Seanad debates

Thursday, 15 December 2005

Commission of Investigation (Child Sexual Abuse) Order 2005: Motion.


1:00 pm

Photo of Jim WalshJim Walsh (Fianna Fail)
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I move:

That Seanad Éireann,

—bearing in mind the significant public concern about the handling of allegations of child sexual abuse against members of the clergy operating under the aegis of the Catholic archdiocese of Dublin;

—noting the informal Government decision of 22 October 2002 that the matter required further consideration and reflection, in particular on the part of the Minister for Justice, Equality and Law Reform;

—noting the Government decision of 25 October 2005 accepting in principle the recommendations of the report of the inquiry into the handling of allegations of child sexual abuse in the diocese of Ferns and giving a commitment to their implementation by line Departments and relevant agencies;

—noting that it is the opinion of the Minister for Justice, Equality and Law Reform that a commission of investigation represents the best method of addressing the issues involved;

—further noting that a draft order posed to be made by the Government under the Commissions of Investigation Act 2004 (No. 23 of 2004) has been duly laid before Dáil Éireann in respect of the foregoing matters referred to, together with a statement of reasons for establishing a commission under that Act;

—approves the draft Commission of Investigation (Child Sexual Abuse) Order 2005.

I will speak on the motion later.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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At the outset I remind the House of the circumstances which give rise to the motion which is before it. In November 2002, an RTE "Prime Time" documentary reported on child sexual abuse by priests in the Roman Catholic Archdiocese of Dublin. The programme made a number of disturbing assertions as to the inadequate way in which allegations and complaints of sexual abuse of children by priests of the archdiocese were handled, for example, that the priests in question were simply moved to another position without persons being informed of the reasons for the move.

It is universally recognised that child sexual abuse is not only morally reprehensible but also a particularly serious crime. It is my duty, and that of the Government and the Oireachtas, to protect the most vulnerable members of our community who cannot protect themselves and this applies with particular force to our children. Child sexual abuse is associated with a range of adverse long-term effects such as depression, anxiety, post-traumatic stress disorder and relationship problems. Characteristics of the abuse suffered, such as the type of abusive act, the duration of the abuse and the degree of physical or psychological force used, influence the severity of its effects. These effects extend well beyond the abused individual and can have a significant impact on secondary victims such as family members of the abused and the abuser. Furthermore, parents of sexually abused children also feel guilty because of a perceived failure to protect the child. It is also the case that where child sexual abuse is perpetrated by an authority figure such as a clergyman, its impact on the victim can have additional consequences such as alienation and a loss of faith, both faith in people and religious faith.

In addition to the grave psychological damage which such abuse can cause, the criminal offences involved are of the utmost gravity. It is important to emphasise that complaints of sexual abuse are fully investigated by the Garda Síochána and that all efforts are made to bring the perpetrators to justice. A significant number of clerical perpetrators of sexual abuse have been convicted following Garda investigations and many of them have served, or are serving, custodial sentences. Irrespective of any form of investigation that might be undertaken, it is a priority that every effort is made to ensure that anyone who has engaged in criminal behaviour of this type is brought to justice.

In light of the disclosures in the "Prime Time" programme and elsewhere, I announced my intention to introduce legislation for a new procedure which would, among other issues, enable a detailed and focused investigation into how church and other authorities dealt with allegations of child sexual abuse by clergy and religious. I subsequently introduced the Commissions of Investigation Bill 2003 and the Commissions of Investigation Act was enacted by both Houses and signed into law by the President in July 2004.

A significant further development was the establishment in March 2003 of the non-statutory Ferns inquiry into the nature of the response to allegations of child sexual abuse by priests operating under the aegis of the Diocese of Ferns. The inquiry's report, which was presented to the Tánaiste and Minister for Health and Children on 25 October 2005 by Mr. Justice Francis D. Murphy and his colleagues, contains a number of very valuable recommendations.

Under the Commissions of Investigation Act 2004, a commission of investigation may be established by the Government, based on a proposal by a Minister, with the approval of the Minister for Finance, to investigate any matter considered by the Government to be of significant public concern. An issue giving rise to significant public concern is one that is of more than mere interest to the public or the subject of vigorous political debate. It must be an issue which has profound implications for life in our society.

