The Criminal Law (Rape) (Amendment) Bill was presented to Seanad Éireann on 25 November 1988. The Bill received a very favourable first reception in this House as a major piece of reforming legislation. However, there were reservations expressed about a limited number of issues. During the passage of the Bill through the Dáil I put forward a number of initiatives to address these reservations and I hope the Members of this House will agree that the Bill as amended in Dáil Éireann represents a major step forward in the law's treatment of sexual assault offences and the victims thereof.
The Bill was introduced by the Government because of their desire to ensure that victims of serious sexual assaults and, in particular, women victims, should have the full protection of the criminal law and that the trauma and distress suffered by victims should be reduced to a minimum. In pursuit of these objectives the Bill proposed to introduce a number of major reforms.
The Bill as first presented to the Seanad abolished the common law rule that a husband could not generally be found guilty of raping his wife. In future, a husband who rapes his wife will be liable to the full rigours of the criminal law. The Bill also abolished the old common law rule which presumed that a boy under 14 was physically incapable of sexual intercourse and as such could not be charged with rape.
In recognition of the gravity with which the Government view serious sexual assaults the Bill provided that trials for such offences will henceforth be held in the Central Criminal Court rather than the Circuit Court. To reduce the distress to the victim the public will be excluded from these trials.
The existing provisions protecting the identity of rape victims and restricting cross-examination on previous sexual history were stengthened by the Bill and extended to all victims of sexual assaults.
One of the major criticisms had been that the existing criminal law did not recognise that certain types of serious sexual assaults can be as traumatic for the victims as rape. In response to this, the Bill provided for the creation of a new offence of aggravated sexual assault with the same penalty and procedures as rape.
Notwithstanding the creation of the new offence of aggravated sexual assault there were still calls that the term "rape" should be applied to such offences. This was, perhaps, the most controversial issue to arise during the debate on the Bill. The Law Reform Commission themselves were split on the matter. Three of the commissioners were in favour of an extended definition of rape while the remaining two, including the president of the commission, argued strongly against an extended definition.
This is a matter in which I took a special interest. From my discussions with individuals and various women's interest groups, I was aware that this was an issue over which many women felt strongly. It was represented to me that certain serious sexual assaults, particularly those involving forced oral or anal intercourse, or penetration of the women's vagina by objects, need to be termed rape to provide the psychological re-assurance and sense of vindication necessary for the well-being of the victims of those horrendous offences.
We will want to ensure that this legislation is the best possible. If there is something which can be done which might reduce the trauma and distress suffered by victims of these terrible crimes then we will have to give it serious consideration.
My proposal which provides for the new offence of rape under section 4 was well received in the Dáil. The amendments relating to this proposal are amendments Nos. 1, 4 to 10, 12, 13, 19, 20 and 22.
Amendment No. 5 is the key amendment. Because of its importance I think that it would be appropriate to read out in full the new section 4 which is being inserted in the Bill.
4. (1) In this Act ‘rape under section 4' means a sexual assault that includes;
(a) penetration (however slight) of the anus or mouth by the penis, or
(b) penetration (however slight) of the vagina by any object held or manipulated by another person.
(2) A person guilty of rape under section 4 shall be liable on conviction on indictment to imprisonment for life.
(3) Rape under section 4 shall be a felony.
By virtue of this provision it will be possible to provide the psychological re-assurance sought by victims of these crimes without attracting any of the disadvantages of interfering with the existing definition of rape.
The new offence of rape under section 4 will be limited to serious sexual assaults involving penetration of the body by a sexual organ or penetration of a sexual organ by an object. It is intended to retain the offence of aggravated sexual assault to cover those serious sexual assaults not involving sexual penetration. However, the definition of aggravated sexual assault is being altered by amendment No. 4 to delete the specific references to the matters which will form the new offence of rape under section 4. The existing offence of rape is not affected in any way by these amendments.
Amendments Nos. 1, 6 to 10, 12, 13, 19, 20 and 22 are all consequential on the creation of the new offence of rape under section 4.
