Denis Naughten (Roscommon-South Leitrim, Independent) | Oireachtas source

I move: "That the Bill be now read a Second Time."

Five years ago, Roscommon Circuit Court heard the shocking details surrounding the sustained abuse and neglect of six children in one family. At the time, the late Judge Miriam Reynolds questioned how the situation could have gone on for so long given that the children were in school and also given the family's involvement with the health board. After being failed by the State institutions for years, these children were once again failed by both the law and the Oireachtas.

At the sentencing hearing the late Judge Miriam Reynolds stated:

The Punishment of Incest Act 1908 is 100 years old. At the time it was not even contemplated by the legislation and possibly by the society that a woman, a female, could commit incest, as the perpetrator or instigator of the offence. The provision was a person who had carnal knowledge of a female was guilty of a felony and liable to life imprisonment. Section 2 stated that a female person aged 17 or above, who permitted a grandfather, father, brother, or son to have carnal knowledge shall be guilty of a misdemeanour and was liable to a prison sentence of between three and seven years.

In this particular case, rather than the issue being that of whether a female consented, we had a woman who was the perpetrator and the instigator. At the time, the late judge stated: "I believe all persons should be treated equally before the law." She went on to state:

Had she been male, she would be facing up to life imprisonment. Clearly right-thinking society could not comprehend such a desperate act, hence the lack of regulation.

This lack of regulation could have been addressed in 1993, when the 1908 Act was amended on foot of the sentencing in the Kilkenny incest case or when it was subsequently amended in 1995, by making the offence apply to both sexes. The woman sentenced in the Roscommon Circuit Court case five years ago became the first, and hopefully the only, woman in the history of the State to be convicted of incest.

On 27 January in that year, Deputy Shatter, who is now Minister, moved a motion in the Dáil following the shocking and disturbing revelations exposed on foot of that case, including the gross failures of the former Western Health Board to appropriately intervene at an early stage. At the commencement of that debate, we all were warned that the motion made specific reference to matters which were the subject of criminal proceedings and in regard to which further proceedings were expected at that time. While the issue of sentencing and the courts was avoided at that stage due to the fact that a male had yet to stand trial, we all were appalled at the sentencing restriction. Commenting on the sentence, family law expert Dr. Geoffrey Shannon stated that the law should be reformed to provide for equal sentencing for men and women convicted of incest. At the time, the then Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern, was reviewing the criminal law governing sexual offences for the purpose of providing greater protection to children and other vulnerable persons against sexual exploitation and abuse, including a review of the need to reform the incest laws. It was subsequently decided that a provision to increase the penalty for incest by a female to life imprisonment in order to bring it in line with that of a male would be incorporated into the reform of the Criminal Justice (Sex Offences) Acts, and five years later we are awaiting action on that.

The general scheme of the sexual offences Bill, including this reform, was approved by Government before Christmas. The Minister of State at the Department of Public Expenditure and Reform, Deputy Brian Hayes, in the House in October last, stated that it would be approved by the end of October by the Government, but it did happen before Christmas. After that Cabinet decision, the Minister, Deputy Shatter, announced, on 17 December last that the general scheme of the Bill would be published by the end of January. We have yet to see the general scheme of that Bill and that fact remains that it will take some time before it becomes the law of this land.

Twenty-one years ago there was public revulsion when a man, a so-called father, was sentenced to a maximum seven years for incest in Kilkenny. The Oireachtas acted quickly and increased the maximum sentence within weeks, and revisited the issue two years later. Before that individual was due to be released from prison the law had been revised twice, yet here we are, five years after the sentencing of a woman, a so-called mother, still awaiting a change to the law.

I do not question the bona fides of the Minister, Deputy Shatter, or his commitment to reform this law, but it is taking far too long. That is why, two years ago, I published this legislation, the Criminal Law (Incest) (Amendment) Bill 2012, which addresses the 21-year legal loophole that sees men liable for life imprisonment if convicted of incest while a woman faces a much shorter maximum sentence. In order to address this anomaly and ensure equality of treatment of sentencing in incest cases, the Bill proposes to increase the maximum sentence available to judges in respect of females to life imprisonment so that the law no longer makes an irrational distinction between male and female perpetrators of such horrific offences.

The Bill proposes to amend section 2 of the Punishment of Incest Act 1908 by substituting the word "felony" for "misdemeanour" and substituting the words "to be imprisoned for a maximum term of life" for "to be kept in penal servitude for any term not less than three years, and not exceeding seven years, or to be imprisoned with or without hard labour for any term not exceeding two years". All I am seeking is ten words to ensure the option of life imprisonment is open to judges upon conviction of either a male or female for the inhumane act of incest.

This change in the law is needed now, not some time in the future. That is what the family at the centre of the case to which I referred has requested. While the law has been changed twice since the Kilkenny incest case, both changes happening in advance of that offender's release from prison, the perpetrator in the Roscommon case will be released in advance of any new change in the law. While my proposal would have no bearing on the sentences served by those already convicted, it would at least help the victims, who will see that their tragedy is being taken seriously by the Legislature and that no other offender will receive such a light sentence in future. As I said, all I am seeking is the insertion of ten words in the legislation. The legal loophole in regard to incest has existed for 21 years. Let us ensure it does not run to 22 years.

