that the incidence of rape in this country is increasing and in support quoted figures of cases reported for 1976 and 1977. It is not my intention to enter into a statistical analysis of the figures and indeed I agree substantially with the council when they say that the statistics are not a reliable guide to the incidence of the horrific crime we are discussing. The figure for 1978 is lower than that for 1977 and, as Senator Jack Harte has so wisely and properly observed, figures do not reflect the hardship caused by this dreadful crime. They do not prove very much except that there were fewer reported rapes last year than there were the year before. The figures are very statistical. They do not tell a story that a woman was savagely raped. They do not tell of the humiliation of the subsequent medical examination. The figures do not tell of the harrowing prospect of the victim waiting for her case to come into the law list and be subsequently dealt with in the courts. This must be a very desperate trauma for the person concerned. These are some of the matters that the statistics do not show. They are cold statistics, but they are nevertheless ascertainable statistics and they do prove that the number of reported cases for 1978, which was 48, was less than for 1977, which was 60; for 1976 it was 32 and for 1975 it was 38.
I must confess that this is entirely an unresearched view but it would seem to me that the proportion of cases reported to all cases may be higher in recent times than was previously the case. Senator Martin has said and others have observed that people are becoming less inhibited about bringing these dreadful assaults on the person, in this instance rape, to the attention of the police and this is as it should be. I make that point in an unresearched fashion. I do not know whether it has that much basis in fact.
I would like to make one general point about the examination which I mentioned at the beginning of my speech and of which the submission by the Council for the Status of Women forms a part. Most people agree that not only in Ireland but all over the world the law has for centuries reflected the seriousness with which society has regarded the crime of rape. It must continue to do so in the future. But it should be made clear that, as Senator Keating observed, the law does not hold the total solution to the problem of rape. At the end of the day any changes which we may introduce in the criminal law are unlikely to have any great influence on the extent of the social ill which is summed up in the word "rape". I am not saying this as an excuse for failing to introduce any changes that hold out a reasonable prospect of being beneficial but what I am saying is that it would be wrong to give the impression that simply by introducing changes in the criminal law we can alter radically criminal behaviour. This is true of all crime and not merely that of rape.
The debate can only assist in bringing about a greater public awareness of the subject of this motion. There are a number of points which I personally would agree with in the document prepared by the Council for the Status of Women. I believe, for example, that the complainant should receive a copy of her statement some time before the trial. The document prepared by the council suggests a week and the copy has been described by some Senators as an aidemémoire. This is a realistic proposition. It is a proper proposal because after all the time between the alleged rape and the time when the case is eventually heard is quite considerable and an aidememoire to refresh her memory is not unreasonable in the circumstances. I would agree with the anonymity proposal in the document that complainants' names should not be published and that the name of the accused should not be revealed until such a time as the case has come to its conclusion and he is found guilty.
Senator Alexis FitzGerald in his submission spoke in relation to the cross-examination of the victim. This is an area where I would agree with the views of the Council for the Status of Women and agree with the general observations made by Senator Alexis FitzGerald. The Senator made a number of points in relation to the fairness of the cross-examination, but I think it is only proper to say that in all circumstances the courts protect the complainant against any injustice which might be worked against her by the cross-examining lawyer.
These are a number of points where I would find general agreement with the document. There are a number of areas where, subject to further examination, I would be in disagreement with the persons who prepared this excellent paper. One is in connection with the suggestion about women on juries. One can only query the constitutional merit of the selectivity recommended in the report. I would refresh Senators' minds in relation to the case of de Burca v. Attorney General [1976], Irish Reports, page 38. The council's submission calls for a balance of the sexes and for the number of women on juries to be increased. As we know the case of de Burca v. Attorney General decided that women as a constitutional right should serve on juries. Any limitation of that right or any extension of that right would, in my respectful opinion, be found to be unconstitutional. So in all the circumstances a suggestion that there should be more women would, as I say, be under the hazard of being found unconstitutional, and this is another un-researched offering of mine for the delectation of Senators and others who are interested in my views on the matter.
