Seanad debates

Friday, 2 June 2006

Criminal Law (Sexual Offences) Bill 2006: Committee Stage (Resumed) and Remaining Stages.

 

7:00 pm

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Amendments Nos. 6 and 7 are related and may be discussed together. Is that agreed? Agreed.

Photo of David NorrisDavid Norris (Independent)
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I move amendment No. 6:

In page 3, subsection (5), line 8, to delete "honestly" and substitute "reasonably".

The Minister has partly answered this in his response to understanding the mind of the offender in respect of guilt and responsibility. There can be situations where an accused person tells the court he or she honestly believed the recipient of his or her intentions was of a certain age. It would be difficult to know if that belief was honestly held.

There are situations in which the defendant can state a defence of honest mistake but it may not be true. It would be much easier for a judge to determine if it was reasonable. Even if the defendant could state that he or she did not know, in some cases the defendant should have known. If we are serious about protecting children, we ought to have a situation where someone can be penalised for acting with what, at the minimum, is gross irresponsibility. That is not covered by the term "honestly", but it would be covered by that of "reasonably".

Liam Fitzgerald (Fianna Fail)
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This is relevant to the section and, in particular, to section 5. In the interests of a sensible approach to legislation and taking account of all the concerns articulated by the Minister and Minister of State, we should withdraw section 5 from the Bill or seriously consider deferring it until a much more comprehensive approach might be taken in respect of what goes to the very roots of civilised society, namely, the absolutely rampant sexual activity on the part of minors.

I accept that the Minister and Minister of State cannot address that in the context of this Bill. However, it must be addressed if we are to be able to say to the nation that we, as legislators, will do everything to protect and promote the dignity of the human person, be that person a minor or an adult, through legislation and, where necessary, amendments to the Constitution.

Section 5 sends out a very wrong signal.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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We are dealing with amendments Nos. 6 and 7.

Liam Fitzgerald (Fianna Fail)
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I am aware of that, and time is running out. The totality of section 3 has clear implications for section 5 and vice versa.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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We are dealing with amendments Nos. 6 and 7.

Liam Fitzgerald (Fianna Fail)
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Age is a complex issue and if the primary justification for exclusion of females under 17 from guilt of an offence under sections 1 and 2 is their becoming pregnant, it will fail in a fundamental manner. It represents bad law and should be withdrawn. It would be better if it were left out of the Bill. I am sorry that we are running out of time and that, consequently, I am not developing this theme properly.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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To which section is the Senator referring?

Liam Fitzgerald (Fianna Fail)
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Section 5. I am not developing my argument properly because I am running out of time.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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We are dealing with section 3.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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We are dealing not with section 5 but with section 3. I will be delighted to deal with the former in a few moments. I was addressing Senator Norris's amendments to section 3, which have no connection withsection 5.

Senator Norris has tabled amendments seeking to substitute the word "reasonably" for that of "honestly" in the subsections relating to a defence of honest mistake regarding a victim's age. I believe that I outlined to the Senator my fundamental difficulty with this amendment. The subjective mental element is a fundamental feature of a crime where an accused is put on trial for a very serious offence carrying the type of penalty that this offence carries. That subjective element must, therefore, be preserved in the definition of the offence. The Government considered the issue and insisted on the insertion of an objective element.

Amendment, by leave, withdrawn.

Amendment No. 7 not moved.

Photo of David NorrisDavid Norris (Independent)
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I move amendment No. 8:

In page 3, between lines 27 and 28, to insert the following subsection:

"(10) Notwithstanding any other provision of this section—

(a) where a person who has attained the age of 15 years engages or attempts to engage in a sexual act with another person who has attained that age and the difference between the ages of those persons is not greater than 2 years, neither such person shall be guilty of an offence under this section;

(b) it shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she honestly believed that, at the time of the alleged commission of the offence, each of the persons concerned had attained the age of 15 and that the difference between the ages of those persons was not greater than 2 years;

(c) where, in proceedings for an offence under this section, it falls to the court to consider whether the defendant honestly held the belief referred to in paragraph (b), the court shall have regard to the presence or absence of reasonable grounds for the defendant's so believing and all other relevant circumstances." .

This goes to the heart of the question of age. It is quite wrong to enact criminal penalties and terms of imprisonment for young consenting people. It flies in the face of the lived reality of this Republic's people. We are criminalising people who are not criminals.

