Friday, 2 June 2006
Criminal Law (Sexual Offences) Bill 2006: Second Stage.
I thank the House for agreeing to meet at this time to consider this important legislation. I thank Members for coming here today to participate in the debate. I come, as the House will appreciate, from another House, where we have had a fairly rancorous and difficult time. Nonetheless, valuable work was done there and significant amendment was made to the legislation during the passage of the Bill through that House.
My priority at all times is to ensure the children of our State are adequately protected and that no sexual predator should find solace in any decisions made in the courts or any opportunity to endanger the well-being and the safety of our children.
About midday last Tuesday I became aware of the Supreme Court decision in the CC case. Since I had not been aware that there was a Supreme Court appeal in progress, when I was informed of the decision I immediately sought a copy of the judgment, read through it and realised it was based, in part, on previous conclusions of the Supreme Court last July about which I knew nothing either. In those circumstances, I got all the judgments together in my office and started reading them with a view to trying to find out their implications.
As I read the judgment, three matters occurred to me. First, this will force on the Irish people a new approach to the protection of minors, that is the legislative issue. Second, it might have implications for other sections of the 1935 Act, in particular, section 2 which seems to be structured in roughly the same way as section 1, which had been impugned. Third, what were the implications for people who had been convicted in the past because the 1935 Act, having been passed before the Constitution was adopted, was, under our system of law, only brought forward into Irish law if it was consistent with the Constitution and the Supreme Court, in striking it down as inconsistent with the Constitution, was, in effect, deciding in 2006 that this piece of law, which had existed since 1935 and which had been operated from 1937 until 2006, had never, in one sense, been the law of the State. On one view of its decision that was the implication.
It became immediately apparent to me that the next thing that should happen, apart from summoning my draftsman to get working on remedial legislation — which happened the next day and has been going on constantly ever since — was that there was an implication that some people might interpret the decision as giving them the right to be immediately freed from custody, even though they would not have been able to make the particular arguments made in the CC case but on the general proposition that since the law was now being deemed never to have been part of Irish law that they could not be deemed to have been lawfully convicted. That latter scenario, as one can imagine, was one which would arrest the mind of anybody who started to read these judgments because it was replete with significance for this State.
The decision of the Supreme Court in the CC case created a threefold set of issues, first, for the Legislature, second, for the Executive and, third, for the Judiciary itself because the consequence of its own order had to be thought through by it and applied. It was apparent to me, on reading it through that day, that this would be interpreted by the public as a statement that there was a huge void in the middle of our legislative protection system for children. I was most concerned to establish as best I could in the public mind, that children were not left without legal defence in the aftermath of the CC decision, where, for example, as in one case about which we have been reading recently, drink was given to a six year old who was then the subject of sexual intercourse. That was undoubtedly an old-fashioned rape. Likewise, every act of sexual intercourse with a person under the age of 15 years was, by definition, a sexual assault as I said here the other night. I knew the first thing I had to say in public was that it is still a serious criminal offence to sexually assault or to have sexual intercourse with a child under 15. Some people were expressing the opposite viewpoint, that it was open season on our children. I was anxious to state that there was no black hole because as a matter of moral duty, it was my function to warn any predator that the Garda Síochána and the courts would have sanctions if children were assaulted in the aftermath of that decision. That was my first priority.
My second priority was to attend to the legislative and executive consequences of the decision, to take advice on what to do in respect of those in my indirect custody in the Prison Service and I also had to kick start the legislative consideration of what was necessary to replace the law that had been struck down and sister provisions which looked vulnerable. Some have accused me of complacency in the meantime. I was not complacent but I wanted to create space, within which to assure parents that their children were not now fair game for every sexual predator and within which we could work out exactly the best way to respond in 2006 to the immediate task of replacing the impugned provisions of the 1935 Act.
I was grateful for the hearing I received in this House the other day. It was courteous, as always. As I stated then, the facts are that virtually since then and ending up at lunchtime today, officials in my Department have done nothing else but work on this legislation. While I did state in public that I would like two weeks to achieve it, or words to that effect, and people have stated that proved I lived on a different planet, all of those two weeks have been spent on putting together the Bill before the House and teasing out the implications of every last line of it. Although it looks a relatively simple piece of legislation, it is not and it could not be.
It was put strongly to me that the best approach was simply to re-enact the old legislation and stick in the defence of reasonable mistake to sections 1 and 2 of the 1935 Act, and that such an approach should suffice. As we looked at the matter, however, we suddenly realised that the implication of so doing was that all of the other necessary outworkings of a fair system to protect our children could be put aside for some other date and we could simply put the law back to where it was understood to be.
We had to say that such an approach was not satisfactory. For example, whereas the 1935 Act protected girls under 17 to some extent and under 15 to a greater extent, boys were in a different position. I had to bear in mind what has happened since 1935 — the focus of the 1935 legislation was very much to protect girls, as one judge stated, "from young men and from themselves", which was a somewhat stereotyped view of the time — and the reality that in the intermediate years there have been so many assaults upon young boys, including those referred to in inquiries such as that of Ferns. I had to work out in my mind if I could seriously merely stick back a legislative plaster for girls and walk away from the matter stating we will set up an all-party committee to decide what we will do for boys. That would be unacceptable.
The other point I want to make to the House is this. It was suggested that since the Law Reform Commission in 1990 had suggested that there should be a defence of mistake, there was no reason for our hesitation. People have asked why we did not act and why the Department of Justice, Equality and Law Reform seemed to shelve the Law Reform Commission documents received, doing nothing about them. That is effectively common currency on the street and in current newspaper columns.
Nothing could be further from the truth. When the Department of Justice, Equality and Law Reform received the Law Reform Commission paper in 1990, it considered and reflected on that provision under successive Ministers for Justice, Equality and Law Reform. The former Deputy Geoghegan-Quinn, as Minister, brought in the Criminal Law (Sex Offences) Act 1993, which decriminalised homosexuality and provided for other matters — Senator Norris knows that I corrected the record to meet his vociferous objections the other night in that regard.
On a raft of other legislation, as I stated in this House the other night, nobody had ever suggested tabling an amendment to provide this defence. The clear reason for this is that if one departs from the situation that both consent and age are not issues for litigation in a criminal trial, one exposes the child victim to a line of cross-examination in order to uphold the argument that the perpetrator was mistaken as to the child's age at the very least. Subject to what I will state about video recording, that is a necessary consequence of the meaning of the Supreme Court decision. The Supreme Court was telling the Houses of the Oireachtas that if it wants a child protection system based on age bands of any kind, it must provide, as a matter of constitutional law, that anybody who is caught by a particular age band is entitled to plead that he or she did not know the child in question was under the particular age band and held an honest belief that the person was not.
That proposition sounds sterile, but for the girl who is assaulted or seduced at the age of 15 or 16 it means the perpetrator is entitled to state, "Well, you should have seen her the night I met her; she was dressed in a way which did not give me any intimation that she was only 16 or 15; she looked at least 18 or 19 to me; she was in a bar and she was wearing make-up", or that she was wearing one particular kind of clothing rather than another. The accused could allege she had an entrance pass to a disco or he assumed she must be over 18 because she was in a bar. It also exposes the girl, if that becomes a central issue in the case, to cross-examination on the territory of whether she represented herself to be the age of 18, whether by her behaviour or by what she said, whether she boasted or whether she behaved in a way which was much more mature than would be expected. The same applies to girls aged 12 to 15. Recently, I was at an event where I saw many girls of that age group and one striking fact was that I could have put them at any age up to 16 and the fact that I knew they were in a particular class in a school was my only way of knowing their ages. They looked remarkably mature attractive young girls and they looked well above the age of the boys in the same class.
What we must remember is that the Department of Justice, Equality and Law Reform, over all of those years and under successive Ministers, decided that where there were offences against minors alleged, we should stick to the old-fashioned position of 1935, which was that the risk should be always on the alleged perpetrator, that the law should be — as it was intended in 1935 — that the accused could not plead genuine mistake, and as a consequence, all of the risk and absolute liability descended on the accused and the age of the girl and the matter of her consent would not be dealt with in the course of a trial. The accused could not plead genuine mistake and, as a consequence, all risk and absolute liability descended on the accused. The age of the girl and the matter of consent would not be dealt with in the course of a trial. This is not an ex-post rationalisation. This concern was set out in the discussion document of the Department of Justice, Equality and Law Reform. The Department considered changing the law voluntarily to accommodate the notion that the accused could raise this issue in any case. Inevitably, in that scenario, the victim would be under the spotlight and subject to cross-examination to create a reasonable doubt about the state of knowledge of the alleged perpetrator. Mr. Justice Haugh, presiding judge of the Court of Criminal Appeal in 1968, delivered the judgment and stated:
Because the rape count was laid the prosecution took on the onus of establishing that the carnal knowledge of the prosecutrix was had by force and without her consent. This involved calling the prosecutrix as witness. This court is of the opinion that prosecutors in cases involving the carnal knowledge of young girls should seriously consider the possibility of being able to sustain a conviction without the necessity of calling such young girls as witnesses, and thereby exposing them to the ordeal of having to recount in court what must have been for them a terrifying experience.