There is a reference too to the fact "as the prisons are very full it is very likely that he will be on bail". The reason the accused person is on bail has nothing to do with prison accommodation. Again these are ascertainable legal facts. The Supreme Court decided that only if the accused might fail to appear at his trial or might interfere with witnesses could he be refused bail. In all the other circumstances he would, of course, be entitled to bail. It has nothing to do with prison accommodation. Maybe it is the bail rule that is weak but it certainly has nothing to do with the question of the fullness or otherwise of prisons.
So in conclusion I welcome the submission referred to in the Motion, and I can inform the Senate that its contents are under the very closest and most sympathetic examination at present. This examination, however, cannot and certainly will not be rushed in the circumstances. When it is complete, the Government will take the necessary decisions without any unavoidable delay. For anybody to suggest that the Minister for Justice is not concerned about the submission which is the subjects of this motion, would be grossly unfair and unjust. The Minister is extremely concerned about the matter and in all the circumstances is dealing with the problem highlighted by the document from the Council for the Status of Women as a matter of considerable urgency.
The mover of the motion is due to conclude at 8.15 p.m. and three people have indicated their intention to speak. I would ask Senators now to bear in mind that three Senators must split half an hour between them.
Like Senator Keating, whom I am glad to see back amongst us, what I find particularly horrifying about rape is the domination and humiliation aspect of it, the deliberate assault on human integrity and dignity and the permannent scarring of the victim's psyche involved. I read, therefore, with sympathy the report of the Council for the Status of Women and I am grateful to the council and to Senator Hussey, who presented the issues here in a very fair and balanced manner. The council has established a case for the reconsideration and reform of both the procedures and the law relating to rape. I support the principle of anonymity for both parties, complete anonymity for the victim, an anonymity to be broken only in the case of the accused person when the verdict goes against him. I was glad to hear the Minister support a similar principle a moment ago. I was also glad to hear the Minister say that he thinks, as I do, that the victim in this sort of case ought to be given a copy of her statement or an aidemémoire at a very early stage.
At first sight—and we are only giving our initial reactions here—I see nothing unreasonable in there being a minimum of four persons of either sex on juries in rape cases and, with some qualifications, I would support an extension of the protection of lack of consent.
Indeed, I am inclined to go further than the council in one respect—that is in relation to the defence that the accused believes the woman was consenting. I was surprised, as was Senator Harte, by many other facts which I have not been aware of in relation to the incidence and social effects of rape. I was surprised to find that the law at present does not require that a belief that the woman is consenting should be based on reasonable grounds. If I read the report correctly that is what is stated, and I do not see personally why the law should not be changed to make such a belief dependent on reasonable grounds in order to be a successful answer to a charge of rape. Such a change would be consistent with the British House of Lords judgment that recklessness as to whether the woman was consenting or not is a sufficient mens rea for a conviction.
In the case of married persons living together, my view is that there should be a virtually impregnable presumption of consent. The presumption should be capable of being knocked down only on proof of inordinate force or intimidation. I do not accept the contention of the council that the rationale of the Hale rule, which they quote, and Senator Hussey quoted earlier, can, as they say, “have no place in modern society”. This contention is too far-reaching and seems to ignore completely the substance and purpose of the marriage contract. The obligations freely assumed apply evenly to both parties in that contract.
I am not convinced, either, that the law should exclude all reference to previous sexual behaviour of the complainant or of the accused—at least all previous unlawful sexual behaviour. But I would be quite content to adopt a suggestion by Senator FitzGerald that the giving or allowing of such evidence to go to the jury should be a matter for decision by the judge in the absence of the jury, provided it was taken into account later in determining the gravity of the offence and the penalty to be imposed.
In view of the shortage of time I will now conclude by saying that I am very glad that this matter has been opened up to debate and to find the Minister so receptive and I would like to express the hope that this debate will lead to appropriate and reasonably early reform, both of the procedures and the law in relation to rape.
There are times when the Seanad performs a unique and important function, by providing a forum to debate a serious social problem which may not be in the forefront of immediate political priorities. This evening is such an occasion. I commend Senator Hussey for tabling this motion and for campaigning publicly and privately for time in the Seanad to have this debate. In doing so the Senator has understood one of the important aspects of the Seanad, that it is not merely a reflection or duplication of what happens in the other House.
I join with other Senators in welcoming the opportunity to reflect on and comment on the Report of the Council for the Status of Women. I drove 150 miles this afternoon in order to be here to participate in the debate. I am glad to have reached the House in time to do so.
