I move amendment No. 1:
In page 5, before section 6, to insert the following new section:
"6.—The principal Act is hereby amended by the substitution of the following section for section 3:
3.—In this Act——
(a) the expressions "brother" and "sister", respectively, include half-brother and half-sister, and
(b) the expressions "brother", "sister", "son", "daughter", "father" and "mother", respectively, include step-brother, step-sister, step-son, step-daughter, step-father and step-mother.".
The purpose of the Bill is to deal with a particular finite problem in relation to the reporting and revelation of the verdict and sentence in an incest case. That is the predominant reason the Bill is open to amendment. The Bill was substantially amended in the Seanad by good contributions from all sides of the House but it has come to my attention that there is another loophole in the original Punishment of Incest Act, 1908, in relation to the position of children who have been adopted and step-children. It is appropriate to close that loophole now since the Bill can be amended.
The Punishment of Incest Act, 1908, was passed when there was no legal provision for adoption meaning there is a major omission from its provisions. Adopted children whose fathers may abuse them are not regarded as victims of incest for purposes, of prosecution even though, in most cases, they have lived with the adopted father as a member of his family since birth. The violation of an adopted child is just as serious as the violation of a child natural to the father. If we are dealing with incest and its impact on the violation of a specific and special trust, which is fatherhood, we should look at the fact that, under the existing 1908 Act, there is no provision for a prosecution to be taken against a father for the abuse of an adopted child. They are treated in law as if they had been sexually assaulted by a stranger. For the purpose of the crime of incest, adoptees are still regarded as nobody's children. I will give an example of the type of thing that might happen and the potential enormity of the omission, not only for adoptees, but also for step-children. If divorce is introduced a whole range of step-children will potentially need the protection of incest legislation. However, for the moment we can deal with adoptees.
It is always an offence to have sexual intercourse with a girl below the age of 17. However, where a father has sexual intercourse with his adopted daughter aged 17, he does not commit a criminal offence unless he rapes her. There is an exclusion there because incest does not recognise adoptive relationships. If the father has managed to obtain the consent of his 17 year old adopted daughter to the act of sexual intercourse, whether through fear or persuasion which is characteristic of child abuse in a parental authority sense, or through a cycle of abuse that has gone on over many years, the law does not regard him as having committed a crime, even though most right thinking people will agree that we should be unequivocal in our condemnation of such an act.
This is an opportunity for the Minister to consider this loophole in relation to incest. It is equally wrong that a child can be violated by her father and have the law treat it in the same way as it would the violation of a stranger. We have discussed at great length the nature of incest. Society's condemnation of it is based on the fact that it is an abuse of a very special position of trust which exists between a father and child. I consider sexual intercourse between a father and his adopted child to be incest and it should be included in law as such.
Many drafting difficulties were experienced when I tried to draft two new amendments to cover both adoptees and step-children. Members are aware that the Status of Children Act, 1987 was a major legislative reform. One of the purposes of this Act was to ensure that adopted children were treated as the children of their adoptive parents just as if they had been born to them. However, its provisions only apply to statutes which were passed after 1987, so the Status of Children Act does not refer back to the 1908 Act.
This amendment is an attempt to apply the provisions of the Status of Children Act to the 1908 Act. It is a great pity that this omission was not noticed in 1987 when an opportunity could have been taken to apply the provisions of the Status of Children Act, 1987 to the Punishment of Incest Act, 1908. The effect of it is clearly that adopted children do not benefit from the provisions of the 1987 Act in the case of incest. It is appropriate when we amend the Bill, that this loophole is closed or that we at least hear some justification from the Minister why it is not appropriate now.
This is being done by way of a second amendment which simply provides that in introducing any relationship for the purposes of Punishment of Incest Act, 1908, the provisions of section 3 of the Status of Children Act 1987 shall apply unless the contrary intention appears. We went through the hoops trying to draft an amendment which would apply the benefits of the 1987 Act to the 1908 Act and this is the simplest, neatest and most appropriate way of bringing adoptive children under the 1908 Act, by putting them on an equal footing with children born into the family concerned.
Section 3 of the 1987 Act is one of its key provisions. It does two things. It ensures that adopted children are to be treated as the children of their adopters, and that every other family relationship is to be treated accordingly. It also provides that illegitimate children are to be treated as the children of their parents. By applying section 3 of the 1987 Act to the Punishment of Incest Act, 1908, the House would effect an important far-reaching and overdue reform. It would ensure that adopted children are given the protection the law ought to give them.
Step-daughters, step-brothers and step-sisters are excluded from the incest legislation of 1908. Where sexual intercourse takes place between, say a step-father and a step-daughter, this is not regarded as incest. It is imperative when family relationships are growing more complex, with divorce on our doorstep, a clear message goes out that interfamily abuse is unacceptable in our society, however that family is constituted.
The extension of this protection will become all the more important if the constitutional referendum on divorce is carried. In considering how to table an amendment to the 1908 Act, which would extend the provisions of that Act to step-families, I considered the provisions of section 3 of the 1908 Act. This section is effectively an interpretative provision. It provides that the terms "brother" and "sister" include "half brother" and "half sister". It provides that incest is an offence, whether or not the relationship between the parties to the act of incest is based on marriage or not. In other words, it covers non-marital children, which is important in terms of incest.
The Minister for Equality and Law Reform is currently seeking to extend domestic violence legislation to cover non-marital situations. It is important in the context of incest and child abuse that non-marital children are included. One of the effects of applying the provisions of section 3 of the Status of Children Act, 1987, to the Punishment of Incest Act was to extend the protection of the latter Act to Illegitimate children. The reference in section 3 of the 1908 Act to relationships which are not based on marriage becomes redundant.
This is very complex and I spent a great deal of time trying to draft an amendment which would be appropriate and neat and not over wieldy. The explanation of it is necessarily complicated because we are trying to apply the provisions of the 1987 Act to the 1908 Act and to include adoptees and step-children. Amendment No. 1 seeks to redraft section 3 of the 1908 Act to update it to include step-children and to remove the redundant reference to non-marital relationships which are covered by the 1987 Act. This sounds complicated but, to put it in an ordinary person's language, it would appear from our study of the Punishment of Incest Act, 1908, that at present adopted children are not given the protection which other children have in relation to the prosecution of incest offences.
The Minister may not be in a position now to come back with his Department's advice on this but I urge him to request his officials to look into this loophole, which excludes adoptive children and step-children from the provisions of the Incest Act. I look forward to the Minister's contribution.
