SENATE SPEECHES

Statute of Limitations (Amendment) Bill, 1998: Report and Final Stages 5th April, 2000 An Cathaoirleach: I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. Each amendment must be seconded. Amendments Nos. 2 to 5, inclusive, are related to amendment No. 1. Amendments Nos. 1 to 5, inclusive, may be discussed together by agreement. Ms O'Meara: I move amendment No. 1: In page 3, line 7, before "SEXUAL" to insert "PHYSICAL OR". This amendment relates to the definition of abuse, which we discussed at length on Committee Stage, and our attempts on this side of the House to include physical abuse under the scope of this legislation. There is very little I can add to the debate on this issue which has not already been said during the debate on this legislation in both Houses. The Bill was originally introduced by my colleague, Deputy O'Sullivan, as a Private Members' Bill in Dáil Éireann and was accepted by the Minister for Justice, Equality and Law Reform, for which we commend him. During the course of the debate on the Bill in both Houses, we have been happy at all times to amend it and to take on board issues raised by the Minister and the Opposition to ensure the legislation will best reflect the needs of those whom we seek to serve, that is, the many hundreds of people, some of whom are in the Visitors Gallery today, who experienced abuse, particularly at the hands of State institutions. This is one of a series of measures which my party, the Minister and the Government are promoting to right wrongs, to balance the scales and ensure that those who suffered great injustice, hurt and abuse in the past are given the right to be heard and, most importantly, to have those injustices corrected, as far as is possible. The definition of abuse is a core and fundamental part of the legislation, which is why we have pursued this issue at every Stage of the debate in the Dáil and Seanad. I hope the Minister will change his mind, even at this late stage, and include physical abuse in the terms of the Bill. Otherwise, the Bill will be lesser legislation. The fact that the issue is with the Law Reform Commission does not necessarily mean it must be excluded from the Bill. There is more than one way to deal with the issue. I do not doubt the Minister's bona fides when he says he will return to the House when the Law Reform Commission has reported to him and when he has had time to frame an amendment to the Bill. However, we all know how difficult it is to get legislative time and to bring a Bill through both Houses. That would probably take as long as the time we have devoted to this Bill, although I hope we would return to it in a number of months. By excluding the issue of physical abuse from the Bill, we are creating the wrong impression and are not dealing with the issue as well as we could. It is worth reminding the House that it is very difficult in many cases to make a distinction between sexual and physical abuse, in terms of the experience many people had in the past. In many cases, occurrences of what could objectively be called physical abuse, such as beating, often had a sexual content, although it would not have necessarily included activity we would normally describe as sexual. We are narrowing the frame of the legislation and its effectiveness and sending out the wrong message. I have spoken to quite a number of people who have a very strong, personal interest in this legislation and have been following it very closely. They have made a very strong case to me and other Members of the House about the importance of ensuring the definition in the Bill encompasses physical as well as sexual abuse. That was my main reason for tabling this amendment. This is a fundamental part of the Bill and I implore the Minister, even at this late stage, to take on board the views, not only of Members, but also of those for whom this legislation has very personal and important implications.

Mrs. Jackman: I second the amendment. The amendments tabled by Fine Gael also seek to include both sexual and physical abuse. We support the amendment tabled by Senator O'Meara. Everything she said is correct. I did not get an opportunity on Committee Stage to state why the Fine Gael Party believes that physical abuse must be included. I do not know whether the Minister has had recourse to psychiatrists or scientific evidence. People I have spoken to find it virtually impossible to differentiate between an act of physical or sexual abuse. Obviously, there is a physical demeanour to the sexual act and we could go through the relevant details, although I do not intend to do so. While it is not just women who have been physically or sexually abused, as a woman I can appreciate the lack of differentiation between both sorts of abuse. The area of restraint is physical and it is virtually impossible to differentiate because sexual abuse is not passive. It is a physical onslaught on an individual, therefore, how can the Minister exclude it from the Bill? The physical aspect seems to have been linked to physical abuse in schools. Everyone understands what corporal punishment was. I do not consider myself damaged because I received a few slaps on the hand for not doing what I was supposed to do. That is totally different to the physical/sexual abuse which it is the intention of the Labour and Fine Gael amendments to include in the Bill. Given the resources in his Department, surely the Minister could have found a way to incorporate aspects of physical/sexual abuse in the Bill. We are not thinking in terms of people making up yarns about how they feel as a result of physical attacks that were separate from a sexual act. We are talking about physical and sexual abuse, although the Minister is taking the term "physical" out of that context. I do not know what the Law Reform Commission will come up with in considering this matter. The immediacy of the problem is very important, however, because for 20, 30 or 40 years people have had to put up with the horror of what they were subjected to. It is too dismissive to say we will come back at some other time. People's lives have been wrecked and they are so traumatised that they will never be able to put their lives together again. They will not be able to lead fulfilling lives, as we would want them to, without the support of the Department and the Minister to help them to put the pieces together. Many of them will not be able to do so. Others, however, will take civil cases following the enactment of the Bill. They should be given every opportunity to pick up the pieces for the remainder of their lives. They are the forgotten people who have been silenced over decades. Today, with the support of social workers, health boards and family, they are trying to come out and speak. It is traumatic for them to do so. The fact that the word "physical" cannot be included in the Bill is a technical matter. These are only words to the people who are affected. They will not be able to differentiate between whether or not an act of abuse was sexual or physical. In this instance it is a combination of both types of abuse, so the word "physical" must be included. Otherwise, the Bill will not be interpreting sexual abuse in the way that I should do so - to show that even within that context there is a subjection of physical restraint. In that context, physical abuse cannot be excluded from the Bill. At women's