I accept the commitment of the Minister to reforming this particular aspect of the legislation and the law in regard to sexual offenders in general. The current law in this area was enacted by the Oireachtas in 2001. A review took place in 2009, on foot of which we were promised new legislation. In fairness to the Minister, he has made progress in this regard since his appointment. However, it is vital that we address not only this particular issue but other gaping loopholes within the sexual offences legislation.

One of those loopholes relates to the sex offenders register. In issuing her sentencing in the Roscommon case, Judge Reynolds ordered that the defendant be placed on the register. Under the Sex Offenders Act 2001, the Garda domestic violence and sexual assault investigation unit monitors and manages notification provisions and maintains all information relating to persons who have obligations under that Act. More than 1,300 persons are monitored by An Garda Síochána on an ongoing basis. A nominated Garda inspector in each division has responsibility for monitoring of persons subject to the requirements under the Act within his or her division. All sex offenders are required to notify An Garda Síochána within seven days of their release from prison that they have been convicted of a sexual offence and must provide their name and address. They are also obliged to notify the Garda of any change in their name or address and give notice of their intention to leave the State.

The duration of the post-release notification requirements varies according to the sentence received, ranging from a five-year period for non-custodial sentences to an indefinite period for sentences of more than two years. Failure to notify is an offence punishable by up to five years' imprisonment and triggers Garda powers of arrest without warrant. Unfortunately, the current system of monitoring sex offenders simply is not working. Central Statistics Office data show that 24 breaches were recorded in 2009, 50 in 2010, 59 in 2011, and a similar figure in 2012. In a scenario where some 100 sex offenders are discharged from prison on an annual basis, we have six prison staff with responsibility for performing risk assessments for the entire prison population - not just sex offenders - in respect of transfers, temporary releases and early releases. There is one recorded breach for every five people on the sex offenders register. In other words, one fifth of those on the register have been in breach of the conditions at one stage. A breach occurs where there is a failure on the part of an offender to notify any Garda station of where he or she is living, or where an offender fails to reside at his or her designated address one of out of every seven nights. The requirements are quite simple, yet one in five offenders breaches them. The reason for the high incidence of breaches is that the system is hugely lax. There are major loopholes in the legislation, some of which I have raised in the past. In 2009, for example, I raised the issue of the seven-day notification period with the Minister's predecessor, Dermot Ahern. The situation in the United Kingdom is that once a sex offender is released from prison, he or she must notify the authorities of that release within three days, with the same notification period applying where offenders change address. Here, the notice period is seven days. The former Minister told the House in 2009 that unless this particular loophole was closed off, Ireland could become a safe haven for convicted sex offenders. Fifty months later, convicted high-risk paedophiles can visit Ireland from Britain or Northern Ireland, unknown to the authorities, and roam around the country legally for seven days. It is not good enough that this particular anomaly remains in the law. There have been numerous instances where people who are being sought by the authorities in the North, some of whom have already been convicted in the past for sexual offences, are found residing in this State. It is imperative that this loophole be closed off as quickly as possible.

Some small good - if one can call it that - might be said to have come out of the horrendous case in Roscommon in that it highlighted the positive aspects of practice within the Garda Síochána. Sergeant John Hynes showed enormous dedication, not only in bringing this particular case to conviction but also in respect of the similar cases he has pursued over his career. He has been recognised by colleagues for his tremendous work in this area. At the time of the court hearing in the Roscommon case, Sergeant Hynes singled out the family for praise, pointing out that credit was due to those members who brought these crimes to the attention of the authorities and facilitated the prosecution and conviction. In exposing what was done, that family triggered action in this area. On foot of the case, pilot audits were done in three areas, one of which was Roscommon, into how neglect cases were being handled.

In County Roscommon it identified seven families out of the 30 examined, where adequate provisions had not been put in place to protect children. The audit of three areas identified a total of 17 families who had been failed miserably by the State. The audit represents only a small snapshot of the number of neglect cases in the country. On foot of the pilot study, the Minister for Children and Youth Affairs has directed the HSE to review all neglect cases in the country. Hundreds of families will be saved on foot of the review that has taken place owing to the fact that these children were brave enough to come forward.

I acknowledge the assistance of two individuals who helped me to draft the Bill - Ms Jill Mellor in my own office and Mr. Brian Hunt without whose assistance the Bill would not be before the House today. The objective of the Bill is to ensure that through our laws we protect those who are most vulnerable in society, namely, children and all victims of such horrific crimes. We owe it to the children at the centre of the Roscommon case to ensure their courage and bravery are recognised. No other family should be failed by the State to the extent that this family were. Judge Miriam Reynolds said:

But there are six lives that are destroyed and there is no other way of saying it, they are all victims of abuse. The woman who gave birth to them will cast a long shadow over their lives forever.

Let us ensure this law will reduce that shadow somewhat. Let us close off this loophole once and for all and ensure the law reflects the abhorrence we all have of this offence.

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