Committee Reports > List of Committees > Joint > 1987 > Committee on Women's Rights > Report No. 04 - Sexual Violence

INTRODUCTION

One of the less desirable features of life in Ireland to-day is the increase in the level of serious crime and this understandably is a cause of grave concern to all law abiding and concerned citizens. Violent crimes against the person were, at one time, practically unheard of in this country and when they did occur people’s reactions were ones of disgust and outrage. The quality of life, with regard to respect for the individual has been progressively eroded in recent years. The situation has deteriorated to such an extent that violent crimes against the person are now common place and many people are fearful for their safety both in their homes and outside of them. In such a changed and threatening climate women in particular have experienced an increase in violent crimes committed against them.

Sexual violence is a wide ranging social problem, not confined to any particular country or region. The increase in sexual violence that Ireland is experiencing is manifested in other countries. The Women’s Rights Committee of the European Parliament recently drew up a report on “Violence against Women”.⁽¹⁾ Responses from the member States to a questionnaire from the Committee show that the problems of violence against women are growing but that effective solutions have yet to be found. It is a subject that is exercising the minds of many groups in different countries. One of the most prevalent types of sexual violence against women is rape, a heinous and degrading crime which can leave the victim mentally and psychologically scarred for life.

The extent to which rape and serious sexual assault is increasing in this country can be gauged from the number of cases reported to the Rape Crisis Centre in the years 1984 and 1985. In 1984 the Centre dealt with 365 calls relating to incidents of adult rape/sexual assault and 152 calls relating to child sexual abuse including incest. The corresponding figures for 1985 (approximate) are 401 and 564 respectively. In the first 9 months of last year, 1986, there has been a further increase. A total of 1043 calls have been handled in this period by the Rape Crisis Centre, relating to sexual violence against adults and children. The official Garda figures for the same period, supplied. to the Joint Committee are as follows:-

In 1984, 179 complaints of rape/indecent assault were investigated and proceedings were taken in 111 cases. The corresponding figures for 1985 were 251 complaints, with proceedings taken in 169 cases. The figures relating to child sexual abuse including incest revealed that in 1984 the Gardai investigated 25 complaints and proceedings were taken in 22 cases, while the corresponding figures for 1985 were 48 and 26 respectively.

A comparison between the two sets of figures is interesting. The figures supplied by the Gardai would seem to indicate that the situation is not as serious as is claimed by the Rape Crisis Centre. This disparity underlines the experience of people working in the area, such as doctors, social workers and counsellors, that many victims do not contact the Gardai after being sexually assaulted. This may be because of their fear at being questioned by the Gardai and they may also be afraid of any publicity their cases might receive in the media and among their neighbours.

In Ireland the law relating to rape and indecent assault on females is governed by the Criminal Law (Rape) Act, 1981. The Joint Committee on Women’s Rights has devoted some time to examining this Act and the members heard evidence from the Garda Siochana and the Law Society. Representatives of the Rape Crisis Centre, Dublin also attended before the Joint Committee and it was an earlier written submission from this group calling for amendments to the Act which initiated the Joint Committee’s examination. The findings and recommendations of the members are set down in the proceeding pages.

It was put forcibly to the Joint Committee that the main defects in the existing legislation arise because it fails:-

(a)to define rape in its broadest sense, to include oral sex, buggery and the use of objects such as sticks, bottles and other articles to violate a woman’s vagina.

(b)to protect the anonymity of the victim.

(c)to restrict the admissibility of irrelevant evidence as to the complainant’s past sexual history.

(d)to protect the complainant from feeling that she is “on trial” and that she is being “raped” again in court.

(e)to criminalise rape in marriage.

1. DEFINITION OF RAPE

1.1Under the existing legislation a man commits rape, if-

(a)he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and

(b)at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it.⁽²⁾

References to sexual intercourse in the Act are construed as references to carnal knowledge as defined in Section 63 of the Offences Against the Persons Act 1861, which relates only to natural intercourse i.e. penile penetration of the vagina. Submissions received from the Garda Siochana and the Law Society argued against the broadening of the definition of rape. The Garda authorities indicated that they were satisfied that sufficient legislation exists to deal adequately with other forms of penetration as distinct from sexual intercourse, and they made the point that the possible consequence of unlawful intercourse i.e. pregnancy, makes rape a unique crime. However they did inform the members that they would have no objection in principle to broadening the definition of rape.

1.2The Law Society accepted that certain types of sexual assault such as forced sex and buggery are as disturbing to a victim as penile penetration and submitted that to meet objections, the existing category of indecent assault should be sub divided into:-

(1)indecent assault; this would deal with for instance touching of breasts etc. and would have a maximum sentence of five years.

(2)aggravated indecent assault which would include buggery and oral sex; the maximum sentence for this might be increased to 14 years.

The Law Society stressed that in so submitting it was accepting the opinion of the Heilbron Committee “that the concept of rape as a distinct form of criminal misconduct is well established in popular thought, and corresponds to a distinctive form of wrong doing”.⁽³⁾ Their representative, under cross examination, did however concede that they would have no difficulty in accepting a recommendation by the members to broaden the definition of rape.

