To the Minister for Justice.
SIR, We, the undersigned members of the Committee appointed on 17th June, 1930, to the Committee of Inquiry to consider whether the following Statutes require amendment and if so in what respect, namely:
The Criminal Law Amendment Act, 1880, and The Criminal Law Amendment Act, 1885, as modified by later Statutes; and to consider whether any new legislation is feasible to deal in a suitable manner with the problem of juvenile prostitution (i.e. prostitutes under the age of 21), beg to submit our Report.
C1. From the nature of the Inquiry the Committee at their preliminary sitting agreed that the evidence received should not he published in the press Notification to this effect was made, and we are satisfied this procedure elicited a larger measure of voluntary evidence than would otherwise have been obtained
C2. Under the terms of our Reference we had to consider the secular aspect of social morality which it is the concern of the State to conserve and safeguard for the protection and well-being of its citizens. We looked upon it as our duty in the first place to collect sufficient information from such authentic sources as would enable us to determine whether the standard of social morality is at present exposed to evils, which the existing laws of the Saorsat, for the suppression and prevention of public vice, are inadequate to check, and, should they be in our opinion inadequate, to proceed, in the next place, to consider how best they can be made effectual, and to recommend
C3. At the outset of our Inquiry attention was directed to the fact that whereas the principal Act mentioned in our Reference, viz , the Criminal Law Amendment Act, 1885 (commonly known as Stead's Act), has been amended by statutes passed for England and Scotland in 1922 and 1928 and for Northern Ireland in 1923, which (inter alia) superseded and repealed the Criminal Law Amendment Act, 1880, in the Saorstat these two statutes remain unchanged, without amendment, since 1885, save for a few alterations made by the Prevention of Cruelty to Children Children Act, 1904, the Children Act, 1908, and the Criminal Law Amendment Act, 1912, which, when passed, were general Acts of the United Kingdom.
C4. By reason of these amendments the law, which at the passing of Stead's Act in 1885 afforded the same measure of protection for girls and children in all three countries, now discloses a marked disparity between the Law in force for this purpose pose in Great Britain and Northern Ireland on the one hand, and in the Saorstat on the other, to the detriment of the latter as will he obvious from the following comparisons :-
C5. This short commentary on the Acts of 1880 and 1885 justified us at an early stage of our Inquiry in coming to the conclusion that they demanded amendment, if only to ensure at least the same measure of protection under them in the Saorstat as Great Britain and Northern Ireland. As the terms of reference indicated that the scope of our Inquiry should not be so narrowed but should also extend to an investigation of the actual conditions now prevailing in the Saorstat which are within the purview of these statutes, and should furthermore embrace a consideration of the "problem of Juvenile Prostitution," we therefore proceeded to take such evidence as might afford us a conspectus, from the legal standpoint of Public Decency, of the extent to which abuses exist. In this way we hoped to be able to make recommendations for their prevention and reform as far as practicable.
C6. The witnesses who appeared before us, as will be observed from the list to be found in the Appendix, may in every case be regarded as specially qualified by their professions, duties or experience to testify authoritatively on the subject. They included clergy from Dublin and some provincial dioceses and a number of representatives deputed to attend the Inquiry by various organisations engaged in social welfare work. This work comprised the protection of women, girls and children, provision for unmarried mothers and their offspring, the treatment of sexual disease, the care and reformation of offenders and kindred charitable aims. Such services made their members familiar with facts and conditions prevailing generally in the Saorstat, and enabled them to formulate deliberate opinions and recommendations which were submitted to us by their representatives.
Evidence was also given by Mr. George P. Cussen, Senior Justice of the Dublin Metropolitan District Court; Mr. Dermot F. Gleeson, Justice of the District Court in County Clare; Miss K. M. Sullivan, Probation Officer allocated to the Metropolitan District Court; and General O'Duffy, Commissioner of the Civic Guard. In most cases each witness supplied us, in advance, with a statement of evidence. We also received further information from each organisation whose representatives gave evidence, and communications from other organisations, societies and public bodies, which were not represented by witnesses. The Secretariat of the League of Nations, at the instance of the Department of External Affairs, supplied us with official publications and a summary of the legislation in different countries on subjects pertinent to our investigation. The Secretariat also prepared for us a special Memorandum, drawn up by one of its members, Dr. Max Habicht, comparing the provisions of Stead's Act with existing international conventions having for their purpose the protection of women and children.
In the Appendix there also appears a list of organisations, societies and public bodies, not represented by witnesses, which submitted recommendations or furnished us with information. The Commissioner of the Civic Guard, and several Public Departments, likewise furnished us with official and statistical information, in some instances specially collected and compiled for our assistance.
We desire to acknowledge the assistance we received from the witnesses who attended the Inquiry, and from the organisations represented by several of these witnesses. We are also indebted for assistance to the Secretariat of the League of Nations, and to the public departments, various associations and societies which supplied us with statistics and information, and to such representative bodies as sent resolutions passed on the subject of our Inquiry.
C7, Our experience has been exceptional and perhaps unique as a Committee of Inquiry taking evidence relating to subject matters which have frequently been investigated by similar Committees in England, several of whose reports and proceedings have been made available to us, and from which we derived useful help. Whereas these Committees have had to settle their reports upon conflicting views and opinions expressed by the witnesses and generally reflected by differences of opinion amongst the members of the Committee themselves in the reports, no witness appearing before us has dissented from the view expressed by nearly every witness that the moral condition of the country has become gravely menaced by modern abuses, widespread and pernicious in their consequences, which cannot be counteracted unless the laws of the State are revised and consistently enforced so as to combat them.
C8. The oral evidence occupied 17 days of our sittings. For better appreciation of the evidence we received we think it important to refer to the Annual Report of the Registrar-General for 1929, the last published. Table 1 (page 2) shows the estimated population of the part of Ireland now comprising the Saorstat from middle of years 1801 to 1929, and Table 3 (page 4) the number of illegitimate births registered in decennial periods from 1871 to 1920 and for each succeeding year to 1929. In 1871 the population was 4,042,000, and in 1929 was 2,946,000. For the decennial period 1871-80 the number of illegitimate births was 1,705 (annual average). In 1920 the population having declined to 3,103,000, illegitimate births registered numbered 1,819, compared with 1,668 for 1919, and for the first time exceeded the figure 1,705, the average for the census period 1871-80. In 1921 the number of illegitimate births declined to 1,603, and in 1922 to 1,520. Since 1926 the figure shows a rapid increase as follows : —
Illegitimate Births 1,716
... „ „ 1,758
... „ „ 1,788
... „ ,, 1,853
The Registrar-General notes the number for 1929 constituted 3.2 per cent, of total births registered in that year.
This percentage is the highest recorded, and compares with 1.80 per cent, for the census triennial period 1870-2. If morality conditions existing among a population of over 4 millions in the period 1871-80 continued to prevail in to-day's population of less than 3 millions, the official illegitimacy figures for the year 1929 would be less than 1,280.
C9. Taking the last 24 years, beginning with 1906, the percentage of illegitimacy of the total births varied between the years:-
(1) 1906 and 1913 from 1.98 (in 1908) to 2.21 (in 1910), average 2.10.
(2) 1914 and 1918 from 2.31 (in 1914) to 2.50 (in 1917), average 2.43.
(3) 1919 and 1925 from 2.58 (in 1922) to 2.71 (in 1920), average 2.65.
(4) 1926 and 1929 from 2.81 (in 1926) to 3.20 (in 1929), average 2.99.
This statement shows the rates of illegitimacy in (1) the pre-War period, (2) the period of the Great War, (3) the period of civil strife and commotion, (4) the latest period since law and order was restored; and it brings to prominence the fact that since 1925 illegitimacy is increasing throughout the country at an unprecedented rate.
C10. Though our enquiry was not directly concerned with the question of illegitimacy, we felt it necessary to make it a subject of enquiry, as illegitimacy must be regarded as one of the principal causes of the species of crime and vice of which the State takes cognisance in the branch of penal and preventive legislation which we were appointed to examine. The official statistics are sufficient to show that illegitimacy is an evil which, contrary to past experience of history, has begun to grow and spread latterly in the country since social conditions have recovered from the disorganisation suffered in preceding years.
C11. The statistics, with which we have been dealing, are necessarily based upon the annual returns of illegitimate births officially registered. They include the births in Poor Law Institutions, Public Hospitals and elsewhere, but the evidence received from extraneous sources has satisfied us that the number of illegitimate births unregistered considerably exceeds the number of such births registered if our view is correct, the Registrar-General's Report, from which these statistics are drawn, reflects only part of the actual situation. We believe it impossible to estimate even approximately the annual number of illegitimate births, which their distressful plight and shame cause by many unmarried girls to endeavour to conceal; but that the total number is much in excess of official figures we have no doubt, and we would draw attention to the following facts :
C12. On the one side, the Report of the Department of Local Government and Public Health, 1928/1929, the last issued, contains in Appendix XXXIII a Table of unmarried mothers maintained by the Poor Law Authorities on 31st December, 1928, in two classes,
Unmarried mothers of first-born children numbering 614
Unmarried mothers of two or more children 356
Total ... 970
From unpublished tables, which the Local Government Department has courteously placed at our disposal, we find :-
The summary of these returns shows that besides 934 cases maintained in Poor Law Institutions on 1st January, 1928, 1,171 were received during 1928, and that of the total cases (2,105), 1,135 were discharged, leaving 970 in the Institutions on 31st December, 1928. This number of cases has strained the accommodation of the County Homes beyond their capacity, for the Report states (p. 113) the objectionable fact that unmarried mothers of first-born children cannot be maintained apart from the other inmates (the decent poor and sick), and also that it has been found necessary for the Poor Law Bodies in the district of Dublin Union and in the Counties of Clare and Galway to provide auxiliary institutions for unmarried mothers; and that the Local Government Department is making similar provision in aid of Poor Law Bodies in other counties. Last year an auxiliary institution was established in County Tipperary.