refuges I have been told about verbal abuse which is apparently much more horrific than physical abuse. One cannot differentiate in those areas. Anybody who is subjected to such abuse could not go to court and tell a judge, "At this point physical abuse stopped and sexual abuse began." They have been so traumatised that they would not be in a position to make such definitions. On purely humanitarian grounds the word "physical" must be included to provide support to those who have been so traumatised. Dr. Henry: I second Senator O'Meara's amendments. Late as it may be in the passage of this legislation through the Houses of the Oireachtas, we must press the Minister to include physical as well as sexual abuse in the Bill because the difficulties of separating sexual and physical abuse in some cases will be profound. Too many people suffered for too long for us to neglect them. I understand the Minister's concerns about corporal punishment and the fact that it was not illegal in the past but, as Senator Jackman said, we are not talking about slaps on the hand. As we explained on Committee Stage, those who were beaten up in institutions - possibly for the sexual pleasure of those who were doing the beating - really deserve recognition that they were seriously damaged. The Minister should include the word "physical" in the Long Title to the Bill and section 2, as Senator O'Meara has suggested. The Law Reform Commission will report on this matter, but that is a separate issue. Mr. O'Toole: We had much discussion and argument on this matter on Committee Stage and, on occasion, the Minister felt that we had crossed the line in how we dealt with the debate, and that we had perhaps not considered his position. In the meantime I have given the matter much thought and I appeal to the Minister to re-examine this issue. It may well be that there is an interim position between including the word "physical" or not doing so. One may be able to table an amendment that would connect physical and sexual abuse. Let us put the facts before the House. Physical or corporal punishment under common law was always an accepted part of a disciplinary pattern in the home or in institutions. That was the case in this country until 1982. In that year such punishment was put outside the rules of educational institutions and it could no longer be used as a form of discipline. That remained the position until 18 months or two years ago when it became illegal to use corporal punishment. While there have been a number of different stages concerning corporal punishment, it is crucial to go back to the period before 1982 when it was legal and permitted under the common law. Even at that time there was a clear distinction. The use of corporal punishment was not outlawed but there was no doubt that the abuse or misuse of such punishment was unacceptable, illegal and constituted a crime against the person. It was not allowable. In almost every case I have examined regarding people who are concerned with this issue, three points of distinction have run through the statements and arguments that have been made. First, people have said that not all those in authority, in whatever institution we are talking about, misused or abused these children - as they were at the time - sexually or physically. There were some people, religious in particular, who were still held in high regard by the people who were in these institutions. The second point that has come through in all these discussions is that people at that stage were not reacting against corporal punishment. They would regularly say, "He slapped me", "He smacked me" or "I was smacked when I did something wrong". That was acceptable and people were not marked by that. It is the next step, however, that gives cause for concern. It is the step where people crossed the line. It is the step where people felt they were being abused and where corporal punishment was not just smacking someone, as would have been appropriate under the common law at the time, but where people were abused by the overuse of corporal punishment. We are referring to overuse, misuse or abuse, which have always been wrong. I said this on Committee Stage and I say it again on Report Stage and there is no escape from that fact. It has always been wrong to overuse, misuse or abuse corporal punishment. Case law deals with that. People have lost their jobs because of this and parents have been punished by the law. That is not new. We then come to what has been proposed in this amendment. The amendment indicates to the Minister that he should make the same arrangements to deal with physical abuse as he has made for sexual abuse. That is the point at which we differ and the argument begins. We went through this time and again on Report Stage. It was said on Second Stage. He has dealt with it in the other House. He seems to be unbending on the issue. The Minister takes a strong and honest line on issues and takes action which he thinks correct. I am not inferring, and I would defend him on this point, that he is in any sense deliberately taking a stand against people who have already suffered. I accept that point and it does not need to be restated by him. I ask him as Minister to consider this in terms of how the law and the Legislature respond to people who have suffered and how we deal with it. We all know there are people who take pleasure from inflicting violence. This is a fact. We also know that sometimes this is a sexual type of pleasure. We know that some people take pleasure from extreme sexual activities. I defy anybody in this House to tell me the distinction between some of these sado-masochistic sexual activities and physical abuse. There is no difference. That is as much as I know in this area and I am no expert, nor is anyone here. It is true in terms of what we know of life. There is no distinction between them in many cases and in almost all cases there is a fudged boundary between them. We are discussing institutional care and there were good people who worked in these institutions as well. Let us not tar them all with the one brush and I will keep repeating that point. The adults in control who abused the people in their charge were a disgrace to their office and to the authority and trust invested in them, which is why it was so bad. The Minister and I come from the same county and we have heard on many occasions of people who had unpleasant sexual experiences growing up. There is a difference between the sexual experience from which somebody can run and the sexual abuse within which someone is imprisoned and who has to face it again tomorrow, next week, next month or next year and so it continues. We are trying to address this difference. In an attempt to clarify and reinforce the point I was making last time about the lack of distinction between physical and sexual abuse, I tried to obtain some evidence and I received from some people an account of their experiences. I would like to cite some of these experiences from the account given to me by one person: He would come down every night and take a boy with him. At least once a week he would come to me and take me to a little room off the dormitory. In that room was a spyhole into the dormitory and if any of the lads were talking-----   An Leas-Chathaoirleach: From what document is the Senator quoting? Mr. O'Toole: A statement given to me from a person who was abused. -----he would give a roar out the hatch to shut up. If they did not he would come down and beat them. I saw this happening on a regular basis for a period of time and we got used to it. The boys knew to be quiet because they were afraid of their lives. The first night I went with him I went freely to his room. When I was in the room he took off my clothes.   