It has always been obvious that if consent or belief as to age becomes a live issue in all these cases, it inevitably gives the defendant the opportunity to create a doubt in the minds of the jury by suggesting that it was reasonable at the time to believe the girl was older. This is complicated by the fact that these cases may be prosecuted many years after the event. The jury may not be able to imagine what the female victim looked like ten years earlier when the offence was alleged to have taken place.
The Law Reform Commission's report was not acted upon because it was not self-evidently a major step forward. It may have been fairer to a minority of accused persons but it would have had a chilling effect on the willingness of girls to make complaints in these cases. Prosecutions would be more difficult and court cases would be more of a trial for vulnerable young girls to whom the Court of Criminal Appeal referred in 1968.
Those who believe that the 1990 Act was left on the shelf are incorrect on two counts. In 1998, Deputy O'Donoghue published "The Law on Sexual Offences" that set out both sides of the argument and asked for public submissions. Some 100 were received, seven of which favoured changing the provision along the lines of what we are now obliged to do after the Supreme Court decision. Many child care agencies were opposed to such a development. When the Supreme Court made its decision, it ended the debate on this matter and ensured that, if we wished to retain age-based child protection, we had to introduce a defence of honest belief.
This legislation does not necessarily represent an advance in rights. It is an advance from the perspective of the accused in some cases but is not a great leap forward in the development of child protection law or encouraging children to bring cases to the attention of the authorities. If the Supreme Court had decided otherwise — and I do not criticise its work — and this matter was the subject of an Adjournment debate, I would state that I had no intention of changing the law.
Section 1 contains definitions, the first of which concerns a person in authority. The second deals with the question of sexual acts, confined to sexual intercourse or buggery between people not married to each other. Children can receive permission to marry under the age of 18 in certain circumstances. It could not be a matter for criminal law what married couples do to each other. The third definition is an act described in section 3(1) on aggravated sexual assault. This is assault occasioned by violence or humiliating circumstances, covering sadomasochism. The fourth definition is certain forms of non-penile penetration, including oral sex and penetration with objects under the Criminal Law (Rape) Act of 1981.
Section 2 is a substitute for section 1 of the 1935 Act, providing for a serious offence, visitable by life imprisonment, for a person who engages in any of these sexual acts with a child under the age of 15. It provides in section 2(2) that an attempt carries the same penalty. Section 2(3) provides for honest belief as a defence, while section 2(4) states that, where someone claims to have an honest belief, the court must have regard as to whether there are reasonable grounds to justify that belief in assessing the claim of honest belief. Section 2(5) excludes the possibility that a child in those circumstances can consent to the acts alleged against the accused.
Section 3 is a substitute for section 2 of the 1935 Act. It provides lesser penalties and a similar range of defences, including provisions for honest belief, and deals with those over the age of 14 and under the age of 17. The different elements of section 3 are effectively contained in section 3(9), namely, that the consent of the Director of Public Prosecutions is needed before anyone can be prosecuted under section 3. The Director of Public Prosecutions has discretion not to prosecute in cases where he believes it would be against the public interest or wrong to do so. This is a broad-ranging, unreviewable discretion. Section 3(9) was included to provide for males who have consensual sex with their under age girlfriends. Section 3(4) allows for summary disposal of minor offences.
Section 5 has caused some controversy, stating that a female child under the age of 17 years shall not be guilty of an offence by reason only of her engaging in an act of sexual intercourse. The 1935 Act we are replacing never criminalised the girl. Curiously it has never been an offence in Ireland for a girl to engage in an act of consensual sex since the dawn of time. If we had taken the route of complete gender neutrality in this legislation and provided that a girl should be as guilty of an act as a boy, we would either have to say that a consensual act between 15 and 16 year olds was not an offence at all, which has certain implications, or have some provision along the lines of section 5. This provision is not new, as until last Tuesday a girl never committed an offence by having sex with a boy. Members may ask why a boy was guilty of an offence and a girl was not. Some have attributed it to the different attitude towards the genders in 1935. However, it is not only that. Whatever social stigma attaches to being an unmarried mother, which was very much greater then than now, it was not in legislators' hearts to add the idea of criminal liability to it.
I was faced with the problem that if I made the offence gender-neutral, I either excused all 15 and 16 year olds of criminal liability for consensual sex or made the genders equally liable. The consequence of the latter would be that, for the first time, in the case of any girl who became pregnant, one would have to come to the conclusion either that she had been raped or that she had committed a criminal offence, stigmatising 16 year old mothers as rape victims or as people who had broken the criminal law.
In addition, the Director of Public Prosecutions, who was consulted regarding this legislation, was strongly of the view that it would be deeply counterproductive in social terms, and deeply damaging to the way in which he carried out his functions, if we criminalised young girls who had sexual intercourse. He said that they would be afraid to come forward and give evidence in case it was ultimately determined that the acts were consensual, making them criminals. Second, they would be treated by the courts as accomplices and their evidence discounted unless corroborated. He strongly advised the Attorney General and me not to take the route of gender neutrality, for the first time criminalising girls in that situation.
The remaining sections extend several provisions of the ordinary criminal law, including those relating to the anonymity of the injured party, the right not to be cross-examined about one's sexual past which was inserted as an amendment in the Dáil today, the law on the sex offenders' register and so on. All those must be extended to the new offences we are creating today. In the Dáil, several amendments were made, including one from Fine Gael to allow that teenage sex should never be recorded on the sex offenders' register. That is reasonable, since people should not be stigmatised for long periods or even the rest of their lives as a result of consensual acts.
That is the Bill, which is intended to restore the situation in a manner that for the first time in the main brings about equal treatment of boys and girls. One might ask, in view of section 5, what equality it brings to young boys. The degree of equality is extremely significant. Curiously, if a male 35 year old teacher had seduced a 15 or 16 year old girl, he would have committed an offence under the 1935 Act. However, if a female teacher had done the same, no offence would have been committed at all.
For the first time, subject to the exception in section 5 that I mentioned, the Bill introduces broadly gender-neutral protection for children in two age categories: 14 and under; and 15 and 16 year olds. It provides for the defence of honest belief and that it is never a defence in either category to say that a person consented. It makes the distinction in section 5 that I have mentioned.
I commend the Bill to the House, hurried though its preparation may have been. I would have preferred, as I publicly stated, to have had weeks to think about this, conferring widely and giving the Houses that time to consider it too, with weeks between each Stage in both cases. However, I was told by those whom we must obey, the columnists, that I was living on another planet if I thought I had weeks to do this. I was told by those whose views we must respect that my reluctance to make law in a matter of days showed that I was somehow unfit for office.
I would have preferred more time and broader consultation. In the circumstances, the Government, in authorising me to pilot this Bill through the Houses of the Oireachtas, has also authorised me to move in both Houses the establishment of a joint all-party Oireachtas committee on this subject so that the broader implications not being dealt with, such as the question of consensual sex among teenagers, the section 5 asymmetry in the Bill, and many others, might be considered.
What the Bill contains is only a small fraction of what the State must now do. We must put resources into the Office of the Director of Public Prosecutions so that it can have a proper relationship with victims. We must put more into the State laboratories so that DNA evidence can be furnished. We must give gardaí resources to provide specialised training to deal with all the issues arising from the law on sexual offences. We must resource the Health Service Executive so that it delivers decent services across Ireland to those affected by sexual abuse. Those are but a small selection of the programmes now necessary for a decent and humane pro-child policy in Ireland.
Today I humbly ask the House to recognise this as a genuine, honest and decent effort to act on the view that the Supreme Court decision on section 1, and the threat to section 2 must be addressed in the short run. It attempts to implement a decent system of protection through a new provision to guarantee anonymity to injured parties and also that they will not be inappropriately questioned in court regarding their sexual past.
It is not a great leap forward that children will now be cross-examined in such cases by barristers on legal aid whose job it is to shred their credibility, creating a reasonable doubt that the perpetrator may have been confused regarding their age. Members can read my views on that in the Irish Independent. They can imagine the ordeal to which some young people may be exposed as a result.
We will do our level best to implement video-recorded primary statements of evidence in full. In the final analysis, our constitutional system of fair trial must allow an accused person, if he has a defence, to test it on the primary witness in the case. No matter how it is done, our Constitution will always confer on an accused person the right to cross-examine the main witness on the other side to establish that it was reasonable for the accused to believe that person was older. That process will not be kind to young sexual offenders. The change that has been forced upon us will make the task of prosecutors more difficult. It will also make the fears and anxieties of victims more pronounced and may be a chilling factor with regard to the number of these cases brought to court in future.
People who said in 1935 that the risk was entirely on the perpetrator's side may not have got it entirely wrong. The Supreme Court has informed us, however, that if we want age-related protections for children, we must allow that issue to be ventilated in court proceedings. I regret that we have been obliged to make provision in that regard in the legislation.