I will refer briefly to the report and to its recommendations. Before doing so I will quote briefly from the report of the British Committee which was established following the Morgan case to examine the implications of the Morgan decision and to make recommendations. The Advisory Group on the Law on Rape was established by the Home Secretary in July 1975 with the following terms of reference:
To give urgent consideration to the law of rape in the light of recent public concern and to advise the Home Secretary whether early changes in the law are desirable.
I quote from this report because it states very succinctly and in a balanced way some of the peculiar features of the crime of rape and the way in which we should approach the various problems that it gives rise to. This report also states:
9. However, the crime of rape does raise particular difficulties and this for a number of reasons. It involves an act—sexual intercourse—which is not in itself either criminal or unlawful, and can indeed be both desirable and pleasurable.
10. Whether it is criminal depends on complex considerations, since the mental states of both parties and the influence of each upon the other as well as their physical interaction have to be considered and are sometimes difficult to interpret—all the more so since normally the act takes place in private.
11. There can be many ambiguous situations in sexual relationships; hence however precisely the law may be stated, it cannot always adequately resolve these problems. In the first place there may well be circumstances where each party interprets the situation differently, and it may be quite impossible to determine with any confidence which interpretation is right.
12. Secondly, although in a criminal case it is the accused we have on trial, there is a risk that a rape case may become, in effect, a trial of the alleged victim.
13. Thirdly, whatever the outcome, the very fact of having been involved is liable, at present, to have embarrassing or even damaging consequences for the woman.
Then they describe their approach to the problems:
14. One further general consideration perhaps hardly needs emphasis, namely that we should always have in mind the vital and fundamental rights of an accused person to have a fair and impartial trial. Whilst attempting to rectify any balance of unfairness to the complainant or the alleged victim, we must ensure, so far as humanly possible, that no innocent man is wrongly convicted. We further believe that it is highly undesirable that guilty men should be wrongly acquitted. If there are defects in the law which contribute to either, they ought, in our view, to be changed.
Indeed, that committee made a number of similar recommendations to those contained in the report of the Council for the Status of Women. That extract shows some of the complexity in the situation. One of the problems which has become a central social issue is the fact that in reality the victim of rape is very often in a position where the fact that she is a victim of rape, and that she is a witness in the prosecution of somebody for having committed a criminal offence, renders her liable to a continual process which can only exacerbate and aggravate her feelings and sense of the assaults committed upon her or the invasion of her bodily integrity. There is now an awareness that the whole approach to rape has been based on values and concepts which are no longer acceptable. It is one of the constructive and fruitful products of the women's movement, in a broad sense, that this area has been properly highlighted as an area which causes great injustice and suffering in a significant number of cases to the victim of rape.
For too long this area did not receive any degree of concentrated attention or research from either lawyers or academics in law schools. This balance has, to a certain extent, been righted not by professionals so much as by concerned women and women's organisations who have prepared and compiled the homework. They have used expertise in doing so. The Council for the Status of Women used a number of legal experts in compiling the report but the initiative and drive to get it done came from the council, representing the views of women. The balance was not right in relation either to the definition of rape or the procedure for the trial of rape or, indeed, in relation to all the rules of evidence relating to the trial, the treatment of and the protection for a victim of rape, through proper medical facilities and care, and education of the police authorities.
I welcome the fact that this homework has begun to be done in a serious way from that kind of outside channel rather than from within legal circles. I am very impressed by the first report of the Dublin Rape Crisis Centre. I have not had an opportunity of examining in sufficient detail the various recommendations which they make but the report is extremely clearly set out. Their aims are the appropriate aims, not only to provide an emergency and supportive service for the victims of rape, but also to educate the public, including educating Members of this House, on the problem and to champion reforms in the law.
I was not present for all of the speech of the Minister of State but I understood from him that the Minister is considering proposals for change on the basis of a number of the recommendations made in this report. I am glad to hear that this is the case.