1.3Having given the matter careful consideration the members of the Joint Committee agree that the definition of rape should be widened to include the types of indecent assault referred to at (a) p. 8. The existing Criminal Law (Rape) Act, 1981 ignores the seriousness of other forms of sexual assault, such as forced anal and oral sex, apart from penile penetration, and in so doing it implies that one form of sexual attack is more serious than another. It is important that the gravity of forced sexual penetration through the use of objects is fully recognised and that the protection at present afforded to victims of rape should be extended to the victims of such sexual acts. The members agree that there is no logic in keeping as separate the treatment by the law of offences that reflect a correspondingly degrading level of sexual violence against women. This is a view shared by many other people and reflected in the report on “Violence Against Women” by the Women’s Rights Committee of the European Parliament.

2. INVESTIGATIVE PROCEDURES BY THE GARDAI

2.1The investigations required to be carried out by the Garda Siochana after a rape has been reported to them, can be a source of embarrassment and upset to the woman involved. A representative of the Garda Commissioner who spoke to the members informed them that the Gardai are instructed to show extreme sensitivity to the plight of rape victims. The members are satisfied that in recent times a greater awareness has been developed among the Gardai of the need to understand and respect the feelings of trauma that the woman is experiencing at that particular time. The members were also told by the representative that complainants are required to be informed in all cases of their right to be examined by a doctor of their own choice, or if living in the Eastern Health Board area, at the Sexual Assault Treatment Unit at the Rotunda Hospital. If they choose neither, they are asked if they would consent to be examined by a doctor nominated by the Garda Siochana. The consent of a rape victim is necessary before an examination can be carried out. Apart from informing the woman of her right to be examined medically, the members agreed that she should also be given the name, address and phone number of a social worker, or perhaps even the Rape Crisis Centre.

2.2It was submitted to the Joint Committee that a complainant seldom receives a copy of her statement to the Gardai. Having regard to the distressed condition she will be in at that time, it is not surprising that she will not bother to ask for a copy of the statement. There is a provision in garda regulations whereby a complainant is informed that she is entitled to a copy of her statement and if she requests one it will be supplied to her as soon as possible. The members of the Joint Committee recommend that a copy of her statement should be given automatically to a rape victim and that she should not have to request it.

2.3One of the major complaints made by those working with rape victims concerns the lack of information given to a complainant regarding the progress of her case, from the time of the assault to the court hearing. The members were shocked to hear of cases where women first heard of the trial and conviction of their assailants when they read about it in the newspapers. They were also told of instances where complainants had been visited by the Gardai in their place of employment, causing them distress and embarrassment. The members feel strongly that a complainant should not be left in ignorance of the proceedings - she has a right to be kept fully informed of what is happening. They therefore strongly recommend that the complainant in all rape and sexual assault cases should have access to the Gardai and the State prosecutor before the hearing and be kept fully informed in a discreet and personal way, of all developments in the case.

3. MEDICAL EXAMINATION FOR FORENSIC EVIDENCE

3.1One big step forward in the improvement of the post rape trauma for many victims of rape has been the establishment of the Sexual Assault Treatment Unit at the Rotunda Hospital in Dublin, where procedures in the taking of forensic evidence have been standardised. There is now available a corp of doctors with experience in working with the victims of rape and sexual assault in the immediate aftermath of the crime. The Garda Commissioner’s representative informed the members that there was universal satisfaction among the Gardai using the Unit. However it is a matter for regret that, outside of Dublin, there is no other sexual assault treatment unit and it is the earnest hope of the members that new units will be established as a matter of priority in the various health board regions throughout the country.

3.2It was submitted to the members that the majority of rape victims would prefer to be examined by woman doctor and it is easy to appreciate why this should be. The members suggested that a panel of suitable doctors, both men and women, who would be sensitive to the plight of rape victims and who would be in a position to carry out forensic examinations should be established by the Garda Siochana. The Garda Commissioner’s representative, while pointing out that there were not as many doctors willing to be on call for the Gardai, as one might think, indicated nevertheless, that each garda station, outside of the Eastern Health Board region, could try to arrange that it had at least one woman doctor available who would be willing to be on call. The Joint Committee intends to keep in touch with the garda authorities to see what progress, if any, can be achieved in setting up a panel of suitable doctors.

3.3It was put to the Joint Committee that the examination of a victim of rape should be strictly for forensic evidence and that there should be a further examination by her own doctor for possible injuries i.e. tearing, bruising etc. as well as V.D. and pregnancy tests. The members of the Joint Committee expressed concern than any delay on the part of the woman in having a thorough medical examination might result in the loss of crucial evidence necessary to convict the assailant. For that reason the members agreed that the procedure now in operation whereby the doctor called by the Gardai carries out a thorough examination of the victim should be continued. There is of course no reason why the woman cannot have a further medical examination carried out by her own doctor, if she so wishes.

