Clare Daly (Dublin Fingal, Independent) | Oireachtas source

There are two parts to the Bill. The first deals with the maximum sentences for incest and the second deals with the introduction of new mandatory minimum sentences for repeat sexual offenders. I will deal with the two parts in reverse order.

First, in terms of the new mandatory minimum sentencing, I understand the motivation behind the proposal. Repeat sexual offenders have a considerable impact, both on their previous victims and, obviously, on those they go on to offend against. They are some of society's worst offences and we obviously all want a regime in place which makes it less likely that someone having committed one offence would ever go on to commit another. In that context, the Bill's sentencing proposals run along a bizarrely complex formula which makes no sense to me. Basically, what the Bill is calling for is that where somebody was convicted on indictment of an offence specified in the Schedule - the first offence - and was sentenced to imprisonment for at least five years, and is subsequently convicted of another scheduled offence committed within ten years of the first conviction, a presumptive minimum sentence applies in relation to the second conviction. The sentence for the second offence must be at least three quarters of the maximum sentence which can be imposed for the second offence. If the maximum term for the second offence is life imprisonment, the minimum sentence should be at least ten years, and any suspended portions of a sentence do not apply. In other words, if someone was sentenced to seven years with three years suspended for an offence and then goes on to commit another offence, the person will not fall under this Bill's ambit because the person only served four years of the sentence. It is complex and hard to get one's head around it. To be honest, it seems completely arbitrary.

In any case, the proposal in the Bill to introduce mandatory minimum sentences will not achieve the goal of making offending less likely. In general, years of evidence shows us that mandatory minimum sentences for any crime are not effective deterrents. The fact is reflected in the findings of the 2013 Law Reform Commission report on Mandatory Sentencing and the 2014 Strategic Review of Penal Policy. Both made clear recommendations that no new mandatory sentencing scheme should be introduced. The Strategic Review of Penal Policy, in particular, was a cross-agency report which included victims' representative groups alongside agencies tasked with crime prevention and the IPRT. While deterrents might be an appealing concept in theory, the empirical evidence shows that there is no justification for that in reality. In fact, there is evidence that sanctions, in general, may provide some deterrent but no evidence to suggest that a more severe penalty is a greater deterrent than a less severe penalty. While mandatory minimums, I suppose, have a feel-good factor to them in that they give politicians the opportunity to vent their horror at particularly shocking crimes and give the appearance of taking action, the fact is that they do not deter criminals in general. In particular, given that the recidivism rates in terms of sexual offences are among some of the lower ones, I am at a lost as to why the Minister would think that this legislation would act as any deterrent to the particularly determined and particularly disturbed individuals who buck the trend and go on to become repeat sexual offenders.

On top of that, there is the point that Sinn Féin cut a deal with the Government during the Judicial Appointments Commission Bill 2017 in looking for sentencing guidelines linked to the new Judicial Council Bill 2017. In fact, in fairness to the Judiciary, it has been crying out for that for years, particularly for tricky cases. It is wrong to introduce a new regime while that is pending.

I should also point out that the Minister is waiting for a review of presumptive minimum sentencing which was commissioned by this Department, and was due to be published in July. Why are we not waiting for the outcome of that before rushing in with this legislation? It does not make any sense.

The reality is that mandatory minimums are knee-jerk responses to media hype. Sentencing guidelines, on the other hand, are carefully considered, data based and evidence driven, and they are far more effective and useful. The Judiciary itself would feel that.

When one looks at it, the Bill, while recommending a presumptive minimum, allows judicial discretion in applying the minimum and, ultimately, it is bringing it back to the judges anyway. What is the point in having this legislation at all? It defeats its own stated objectives. Why not expedite the Judicial Council Bill 2017 which we have been promised since the start of this Government and create proper sentencing guidelines? If this is politics, it is pretty poor politics and it is selling people short.

If the goal of this Bill is to right the wrongs of the past, as other Deputies have said, I would say we have seen some shocking sentences handed down for some of the most appalling sexual crimes. In such cases where say sentences have been totally suspended or where the offender has been invited to make a financial contribution to the woman he raped or whatever, which, I accept, is appalling sentencing, the fact that suspended sentences are not counted in this legislation in calculating the minimum for the second offence means the Minister will not fix that problem with this legislation.

It also falls short on that count. It is completely wrong that we would introduce anything like this at present.