I will not read the next part because it is not relevant and I find it sickening. There is a description of sexual abuse. Eventually I went back to bed and fell asleep. From that time onwards I always tried to avoid him. On other nights I was dreading him coming to me but he would take other boys. The nights I would go with him I went reluctantly to his room which had a single bulb and a single bed.   He goes on to describe sexual activities. On one occasion he pulled me close to him and he was standing with his clothes off. He would tell me I was a good boy if I did what he wanted me to do. If I did not and resisted, he would tell me I was a bold boy and use a leather strap which was thick. He would beat me on my naked body. He did this once a week for about three months. Eventually this became a pattern.   At what point did something stop being sexual and become physical? I suggest to the Minister very strongly that it was never anything other than sexual control because very often sexual abuse is about control anyway. The statement continues: I could not concentrate on school and I could not sleep...... I fainted.... Eventually I got the courage to tell the superior what was happening and about the beatings and the sex. I sneaked away one Saturday and was waiting outside the office and he saw me there. After telling the person in charge, I was not believed. He told me I was telling lies. He took out a leather strap from his robe. He hit me all over my legs and body until I became hysterical. He told me I was not going back until I calmed down. He put me in a room and locked me away and left me to cry there.   I will skip some of this. He says that he remembers this because it was the day before he went out and he explains why he remembers it in great detail. The statement goes on: After Christmas that year he tried to interfere with me again by pulling me out of the bed into his room. He dragged me down to his room. At this time, my bed was halfway down the dormitory and he decided to bring me near his bedroom. I was the first bed beside his door. I went into the room. The same thing happened. He took off his night shirt and fondled me. When I would not do what he wanted, he threatened me.   Will someone tell me where did it stop being sexual and when did it begin to be physical? At which point does this legislation not come into operation? He goes on to explain more. I will not read out all of this. He says again he had good memories of certain people who worked there. It is a great tribute to some of these people who have been abused that they have managed always to single out people who were kind, patient and helpful. It is important that we keep saying that many of the people working in these institutions were good people. The statement continues: I would like to say here that I was wetting the bed and when I did I was beaten. The wet bedclothes were shoved in my face and I got a beating every time it happened.   - This means nearly every day.

I used to take two of the sheets because I would take the dry one and put it on the bed when it was wet so it would not be noticed. If the bedclothes were wet you got beaten.   This is a statement of a person who was abused and of someone whom it is too late to protect but to whom we can give some response through this legislation. It is clear time and again that there is no distinction between the sexual and the physical activity. It is utterly and completely wrong. Future generations will not thank us if we do not deal with this issue today. I ask the Minister as a fair man to look at this in the way that he would want to look at it if it were his child we were looking after here or if it were my child or that of anyone else in the House. We do not believe that these instances should be excluded by the Statute of Limitations. I am conscious that the examples I gave, quite deliberately, were cases of sexual abuse leading to physical abuse and cases where physical abuse was the result of a person reporting sexual abuse. In these situations it should not be necessary to prove that there was sexual abuse in order to take action because of the misuse or abuse of corporal punishment or the abuse of a position of authority, responsibility and trust on the part of those in loco parentis. It is our responsibility and in our power as legislators to deal with this situation in the fairest and most honest way possible. My position is unusual in that as general secretary of a teachers' union I regularly deal with complaints against people - those I represent - in charge of children. The one statement I have always heard from teachers is that they want to be absolutely fair and honest as they have to be above suspicion in this area. They ask me to ensure people understand that in relation to the period before 1982 there was a distinction between using corporal punishment as part of a code of discipline, which was the norm in schools everywhere in the country, and the physical abuse of children. Those are two completely different matters. To say that we cannot deal with the situation before 1982 is to say in a way that anyone using corporal punishment at that time was breaking the law. They were not, they were doing something that was part of the regime and they should feel that what they did was simply that. They should not feel threatened by moves in this direction. I appeal to the Minister to concede on this issue, as it is probably the most humane request that will ever be made of him in the Oireachtas when dealing with legislation. Many people are depending on the Minister in this matter and I appeal to him to accept this amendment and respond to people who deserve the most compassionate and caring response. Mr. Costello: These amendments represent the view among Opposition Senators that the legislation is grossly inadequate unless it deals with both sexual and physical abuse. These two areas of abuse are intrinsically linked and nobody can claim that there is a form of sexual abuse which does not include an element of physical abuse. Solomon in all his wisdom could not have come up with the distinction if he tried. Children have been abused since the foundation of the State and we would be doing them an injustice if we did not recognise, as a State, that we have been grossly negligent in this matter. These children were under 18 years and many had not even reached their teens when they were put in the care of the State. The Department of Education was responsible for them and those directly in charge of the children either neglected them or were proactively involved in a breach of care and responsibility. If we omit a huge area of abuse from the legislation, that legislation - our response - will be inadequate. It is not good enough for the Minister to say he is kicking to touch and that he will look at the matter and return to it if necessary. We should introduce the provisions here and if we need to amend the legislation later for some reason, let us do it that way. Let us be generous and say for once and for all, mea