Mr. Tom O'Malley:

The purpose of this presentation is to identify or explore some legal issues that may arise in the event that it is seriously being considered to have rape as a ground on which abortion or a termination of pregnancy might be granted. I am not really concerned with or in a position to address the more normative or policy question as to whether rape should in fact be a ground for abortion. My purpose is simply to explore some of the legal issues that would arise if that were seriously being considered. As such, there are two broad questions to be addressed. First, one must address what exactly is meant by "rape" in this context. In other words, what range of offences might justify granting a termination? The second and perhaps more difficult question is what kind or level of proof might be required where someone seeks an abortion on the grounds that she had become pregnant as the result of a criminal offence.

As to the range of offences, there are obviously now a very large number of sexual offences known to Irish law, most of which are defined in a gender-neutral way. For practical purposes here, we are only concerned with those offences involving heterosexual intercourse, as they are clearly the only ones that might result in pregnancy. We are not just talking about rape, which I will explain in a moment, we are also talking about sexual intercourse with an under age female, namely someone under the age of 17; sexual intercourse between a person in authority and a female aged between 17 and 18 years; sexual intercourse with a female who has a mental disability or learning difficulty; and, finally, incest. All of those offences may be quite familiar in legal terms to members of the committee as most of them were redefined or in some cases created by the Criminal Law (Sexual Offences) Act passed by the Oireachtas earlier this year.

I start with rape itself, which is probably the most relevant offence for present purposes. It is important to mention the definition of rape, which has three components. First, sexual intercourse must take place. The defendant must have intentionally had sexual intercourse with the complainant and it must also be proved that the complainant did not at the time consent. It must also be proved that the defendant knew that she was not consenting or was reckless in that regard. As such, two of the key elements of rape are the absence of consent on the part of the complainant and knowledge on the part of the defendant that she was not, in fact, consenting.

As I have set out in a bit more detail in the paper I submitted to the committee, the law on consent changed as a result of the 2017 Act which included, for the first time, a statutory definition of consent in Irish law as far as sexual offences are concerned. It is now the law that a person consents to a sexual act only if he or she freely and voluntarily agrees to that act. The relevant section then sets out a range of circumstances in which, as a matter of law, a person will be held not to have consented. It is very important also that the mental element, as we call it, or culpability be considered because a man will not be guilty of rape unless the prosecution proves beyond a reasonable doubt that he either knew the woman was not consenting or was reckless in that regard. It is very often said that a man has a defence if he can show that he thought the woman was consenting but that is not, in fact, the law. The defendant does not have to prove anything. It is always up to the prosecution to prove all of the elements of the offence, including the absence of belief on his part. They are the essential elements of rape as it is currently defined. It is also important to note that since 1990 there has been no ambiguity but that rape can occur within marriage. A husband may be convicted of raping his wife. The definition is the same and the maximum sentence, which is life imprisonment, is also the same.

The law relating to sexual acts with a person under the age of 17 years was changed somewhat earlier this year. In the old days, we used to call those offences "unlawful carnal knowledge", but as a result of a Supreme Court decision in 2006, which struck down the old law, we have had to amend the law on a number of occasions since. In essence, it works as follows. There are two separate offences involved which are differentiated according to the age of the young person. It is an offence punishable with up to life imprisonment to have sexual intercourse, among other acts, with a person under the age of 15 years. That is the more serious of the offences. Consent on the part of the young person provides no defence whatsoever to the male or perpetrator in question, but a defendant has a defence if he can prove that he was reasonably mistaken as to the age of the young person. If he reasonably thought she was over 15, he is not guilty of that particular offence.

Section 17 of the 2017 Act creates a separate offence of sexual intercourse with a person, or female in the context of the committee's deliberations, under the age of 17 years. That is regarded as a less serious offence in the sense that the maximum sentence varies depending on a number of circumstances. It is not life imprisonment as it is in the case of the other offence. Again, the accused person has a defence if he can show that he thought on reasonable grounds the young woman was over 17 years. However, the question of consent then arises and the situation becomes a little more complicated as a result of changes made to the legislation earlier this year. That might be relevant to the present discussion. At one time, consent was simply not a defence in those circumstances. If the young person was under 17, consent was no defence. However, we introduced a significant change to that earlier this year. Consent on the part of the young person can now be a defence to the male provided he was either younger than the female in question or he is less than two years older than her. To give a practical example, if the girl is 16 years of age and consents to the intercourse and the male in question was 15, 16 or 17, no offence has been committed. On the other hand, if he was 19 years of age, an offence has been committed irrespective of whether she consented or not because he is more than two years older than her. It is important to be aware of that.

The next sexual offence to take into account is a completely new offence created by the 2017 Act, namely a sexual act with a person who is between 17 and 18 years of age committed by a person in authority. We never had such an offence in Ireland before. In effect, it raises the age of consent to 18 years but only in circumstances where the person who has intercourse with the young person is, in some sense, in authority over him or her as the case may be. A "person in authority" is defined in the Act and includes, for example, a teacher, a guardian, an employer, a parent, obviously, or a close relative.

The next offence the committee needs to consider is another one which was completely revamped and redefined in the 2017 Act. This is a sexual act with a protected person, namely a person of any age who has a mental illness or mental disability.

It has long been the law, only that it was amended somewhat this year, that it should be a criminal offence for a man to have sexual intercourse with a woman who has a mental disability of a certain kind. Now this is defined in a gender-neutral way. We now define a protected person as someone who by reason of mental or intellectual disability or mental illness is incapable of understanding the nature and the reasonably foreseeable consequences of the act or incapable of evaluating the relevant information. Again, this offence carries a maximum sentence of life imprisonment.

