Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I will go into some detail on this in order to be helpful. Sections 27 and 28 simply update and restate the existing provisions in the Punishment of Incest Act 1908 in so far as the offence of incest is committed by a male or female. We are trying to update the language and provisions of a very old Act. It will bring the penalty for incest by a female into line with that of a male. The Deputy's amendment would have the effect of bringing the female to seven and leaving the male at life. That inequality would remain if we went along with the Deputy's amendment.

I take the point Deputy O'Callaghan made and I will come back to that in terms of the overall approach to incest in this part of the Bill. There are two further distinctions between the offences, and the first relates to consent. The Deputy is suggesting that the entire section should be removed but where the offence is committed by a male, it is not a defence that the female consented. The offence by a female does not provide for a similar provision. The reason for this is because the nature of the offence of incest by a female is different from that committed by a male. The offence by a female is committed where she permits a specified male relative to have carnal knowledge of her and relying on defence of consent on the part of the male would not arise. Incest by a male is committed where he has carnal knowledge of a specified female relative. In this case, it must be specified that consent by the female is not a defence. In fact, the female party to the act, by consenting, is liable for the offence under section 28. If there is no consent on either party, the offence is not one of incest but it is one of rape under the Criminal Law (Rape)(Amendment) Act.

I have already referred to, and the Deputy has quoted from it, the Supreme Court judgment regarding this where the Supreme Court upheld the gender distinctions, so I will not go into the detail of that again. The Chief Justice noted previous case law which held that the Oireachtas is entitled, on public policy grounds, to protect underage females from the risk of pregnancy - this was the Chief Justice and the Supreme Court saying this - as the female carries a greater burden from the act - emotionally, physically and psychologically - should she become pregnant. Similar policy grounds were also the basis for the distinction in section 2 of the 1908 Act. That is in regard to consent.

If we do what Deputy O'Brien is suggesting in his amendment, namely, delete this section, the consequence of that is that we would retain the existing provisions under the Act along with the difference in penalties. We would not go back to equating the penalties but to having a life sentence for a male and a seven-year sentence for a female.

I want to make some general points about this issue. The amendments I am tabling close an anomaly relating to the penalty which applies depending on whether the offender is a male or a female. What I am suggesting changes that. The fact is the offence of incest specifically recognises the harms and exploitation associated with intrafamilial sexual abuse and, as we know, it can extend beyond the victims to the entire family unit, and there have been some prosecutions. The purpose of the provision is to equalise the penalties between offences committed by males and those committed by females, as well as taking the opportunity to modernise some of the language in the Act.

However, I would make the general point that in so far as Deputies have expressed concerns about the framing of offences, as Deputies O'Callaghan and O'Brien have done, this is an area of law that we could look at again if Deputies consider that appropriate. I have looked at it. It is a very complex legal area and I do not believe that I can do it in this Bill. It would be an issue for other sexual offences legislation. If we were to reform this, that would require a good deal of consultation and discussion on the change in the penalties that I am advised we would have to consider. This was done in England, for example, and the whole issue of incest was completely taken out of sexual offences legislation and a separate Bill was brought forward. Quite an amount of work would need to be done on that. What I am doing here is equating penalties, dealing with the consent issues and describing why they are slightly different for males and females, and I am not going further than that.

I would ask Deputies to consider not pressing amendment on the basis that this is a very complex area and that I cannot go further than this in the legislation and in the amendments I am proposing, which are doing what I have set out.

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