culpa, we failed those children and we are going to take thorough steps to ensure justice is done. Justice is impossible in the real sense of the word, as one cannot go back and undo the harm that has been done. I know from my years working for prison reform of the numbers of people in prison who were detained in reformatories and other State institutions. Their suffering in such institutions undoubtedly had a lifelong effect and led to them being unable to put their lives together without falling foul of the State in some way. Psychiatrists and psychologists say the best way to overcome trauma and the effect of violence is to face up to it and to recognise that what caused the injustice is taken care of. If people see that the State is dealing with this issue comprehensively it will be of enormous benefit to their state of mind. Having been diminished all their lives, their sense of worth will be boosted by the knowledge that this was not their fault but was the result of someone else's neglect or deliberate abuse. I cannot see how the Minister can reject these amendments if the Bill is to be effective. I am sure he will make a long speech detailing how he feels this matter should be dealt with judiciously and that the proper measures should be taken, but we will not have dealt with one of the main causes of abuse and the Bill will pass in a flawed state. Many people who would welcome the Bill's provisions for addressing abuse committed in the past will find this is a hollow victory, as it will not apply to the circumstances of their abuse as children. Is there any sense in passing this Bill if everyone we expect to benefit from it benefits only to a limited degree? That is the kernel of the problem, but the Minister has not addressed it on Second Stage or Committee Stage. This is the eleventh hour, it is our last opportunity to get the Minister to accept the amendment and to return to the Dáil with the new provision. We earnestly request the Minister to reconsider his position and accept these amendments. Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): The Government position on these amendments remains consistent. The amendments, which seek to include civil proceedings arising out of solely physical abuse in childhood within the compass of this Bill are opposed. I have made my position on this issue clear on previous occasions but it may not be any harm to set out once again where the Government stands. The Government, when considering the whole question of how to address the question of limitation periods in cases of abuse in childhood, formed the view that as far as sexual abuse was concerned the case for change was unanswerable. Sexual abuse of children has always been regarded with particular abhorrence by the community, all the more so when such abuse is perpetrated by the very people charged with the care and nurturing of children. It is universally recognised that the abuse of a person of tender years in a sexual way can result in trauma which can prevent the victim from seeking help or redress for the abuse suffered, in some cases well into adult life. It was clear to the Government that special provisions regarding limitation periods to take account of that lasting effect should apply to civil actions where sex abuse is an element. That is why the Government, on my recommendation, decided that the Statute of Limitations should be amended in order to reflect that view and decided to accept the principle of the Private Member's Bill now before us, to the extent that it dealt with child sex abuse cases as a means of bringing that amendment about. The question of how limitation law should apply to other forms of abuse in childhood, including physical abuse, is by no means as straightforward. It is universally accepted that any form of sexual activity with young children is of itself abusive, no matter what the circumstances. As far as physical contact of a non-sexual nature is concerned, there has been historically a very much wider spectrum of degrees of acceptability or unacceptability. Such contact can range from the rough and tumble of contact sports which may result in injury to a child through the administration of what society regarded until not so long ago as legitimate physical chastisement to activity which, by any measure, would be clearly abusive. The link is clear and well recognised between sexually abusive acts - remembering that any sexual act by an adult in relation to a child is of itself abusive - and the psychological effects on the victim which, among other things, deter the victim from seeking legal redress through the civil or criminal justice process. The link between physical abuse and that sort of psychological effect is by no means as clear. There are instances of physical abuse which, though unacceptably severe, did not cause the type of lasting trauma which sexual abuse regularly induces and where the victim would not be inhibited from pursuing civil redress within the normal limitation period. Of course, there can be other cases where such lasting trauma occurred and which would affect the person's ability to commence court proceedings. The Government is anxious to ensure that any amendment of the law on limitation of civil actions as it applies to cases alleging physical abuse in childhood is drafted having regard to the best advice available. That is why it referred this aspect of the matter, which Senators will recognise is very much less clear-cut than the child sex abuse question, to the Law Reform Commission. The commission is an independent body established by statute and chaired by a High Court judge. It has broad experience in many areas of reform of the law and its recommendations have formed the basis for much significant reforming legislation during the past 25 years. Its report on latent personal injuries led to the 1991 legislation amending the Statute of Limitations which introduced the concept of the discoverability of personal injuries to that code of law. Its report on child abuse gave rise to significant reforms of the law incorporated in the Domestic Violence Act, 1996, and the Children Act, 1997. The commission is ideally placed to offer recommendations to the Oireachtas on this issue which has a considerable technical legal dimension but also one which is firmly anchored in the day to day lives of many people. The Government is of the view that before we legislate in this delicate and legally complex area, we should have the benefit of the commission's research facilities, well established consultative processes and, most importantly, independent and considered advice as to the way forward in this area of the law. Some commentators have characterised this decision to seek independent expert advice as an attempt by the Government to "park" this issue or as a means for the Government to shirk its responsibilities in relation to the victims of child abuse. Such suggestions are not only offensive but also nonsensical. The Government's whole approach to the questions that face Irish society arising out of childhood abuse in the past has been one of openness and acceptance of the legacy of responsibility arising from misdeeds perpetrated in the past against young people. I will point up some of the more salient features of that broad-ranging approach, announced in the context of the apology offered by the Taoiseach last May to those who had suffered abuse in