C13. On the other side, while the Department is making special efforts to deal with the congested state of County Homes, Charitable Societies in Dublin, which are engaged in assisting, before and after confinement, unmarried girls, who appeal to them for aid from all parts of the country, have given the Committee evidence that uncovers a large area, outside the field of Poor Law administration, in which they volunteer their services and they find the demands upon them increasing beyond their resources.
The following figures supplied by the two largest of these societies are significant without comment :
C14. In the Report of the Poor Law Commission of 1927 (clause 265) reference is made to the migration of expectant mothers from Ireland to England and to evidence received from the Liverpool and County Catholic Aid Society. Evidence has been submitted to us which shows this migration continues increasingly. The Liverpool Society for the Prevention of International Traffic in Women and Children, commonly known as "The Port and Station Work," Liverpool, a non-sectarian body for the protection of girls, with which the Archbishop of Liverpool cooperates, supplied the following figures of their services :
The Liverpool and County Catholic Aid Society reported that for the year 1928/9 they received 30 girls from Ireland, of whom 17 were sent to West Derby Union; other provision was made for the rest. Sister Josephine, Catholic Police Court Missionary in Manchester, has dealt with about 100 Irish cases since 1925. Leeds Diocesan Rescue and Protection Society received 12 girls from Ireland in the year ending April, 1929. From London reports were received from the Crusade of Rescue, the Catholic Women's League Rescue Committee, St. Pelagia's Home, and other societies engaged in women's protection work. Father Craven, who is Administrator, appointed by His Eminence the Cardinal Archbishop of Westminster, of the Crusade of Rescue, furnished a list of 105 cases, dealt with by his Association in 1930, of unmarried girls who came across from Ireland for their confinement, and a similar list of 29 cases for the present year from 1st January to 10th March. He wrote that the number was increasing yearly, and states: "Every day it is becoming more and more evident that we do not hear of anything but a fraction of these Irish women and their children."
A feature of these lists is that the great majority are cases of country girls. In the 1930 list, 21 of the 26 Free State Counties are represented: exclusive of 10 cases from Dublin City and County, and 12 from Cork City and County—they all came from country districts. The Secretary of St. Pelagia's Home reported there were in May last 14 Irish girls in the Home, and that they annually received about 20 Irish girls, mostly from Tipperary, Limerick and Wexford.
C15. The representatives of the Irish Women Doctors' Association submitted a carefully prepared memorandum of their views and recommendations on the matters for inquiry, signed by 54 lady doctors, all but one of them engaged in public institutions or in private practice in the Saorstat. They stated emphatically that in their experience official statistics of illegitimacy did not adequately represent the actual condition of the country regarding it. The same opinion was expressed by Rev. R. S. Devane, S.J., who has been for many years engaged in social welfare work, and is the author of several articles and pamphlets on the subject. Rev. M. Fitzpatrick, C.C., St. Michael's, Limerick, stated that in Limerick less than 25 per cent. of illegitimate births were registered. Rev. P. J. Roughneen, Administrator, Ballaghaderreen, and Rev. Denis Gildea, C.C., Charlestown, who represented the Most Reverend Dr. Morrisroe, Bishop of Achonry, said that in cases of illegitimate births the parties concerned evaded registration as far in they could and that the statistics were deficient.
C16. The testimony of all the witnesses, clerical, lay and official is striking in its unanimity that degeneration in the standard of social conduct has taken place in recent years. It is attributed primarily to the loss of parental control and responsibility during a period of general upheaval, which have not been reversed since the revival of settled conditions. This is due largely to the introduction of new phases of popular amusement, which, being carried on in the Saorstat in the absence of supervision, and of the restrictions found necessary and enforced by law in other countries, are the occasions of many abuses baneful in their effect upon the community generally and are the cause of the ruin of hundreds of young girls, of whom many are found in the streets of London, Liverpool and other cities and towns in England.
The "commercialised" Dance Halls, Picture Houses of sorts, and the opportunities afforded by the misuse of motor cars for luring girls, are the chief causes alleged for the present looseness
Very Rev. John Flanagan, P.P., Fairview, Dublin, who was a witness, stated that he had submitted a memorandum of the evidence he proposed to give with regard to Public Indecency to His Grace the Most Reverend Dr. Byrne, Archbishop of Dublin, who authorised him to inform the Committee that the evidence contained in his memorandum was endorsed by His Grace. In his memorandum on this matter Father Flanagan stated that “conduct that in other countries is confined to brothels is to be seen without let or hindrance on our public roads," and he proposed for a remedy that " the hands of the Police should be made effective, Magistrates on conviction should have power to insist on the publication of names and addresses of offenders - and that misconduct in a motor car or other vehicle should be subject to the same penalties as if it took place on a public road."
In his oral evidence Father Flanagan said public immorality was a growing evil much more noticeable - here than in other countries; and that legal measures of a special kind were imperatively required to prevent it; and he strongly recommended the official publication of the names and addresses of convicted persons.
On the provincial side other priests gave evidence. Very Rev. Canon Lee, P.P., Bruff, Co. Limerick, deplored the decay of country morale. "It is common knowledge," he said, "that immorality has developed to an alarming extent in recent years." He imputed it to "the Dance Hall craze" which in his parish started about 1925. The so-called Dance Halls he described as usually no better than outhouses or bare four-walled structures, unprovided with any sanitary conveniences, dimly lit, and without adequate seating accommodation for the crowd who gather into them. He complained that they are subject to no supervision or control; the owners require no licence and the police have no right to interfere. At first, Canon Lee said, the clergy were partly successful in checking abuses but later their efforts were unavailing and the admonitions of the Bishops' Pastoral, ordered to be read in the Churches periodically, failed to have any noticeable effect. The Dance Halls, he said, were "Schools of Scandal," and he urged the necessity for special legislation “to stop the incoming tide that threatens the ruin, moral and material, of the country."
Father Roughneen and Father Gildea, representing the Bishop of Achonry, were equally emphatic and urgent. They declared the Dance Halls to be "a crying evil." In the parish of Charles-town, of only 670 families, Father Gildea said there were five unlicensed Dance Halls, in some of which dances of a disgusting character took place. He handed in the form of Dance Hall licence in use by the Municipal Authority in New York containing stringent regulations to ensure against any breach of public decency. These witnesses, as well as Canon Lee, referred to a sinister feature of these dances, namely, that they were attended by strangers who travelled from distances in motor cars and were accustomed to take the country girls they met there for “night' drives.”
Father Fitzpatrick, of St. Michael's Parish, Limerick, gave similar evidence. He referred to the grave decline in morality observable in recent years, and described public indecency as "rampant in defiance of priests and police." He knew of girls being drugged or doped in Dance Halls, was witness to misbehaviour in a Picture House a few days before he attended before the Committee, and said the employment of motor cars at Dance Halls for purposes of misconduct was notorious, and that one of the results of these lamentable conditions was an increasing "number of "forced" marriages, even of girls under 18 years." He added that the Diocesan clergy were unanimous in their opinion that such offences should be severely punishable by law.
This evidence corroborated by the body of general evidence we have received, and in details and completeness it is confirmed by an important memorandum submitted to the Committee by the Commissioner of the Civic Guard.
C17. The Commissioner stated that when invited to give evidence he had issued a circular to all Superintendents of Police Districts directing them, in conjunction with the Sergeants of over 800 police stations covering the entire Saorstat, to furnish information and report to him on the police aspect, in each district, of the matters under consideration by the Committee. The information and views contained in these reports he had collated and the substance of them found place in his memorandum and evidence. We take the following statements from the memorandum and evidence of the Commissioner (others will be, referred to elsewhere in this Report) :-
That the moral outlook of the country had changed for the worse in recent years ;
That there was an alarming amount of sexual crime increasing yearly, a feature of which was the large number of cases of criminal interference with girls and children from 16 years downwards, including many cases of children under 10 years;
That the police estimated that not 15 per cent, of such cases were prosecuted, because of
In explanation of the numerous cases of outrages upon young females, the Commissioner pointed to the fact to which attention was directed by other witnesses, that in this country the children of the poorer classes are less protected than in Great Britain. In Dublin the necessity in the case of many families living in tenements, for the parents, both father and mother, to leave the children to look after themselves in the day time while they themselves went out to earn their livelihood, was a constant source of danger. In rural districts girls of 14 years are sent out to service, which deprives them of the protection they had with their parents.