I welcome the Minister. He set a very discordant note in the Lower House this morning, having spent the first 15 minutes or so perfecting himself and justifying his inaction rather than dealing with the Bill. I am glad that a more conciliatory tone has been adopted in this House and I hope the debate will be constructive.
Fine Gael supports the Bill but has some reservations about it. My party has acted constructively at all times in this process. We drafted the Bill to plug the loophole last week and did not introduce it because the Government made a commitment to introduce legislation quickly, notwithstanding the Minister's lack of urgency in the matter. Did the Minister leak the Fine Gael Bill to the press? If so, what was his intention and why was it misrepresented?
The Bill broadly reflects the proposals in the Fine Gael Bill. We are pleased that the Minister has abandoned his proposal to lower the age of consent and that he has agreed to follow, for the most part, the recommendations of the Law Reform Commission. In replying, he may outline his view on the age of consent.
There has been a range of statements on this matter by the Government, most of which only indicate the disarray that has prevailed in Government Buildings in recent times. The Minister has done everything in his power to divert attention away from this most important national issue and he is guilty of playing politics with it. The Tánaiste is also guilty of trying to muddy the waters. She informed the Lower House that the Ombudsman for Children has taken a strong view against dealing with this matter. This was such a misrepresentation of what the ombudsman actually said that she was obliged to issue a statement to show that it was clearly not the case.
The Government has tried every trick in the book to blame everyone else but has ultimately failed to prepare for this kind of contingency and has even failed to see the problem arising, despite clear warnings and signals. It failed to implement the recommendations of an important State advisory agency on law reform, it failed to put in place basic safeguards in the Office of the Attorney General — as recommended in the wake of similar crises — it failed to implement the proposals in the strategy outlined in the statement of the Department of Justice and it informed us there was no problem. The Government Members have played politics with an important issue and misrepresented the facts to the Oireachtas in a bid to save their own skins. Ultimately, the Government has failed to deal effectively with the problem.
The Minister claimed this morning that there was no way the Government should have known that the law was problematic. Any suggestion to that effect is a black lie. The Law Reform Commission issued a report in 1990, the Department of Justice, Equality and Law Reform issued a discussion paper in 1998 that asked substantial questions on this issue and warnings were issued in 2002. Most importantly, the Supreme Court warned a year ago that issues of constitutionality needed to be examined, as stated in an article in The Irish Times on 13 July last year. An article on the matter also appeared in the Law Society Gazette last October. The Minister said this morning that the Supreme Court judgment of last week left him shaken. He was shaken, perhaps, but until Deputy Kenny raised the issue on Tuesday, he was not stirred into action.
There is no excuse for the Government not knowing about this issue. The Attorney General was a party to the Supreme Court case, despite the fact that the Minister told us that the Director of Public Prosecutions had responsibility. Eventually, the Attorney General admitted there had been a breakdown of communications in his office. The latter was a serious understatement.
In 1994, a failing in the Office of the Attorney General brought down a Government. New procedures were to be put in place at that stage whereby the Attorney General was to be informed about every case and a risk assessment system was to be put in place. This has failed. Who is taking responsibility for it? Is there any accountability left in the Government?
The Bill produced today even fails to live up to the two criteria set down this week by the Taoiseach, who said that any legislation must, at a minimum, provide for the defence of a mistake and also be gender neutral. This Bill is not gender neutral and introduces a number of worrying anomalies. Where two teenagers have sexual intercourse, the male would be committing an offence but the female would not. This introduces the same gender inequality that existed in the 1935 Act. Fine Gael, as the Minister pointed out, has serious doubts about the constitutionality of the Bill, which contradicts certain existing statutes, not least of which are the equality Acts.
The Minister said that there is a frenzied atmosphere in the country. That atmosphere is fuelled by the genuine fears and concerns of parents who are justifiably angry that the system, be it the Oireachtas or the courts, has failed them and their children. It is their anger that has finally jolted the Government into action. This shows how out of touch the Government has been with the people it is supposed to serve.
We will support the Bill, with certain reservations. We have tabled a number of amendments to it and many of my colleagues wish to speak thereon on Committee Stage. Just like the Government, we are anxious to expedite the Bill and we hope it will take on board our concerns.
The Minister referred to a number of resources that need to be put in place. Let us put them in place. The time for talk is long gone and we now need action to deal with all the matters to be addressed.
I welcome the Minister and the provisions in the Bill, which are necessary to deal with implications of the Supreme Court decision. The court's conclusion that a young person who had sexual intercourse with a girl he genuinely believed to be over 17 should be allowed to put forward the defence of having made an honest mistake is quite right. That is reasonable and logical. The fact that the Supreme Court struck down section 1(1) of the Act seemed unnecessary to me, although I am not a lawyer. This has led to the early release of a paedophile, which is unacceptable to society.
The High Court decision to release a 41 year old person who was convicted of having sex with a 12 year old girl may conform with the law, but it defies natural law. I am glad the case is being appealed and while I welcome this Bill, the appeal in the Supreme Court is more important as the ramifications are far more serious in the immediate term. The arguments canvassed by the State will hopefully find favour with the Supreme Court, but we must await its decision. An argument was made by those opposing the State's case that it would be a defeat for justice over common sense, but I do not see it that way. This is a case of logic, common sense and justice over the law. We need to come back to basics in this respect.
From an early stage, society felt the need for laws to protect people from physical assault and to protect property from theft. These ideas go back to the Brehon laws. As more laws were added to the Statute Book over the centuries, an academic approach was taken which favoured argument of interpretation over the basic premise, which is that the guilty should be found guilty and should pay a penalty while the innocent should be free.
Although I am not a lawyer, I wonder if there should be an overarching law that states that judges must apply common sense and logic in making decisions. That would weigh against the abuse of technicalities which give rise to miscarriages of justice. I am aware that we must also safeguard against innocent people being incarcerated, but it is an appalling vista that guilty people walk the streets due to technicalities. People who are released due to this technicality might also seek compensation, which is a further offence to the victims. If there is any likelihood of that, we should consider legislating to ensure it does not happen.
There is insufficient counselling for victims. Many people have stated that and there is an onus on the State in this respect. There was a political and legal imperative to this Bill, which I recognise, but I hope that we revisit this issue. Apart from sentencing by way of imprisonment, those who abuse young, innocent people should be heavily fined. Those fines could be used to partially fund a programme of counselling for victims of sexual abuse. The early release of prisoners guilty of sexual abuse should be conditional on undergoing treatment for their particular predilection. I was alarmed to hear that only 3% of those who are in prison for sexual offences are undergoing treatment. I am not sure if that figure is correct, but if it is in that order then it is too low. Undergoing such treatment should be a condition of early release.
There should be some provision in law for an offence of reckless endangerment for parents who fail to exercise their responsibilities. Bringing a child into this world is not just a pleasurable act for a short period but an important and long-term responsibility. That responsibility must be discharged and the State must ensure there is an onus on parents who do not do so.
In the Lower House the Minister rightly made much play with regard to the cross-examination of minors. It will happen. Where a case is contested with a serious cross-examination and the individual is subsequently found guilty, the sentence must reflect the fact the victim was put through a trial for a second time. I also believe a skilled lawyer cross-examining a 12 or 13 year old creates an uneven playing field. The Minister must monitor this provision closely. He is a strong proponent of the current adversarial system. However, I have reservations that an adversarial system may not be an appropriate mechanism for dealing with this issue. I would prefer an inquisitorial system where questions are put by the judge to establish the truth. The Minister has kept the sentences in line with what was already there, except in the case of those described as "persons with responsibility". I believe the maximum sentences are too low. The provision concerning a person 24 months older than the child under the age of 17 sets the age too low. It is an arbitrary figure and I accept no matter what figure is put there, it can either be right or wrong. I would favour a provision for 36 months in that regard. Section 3(9) states:
No proceedings for an offence under this section against a child under the age of 17 years shall be brought except by, or with the consent of, the Director of Public Prosecutions.
This should also apply to section 10. I have great difficulty with the provision concerning an individual who is marginally over the age of 17 having sexual intercourse with a person just under the age of 17 years and that person, as a consequence, finding he or she has no defence because the age of the child was known to him or her. It is a complex situation. In that regard we may end up with situations where a boy of 17 has consensual sex with a girl of 16. The girl may well have initiated the sexual act.
Let us say they fall out some time afterwards and she decides, in revenge, to make a report to the Garda Síochána. The boy will automatically be taken to court. I know one cannot legislate for every anomaly and the area is a difficult one, but it should be examined further.
The age of consent should be 16 and if we are serious about having an age of consent, any sexual activity below that age should be an offence for boys and girls. I am not saying they should be imprisoned. Perhaps they could be compelled to undergo counselling and their parents could be held to account. Equalisation should be applied and we should endeavour, in so far as we can as a State, to prevent underage sex, without necessarily resorting to imprisonment. The age of criminal responsibility is 12, from which a corollary can be drawn.