childhood. They were the establishment of the Laffoy commission to inquire into child abuse and legislation to make that commission more effective in its work, based on the Laffoy commission's recommendations, has been before the Oireachtas since February; the expansion of the counselling services provided by the health boards for victims of abuse in childhood is well under way, with the help of funding provided by the Exchequer; priority advancement of legislation to include a register of sex offenders; and safeguards against the employment of sex offenders in jobs involving contact with children - this legislation has been before the Dáil since early January. In the context of these and the other measures put in train by the Government, it is clear that suggestions of a reluctance to act on the real issues involved are completely without foundation. Inquiries made of the Law Reform Commission indicate that it expects to publish a consultation paper in the very near future. I understand the commission is aware of a high level of public interest in the forthcoming publication and I have no doubt that the consultation process will be a fruitful one to which many of the interest groups which have emerged in regard to this matter will be able to have an input. I reiterate my undertaking, already given in this House and elsewhere, that I will act promptly and proactively on the commission's final recommendations when they become available. It simply would not make sense, having asked the commission for its advice, to pre-empt that advice by pressing ahead at this stage with the change which the Senators seek to make with these amendments. While I appreciate the depth of the concerns which gave rise to these amendments, I ask Senators, in return, to acknowledge the Government's sincerity in seeking to ensure that whatever amendment may ultimately be made in relation to past cases of physical abuse of children, it will be made in a fully informed fashion with the benefit of the Law Reform Commission's indepth consideration of all aspects of the matter. In the meantime, it is my earnest desire that reform of the law on limitation periods in cases of child sexual abuse encapsulated in this Bill should become law as soon as possible and I urge the House to deal with the Bill on that basis. As I have often stated, this is not a simple matter of defining "physical abuse". It is possible to recognise what constitutes physical abuse, but the levels of physical abuse differ. It could be said that it might not prove too difficult to describe or define various levels of physical abuse. The difficulty which presents itself in this matter is what level of physical abuse gives rise to a psychological disability, what level of trauma induced as a result of physical abuse would inhibit a person from taking an action. That is an extremely difficult and complicated question. If there were a simple answer to that question, I respectfully submit that we would be aware of it by now. I submitted this question to the Law Reform Commission for its consideration. If the members of the Law Reform Commission were of the view that this was a simple matter, I have no doubt that, with all the expertise available to them, they would have produced a report in a short time. Far from considering the matter to be as simple as some people would like to think it is, the commission has decided to publish a consultation paper prior to producing a final report. Surely, people can recognise that if the members of the Law Reform Commission, a panel of experts whose expertise has been acknowledged and acted upon over many years, find it necessary to publish a consultation paper prior to producing a report, this matter cannot be a simple one. This is not a simple matter. If it were, I would have legislated for it long ago. I again request Senators to accept the Government's sincerity in this matter. I must ensure certainty in the law and when the commission produces its report, I will act on its recommendations in a proactive manner. I cannot go beyond that and do the impossible. I have asked those who can assist me in formulating the law in a proper manner, which would allow people who have concerns to be in a position to take action, to do so. Ms O'Meara: I do not think any Member suggested that defining physical abuse is simple. The issue of retrospection, which we will come to later, is not legally simple either. Nobody is suggesting that it is a simple issue, but neither is anybody suggesting it is insurmountable. The Minister has sent the matter to the Law Reform Commission which will produce a consultative report. However, it is also possible for the courts to give their view and, ultimately, they will probably decide the core question identified by the Minister as the level of physical abuse giving rise to trauma. We will have to rely on the courts to make this decision for us. As the Minister said, this is a complex and difficult question. However, we cannot escape these issues, we must deal with them. The failure to deal with this issue in this legislation seems to us, as its original proposers, to undermine it considerably and this is also the view of those whom we are representing. The Minister said child sexual abuse is abhorred by society, which of course it is. Child physical abuse is also as abhorrent to us, particularly as we become aware of the incidence of physical abuse in institutions in the past. I respectfully submit to the Minister that we are as abhorred by child physical abuse as child sexual abuse. We have heard of cases, anecdotally or otherwise, where physical abuse has led and can lead to as much trauma as sexual abuse. We have succeeded in defining sexual abuse and it is probably no less complex to define physical abuse. Surely it is not beyond us to do this in this legislation, given the advice available from the Attorney General's office, the Minister's officials and his judgment and considerable legislative experience. The Minister said rightly that the limitation law on physical abuse is not straightforward and there is a wider spectrum of degree of acceptability and unacceptability regarding corporal punishment, particularly in the past. I will not debate that with the Minister, it may be the case. However, we are gradually reaching a position where the level of physical abuse which was acceptable in our schools is considered in the modern era to be almost as traumatic as sexual abuse. Senator O'Toole made some extremely valuable points on corporal punishment in schools and the position before 1982. I do not think there are many people who are incapable of making the distinction between corporal punishment, which was legal at the time, and the misuse of corporal punishment. Perceptions of and attitudes towards this issue have changed, as we have heard of various incidents. We are capable of making that distinction, as is any court. Despite what the Minister said, it is not beyond us as legislators to deal with this complex matter. We do it regularly in relation to other issues. The Minister said physical abuse is not clear cut, but sexual abuse is not clear cut either. I do not accept that physical abuse is less clear cut an issue. We are doing a disservice to this legislation, our role as legislators and the people we are trying to serve with this legislation by not meeting the challenge in terms of defining physical abuse.

