Criminal Law (Incest)(Amendment) Bill 2012 Private Members Bill – Second Stage Speech by Alan Shatter T.D. Minister for Justice and Equality

I would like to thank Deputy Naughten for raising this issue.

The Deputy’s Bill is, in part, a response to the Roscommon child care case. An Inquiry Team chaired by Ms. Norah Gibbons presented a report into that case to the HSE in October, 2010. I am conscious that the preface of the report referred to the wave of publicity and comment that followed the sentencing of the mother and father in 2009 and 2010, respectively for physical abuse, sexual abuse and neglect. The Inquiry Team was sensitive to the fact that publication of its report was likely to give rise to further publicity. While acknowledging the public interest in this matter and a need for the facts to be reported, the Inquiry Team asked those involved in reporting and commenting on the case to be fully cognisant of the effect that such reporting has on each and every one of the children and young people concerned. It is important that we are just as cognisant today of the well-being of the young people in question and I do not propose to say anything more about the particular case referred to in the Explanatory Memorandum of Deputy Naughten’s Bill.

To put matters in perspective, it is important to say that, as the offence of incest is narrowly defined, incest legislation is much less used than other sexual offences legislation to prosecute familial sexual abuse. I am informed that between 2003 and 2011 inclusive, court proceedings for incest offences were commenced in 12 cases. There were 8 convictions in the same period and only one of these was for incest by a female.

Of course, I accept, so far as legislation on the Statute Book is concerned, that there is a gender anomaly – for historical reasons – in the penalties for incest. The maximum penalty for incest by a male has been increased twice – in 1993 and 1995 – and is currently life imprisonment. The maximum penalty for incest by a female has been 7 years since enactment of the Punishment of Incest Act 1908. Accordingly, I have no difficulty, in principle, with this Private Member’s Bill and the Government is not opposing its reading at second stage.

On 17 December last, the Government approved the drafting of a wide-ranging Sexual Offences Bill. This Bill will include measures to equalise upwards the penalties for incest by male and female offenders. It will also take a more comprehensive approach to reform of the law in this area than the Bill before the House today.

Deputy Naughten’s Bill simply proposes to increase the penalty for incest by a female to life imprisonment to bring it into line with the penalty for incest by a male. The Government’s Bill will provide for waiver of complainant anonymity in certain circumstances. Currently, the Incest Proceedings Act 1995 provides for total anonymity of the accused and the complainant. The Sexual Offences Bill will also provide for repeals so that the law on incest can be consolidated. As I have indicated, the original legislation on incest pre-dates the foundation of the State.

In addition, the Government’s legislation will enhance the protection of children from familial sexual abuse and abuse by persons in authority through amendments to the wider criminal law.

Incest offences, on their own, are of limited value in protecting children from familial sexual abuse. This is because prohibited relationships for the purpose of incest offences are based on a close degree of blood relationship and incestuous acts for the purposes of the Punishment of Incest Act 1908 are limited to sexual intercourse. The offence of incest by a male, for example, does not include incest committed by an uncle against his niece.

The wider criminal law must, and does, take a more comprehensive approach to the protection of children from familial sexual abuse. For example, the Criminal Law (Sexual Offences) Act 2006 created two separate offences of engaging in a sexual act with a child. These are gender neutral offences and apply whether or not there is a familial relationship between the complainant and the accused. Also, prohibited sexual acts include all penetrative sexual acts.

The offence at section 2 of the 2006 Act of engaging in a sexual act with a child under the age of 15 years carries a maximum penalty of life imprisonment, i.e., the same penalty as the maximum penalty for incest by a male. The offence at section 3 of the 2006 Act of engaging in a sexual act with a child under the age of 17 years carries a higher maximum penalty where the offender is a person in authority. That term is broadly defined. It includes blood relatives, for example an aunt or uncle, not covered by incest offences and household members who are not related to the victim by blood.

The Sexual Offences Bill will enhance the protection of children from abuse by persons in authority. In particular, it will expand considerably the definition of “person in authority” in the 2006 Act to reflect the greater diversity of family households in the Ireland of today. Accordingly, it is proposed to add the partner of a parent who lives in an enduring family relationship with the parent, and foster and adoptive parents to the definition.

As I stated earlier, I have no difficulty, in principle, with the Bill we are discussing today. However, it is necessary to point out, that in addition to the limited focus of the Bill, the drafting in section 1 is flawed. This is because it fails to take account of the Criminal Law Act 1997. That Act abolished all distinctions between felony and misdemeanour, and abolished penal servitude and hard labour.

The Explanatory Memorandum of Deputy Naughten’s Bill states that the anomaly it seeks to address “also highlights the consequences of the State’s failure to actively review and modernise legislation in the area of sexual crimes as well as other areas”.

I do not accept that that is the case. My Department has undertaken a wide review of the law on sexual offences. This is a complex area of the law and there have been delays. However, the required Bill in this area is currently being drafted. In addition to reforming the law on incest, this comprehensive legislation will implement

· the legislative improvements identified by the Department’s comprehensive review;
· recommendations of the Joint Committee on the Constitutional Amendment on Children;
· recommendations of the Joint Committee on Child Protection; and facilitate full compliance with
· the Optional Protocol to the UN Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography;
· the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse; and
· the EU Directive on combating the sexual abuse and sexual exploitation of children and child pornography.

The protection of children from sexual abuse and sexual exploitation is a top priority of the Government. This is evident from the significant legislative output in this area since this Government took office. As a Government priority following publication of the Cloyne Report, I steered two very important pieces of legislation through the Houses of the Oireachtas.

In August 2012, the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act was enacted and introduced important measures designed to deal with the problem of failure to report abuse. Following this, in December 2012, the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 was enacted. This Act provides for the mandatory vetting of persons working with children or vulnerable adults.

The Minister for Children and Youth Affairs has also taken a number of initiatives, as part of a wider package of measures, to further ensure the protection of children and vulnerable persons from sexual abuse and exploitation. To mention just one such initiative, the Child and Family agency became an independent legal entity on 1 January of this year and is now the dedicated State agency responsible for improving well-being and outcomes for children.

I can understand that the Deputy is impatient to see progress quickly. It is possible to make progress on isolated issues by cherry picking them out and putting them in a short Bill. However, such an approach comes at the expense of delays with more substantive and comprehensive reforms.

In conclusion, I would like to re-iterate that the Sexual Offences Bill will be wide-ranging legislation to advance reform on a number of fronts, including reform of the law on incest. Amendments to the law on incest together with amendments to the wider criminal law will enhance the protection of children from familial abuse.

Thank You.