Seanad debates

Thursday, 10 May 2012

Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012: Second Stage (Resumed)

 

5:00 am

Photo of David CullinaneDavid Cullinane (Sinn Fein)

I welcome the Minister back to the House and thank him for getting me onto the programme "The Week in Politics" last week. It is not often a Member of the Seanad makes his or her way onto it.

Everybody in the House would accept that the State and many institutions within it have failed children for many years. We are aware of a litany of failures in child protection and a number of high profile reports have shown how many institutions have failed children. I see the Bill as part of the resolving of some of these issues and making sure the State's responsibility to protect children is rock solid and robust. For that reason, I broadly support and welcome the Bill. It is something for which my party called in the past. It is very important that no individual feels offences committed against minors do not have to be reported.

The Bill has been long awaited. I assume, however, that the Minister would agree legislation alone will not be a cure for offences against children. We are very clear that the Bill must proceed alongside wholesale reform and the adequate resourcing of the social care structures, social workers and the Garda to enable them to do their jobs effectively. Like anything else, there must be a multifaceted approach.

A number of people have contacted me about their concerns about the Bill, including about reporting. It is a matter of balance. If the Government manages things correctly, it should not be problematic. We are examining the detail of the Bill and if we have amendments, we will table them as it progresses through the Oireachtas. We have a minor concern about including provisions relating to the Offences Against the State Act. Given our position on that Act, our concern does not relate to the intent of the provisions but rather the use of the Act. The purpose of the Bill is to establish an offence of withholding information when a person has knowledge of a specific offence being committed against a child or a vulnerable person. A child is defined as a person under 18 years, while a vulnerable person is a person who is suffering from either a mental, intellectual or physical disability that leaves him or her unable to sufficiently guard against abuse. When enacted, it will be a criminal offence to possess knowledge of a specified offence committed against a child or a young person that would aid in the apprehension, prosecution or conviction of another person for that offence and not to report it as soon as is practicable to the Garda.

The Bill includes a provision for the inclusion of attempting or conspiring to commit offences. A number of people have asked whether a child could be convicted for failing to report a crime against him or her. A child against whom an offence has been committed shall not be guilty of an offence. A child may not be prosecuted for a failure to report his or her abuse and this defence will continue to apply until he or she reaches adulthood. The provisions also apply to vulnerable persons. We support the inclusion of these provisions.

Another issue of concern which was the subject of many e-mails I received involved the breaking of the confessional seal by clergy and penitent confidentiality and whether there would be a constitutional block. On balance, the right of children to be protected outweighs clergy-penitent confidentiality. There is no constitutional block. Article 44.2.1° of the Constitution is relevant in this regard. It reads: "Freedom of conscience and the free profession and practise of religion are, subject to public order and gravity, guaranteed to every citizen". Priest-penitent privilege is not absolute in many other jurisdictions. In some common law jurisdictions clergy are obliged to report crimes, even when evidence is given in confession. New Hampshire, North Carolina, Oklahoma, Rhode Island, Texas and West Virginia all disallowed the use of clergy-penitent privilege as a ground for failing to report suspected child abuse or neglect in any context. The Catholic Church is present in all these states and complies with the civil law, or it ignores it and remains complicit in the abuse of children when someone confesses to it. Common law precedents seem to indicate privilege as it applies to the confessional is not absolute.

I support the Bill and the Minister who is willing to reform the law to make sure the State lives up to its responsibility to protect children. However, we have a long way to go and there is lot of healing to be done. We cannot correct or right a lot of wrongs visited on many children throughout the history of the country. We all accept this. Our responsibility now is to make sure we introduce legislation that will sufficiently and robustly protect and defend children against abuse. Any Bill brought before this or the Lower House will be fully supported by my party.

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