Both the Government and myself are satisfied that an investigation into the handling of child sex abuse allegations against the Catholic Archdiocese of Dublin comes within that category. The very sensitive nature of the subject and the need to ensure the fullest confidence in, and compliance with, the investigation means that a commission, backed up by the statutory powers available to it under the 2004 Act, is the appropriate vehicle for investigating the matter.

It would not be appropriate for the Garda to investigate this matter as it is the handling of complaints or allegations of child sexual abuse, rather than allegations of abuse themselves, which are being investigated and this would involve matters which might not in themselves have been criminal offences. In addition, in investigating the handling of complaints or allegations, it may well be that the handling of complaints made to the Garda might itself require investigation. For all those reasons, the Government is of the view that the establishment of a commission is required.

The report of the Ferns inquiry made a series of recommendations with regard to lessons which could usefully be learned from how such complaints or allegations were handled in the past, and which will result in improved child protection. The inquiry's view was that the recommendation of the 1996 report of the Irish Catholic bishops' advisory committee on child sexual abuse by priests and religious entitled Child Sexual Abuse: Framework for a Church Response on the reporting of child sexual abuse is one of the most important and has had the most impact on the church's handling of this problem in the past nine years.

In regard to the procedure of holding regular high level meetings between the Diocese of Ferns, the Garda Síochána and the Health Service Executive, the interagency review committee, the inquiry saw this as having considerable merits and was of the view that the procedure should and could be adopted in any case in which continuing problems in relation to child sexual abuse were found. On 25 October, the Government accepted in principle the recommendations in the Ferns Report and gave a commitment to their implementation by line Departments and relevant agencies. The Government also authorised the Minister of State at the Department of Health and Children, Deputy Brian Lenihan, to write to the Irish bishops' conference to ask it to ensure individual and collective compliance with the inquiry's recommendations and to request the Health Service Executive to liaise with individual bishops to ensure implementation of the recommendations. The Minister of State consequently wrote to the president of the bishops' conference and the Health Service Executive on 26 October, with particular emphasis on the 1996 guidelines and the interagency review committee.

By pursuing the position on implementation by the church of its guidelines, the State is not handing over responsibility in this matter. Members of the clergy, like all residents of the State, are subject to criminal law and answerable before the courts. Furthermore, the State has developed national guidelines for the protection and welfare of children, Children First, and monitors their implementation on an ongoing basis.

As a further step in ensuring compliance with the inquiry's recommendations, the commission should undertake two further tasks in addition to investigating the Archdiocese of Dublin. First, following a notification by the Minister for Health and Children that a specific diocese may not have established the structures or may not be operating satisfactorily the procedures set out in church guidelines — whether the 1996 guidelines or any subsequent ones — the commission of investigation should examine the position in that diocese. Second, following a notification by the Minister for Health and Children that a specific diocese may not be implementing satisfactorily the recommendations of the Ferns Report, the commission should examine the position in that diocese.

The motion before the House is a necessary prerequisite to the establishment of the commission. The motion seeks approval of the draft Government order providing for the establishment of a commission of investigation into two matters, first, the handling of allegations of child sexual abuse against clergy operating under the aegis of the Roman Catholic Archdiocese of Dublin and, second, the examination of the implementation of church guidelines or the recommendations of the Ferns Report in a particular diocese, if the Minister for Health and Children requests the commission to do so. The draft order contains a schedule setting out a statement of reasons for establishing the commission, as required by the Commissions of Investigation Act. A similar motion has been brought and approved in the other House.

The draft order sets out the terms of reference for the commission. I have circulated them to the Members of the House but I will not read them in detail as time is limited. I wish to draw the attention of Senators to a number of points about these terms of reference. They have been developed following a process of consultation with representatives of the victims and with the Roman Catholic Archdiocese of Dublin. In this context, I welcome the undertaking by Archbishop Martin that the archdiocese will fully co-operate with the investigation.

The commission will investigate the handling of two categories of cases in the Archdiocese of Dublin. First, it will investigate the handling of cases where specific complaints or allegations were made. Second, it will investigate the handling of cases where, while there were not complaints or allegations, there was knowledge or strong and clear suspicion or reasonable concern around sexual abuse.