That the Criminal Law (Amendment) Act, 1885 (Stead's Act), requires amendment in order to effect its objects, viz., the protection of women and girls, the punishment of outrages on decency, and the suppression of brothels;
That the miscellaneous patchwork of enactments on which the police must rely for the prevention of juvenile prostitution, and cognate offences, such as Solicitation and Indecency, are antiquated and no longer serve their purpose for dealing with public nuisances of these kinds in their modern guise;
That besides remedial legislation for the prevention of the foregoing crimes and offences a severer measure of punishment should be meted out to persons found guilty; that in cases under Stead's Act flogging sentences should be imposed, unless an official medical certificate declared it un suitable in a particular case; and that in all cases, unless where the Court certifies the circumstances to be exceptional, the names and addresses of offenders, with no further particulars than the description of the offence and the sentence awarded, should be published officially in the Press.
C18. The cogency and unanimity of the evidence laid before us leave no doubt that gross offences are rife throughout the country of a nature from which it could formerly claim a degree of immunity that may perhaps have lulled it into a state of false security. Frank recognition of this fact will, we believe, create a state of healthy public opinion helpful to the Government in purging the State from these evils. In seeking remedies for the disease, it appears to us, from the suddenness with which it has manifested itself, to be due to indigenous conditions, and we think the cure is to be found by the application of home remedies.
For this reason we do not attach first importance to finding precedents for all our recommendations in similar laws of countries where great populations comprised of diverse elements exist and are governed under a complicated social system to which ours bears little analogy. We have drawn attention to the fact that under the two statutes mentioned in the Reference a lesser degree of protection is afforded to women and children here than in Great Britain and Northern Ireland, where these statutes have been amended ; and in our recommendations for coping with some other prevalent abuses, in respect of which no effective enactments are operative in the Saorstat, we refer to the fact that they are stringently kept in check by domestic legislation in other countries. These contrasts are very instructive. Moreover, no one can peruse the bulky Proceedings and Reports of Commissions, Parliamentary and Departmental, that have been appointed in England to collect information and take evidence as to the prevalence of sexual offences against young persons, and to report on the subject, indicating how the law or its administration might be improved, without realising how much their labours have been rendered futile by the exigencies of politics. The Report of the Departmental Committee on Sexual Offences against Young Persons, 1926, contains the following passages : —
The Committee for themselves reported "that the Law should be altered to protect girls from sexual offences up to 17 years of age" ; but so far their report in this respect remains a dead letter.
C19. We are of opinion that the problem before us requires legislative treatment on the lines followed in our recommendations. These recommendations will be found to consist mostly of revisions of obsolete or obsolescent enactments, so as to adapt them to modern necessities arising from the changes in social life and habits since these statutes were passed. If some of our proposals may appear to be innovations or too drastic where we recommend reforms in the law or its administration, it is to be remembered that our function has been to provide remedies for an abnormal ailment and therefore the use of some new curative might be expected. We would add that the recommendations for which we are responsible are in the main supported by the views deliberately expressed by the witnesses examined before us, who, we feel assured, from their varied knowledge, training and experience represent the sound and healthy opinion of the public on the subjects under consideration.
1. The Age of Consent and the Defence of "Reasonable Belief." There was a consensus of opinion amongst the witnesses That unlawful carnal knowledge of a girl under the age of 18 years (at least) should be absolutely prohibited. The question of the age of consent has so often been the subject of inquiry in England that social reformers have gained the support of public opinion for their views and have satisfied Committees similar to ours, that the law in this respect requires amendment. For instance, the Report of the Departmental Committee on Sexual Offences against Young Persons, 1926, previously referred to, which recommended the raising of the age to 17 years, gives the following epitome of the evidence before them :- "We have evidence that the number of girls who begin to lead immoral lives at 16 is large. We consider that this is due to the fact that the girl of 16 is often mentally and emotionally unstable; she has not finished growing and developing; and, though she may be excited and her passions awakened, yet she cannot really appreciate the nature and result of the act to which she consents. Medical evidence emphasises the harm that may be done to a girl by premature sexual experiences, and also the serious risk of physical injury which she incurs if motherhood should result. If we visualise girls of 16 in all walks of life, as they appear when congregated in school, at play or in factories, we cannot fail to realise that they are growing girls and but little more than children, who, as such, require the protection of the law, and it is abhorrent to us that they should become the subject of illicit intercourse. The evidence we received was similar and equally emphatic. Moreover, witnesses, clerical, lay and medical, laid stress upon the obviously broad differences between English and Irish social conditions. Generally speaking, Irish girls of 16 to 18 years of age, by nature, habits and training, possess less knowledge and experience of the moral and physical dangers to which they are sexually exposed. They are less capable of protecting themselves against such dangers than are girls at the same period of life in England, for these are mostly brought up from childhood accustomed to live in gregarious surroundings, which, it may be said, instil in them instincts of 'canniness' and self-discipline that the conditions of Irish agricultural life do not foster. Even in England, the proposed amendment of raising the age to 17 years would appear from the Report to be a compromise in order to minimise the parliamentary difficulties and the obstruction that had previously thwarted ameliorative legislation. In the opinion of representatives of welfare protection associations, it fails to give effect to the weight of evidence in favour of the age being rained in England to 18 years, as was recommended by the Bishop of London's Committee.
The period of 16 to 19 years of age is regarded as the dangerous age for girls, being the period when they are most susceptible emotionally and least capable of self-control. In a pamphlet issued by the National Social Purity Crusade, of which the author if Miss Helen Wilson, a prominent member of the Association for Moral and Social Hygiene and an advocate for raising the age of protection for girls in England to 18 years, at least, figures are given showing that in the examined cases of 401 women, who were professional prostitutes, 231 had first lapsed between 16 and 19 years of age, and of 317 similar cases 194 had become prostitutes between these years. The Poor Law Commission of 1927 reported (clause 259) that mothers of firstborn illegitimate children, who seek relief in this country, are commonly between 17 and 21 years of ago, and it recommended that the age of consent should be raised to at least 18, if not 19 years.
We concur, and would add that the necessity for the better protection of girls has become more acute since the Report of the Poor Law Commission was published. We accordingly recommend that it shall be an offence to have carnal knowledge of a girl under 18 years of age.
C21. The defence of reasonable cause to believe that the girl was of or above the age of consent, allowed to be set up by the provisos contained in sections 5 and 6 of the Criminal Law Amendment Act, 1885, is open to the comment frequently made that it betokens a low standard of morality to tolerate so shameless a plea in answer to a charge of committing a sexual offence that prima facie is a felony or misdemeanour. This defence has been abolished in Northern Ireland. It survives in Great Britain for the benefit of the man of 23 years of age or under, who can take cover under the proviso to Section 2 of the Criminal Law Amendment Act, 1922, which grants him pardon on the first, occasion on which he is charged with an offence under this section, if there was “the presence of reasonable cause” to believe that the girl was over 16 years. The draftsmanship of this proviso has provoked uncomplimentary judicial criticism of its incoherence and obscurity, but it remains on the statute book and it serves as a protection for young reprobates of or under 23 at the sacrifice of protection for girls under 16.
The Poor Law Commission of 1927 recommended the abolition of this defence. In their Report (clause 260) their opinion was expressed as follows :-
"From the point of view of prevention, we see no reason for allowing the man to plead reasonable belief that the girl was of legal age to give consent. We believe that the act of bringing a girl to shame either with or without her consent is one that should not be condoned on the ground of a belief of her being of legal age to give consent, and that, if brought about, the law should be such as to prevent its being lightly passed over."
With this view we concur, and in order to give it full effect we recommend that not only the provisos in Sections 5 and 6 of the Criminal Law Amendment Act, 1885, but also a similar proviso in Section 7 (Abduction of Girls), should be repealed.
11. Repeal of the Criminal Law Amendment Act, 1880, and further amendments of Criminal Law Amendment Act, 1885.
C22. Under this heading we. seek to amend the law as to the offences covered by those statutes which, after nearly fifty years, are in our opinion no longer sufficiently effective to meet, the needs of public justice in the Saorstat. As a preliminary we give the following synopsis of tables put in evidence by the Commissioner of the Civic Guard, showing the increasing number of prosecutions for sexual offences from 1924 to 1930 :-
The Commissioner stated these figures represent not more than 15 per cent of such offences committed, and drew attention to the "alarming aspect" in the number of cases of interference with girls under 16 and with children under 11 years of age. The tables do not include cases of infanticide, and concealment of birth of infants who have perished after birth, categories outside the statutes in question.
We recommend the repeal of the short statute, the Criminal Law Amendment Act, 1880, and its re-enactment as a section in any amending Act which may he passed in consequence of our Report, and we recommend that the section in its new form should enact that the consent of a young person under the age of eighteen years shall be no defence to a charge of indecent assault or gross indecency committed against or with such young person, and that such young person shall not be liable to he prosecuted or he deemed to he an accomplice for being concerned in any such offence with a person over 18 years of age.