3.4The members were pleased to learn that there is now available in Garda District Headquarters Stations a Rape Investigation Kit which contains a form indicating all that the doctor is required to do, confining his/her action to what is relevant. The Garda authorities informed the members that they endeavour to have the questioning of the victims of rape carried out by a ban-ghardai. While this may not be possible in remote areas, it can be taken that elsewhere in the country this duty is normally undertaken by a ban-ghardai. The members regard this as a big step forward and they are convinced that the Gardai will extend the use of ban-ghardai on this type of work, in so far as it is possible to do so.

4. ANONYMITY OF THE COMPLAINANT

4.1Section 7(1) of the Criminal Law (Rape) Act 1981 refers to the anonymity of a complainant in a rape case. It states “after a person is charged with a rape offence no matter likely to lead members of the public to identify a woman as the complainant in relation to that charge shall be published in a written publication available to the public or be broadcast except as authorised by a direction in pursuance of this section”. Under section 7(4) of the Act this anonymity can however be removed on the direction of the Judge if he is satisfied “it is in the public interest” to remove or relax the restriction. It was put to the Joint Committee that the term “in the public interest” is vague, and it is not defined in the Act. It is a totally vague and non specific term.

4.2The Joint Committee is aware of the concern being expressed by various groups to amend the existing rape law with regard to anonymity of the complainant and the members listened attentively to views put to them on this particular point. They are not happy with the wording of Sections 7 and 8 of the Act and they feel that it leaves too many factors to the discretion of the Judge. The members agreed that a complainant in a rape case should, in the interest of justice, be accorded full anonymity, and that the Act should be amended to include a proviso on the following lines i.e. “no matter likely to lead members of the public to identify a woman as complainant may be published or broadcast”.

5. ADMISSIBILITY OF CERTAIN EVIDENCE

5.1A difficulty in relation to proof is the establishment of the absence of consent on the part of the complainant. Section 2 of the Act states “if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed”. In other words, the actions of an accused are evaluated subjectively. It was put to the members that in some instances, because of the aggresive and threatening approach of the man, fear may be instilled in the woman, to the extent that she does not give any expression, physically or otherwise of her objection to intercourse. An accused person could in such a case advance reasonable grounds for consent, particularly when his actions are viewed subjectively as required by law. The members agreed that the existing legislation is seriously imbalanced in that it allows the motives and action of the accused person to be evaluated subjectively but in a paradoxical way the complainant is obliged to prove objectively that she did not consent to being raped.

5.2Section 3 of the 1981 Act restricts the rights of an accused person to cross examine the complainant or any other witness or to adduce evidence about any sexual experience of the complainant with any person other than the accused. However the section does make provision for the accused to make an application to the Judge for leave to cross examine the complainant on such matters (such application to be made in the absence of the jury) and it is up to the Judge to decide on the admissibility of such evidence. Both the Garda authorities and the Law Society submitted that there should be no change in the existing law relating to the admissibility of evidence in rape cases, and they stated that in some instances a Judge might feel that a jury might not come to a proper decision unless all the facts about the complainants previous sexual history are put before them.

5.3It is acknowledged that justice and fair play must be the hallmarks of any judicial system and that every accused person is entitled to a fair trial. The Joint Committee having carefully weighted up the evidence submitted to them regarding this section of the Act came to the conclusion that it leans too far in favour of the accused person. A woman’s previous relationships with her attacker or any one else is irrelevant to the case in hand. To allow evidence concerning a woman’s past sexual behaviour reveals a misunderstanding of the real nature of rape. Rape is an act of humiliation and degradation committed by a man to dominate a woman, using sex as a weapon to achieve that purpose. It is seldom the act of a person seeking sexual gratification. The members consider that focussing attention in court on a woman’s past sexual behaviour is to miss the point entirely. In other criminal cases if an accused introduces particulars of the complainant’s character it would lose him the protection of the court and it would allow the prosecution to present evidence about his previous convictions or his general behaviour.

6. TREATMENT OF COMPLAINANT IN COURT

6.1The act of rape is a most disturbing and traumatic experience for the woman involved and it leaves her in a most distressed and humiliated condition. To have these intense feelings of distress compounded, however unintentionally, when she appears in court subsequently, is akin to being “raped” again in public. This point was put very strongly to the members in the submission from the Rape Crisis Centre. To put it briefly, victims of rape find the courtroom environment hostile and intimidating, and devoid of any understanding of their feelings, at a time when they need all the support and understanding they can get. The role of the victim in a rape case is not the same as that of a victim of other crimes, such as robbery, common assault, etc. She is obviously placed in a more upsetting and stressful role as a witness and the fact that she is usually unprepared for the experience, adds to the ordeal she must face in the courtroom.

6.2A defendant in a rape case has access to legal advice and he can apply for legal aid and receive free legal representation. The complainant however is denied access to discussion or consultation with the legal representatives of the State. Indeed it is normal for a complainant to meet the State prosecutor for the first time in court on the day of the hearing. This practice is unacceptable to the members of the Joint Committee having regard particularly to the special and unique circumstances that apply in rape and sexual assault cases. The members feel strongly that the victims of rape should be able to consult with the State’s legal representatives before the court hearings and that they should be fully briefed on court procedures including the type of question likely to be put to them by defending counsel. State counsel in prosecuting a case does not of course officially represent a complainant and the members agree with the proposition submitted to them that complainants in cases of serious sexual assault, and particularly rape, should be granted free legal representation, if they so wish.