The commission will cover a specific period — from 1 January 1975 to 1 May 2004. While I am aware arguments exist for having a longer period of time specified, I believe it is a more productive use of the resources available to proceed in this way. It was suggested in the other House yesterday that perhaps the commission should look at cases from the 1930s up to the 1960s, in addition to the specified period. It was also urged that an inquiry should take place in every diocese in the country. If we were to do it that way, I estimate that it would take a century of investigation or else I would have to set up 20 commissions of inquiry that would have to sit for five years to achieve the same result. We must be practical in all of this. It would be possible to give the commission an open-ended remit — or to require it to look at every diocese in the State — but that would make it impossible for it to complete its work within a reasonable timeframe. In addition, the further back in time one goes, while it would be interesting from an historical point of view, the more fragmentary would be the records and recollections on the handling of cases by the archdiocese and consequently the more difficult the task of investigation. The most important task is to draw lessons from the mistakes of the past so as to ensure that nothing similar happens again.

The terms of reference specify that a representative sample of cases will be examined. The important word here is "representative". It will be incumbent on the commission to examine the cases which come to its attention, whether through an examination of documents and records it discovers or as a result of advertising for persons to approach it and, having examined these cases, choose a sample which is representative of that material. The terms of reference specify that where a case is among the representative sample, all complaints and allegations by that complainant are also examined. Nobody will find that only one aspect of what happened to them is being examined, the matter will be dealt with in the whole.

Furthermore, the terms of reference specify that all complaints and allegations against an alleged perpetrator named in a complaint or allegation being investigated will also be investigated. The situation will not arise whereby one will have a detailed report of one alleged action by a perpetrator and for some reason the rest of the person's history is excluded. Perpetrators will also be examined in the whole. How the commission will choose the representative sample will be a matter for it to decide, and it will do so on the basis of expert advice.

With regard to the length of time the commission will take, the Government agreed that it would submit a final report to me in not more than 18 months. However, I am mindful of the fact that the obligation on the commission under section 32(4) of the Act is to endeavour to submit its report within the specified time period. As the sponsoring Minister I have the right to extend the time if that were necessary. I place a high importance on the independence and expertise required of a member of the commission.

The powers and duties vested in a commission include the duty to caution witnesses, to compel witnesses to answer questions, to establish rules and procedures in regard to evidence and submissions, to adjudicate in regard to matters of privilege and to conduct the investigation. All have the potential to intrude into well established legal rights. For this reason I propose that an eminent judge with considerable experience of the criminal law be appointed as the chair of the commission. I am pleased to inform the House that Judge Yvonne Murphy of the Circuit Court has indicated that she will accept the appointment. I have already discussed the proposed terms of reference with her, and she is happy to accept the position on that basis. In approving these terms of reference the Government was conscious of the obligation imposed by section 5 of the Act on those framing the terms of reference, namely, that they specify to the extent possible the events, activities, circumstances, systems, practices or procedures to be investigated.

In addition, I am obliged as soon as possible after the terms of reference are set formally to prepare an accompanying statement containing an estimate of the costs of the commission and the length of time it will take. The costs of the commission will reflect the amount of work involved to fulfil the terms of reference, the number and levels of staff deployed, the duration of the commission and other administrative costs. This will be published as soon as possible after the terms of reference are set, in Iris Oifigiúil and such other publications, as I as Minister consider appropriate.

The draft order also specifies that I am responsible for overseeing the administrative matters relating to the establishment of the commission, for receiving its reports and performing any other functions accorded to the overseeing Minister by the Act. One such function is the obligation to prepare general guidelines. Once the commission has been formally established I am required, in consultation with the Minister for Finance and the commission itself, to prepare general guidelines concerning the payment by my Department of legal costs necessarily incurred by witnesses in connection with the investigation. The commission in turn is obliged to ensure that any direction it makes concerning the payment of legal costs by me comes within these guidelines.

The guidelines will also make provision for payment to witnesses of non-legal costs. Each witness will be furnished with a copy of the guidelines in advance of his or her giving evidence. This ensures that witnesses who wish to do so can arrange legal representation with full knowledge of the regime under which they may seek to have those costs recouped.