Before I go on to deal with the other amendments not relating to rape under section 4, I feel that, as a matter of courtesy, I should inform this House about certain measures being taken to reduce the sense of isolation and bewilderment felt by complainants during court proceedings. In both Houses the question of separate legal representation for the complainant was raised. Such a proposal has been examined by the Law Reform Commission and was strongly rejected. The Government agreed with the views of the Law Reform Commission on this issue. The Commission did, however, point out in their consultation paper that it is already perfectly permissible for a woman who has been raped to consult a lawyer and to bring a lawyer with her, in the capacity of a friend, to the court during the hearing of the trial.
There is already a provision in the civil legal aid scheme under which legal advice may be given in connection with criminal proceedings where the matter arises out of the same circumstances which have already given rise to the grant of civil legal aid or advice. In such a situation the board's solicitor would provide "such additional services to the assisted person in respect of the criminal proceedings to the extent that a solicitor in private practice would do".
I have decided to make the necessary changes to the scheme so that in future this provision will apply to victims of rape, rape under section 4 and aggravated sexual assault regardless of whether these victims have already received legal services under the civil legal aid scheme. I appreciate that this may place extra pressure on the scheme and I envisage that extra staff will be made available to the Legal Aid Board for this purpose.
In future, therefore, when criminal proceedings are initiated the victims of these offences will, subject to the usual conditions as to means under the scheme, be able to consult with a legal aid solicitor in advance of the trial who will be able to explain to her how the criminal law process works in relation to the offence in question and what her position will be in that process. In addition, if she so wishes, the legal aid solicitor may accompany her into court and provide support for her during the trial without, however, having the right to participate in the trial.
This is a major step forward and should go a long way in reducing the sense of isolation, bewilderment and helplessness that many victims feel when called as witnesses in rape trials. This initiative is being taken in addition to measures being implemented by the Director of Public Prosecutions providing for pre-trial consultations with all witnesses and the familiarisation of the complainant with the procedure and layout of the court.
I will turn now to the less controversial areas which were the subject of amendments in the Dáil. Amendment No. 2 is merely a drafting matter and need not detain us. Amendment No. 3 provides that sexual assault shall be a felony. This amendment was made at the request of the Director of Public Prosecutions who wished that in appropriate cases the Garda should have power to arrest a person where they suspect a sexual assault has been committed. By making sexual assault a felony the offence attracts a common law power of arrest without warrant.
Amendments Nos. 11 and 14 are minor drafting improvements. Amendment No. 15 relates to the anonymity of the accused. Part (b) is merely a restatement of what was already in the Bill. Part (a), however, is new. It is possible that revealing the identity of the accused might indirectly reveal the identity of the complainant; for example, in a case where a man is charged with raping his wife. The purpose of this amendment and the related amendment, amendment No. 16, is to make it clear that a judge should not lift the restrictions on revealing the identity of the accused until they have considered how that might affect the anonymity of the complainant under the provisions of section 7 of the Criminal Law (Rape) Act, 1981.
Amendment No. 17 arose out of concern expressed in the Dáil about the low level of the penalty for the offence of indecent exposure. The amendment increases the maximum penalty for public indecency under section 17 of the Criminal Law Amendment Act, 1935 from a fine of £2 or one month's imprisonment to a fine of £500 and/or six months imprisonment. Amendment No. 18 was required because of amendments made to the Defence Act, 1954 by the Criminal Justice Act, 1990.
The last amendment I need to refer to is amendment No. 21 which substituted a new section for the original section in the Bill dealing with the Criminal Procedure Act, 1967. Under the original provision the District Court in the case of rape or aggravated sexual assault, would not have had jurisdiction to (i) grant bail; (ii) send forward for sentencing an accused on a signed plea of guilty, or (iii) deal summarily with the offence. The case was made by the Law Society and in the Dáil that the District Court should continue to have jurisdiction to grant bail in these cases. The Director of Public Prosecutions was consulted and he also was in favour of retaining the District Court jurisdiction to grant bail. Furtheremore, he was anxious that the District Court should continue to be in a position to send an accused forward on a signed plea of guilty. Amendment No. 21 takes these views into account. The District Court will now retain jurisdiction to grant bail or send forward an accused on a signed plea of guilty. However, the District Court will not have the jurisdiction to try summarily a case of rape, rape under section 4 or aggravated sexual assault.
In conclusion, I would like to say that I believe that the amendments made to the Criminal Law (Rape) (Amendment) Bill have improved the legislation. I hope the Bill as amended will receive the wholehearted support of this House.