LEGISLATION:WHILE THE maximum sentence that could be imposed on a woman for incest at Roscommon Circuit Court yesterday was seven years, the Department of Justice said yesterday the law since she offended had been changed.
A spokesman said that the Criminal Justice Sexual Offences Act signed into law in June 2006 stated that any person, male or female, who engaged in a sexual act with a child who was under 15 years could be liable on conviction to imprisonment for life, or to a lesser term.
He explained that the reason the woman in the Roscommon “house of horrors” case was not sentenced under this Act was because the offences with which she was charged were committed prior to 2006, when the new law was enacted. “The law isn’t retrospective,” he said.
The 40-year-old Roscommon woman at the centre of yesterday’s case was sentenced under the 1908 Punishment of Incest Act.
Judge Miriam Reynolds said in imposing sentence she was bound by legislation which was 101 years old. Under that legislation a man coming before the court would face life in prison, but the maximum sentence for a woman was seven years, she said.
Family law expert Geoffrey Shannon said the Roscommon case underlined the need for some type of change in the law in relation to when the State can intervene to protect children. “The major barrier to any attempt by the State to introduce child protection measures is that the welfare of the child is presumed to be found within the family,” he said.
He stressed the best place for a child to be brought up is within the family, but there comes a time in a small number of cases where the family can be a very dangerous place for the child to grow up and the State must provide protection for these children.
He pointed out that the Supreme Court felt in one such case that the autonomy of the family prevented the State from intervening.
“They said before the State could intervene there needed to be an immediate threat to the life of the child, there needed to be an immediate and fundamental threat to the capacity of the child to continue to function as a human person deriving from an exceptional dereliction of parental duty, or you needed parental neglect that would constitute an abandonment of the child and of all rights in respect of the child.
“You could argue that the barrier is too high for State intervention, and that’s what happened in this case,” he said.
“We have to respect the autonomy of the parents on one hand and ensure that children are protected on the other. The All Party Oireachtas Committee on the Constitution must look at this issue now as a matter of urgency,” he added.
“You could argue that an entire generation of children have grown up since we first started discussing this issue and this case has brought into sharp relief the need for urgent action.”
Roscommon Circuit Court heard that when a voluntary arrangement had been brokered in September 2000 which would have allowed the children of the 40-year-old woman be placed in the care of relatives, their mother went to the High Court and got an order restraining the then Western Health Board from placing the children in the care of relatives. The six children were eventually taken into care in 2004 after it came to light that the woman had sex with one of her sons when he was just 13 years old.