I compliment the Minister for introducing the Bill. He has taken considerable flak from the media, much, if not all, of which was unfair. Any objective analyst would recognise two facts. First, the Minister could have done nothing, through legislation, to deal with the implications and ramifications of the Supreme Court decision and cannot do so now. Second, the fact that legislation is before the House only eight working days after that decision is testament to the commitment of the Minister and his officials, who have worked extremely hard, late into the night in order to reach this stage today. That should be recognised.
I wish to share my time with Senator Ross.
I am glad the Minister is in the House. We are lucky to have a skilled and brilliant lawyer in the position of Minister for Justice, Equality and Law Reform because he can give us a very clear insight, from his experience as a lawyer, into these matters. Some of the comment in the media about the Minister has been extremely unfair. I regret that his spirited speech in the Seanad the other evening, not all of which I agreed with, was not relayed on "Oireachtas Report". In fact, there was no mention of it. That was a grave omission because the people of Ireland should have heard what the Minister had to say. He is entitled to have his opinion heard as part of a balanced debate.
There is, of course, a degree of public outrage which is perfectly natural and we all share in it. There was a demonstration outside Leinster House this afternoon, which was part of the whole process. However, such an atmosphere should not be allowed to adversely affect the debate, which should be clear and should examine the principles at stake. Yesterday I passed the Four Courts and saw the Latin inscription fiat justitia, ruat coelum, or let the law prevail, even if the sky falls. That is where we are now. We must act in the interests of the community and not succumb to knee-jerk reactions to understandable public outrage.
The legislation has been prepared hurriedly and undoubtedly defects will be revealed eventually. The Minister cannot do anything about that because he has been put in a difficult situation. As the saying goes, however, legislate in haste and litigate interminably. This is a goldmine for lawyers.
The cases were shocking. One involved a mature adult man feeding drink to a child and then having sex with her when she was obviously not in a position to give consent, not just by virtue of her age but also her condition of intoxication. In the review of some of the other cases, the people involved are named and one extremely shocking element is that it appears entire families were involved in these acts, abusing their own relatives in certain cases. A man in Donegal had unlawful carnal knowledge of his first cousin. In another case, a man assaulted his niece and her brother was also involved. These are very shocking cases and it is very interesting that these acts took place within families.
The Minister said during the debate in the House the other evening that nobody had suggested anything that might have improved the situation. I suggested that we should examine the principle of consent because as Senator Higgins acknowledged, age limits can be arbitrary and prejudicial. After all, Romeo and Juliet were only barely into their teens when they had a relationship and young people are maturing much earlier than in the past.
I deprecate the fact that the main Opposition party took the opportunity to resist any reduction in the age of consent. It may not be popular but we must, if we are to be fair to young people, acknowledge the realities of life. Otherwise the situation will arise where young people are jailed. As pointed out by Ms Carol Coulter in The Irish Times, under the current legislation if a 16 year old girl seduced a 14 year old boy and he complained to his parents or the gardaí, she would not be guilty of any offence but he would be facing charges carrying a five-year jail term. That could not possibly be right and I do not believe anybody in this House believes it to be so.
One must also examine the situation with regard to same-sex relationships. I know the way young gay people form their sexual identity and I do not think it is appropriate ——
Splendid. I congratulate the Minister and the team involved in that case. This is a very good day. I am not a vengeful person but I am glad to hear the good news that this man will pay for his crimes, for crimes they were and of a most loathsome nature.
I brought a case to the attention of the Iranian ambassador recently, which concerned two youths, one aged 16 and the other 17, who were having a consensual sexual relationship in Iran. They were arrested by the religious police, beaten and then hung from the back of a lorry on a crane. That is appalling. Sexuality among people such as those young men should not be criminalised. A gay man who is 16 and a half is capable of giving consent. That is what I have been told by the gay community. It is not just my own lived experience. The Government should take this into account.
On the issue of the question of a defendant making an honest mistake, I have suggested, by way of amendment, that the term should be "reasonable" rather than "honest". A judge could know what a defendant thought about the age of the other person, but he or she could determine whether the defence is reasonable.
In his speech, the Minister referred to the question of various sexual acts taking place between married couples and said that they could not possibly be of concern to any court. That might be so, mercifully, in this country, but we take a lot of legal precedents from the United States of America and in that country many states presume to interfere and tell married couples what they can and cannot do in the privacy of their own bedrooms.
On the question of language, I do not like the use of the phrase "defilement of a child". This suggests that a child is defiled and is spoiled goods, so to speak. In the case of, for example, two 16 and a half year old gay people, a consensual sexual act is not defiling. Furthermore, an age of consent set at 17 is too high.
I have mentioned the principle of consent and am not happy that a girl should be held to have no responsibility whatever in the area of casual sexual relations. That is not right. I note that one section of the Bill provides that it should be left to the DPP to decide, in matters involving two teenagers, whether a prosecution should be pursued. That looks to me like an acceptance of the principle of consent, but with one very signal failing. There is no requirement or reason to give an explanation. In a court, however, such a requirement would exist. It is undemocratic for the DPP to decide on a nolle prosequi without providing an explanation. I would prefer it if the Minister re-examined the principle of consent.
I thank Senator Norris for sharing time.
I wish to state how enormously relieved all Members, not least the Minister, are at the result of the case. To some extent, we are speaking in a vacuum because neither the Minister nor his officials know the grounds on which the Supreme Court made its judgment, whether this will be followed by a series of attempts by others to be released or whether the door has been closed in respect of those anticipated appeals.
The judgment is a great relief and will do a great deal to defuse the public unease which was undoubtedly and rightly stirred by the newspaper reports and photographs of rapists who would have been released on what is, after all, a technicality, albeit a strong one. It is unanimously agreed those involved should be locked up. The only reservation the public had in this case was that the individual involved was only locked up for three years and no one could understand why.
I have certain reservations about the Bill.
This legislation is flawed, because age-related legislation is, almost by definition, flawed. It is unfashionable to use age as a criterion when deciding on many issues and this applies particularly to older people in relation to driving and so on — ageism is frequently condemned. However, regarding young people, we need to consider the issue. The Minister has a difficulty because we discriminate on the basis of age between 15 year olds and 17 year olds and in this Bill we identify these ages as crucial. Senators Walsh and Norris pointed out the problems that this can cause because it has been frequently said that one man's 15 year old is another man's 21 year old. There are mature 15 year olds who can make mature and sensible sexual decisions and there are also extremely vulnerable ones. To introduce legislation of this crude nature is almost self defeating. We will have case after case of injustice under this Bill, but it is difficult to find any other means of protecting young people except by making rather crude judgments of this sort. There is a case for having special courts with special witnesses and special expertise in this area.
What Senator Jim Walsh said is right in that the idea of bringing children aged 12 into courts under what is an extraordinarily robust adversarial system is completely unacceptable. The Minister will know that the rough and tumble of cross-examination in the courts is something for which children are utterly unsuited. Special rules should be introduced in these cases if children have to be asked questions of an extraordinarily delicate nature to which any adult would find it amazingly difficult to respond.
I do not know, nor I believe does anybody in this House, the answer to many of the questions in regard to this Bill. I do not believe there is a perfect answer, but we are making some effort, albeit certainly a flawed one, to resolve them. It should be said by Members on the Independent benches, and Senator Norris has said this as well, that this is not an issue for political gain or political damage. There is a desperately serious issue. I would be the first to say that something very odd happened in that the result of this court case apparently was not anticipated in any way by anybody anywhere. There was obviously some gap in preparation by people, perhaps high up politically or high up in other areas, but we are all to blame for that if we are honest.
The Law Reform Commission apparently flagged this problem in 1990. I was not aware of it, and I have been a legislator since that time, nor was I aware of the dangers of it. I do not believe it is fair or right for the Opposition to blame the Government for a problem which has obviously been sitting there ready to bite us, as it were, for 16 years. The Opposition parties were in Government during that period as well. I do not know enough about it and I have not researched it but I do not believe there were any plans on the Statute Book or in the offing when they were in Government or any great recognition of this problem. It has bitten the establishment, including us all and has caught us unaware. We should all be, to some extent, embarrassed by it. To dig for political skeletons on an issue of this sort is a bit beyond the pale. It is something which should be removed from the area of political skirmishing. The important point is to ensure it does not happen again. To be fair to most politicians, there is a reluctance by many members the main political parties who could dig for political capital to do so. Some people have called press conferences to make cheap political points but most of us have not been involved in that activity.
I hope this matter will shake us into a realisation that the behaviour of young people is something about which many of us were out of touch. I heard the Minister say on a radio programme the other day that he thought it was out of date to legislate for people's sexual behaviour in various matters under a certain age. The reality is that young people are much more sexually advanced than they used to be. Old men and old women in these Houses are legislating for young people outside these Houses and perhaps the legislators are not in touch with the behaviour which young people find acceptable.
We have a great deal to learn from this Supreme Court decision and I hope we do so in as non-divisive and apolitical an atmosphere as possible. The atmosphere in this House has been fairly responsible and I congratulate everybody on that approach. We should not score political points over the traumas of the children of this nation.