At the conclusion of its work the commission will prepare for me a written report based on the evidence received which sets out the facts it has established on the matter referred to it. In accordance with the provisions of section 38 of the Act it is my firm intention to publish the report of the commission subject to the High Court powers to decide on the form and nature of publication.

I conclude by urging Senators to support the Government's proposal for the establishment of a commission of investigation in this case by supporting the motion before the House today.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I welcome the Minister. Fine Gael welcomes the setting up of this commission. We have for a long time supported the right of the victims of abuse to tell their stories and for the fullness of their abuse and exploitation to be realised. We believe this issue is so important that it merits time and resource investment from the Government in order to ensure that it is properly treated.

As we debate this issue, it is only right to remember that a lady, Marie ThereseO'Loughlin, has been outside the gates of Leinster House for some time. She is continuing in her constant vigil outside, even sleeping there at night to draw attention to the fact that the Government has repeatedly refused to recognise its responsibilities in respect of the Morning Star home. It is no use playing to the gallery on certain issues, and showing apparent compassion and concern. This lady's plight needs to be addressed urgently because the way she is being treated at present is disgraceful.

Any commission established by this House must be accountable and transparent and it is imperative that such bodies give people cause for confidence. The guidelines laid down by the Minister are good ones and will get to the bottom of the abuse that was allegedly perpetrated in the Dublin diocese, although many would say that an investigation is long overdue.

There are important lessons to be learned from the Ferns Report and the manner in which it was compiled. It is an understatement to say that the contents of that document were scandalous and depraved and it goes without saying that they made difficult and distressing reading. Nonetheless, it is an extremely important document in so far as it published and publicised the horror that so many children had to endure in County Wexford. This commission must use the forthrightness and directness of the Ferns Report as its compass. There is no doubt that what is uncovered and exposed by successive commissions of this kind is unsavoury and sickening. The reason for revealing these dire events, however, is to learn from past mistakes. We must ensure that these horrors are never again perpetrated in our society.

Many of the victims of past abuse and neglect have had shocking and distressing experiences. It was right and proper that they were given the opportunity to tell their stories and to tell us all how society failed them in the past so that we can make sure these events are not repeated. With many of the victims of abuse approaching old age, the commission should hear their cases now. These people have much to tell us and future generations about the kind of barbarity that can exist in a society which fails to be vigilant or protect the vulnerable. We need to hear their stories so that we never forget this abuse.

It is incumbent on us, as legislators, to put safeguards in place that will ensure the protection of children. The first step along this road is to hear the wrongs that have been committed and to air them to the satisfaction of all concerned, so that there can be no obfuscation on the facts. This commission, which people have been demanding for some time, is entirely necessary. We support its establishment and hope it will be able to bring a report to the Minister within the specified period of time because it is important to set time limits for such bodies. I hope the problems that arose for the Laffoy commission in terms of not providing the necessary finance and resources to bring forward its report will not arise in this instance.

Photo of Jim WalshJim Walsh (Fianna Fail)
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I rehearsed my position when I formally moved this motion and the Minister, whom I welcome to the House, provided the background to the matter in terms of the serious allegations made by the "Prime Time" reports in 2002 about sexual abuse in the Dublin archdiocese. Shortly afterwards, the Minister made a commitment that an investigation would be held into these matters and he has now established this commission of investigation.

We held a debate on the Ferns Report about one month ago and it was salutary and sad to learn that these events took place in our society over a long period of time. While I presume that we are all aware of the effects of child abuse, I am reminded of the words of the retired rector, Norman Ruddock, who said that the rape of innocence is the most bestial of crimes. I have seen in the Diocese of Ferns cases where, as the Minister noted, trauma and difficulties in personal relationships arose from these matters and, unfortunately, people have committed suicide. The most abhorrent issue is that the consequences often last the lifetime of victims. It is appropriate, therefore, that every step is taken to ensure we put safeguards in place to protect children who are in the care of any authority.

