Criminal Law Sexual Offences Bill 2006 - Committee Stage - 2nd June 2006

Criminal Law Sexual Offences Bill 2006 - Committee Stage - 2nd June 2006
Mr. Cummins: I move amendment No. 1:
In page 1, to delete lines 19 to 21 and substitute the following:
“the victim,
(c) any person who is, for the time being, responsible for the education, supervision or welfare of the victim;
(d) any person who is more than 60 months older than the victim;”.

Mr. Norris: The recommendations of the Law Reform Commission should be listened to. There will be further attempts at clarification and definition through the courts process. I am supported in this view by an interesting article by Carol Coulter in today’s edition of The Irish Times in which she said difficulties could also arise when the courts come to define further a person in authority. She wonders how wide the net will be flung in this area. That suggests there will be scope for the court to define things. She also points to the rather loose phrase, “for the time being”. That is fairly vague. In my opinion that will certainly come in for scrutiny.
I cannot agree with what Senator Walsh said about higher sentences because of the present framing of the law. The age of consent of 17 is, in certain circumstances, too high. Without reducing that or without examining the question of a principle of consent, which I have repeatedly urged, injustice will be done to people. I would be happy with severe stringent sentences for the kind of horrible offence for which this man has rightly been sent back to jail today by a decision of the Supreme Court. However, it is plainly wrong to, for example, to increase the penalties and make the situation more perilous for two male adolescents aged 16 and a half having an experimental sexual relationship. Due to the mix and the balance, I would not agree with higher sentencing.
I wish to advert to one other matter raised by Senator Brian Hayes. I wondered when to make this point and considered not doing so until we discuss the section. It is lamentable that we now know that there is no chance whatever of any of these amendments being accepted because the Dáil has adjourned following voting on the Bill. That renders the Seanad redundant. The function of this House is to revise legislation and table amendments to it. We have been quite deliberately frustrated in this by the act of Government in allowing the Dáil to adjourn until next week.
Mr. B. Hayes: Hear, hear.
Mr. Norris: It would not have killed those in the Dáil to have been asked to wait around for a couple of hours in order to pass the amendments. It is perfectly clear that the contribution of this House is not taken seriously by the Government. I deplore that.
Our tabling of amendments is largely redundant, apart from the exercise of making the case for what may well be a re-examination of this legislation. No doubt there must be such a re-examination. We have been frustrated in our primary function as the second Chamber and that is a great pity. I look to the Minister of State, Deputy Brian Lenihan, to relay to the Government this view, which I am sure is shared on all sides of the House, although some may be inhibited in expressing it. I ask him to relay to Government that, on serious issues of this nature, Seanad Éireann should be permitted to fulfil its obligations. None of use want to be in here at this hour on a beautiful summer’s day, but we have a duty to the people of the State and we should be assisted, rather than frustrated, in fulfilling our role.
Question proposed: “That section 1 stand part of the Bill.”
Mr. Norris: Although I have not tabled an amendment I wish to raise a point that should be borne in mind. The Minister explained that a sexual act meant an act consisting of sexual intercourse or buggery between persons who are not married to each other. He explained that it was crucial people could not have their married life interfered with and that it was possible for people younger than the age of consent to get married. This suggests an acknowledgement by the State that the age of 17 is not appropriate in certain situations. It is absurd that we are prepared to make exceptions. I regret that, under pressure from Fine Gael, the Government withdrew the suggestion to consider the age of consent in a rational fashion.
I am pleased the Minister has treated the House with great courtesy. A few hours would not make any difference to the application of law so his defence is not satisfactory. While I was having coffee, ordinary people, not Members of this House, stated that this House serves as a rubber stamp. Indeed, for the purposes of this Bill, this House serves as a rubber stamp but we could have done so far more effectively if our capacity to introduce amendments had been respected.

Mr. Norris: I welcome the Leader’s indication that she will be flexible and will review the time allowed for the debate. It is important that every Member who wants to make a contribution on the amendments can do so. The amendments should be taken. Senator Hayes made a good point in highlighting that less than a third of the amendments tabled in the Dáil were taken — they were not even heard. It is important that we should be given the opportunity to deal with them.
The Minister mentioned the question of mens rea. The principle of mens rea — if I am correct in my understanding of this and the Minister of State who is a barrister will be able to correct me — was contemplated by the 1885 Act but was dropped in the 1935 Act, which was odd. That is where all the trouble comes from. There was an oversight there. The Minister of State dealt with the question of honest doubt as opposed to reasonable doubt. He has perhaps short-circuited the debate on one of my amendments by giving me at least part of the answer. I will leave it at that as other Members wish to make extensive contributions on their amendments.