I welcome the Minister to the House. I congratulate him on the statements he made in recent days about how the State would lodge a very strong appeal today and the outcome of that appeal. I hope he may notice that the sun is shining outside because he has not seen it for the past few days. The Minister made clear that the circumstances that have brought us to this point are utterly regrettable. I and my party colleagues have rarely, if ever, felt such dismay at the repercussions of problems with the law, and subsequent judgments.
Although this problem emanated from a problem with the law and a judgment of a court, the legal arguments must be distinguished from the moral ones in this case. The debate between the lawyers must also be distinguished from that in the public. It is well and good for legal experts to tease out the intricacies of the law in sections, paragraphs and historical interpretations but members of the public do not care about this and I do not blame them.
The public saw a man who has admitted to raping a child being told by our system that he is free to go. This may be constitutionally or legally right but is it morally right? Is it even common sense? I am glad that common sense has prevailed. I do not say that our statutes must be governed by morality or common sense. The lawyers would no doubt point to the subjective and time-grounded aspects of that approach that make it unadvisable or impractical.
The question remains as to where morality and common sense have been lost when our system tells a man who has admitted to raping a child that he is free to go. Put simplistically if we lived by our morals we would not need the law. The morals of individuals, however, differ but what of those of the people as a collective? The people have expressed a collective moral view in outrage and have called for us legislators to act. We must do so with understanding and compassion. The nature of the offences demands this approach.
I commend the Oireachtas, the Minister and his officials for working towards and facilitating swift action to restore the offence of unlawful carnal knowledge, in a now updated form under section 2. Under section 1, a person in authority who sexually abuses, or attempts to sexually abuse, a child under 17 years of age will be subject to a higher penalty on conviction.
On the substantive issue, section 2 creates a new offence of engaging or attempting to engage in a sexual act with a child who is under 15 years of age. This replaces section 1 of the 1935 Act and other relevant legislation. The new offence is gender neutral. It is right that today's legislation also extends protection to boys for the first time, although the law struck down by the Supreme Court related to girls only.
In response to the Supreme Court's ruling, today's Bill introduces the defence that the defendant may prove that he or she honestly believed that the child against whom the offence was committed had attained 15 years of age. Importantly, it is for the court to decide whether the defendant honestly believed that the child had attained 15 years of age and it will have regard to the presence or absence of reasonable grounds for the defendant's so believing and all other relevant circumstances.
I will use my remaining time to outline some of my concerns. This is a complex legislative area. That is regrettable because the objective is to protect our children. It could not be otherwise. As the Minister made plain, successive Governments have rightly been reluctant to change this legislation because it will create unknown stress for child victims who could be asked questions about their dress, language, reputations, etc., which is regrettable.
The age of consent is now 17. We must have a balance between morality and common sense and the rule we use must be based on good parenting practice. Should consensual sex between 16 year olds be criminalised? This is the question parents must ask themselves. No parent wants to admit that his or her 16 year old is engaging in consensual sexual activity, but they must ask whether they believe their children should be criminalised in such circumstances. The Minister recognises this issue, but we all need to do the same. We need to reflect on and address it. Political, moral and common sense imperatives must be balanced and reflected on in a measured way.
I mentioned the need for common sense in enacting new laws. However, I cannot be critical of a lack of common sense in a court's ruling without questioning legislation that may lack common sense and not reflect reality. If the moral guardians were to raid a teenage disco, should they criminalise our children under this legislation for what occurred there? I do not wish to promote or condone what I see as inappropriate sexual activity between children who are too emotionally immature to deal with such activity and its possible consequences. Equally, however, I am a realist and I do not want to criminalise them.
We do not have consensus on this issue, but we need to discover it in the near future. The complexity of the issue means that today's proceedings will not represent an end to our debate or, most probably, to action on our part or on that of the courts in this area. Concerns and issues will remain and will be challenged. I refer, for example to the effect — despite the general gender-neutral nature of the Bill — of treating boys and girls of the same age engaging in consensual sex differently. In addition, section 5 will protect females under 17 years of age who might be pregnant in order that they will have nothing to fear from the criminal law. We must not deter complaints in this regard. A girl under the age of 17 cannot be found guilty of an offence under section 1 or 2 for engaging in intercourse, but a boy, even if he is seduced, can be found guilty. The section is not without problems.
There are other issues. I and the majority of people would agree that some offences that are acts of sexual abuse against children are not covered by this legislation. No doubt, there will be a challenge to the use of the word "reasonably" versus "honestly" when it comes to judging the age of the young person. No doubt too, there will be a challenge to the definition of who is or is not a "person in authority" or "in loco parentis". I am a legislator, not a legal expert. Mark my words, however, problems will arise as a result of this legislation.
We will again discuss these issues in the House in the future. Senators must expect and not be afraid of this. The Minister will not be afraid to return. He has consistently stated that this is a complex area and indicated his openness to reasonable amendment and suggestion. However, we must address the immediate issues. We must reintroduce the offence struck down by the Supreme Court with the constitutional right to the defence of mistake. We must pass the law. The people demand it. As a father, a citizen and a legislator, I demand it. We must be compassionate towards people's concerns, most especially the victims. They must not be lost in all of this, as so much else has.
I welcome the legislation, albeit with reservations as my contribution makes clear. Even if its enactment raises many other issues that we as legislators and as a society have to address in the not too distant future I hope it will be in a calmer and more reflective manner. We must still pass the Bill today.
I agree that this should not be a time for points scoring. What has happened in the Houses in the past couple of weeks, though it may not be seen that way to the public, is that the Opposition is holding the Government to account. That is our duty. I am glad we are dealing with this Bill today. As the Minister said, were it not for what happened we would not have the Bill today or next week. In fact I do not know when we would deal with the Bill. I am glad that, because of the pressures out there, the Minister came to realise how important it was to deal with this issue as a matter of urgency.
As a mother and as a woman I feel strongly about this issue. I noticed that the protest group outside Leinster House today comprised mainly women. I do not have much time for Joe Duffy being outside. That is populist. I understand the women who came along and how they feel. I accept all the points made by the Minister including the point that from 1935 it is understandable that the issue was not addressed because one would not necessarily have anticipated the Supreme Court judgment and the Law Reform Commission did not say the law was unconstitutional.
As the Minister has said, nobody would want to make it easier on the accused because of the circumstances and the vulnerability of children and that they would have to be interrogated in court. The case should have been anticipated so that when the decision was made, prompt action could be taken. There is no question but that the Government was taken by surprise and the Minister was not, unfortunately, jolted immediately into action. There will have to be systems to ensure the Minister anticipates serious cases such as this. I said on a previous occasion that it was interesting that the previous Minister for Justice, Equality and Law Reform tried to anticipate the outcome of the Eurovision Song Contest but an issue as serious as this was not anticipated. Whatever the reason it should not happen again.
The Minister said there was a need to resource the DPP. There is a need to resource the DPP and the Attorney General's office to ensure appropriate communications and that cases such as this are anticipated in future.
I read the Law Reform Commission report but it did not state that the particular section was unconstitutional. It sought reform of the section but did not raise any such issue. I do not agree with everything in the Law Reform Commission report of 1990, some of which has been implemented. When dealing with this type of issue the Law Reform Commission needs to take into account that the people who would have made submissions would be the professionals who work in the area but not many parents would have made submissions. Parents have important views on this issue and that is the reason for the reaction and the protest outside the House.
I would not agree with the idea that we should allow for no crime if there was a five year difference because there is no equality between a 15 year old and a 20 year old. I don't even think there is equality between a 15 year old and a 17 year old. I agree that there should be no crime for sexual intercourse between children but there should be different levels of culpability. The signal should be sent out that we want to discourage teenagers of that age from having sexual intercourse. At the same time, there are ways around the issue of whether they would get custodial sentences. As far as I am aware, in England they differentiate between those under 18 and over 18 who commit crime, and they provide for lesser penalties. In addition, they have guidelines as to whether one would take a prosecution. Perhaps these are issues at which we here need to look. That is another day's work.
While I will discuss amendments put by my colleagues, I have decided not to table Labour Opposition amendments because much has been teased out. My view was always that the net issue had to be dealt with. I am glad the Minister did not lower the age of consent without a more comprehensive debate. My instinct would be against that but I would be willing to take part in a debate on it. I am glad he decided not to do that in this Bill.
There needs to be a further review. All the anomalies raised need to be looked at. These would be my main concern. Perhaps we should ask the Joint Committee on Justice, Equality, Defence and Women's Rights to look at this issue, particularly with a view to looking for anomalies and loopholes, and produce a report. It should not include all the other matters.
Perhaps some time we will decide to lower the age of consent. My view on it is that just because children are having sex at a particular age does not mean one should accept the reality and lower the standard. There are many children who do not. If we lower the age of consent, there is always a chance that there will be a percentage of children at a lower age having sex, and that is not behaviour we want to encourage.
There are many different ways in which we need to look at this. The Minister needs to ensure that we do not criminalise young people unnecessarily but at the same time we want to send out the correct signals to children.
