European Court of Human Rights Judgment: Statements.

Mr. Fallon

In regard to this item, I wish to state that the time allowed for statements relating to this matter shall not exceed a period of three hours in the aggregate. The statement of the first Senator shall not exceed 20 minutes and the statement of any other Senator shall not exceed 15 minutes.

Minister for Justice (Mr. Burke)

I welcome this opportunity to explain the position of the Government on the judgment of the European Court of Human Rights in relation to the question of male homosexual behaviour.

The judgment of the European Court was delivered on 26 October 1988. It found that our laws in relation to homosexual offences are in breach of the European Convention on Human Rights in that they interfere with the right to respect for private life under article 8.1 of the European Convention on Human Rights. The legislation is at sections 61 and 62 of the Offences Against the Person Act, 1861 and section 11 of the Criminal Law (Amendment) Act, 1885. Section 61 of the 1861 Act provides that whosoever shall be convicted of the "abominable crime of buggery committed with mankind or with any animal shall be liable to life imprisonment." Section 62 provides that an attempt to commit buggery carries a penalty on conviction of up to ten years imprisonment. Section 11 of the 1885 Act makes it an offence for any male person, in public or in private, to commit or to be a party to the commission by any male person of any gross indecency with another male person.

If we did not already have legislation which penalises homosexual acts in private between consenting male adults, I do not think that today any reasonable person could seriously argue for such legislation. I do not, for example, hear of any demand to penalise homosexual activity between females. However, we do have on our Statute Book legislation proscribing male homosexual acts and we are faced with the problem of dealing with it. Precisely how one goes about doing that is the question that needs to be considered.

The Law Reform Commission examined the judgment on the basis of the referral of the question of sexual offences generally to it by the Attorney General under section 4 (2) (c) of the Law Reform Commission Act, 1975. The commission issued a report on rape and allied offences in May 1988, which gave rise to the Bill at present before the Oireachtas. The commission then examined the law on child sexual abuse. While engaged in this examination the European Court of Human Rights issued its judgment. The commission took the opportunity afforded by the work in progress to examine that judgment. The commission's provisional recommendations in relation to the law proscribing homosexual acts were outlined in its consultation paper on child sexual abuse in August 1989. Their final recommendations are contained in the report on child sexual abuse published in September 1990.

It would have been precipitious to have brought forward proposals for changes in the law while the matter was being considered by the Law Reform Commission. The commission's final report was published only a few weeks ago, in September, and its recommendations on homosexual activity are being examined in my Department. For that reason I do not intend to comment on those recommendations today but I will, for the information of Senators, briefly outline the main recommendations of the commission under the heading in the report of homosexual activity.

First of all, the commission proceeded on the assumption that our laws will, in due course, be brought into conformity with the judgment of the European Court.

The commission recommended that sections 61 and 62 of the Offences Against the Person Act, 1861 and section 11 of the Criminal Law (Amendment) Act, 1885, should be repealed and there should be the same protection against both homosexual and heterosexual exploitation of the young. It follows from this recommendation that the "child sexual abuse" offence which they recommended should be created to replace the present offence of "indecent assault with consent", should apply equally in the case of homosexual activity. The present minimum legal age of 17 for heterosexual acts would also be a minimum legal age for homosexual acts.

The commission recommended that vaginal sexual intercourse with girls between the ages of 15 and 17 should cease to be an offence, save where the male participant is a "person in authority" or is more than five years older than the girl. However, they also recommend that anal penetration of boys and girls continue to be an offence. Finally, they recommend that the new offence of child sexual abuse should continue to be an offence in the case of boys and girls between the ages of 15 and 17 where the perpetrator is a "person in authority".

Senators will be interested to know that I will be bringing forward proposals to Government during the next year to change the law with regard to homosexuality, taking account of the European Court's judgment. I want to emphasise, in saying that it will be during the course of the next year, that it is not the intention to delay this legislation. It is merely from the point of view of being totally frank with the House that I want to ensure that the resources are available to me within the Department with the legislative programme that I have, which is quite extensive, as Senators know. I do not want to make a false promise here in relation to a specific time.

I assure the House that as early as I can within a year it will be brought forward. Having said that, I will listen with interest to these statements to hear suggestions as to what should be included in the forthcoming legislation. I will bring it forward and introduce it in the House during the course of next year.