On the Bill's other provision regarding incest, I see no problem with aligning the maximum sentence that can be given to men or women. I have no problem with the reduction in the maximum sentences given that the Bill relates to consenting adults where other aspects of our criminal justice legislation deal with abusive or coercive incest. However, it is something we should look at in this legislation because sexual abuse and child sexual abuse in particular is something that sadly takes place overwhelmingly within families and extended families. It is something which is very much in focus at present. HIQA's recent report on how Tusla manages allegations of child sexual abuse was a scathing indictment of failures in the system and should greatly worry us all. It worries me a great deal. What worries me more still is the number of people who have contacted us who have seen children go through that system and have seen the system fail at multiple different points of the process.

The following example captures not only the problems that exist in how allegations of child sexual abuse are dealt with but also how those problems radiate out and compound the really serious problems that exist within our family law system. Let us say that a child makes a disclosure to her mother that her father is sexually abusing her. The mother, horrified, reports it to Tusla which does a preliminary assessment and decides the allegation is sufficiently credible for a full assessment to be done. Therefore the child goes in for interview. If she is lucky this will be done by a specialist unit, of which there are a couple around the country, but if there is no specialist unit nearby, then she will be assessed by social workers whose training and skill in the forensic interview techniques needed for this delicate work may not always be present. The full assessment might be a couple of 15-minute interviews, after which only two findings are available: the allegation is either founded or unfounded. Unlike criminal law, for example, where there can be a finding of insufficient evidence, that is not provided for here. Once a decision has been made that an allegation is unfounded, that is the end. The case is closed, and the file is put on the shelf to gather dust. Prior to the child's interview there was no risk assessment, no home visit or investigation, and once an allegation is declared unfounded there is no follow-up whatever. It is game over.

The Minister for Children and Youth Affairs recently told me about this blunt tool that Tusla are civil authorities making findings on the balance of probabilities. She continued that this may differ from the burden of proof for criminal prosecution required by investigations by An Garda Síochána, but that is precisely the problem. Tusla are making findings on the balance of probabilities, but if the agency gets it wrong and determines that an allegation is unfounded, then the child is condemned to continue to being abused. It applies particularly in cases where a child lives with a parent who is carrying out the abuse on him or her. Surely we should contemplate legislation which provides for a middle ground between founded and unfounded - it could be called insufficient evidence, perhaps - but there has to be something that puts in place a risk assessment that really protects children and provides meaningful engagement.

Let us return to the hypothetical child. When the allegation is decided to be unfounded, Tusla closes the case, the mother cannot believe it and is further horrified when her daughter goes on to make further disclosures of sexual abuse by the father. In the meantime the relationship between the parents has broken down and custody proceedings have started. Every time her daughter discloses abuse by the father, the mother reports it but because it has been deemed to be unfounded, before long there are social workers sitting beside the mother telling her she is the one who is abusing the daughter by emotionally abusing her and coaching her. The child keeps coming back to say terrible things are happening, and things get worse because the mother, who now is being accused of coaching, will not shut up. Custody proceedings are in full swing and the court orders a section 47 report. This is something I have raised with the Minister. A section 47 report is compiled by either a psychotherapist, a psychologist or a psychiatrist, with the intention of providing a guidance to the judge. In practice, judges place a great deal of weight on these reports. They are not supposed to rely on them completely but they do so severely. In some instances, and in the hypothetical case I am outlining here, the person doing the section 47 report is a psychotherapist, which is an unregulated profession. Such individuals can essentially say what they like in a report that determines the fate of that child. Courts have ordered the child to remain with the abuser, and to go into his or her full custody, in that case. It is a crazy system. If we want to deal with abuse and sexual abuse within families, we must pay attention to this huge deficit in our system. Psychotherapists can theoretically do what they like during the interview process, which is about interviewing vulnerable children and there is nowhere for anyone to complain about it. If the child in that situation is in the middle of a custody battle, the psychotherapist doing the section 47 report has seen the report from Tusla with the assessment on the original allegation as unfounded, has been told that the mother will not let it go and that she is the one engaging in abuse. Suddenly, the process then unwinds. The mother has nowhere to go or to complain because the family court is held in camera. That means that it is a criminal offence to disclose to anyone not involved in the hearings what happened in that court case, which means there is nowhere to go. It is almost like a licence to facilitate paedophilia in this State. Sadly, the hypothetical instance I have given is not hypothetical at all. People in Ireland are in this situation today because of the shortcomings in our legal system. It will be the new scandal of our age. While I am sure and I hope people here are motivated to help the victims of sexual abuse but if we do not address the time bomb of this in camera rule and this appalling way of dealing with child sexual abuse in our State then we will have on our hands a new modern horror scene, the likes of which makes abuse that happened to children in our State in the past pale into insignificance. We should use the opportunities presented by legislation such as this to deal with these appalling deficits. While it is nice to equalise consensual incest, it is not comparable with the appalling child sexual abuse which goes on and is not dealt with in this State.

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