It is reasonable to assume that this commission of investigation will make recommendations and findings which accord with the Ferns Report. We will probably see that, prior to 1996, the responses of church authorities were inadequate. Hopefully, the report of the Catholic bishops' advisory committee on child sexual abuse and the framework for a church response was fully implemented since that date in every diocese. In that regard, the one bright spot in the Ferns Report was the reassurance that the bishop, the Most Reverend Eamonn Walsh, fully implemented the report. The interagency conferences he established on foot of allegations are models for other dioceses to follow.

I note from the terms of reference, which are specific and focused, that not only will the commission investigate cases in which complaints were made but it will also examine issues which came to the attention of the authorities through other means. It is good that the latter is also investigated because a significant amount of information will be revealed by doing so. The most important task is to learn lessons from the mistakes of the past so as to ensure similar events do not take place.

Other dioceses will be examined if they are found to have failed to implement the recommendations of the bishops' advisory committee of 1996. In the interim period while the commission is being established, I hope that the Health Service Executive will be proactive in identifying such dioceses and make them give full effect to the recommendations. That would be the ideal solution because it would obviate the need for commissions of investigation. I hope we do not sit back and wait on the commission to make recommendations but will be proactive in ensuring that happens. The bishops' conference should also deal with that as a priority.

I do not subscribe to the notion that we should have such a commission of investigation into every diocese. While I have misgivings about this one the commitments given should be honoured. I am not confident that it will bring forward any further recommendations or throw any more light on the problem than did the Ferns Report.

The commission of investigation is a new innovation by the Minister because of the exorbitant costs of the tribunals and public inquiries we have had since 1997. Due to the duration of those inquiries the reports are often out of date when published and their value diminished, so I am glad this inquiry has an 18-month target. The Ferns inquiry, operating on a non-statutory basis, was positively received from the point of view of its efficiency by most Members of these Houses and we can make a comparison to see if the commission operates as efficiently and effectively and within similar cost structures. In terms of gauging the intent of the commission of investigation that comparison is good.

We must not be side-tracked. Sexual abuse committed by clergy of any religion accounts for approximately 3% of all sexual abuse. It is important that in investigating we do not lose sight of other areas which have higher levels of sexual abuse. We must take an holistic approach to it so the effective safeguards to be put in place will cover 100% of the areas which have given rise to child sexual abuse. This includes all sorts of authorities and people with responsibility for children including, unfortunately, members of the immediate and extended family.

While the sexual abuse committed in the diocese is being highlighted, and rightly so, it is imperative that we do not overconcentrate on this to the detriment of the other 97%. This week the Departments of Justice, Equality and Law Reform and Health and Children placed emphasis on a Ministry for children and this will be a positive step in bringing all the strands together and focussing all the agencies involved in a common direction. We will have further debates on that in the future in these Houses. The House will join with me in wishing the Minister of State at the Department of Health and Children, Deputy Brian Lenihan, well in his responsibilities.

While we have opted for the commission of investigation, I wonder why the Minister did not opt for a non-statutory approach like the Ferns inquiry together with the Garda pursuing allegations to bring them to court. People who committed serious crimes should be accountable before our courts. That should be the prime objective because it becomes a strong deterrent against this type of behaviour in the future.

Mary Henry (Independent)
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I welcome the Minister and, while it is unfortunate to be obliged to do so, I welcome the commission, which he has set up briskly. I am glad he appointed Judge Yvonne Murphy chairman of the commission. Unfortunately, she probably feels that she has too much experience in child sexual abuse having often been obliged to deal with it in the courts. I am also glad Archbishop Diarmuid Martin is so concerned and has been so proactive.

It is regrettable that the tribunal will hear only a sample of representative cases but the Minister makes a good point about how long this could go on and how we could have parallel tribunals. The Ferns inquiry began with approximately three cases and ended up with 30. In the Dublin diocese, there are approximately 67 cases. If an expansion similar to that which occurred in the case of the inquiry were experienced, there could be hundreds of cases. Many people will feel aggrieved and will protest outside Leinster House wondering why their cases were not heard. While the Minister has requested a report within 18 months, he said that the commission is open-ended. I am sure, therefore, that the commission will judge what comes before it carefully.