C23. Our recommendations for other amendments of the Criminal Law Amendment Act, 1885, can, we think, be presented conveniently by taking each section proposed to be amended in order, stating the amendment and our reason for it - subject to general recommendations which appear later in the Report relating to jurisdiction, procedure and penalties.
(i) Section 2—Procuration.
This section has been amended by the Criminal Law Amendment Act, 1912, under which power is given to sentence a male offender to be whipped.
We recommend the omission of the words “under 21 years of age” in Sec. 2 (1).
Reason : Section 2 (1) restricts the offence to procuration of a girl or woman under 21. The other subsections of the same section, which relate to offences of the same character, apply without any age restrictions. We fail to see any reason why sub-section (1) should be restricted in the scope of its application to suppress an odious offence. In its present form this sub-section gives licence to persons engaged in the procuration of women to ply their traffic, if they confine it to trafficking in women over 21.
(ii) Section 3 - Procuring defilement by threats or fraud or administering drugs.
We recommend the insertion before the word “drug” in sub- section 3 of the words "alcoholic or other intoxicant or any."
Reason : The evidence satisfied us that the uncontrolled freedom the promiscuous entertainments in which town and country girls are now in the habit of participating, such as Dance Halls, Picture Houses and “joy” drives in motor vehicles, are designedly resorted to "and availed of by male prowlers" as they were described, to bring ignorant "girls to ruin”; and to render them easier prey, intoxicants, as well as drugged drinks, not infrequently are given to them.
(iii) Section 4 Defilement of a girl under 13 years of age.
We have recommended that in future the law of the State should absolutely prohibit unlawful carnal knowledge of a girl under the age of 18 years.
“Consistently with this recommendation we recommend (a) that unlawful carnal knowledge of a girl under the age of 16 years should he made a felony, and accordingly that "sixteen" should be substituted for "thirteen" where "thirteen" occurs in the first and second paragraphs of this section. We also recommend that so much of the proviso as has not been repealed by the Children Act, 1908, Section 134, via. : from the words " Provided that " to the words "in manner in that Act mentioned", shall he repealed, for reasons to be stated in a general recommendation.
(iv) Section 5 Defilement of a girl between l3 and 16 years of age.
Having already recommended that the age of consent should be raised to 18 years, we accordingly recommend that sub-section (d) be amended by substituting" sixteen" for, "thirteen " and "eighteen" for "sixteen."
As to Sub-Section (2) we have had much evidence, which has been confirmed by the evidence of the Commissioner of the Civic Guard, of the frequency of outrages upon weak-minded females of all ages, who in the present state of the law (unless the victim is under 13 years of age, to whose case section 4 would be applicable) are left unprotected by this sub-section, which puts the onus on the prosecution of proof that the circumstances were such that the offender knew when he committed the offence that the woman or girl was an idiot or imbecile. As an illustration, we were referred to a case tried in a Circuit Court in 1926 of two men who were charged under this sub-section. A young woman over 21 years, too weak from birth physically or mentally for any employment, who lived with her parents, had been committed to an asylum as a lunatic in June 1925, from which she was released in February, 1926. On 13th March, 1926, about 9. p.m., she was met in the street near her home in a country town by two strangers, the accused, who invited her to accompany them for a drive in their motor car, and she assented. When they were about to start, a passer-by, who knew her, warned the accused that she had recently been discharged from a lunatic asylum, He was told to mind his own business. The party drove away and he informed her parents and the police-. About midnight the girl returned home after she had been left in the street by the accused. At first she denied that anything had happened to her. Next day she was medically examined and found to have been sexually interfered with. She then described that on three occasions during the drive both accused interfered with her, that she resisted the first time, but did not cry out. At the trial the defence prevailed that, admitting the facts, she was not an idiot or an imbecile within the meaning of these terms in the sub-section, as interpreted by judicial decisions, and the Jury were directed to acquit the accused. The case serves to show the futility of the sub-section in practice.
We accordingly recommend that sub-section (2) be repealed and re-enacted to read:- "Unlawfully and carnally knows, or attempts to have unlawful carnal knowledge, under circumstances which do not amount to rape, of any woman or girl who at the time of the commission of the offence was :-
We have already recommended that the first proviso in this section be repealed.
(vi) We recommend that the limit of time for commencing a prosecution mentioned in the second proviso, which by section 27 of the Prevention of Cruelty to Children Act, 1904, was amended by extending the time to 6 months (the present law in the Saorstat), be further extended to 12 months, as has been done in Great Britain by the Criminal Law Amendment Act, 1928, where the extension of 9 months, prescribed by the Criminal Law Amendment Act, 1922, was found to be inadequate.
Reason: : The Commissioner of the Civic Guard and other witnesses proved that many cases of the defilement of girls go unpunished, because the victims are unwilling to prosecute, and conceal knowledge of such offences having been committed even from their parents as long as there is the possibility of pregnancy not ensuing. When a birth takes, place, a prosecution of the offender is statute barred under the present law. We accordingly recommend the removal of this disability by extending the time, within which a prosecution may be commenced, to 12 months from the commission of the offence.
(vii) Section 6 - Householder &c, permitting defilement of young girl on his premises.
This section is intended to prevent the prostitution of young girls, a subject specifically referred to us.
Conformably with the special recommendations we make in regard to it later - we recommend -
We have already recommended the repeal of the proviso in this section.
(viii) Section 7.—Abduction.
The weakening of parental control has been reiterated throughout the evidence by clergy and laity, by the police, and by official witnesses, as being at the root of the present evils; and appeals have been made to strengthen it by law whenever possible. An amendment of this section would appear to offer an opportunity. The section is drawn from section 53 of the Offences against the Persons Act, 1861 (24 and 25 Vic. c. 100), which enacts (inter alia) that the abduction of an heiress or woman of fortune under 21 years, "against the will of her father or mother or any other person having the lawful care or charge of her," with like intent as in the present section, shall be a felony punishable with penal servitude not exceeding 14 years. We recommend the same measure of control and security for parents of a penniless girl as for those of a wealthy one, and would amend this section by raising the age limit to ''under the age of 21 years " and making the offence a felony, punishable accordingly. We have already recommended the repeal of the proviso in this section.
(ix) Section 10. - Power of Search.
This section, like sections 2, 3, 6, 8, 12, and 13 of the Act, relates to brothel or disorderly house offences and the prostitution of girls under 21 years of age. We refer to the comments and recommendations we make under section 13. In conformity with the proposed amendments of sections 6 and 7, and the recommendations we make for the suppression of brothels and prevention of prostitution, we recommend—
(x) Section 11.—Outrages on decency.
The offences in this section relate to gross indecency between male persons, a form of depravity that is spreading with malign vigour. The difficulty which the law encounters in efforts to suppress it is aggravated by the notorious facts - that the offence has become an habitual vice in the case of most adult offenders who are charged ; that of adult offenders some commit it with adults, some practise it habitually on children of tender years of both sexes, and others systematically decoy boys to become their " patients ", who at first are void of knowledge of the nature of the acts to which they innocently submit, but in process of time from association with their deceivers become corrupt and debased.
There is moreover a difficulty in bringing offenders against this section to justice, which applies equally to prosecutions, under other sections of the Act, for defilement of girls within the age of protection or other sexual crime, namely, the insistence of a rule of practice not imposed by statute, but evolved from a series of legal decisions (which have gradually hardened into a judicial rule), that in cases of sexual crimes, if the prosecution can produce only one witness to prove the guilt of the accused—as from the private nature of the offence is frequently the case—the trial Judge is bound to warn the Jury of the danger of convicting the prisoner on the uncorroborated evidence of the witness. Such a warning is usually understood by the Jury as an intimation by the Judge to acquit the prisoner, and there can be no doubt that many guilty persons escape conviction because of this rule.
In prosecutions for crime however grave, which are not sexual, it may be said in general that corroboration of a single witness is not required except in charges of treason and perjury, and far from the trial Judge being bound to warn the Jury against the danger of convicting upon the uncorroborated evidence of a single witness if the witness has impressed him as telling the truth, he may express that opinion to the Jury in his charge. We make further reference to this difficulty and also to the measure of punishment for this offence in our general recommendations.
(xi) Section 12.—Custody of girls.
We recommend, as in previous sections, which relate to prostitution, the raising of the age mentioned in this section to 21 years.
(xii) Section 13.—Suppression of brothels.
The state of the law in the Saorstat for the suppression of brothels is inadequate both as to police powers and as to penalties. Although under the Gaming Act, 1845, the Betting Act, 1853, and other statutes, the police acting under a Justice's Warrant, or, in Dublin, under an order in writing by the Commissioner addressed to a Superintendent, may enter a house suspected of being a common Gaming House or place for Betting, and arrest persons found therein, yet they have no power to search a house known to be, or suspected of being, a brothel. They may, if they satisfy a Justice that shebeening is carried on in a brothel, obtain a shebeen Warrant to search it under the Licensing Act, 1874, section 24. Under the Vagrancy Act, 1898, section 1 (2), a District Court, if there is reason to suspect a house is used by a female for purposes of prostitution, and that a man who resides in or frequents the house is living on the earnings of a prostitute, may issue a warrant to enter and search the house and arrest the man.