6.3The members also agreed that pending the implementation of their recommendation in the previous paragraph (6.2) a counsellor, perhaps from the Rape Crisis Centre, or some similar agency, should be allowed to accompany the victim to court, if she so wishes. The counsellor would of course take no active part in the proceedings, but his or her presence there would act as a support and comfort to the woman and help to dispel her feelings of aloneness. The present legislation and legal practice do not afford a complainant adequate protection from distress and harrassment in court. The members feel that the changes they are recommending in this area to protect and support a complainant in court are demanded in the interests of justice and equality. At present some presiding judges are not averse to welcoming a counsellor in court but other judges do not extend the same courtesy and counsellors have on occasions experienced resentment to their presence in court.

7. HOLDING OF RAPE CASES IN CAMERA

7.1 The distress on the part of the complainant giving evidence in rape cases in a crowded courtroom has been referred to in Par. 6.1, p. 21. The members of the Joint Committee agree that these cases, involving very intimate details of the sexual conduct of the parties concerned should be held in camera, and they recommend that this proviso be incorporated in any new legislation enacted by the Oireachtas. All family law cases are heard in camera and in cases involving incest a precedent has been set for holding them in camera under Section 5 of the Punishment of Incest Act, 1908. The members can see no reason why all cases involving rape cannot be held in camera, and this is a view shared by the Law Society. The Gardai are unlikely to have any objections to such a proposal.

8. JURIES IN RAPE AND SEXUAL ASSAULT CASES

8.1It was put to the members of the Joint Committee that there should always be a balance of the sexes on juries in these type of cases. The surroundings in the courtroom are generally, predominantly male and often the complainant herself will be the only female present. It is difficult enough for her to step into what she will perceive as an unfriendly environment, without having to realise in due course that the jury adjudicating the case may also be predominantly male. Defending barristers are apt to object to women during the selection of juries on the grounds that they would, because of their sex, be too sympathetic to the complainant. It was suggested to the members of the Joint Committee that an even balance of the sexes - six men and six women - should be the norm in all rape and sexual assault cases. They are happy to endorse this suggestion.

9. COURT HEARINGS

9.1Rape is an indictable offence and rape cases are tried almost entirely in the Circuit Criminal Court. However, cases have been heard in the District Court, where the maximum sentence that can be imposed is two years. The members of the Joint Committee expressed concern at this practice and agreed that the hearing of all rape cases should be held in the Circuit Criminal Court, or the High Court, and that a clause to this effect should be included in any new legislation enacted by the Oireachtas.

10. SENTENCING

10.1The perceived disparity in sentencing in rape and other sexual assault cases has been a matter of concern to many citizens in this country in recent years. The members of the Joint Committee acknowledge that the demands from the general public for a more consistent level of sentencing, in all criminal cases, must be listened to and action taken to allay their fears. The members respect and support the independence of the Judiciary, an independence enshrined in the Constitution. It is their opinion that the members of the Judiciary themselves should examine the situation, to see how a more uniform system of sentencing could be established. The Committee are convinced that in the interests of having a consistent level of sentencing by all judges, a set of guidelines for sentencing should be laid down for sexual offences and for all other serious crime. Such action would not only allay the fears of the general public, it would also help to maintain a high level of respect for the law. It is worth noting that in Britain where the maximum sentence for rape is life imprisonment the Lord Chief Justice in an appeal case last year referred to the need for adequate sentencing and suggested guidelines that judges might follow in cases involving rape.

11. SEXUAL VIOLENCE WITHIN MARRIAGE

11.1At present because of the definition of rape as an act of “unlawful” sexual intercourse, a husband cannot be convicted of rape except in very rare circumstances. This, in effect, amounts to an irrebutable presumption that a husband is incapable of raping his wife. This presumption probably originated in the seventeenth century when women were in effect seen as chattels of their husbands. The Rape Crisis Centre informed the members of the Joint Committee that they were in no doubt that many Irish women are subjected to sexual violence by their husbands and the Centre has been contacted by some of these women, who needed counselling and advice. This, is understandably a very delicate area, a fact emphasised by the Gardai, who made the point that in the absence of supporting statistics it is not possible to quantify the real extent of the problem. The Law Society also referred to the sensitivities in this particular area and listed the following:-

(1)difficulty of proof

(2)barrier to reconciliation

(3)aversion of both the law and the police to interfering in the relationship between husband and wife.

On the other hand, it must be said that in other jurisdictions i.e. France and Denmark (in the E.E.C.), the Scandanavian countries, U.S.S.R., West Germany, New Zealand and Canada and also in some states in the U.S.A. and Australia, legislation has been enacted recognising sexual violence within marriage as a criminal offence. So it is not impossible to legislate for this particular crime.