The Minister said that he had some doubts as to whether the de Burca case would allow the possibility of legislation providing for a minimum number of women on a jury panel for a charge of rape. I was involved in this case on behalf of Miss de Burca and Miss Anderson, which successfully challenged the old system where juries were comprised of property owners and where there was a sex discrimination in that female persons had to apply specially if they were householders, and could be, and very often were, challenged. The purpose of the de Burca case was to ensure that a random jury of citizens was empanelled. In the judgments of the Supreme Court on that occasion the judges identified the importance of the random jury and the importance of trial by their peers. The Supreme Court did not direct their minds to the issue of whether in the case of a special type of offence, which rape undoubtedly is, for some of the reasons which I have quoted, it would be possible to have a provision which still gave a random sample but ensured that there was a certain selection, a selection of a representative number of a particular sex on that jury.
I am very much attracted to the idea of having a jury consisting of not less than four women, not less than four men and then let the balance be a random balance. I do not recall anything in the judgment which ruled out the possibility of that being perfectly in conformity with the principles laid down by the Supreme Court. That may be a matter for further analysis and discussion at a later stage.
I welcome the other recommendations made in the report. There is a need for legislation in this matter. We should not rely on judicial decisions which are based on individual cases. Some-times—as in the Morgan case—they can be based on very harrowing facts and on a particular submission which gives rise to judgments in that case in the House of Lords which may, in fact, be largely misinterpreted. I think the Morgan case has been largely misinterpreted. I do not think that it did open up an unreal defence, in the way that was suggested, to the accused. I believe that there is need for a tightening of the rules of evidence.
I have no doubt that in the present situation the victim of rape is asked questions which are not in a strict legal sense relevant to the complaint that she was raped by the particular defendant in that case; these questions force her to disclose, in the witness box, that she had relations, either with one man or several men. Even if she denies that she had had relationships, then, although she cannot be further questioned on this, it is a very open question whether the jury believes her. A person accused in the witness box of doing something may deny in such a way that they do not convince a jury; this may be because of embarrassment, shyness, being upset about the question being put. There are a number of women who are upset about being asked whether they have had relations with other men. In expressing their view, they do not do themselves justice in the instance and you may have a jury— which, in very many cases in Ireland, is an all male jury—beginning to draw——
I am sorry to interrupt the Senator, but she has three minutes of her time left.
I am glad you did interrupt me. I intended, when I got to my feet, to be brief on this occasion; however, this is a legal topic and it is also a very important social issue. It has been hard to condense what I wanted to say into the time available.
I end by welcoming the report itself and its recommendations; by welcoming the Minister's assurance that it is being actively considered by the Government. I look forward to the necessary legislation and administrative changes which will give full effect to these recommendations and hope that we shall see them put into effect during this parliamentary session.
I wish to add my voice to the voice of the other Senators in relation to this problem. I hope that the discussions that will arise from the debate here today will not go over the head of the average man, because it is at the average man that the debate should be directed. I believe that when the changes come in the law they should be in simple terms that will be understandable; it is of importance that everyone understands every aspect of this situation and takes heed of what the Senators have said here today. It is quite noticeable that many Senators did not understand many of the aspects referred to in the report.
Society at the moment is sex crazy. We look at the television and see sex being used as a sales gimmick or indeed the other aspects in which it is being projected, quite apart altogether from sex education. There is the change in attitude to the whole situation; this hideous crime, of rape, which is, to my mind, the absolute insult to woman, is becoming increasingly common.
It has been indicated that the reported number of rapes in no way bear relation to the actual number of rapes that take place. It is important to bring out this point because, if we accept this, it shows, clearly, that there is a number of rapists at large at the moment—a very substantial number of rapists. I firmly believe that this is true. Society must be on its guard against the situation in the future. The problems that prevent the victim from reporting rape have been many. A solicitor, a doctor, a garda, a lawyer, parents, family, friends, a judge and witnesses and a whole lot of other people will be involved in the situation but, taking all these aspects into consideration, the most terrifying aspect is the question of blackmail or the threatening of the individual or the individual's family, as has happened on many occasions. People who are threatened after being raped do not, out of fear, report the situation. When a person is raped she may adopt a "wait and see" attitude which sometimes leads to pregnancy. In such cases a marriage built on pregnancy may have the long term effect of hatred between the parties and the question of possible additional sexual relationships outside marriage taking place. One cannot too firmly indicate the horror and the tragedy for the victim. Far too often the average person in society does not realise or understand the problem unless it affects a mother, a sister, a daughter, or a wife. It is only at that stage that families, or indeed communities, come to realise the terrible tragedies there are at the moment that remain, so often, unreported, and that so many rapists are still at large.