Besides the statutory difficulty of dealing with brothel-keeping, another arises from the restricted definition of “brothel," following the decision in Singleton v. Ellison (1895, 1 Q.B.607), a case brought against a woman for keeping a brothel under this section. It was proved that she occupied a house which was frequented by a number of men, principally by night, who committed fornication with her and from whom she received money. The Justices found that no woman other than the accused lived at or used the house for the purposes of prostitution. The Court decided that a " brothel " in its legal acceptation applied to a place resorted to by persons of both sexes for the purpose of prostitution, and that it was not applicable to the case before it, where only one woman was concerned.
The Commissioner of the Civic Guard informed us that, although in Dublin the number of places commonly known to be brothels had decreased considerably, the police were aware of numerous addresses of private houses, flats and lodging-houses in the city and suburbs, occupied by single women, to which men resorted for immoral purposes, that some hotels were used somewhat similarly, and that country towns were not exempt from like abuses. The present restrictions, he said, trammelled effective police action, and he urged their removal.
As to penalties, whereas they have been increased in Great Britain and Northern Ireland by amending statutes which have not only substantially increased the fines, but also have rendered the brothel-keeper liable to both fine and imprisonment, yet in the Saorstat fine or imprisonment is an alternative penalty.
We make the following recommendations :—
(1) on a first conviction, to a fine not exceeding £100, or to imprisonment with or without hard labour for a term not exceeding 6 months, or, in any such case, to both fine and imprisonment;
(2) on a second or subsequent conviction, to a fine not exceeding £250, or to imprisonment with or without hard labour for a term not exceeding 12 months, or, in any such case, to both fine and imprisonment. Provided also that upon the conviction of the tenant, lessee, or occupier of any premises of knowingly permitting the premises or any part thereof to be used as a brothel, or for the purpose of habitual prostitution, the lease or other contract under which said premises are held shall ipso facto become void and determined without prejudice to the rights or remedies of the lessor or land lord of paid premises accrued before the date of such conviction, and the Court which has convicted the tenant, lessee, or occupier shall have power to make a summary order for delivery of possession of said premises to the lessor or landlord thereof.
III. Jurisdiction, Procedure and Penalties,
C24. Before concluding our commentary on the Criminal Law Amendment Acts, 1880 and 1885, 6ome general recommendations remain to be added.
(1) Jurisdiction - Many cases in the Courts of the Saorstat tried under the Criminal Law Amendment Act, 1885, are for offences against children, usually girls, under 16 years of age, which may be commonly described as "criminal assaults," inasmuch as any question of consent is immaterial (as is likewise the ease under the Criminal Law Amendment Act, 1880, relating to indecent assault upon young persons). Except offences under section 13 (Suppression of Brothels) which are triable summarily in the District Court, all other offences under the Act are indictable, i.e., triable only in the Central Criminal Court or Circuit Courts. The procedure in indictable cases is protracted, and puts a strain upon the child, under which not infrequently she or he breaks down, and the prosecution fails or must be abandoned. It requires the child first to be taken before the District Justice, usually in the District Court, to be examined and cross-examined as to the occurrence in the presence of the accused for the purpose of making a deposition. When the trial takes place in another Court, sometimes months later, the child must appear again to give evidence and be subject to cross-examination. In such circumstances it cannot be wondered at if discrepancies usually can be pointed out between the later evidence and the first account of the occurrence given by the witness before the District Justice, which in many cases persuade a jury to acquit a prisoner who strictly should be convicted. Indeed it may be believed that the frequency of assaults on young children is to some degree attributable to the impunity on which culprits may reckon under this procedure.
We agree with the witnesses of every class, who have addressed themselves to this topic, that it seems unfair and may be injurious to a child, who has suffered an experience unnatural at such an age, to have to undergo a prolonged legal ordeal, calculated to distress or bewilder it and keep it anxiously thinking of unwholesome details of an incident which it ought to be induced to forget as soon as possible.
Under the Offences against the Person Act, 1861, sec. 43, cases of aggravated assaults upon a male child not exceeding 14 years, or on any female, may be dealt with summarily without the consent of the accused. For the repression of criminal assaults on young persons, we recommend the jurisdiction of the District Courts under this section to be extended to include :-
District Justices have power under various statutes to impose sentences of twelve months' imprisonment. "With respect to the foregoing offences we recommend that they should have power to impose sentences of imprisonment not exceeding two years with or without hard labour, this being the sentence prescribed by statute for all such offences, except indecent assault upon a male person.
(i) We have previously referred to the rule of practice, that has become obligatory on Judges in trials for sexual offences, to warn juries against convicting on the uncorroborated evidence of a single witness, a rule not applied in other cases. We venture to suggest that this rule would appear to be contrary to the intention of the Criminal Law Amendment Act, 1885. The Act itself prescribes the cases in which corroboration is necessary, namely, offences under sections 2 and 3 dealing with procuration. It might be assumed that the statute deliberately omitted to require corroboration in the case of other offences mentioned in the statute, some of which, namely, those relating to the defilement of girls under age, were new offences specially created by it. Several of the offences are of a nature unlikely to be committed in circumstances permitting corroboration, and others, such as abduction or unlawful detention, are crimes of the character for which corroboration was not essential at common law. We recommend that this rule should be abrogated in regard to sexual offences, when the person against or with whom the particular offence is alleged to have been committed is within the age of protection given by the statute as amended.
(ii) There is a similar rule of practice which requires the trial Judge to warn the jury of the danger of convicting an accused on the uncorroborated evidence of an accomplice. We think this rule should not be applied to cases under the Criminal Law Amendment Act, 1885, as amended, when the charge is for an offence committed with or against a child or young person, who is within the age of protection from such offences as provided by the statute, and whose consent to the offence, if relied on by the accused, shall be no ground of defence under the statute.
We venture the opinion that these statutory safeguards indicate the intention of the original statute to regard a child or young person within its protection, against or with whom any such offence is committed, to be the victim of an outrage and not the accomplice in a crime. The latter assumption must tend to defeat the object of the statute, for the jury is most likely to acquit the accused if the Judge must warn the jury that the juvenile witness, with whom a sexual offence is alleged to have been privately committed by the accused, is an accomplice, whose uncorroborated evidence it would be dangerous to accept. We are satisfied the operation of this and the previous rule, which case law compels Judges to apply on the trial of such offences, is responsible for grave miscarriages, of Justice.
We accordingly recommend that it should be enacted that a person within the age of protection given by the Criminal Law I Amendment Act, 1885, as amended with whom any offence under the Act is alleged to have been committed by another person charged with such offence, shall not be, or be deemed to be, an accomplice in the commission of such offence.
(iii) It often happens that the same person is accused of a series of indecent assaults or of acts of gross indecency committed against several children or young persons under the age of 16 years. Such cases indicating habitual depravity, when cognisable by the District Court, are permitted to be dealt with summarily under the Children Act, 1908, s. 32, and may be included in the one summons or information and tried together. There is no such absolute procedure allowed when such cases are tried on indictment in the Central Criminal Court or Circuit Court. Although they may be included in the same indictment, they must be treated as separate offences, the evidence in one case not being admissible in another, or applicable even to show that the accused is a systematic offender. In consequence, a prosecution in such a case, which, if tried as a whole, would leave no doubt as to the guilt of the accused, generally fails, when it has to be conducted piecemeal, each offence usually depending on the evidence of a child or juvenile witness, and having to be considered apart from the others.
We think that this procedure should be altered, and that the same method of trial should be followed in such cases, when tried on indictment as when tried in the District Court. Such a change would not be altogether an innovation. For instance, if a person is indicted for receiving stolen goods, or having stolen property in his possession, in order to show him to be a person of dishonest character the Larceny Act allows evidence to be given - - - - - - - - - ??? indistinct?? - - - that other property stolen within the previous year was found, or had been, in his possession, though he may not have been charged with the offence,
In the limited class of offences we have mentioned, namely, indecent assaults and acts of gross indecency, in which children and young persons under 16 years are aggrieved we accordingly recommend that, when two or more such offences, alleged to have been committed by the accused within the period of twelve months preceding the date of the last alleged offence, against two or more children or young persons under the age of 16 years, are charged in the same indictment, they should be tried together, and that the evidence in each case should be admissible in the other case or cases, as evidence, of a systematic practice or an habitual tendency on the part of the' accused to commit such offences.
(iv) Power to clear the Court. The Children Act, 1908, section 114, permits a Court to exclude the public while a person under the age of 16 years is giving evidence in a case of an offence against, or conduct contrary to, decency or morality. The District Justices, the Commissioner of the Civic Guard and other witnesses examined before us, speaking from their experience of Court proceedings, in which children and young persons appear, recommended that in every such case in which a child or young person under the age of 18 years is concerned as a witness, or to whom the proceedings relate, the Court should have discretionary power to exclude from the hearing of the proceedings all persons except those concerned in them, either as parties, counsel or solicitors, court officers and officials, or bona fide representatives of the Press. We are of opinion that such a power, to be exercised by the Court at its discretion, would be to the public advantage and we recommend that it be vested in Courts dealing with such cases.