11.2It would appear that many people assume that sexual violence within marriage is less serious than rape committed by strangers and others and does not merit the status of a criminal offence. There is no evidence to show that a victim of forced rape by a husband suffers less pain, degradation and fear than any other rape victim. Another argument for making marital rape a criminal offence, and this was advanced by the Law Society, is that unmarried women cohabiting are entitled to the full protection of the existing law and the men involved can be brought to court to answer the charge of rape. A similar situation would exist in a case where a husband and wife are living apart under a separation agreement. There is clearly an anomaly in the law here, and perhaps the best way to overcome it would be by the inclusion of a no exemption clause i.e. a specific clause exempting no one from being charged with the crime of rape, as is the situation in many European countries, or by a specific clause, similar to that in the legislation of the State of South Australia which states that “no person shall by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person”.⁽⁴⁾

11.3While accepting that the question of sexual violence within marriage is a very sensitive and delicate area to probe, the members of the Joint Committee feel that the weight of evidence presented to them indicates that the criminalisation of rape within marriage is called for and the present immunity of a husband should be abolished, as has been done in other countries. In advocating this change the Joint Committee agrees with the suggestion in the Law Society’s submission that any charge against a husband should only be brought with the consent of the Director of Public Prosecutions.

12. RAPE COMMITTED BY BOYS UNDER FOURTEEN YEARS

12.1Medical evidence shows that a boy under fourteen years is capable of having sexual intercourse, and clearly boys of this age do indulge in sexual intercourse. They can and do commit rape. However under the existing legislation there is an irrebuttable presumption that a boy under fourteen years is incapable of sexual intercourse and cannot be convicted of rape. The members agreed that this presumption should be removed from the legislation. Acknowledgement of the capability of boys of this age to commit rape should be included in an updating of the existing legislation, and the members agreed that a provision, similar to that in the legislation of the State of South Australia would meet this requirement. This provision states that “no person shall by reason of his age, be presumed incapable of sexual intercourse”.⁽⁵⁾

12.2The members of the Joint Committee agreed that boys who commit sexual crimes need urgent medical attention and therapy. Many of these boys may themselves have been the victims of sexual abuse and the victimisation by them of other children is a disturbing trend that can only be tackled properly by medical attention and professional counselling. At the same time the members feel that boys who are found guilty of sexual assault should be made to realise that their actions are criminal. Accordingly the members of the Joint Committee agreed that young boys who are found guilty of sexual assault should be committed to appropriate detention centres and receive the necessary professional treatment during their detention. On release, these boys should be referred to the counselling agencies run by the Health Boards in their areas, to ensure that their conduct is kept under regular review.

13. SEXUAL ABUSE OF CHILDREN

13.1Any consideration of the crime of rape must inevitably touch on the sexual abuse of children. Many reasons have been advanced by sociologists for this type of crime - poor socio-economic environment, inferior and overcrowded housing conditions, personality traits of the offender and poor marital relations between the parents. Whatever the true reasons may be, the reality is that innocent children who have no one to speak for them are subjected to the most degrading and damaging form of abuse and in many instances, by those from whom they would expect to receive protection, love and affection. It is sad to have to record that child sexual abuse is now a serious social problem causing grave concern to the welfare and medical personnel working in this area.

13.2Figures received from the Department of Health for the year 1985 show that out of 304 cases of injury to children confirmed by the Health Boards, 133 cases involved sexual abuse. This was an increase of 300% on the 1984 figure of 33 confirmed cases of sexual abuse and it gives some indication of the seriousness of the problem. It should be understood that not all cases involving the sexual abuse of children are reported to the Health Boards, nor to the Gardai and it is accepted by social workers that the situation is a lot worse than the official figures would indicate. The Joint Committee was informed by the Director of the Sexual Assault Treatment Unit at the Rotunda Hospital, Dublin, that the Unit, which is two years in existence, handled 125 children in the 9 month period ended October 1985. It is currently dealing with an average of over 40 cases per month and last year, 1986 with the staff working from 9 a.m. to 6 p.m. daily, it handled over 500 cases. Although relations between the Unit and the Gardai are good there is no mandatory reporting of child sexual abuse and the Unit does not have to inform them of every case. The members would like to see this situation changed by the introduction of mandatory reporting.

13.3The sexual abuse of any individual is a harrowing experience, but when the victim is a child the experience can result in irrepairable phychological and emotional damage, unless professional counselling is immediately available. The Sexual Assault Treatment Unit in the Rotunda Hospital is the only one of its kind in the country and it is dealing in the main with cases from the greater Dublin area. It gets calls for help from outside Dublin, but due to the lack of personnel it cannot always respond to these calls. Centres similar to the one at the Rotunda Hospital are needed throughout the country, and once again the members call upon the Department of Health to set about establishing these units in health board regions, as a matter of priority. Children who are sexually abused should receive immediate professional care and counselling in order to avoid the possible consequences, emotional and psychiatric, that may emerge in later life. The members of the Joint Committee are satisfied that a positive decision should now be taken to provide the facilities required on a regional basis for the treatment of all sexually abused children.

