Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I thank Deputy Denis Naughten for raising this issue. It is one in which he and I have had a particular interest for some considerable time. The Bill is, in part, a response to the Roscommon child care case, as detailed by him. As the House is aware, an inquiry team chaired by Ms Norah Gibbons presented a report on the case to the HSE in October 2010. I am conscious that the preface to the report referred to the wave of publicity and comment that, understandably, followed the sentencing of the mother and father in 2009 and 2010, respectively, for physical abuse, sexual abuse and neglect. The inquiry team was sensitive to the fact that publication of its report was likely to give rise to further publicity. While acknowledging the public interest in this matter and a need for the facts to be reported, the team asked those involved in reporting and commenting on the case to be fully cognisant of the effect such reporting would have on each and every one of the children and young people concerned. It is important that we be just as cognisant today of the well-being of the young people in question and I do not propose to say anything more about the case referred to in the explanatory memorandum to the Bill. As the Deputy correctly said, it is an issue which I raised in the House, with others, and which was addressed at some length.

To put matters in perspective, it is important to say, as the offence of incest is narrowly defined, that incest legislation is much less used than other sexual offences legislation to prosecute familial sexual abuse. I am informed that between 2003 and 2011, inclusive, court proceedings for incest offences were commenced in only 12 cases. There were eight convictions in the same period, only one of which was for incest by a female. As the Deputy correctly pointed out, this is the only known case of incest by a female of which I am aware since the foundation of the State in which a conviction has been secured. I accept, so far as legislation on the Statute Book is concerned, that there is a gender anomaly - for historical reasons - in the penalties for incest, an issue the Deputy and I have raised previously in the House. The maximum penalty for incest by a male has been increased twice, in 1993and 1995, and is currently life imprisonment. The maximum penalty for incest by a female has been seven years since passage of the Punishment of Incest Act 1908. Accordingly, I have no difficulty, in principle, with the Private Member's Bill and the Government is not opposing its reading on Second Stage.

On 17 December last the Government approved the drafting of a wide-ranging sexual offences Bill. This Bill will include measures to equalise upwards the penalties for incest by male and female offenders. It will also take a more comprehensive approach to reform of the law in this area than the Bill before the House which simply proposes to increase the penalty for incest by a female to life imprisonment to bring it into line with the penalty for incest by a male. I have no disagreement of any nature with this whatsoever. The Government's Bill will provide for waiver of complainant anonymity in certain circumstances. Currently, the Incest Proceedings Act 1995 provides for total anonymity of the accused and the complainant. The sexual offences Bill will also provide for repeals in order that the law on incest can be consolidated. As I have indicated, the original legislation on incest pre-dates the foundation of the State. In addition, the Government's legislation will enhance the protection of children from familial sexual abuse and abuse by persons in authority through amendments to the wider criminal law.

Incest offences, on their own, are of limited value in protecting children from familial sexual abuse. This is because prohibited relationships for the purposes of incest offences are based on a close degree of blood relationship and incestuous acts for the purposes of the Punishment of Incest Act 1908 are limited to sexual intercourse. Therefore, any other sexual interference of any nature by a parent or a very close relation with the child does not fall under the offence of incest. The offence of incest by a male, for example, does not include incest committed by an uncle against his niece - it is so confined in the manner in which it was detailed in the 1908 Act.

The wider criminal law must and does take a more comprehensive approach to the protection of children from familial sexual abuse. For example, the Criminal Law (Sexual Offences) Act 2006 created two separate offences of engaging in a sexual act with a child. These are gender neutral offences and apply whether there is a familial relationship between the complainant and the accused. Also, prohibited sexual acts include all penetrative sexual acts; therefore, they are not confined formally to sexual intercourse.

The offence at section 2 of the 2006 Act of engaging in a sexual act with a child under the age of 15 years carries a maximum penalty of life imprisonment, that is, the same penalty as the maximum penalty for incest by a male. The offence at section 3 of the 2006 Act of engaging in a sexual act with a child under the age of 17 years carries a higher maximum penalty where the offender is a person in a position of authority. That term is broadly defined. It includes blood relatives, for example, an aunt or an uncle, not covered by incest offences and household members who are not related to the victim by blood.