Mr. Cummins: I move amendment No. 3:
In page 3, between lines 6 and 7, to insert the following subsection:
“(5) Where a person guilty of an offence under this section—
(a) is not more than 24 months older than the child under the age of 17 years with whom he or she engaged or attempted to engage in a sexual act, and
(b) was not—
(i) in respect of the child under the age of 17 years with whom he or she engaged or attempted to engage in a sexual act, and
(ii) at the time of the commission of the offence, a person in authority, he or she shall be liable on summary conviction to a fine not exceeding €1,000.”.
This amendment seeks to reduce the seriousness of an offence committed by a person under 17 years of age. Under the present terms of the Bill if two 16 year olds have sexual intercourse not only is the female not committing an offence because of section 5 but the male is liable to a five-year prison sentence. Senator Norris and others mentioned this on Second Stage. The Bill should not aim to criminalise peer sex but to catch older sexual predators.
Mr. Norris: To add to what Senator Cummins said, on Second Stage I cited a hypothetical case which is real in prospect, namely, that a 16 year old girl could seduce a 14 year old boy and if the boy complained and his parents went to the police the girl might get off scot free while he went to jail. That is obviously a nonsense and is the kind of area in which this legislation needs to be scrutinised.
Mr. Norris: On foot of personal experience, I am in favour of financial penalties. As an innocent bystander in Parnell Street talking to a neighbour, I was punched in the face by a young person — a queer basher from the working class. The pleasant consequence of that was that I received the sum of €1,000, which has been mentioned by Senator Cummins.
I wish to refer briefly to what Senator Higgins said about the discretion of the Director of Public Prosecutions. That is an interesting idea but they should go in the direction of a principle of consent rather than an age of consent because we are referring this in any event, but not to a court. As a result, the reasons will never be made public. The public will be concerned to know why, in certain cases, the Director of Public Prosecutions did not proceed. At present, there is no requirement whatever on the Office of the Director of Public Prosecutions to give any reason and it never does. We would, however, discover that reason in court. When the Government re-examines this matter, I hope it will at least consider the question of a principle of consent in respect of these difficult matters.
In a case such as that which has been satisfactorily resolved today, there could not be the slightest question of doubt. Nobody, no matter how liberal, would ever, in my opinion, suggest that a 12 year old girl who was deliberately made drunk and who was then interfered with while asleep or in the process of being sick gave consent. One could not possibly imagine that there was consent in that case. There is no doubt in my mind — I do not think there could be any doubt in anybody’s mind — about that but there are cases that should be referred to court to investigate the entire matter of consent. I do not believe that the Director of Public Prosecutions is totally satisfactory precisely because he — or, in the future, possibly she — is not required to explain the reasons.
Business of Seanad.
Mr. B. Hayes: On a point of order——
Mr. Norris: The Leader gave a commitment that the time allowed for debate would be reconsidered.
Mr. Fitzgerald: I received an assurance.
An Leas-Chathaoirleach: “In respect of each of the sections not disposed of, that the section or, as appropriate, the section as amended is hereby agreed to in committee, that the Schedule and the Title are hereby agreed to in committee ——
Mr. B. Hayes: A point of order has been raised by at least four of my colleagues. Standing Orders are absolutely clear on this matter. Where a point of order is raised, and there are now four Senators on their feet, the Chair must give way to the point of order.
An Leas-Chathaoirleach: ——that the Bill, as amended, is accordingly reported to the House, that Report Stage is hereby completed and the Bill is hereby passed.” I cannot hear a point of order while putting the question.
Mr. B. Hayes: The question cannot be put until the point of order is heard.
Mr. J. Walsh: As Acting Leader, I propose an extension until 7.30 p.m.
Mr. Norris: The House is in uproar on all sides.
An Leas-Chathaoirleach: I understand the Leader is in the Houses but she is not in the Chamber. The Order of Business was amended to allow this debate to be extended to 7.15 p.m.
Mr. Fitzgerald: I put a question to the Leader while she was in the Chamber and she stated that I would have the opportunity to speak on section 5. With the deepest respect, I challenge the ruling of the Leas-Chathaoirleach and his authority to put this question.
Mr. B. Hayes: On a point of order, it is a long-standing precedent in this House that the Government spokesperson acts as Acting Leader in this House. The Acting Leader has proposed an extension.
Mr. J. Walsh: On a point of order, the Leas-Chathaoirleach clearly put the question of a review at 7.15 p.m. to the Leader. That was agreed by the House 30 minutes ago.
Mr. Norris: This House decides its own business.
An Leas-Chathaoirleach: The Leader has not come into the Chamber to extend the time.
Mr. Norris: She stated that it would be reviewed, not that she would review it. The Acting Leader has proposed an extension that has unanimous approval in the Chamber. There is open revolt in this House.
An Leas-Chathaoirleach: The Leader has not amended the Order of Business.
Mr. Fitzgerald: I propose a deferral until the Leader can return to the Chamber.
An Leas-Chathaoirleach: The Leader is arriving.
Ms O’Rourke: I thank the Leas-Chathaoirleach for putting the question, which was correct. I propose to extend this debate to 7.30 p.m. but not beyond that.
An Leas-Chathaoirleach: I withdraw the question. Is the amended Order of Business agreed? Agreed.
Criminal Law (Sexual Offences) Bill 2006: Committee Stage (Resumed) and Remaining Stages.
An Leas-Chathaoirleach: Amendments Nos. 6 and 7 are related and may be discussed together. Is that agreed? Agreed.
Mr. Norris: I move amendment No. 6:
In page 3, subsection (5), line 8, to delete “honestly” and substitute “reasonably”.
The Minister has partly answered this in his response to understanding the mind of the offender in respect of guilt and responsibility. There can be situations where an accused person tells the court he or she honestly believed the recipient of his or her intentions was of a certain age. It would be difficult to know if that belief was honestly held.
There are situations in which the defendant can state a defence of honest mistake but it may not be true. It would be much easier for a judge to determine if it was reasonable. Even if the defendant could state that he or she did not know, in some cases the defendant should have known. If we are serious about protecting children, we ought to have a situation where someone can be penalised for acting with what, at the minimum, is gross irresponsibility. That is not covered by the term “honestly”, but it would be covered by that of “reasonably”.
Mr. Norris: I move amendment No. 8:
In page 3, between lines 27 and 28, to insert the following subsection:
“(10) Notwithstanding any other provision of this section—
(a) where a person who has attained the age of 15 years engages or attempts to engage in a sexual act with another person who has attained that age and the difference between the ages of those persons is not greater than 2 years, neither such person shall be guilty of an offence under this section;
(b) it shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she honestly believed that, at the time of the alleged commission of the offence, each of the persons concerned had attained the age of 15 and that the difference between the ages of those persons was not greater than 2 years;
(c) where, in proceedings for an offence under this section, it falls to the court to consider whether the defendant honestly held the belief referred to in paragraph (b), the court shall have regard to the presence or absence of reasonable grounds for the defendant’s so believing and all other relevant circumstances.” .