13.4The members are aware that along with the establishment of treatment centres, there is also an urgent need for a programme of preventive education. One service without the other will achieve very little. The Joint Committee in its first report on education referred to the difficulties facing teachers in dealing with children who have emotional problems

“The many psychological problems affecting pupils nowadays related to drug taking, environmental conditions, lack of parental control and sexual deviation are a cause of real concern to teachers. Very often the teacher in the classroom is confronted and expected to deal with situations for which he or she has no special training”.⁽⁶⁾

A teacher will very often be the first person outside of the family circle to become aware that a child has been sexually abused but because of the absence of any special training to cope with this type of situation he or she will not know what to do. Accordingly the members repeat their recommendations that professionally organised seminars and training courses should be set up to help teachers to detect and cope with the emotional problems of their pupils. The seminars should be part of a wider programme of preventive education involving parents, clergy, nurses, Department of Education, Health Education Bureau and the Health Boards. The members are convinced that if a suitable programme of preventive education is put into operation and suitable treatment centres, like the Rotunda Hospital unit, established in each Health Board region, a greater awareness of the problem of the sexual abuse of children will be developed in the community and people who are affected by the problem, whether directly or indirectly, will not be slow to seek advice. A programme such as this cannot be run at a distance. It must be based locally if it is to be of maximum benefit to the community.

13.5Admissibility of children’s evidence in court is a major problem in the prosecution of cases. Few cases involving the sexual abuse of children are prosecuted but in those instances where court proceedings do ensue the experience for the children involved is traumatic. Most adults will find the atmosphere of a courtroom unsettling and even intimidating. What then must be the feelings of a child who has to give evidence, in what will be perceived as very strange and unreal surroundings? It was put to the Joint Committee that the child should always have an advocate in court and that the child’s evidence should be accepted on video. In Britain an amendment to the Criminal Justice Bill now before Parliament, will when approved, allow for the acceptance of evidence from a child by video link to the courtroom. The members would like to see a similar practice operating in this country, in cases involving child sexual abuse. The members would like to see a big reduction in the time it takes to bring a case to court - evidence was given to them that at present it can take up to 18 months from the time of the offence. The members agreed that in cases involving sexual crimes, particularly when children are the victims, there is a need for prompt and efficient processing of the evidence, so that cases will be brought to court within a period of six months, at most. They also agreed on the desirability of having a special family court to deal exclusively with cases of child sexual abuse in an intra/familial situation.

13.6It is the experience of those working with children who have been sexually abused that the offender can very often be a member of the child’s family, a relation or a friend. It was submitted to the members that in situations where a member of the same household is charged with the abuse of a child, a condition of bail should be the barring of the offender from the home. Instances of child abuse in the home by another member of the family while on bail and awaiting trial, are not uncommon. Because of the difficulty in detecting child abuse in a family situation, very few cases are reported or brought to court. Those that are, usually result from the suspicions of someone outside the home who is in contact with the child, such as a teacher, doctor or near neighbour.

13.7The unsatisfactory position in relation to current legislation, admissibility of children’s evidence in court and the difficulty in establishing forensic evidence are matters that need to be looked at urgently and clarified. The members agreed that greater liaison should be established between the various agencies mandated to act on behalf of the community i.e. the Garda Siochana, Attorney General, Department of Health and other experts. An integrated response from all groups working in this area is required if the problem of child sexual abuse is to be confronted in a serious and effective manner.

13.8The Child Sexual Abuse Protocol of Metropolitan Toronto, Canada, known as the “Toronto Protocol” is put forward by the members of the Joint Committee as a suitable model for the implementation of their proposals. The protocol in acknowledging the increasing sexual abuse of children and their right to be protected, sets down various guidelines for the help and treatment of both victims and abusers (see Appendix 1)

13.9The Children (Care and Protection) Bill 1985 is now at committee stage (special committee) and the members of the Joint Committee exhort their fellow parliamentarians to address themselves to the question of child sexual abuse during their examination of the Bill.

14. TEMPORARY AND EARLY RELEASE OF PRISONERS

14.1The Minister for Justice has power to remit completely or in part any sentence imposed by a court exercising criminal jurisdiction. The same Minister can order the temporary and early release of any prisoner. The Joint Committee heard evidence to the effect that women have been raped and sexually assaulted by men who were on temporary release from prison and that some of these men had been sentenced originally for similar crimes. This is a serious development and poses the question - should these men have been released from prison? The members agreed that there should be very strict criteria laid down for the temproary release of prisoners who have been committed to prison for serious crimes. They feel that unless the Minister is fully satisfied that a prisoner has reformed sufficiently to be regarded as being of no danger to the public (and such an assessment would have to be supported by reports from the prison’s medical and social services departments) he should not, under any circumstances, be allowed out on temporary or early release. The members were pleased to learn that the Department of Justice engaged a research psychologist in 1984 to carry out a study of sex offenders in the prisons. The study, expected to take three years to complete, is designed to attempt to identify psychological and historical factors which contribute to sex offences and to produce recommendations in relation to the treatment of sex offenders.