My personal view is that those aged 16, 15 and 14 are still children and we should protect them. There are many reasons that it is better for them not to have sex at that age, for instance, they are not mature. All the studies about the development of the brain confirm that they are not mature at that age. They do not have physical maturity. There are all sorts of issues in the area of health, for instance, how being sexually active at that age might increase one's potential to get cervical cancer. All such issues must be taken into account.
Then there is the issue of how people feel about it. A report published recently stated that many people who had lost their virginity at a young age expressed regret. I acknowledge that there are many ways to deal with that issue, but not necessarily by lowering the age of consent.
A legitimate issue of gender equality has been raised. In fact, the Minister raised it and then we raised it. I can see from where he and the Government are coming on this issue. I accept the point that he does not wish to stigmatise teenage girls who get pregnant and realise he wants them to draw down all the available services. However, one wants to make sure that the fathers of the children, particularly if of a similar age, are included in terms of responsibility as a parent. That is a matter the Minister must take into account also.
On the other hand, in our society girls, including those as young as eight, are much more exposed to sexual issues than ever before. Ireland is lax about this matter. If one walks into a particular petrol station in my area looking for a newspaper or magazine, all one is faced with are the men's magazines, covered in the pictures with which we all are familiar, which take over the magazine stands. Not all petrol stations are like this; some are more discreet. There are children going into that petrol station to which I refer to buy sweets, etc. That is the type of view of womanhood with which young girls are faced.
There is a particular issue about protecting young girls because they are treated as objects more than is the case with boys. There are many issues such as peer pressure affecting them. As we all will be aware, peer pressure can even occur among people very close in age.
We should look at how other jurisdictions deal with the various issues. There is an issue, not necessarily surrounding not criminalising a teenage boy or teenage girl who is involved in sex, but perhaps to ensure that there is a lesser penalty and it is looked on differently.
We must examine how the UK, the US and other jurisdictions have dealt with this matter. A recent discussion panel on "The Late Late Show" included both a member of the Law Reform Commission and a mother of two sons. The latter referred to educating young people about sex and the law. Many people do not know the age of consent. Many newspapers have made mistakes in reporting the events of the past few weeks. They do not appear to understand what the law was before the constitutional case. We need to educate people to address the fears that stem from a lack of understanding. The steps outlined by the Minister must be taken, along with those suggested by Mr. Kieran McGrath in an article in Irish Social Worker. We need more education in respect of the law, which sends out messages to adults and children. The Minister's Department should take steps in this regard.
I thank the Minister for coming before the House today and on Wednesday. It showed respect for the House, particularly when he was surrounded by foes within and outside the Chamber. The result of the court case has taken much of the steam out of this event and we have been allowed to philosophise generally. Perhaps this leads to a better debate.
We sought to distance ourselves from the earlier Supreme Court judgment. I never comment on court cases. How can we do so when we do not make the judgments therein? We cannot be jollying along on this afternoon's outcome but we are pleased with it.
When the Minister referred to the 1935 Act and the 1937 Constitution, I thought about how vastly different Ireland was then, with its mores not expressed. The Bill served the State well for 70 years, a point that has not arisen in the commentaries on it. It is difficult to legislate to provide for the punishment of the guilty while safeguarding the rights of the innocent. It is extremely difficult to achieve this balance. That is why justice is always depicted holding a scales. It is a difficult feat to envisage and pass legislation.
For this reason, there was much commotion in the past week. The commotion is due to the fact that we are using words that people do not want to use in an everyday sense. They shy away from terms such as "carnal knowledge", "intercourse", "sexual perversion" and others. Instinctively, people do not want to engage in using these words. That arises from the belief that Ireland is always a sunny place where nothing wrong ever happens. Backbenchers and spokespersons took fright at the events of the past week. The first reason for this was that there was such commotion about the matter. They also genuinely feared for their children's welfare in view of the black and white pictures that were painted.
There never was an innocent Ireland, but there was a hidden Ireland. The country was portrayed as innocent when it was really dark. As we engage in debates of this kind, words that are unusual for many people, such as "sexual predator" and "under age sex", have become more commonplace.
Backbenchers and members of political parties take fright, and I often feel that the great commotion surrounding such issues has its origins in the abortion referenda of the early 1980s, when there was such division in Irish society and the person at every door had a different take on what was happening. That lingered in people's minds, and the need for legislation on sexual issues sends frissons that would excite anyone. It leaves one very vulnerable, since each voter has something different to say. However, that does not mean we cannot grasp the issues. We must do so, since we are paid to legislate. We must grasp very difficult issues, including this one.
I was delighted when the Minister said at the beginning of the debate that he would establish a joint committee. I was interested in SenatorTuffy's comments that the first task of the committee should be to determine whether there are any loopholes in the legislation and work on that while it is still fresh in our debating minds. If there are loopholes that we wish to plug, we should attend to them quickly through the joint committee. I hope that this week of great unease will not simply be brushed away. I wonder whether there are enough safeguards for children in the Constitution.
I believe not, but I do not know how one would frame a constitutional referendum to encompass everything that one would need to do. I know that we now have the National Children's Office and a Minister for Health and Children, as well as Ms Emily Logan, the Ombudsman for Children. However, that is toleration rather than an encompassing framework. I ask whether our safeguards for children as laid down in the Constitution are enough. I do not believe so, and that question may emerge from the joint committee. If it did, it would have been very worthwhile.
I know that one should not raise individual cases, but a woman amazed me when she phoned me yesterday. A 45 year old constituent, in a very level-headed manner, speaking quietly with no histrionics of any kind, told me of her father and brother. The former has passed away, while the latter lives in England. She had successfully submerged it in her mind, and no one knew the life that she had led as a young girl. She was the youngest of a large family, and neither her mother nor any other relative knew.
She had successfully submerged her past, married and had a good family life, but then it all came tumbling back. She said that her heart was bleeding. I am not saying this for the sake of sensationalism, but she told me that everything had risen up before her in a miasma of terror. She went into great detail with me regarding the blandishments that she had been offered. I spent almost an hour on the telephone with her, but I did not mind at all, since I was so struck by her story. She also mentioned the threats. It was the first time that I had ever come so close to a case history of abuse and what it meant to the person concerned. Through her own willpower, with no guidance or counselling, she had submerged it, but now it had all come tumbling out of the closet. It occurred to me that there must be many like her around the country.
Although much of what we heard was distorted, having had that telephone call, I felt an affinity with the victims. We will obviously go through the legislation. Wherever the proposal originated, a joint committee to scrutinise it as soon as it passes is a good idea, as Senator Tuffy said. We should also examine the wider questions and give some thought to children's status in the Constitution. We must show courage as legislators, since we often have to face very unpalatable Bills, ideas or principles. As long as we can have balanced debate, we must do so.
We are obviously meeting in quite extraordinary circumstances. I very much welcome the decision of the Supreme Court this afternoon to allow for the re-arrest of Mr. A, who was at the centre of the recent controversy. I listened to the 1 o'clock news and understand that Mr. Hogan's principal argument before the Supreme Court was that Mr. A had not raised the issue of constitutionality at the original trial. We have not yet seen the judgment and have just been informed of the court's decision but I wonder why the issue was not raised when the case was originally before the court. It seems it should have been a pretty seminal point in any appeal.
We all welcome the latest Supreme Court decision. The court originally struck down section 1(1) of the 1935 legislation on the basis that it did not provide for reasonable doubt in that the accused could not claim he did not know the age of the person concerned. Am I correct in saying Mr. A could not have used this defence because the child in question was 12 years of age? Will the Minister inform the Houses of the ages that obtained in the six other cases? If one of the girls in question had been 14 or 15, presumably it could be argued by the accused that he did not know her age. These issues are important and need to be raised because the defence of one not being reasonably aware of the age of the girl in question does not apply in Mr. A's case. However, it could well apply in the others and this caveat must be placed on the record of the House.
Last Wednesday I and other members of my party asked whether the Government could indicate the total number of cases the DPP had decided not to prosecute from January 2005 to 12 May. Has the Minister this information to hand? I understand the Tánaiste made a commitment in the Dáil yesterday that it would be to hand by yesterday evening and that we would have an indication of the total number of cases that would now not go to trial based on the striking down of section 1(1) of the 1935 Act by the Supreme Court last Thursday. This information would be useful.
I warmly welcome the decision of the Supreme Court. It is entirely right and proper that parliamentarians should comment on its decisions, primarily because it is the only one of our courts that can interpret the Constitution. If we cannot comment on its decisions, who else can?
I accept fully the common-sense approach to which Senator Tuffy and others referred. It is entirely appropriate for the Oireachtas to enact legislation setting out general principles on what it regards as appropriate behaviour. It may well happen in certain circumstances that the State will decide not to prosecute persons but this does not mean the Oireachtas should not have the power, in itself, to set out such general principles. I make this point because nobody is suggesting people who involve themselves in an action at a particular age, be it 15, 16 or 17, should be criminalised. However, it is entirely right that the Oireachtas should have a view and set out the general principles that apply to the mores and behaviour expected of people of a certain age.