Mr. Norris

I welcome the Minister's statement which gives some ground for optimism. Within the short space of time allowed it will not be possible to go into all its ramifications. Perhaps it would be possible, since the Minister has indicated goodwill in this regard, for me to have some discussions with him or with his officials. It is an area in which, over the last 20 years, I have acquired a fair amount of knowledge.

The whole subject is rapidly becoming rather tedious to me. After 20 years I will be heartily glad when this matter is disposed of because there are other things on my agenda and I am quite sure there are other things on the Minister's agenda as well. I note his very wise and balanced comment that if this legislation did not exist on the Statute Book he did not believe the Irish people would consider it an appropriate use of their parliamentary time to introduce such proposals. It is important to put this in context without being too academic. What the Minister referred to was "our" laws. I do not believe they are our laws. As an Irishman I repudiate them totally. They did not originate in this country. They were never discussed in this country. They were never debated in parliament. The 1885 Act was not. The Offences Against The Person Act, 1861, was a liberalising statute that mitigated the penalty which up to that had been death by hanging. It reduced it to life imprisonment. Although I know that a subsequent Act of Parliament permitted a judge to impose a lighter sentence — it was an Act of the late 1890s — at the same time technically on the Statute Book there still exists this law of 1861 which says that for this offence whether or not there is consent, no matter what the age — it is a broad sweep — the penalty shall be from ten years to life imprisonment. If you look at the language in which the provisions are couched, they reveal the source of prejudice — buggery and sodomy. These words do not actually properly describe any activity at all because the definitions of buggery in various jurisdictions, across America for example, can cover a very wide and disparate range of sexual activities, including quite a number that take place between married persons within the privacy of their home.

In the state of New England, for example, everything except the strict missionary position No. 1 is classified as an act of sodomy. Where did it come from? Sodomy comes from a misinterpretation of the Old Testament story of the city of Sodom. I am sure the Minister's advisers are aware that the evidence of the Palestinian pseudepigrapha indicates quite clearly that the inclusion of the question of homosexuality was a subsequent addition to a previously existing legend which referred entirely and exclusively to a violation of hospitality rituals. Buggery comes from the middle French word for Bulgaria, the Boulgre, because in the time of the Albigensian heresy charges were laid by the central authorities in the Vatican against those engaging in unnatural sexual practices. It was a political targeting. These two words which people imagined are perhaps an onomatopoeic description of these specific acts, are nothing other than indicators which show precisely the origin of the taboo against male homosexuality and expose it as being fundamentally a religous one.

In the Old Testament, in Leviticus, there is a tabulation of behavioural codes which include other things such as, for example, the eating of shellfish and the wearing of worsted cloth, which carry equal penalities. I had a prawn cocktail with my lunch. I committed an offence, in the eyes of the Old Testament prophets, equal to the act of buggery. I am wearing worsted cloth. I did it twice. Why do we need to retain outdated ideas? We have modified our views with regard to the eating of shellfish, the wearing of worsted cloth and also other sexual crimes. Adultery is considered in religious terms as a sexual crime in the Old Testament and a woman taken in adultery shall be stoned to death. Yet we have modified our view in this area. Why can we not do so with regard to the question of homosexuality?

The religious background is important because homosexuality only became a crime by accident when in 1537, or whenever it was. I cannot remember the exact date but it was sometime in the 1530s, Henry VIII as part of his lust for power grabbed the monasteries and coincidentally, he grabbed jurisdiction over the ecclesiastical courts. It was the ecclesiastical courts who adjudicated on the question of the sin of sodomy or buggery. By accident, this question of homosexuality came into the civil law as a result of the action of Henry VIII seizing the monasteries. As the Minister probably knows, by some technical quirk this did not extend to Ireland. There was a sensational case in the 1630s involving an Irish peer. It was found as a result of this that the provisions of the English law did not extend to Ireland and a campaign, a kind of primitive "save Ireland from sodomy" campaign was launched by a Bishop in Wexford. The Bishop, John Atherton, did this for purely political purposes, to advance his own career. He succeeded in having this law written into the Irish Statute Book and I am very glad to be able to inform the House that he was charged with the crime himself and suffered the ultimate penalty of being executed for sodomy outside Christ Church Catherdral on Christmas Day, 1637. So those who urge extreme penalties in this area should beware.