15. VIDEOS

15.1The Joint Committee are aware of the alarm among many members of the public at the proliferation of what are commonly described as “video nasties”. The easy availability of these videos featuring explicit scenes of sex and violence is causing widespread concern. Many of them depict women in a degrading and de-humanising way and frequently, at the receiving end of the most brutal and sadistic treatment. The sale of videos is not illegal and there are outlets for their purchase and distribution in all areas of the country. There is no proof of a definite link between the availability of video nasties and the increase in serious sexual crimes against women. Nevertheless it is reasonable to infer that the portrayal of women as sex objects, conditions the minds of those who watch video nasties to regard women as objects of men to be dominated and abused by them for their own pleasure and gratification. Legislation in Britain ⁽⁷⁾ provides for a general classification and labelling system for videos and the authorities there are satisfied that this has resulted in the effective control of the type of objectionable material that is freely available in this country. The members of the Joint Committee wish therefore, to add their voices to, and support for those who have already called on the Government to face up to this serious problem by introducing restrictions that would prevent the importation, distribution and sale of pornographic and corrupting videos in this country.

RECOMMENDATIONS OF THE JOINT COMMITTEE

Having considered the submissions received on the subject and having taken oral evidence, the Joint Committee puts forward the following recommendations:-

CONCLUSION

In recent years women’s lack of status in society has been questioned by many concerned groups and individuals and there is now a greater awareness of the need to eradicate all existing inequalities between the sexes. Nevertheless there still remains a reluctance on the part of many people to acknowledge the injustices that are still perpetrated on women in all areas of life to-day. This reluctance can be detected even in instances where injury and suffering has been caused to women such as by rape or other serious sexual offences. With regard to crimes of sexual assault on women one frequently hears the claim made that the responsibility for a rape rests on the woman. The actions of the assailant seem to escape severe censure. Against such a background the members of the Joint Committee realise that there is still much work to be done in educating people to acknowledge that a woman does not ask to be raped, and that every rape committed is a base and brutal violation of her person and must be punished by the rigours of the law.

The recent report of the Committee of Inquiry into the Penal System (the ‘Whitaker Report) concluded that much of the law dealing with rape and indecent assault is “vague, and uncertain..”⁽⁸⁾ The members are convinced that the law as narrowly defined in existing legislation is too restrictive in its definition of rape and that serious sexual assaults such as those described in Page 8 of this Report should be included in a new and broadened definition of the crime. The pain, humiliation and trauma suffered as a result of assaults of this kind are no less than what is suffered as a result of rape, as defined in current legislation; indeed they can often be a lot more severe because of the unnaturalness of the practices used by an offender to achieve the domination of his victim.

The members were concerned to learn that there is an increasing number of younger males committing rape. The members have already referred to the fact that boys under fourteen years of age cannot be charged with rape (Chapter 12) and they are concerned that these boys should be made amenable to the law as otherwise they will continue, as many of them now do, to commit sexual offences in their adolescent and adult years. The members wish therefore to underline what they have said previously (Chapter 12) i.e. that boys who commit rape should receive a custodial sentence and while in detention receive the necessary professional and medical counselling to enable them to resume useful and crime free lives.

Under existing legislation the consent of a wife to intercourse with her husband is presumed always to be present. In other words there is an irrebuttable presumption that a man cannot rape his wife. Furthermore, in Ireland, for centuries, great emphasis was placed on the sacramental aspect of marriage. Women were so influenced by their religious teaching and upbringing that many of them believed it to be sinful if they refused to consent to have sexual intercourse with their husbands, no matter what the prevailing domestic environment might have been.

It is the experience of those who are working with and counselling families in distress that at present many wives who are subjected to violence in the home claim that in addition to physical beatings they are frequently forced to have sex by their husbands. It is difficult to put in words what the feelings of a wife must be when a violent and perhaps drunken husband subjects her constantly to forced sexual intercourse. An act that should signify tenderness, love and unity between the couple becomes, in such circumstances, a brutal imposition of suffering on the woman. Research carried out in this particular area confirms that women raped by husbands are often traumatised at the most basic level - in their ability to trust. The violation touches a woman’s basic confidence in forming relationships and trusting intimates. It can leave her feeling much more powerless and isolated than if she were raped by a stranger⁽⁹⁾.

The members of the Joint Committee are aware than many people would be reluctant to interfere in the relationship between a husband and wife. On the other hand, it would be very wrong to close ones eyes to what is known to be happening to wives who live in violent domestic surroundings. These women must be given adequate protection by the law and one of the means of doing so is by abolishing the present immunity of a husband under the existing rape legislation. If society continues to regard rape in marriage as less serious than statutory rape, it contributes to a climate where husbands feel they can indulge in sexual violence with impunity. The aim of any reform must be to ensure that a woman, on marriage, does not lose her existing protection from sexual violence.