I am sure the Minister accepts the concerns over the sexualisation of women of a very young age, and that age is becoming younger. There is a view that we should just accept it, but I do not agree with that. I speak to parents constantly and they are concerned about this increasing sexualisation of young girls. We have a responsibility to put general principles into our law. My party made this proposal to the Minister in regard to fining persons of a certain age as opposed to applying custodial sentences. In the Lower House, the Minister stated that he did not want working class boys being obliged to pay out €1,000 in the District Court. In this Bill, however, the minimum fine for an offence is €6,000, so I am not sure if his argument applies.
It was a retrograde step on the part of the Taoiseach in 1997 to incorporate the equality and law reform sections into the Department of Justice. A separate Department for equality and law reform needs to be created because the issues that have convulsed the nation in the past week would stand a better chance of being resolved away from the current Department, which deals with a range of issues related to the Garda, security and so on. We need to learn the lessons of the particular mistake to which I refer.
I welcome the Minister and the fact that he is prepared to allow the issues that arise in respect of this Bill go before the appropriate joint committee. I warmly congratulate the State's legal team on its win today. I am sure the Minister took a more hands-on approach to that case than he did in respect of that taken last week. I have no doubt that his smile indicates that fact.
My sole concern with the Bill relates to section 5. It has been conceded that it is not gender neutral and there is, therefore, an in-built inequality. I accept that nobody wants to stigmatise a young girl who finds herself in that situation, but it is discriminatory and illogical that we should treat a young boy that way. None of us wishes that such activity should take place among young people, particularly in light of their emotional immaturity. Perhaps there should be a separate category for 15 to 17 year olds, because we should not criminalise them. The Ireland of 1935 was very different to that which exists today. This section will be contrary to everything in the Equal Status Act and I believe it will be revisited. We cannot allow this anomalous situation, yet it will happen today in spite of everybody's best efforts. We put down our amendment because we believe, from the advice received, that the section is inappropriate.
I look forward to the Minister's response on this. Unlike him, an eminent senior counsel, I am but a simple journeyman politician.
I welcome the Minister. His visit on Wednesday evening was most helpful, as was his explanation earlier of the thinking behind the Bill and his reservations about it. I share his sigh of relief at the judgment of the Supreme Court today. It may have been in the last minute of injury time, but it makes the discussion easier.
I know the Minister had to introduce legislation and it is a pity if we pre-empt and put off further discussion on these issues.
I wish to refer to the contributions of Senators Minihan, Norris and Tuffy and my argument would be informed by what they have said. It would be a pity if we were to think that this is a done deal now. We will pass this legislation but there could well be unexpected consequences that will need to be examined. In particular, the question of the age of consent. I hope we never get to a position where we have to put that to a referendum. A referendum is a blunt instrument for dealing with such complex issues.
One of my concerns regarding the Bill is the appearance of a tendency to criminalise young people under 17 for having sexual encounters. We may not like the fact they are doing so and think they should be doing other things but countless surveys and one's own participant observations would suggest that this is the reality. Admittedly, there is a provision, under section 3(9), whereby the Director of Public Prosecutions can decide not to proceed with certain cases. However, that can only be tolerated for a certain length of time. Laws which move far away from reality, and one only has to think of prohibition in the United States, invite a degree of disrespect for the law generally. We should try to avoid that, particularly at a time when the media is jumping up and down about such issues. All of the advertising and commercial interests that are commodifying sex are driving young children towards precocity. It cannot then surprise us that they react accordingly.
The Minister expressed a concern, which I would share, regarding the effect of hostile cross-examination on young children. Perhaps that problem could be overcome through the rules of the court. Most serious abuse takes place within families. In most of the cases that have been cited regarding those who could potentially be released from prison, the perpetrators were related to the victims. They were known to the children. I do not think that Mr. A, for instance, could reasonably claim that he did not know the age of the child concerned because that child was playing with his own child every day on the street where he lived.
That is one element. Another is investment in video systems and taking evidence at a distance. The most radical approach would be to examine whether the adversarial system is the ideal way of dealing with children. Is the Minister of State all right?
There is no point in my talking if the Minister of State is not listening.
I am also concerned about section 5 — which was inserted for good reasons and with the best of intentions — and whether it will be open to challenge on grounds of gender inequality, which may eviscerate the rest of the Bill. Rather than risk the entire legislation, it might be wise to consider that point.
The Minister referred to putting in the necessary resources, but they needed in other places as well as in the court system. Resources must be put into counselling, particularly for victims and especially for those who have been alarmed by the proceedings this week. Some of their emotions may have been whipped up by insensitive media courage but, nevertheless, people are worried and concerned. One would like to think the system is capable of responding to those people.
Resources are also needed in the area of sex education. It is pointless to deplore what happens to children when they go out into the wide and cruel world if we do not in some way help them to prepare for what they will meet and to make mature, sensible and reasonable decisions about what they do.
We must return to this matter. I hope people will have the stomach for it and that they will not consider this as done business. It is difficult to get people to discuss these matters. For that reason, it might be a good idea to signal in the Bill that this issue will be revisited.
I welcome the Minister for State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, to the House. I am delighted the Minister for Justice, Equality and Law Reform, Deputy McDowell, was here. I compliment him on the outcome of today's appeal to the Supreme Court. The short-lived freedom of Mr. A, who is supposed to be resident in Bray at present, is of great relief to everyone concerned. He will be returned to Cloverhill Prison to serve out an extremely lenient sentence for the crime he committed against a 12 year old. It was outrageous that he availed of the Supreme Court's decision to strike down section 1(1) of the 1935 Act.
As far as I am concerned, section 1(1) of the Act was good. Did the Government consider an amendment to ensure that section 1(1) of the 1935 Act was made constitutional, by an amendment to that section to include males as well as females? Many inside and outside this House fundamentally disagree with the striking down of this section by a member of the Supreme Court, which is his authority and right. We are not in a position to criticise him but we can question that decision. I am not surprised that the Attorney General, the DPP and the Minister for Justice, Equality and Law Reform were confident that the challenge to the striking down of the section would be successful. That is a fair assessment of the situation.
I compliment the Minister of State, Deputy Brian Lenihan, on his work in relation to children. He was very much involved in drafting this Bill. On television last night, both on the six o'clock news and "Prime Time", he allayed the fears of many people by his careful exposition of the situation. He wisely ensured he would not come into conflict in any way with the Supreme Court prior to its decision today.
Have the Minister of State and the Government considered whether the President will sign this Bill tonight? Is the Government arguing the case that it would be preferable to refer it to the Supreme Court to ensure its constitutionality? If this Act is challenged we will be back to square one. I do not recommend it but I put the question from the point of view——
Brian 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 believe it will be sent to the President.
That is fair enough.
I wish to refer back to 1934, when the 1935 Act went through both Houses. It was moved by the Attorney General and great discussion took place. The Houses also decided to establish committees to deal with the complexities of the situation. At the time, Mr. Blythe stated:
I should like to support the point of view put forward by the Minister in this matter. This is not a political Bill and, therefore, we do not need to bring any political considerations into it.
During the past week too much consideration was given to the Minister's situation and to trying to divide the Government. A week is a long time in politics. It started off badly and has finished very well indeed. Mr. Blythe, a founder of Fine Gael, was quite clear when he spoke on 6 February 1935. Another gentleman, Colonel Moore, found it very distasteful and stated:
This, as the Minister has stated, is not a pleasant subject to discuss in public. I have had a consultation with him, and I now propose that this Bill be referred to a Special Committee of the Seanad.
They felt uncomfortable discussing the 1934 Bill. I compliment the drafters of that Bill on 70 years of success during which the Act was not struck down on a constitutional basis. It is worthwhile to read the deliberations of both Houses of the Oireachtas at that time. By discussing this Bill in detail we have done the State some service. I compliment the people who staged a protest on this issue outside the Oireachtas today in such an orderly fashion. I commend this Bill to the House.
I only need two minutes. I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, to the House. I have listened to much of the debate in the two Houses and Fine Gael will be supporting this important Bill. We have legitimate questions and I seek answers to questions already raised by my colleagues. Many of my reservations relate to section 5 which is unclear and leaves a potential loophole in the Bill as it is currently drafted. The Government did not wish to stigmatise girls who fall pregnant between 15 and 17 years of age and this is a point on which we all agree. However, my understanding on reading the Bill is that a girl in that category who commits a sexual act other than intercourse may be convicted of an offence. This sends a mixed message about other areas of the Bill. I have difficulty with other sections also.
Nobody in either House wishes to see a girl of 14 or 15 years of age, who has been attacked in this way, subjected to a strong cross-examination in any court with her clothes and behaviour brought into question. However, it is within the remit of the Minister to see that video evidence be used so that a girl in that position would not be subject to a full interrogation by senior counsel and he should do so. The Law Reform Commission has already set out guidelines on how video evidence should work. I suggest in future, if such a victim is in the witness box, rather than a senior counsel questioning her, perhaps a child psychologist or someone in a similar position could ask the questions supplied by the senior counsel to avoid traumatising the girl.