During the Inquiry, emphasis was repeatedly laid by witnesses on the inadequacy of the penalties prescribed by the Criminal Law Amendment Act, 1885. Every indictable offence mentioned in the Act, with two exceptions, is enacted to be a misdemeanour punishable with a maximum sentence of two years' imprisonment with or without hard labour. The exceptions are the two offences against girls under 13 years of age mentioned in sections 4-and 6 of the Act, which are enacted to be felonies for which penal servitude may be awarded. It was the opinion of these witnesses, who included the Commissioner of the Civic Guard, that the terms of imprisonment usually imposed on persons found guilty did not deter offenders, that whipping was specially appropriate and should be imposed in addition to imprisonment on male offenders for such wantonly base offences, and that the names and addresses of all persons found guilty, the description of the offence, and the sentence of the Court, should be published officially. The only provision for whipping in the Statute of 1885 was in the case of a boy under 16 years guilty of an offence under section 4, but the Criminal Law Amendment Act, 1912, amended section 2 (procuration) by providing that any male person convicted of an offence under that section, may, in addition to imprisonment, be ordered to be once privately whipped.
We recommend that this amendment be extended so as to apply to male persons as part of the punishment to be awarded for any offence described in the Act as a misdemeanour or felony ; and we also recommend that persons found guilty should be blacklisted officially by publishing their names and addresses, the description of the offence, the Court of trial, and the sentence imposed.
C25. Of the class described, but not defined, in various statutes as common prostitutes, few take up such a trade by choice. Most of them are usually girls between 16 and 21 years of age who have been betrayed, and in their fallen condition, helpless and desperate, are driven to the streets for a living. In Dublin, the only place from its size in the Saorstat where common prostitutes can be regarded as a distinct class in the population, the police estimate the number to be less than 100. Apart from them, as the Commissioner of the Civic Guard pointed out in his evidence, prostitution of a covert kind is carried on nowadays in Dublin and elsewhere by women, whose profession is known, but who are protected from police interference by the present state of the law respecting brothels.
If the recommendations we have made for amending the Criminal Law Amendment Acts receive legislative sanction, they will bring girls within the protection of the law during the period of adolescence when they are most exposed to moral dangers, which it may be expected will also be lessened by the deterrents in some of the amendments suggested for making justice more certain in the prosecution of offenders, and securing that punishment shall be exemplary.
We are assured that preventive measures to diminish the vice of juvenile prostitution will prove to be the best remedy for dealing with the problem. Such measures may, in our opinion, be provided largely by simplifying and improving some of the existing police laws for the public observance of good order and decency, which have become [??indistinct??] inadequate for present needs, and by placing under control or better supervision certain kinds of entertainment; businesses and employments, which lend themselves to abuse.
We proceed to make recommendations on these [??indistinct??] suggestions for the treatment and reform of juvenile offenders.
C26. It may be said there is no legislation in force to restrain the open indecency, which witnesses denounced as being carried on so flagrantly and defiantly as to be a menace to public morals, and therefore to demand special legal measures for its repression.
The only statutes enabling the police to prosecute for indecent behaviour are the Vagrancy Act, 1824 (s. 4), the Dublin Police Act, 1842 (s. 15), the Towns Improvement (Ireland) Act, 1854, and the Summary Jurisdiction (Ireland) Amendment Act, 1871. The Vagrancy Act section only applies to the offence of indecent exposure, by a man in a street, road, or highway with intent to insult a female. The Towns Improvement Act is limited in its operation to towns that have adopted the Act - about 80 in the Saorstat - the offences chargeable being against a man for wilful indecent exposure, or committing an act contrary to public decency in a street as defined by the Act, to the obstruction or annoyance of residents or passengers. The Dublin Police Act, 1842, and the Summary Jurisdiction Act, 1871, extend only to the police district of Dublin metropolis, and only apply to cases against a man for indecent exposure or behaviour in a thoroughfare or public place.
Obviously new legislation is called for to suppress the notorious indecency prevalent today in country districts, as well as in the neighbourhood of towns and cities, in which both sexes take part, and a feature of which is the misuse of motor cars. We accordingly recommend that a general section be enacted making it an offence for any person alone, or in company with any other person or persons, to be guilty of indecent behaviour in any street, or public place, the words "street or public place" to be defined with a suitably extended meaning, as in the Street Betting Act, 1906, with a proviso that if the offence is proved to be committed in a motor car, carriage or other vehicle in a street or public place, it shall be deemed to be committed in a street or public place.
Power of summary arrest should be given, as in the Street Betting Act, 1906. Such offences should be triable summarily, the Court to have power to imprison a person found guilty without the option of a fine, and particulars of the conviction giving the name and, address of, the offender should be officially published,
C27. Whereas the law relating to Solicitation as between men is modern and sufficient for its purpose, that relating to the more common offence of Solicitation as between persons of the opposite sex is altogether unsatisfactory.
In Dublin the offence is dealt with under the Dublin Police Act, 1842 (s. 14), which enacts " Every common prostitute or night walker loitering or being in any thoroughfare or public place for the purpose of prostitution or solicitation to the annoyance of the inhabitants or passengers " shall be guilty of an offence and liable to a penalty not exceeding forty shillings.
Elsewhere in the Saorstat prosecution for the offence is restricted to towns that have adopted the Towns Improvement (Ireland) Act, 1854, which enacts (s. 72) that every common prostitute or nightwalker loitering and importuning passengers for the purpose of prostitution, or being otherwise offensive, in any street, to the obstruction, annoyance or danger of the residents or passengers, shall be guilty of an offence and liable to a fine not exceeding forty shillings.
These statutes are applicable only to women provable to be of the class known as common prostitutes or nightwalkers; other women guilty of similar behaviour are not liable, - an immunity likely to embolden them until in time, by repetition, they answer the same description. There is no corresponding statute to punish the offence by men who behave similarly to women, - an offence very rife in Dublin as proved by several witnesses, of whom some spoke from personal experience, one form of it being practised by men in motor cars who patrol the streets, stopping here and there to invite young women to whom they are unknown to accompany them for drives.
This state of the law is manifestly anomalous. In practice it operates in a mechanical round of prosecutions against the same offenders, about a hundred, who in Dublin constitute the class known to be "common prostitutes." Each of them is fined for the offence the statutory penalty of forty shillings, which is promptly paid in four-fifths of the cases, from funds provided, as may be suspected, by some one interested in the woman's "earnings." If an offender does not pay the fine immediately, she may be sent to gaol for a month, or until the fine is sooner paid, which usually happens, and she is then discharged. In reality this procedure is nothing less than licensing prostitution under a system of fines. There are generally more than 600 prosecutions for this offence annually in the Dublin District Courts. From a return supplied to us by the Governor of Mountjoy Prison for the half-year ending 30th June, 1929, of 67 women of this class in that period sent to gaol in default of payment of fines for solicitation, one had been convicted during the period 10 times, and others 8, 7, 6 and 5 times. Several of them had totals of over 100 convictions recorded against them.
In our opinion the law applicable to solicitation offences as between men and women should be enacted in a statute having general application in the Saorstat, which would secure that offenders of both sexes shall be equally liable to prosecution (including women who are not of the class described as common prostitutes), and would abolish the system of repeated fines for these offences. We are not prepared to recommend the disuse of the description "common prostitute" current throughout Police and Municipal statutes, when such a description is appropriate in relation to an offence, but we think no woman under 21 years of age should be chargeable under such a description.
"We accordingly recommend that every person who in any street or public place," as defined by the Act
shall be guilty of an offence, for which he or she may be taken into custody without a warrant, and on summary conviction by a District Justice shall be liable to fine or imprisonment, and on a second or subsequent conviction to imprisonment without the option of a fine, provided that no woman under the age of 21 years shall be chargeable with an offence under the description of being a common prostitute or with any offence for which only a person of such description is liable to be convicted.
C28. Dance Halls.
In the course of the Inquiry no form of abuse was blamed more persistently for pernicious consequences than the unlicensed dances held all over the country in unsuitable buildings and surroundings, for the profit of persons who are liable to no control or supervision by any authority. The scandals that are the outcome of such a situation are notorious. They have been denounced in pastorals, exposed in the Press, and condemned by clergy, judges and justices, without avail. Before us the Commissioner, speaking for the Civic Guard, paid these dance gatherings in many districts were turned into " orgies of dissipation, which in the present state of legislation the police are powerless to prevent." In short, there is no effective legislation to put down this nuisance.