The Ferns Report made shocking reading. It was one of the worst things I have ever read and I have read all the reports on child sexual abuse. As Senator Jim Walsh said, it is important that we examine the recommendations and that the health services should be more proactive but there is a problem. In the Monageer case, the laudable principal of the school reported the situation to the South Eastern Health Board and a female GP examined seven of the ten children, listened to their stories about the sexual abuse they had suffered on the altar of the church and thought they were credible. The community care officer was then called in and he did the best he could. Unfortunately, it looked as though they had acted ultra vires because the legislation does not cover intervention where abuse occurs outside the family. For example, the report, at page 49, states:

It is possible to identify clearly the scheme of the 1908 Act from the power which it conferred on the courts. That power was to remove a child from parents who had neglected him or her and to entrust the child to the care of a state agency or a fit person approved by the Court. The powers conferred by the 1908 Act afforded no protection to children who had been abused otherwise than through neglect or abuse by parents or carers. The Child Care Act 1991, had a more pro-active orientation and conferred a greater obligation on Health Boards in the following terms ... [It then quotes the terms.]

The report lists the terms involved and then, on page 50, states:

Just as in the Act of 1908, the Child Care Act 1991, expressly recognised that it was the right and duty of parents to care for their children and that it was the right of children to be cared for by their parents. Intervention by any State agency could only be permitted and required where it was established that parents had failed in this duty to the serious detriment of their child.

On page 51 the report outlines that the Children Act "reiterates the principle that the State should only intervene in the welfare of a child where the family fails to ensure it" and on page 52 it states:

The implication of an imposition of such a duty on the Health Board [this is to intervene when the abuse is outside the home] without any express legislative powers is an issue which the Inquiry believes should be carefully considered by the Legislature. Guidelines, either statutory or regulatory would appear necessary in order to clearly delimit the Health Boards' obligations under Section 3 of the 1991 Act.

It is important that we bring forward legislation at once to ensure that community care officers are in a position to intervene in such situations. We introduced the Protection of Persons Reporting Child Abuse Act 1998, which provided immunity from civil liability to any person reporting child abuse, reasonably and in good faith, to designated officers of the health board or to a member of the Garda Síochána. While this gives protection to the employees who report child sexual abuse, it is not sufficient according to Mr. Justice Murphy. In the recommendations on page 257, regarding the South Eastern Health Board, when the areas were being examined, it is pointed out:

[The] Health Board has no power of intervention except in places where sexual abuse is occurring in a family situation. As far as the Inquiry is aware, the South Eastern Health Board has not attempted to repeat the intervention which it made in the Monageer case and which in the view of the Inquiry was, although well intentioned, ultra vires.

It is unfortunate that it may not have been in a position to intervene in other cases although it knew it was going on. The report states further:

It is the view of the Inquiry that the powers and duties of the Health Services Executive in this connection should be regulated by the express terms of primary or secondary legislation and not by inferences drawn from general obligations imposed on these bodies.

On page 267, the report states:

The inquiry has identified in Chapter Six of the report the shortcomings in relation to the ability of the Health Services Executive to intervene properly in relation to child sexual abuse perpetrated by a non family member without the connivance of a child's parents. The Inquiry recommends that an in-depth study be conducted on the full remit of the Health Services Executive's powers in relation to this issue and that express statutory recognition is given to these powers.

I would be grateful if the Minister pushed those recommendations on because there may have been other situations where health board employees felt they should have intervened by could not do so. The faster we deal with this the better and I doubt it would be difficult to achieve in an amendment to either the Child Care Act or the Children Act. I commend the Minister for establishing the commission so quickly, although it is unfortunate that it will not have a pleasant time reporting.

I heard the Minister comment on perhaps lowering the age of consent in certain cases. When the Sex Offenders Bill was before the House I was unenthusiastic about children having permission to have sex, even if their parents knew about it. Unfortunately, parents do not always work in the best interests of their child. This should be watched carefully. As I remember, if the other partner in sex is within two or three years of the child's age, it is not a crime.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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That is not the case in Ireland.

Mary Henry (Independent)
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I did not realise that. It was certainly discussed.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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If a 14 year old boy has sex with a 16 year old girl, the boy commits an offence but the girl does not.