Incest, of course, is still an offence in this country. Irish law is special in this regard. Ireland was not historically unique in this regard, but incest in this country is committed not just when one of the parties is a minor, but also when people who are, let us say, brother and sister, mother and son, or father and daughter, have heterosexual intercourse, irrespective of age. This provides a role in preventing child abuse if one of the parties is under age, but incest can equally be committed, for example, by two siblings who are well into adulthood and who consent to the act in question and even in circumstances where there would not be any danger of pregnancy to begin with. Again, this is the kind of thing the committee would have to take into account. This is the range of sexual offences in this country, so one of the questions the committee should ask for present purposes is, which of these offences, if any, might provide on policy grounds a justification for allowing termination of pregnancy if one of them were committed.

Now I wish to consider the issues of proof that might arise. There are two questions in this regard. The first is the one I have just asked, namely, what range of offences should be taken into account, to what extent and so forth. Next is the question of proof. If a woman comes forward seeking a termination on the grounds that one of these offences has been committed, what kind of proof should be required? This question is linked into the broader policy on abortion that might be adopted by this committee or eventually by the Oireachtas generally. In other words, if it were ultimately decided that abortion should be available on a wide variety of grounds or freely available for the first three months or whatever it might be, what I am talking about would probably be irrelevant in the sense that the reason for seeking the abortion simply would not arise. However, what I am talking about would become relevant if the ultimate decision taken by the Oireachtas was to the effect that unborn life should still be protected but that abortion should be available on a range of grounds, including rape and sexual offences. If the latter approach were taken, issues of proof would arise. It is only on the assumption that this is a possibility that I raise this issue at all.

One could see the various possibilities regarding proof as being arranged along a spectrum. At one end of the spectrum is, let us say, a position whereby nothing short of a criminal conviction by a court would suffice to prove that the rape has been committed. At the other end of the spectrum, a simple assertion or claim by the woman in question that she has been raped or subject to another offence could suffice. The former is out, to be quite honest, simply because, given the length of time it takes to process a case through the system, apart altogether from what my two colleagues have said, with which I absolutely agree, that is, that many people do not report cases for quite a long time anyway, it would not even arise. However, even if the woman were to report the case at the very first opportunity, there is no way the criminal case would be concluded within nine months, which is the very maximum period we are talking about.

At the other end of the spectrum, there is the possibility of simply asking why we do not simply believe what the person says. This is a perfectly legitimate approach as well. I can see many circumstances in which it might not be problematic. In a so-called stranger rape case where the woman has been not just raped but also seriously assaulted in other ways and she goes to the Garda immediately, perhaps to the sexual assault unit, and to a rape crisis centre, no one would seriously question whether she is the victim of a rape. Therefore, I do not see any difficulty in accepting such an assertion backed up by such evidence.

However, if this were to become an issue at all, the kind of scenario on which the committee would have to concentrate would be one in which, let us say, a woman comes forward, perhaps two or three months, perhaps more, into a pregnancy and claims at that point that she has been raped or is the victim of another offence. Would proof be required at that point and, if so, what kind of proof? Of course, the fact that she might come forward at that point does not mean that she is to be disbelieved. On the contrary, as we know from experience, many people who are the subject of rape or child abuse choose not to report for all the kinds of reasons Ms Blackwell has mentioned. However, if they discover subsequently that they are pregnant, at that point they may come forward and say they have been raped. At that point there may not be any forensic evidence that would be of any use for the purpose of proving the rape has been committed. Therefore, the question would arise of what kind of proof would be required, given that a criminal trial is out.

Some kind of inquiry or body could be set up, on either an ad hocor a permanent basis, to assess such claims. Again, questions would arise. Would it be necessary to identify the perpetrator? Would the perpetrator have a right to be heard? Suppose, for example, a woman says she has been raped by her husband or partner. Would he have the right to come forward and say it was not rape and that he objects to the abortion taking place? Would that end up in court? Of course, it would in those circumstances. These are the kinds of issues the committee might need to consider.

I have gone over time. I think I have already dealt with the sexual offences other than rape that might become an issue. One of the questions the committee must ask is if abortion were allowed to take place in respect of these offences, would it only be allowed where a criminal offence has taken place? A criminal offence might not always have taken place in the case of sexual intercourse with a person under the age of 17 because, as I said, sometimes that is criminal and sometimes it is not, depending on the age of the male involved. For example, would the right to a termination be granted to everyone under the age of 17 who becomes pregnant or would it be confined to cases in which a criminal offence has been committed?

I do not wish to give the impression from what I have said so far that there would be insuperable difficulties in proving rape where some time had elapsed. I have been examining what happens in other countries in this regard, including many European countries. Various countries, parts of the United States and so on provide for access to abortion on the grounds of rape. It is not an issue in many of these jurisdictions because many of them also provide for a general right to termination within the first few months of pregnancy in any event. Elsewhere there seems to be general acceptance that requiring a criminal conviction would be largely impossible because of time constraints, so some jurisdictions have provisions to the effect that abortion is permitted where there are strong grounds for believing the pregnancy is the result of a criminal act. In other words, they do not require absolute proof but they normally require evidence that the person has, for example, reported the matter to the police or a doctor or whatever else.

They are the main issues I wished to raise. When I addressed the Citizens' Assembly, as my colleagues did, I had been asked to say something about the sentencing of serious sex offences, the reason being that some people had quite legitimately asked, if we had a different sentencing system, whether that might reduce the incidence of sexual offences. The answer, to be honest, is no. I have included at the end of my written submission an appendix setting out the observations I made at the Citizens' Assembly.