I accept the Minister's bona fides that he will come back to us when the Law Reform Commission has reported. Presumably this will be a considerable length of time if the consultation paper is followed by a report, which will then go to the Minister, followed by legislation and so on. This will probably take two years. This legislation relating only to sexual abuse will be passed and we will then have to wait, probably the lifetime of another Government, to introduce new legislation. That is not right. We are undermining the legislation and its objectives, which everyone wishes to meet in order to balance the rights of those who have been abused and ensure they are heard. The law should reflect our desire and obligation that the injustices done to them are finally righted. I am disappointed that at the final stage of this legislation, we have not persuaded the Minister to change his view on the matter. Amendment put. The Seanad divided: Tá, 15; Níl, 27. Tá Burke, Paddy. Coogan, Fintan. Cosgrave, Liam T. Costello, Joe. Cregan, Denis (Dino). Hayes, Tom. Henry, Mary. Jackman, Mary. Manning, Maurice. Norris, David. l, Helvetica">O'Meara, Kathleen. O'Toole, Joe. Ridge, Thérèse. Ryan, Brendan. Taylor-Quinn, Madeleine. Níl Bohan, Eddie. Bonner, Enda. Callanan, Peter. Chambers, Frank. Cox, Margaret. Cregan, John Dardis, John. Farrell, Willie. Finneran, Michael. , Helvetica">Fitzgerald, Liam. Fitzgerald, Tom. Fitzpatrick, Dermot. Gibbons, Jim. Glynn, Camillus. Keogh, Helen. Kett, Tony. Kiely, Daniel. Lanigan, Mick. Leonard, Ann. Lydon, Don. Mooney, Paschal. Moylan, Pat. O'Brien, Francis. O'Donovan, Denis. Ó Murchú, Labhrás. Ormonde, Ann. Walsh, Jim. Tellers: Tá, Senators O'Meara and Costello; Níl, Senators T. Fitzgerald and Keogh. Amendment declared lost. Ms O'Meara: I move amendment No. 2: In page 3, line 23, before "sexual" to insert "physical or".   Mr. Costello: I second the amendment. Amendment put and declared lost. Mrs. Jackman: I move amendment No. 3: In page 3, line 23, after "abuse" to insert "or physical abuse or both".   Mr. Manning: I second the amendment. Amendment put. The Seanad divided: Tá, 19; Níl, 27. Tá Burke, Paddy. Caffrey, Ernie. Coghlan, Paul. Coogan, Fintan. Cosgrave, Liam T. Costello, Joe. Cregan, John Doyle, Joe. Hayes, Tom. Henry, Mary. Jackman, Mary. Manning, Maurice. Norris, David. O'Dowd, Fergus. O'Meara, Kathleen. O'Toole, Joe. Ridge, Thérèse. Ryan, Brendan. Taylor-Quinn, Madeleine. Níl Bohan, Eddie. Bonner, Enda. Callanan, Peter. Chambers, Frank. Cox, Margaret. Cregan, John Dardis, John. Farrell, Willie. Finneran, Michael. Fitzgerald, Liam. Fitzgerald, Tom. Fitzpatrick, Dermot. Gibbons, Jim. Glynn, Camillus. Keogh, Helen. Kett, Tony. Kiely, Daniel. Lanigan, Mick. Leonard, Ann. Lydon, Don. Mooney, Paschal. Moylan, Pat. O'Brien, Francis. O'Donovan, Denis. Ó Murchú, Labhrás. Ormonde, Ann. Walsh, Jim. Tellers: Tá, Senators Burke and Ridge; Níl, Senators T. Fitzgerald and Keogh. Amendment declared lost. Amendments Nos. 4 and 5 not moved. An Cathaoirleach: Amendment No. 6 is a Government amendment. Amendments Nos. 7 to 12, inclusive, are related, therefore, amendments Nos. 6 to 12, inclusive, may be discussed together by agreement.