The members have referred to the embarrassment that a woman will experience during Garda investigations, which up to recent times were invariably conducted by the male members of the force, who were themselves somewhat uncomfortable in carrying out this particular duty. With the recruitment of additional women into the force and their role, where possible, in questioning the victims of rape, there are now less inhibitions on a woman to come forward and relate her experiences. The members, while acknowledging that the Gardai carry out their duties with tact and sensitivity would nevertheless, like to be re-assured that the training programmes, including in-service training, for the force, will always include courses dealing with the plight of rape victims so as to ensure that the Gardai are well informed on how to handle cases properly, particularly with reference to the treatment and questioning of victims. The members agreed that lectures by outside counsellors and medical personnel experienced in the field, should be a regular feature of the training programme for both recruits and commissioned officers.

It has to be recorded however that there is not sufficient training provided for doctors in dealing with cases of rape and serious sexual assault. Doctors who are at present working with victims of rape have expressed concern at the situation. It is imperative that all doctors be adequately trained in this area and the members call on the country’s medical schools to provide the necessary training. At a time when the incidence of serious sexual assault is increasing, it is unsatisfactory that medical students continue to graduate, with at best, a very scanty knowledge of the treatment of rape victims. The members agreed that the medical schools should ensure that sexual assault, including rape, will become a permanent subject in the medical curriculum. Until such time as there is concerted action by the Department of Health, Health Boards and the Schools of Medicine to ensure a sufficiency of qualified medical personnel located in all areas of the country, the majority of women who are raped will have to suffer the consequences of that indignity without the support of proper medical advice and attention.

The members have referred at length to the question of child sexual abuse and they would appeal to the Government and particularly to the Minister for Health to implement their recommendations at the earliest possible date. Having regard to the serious emotional problems that sexually abused children are likely to carry into adolescence and adulthood, unless they are detected and treated at an early stage, it is imperative that properly equipped treatment centres with all the necessary back up services be set up on a countrywide basis. The members emphasise that in their opinion expenditure incurred in providing these facilities will be instrumental in obviating the need to incur much greater expenditure in the future, if the problem is not tackled now, as a matter of national priority. No single group or administration can respond in isolation to child sexual abuse. It is a community problem and must be confronted on a united basis by all the concerned agencies.

Rape is a brutal and degrading crime and its serious consequences must be understood by all sections of society. Those who commit rape must be made to realise that their conduct will not be tolerated by society. The members are of the opinion that all responsible elements in the community can help in reducing the incidence of rape. They can do this by according to women the dignity and respect they are due in their own right as human beings, in every sphere of social and economic activity, and encouraging others to do likewise. Equality between the sexes has still to be achieved in this country despite the many luadable expressions of support for it one hears from time to time and the existence of equality legislation. The reality is that until such time as we have established a society where all citizens will be treated equally, men who regard themselves as the dominant sex will continue to inflict pain and humiliation on women through various forms of violence and abuse, including rape.

The debate that is now taking place regarding the crime of rape, will increase an awareness of the problem among the general public. For too long society in Ireland closed its eyes to the plight of rape victims; often the woman was blamed for contributing to the rape and she was left to suffer alone with feelings of guilt and remorse. That situation is now beginning to change. The members of the Joint Committee trust that the publication of this report, the resultant debate in the Houses of the Oireachtas and the implementation by the Government of the recommendations contained therein, will:-

(1)ensure a greater measure of protection and support for the victims of rape and serious sexual crimes.

(2)act as a strong deterrent to potential rapists and other sexual offenders.

(3)help in establishing a better environment in which men and women, will feel safer in business, in social life and in the home itself.

ACKNOWLEDGMENTS

The members of the Joint Committee wish to express thanks to the individuals and groups who made written submissions and the following who made oral submissions:-

Rape Crisis Centre, Dublin (Ms. Anne O’Donnell, Ms. Olive Braiden) Chief Superintendent Michael Casey, Garda Headquarters The Law Society (Mr. Michael Staines, Solicitor) Sexual Assault Treatment Unit, Rotunda Hospital (Dr. Máire Woods).

Minutes of evidence of the above named will be published under separate cover.

The members also wish to thank the secretarial staff, Mr. John Cullen, Clerk to the Joint Committee and Ms. Maura Flanagan, for their help in preparing this report.

CATHAOIRLEACH.

9 January, 1987

(1)Report by Women’s Rights Committee, European Parliament - May, 1986.

(2)Section 2(1) Criminal Law (Rape) Act, 1981.

(3)Criminal Law Revision Committee Report 1984 - 15th Report (Criminal Law Review, 1985).

(4)Section 12(3) Criminal Law Consolidation Act, Amendment Act, 1976.

(5)Section 12(2) Criminal Law Consolidation Act, Amendment Act, 1976.

(6)Report on Education (Chapter 3.4) - Joint Committee on Women’s Rights - October, 1984.

(7)Video Recording Act, 1984.

(8)Report of Committee of Enquiry into the Penal System Chapter 6.3.

(9)Rape in Marriage - A Sociological View - D. Finkelhor and K. Yello.

Current Family Violence Research Sage Ltd. 1983.