We know the terror when it has been reported that a rapist is at large, as, indeed, was the case in Terenure and other areas, and the problem for the parents in such an area, the terror that is instilled into the young people in that area. At one time a mother stayed up to find out did her daughter enjoy herself; in an area like this, she stayed up for her daughter's safety. It is desirable to bring in legislation to protect people. To get this message across from this Chamber and from the other forums that are available is important; indeed, in the absence of legislation it is necessary and desirable that we have more debate on this particular matter. If we have people being prevented, through fear or intimidation or blackmail, from reporting rape, and becoming pregnant, they are driven into the clutches of the backstreet abortionists or the abortion pedlars in this country. This is happening and we know it. We know that the abortion pedlars are ever ready to take these people under their wing. It makes no difference whether rape takes place on an office couch or on the side of the road; it is nonetheless rape. People may be able to buy themselves out of a situation but the community as a whole should be made aware of the assistance, the aids and the measures available to these unfortunate victims, which will overcome their fear.
At a meeting some time ago, there were eight unmarried mothers present and several indicated that they had been raped. One reported the matter to the police and withdrew it the next day because of the advice she got from her own solicitor. This is the situation; we have people who intend to pursue a charge being advised to withdraw because the matter has been examined and thought to be somewhat frivolous. This girl maintained that she wished to pursue the charge but the solicitor, unknown to her, contacted her parents and a very serious situation developed within her family. People should be educated in regard to what could or should be done.
Many matters were raised here, including the question of the absolute responsibility on the male. This is not so on many occasions; it depends on the time, the place and the existing situation when rape takes place. Many women upset the biological balance of a man in various circumstances and then claim they were raped. This is a situation which must be seriously examined, the legal aspects must be dealt with in great depth and detail; both the accused and the accuser must have a say and until such time as there is positive identification and positive proof of the rape, there should be immunity from publication in the press of the name of the person charged.
Not so long ago in this city, a man was acquitted of a rape charge. While the lady's name was not indicated, his name, place of employment, abode and so on were mentioned. How would this man face his problems? I do not know what eventually became of him, whether he moved away or not. There are problems for himself, his family, his friends and employers. There is a substantial problem for every individual concerned. The type of examination in the legal sense that has been indicated here is the one that should be employed so as to protect people if they are innocent and to ensure that the guilty get the full lash of the law. I am not satisfied in many cases that the sentences are sufficient.
Rape is the absolute insult to a woman. In one case recently, in my own area, Templeogue, we read of a very disturbing situation where a woman was raped in the presence of her husband and her employer. This criminal got the same sentence as someone in a not so dreadful situation. In that type of case where rape was established, the sentence imposed was not severe enough.
Like many other speakers, I appeal to the Minister to make sure that the legislation enacted is in terms that can be understood by the common man, that one will not need dictionaries or lawyers to interpret the situation and that the question will be debated to such an extent that it will be fully understood, so that people will not be driven into back alleys, as has happened in some cases. Legislation is necessary and it should be expedited in so far as the Department can expedite it, so as to ensure that the matters mentioned here are dealt with in the quickest possible way. If we have a defective situation, we are perpetuating a problem that could be solved. Debate on this subject can be further expanded in a simplified manner so that a person with the lowest IQ in society—these, in many cases, are responsible for rape—can understand it.
I am very glad to note the concern of so many Senators on this question and I welcome their contributions. Many people said that the debate, and the report on which the debate has been based, had awakened their interest and, in many cases, enlightened their ignorance. This was one of the principal motives for trying in the first place to have this debate. I am grateful to the Leader of the House for expediting it.
I am sorry that only one woman on the other side of the House contributed to this debate. This subject was not brought up in this House before. One of the reasons for that was the lack of women in the Oireachtas and the great deal of work thrust on those few women with an understanding of and interest in the problems of 50 per cent of the population. I have no doubt that Senator Harney was interested; she said she was sorry I had not asked her and that she would have been glad to have added her name to the motion. I apologise to her. My understanding, however, was quite clear that I would not be able to get any Government name on this. One of the reasons why I did not ask any of the women from the other side of the House was because in a discussion on this question, to get an all-round interest in the question, a balance of both sides of the House and of the sexes was very important.