The law continued until 1861 when the penalties were reduced to ten years or life imprisonment. But in 1885 there was a much more serious development and that was the introduction of the so called Labouchere amendment, the Criminal Law (Amendment) Act, 1885. This was a particularly nasty piece of legislation because what it criminalised was any form of indecency, gross indecency between males. Perhaps somebody more learned and more intelligent and more perceptive than I can define "gross" indecency. When does indecency stop being merely indecent and become gross indecency? I have to say that the learned judges who sat in my case betrayed a quite extraordinary absence of commonsense when they decided on the question of discrimination between lesbians on the one hand and gay men on the other, that whereas men were capable of gross indecency women were only capable of indecency. Women could not be capable of gross indecency. This was absurd and I feel that the intellectual processes stutter when certain kinds of mind are confronted with what is sometimes an embarrassing subject of intimate sexual behaviour.

The Labouchere amendment was never discussed at all. It was introduced after midnight in the House of Commons by the Liberal MP for Liverpool, Henry Labouchere, as an adjunct to a Bill which principally addressed the subject of the seduction of minors and the abduction of young girls. It had no direct relationship to the body of the Bill. It was accepted by the government. It was never discussed. There was no debate and there was no vote. It was scarcely very democratic. I do not claim this nasty legislation as ours. I do not think there is anything particularly Irish about it. It is a prudish, nasty, villainous piece of English legislation which was rightly condemned by Sir John Wolfenden as the blackmailer's charter and that is precisely what it is.

With regard to the 1885 Act, its operations are pernicious in the extreme because there is no definition, as I have said, of gross indecency so you rely on case law to tell you what constitutes gross indecency. In the fifties in England two airmen were successfully prosecuted and convicted under this legislation on the basis that they had, and I quote, "exchanged lascivious looks". It is quite extraordinary and insupportable in a democracy that this kind of absurd, discredited and disgraceful legislation should be allowed to continue.

I am very heartened that the Minister, whom I have just spent some minutes complimenting for his foresight and vision on the Criminal Law (Rape) (Amendment) Bill, has drawn the attention of the House to the Law Reform Commission report. This is the precise context within which the legislation should be framed. I will be looking for nothing less than the full implementation of the Law Reform Commission recommendations. After all, I have waited 20 years for this. I was brought up in a society that was not understanding of my particular circumstance. The laws under which I have lived out my 46 years of life are the exact and direct parallel of the Penal Laws which discriminated against Roman Catholics in this country, to the shame of the then Government. I am discriminated against in precisely the way Roman Catholics were discriminated against under the Penal Laws; in precisely the way black people in the southern states of America were discriminated against and in exactly those areas where Roman Catholic civil rights activists charged the Stormont Government with discriminating against them. I look forward to an anti-discrimination Bill from this progressive Minister which will outlaw discrimination in areas such as housing and employment because that is where the matter will bite.

With regard to the acceptability of this legislation the Minister has not said very much about it except that he feels that people would not now want to introduce such a law. I have been working in this area for about 20 years. The distinguished statistician/researcher/sociologist Professor Michael MacGrail produced a book in about 1969-70 before I or my colleagues had any impact on the public consciousness of this country. It was called "Prejudice and Tolerance in Ireland" and among the tables Professor MacGrail shows that at the turn of the sixties just coming into 1970 a plurality of Irish people believed that the criminal law should not be sustained, that it should be changed. That is an important fact and it bears out what Senator Ryan said about the Irish people and their qualities of tolerance and decency. I have no doubt that figure has significantly increased. I direct the Minister to, for example, I suppose a sort of vox populi, the Gay Byrne radio show, on which during a debate recently, there was what they call a tele-poll. I am not suggesting that it is necessarily completely accurate.

Everybody dismisses polls when they do not suit them and accept them warmly when they do, but in that poll of 11,000 people — it could not possibly have been rigged — 66 per cent thought the law should be changed. Maybe it is a little bit more, maybe it should be a little bit less, but it is a very interesting indicator of the kind of support that could be anticipated.

The Law Reform Commission came down four square on equality with regard to the age of consent for heterosexual and homosexual intercourse. I fully endorse that. The law in Britain is spectacularly bad with regard to the age of consent and the conditions of privacy. I would like the Minister to take into consideration in framing this legislation——