Government amendment No. 6: In page 4, between lines 9 and 10, to insert the following: "(3) An action referred to in subsection (1), that but for this subsection could not, by virtue of this Act, be brought, may be brought not later than one year after the passing of the Statute of Limitations (Amendment) Act, 2000, provided that, after the expiration of the period within which such action could by virtue of this Act have been brought, but prior to 30 March, 2000-- (a) the person bringing the action obtained professional legal advice that caused him or her to believe that the action could not, by virtue of this Act, be brought, or   (b) a complaint to the Garda Síochána was made by or on behalf of such person in respect of the act to which the action relates.   (4) Subsection (3) shall not apply to an action referred to in subsection (1) where final judgement has been given in respect of the action.".   Mr. O'Donoghue: Senators will recall that when we discussed the question of the retrospective operation of this Bill on earlier Stages I pointed to some serious concerns of principle which must be addressed. The concept of limitation periods in civil cases is a feature of legal systems generally. It enables persons to assert their rights on the one hand while on the other hand it provides for some certainty of the legal position of both parties. It can be argued that it is a breach of normal legal principle to disapply such a concept if by so doing it were to lead to a provision which would treat people differently by effectively removing the disability rule in some cases while others would have to prove that the abuse was of such significance that their will or ability to make a reasoned decision to bring an action was substantially impaired. This could lead to a situation where, as in the case of amendments Nos. 10, 11 and 12 proposed by the Senators, abuse which arose before the passing of the Bill would be treated on a different basis from abuse arising after passage of the legislation. The legislation would thus, it could be argued, discriminate between certain classes of person and abuse on a basis that is open to challenge. When analogous changes were made to the limitation law in 1991 by way of introduction of the rule of discoverability, persons were not treated differently by reference to different rules. However, a significant departure from the norm was that the 1991 legislation applied to all causes of action occurring before its commencement. This was on the basis that to apply the normal rule of non-retrospectivity would frustrate the objective of the reform. That approach to retrospectivity has been followed in the legislation, following my amendment to it, as agreed in the other House. I am happy that, as a result of my examination of the question in consultation with the Attorney General, I have tabled the Government amendments before the House, which treat those cases of past sexual abuse that do not benefit from the provisions in the Bill in a way that targets them specifically so that the limitation period could be reviewed in respect of them and begin to run again. This approach avoids the serious difficulty that could be created if the Senators' amendments were to be successfully challenged, a risk which would exist in a real way if those amendments were adopted and a possibility which could give a result which no one on any side of the House would want, that of undermining the Bill as a whole. Government amendments Nos. 6 to 9 are all of a piece. The aim of the amendments, taken together, is to address the particular cases of sex abuse in childhood where the victim had suffered from the psychological disability which inhibits so many such victims from being able to take the steps necessary to pursue litigation within the normal limitation period, but had emerged from that disability at a time before the commencement of the current legislation. Such persons are, under the statute as it stands, out of time and the legislation, in its current form, would not alter that except for the relatively small number of such victims whose disability had ended within three years before the passing of this Bill. The first of the Government amendments represents the kernel of its proposals. It is directed at people who have demonstrably emerged from the psychological effects of the sex abuse in childhood which prevented them from taking the necessary steps to commence civil proceedings. It gives them an opportunity to commence such proceedings within 12 months after the passing of the legislation, even though they would have been out of time whether under the present limitation rules or under the new disability rule contained in the Bill. The amendment will ensure that victims of past child sex abuse who had made a criminal complaint about that abuse to the Garda will have an opportunity to take civil proceedings against those responsible for the abuse, even though they were outside the normal limitation period for civil proceedings when they made the complaint. The amendment will also apply to victims who in the past decided not to go ahead with civil proceedings because they had been given professional legal advice that they were out of time. This applies whether civil proceedings were commenced. Where a person has already taken civil proceedings which were pursued to a final judgment, the new provision will not operate to reopen such a case. This would be a serious breach of the legal principle that there should be finality in litigation. The classicists among the Members may know the concept better by its Latin name, Interest reipublicae ut sit finis litium - the State is concerned to ensure that there is finality in litigation. Amendment No. 7 sets out what is to be treated as a final judgment, namely, a judgment where the time for bringing an appeal is past and no appeal was taken; a judgment where no appeal can be brought, for instance, a judgment of the Supreme Court on appeal from the High Court; and a case where judgment was delivered and a subsequent appeal was withdrawn. Amendments Nos. 8 and 9, taken together, insert into the new section 48A of the Statute of Limitations an additional definition of "professional legal advice". This makes it clear that the new provision applies whether civil proceedings had been commenced. On the basis that this proposal goes in large measure towards meeting the concerns expressed in both Houses on the difficult issue of this aspect of retrospective operation of the Bill, I ask Senators to consider withdrawing the other amendments, which address the same subject matter, and to support the Government proposal. Ms O'Meara: I thank the Minister for tabling his amendments. The issue of retrospectivity was first mentioned in the Dáil when it transpired that quite an injustice could have arisen in regard to those who had made a report to a Garda station, for instance, or who had an initial consultation with a solicitor or had taken legal advice on the issue of action arising from the abuse they had suffered in the early part of their lives and the result of their having taken such action suggesting quite definitively that they no longer suffered from trauma as a result of the abuse, which would have otherwise rendered them incapable of taking such an action. There was undoubtedly a potential injustice in the legislation in regard to this group of people, who possibly had initiated an action but would not necessarily then have been covered by the legislation. This issue emerged in the Dáil but because of the time limits on the debate on Committee