I am particularly grateful to Senator Robinson for travelling such a long distance so quickly to demonstrate her concern and her interest. It is obvious, from the general contributions, that everybody is aware of a grave lack of background information of any kind on the situation concerning rape in this country and on any studies conducted on both rape victims and convicted rapists. It is a grave lack which must be remedied. We are fortunate, indeed, that a group of women should have volunteered to set up a rape crisis centre. One of their aims will be to collect such background material, which will add to the input of information for the formation of new legislation.
There was a general wish on the part of Senators that the deficient legal procedures which exist at the moment should be speedily changed. There were a couple of dissenting voices but on the whole it was obvious to Senators that there was a great need for some legal changes.
An area which I was unable to touch on, because of shortage of time and because it was important to have my main areas of concern listed in order, is the wider area of sexual attitudes of men and women to each other. Senator Keating made a very valuable contribution in this respect, without which the debate would have lacked something which is very important.
I am glad that so many Senators were aware of the foundation of the Dublin Rape Crisis Centre and its work. An earnest of the Government's sincerity in wishing to tackle this problem and to alleviate the distress of so many rape victims would be concrete financial assistance to this crisis centre. The people who are running this centre wish to remain on a voluntary basis. What they need is some financial assistance in terms of premises, administrative help, research work. The actual counselling on the 24-hour basis will be done on a voluntary basis. They do need financial assistance and they deserve to get it. It would be an earnest of the Government's sincerity if they got it, and got it speedily.
I was glad that the Minister welcomed so generously the debate and a great many things in the document of the Council for the Status of Women. He was correct when he said that neither the council nor the proposers of this motion expected that the council document would be incorporated straight into legislation. That was never intended and it cannot be stated too often that that is the case. I was very happy to hear that an examination of proposals is going on in the Minister's Department. I would have been happier if there had been a greater sense of urgency. We had, as I said, 5,000 women marching through Dublin in October. A couple of days after that the Council for the Status of Women submitted this document to the Minister and until two days ago had no reply whatsoever. That is six months ago and I do not know where the sense of urgency is there. However, I accept and welcome the statement of the Minister of State that in fact, there is concern in the Minister's Department.
I must repeat that in my view the reduction of the figure of the reports of rape to 48 in 1978 strikes me as being, in fact, possibly very misleading. Because of the lack of information from which we all suffer in this country one cannot possibly make a categoric statement but I certainly am not at all complacent that the incidence of rape is going down because the reporting of it has fallen. This is a peculiar crime, surrounded by extraordinary attitudes, some of which we have heard about in this debate; we must not make any assumptions about the actual reporting rate.
I want to repeat, very briefly, some of my major areas of concern which many have shared. One is that the victim of rape very badly needs to be thoroughly prepared, legally, before the trial—I nearly said before her trial because that is often what it amounts to—before the trial of the accused and she should certainly have her statement available to her. It is extraordinary that none of us has expressed surprise that this does not happen already. I should like to stress that, at all times when I was speaking and in the various statements that have been made, the anonymity applied to victim and accused. This is extremely important because there must be no miscarriage of justice in this area; I must enlarge on that, that there be anonymity for the victim and the accused except in the case of an accused being found guilty or pleading guilty. The principal and major ordeal which faces the rape victim, as has been mentioned by several Senators, is the past sexual history aspect of the questioning during the trial. I cannot agree with Senator Whitaker that this should be admissible. It should only be admissible in very special circumstances laid down by law, after private submissions to the judge. The whole definition of rape should be very much widened. The last point I want to make in that area is that some of the legal people here have said that they consider that there is a possibility of changing the jury system in order to have some balance of the sexes on a rape trial jury; that certainly needs further examination.
This is the beginning of a debate in the Oireachtas. It has been going on among the women's movements. It is a very important and very welcome step that it is on its way now into this House. However, it is a debate which must end with legal reform and must end with a change of attitude, even some of the attitudes that were shown here today. I have no doubt that a great deal more pressure will be required to get changes because that has been the case with the women's movements; there has had to be enormous pressure to bring about even minor changes. I hope that this debate will, somehow, have made one step forward and hastened somewhat the progress towards reform.