The Public Health Acts Amendment Act, 1890, s. 51, provided for the regulation of places ordinarily used for public dancing, but the section applied only to urban districts whose local Councils adopted it. It enacted that, after six months from its adoption, no house or place should be kept or used for public dancing without being licensed. Licences were to he granted by the same licensing authority, with similar procedure, as under the Licensing Acts (Ireland), 1872 to 1874, to approved persons subject to such terms, conditions, and restrictions as the licensing authority should determine, and to remain in force for one year or any shorter period as allowed by the licence. Any breach of the terms or conditions rendered the licensee liable to a penalty of £20 and a daily penalty of £5, and to revocation of the licence by a court of summary jurisdiction. The enforcement of penalties was left in the hands of the Urban Authority; the Police could not intervene unless by special order of the Attorney-General. From the beginning this attempt to supervise places kept for public dancing was abortive, except to a limited extent in the county borough of Dublin. Of the other county boroughs, Waterford or Limerick did not adopt the section, and although adopted in Cork in 1892, it lay in abeyance until 1928, when it was readopted.
Notwithstanding this failure to apply the section by Urban Authorities the Public Health (Ireland) Act, 1896, gave power to the Local Government Board to extend the licensing control of public Dance Houses to rural districts whose rural council might apply for such authority. Only two councils claimed the privilege the Rural District Councils of South Dublin and Rathdown No. 1, both in the County Dublin. An Order of the Department of Local Government, dated 8th January, 1931, enables the County Boards of Health (inter alia) to elect to adopt Section 51 of the Act of 1890. The Order has aroused differences of opinion; eleven Boards have agreed to adopt the section, some have discussed the question without result, and the rest have not considered it.
We strongly urge that it has become a matter of paramount necessity to put the control of places used for public dances under the immediate jurisdiction of the District Justices as the Licensing Authority, and that the Civic Guards should have like powers in regard to Dance Licences and the supervision of premises licensed for dancing, as in the case of licences for the sale of intoxicating liquors and the supervision of premises so licensed.
We accordingly recommend that no house or building, garden or other place, into which admission is obtained by payment of money, or for money consideration, shall be kept or used for public dancing without being duly licensed annually by the District Justice of the district; that previous notice of every application for a licence shall be given to the Superintendent of the Civic Guard for the District, and shall be published by advertisement in a local newspaper; that on the hearing of every such application, objections may be made and shall be considered in like manner as in the case of applications for the grant or renewal of licences for the sale of intoxicating liquor by retail.
No dance licence should be granted unless the licensing authority is satisfied of the good character of the applicant, and the suitability of the premises, and that in the circumstances of each case it is desirable in the general interest of the place or district to increase the facilities for public amusement by granting a licence.
No holder of a publican's licence should be eligible for a dance licence, and no such licence should be granted for premises adjacent to a publichouse.
We further recommend that every dance licence shall be subject to general conditions, and to such special terms, conditions and restrictions as the licensing authority may determine; that licences shall remain in force for one year or any shorter period as allowed by the licence. The conditions, subject to which a licence is granted, should be attached as a schedule to the licence, and (inter alia) should fix the days and times for the opening of the premises, the minimum charges for admission, and the minimum age of persons eligible for admission. They should also provide against overcrowding, and for the observance of good behaviour, and that the premises shall be subject to the supervision of the Civic Guards, who shall at all times have free access to them. Any breach of the conditions, terms or restrictions should render the licensee liable to a penalty and revocation of the licence, and prosecutions should be at the instance of the Civic Guards and be triable summarily.
We recommend that revenue duty should be chargeable for every licence, fixed by scale according to the poor law valuation of the premises.
C29. Our attention was directed to the Illegitimate Children (Affiliation Orders) Act, 1930 - an Act intended to effect a much needed reform, by compelling the father of an illegitimate child to contribute to its support by payments to the mother or poor law body who maintained it. Amongst social welfare associations its enactment was welcomed, because for the first time in the Saorstat summary jurisdiction was given enabling affiliation orders to be obtained against putative fathers, and it was expected that, when put into operation, the Act would have a wholesome effect in diminishing the seduction of girls.
The evidence before us showed that the purpose of the Act is frustrated by the exceptional procedure prescribed to give effect to the affiliation order made by the District Justice, if the defendant makes default. Section 11 (1) enacts that in case of default the sum payable may be recovered as a " civil debt." This means that the Court must be resorted to again, and that the procedure prescribed by Part II. of the Enforcement of Court Orders Act, 1926, must be followed. The delay and expense involved by this procedure can scarcely have been intended. It obstructs the operation of the Act as an effective measure of redress, and encourages defendants to become defaulters.
In England, if default is made in payment of an affiliation order it may be enforced by imprisonment, as in the case of a conviction upon information (Summary Jurisdiction Act, 1879, s. 54; Criminal Justice Administration Act, 1914, s. 32).
In Northern Ireland the corresponding statute is the Illegitimate Children (Affiliation Orders) Act, 1924, by which it is enacted (s, 6) that in case of default, application may be made to the Court of Summary Jurisdiction that made the order, whereupon the Court may enforce it as if it were a penal sum. There would appear to be no ground for dealing with default of an affiliation order in the Saorstat differently from default in England or in Northern Ireland.
We recommend that s. 11 of the Act of 1930 should he amended so as to enable the District Justice who made the Order to enforce it summarily by imprisonment.
Attention was directed to another point which in our opinion calls for amendment, namely, that whereas an appeal lies to the Circuit Court from an order of a District Justice made against a defendant for maintenance of a child no appeal is allowed the complainant whose application is dismissed. This would appear to be an inequitable discrimination between the parties in such cases, and we recommend that each party should be equally entitled to appeal to the Circuit Court. No Rules of Court, for procedure and practice under the Act, as intended or directed by section 16, have yet been promulgated. We are informed that in the absence of Rules the jurisdiction of District Courts to hear applications under the Act has in some instances been challenged. We think it to be essential for the removal of any doubts as to the jurisdiction of the Courts that Rules of Court should be made and promulgated without delay.
C30. The dissemination in the Saorstat of books, magazines and pamphlets, business circulars and advertisements encouraging contraceptive practices, was discussed in the Report of the Committee on Evil Literature (1926). The Committee pointed out that the law affecting it was more lax in the Saorstat than in the Dominions or the United States, it being the same as was in force for the United Kingdom before the establishment of the Saorstat, and they expressed their unanimous opinion that the effect of such propaganda upon public morality "is vicious in the extreme: and that the Saorstat should range itself with those countries where it has been made wholly illegal." In another passage of their Report they said: "There is evidence that others deliberately extend their activities among the young and unmarried of both sexes; and that the practices are now advocated as a means of avoiding the consequences of sexual indulgence among the unmarried." The evidence given at the present Inquiry leaves no doubt that the practices so advocated have become extremely prevalent, not only in the cities and larger towns, but also in villages and remote parts of the South and West of the country. We heard evidence from clergymen and the Commissioner of the Civic Guard, that so common in some places were such articles in use that there was no attempt to conceal the sale of them, and places were mentioned to which the supply of such articles comes regularly by post to recognised vendors. At the same time quantities of contraceptives advertisements are in circulation, and price lists are extensively distributed throughout the country by cross-Channel agencies in order to facilitate the direct purchase by private persons of the articles offered for sale.
The committee on Evil Literature having made recommendations for the prohibition of printed matter, we recommend that the articles in question should be banned by an enactment similar to the Dangerous Drugs Act, 1920.
C31. For girl offenders between 16 and 21 years of age we recommend the adoption of the proposals favoured by the majority of the witnesses, who were examined by us on the subject. They appeared to us sound and practical, and can be given legal effect without difficulty by the application, with suitable adaptations, of Part 1. (Reformation of Young Offenders) of the Prevention of Crime Act, 1908, under which the Borstal system was established, which on the whole has proved satisfactory for dealing with male offenders between these ages.
At present, in the numerous cases of girl offenders, which would be most judiciously disposed of by sentences of detention under the Borstal system, if it were available, the Courts have no alternative to sending an offender to prison but to apply the provisions of the Probation of Offenders Act, 1907, under which the offender is discharged conditionally on her entering into a recognisance to be of good behaviour, and perhaps to observe other prescribed conditions, for a period of 3 years, and to come up for sentence when called on within the period. Some offenders refuse to be bound over, and others, who reluctantly consent, frequently disregard the conditions on which they have been released. The Court often finds itself brought to an impasse in trying to deal with such cases. If the Borstal system is extended to girl offenders, the Court, instead of having to send a girl to prison or to discharge her, can order her detention in a Borstal Institution or in any approved Home affiliated with it. Such a system, embracing a main Institution and Homes in affiliation with it, under the control of a Joint Board representing the Departments of Justice, Education and Local Government, would, we believe, produce beneficent and reformative results.
We recommend the establishment of a Borstal Institution for girl offenders between 16 and 21 years of age and the adaptation of the Prevention of Crime Act, 1908, to enable approved Homes to be associated with it; power to be given to all Courts dealing with such offenders to record, if thought fit, a finding of "Proven" simply an make an order for Borstal detention instead of making an order of conviction and imprisonment. We also recommend that Courts of Summary Jurisdiction, or Justice, on remanding or committing for trial a girl between 16 and 21 years of age, who is not released on bail, should have power, if thought fit, instead of committing her to prison, to order her to be detained in a Borstal Institution or approved Home. First offenders who are girls under 21 years of age, whether kept in a place of detention or in prison, should be classified separately and kept apart from other offenders.