I feel very strongly about the case of gay people in this age group. I have wide experience through national organisations and counselling services. When this legislation is reviewed, it is terribly important that the Government consult the gay community and its organisations. I have come across injustice in this area before. I dealt with a case where a man had a sexual relationship not with an underage person but with someone who was slightly mentally handicapped. He was sentenced to a lengthy period of imprisonment. The degree of mental handicap was marginal and the man was well capable of giving consent. It transpired subsequently that this young man had distributed his favours fairly widely around the city and had made a practice of attempting to blackmail people, which he had done successfully on other occasions. However, the person who was sent to jail simply refused to cough up. This is just an illustration which is not directly related to the Bill but analogous.

Criminalising two people between the ages of 15 and 17 and sending at least one to jail, or both in the case of gay persons, is a complete nonsense. One difficulty of this type of legislation is that it is being introduced in a period of heightened emotions. Unfortunately there is also an element of partisanship and political point-scoring. The age of consent is far too important a matter to be made the substance of political point-scoring or partisanship of any kind because it affects all citizens.

I must acknowledge that I filched this amendment from the other House because I believed it was good. I should have removed the word "honestly" and substituted "reasonably" but I failed to do so.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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The issues Senator Norris has raised are very important and the Government has agreed that they can be discussed on an all-party basis. However, they go beyond the scope of the legislation being introduced. Were the House to accept the proposals, it would remove substantially the protections afforded in existing legislation to persons under 17.

Amendment, by leave, withdrawn.

Question proposed: "That section 3 stand part of the Bill."

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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Regarding the single reference in the Bill to the Director of Public Prosecutions, will the Minister of State assure us that the investigation the Government has initiated into the lack of communication between the offices of the Attorney General and the Director of Public Prosecutions will be thorough and reveal the exact circumstances such that it will not happen again? It is not the first time such a lack of communication has occurred and a Government fell on the last occasion.

Photo of Brendan KenneallyBrendan Kenneally (Fianna Fail)
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I have a general problem with the way the Judiciary applies the laws passed by the Oireachtas, particularly with regard to sentencing. The Judiciary is far too lenient in its interpretation of what we are doing, thus not reflecting the message we are sending out from the House. We tried to legislate for ten-year mandatory sentences for those caught with drugs valued at over £10,000 but for some reason this does not seem to be working.

On eight occasions section 3 uses the term "not exceeding" with regard to the number of years imposed in given sentences, be it five years, ten years, two years or four years. We should be saying "at least five years", "at least ten years", "at least two years" and "at least four years". We are giving too much discretion to the Judiciary to be lenient and I would much prefer if we were doing the very opposite.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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I assure Senator Mooney that the Attorney General will be as thorough in his investigation into the matter in question as he was in the preparation of this Bill.

On Senator Kenneally's point, the question of sentencing by the Judiciary is very far-reaching, but any fair-minded person looking at this legislation will see that very extensive maximum sentences have been laid down for the Judiciary. The offence in cases where the victim is under 15 warrants a sentence of up to life in prison. It is five years in the case of victims of 15 and 16 years.

Photo of Brendan KenneallyBrendan Kenneally (Fianna Fail)
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It is not enough.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Dublin West, Fianna Fail)
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The trial, conviction and punishment of offenders is a matter reserved under the Constitution for the judicial arm of the State. We can have a debate on sentencing on another day but very broad discretion has been given to the Judiciary in this legislation to impose a very severe sentence in an appropriate case. Short of that, circumstances must be taken into account.

Question put and agreed to.

Section 4 agreed to.

SECTION 5.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Amendments Nos. 9 and 10 are related and may be discussed together.

Margaret Cox (Fianna Fail)
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I move amendment No. 9:

In page 4, line 5, before "female" to insert "male or".

On behalf of the parents of Ireland, I ask whether it is possible that a 16 year old son who has consensual sex with a 16 year old girl be prosecuted under this legislation. I ask for a guarantee that this will not be the case. If the guarantee is not possible, then this amendment should be added to the section. The Minister of State is right to state that we should not criminalise children and he is right about the spirit of this legislation, but we cannot allow any young woman to have a greater right than a young man. She can take him to court or to the Garda station and she has complete immunity regarding the issue, which is unfair.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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As it is now 7.30 p.m., I am required to put the following question to the House in accordance with the Order of Business agreed this afternoon: "That amendment No. 9 is negatived, in respect of each of the sections undisposed of, that the sections are hereby agreed to in committee, that the Schedule and the Title are hereby agreed to in committee, that the Bill is accordingly reported to the House, that Fourth Stage is hereby completed and the Bill is hereby passed." Is that agreed?

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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This is the most contentious part of the Bill and many people want to speak on it. It is an absolute disgrace that the Bill is being guillotined when we are on the most anomalous section of the Bill.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Those is favour say "Tá".

Margaret Cox (Fianna Fail)
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On a point of order——

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Those against say "Níl".

Margaret Cox (Fianna Fail)
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Níl.

Question put and declared carried.