I will support this Bill but I have reservations about certain areas. I respect the Minister as a man of ability but he has not handled this issue well. He made a joke of some of these issues on national radio last week. He spoke of randy 23 year olds but some of his activities over the past ten days suggest he has acted as a randy 23 year old in his treatment of the Dáil and people who have asked serious questions. It is my role as an Opposition spokesperson to ensure the Government is held to account and I will not be stopped from asking questions at any opportunity I get.
I heard what the Minister for Justice, Equality and Law Reform said in the Dáil on the issues that have been raised.
I wish to raise an issue of major concern. I refer to the issue of inequality under section 5 of the legislation — that may not be the correct section because I find it difficult to understand the Bill fully. While I agree that it is perfectly fair and legitimate to protect a young girl who may become pregnant and that she should not be liable to prosecution, my concern is for her boyfriend. I will cite an example to illustrate this issue.
In a case where a 16 year old boy and a 16 year old girl have been going out for three months, six months or three years, they have had a sexual relationship for one year, two years or three years and suddenly the relationship finishes because the girl is unhappy or her parents find out about the relationship and are appalled, the girl may become pregnant or even if she does not she is not liable to be prosecuted, but the young man is liable in that respect. If the act is notified to the Garda, it must bring the case to the DPP, as the law states the act is an offence, and the DPP does not have any discretion in this matter because it is a prima facie case in regard to an offence cited in law. The 16 year old boy does not have any defence because, having gone out with the girl for three months or more, he must know her age and therefore does not have a defence on that ground. A 16 year old boy may be prosecuted for having sex with his 16 year old girlfriend. That is not right. It introduces inequality under the law in regard to the treatment of girls and boys and allows for exploitation.
Brian 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 thank the Senators for their contributions. I appreciate that this legislation has been brought forward with great speed. It is not an emergency Act, as has been canvassed in the media and in the other House, rather it is an Act of the Oireachtas.
It is important that we give due consideration to this legislation. I assure Senators that the Government and the Attorney General gave a considerable amount of time to this issue. The Government has been criticised because the legislation was not introduced in the immediate wake of the Supreme Court judgment. However, the debate in both Houses has illustrated the fact that these are not simple issues——
Brian 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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——rather they are issues that require considerable deliberation. Even to produce legislation which deals with the immediate need to address the shortcomings that exist in our law as a result of the Supreme Court judgment requires a great deal of consideration. I assure Senators that the Government met on numerous occasions and required advice from the Attorney General on quite a range of issues before even arriving at this legislation.
I thank Senators for the co-operative spirit with which they have addressed this legislation. Under Bunreacht na hÉireann, the function of the Seanad is to advise on legislation and to suggest amendment. I appreciate that in the limited time available the scope for amendment is limited but from the contributions I have heard and from a note I have of the earlier contributions made in the presence of the Minister, Deputy McDowell, the spirit of the debate in this House has been constructive. That is in the best traditions of this House.
Our point of departure in this debate must be that as a result of the Supreme Court decision there are a number of individuals in our community who are very disturbed at what is happening. Apart from whatever discussion we have about legislation or the social phenomenon of sex abuse that exists in our country, there are victims who have gone through great hurt and suffering. Whatever we say must take account of their feelings. I know that principle and the feelings of those involved were respected in the Seanad. The Senators appreciated the fact that we must take into account the hurt that is felt even at the prospect of the premature release of very dangerous men. That was respected in this debate and I want to acknowledge that in the first instance before I address the points concerned.
The Government was faced with a very difficult position. First, in matters pertaining to the courts, the courts have sovereignty under our Constitution. They make the final decision on the constitutionality of legislation and also on the consequences of a finding of unconstitutionality. A great deal of political debate in the other House was naturally and understandably devoted to the proposition that if the Government, a Minister or the Attorney General was aware that there was a possible finding of unconstitutionality, that could somehow have enabled the Government to address the issues concerned. It could not. Before, during and since its judgment, the Supreme Court is sovereign in this matter and it made the decisions. There is nothing the Minister for Justice, Equality and Law Reform or the Government could have done in advance of, or since, the decision to prevent the release of the individuals concerned. I am glad to learn that the Supreme Court in the first appeal has decided not to direct the release of the individual concerned. I welcome that decision but it is one for the Supreme Court, not the Government. The court must consider the jurisprudence and decide in light of its interpretation of the Constitution what is appropriate.
Our duty in these Houses is to enact legislation that addresses the issues arising in the context of the Supreme Court decision. Senators made several points on Second Stage which I hope I can address. Several Senators said that section 5 introduces an element of gender inequality into the legislation. When the Supreme Court judgment was pronounced, several political interests, including the Labour Party, although I do not say that in any spirit of criticism, suggested that we should enact simple legislation to re-enact the 1935 legislation with the adaptation, on which the Supreme Court insisted, that the honest mistake as to age should be included.
The Government examined that option carefully and there were Ministers who considered, as any Minister would, that it would be the obvious solution to our problem. When we examined that issue, however, it was not so simple. The social assumptions that obtained in 1935 do not obtain today. When the 1935 Act was enacted the Minister for Justice, Mr. Routledge, and the then Attorney General explored the issues in great detail. A former Attorney General of that period, Mr. Conor Maguire, was later Chief Justice and in the leading decision on the 1935 Act, made in 1960, he stated that the object of the 1935 Act was "to protect young girls, not alone from lustful men, but from themselves". That was the social policy behind the 1935 Act but it does not obtain today.
The modern thinking on child protection is that we must protect all children, irrespective of gender, and the Government had to take account of that in preparing this legislation. It would have been very easy for the Government to go for the simple solution but that was not available to us. We studied the issues involved and we had to consider reports such as the Ferns Report, which I had to address as Minister of State. We decided that we had to provide a comprehensive charter of child protection in any legislation we introduced and that boys must be protected as well as girls. We have restated the 1935 legislation in terms of the protection of boys and girls.
We also had to examine the issue of consent. The Supreme Court has decided that the defence of an honest mistake as to age should exist. We must accept that. It has decided that as a matter of natural justice an accused must be entitled to avail of that defence. Senators have explored the implications of that decision.
In this legislation, however, we say that the issue of consent does not arise. In other words, while an accused person can cross-examine the victim on the basis that the victim gave an impression that he or she was of a different age, we are not prepared to accept the proposition that the victim can be cross-examined on the basis that he or she encouraged, or consented to, the act. There is a zone in which children must be protected.
We must make a difficult decision as legislators here because we know that as children evolve towards maturity things can happen, but the Legislature must send out a signal as to the appropriate age. We have decided not to disturb the arrangement that existed in the 1935 Act and is well-known in Irish culture that the age is 17. While the age is 16 in many jurisdictions, in our neighbouring jurisdiction of Northern Ireland it is 17. We are not departing from an all-Ireland norm in that respect.
If we have legislation that applies to both genders this gives rise to an issue — it has been raised by many Senators — as to why we draw the differentiation in section 5. There are serious practical problems if we omit section 5 from the Bill. If, for example, a 15 year old female is sexually abused by a 25 year old male, and we decide not to have section 5 and to apply the law without regard to both genders, the female becomes an accomplice in the crime committed by the 25 year old. She becomes guilty of an offence. In the context of a criminal trial, this means that the evidential standard which the prosecution must meet would be much higher because an accomplice's evidence requires corroboration. The Director of Public Prosecutions drew the Government's attention to this difficulty and we took it into account in arriving at our decision on the form of the legislation.
Apart from practical and evidential problems, there is an issue of principle. If the female in question conceives and gives birth to a child as a result of sexual intercourse and we decide not to include section 5 in the legislation, that woman is automatically criminalised. I know the Fine Gael Party put forward the proposition in the debate in the Dáil that this should be dealt with by way of minor offence. However, there is an issue of principle at stake. Can we say to any woman who gives birth to a child in these circumstances that the child's birth was a result of criminality? As that pregnancy proceeds, should she be held up before the community as a person who is giving birth to a child as part of criminal conduct? That is a far-reaching proposition. The Government had regard to that issue and took the advice of the Attorney General on it.
Some Senators referred to the possibility of a constitutionality issue. I assure them that we listened to the views of the Attorney General in that regard. He advised us that we were within our rights and that it is a legitimate differentiation we can make in the drawing up of legislation. We have drawn up the legislation on a gender-neutral basis in the context that we will protect boys and girls on an equal basis. However, we are entitled to make the differentiation between them on the issue of criminal liability under the age of 17. It is a differentiation that springs from the facts of nature herself. That is the basis upon which the Government drew that differentiation.
Arguments were advanced in both Houses that we should have taken a different course. However, Senators should consider what that different course would involve, namely, a major change in terms of the practicalities of mounting a prosecution of an offender where there is abuse of a younger woman. It would also involve a significant change in terms of how we view pregnancy and birth outside marriage. We have gone through a revolution on that issue during the past three decades and I would be disappointed if the changes we have seen and the change in attitude that has been effected were undone by legislation that would say to a woman who found herself in that position that she was automatically a criminal. That issue cannot be left to the discretion of the Director of Public Prosecutions.