This goes to the heart of the question of age. It is quite wrong to enact criminal penalties and terms of imprisonment for young consenting people. It flies in the face of the lived reality of this Republic’s people. We are criminalising people who are not criminals.
I feel very strongly about the case of gay people in this age group. I have wide experience through national organisations and counselling services. When this legislation is reviewed, it is terribly important that the Government consult the gay community and its organisations. I have come across injustice in this area before. I dealt with a case where a man had a sexual relationship not with an under age person but with someone who was slightly mentally handicapped. He was sentenced to a lengthy period of imprisonment. The degree of mental handicap was marginal and the man was well capable of giving consent. It transpired subsequently that this young man had distributed his favours fairly widely around the city and had made a practice of attempting to blackmail people, which he had done successfully on other occasions. However, the person who was sent to jail simply refused to cough up. This is just an illustration which is not directly related to the Bill but analogous.
Criminalising two people between the ages of 15 and 17 and sending at least one to jail, or both in the case of gay persons, is a complete nonsense. One difficulty of this type of legislation is that it is being introduced in a period of heightened emotions. Unfortunately there is also an element of partisanship and political point-scoring. The age of consent is far too important a matter to be made the substance of political point-scoring or partisanship of any kind because it affects all citizens.
I must acknowledge that I filched this amendment from the other House because I believed it was good. I should have removed the word “honestly” and substituted “reasonably” but I failed to do so.