Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I want to speak to the amendment. The amendment in Deputy Jonathan O'Brien's name is a proposal to amend the legislation by removing section 28, which criminalises incest on the part of females of or over 17 years of age. This was discussed briefly on Committee Stage when the matter was before the select committee. The law in respect of incest is archaic and there was a discrepancy between the penalties imposed upon men and those imposed upon women. Under the Punishment of Incest Act 1908, the law was created so that incest by a man would be punishable by three to seven years and incest by a woman would be punishable by three to seven years. There was harmony between the two. In 1993, section 12 of the Criminal Justice Act amended the law in respect of incest by men and it altered the penalty to one of 20 years. Subsequently in 1995, the Criminal Law (Incest Proceedings) Act amended the penalty again to increase it from 20 years to life imprisonment. As matters stand, incest committed by a man is punishable by life imprisonment but incest committed by a woman is punishable by a term of three to seven years.

This issue came to some public prominence in January 2009 when we had a prosecution and conviction for incest which is highly unusual. In January 2009, a mother of six was convicted in Roscommon Circuit Court on ten counts of incest. At the time, the judge noted the only penalty available to the court to impose was a sentence of between three and seven years. That gave rise to some concern that there should be harmony between the two offences. However, my view is that a penalty of life imprisonment for incest in the context of the offences that already exist on our Statute Book is excessive. For example, if that case against the mother in Roscommon arose in the aftermath of the legislation before us being enacted, sections 16 and 17, which deal with sexual acts with children under the ages of 15 and 17, respectively, would apply. If the mother in question was prosecuted in respect of having sex with her son and if the son was under 17 years, she would now face the possibility of a term of imprisonment not exceeding 15 years. The imposition of a penalty of life imprisonment is anachronistic. The thing that slightly concerns me - I will wait to hear Deputy Jonathan O'Brien's view on it - is if we agree to the amendment, the law will remain as it is at present so that men can be prosecuted and imprisoned for life in respect of incest and women can be prosecuted and imprisoned for three to seven years. My view is it would have been better if the penalty for both was three to seven years. It is a bit of a dilemma and I am interested to hear from the Tánaiste and Deputy Jonathan O'Brien.

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