and Report Stages it was not possible to pursue the issue satisfactorily. However, the Minister indicated last December that he would table amendments when the Bill reached this House. I accept that retrospectivity is a complicated and technical legal issue and that considerable advice had to be taken from the Office of the Attorney General in order to ensure that the amendment was correct in every way. I further accept the Minister's bona fides in coming back with the legislation. The group of people involved have only 12 months to commence an action following the enactment of the legislation, which, presumably, will happen soon. That does not appear to be a long period. I hope it allows people to realise their ambitions and adequately deals with the injustice which would otherwise have arisen if the Minister had not tabled an amendment or accepted ours. I accept that my amendment is quite broad and needs to be refined but I hope that 12 months is sufficient for the people involved to pursue their cases in the proper legal forum. Dr. Henry: I thank the Minister for tabling these amendments, which go a long way towards ensuring that those who have already been disadvantaged by the treatment they received in the early part of their lives will not be further disadvantaged by the legislation. As a doctor, I am used to people giving me medical advice, even though they may have no qualifications and, as I am not a lawyer, I will not try to inform the Minister whether the legal niceties involved in these amendments are easy or difficult. I will rely on his comment that it is a difficult problem. Mrs. Jackman: I am glad the Minister tabled these amendments because Senator Taylor-Quinn withdrew a similar amendment on Committee Stage on the basis that the Minister said he would examine this issue. His amendment is similar to the Fine Gael amendment and I am pleased he is proactive in regard to retrospectivity. There are people who have been treated unjustly and they would be affected if they did not have the opportunity presented by these amendments. Mrs. Taylor-Quinn: I thank the Minister for tabling these amendments. He promised on Committee Stage that he would review the issue and introduce an amendment on Report Stage, if it were possible to do so. We had a difficult debate on Committee Stage on a variety of matters, including retrospectivity, which is important for people in this terrible situation. The fact that the legislation will be amended before it becomes law is highly commendable. Equally, given that an action must be brought within 12 months of the enactment of the legislation, it is imperative that this section is given proper publicity. It deserves serious public airing to ensure that all people who lodged a complaint with the Garda or sought legal advice in the past but found that they were statutorily barred and could not proceed are able to take action. Those people need to be alerted to that fact and the Department of Justice, Equality and Law Reform has an obligation to ensure that adequate publicity is given so that people who fall into this category will be in a position to avail of the provisions made available as a result of these amendments. I appreciate that the Minister has to introduce some finality to this issue and that it is not possible to proceed any further in cases where judgment already has been made. That is acceptable. I commend the Minister. Despite the ferocious approach taken at times on Committee Stage I am delighted that the Minister and his officials accepted the wisdom that emerged from this side of the House. Mr. O'Donovan: I want to record my appreciation that the Minister accepted the views of this House. If the Minister had not brought forward these amendments on this very important issue the thrust of the Bill would have been ineffective. With regard to the point made by Senator O'Meara on the 12 months limitation, that period should be sufficient because most people who have suffered abuse, as defined in the Bill, are now identified. Many of them are involved in a particular association and once the Bill comes into effect, hopefully in the near future, proceedings can be issued in any court. All one has to do is initiate proceedings and issue a High Court or Circuit Court writ. Regardless of whether it takes four years to pursue the case, once the proceedings are issued the person is covered. That is important. The 12 months period is adequate and the Minister has been magnanimous in seriously considering the position. For once, he has been given credit in the debate. This is an important Bill and an acknowledgement of what the Minster has done in the past few weeks should be recorded. Mr. O'Donoghue: I am satisfied that the publicity attendant on the passage of the legislation and on the issue of child abuse generally, and in particular the close attention being paid by those who represent victims of abuse legally, will mean that anyone who should commence proceedings within 12 months will be made well aware of the legislation. I take note, however, of what Senator Taylor-Quinn had to say in respect of giving publicity to the issue and I will bear that in mind. In bringing forward these amendments, I am meeting concerns which were expressed in this House and elsewhere, and concerns which I had also. It was important that people who had made a complaint would not be disabled from taking an action on foot of the legislation. It was also important that people who had sought legal advice and who had done something about the abuse they had suffered should not be disabled from taking proceedings. Everybody will agree that it would not have been desirable for me to extend the period beyond 12 months because we have to have certainty in the law. If this says anything it surely says that where it was possible for me to amend the legislation in order to do justice now, I did precisely that. Where it was not possible for me to do so, I had to refer it to the Law Reform Commission to ensure that justice was done. One way or another, there is one thing for certain - I was not and am not attempting to park any of the important issues raised in relation to child abuse, be it physical or sexual abuse. I am very concerned, however, to ensure that there is certainty in the law, that justice will be done and that the mechanism is put in place so that this objective can be achieved. Amendment agreed to. Government amendment No. 7: In page 4, between lines 11 and 12, to insert the following:   "(6) For the purposes of this section a judgment shall be deemed to be a final judgment where--- (a) the time within which an appeal against the judgment may be brought has expired and no such appeal has been brought,   (b) there is no provision for an appeal from such judgment, or   (c) an appeal against the judgment has been withdrawn.".   Amendment agreed to. Government amendment No. 8: In page 4, line 36, to delete "that Act.'.", and substitute "that Act;".   Amendment agreed to. Government amendment No. 9: In page 4, between lines 36 and 37, to insert the following: " 'professional legal advice' means advice given by a practising barrister or solicitor in circumstances where the person to whom the advice was given sought such advice for the purpose of bringing or prosecuting an action to which subsection (1) applies, whether such an action was brought or not.". Amendment agreed to. Amendments Nos. 10 to 12, inclusive, not moved. Bill reported with amendment, received for final consideration and passed. Sitting suspended at 4.45 p.m. and resumed at 6 p.m. Back Speech Menu Top