Aodhán Ó Ríordáin (Dublin North Central, Labour) | Oireachtas source

I thank the Senator. The Minister appreciates the purpose behind the proposed amendment but she has initial misgivings about it. The purpose of the provisions in sections 22 and 23 is to remove the existing gender anomaly relating to the penalty for incest by a male as opposed to by a female. Otherwise, they reflect the provisions of the Punishment of Incest Act 1908. When offences of this nature occur, generally an adult and child are involved. The 1908 provisions were undoubtedly intended to protect children within the family but they were also motivated by the potentially adverse effects on any children born out of such relationships and eugenic considerations generally. For this reason, the Act and the amended provisions proposed in the Bill limit the offence to an act between persons where pregnancy is most likely.

The Senator's amendment broadens the offence in this respect. For instance, the current offence of incest by a male includes a male who has carnal knowledge of his granddaughter, but not a male who has carnal knowledge of his grandmother. Equally, in so far as there is an offence of incest by a female, it may occur where there is carnal knowledge with her grandfather but not her grandson. Obviously, where a person engages in a sexual act with a child under the age of 17 years, the existing defilement offences under the Criminal Law (Sexual Offences) Act 2006 will apply. However, where it is an offence of incest, the relationships within which the offence may arise are limited to those most likely to result in pregnancy. Therefore, the Minister wants to examine this aspect of the amendment to ensure that it does not unnecessarily extend the offence of incest. The amendment would limit the offence to persons over the age of 17 years where currently that limit only applies to females and not to males. The amendment would exempt males under 17 years of age from the offence, thus restricting its scope while expanding its extent by unifying the categories of prohibited relationships for both sexes. We must be careful not to bring about unintended or unnecessary consequences.

The Supreme Court has adjudicated that the Oireachtas is entitled to protect girls under the age of 17 years from the risk of pregnancy because a girl potentially carries a greater burden from the act physically and emotionally should she become pregnant. The Minister is concerned that accepting the amendment may preclude, where appropriate, the prosecution of a male of, for example, 16 years of age.

The amendment also deletes subsection (2) from the offence of incest by a male. Under subsection (2), a male cannot rely on the consent of a female as a defence to a charge of incest. While there is no similar provision in the offence by a female, it would not be correct to suggest that the offence by a female can be defended by the consent of the male. The nature of the offence by the female is different than 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. Consent on the part of both parties is, therefore, implied and an element of the offence. Relying on the defence of consent on the part of the male would not arise. The offence by a male is committed where he has carnal knowledge of the female. A provision clarifying that consent of the female is not a defence is, therefore, required and brings it into line with the offence by a female. Removing this provision from the offence by a male would mean a male could rely on consent as a defence but a female could not. For these reasons, we cannot accept the amendment.