Mary Henry (Independent)
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It is a difficult area. Speaking as a doctor, it is important to remember that sexual intercourse frequently results in pregnancy. It is quite common. I have to deal with children as young as 11 who are pregnant and it is not a desirable situation. If we continue to lower the age of consent, young girls will become pregnant and will have problems. We have seen children as young as 12 being brought here for arranged marriages; certain ethnic groups allow that. It is not, however, a policy we should encourage. The Minister should look at this remembering the general outcome of sexual intercourse, particularly in view of the fact it is almost impossible to get adults to use protection, never mind telling children what they should do in such situations.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I welcome this motion. The only issue I will raise is that the Labour Party is unhappy with the 18-month timeframe. The Minister stated in his speech that the legislation allows for the commission to endeavour to submit its report within the specified time period. If, therefore, the commission found it could not submit a report within the 18 months, it could get an extension. That would deal with the issue, although it is still a concern. The Minister might confirm in his reply if such an extension is possible.

I am also uneasy about any proposal to lower the age of consent. It is a good idea for consultation to take place on such issues but we must be wary of the fact that, irrespective of what happens where young people have sexual intercourse, they do not have the same physical and emotional maturity as adults. The age of consent is there to protect young people from adults who would exploit and take advantage of them. If the age of consent was lowered, some adults would see young people as fair game. In the case mentioned, the judge stated that the young person concerned is vulnerable and the law is there to protect her.

3:00 pm

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I thank Senators for their contributions and their welcoming sentiments.

It is provided for in the statute that the Minister can extend the time for the commission without returning to the Dáil so it is not set in stone. Without saying the 18-month period is an abstract ideal, everyone would support the Minister in being reasonable to ensure the work is done with a requisite timeframe and an extension, if necessary. The sooner it is done the better.

Senator Henry was complimentary about the speed with which things have happened. It has taken a long time, however, to get from the original programme on RTE to the stage we are at today. The House will appreciate that I was not in a position to have an inquiry of any kind unless it was a public tribunal of inquiry which at that time required evidence to be given in public. I was absolutely clear that it would be grotesque to force victims of abuse to give evidence in public.

That brings me to Senator Walsh's question of why I did not go down the Ferns route. While I appreciate that Archbishop Martin has said there will be full co-operation with this inquiry, he cannot command co-operation from everyone. The victims' groups were supportive of the idea of establishing a new method of inquiry and it would have been strange if one of the motives for the commission of inquiry was to deal precisely with this sort of case if I then abandoned that model. I have no doubt that Judge Yvonne Murphy will learn lessons from the practical experience of the Ferns inquiry. The mere fact that one possesses powers of a statutory nature does not mean they must always be employed. If it is possible to get from A to B without using statutory powers, that is the way forward.

In regard to the points made by Senator Henry, the investigation by the commission does not preclude criminal investigations. It has been pointed out that many priests in Dublin have been convicted. In using that phrase, I point out that the great majority of priests in Dublin, as elsewhere, are wonderful, decent men who have devoted their lives to their faith and their community. When we generalise on these subjects, let us remember that the great generalisation we should always reiterate is that the clergy are, in general, wonderful people who have given up their lives, including career prospects and everything else, for others. Nothing I say should detract in any way from that fact.

Victims' representatives understand why the representative sample procedure is followed. All cases will be looked at by the commission to allow it determine what is representative. For example, if one is looking for the response of the archdiocese to three cases that are almost exactly the same, an in-depth examination of all three is not necessary. I do not believe that people whose cases are not selected for in-depth examination will feel left out if they believe, as they will have good reason to do, that by bringing their cases to the commission, or having them brought on their behalf, they will influence what cases will be dealt with and in what way. No cases will be wasted or ignored. The Department of Health and Children is looking at the implications of the Ferns Report, including what is needed to increase the powers of community care officers.

I join Senator Jim Walsh in giving my best wishes and warm congratulations to the Minister of State, Deputy Brian Lenihan, on his new appointment. It is very important that the Government's child policy be centralised in one person. It is also vital that this person has a function in each of the Departments with governmental responsibility in this area and is given adequate seniority and clout to make policy, rather than always deferring to others or trying to work out the agendas of persons sitting at the Cabinet table. In the fullness of time, this particular portfolio may become a full Cabinet one. The Taoiseach has indicated that customarily when child issues come before Government, the Minister of State will come to Cabinet and present his policies as his own. It is an important position in this respect.