C32 Attention was frequently drawn during the Inquiry to the necessity for affording better protection for young persons on being discharged from Industrial Schools. The children sent to be taught and trained in Industrial Schools are child delinquents under 12 years of age and children under 14 years who have no one to care for them. Under the present law (Children Act 1908, sec. 6) they must be discharged on attaining 16 years but up to 18 years are subject to the supervision of the Managers of the schools from which they have been discharged (sec 68). We feel satisfied that it is impracticable for the managers of such schools to exercise the watchfulness necessary to safeguard girls and boys of this class who are usually without responsible relatives or friends, from the risks to which they are exposed by their youth and ignorance of the world, when at liberty. The records of the Courts show that many drift into evil ways, and, in the case of girls, that a large number fall into the hands of various associates and are ruined.
We recommend that a probationary system be devised for members of this class to secure that when discharged from and Industrial School, they should be placed on licence in the charge of probation officers until they attain the age of 18 years; such officers to be answerable to the Chief Inspector of Industrial Schools for their supervision while under licence, breach of which should render the licensee liable to be dealt with summarily by a District Justice and to be sent to Borstal for further detention.
Servants' Registries, Private Maternity Homes and Common Lodging Houses for Women.
C33. The information we have received satisfies us that girls, including unmarried mothers, are gravely imperilled by abuses that exist in the conduct of some Servants' Registries, Private-Maternity Homes and Common Lodging Houses for Women in Dublin District;
For remedy we recommend that such businesses or employments should not be permitted to be carried on without licence from the Commissioner or a Deputy or an Assistant Commissioner of the Civic Guard, and should he subject to approved bye-laws to ensure that they shall be properly conducted, and be subject to police surveillance, such as is exercised in similar cities in Great Britain for example, in Glasgow.
C34. If the recommendations we have made for dealing with girl offenders and the supervision of girls when discharged from Industrial Schools are approved, more extensive use will be made of the probation system we believe with good results, to secure which it will be necessary to appoint additional probation officers. At present there are only two paid probation officers employed by the State, both ladies, attached to the Metropolitan District Court to represent the Northern and Southern Districts of the City. A third lady acts as an honorary probation officer to deal with the cases of Protestant juveniles. Neither the Dublin Circuit Court nor the Central Criminal Court has any probation officer attached to it, and the necessity that often arises in these Courts for the assistance, of an officer has hitherto been met, by the voluntary attendance of one or other of the existing officers who have given their services gratuitously. There are no male probation officers.
We recommend the appointment of a sufficient number of women probation officers for the Metropolitan Police District to carry out the duties of Probation Officers under the Probation of Offenders Act, 1907, pursuant to the orders of any Circuit or District Court, in said District, or of the Central Criminal Court, made in the cases of offenders under the age of 16 years, or of women offenders over that age, and also to carry out the duties assigned to them in respect of girls when discharged from Industrial Schools.
C35. In furtherance of the preventive-measures of reform, which we have proposed, we recommend that in the Dublin Metropolitan Police District a staff of specially trained policewomen, not less than 12, should be organised. Their primary duties should be
to aid in the maintenance and observance of good order and decency in the streets and public places
to keep a strict supervision over the registration and conduct of Servants Registry Offices, Common Lodging Houses for Women and Private Maternity Homes
to escort and take charge of women and children in custody, and to do preventive work generally with regard to Juvenile Prostitution.
SUMMARY OF RECOMMENDATIONS.
C37. in closing our Report we think it may be advisable to make reference to the subject of blackmail which is sometimes a reason of objection by persons apprehensive of proposals for the extension of legal reforms and remedies for the prevention of sexual offences against children and young persons. We drew attention especially to this subject and discussed it in the course of the Inquiry and have satisfied ourselves that in the Saorstat the risk of blackmail in such cases is negligible. The lay witnesses who represented societies engaged in the work of social welfare and reform, the clergy and the medical witnesses whom we examined all agreed that in sexual cases concerning children and juveniles an attempt to blackmail rarely occurred, and in fact none of the witnesses could cite an instance from his or her experience.
C38. We have much pleasure in recording our thanks to our Secretary, Mr. Christopher Smith, of the Department of Justice, for the valuable assistance we received from him throughout the Inquiry, and in expressing our appreciation of the thoroughness, efficiency and courtesy with which he discharged his duties.
We have the honour to be. Sir,
Your obedient servants,
(Sgd.) W. CARRIGAN (Chairman). JOHN J. HANNON. S.J.
H. B. KENNEDY. Dean. FRANCIS J, MORRIN.
JANE POWER. V. O'CARROLL.
CHRISTOPHER SMITH (Secretary). 20th .August, 1931.
A P P E N D I X .
LIST OF WITNESSES EXAMINED.
Brady, Dr. Ita, Visitor to the Lock Hospital, Dublin.
Buchanan, Miss Emily, representing the Magdalen Asylum, Lower Leeson Street, Dublin.
Chenevix, Miss H. S., representing the Irish Women Workers' Union.
Clarke, Mrs. Hannah, Inspector of the National Society for the Prevention of Cruelty to Children. •
Cruice. Miss M. .1., Honorary Secretary of St. Patrick's Guild, Dublin.
Curran, Mrs. G. P., representing " Saor an Leanbh."
Cussen, Mr. George P., Senior Justice of the Metropolitan District Court.
Devane, Rev. R. S., S.J., Rathfarnham Castle, County Dublin.
Dodd, Miss I., representing the Irish Women Citizens' and Local Government Association.
Duff, Mr. Frank, representing the Legion of Mary.
Duffy, Mrs. Margaret Gavan, Visitor to the Lock Hospital, Dublin.
Fitzpatrick Rev. M.. C.C., St. Michael's, Limerick.
Flanagan, Very Rev. John, P.P., Fairview, Dublin.
Gildea. Rev. Denis, C.C., Charlestown, County Mayo.
Gleeson, Dermot F., Justice of the District Court, County Clare.
Gleeson. Paul, B.L., ex-Cliairman, Rathdown Board of Guardians.
Hobson. Mrs. Claire, representing "Saor an Leanbh."
Home, Dr. Delia Moclair, representing the Irish Women Doctors' Committee.
Kettle. Mrs. T. M.. Chairman of the Dublin Union Committee.
Kirwan. Mrs. Kathleen. Hotel Pelletier. Harcourt Street, Dublin.
Lee. Very Rev. John Canon, P.P., Bruff, County Limerick.
Moloney. Miss Helena, representing the Irish Women Workers' Union.
O'Connor, Miss Elizabeth, representing the Irish Women Workers' Union.
O'Duffy, General Eoin, Commissioner of the Civic Guard.
Price. Dr. Dorothy Stopford, representing the Irish Women Doctors' Committee.
Roughneen, Rev. P. J., Administrator, Ballaghadereen, County Roscommon.
Russell, Dr. Angela, representing the Irish Women Citizens' and Local Government Association.
Sullivan, Miss Kathleen M., Probation Officer attached to the Metropolitan District Court.
Tancred, Miss Edith, Convener of Sectional Committee for. Women Police and Patrols, the National Council of Women of Great Britain.
Resolutions or Memoranda were received from—
The Secretariat of the League of Nations, Geneva.
The Chief Constable of Police, Glasgow.
The Dublin Christian Citizenship Council.
The National Council of Women of Ireland.
The National Society for the Prevention of Cruelty to Children (Cork Branch).
The Rathdown Board of Guardians.
The Salvation Army.
The Women's International League for Peace and Freedom (Irish Section).
ADDENDUM BY THE REV. JOHN HANNON, S.J. TO THE REPORT OF THE COMMITTEE ON THE CRIMINAL LAW AMENDMENT ACTS (1880-1885).
I wish to add an explanation my own behalf of two phrases in the above Report.
Dealing with "contraceptives" (page 37, No. 30), the Committee recommends "that the articles in question should be banned by an enactment similar to the Dangerous Drugs Act, 1920." Again, treating of the same question in the "Summary of Recommendations" (page 41, No. 16), the Report suggests "that the sale of contraceptives should be prohibited except under exceptional conditions.''
I understand the exceptions, implied above, not to include contraceptive "appliances." I take them to apply only to certain drugs, which, though commonly used for contraceptive purposes may also be used for other medicinal ends. The suggestion is that such drugs should be excluded "by an enactment similar to the Dangerous Drugs ACT.1920". That they should not be excluded altogether is due only to the fact that they may be required for medical purposes other than contraception. Hence the " exceptional conditions " indicated in the " Summary of Recommendations " are to be taken to mean "occasions when drugs commonly used for contraceptive purposes are required by the medical profession for the treatment of disease."
In adding to the Report this explanation over my own name, I do not wish to imply that I differ from the other members of the Committee on this point. On the contrary, I gathered from our discussions that we were all at one on the above interpretations of the recommendations made. My object, then, in sending this addendum is to state that the Report does not make exception for the sale of contraceptives as such in any circumstances. To say that it did, would be in my opinion a misunderstanding of the mind of the Committee. It would certainly be a misunderstanding of my mind on the matter.
(Signed) John J. Hannon, S.J.