AN ANOMALY IN the law which means women receive a more lenient sentence than men in cases of incest is to be addressed by government.

The Minister for Justice and Equality, Charlie Flanagan today announced that the government has approved the publication of the Criminal Law (Sexual Offences) (Amendment) Bill 2018.

The legislation seeks to introduce presumptive minimum sentences for repeat sexual offenders.

It also contains amendments to the Punishment of Incest Act 1908 in order to equalise the penalty for incest to ten years imprisonment for offences by both males and females.

Under current laws, women receive a more lenient sentence than men in cases of incest.

The law at present provides that there is life imprisonment for a male who is convicted of incest, but the sentence is three to seven years for a woman who is convicted of incest.

Constitutional issues

It’s understood advice from the Attorney General was that the gender anomaly in sentencing had to be equalised due to the possible threat of a Constitutional challenge.

The proposed changes mean the offence of incest, when committed by a male, will be reduced from life imprisonment to a sentence of ten years. The penalty for a woman will increase from seven to ten years.

Explaining the reason for the reduction in sentencing for incest on the part of a male, department sources said it is due to a number of objections to increasing the penalty for both sexes to life imprisonment during a Dáil debate three years ago.

When the issue of penalties was first debated in the Dáil in 2015, the then Justice Minister Frances Fitzgerald wanted the penalty for both men and women to be equal, suggesting that the sentence should be life imprisonment.

Speaking in the Dáil in 2015, she said “at present, incest by a male is punishable by a maximum sentence of life imprisonment, whereas incest by a female is punishable by a maximum sentence of up to seven years imprisonment. Under this Part, both offences will be subject to penalties of up to life imprisonment”.

Heavy imprisonment penalty 

She said she hoped such a heavy imprisonment penalty for incest, such as life imprisonment for females, would be a “sufficient deterrent and provide a significant step in combating the risks posed to children”.

However, during the course of the Dáil debate, there were a number of objections to the penalty of life imprisonment for females committing incest.

Fianna Fáil’s Justice spokesperson Jim O’Callaghan said at the time that the issue “is a complicated area.

“On first principles, I believe imposing a potential sentence of life imprisonment on a female for incest is excessive. Back in Edwardian times the penalty was three to seven years and the penalty for men was three to seven years,” he said.

O’Callaghan said the issue came to some public prominence in January 2009 when there was a prosecution and conviction for incest which was highly unusual.

“In January 2009, a mother of six was convicted in Roscommon Circuit Court on ten counts of incest. At the time, the judge noted the only penalty available to the court to impose was a sentence of between three and seven years.

“That gave rise to some concern that there should be harmony between the two offences. However, my view is that a penalty of life imprisonment for incest in the context of the offences that already exist on our statute book is excessive,” said O’Callaghan.

He added:

For example, if that case against the mother in Roscommon arose in the aftermath of the legislation before us being enacted, sections 16 and 17, which deal with sexual acts with children under the ages of 15 and 17, respectively, would apply. If the mother in question was prosecuted in respect of having sex with her son and if the son was under 17 years, she would now face the possibility of a term of imprisonment not exceeding 15 years. The imposition of a penalty of life imprisonment is anachronistic.

He added that it was his view the penalty for both was three to seven years.

Concerns raised 

Sinn Féin’s Jonathan O’Brien also raised concerns about the amendment at the time.

“I understand that the Tánaiste is trying to equate the offences but she still has not demonstrated what public good would be served by increasing the sentence from three to seven years to up to life imprisonment. We are not talking about sex which is not consensual. Let us be very clear on that. There is adequate legislation to deal with somebody who is having sex without consent.

“We are talking about a female over the age of 17 years who, with consent, would still be committing an illegal act and would still be liable for a prison term of three to seven years as opposed to life imprisonment. Unless the Minister can demonstrate the rationale behind the increased prison sentence, it is my intention to press the amendment,” said O’Brien.

Defending her stance of equating sentences for both men and women to life imprisonment, Fitzgerald told the Dáil, adding:

Where the offence is committed by a male, it is not a defence that the female consented. The offence by a female does not provide for a similar provision. The reason for this is because the nature of the offence of incest by a female is different from that committed by a male. The offence by a female is committed where she permits a specified male relative to have carnal knowledge of her and relying on defence of consent on the part of the male would not arise.

Incest by a male is committed where he has carnal knowledge of a specified female relative. In this case, it must be specified that consent by the female is not a defence. In fact, the female party to the act, by consenting, is liable for the offence… If there is no consent on either party, the offence is not one of incest but it is one of rape…

The Bill will be introduced to the Dáil in the autumn.