I did not say I planned to reduce the age of consent. Anyone who reads the text of the interview in question will see I was very careful to say that the anomaly pointed out by the trial judge at the appeal in Galway was a significant one that pointed up important issues and apparent unfairness. I said the present law seemed to be somewhat crude but that it would be just as crude simply to solve it by reducing the age of consent. I fully agree with the points made by Senators Henry and Tuffy that simply removing an anomaly by removing protections for vulnerable people is not the way forward.

Having said that, it is very strange that a 14 year old boy who has intercourse with a 16 year old girl is deemed to commit an offence but the latter is not, while a 19 year old girl who has intercourse with a 14 year old boy, by consent, commits no offence. In the latter case, if the genders are changed so it is a 19 year old male with a 14 year old girl, there is suddenly an offence. This is a difficult issue to handle. In the case in Galway, the parties involved were in a subsisting and enduring relationship. On the other hand, as I emphasised, reducing protections as a way of dealing with anomalies is not a very subtle way of going about it.

Senator Henry queried whether people within a certain age range of each other commit an offence if they engage in consensual sexual activity. There is a popular view that this is the case but it is incorrect. There is no defence in law for a boy aged 15 years on the basis that his female sexual partner is roughly a contemporary. It is an anomalous situation. Such prosecutions are rarely taken but arise on occasion. As a practising barrister, I was somewhat surprised when a young fellow in the Dublin area was prosecuted at the age of 16 for having sexual relations with a girlfriend aged 15. The genesis of it was that they disappeared for some days together and when she got into trouble, it was the usual thing; she said it was non-consensual. After a time, she admitted that it had been consensual all along. In the meantime, however, the boy made admissions to the Garda that intercourse had taken place and he was prosecuted and given a suspended sentence.

In situations like that, I agree with Senators Henry and Tuffy that removing the protections for younger people would be crude. Simply saying the logical answer to this is to select some age above which everybody is fair game for everybody is not the way forward. Is it fair, however, that if a 19 year old woman has sex with a 15 year old boy, there is no offence, but if a 15 year old boy has intercourse with a 16 year old girl, he commits an offence? That offence goes down on his record and will come into play if, for example, he wants to go to the United States. He may be on a sexual offenders register for the rest of his life.

I recall the exact detail of the case to which I referred because it struck me as so unfair in the circumstances that this young man now had a criminal record and had received a two-year suspended prison sentence. He will never under our present law — another issue I intend to deal with — be able to expunge that sentence. He can never go back to the court and argue that he has been an upright citizen ever since and ask for the offence to be removed from his record. If he wants to go the United States, apply for a job or partake of a wide range of other activities, it is always there. There is now the even more frightening prospect that people in these circumstances will be put on a sex offenders register, which has all types of implications for them. This is wrong.

I do not know what is to be done about this. I was glad that the reporter, Eugene Masterson, asked me about this. I said to him that I know there is a problem but do not know the solution. I specifically said that the present law is crude but that reducing the age of consent would be a crude way of dealing with the situation. He quoted me to that effect in his article so I wish to be fair to him also. It is a genuine anomaly.

I said it would have to be studied; there is no point in writing out a solution on the back of a cigarette packet. We must carefully consider whether what we would broadly call underage sexual activity is to be ignored, condoned or disapproved of in some way, without saying that a young boy, as distinct from a young woman, who engages in it should have his life ruined and blighted in circumstances where his consensual partner, even though she may be older than him, has no stain against her character for the rest of her life. In all our concern for gender equality, we should remember that the consequences of underage pregnancy are always unequal. That is the reality.

Lest I stray into political incorrectness, I will simply say that I am pleased Senator Henry raised the issue. I repeat what I said to Mr. Masterson in the Sunday World, namely, that a problem exists and it should be addressed. Lowering the age of consent would be a crude way to deal with the legal crudity that already exists. However, that does not mean we can leave the law exactly as it stands because these cases, although rare, occur. It is very unfair that a young man's career should be blighted for the rest of his life because of activity that no one would consider was morally criminal if the older or contemporary partner in the activity did not commit a crime.

I thank Members for supporting the motion.

Question put and agreed to.