The sexual offences Bill will enhance the protection of children from abuse by persons in authority. In particular, it will expand considerably the definition of "person in authority" in the 2006 Act to reflect the greater diversity of family households in Ireland today. Accordingly, it is proposed to add the partner of a parent who lives in an enduring family relationship with the parent, as well as foster and adoptive parents, to the definition. As I stated, I have no difficulty, in principle, with the Bill we are discussing. However, it is necessary to point out that, in addition to the limited focus of the Bill, unfortunately, the drafting of section 1 is flawed. This is because it fails to take account of the Criminal Law Act 1997 which abolished all distinctions between felony and misdemeanour. It also abolished penal servitude and hard labour.

The explanatory memorandum to Deputy Denis Naughten's Bill states the anomaly it seeks to address "also highlights the consequences of the State's failure to actively review and modernise legislation in the area of sexual crimes as well as other areas". I do not accept that is the case. My Department has undertaken a wide and comprehensive review of the law on sexual offences. This is a complex area of the law and there have been delays. However, the required Bill in this area is being drafted. The scheme of the Bill has more than 70 sections. It is extremely comprehensive and, when published later in the year, Deputies on all sides will see that we will have a modern legal architecture to address all of the various areas that need to be addressed in a consistent and coherent way and some issues that have not up to now been adequately addressed or, essentially, ignored in the law.

In addition to reforming the law on incest, this comprehensive legislation will implement the following - the legislative improvements identified by the Department's comprehensive review; recommendations of the Joint Committee on the Constitutional Amendment on Children; recommendations of the Joint Committee on Child Protection; full compliance with the Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse; and the EU directive on combating the sexual abuse and sexual exploitation of children and child pornography. That gives Deputies an insight into the range of issues we are dealing with and the extent to which I am committed to ensuring our full compliance with all relevant and important international instruments with regard to providing child protection and dealing with areas of child sexual abuse.

The protection of children from sexual abuse and sexual exploitation is a top priority of the Government. This is evident from the significant legislative output in this area since the Government took office. As a priority following publication of the Cloyne report, I steered two very important legislative measures through the Houses of the Oireachtas. In August 2012, the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act was enacted and introduced important measures designed to deal with the problem of failure to report abuse. Following this, in December 2012, the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 was enacted. This Act provides for the mandatory vetting of persons working with children or vulnerable adults.

The Minister for Children and Youth Affairs has also taken a number of initiatives, as part of a wider package of measures, to further ensure the protection of children and vulnerable persons from sexual abuse and exploitation. To mention one such initiative, the Child and Family Agency became an independent legal entity on 1 January this year and is now the dedicated State agency responsible for improving well-being and outcomes for children.

I also wish to mention the registration of sexual offenders, an issue on which I have had very strong views for some time. The Deputy also has such views and referred to them in his contribution. There are specific and detailed provisions in the scheme of the Bill, which will appear in the draft Bill when it is finalised with the assistance of the Office of the Attorney General, to change our law in this area. The three day rule which the Deputy mentioned is incorporated in it. We have looked carefully at the issue of the failure of registered sex offenders to comply with their obligation to give notice of change of residence. We have also looked at issues surrounding the notification of members of An Garda Síochána of an intended residence location in the period immediately preceding an offender's release. Substantial and comprehensive work has been done on this. Of course, no Bill is perfect when published, but I look forward to having it published later this year and to the debate that will take place on it. I will incorporate the wisdom of Members in any improvements that can be made.

I understand that the Deputy is impatient to see progress quickly. It is possible to make progress on isolated issues by cherry-picking them out and putting them in a short Bill. I am not saying that in a critical fashion because this is an important issue but, because of other provisions in our sexual offences legislation, there are other charges that could be brought in the circumstances of the case we have been discussing which would hold out the possibility of a far heavier sentence than arose in the Roscommon case. It is important that we take a comprehensive approach and address all the outstanding issues that have either been too far ignored or have not been adequately addressed in existing legislation, having regard to experience and the review that has been undertaken. In so far as none of us is pleased with delay, and I tend to want legislation to be produced at a double quick time and rate, a substantive and comprehensive approach and ultimately the introduction of comprehensive reforms is of great value.

In conclusion, I reiterate that the Sexual Offences Bill will be wide-ranging legislation to advance reform on a number of fronts, including reform of the law on incest. Amendments to the law on incest together with amendments to the wider criminal law will enhance the protection of children from familial abuse. I assure the House the legislation will be published later in the year and I look forward to its early enactment.

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