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THE PUBLICATION OF the final report of the Mother and Baby Homes Commission of Investigation has led to calls for criminal probes into the activities of religious-run institutions for unmarried mothers in Ireland.
The commission’s five-year investigation, published on Wednesday, found that around 9,000 children died in 18 different homes, where girls as young as 12 were admitted over seven decades.
It also found evidence of physical abuse and issues relating to the burial of children, and that private adoption placements of some children – although not illegal until the late 1990s – facilitated “illegal registrations of birth”.
Human rights charity Amnesty International was among those who called for criminal prosecutions in light of the report’s publication, citing unregistered deaths and higher levels of infant mortality in the institutions compared to wider society.
“One element of the right to redress in human rights law is the right to justice,” a spokeswoman for the group told TheJournal.ie.
“This means that the state must hold those who commit human rights abuses accountable, including through criminal investigation and prosecution where evidence allows.”
The charity also explained that it was not asking for a criminal investigation under specific legislation, because it said it believed that the abuses revealed in the report should not be limited in scope.
The Taoiseach revealed in his apology to survivors of the homes that the report has been sent to the Director of Public Prosecutions (DPP), and been examined by the Attorney General.
Micheál Martin also said that gardaí and the DPP can “pursue” some of the issues raised, although he did not specifically indicate whether this would take place.
How exactly would a criminal investigation into activities in the homes begin, and could it realistically happen?
Possible crimes
Given the findings contained within the commission’s report, there are no shortage of potential crimes that could be investigated.
The report makes specific reference to physical assaults, while cases could arguably be made for negligence leading to the deaths of children who lived in the homes, or the rape of underage girls before they lived in institutions.
Other possible crimes include whether vaccine trials involving children in some homes were carried out with their consent – an entire chapter of the Commission of Investigation into Mother and Baby Homes report deals with these trials.
But much of this is based on speculation, rather than specific evidence. A level of certainty would actually be required before a case or cases could be initiated.
The legislation that was broken would also need to be identified.
Dr Sinead Ring of Maynooth University, an expert in criminal law and evidence and victims’ studies, points out that gardaí could investigate crimes relating to child stealing under Section 56 of the Offences Against the Person Act 1861, or the common law offence of false imprisonment.
Although some of this legislation may no longer be valid, crimes can still be prosecuted under laws which were in place at the time they occurred.
For example, although the Offences Against the Person Act 1861 was repealed in 1997, a person can still be prosecuted under it if they committed a crime before then.
Ring also highlights that a criminal probe could also be carried out into state officials who had nothing to do with mother and baby homes.
“I see this a lot in my own research into historical child sexual abuse, where you often see gardaí who didn’t do anything when they were told about a crime of sexual abuse,” she explains.
“So there is a possibility that somebody like a garda could be prosecuted for that offence. But there hasn’t really been any actual cases taken against gardaí like this.”
Persons responsible
As well as identifying specific crimes, a prosecution would also involve identifying where crimes took place and who may have been responsible.
The latter is of particular importance, because criminal law is aimed at individuals rather than entire institutions.
That would mean taking a case against someone who was in authority when negligence leading to death occurred, or someone who carried out an assault.
And a suspect must still be alive in order to be prosecuted, something that would likely rule out charges being brought in the vast majority of cases, except those that occurred more recently.
However, Ring points out that there would be no time limit to bring a prosecution in relation to any crime, aside from carnal knowledge of a girl aged between 15 and 17 under the Criminal Law Amendment Act 1935, where a limit of twelve months applies.
Even then, the statute of limitations could theoretically be circumvented if legislation was amended to dis-apply it.
In a statement this week, the Clann Project – a group founded to establish what happened to unmarried mothers and their children in Ireland during the 20th century – called for the Statute of Limitations Act 1957 to be amended to allow justice to occur.
The group cited a precedent in the UK, where section 33 of the Limitation Act 1980 allows a court to dis-apply the statute of limitations where “it would be equitable to allow an action to proceed”.
They also urged the State to direct the Chief State Solicitor and State Claims Agency not to plead the Statute of Limitations in institutional abuse cases.
“The Courts will retain their residual discretion to refuse to allow cases to proceed where it would not be in the interests of justice,” the group said.
Use of records
If a living suspect could be identified for a potential crime at a specific time, another factor in the prosecution would be the burden of proof.
Unlike civil cases, where the standard of proof is based on the balance of probabilities, criminal cases require a crime to be proven beyond a reasonable doubt.
So if prosecutors could identify an individual, they would need to believe the case against them was definite by having enough evidence to initiate a prosecution.
In such a scenario, there is a question of how gardaí could access evidence to investigate a potential crime.
Speaking on Morning Ireland on Wednesday, Clann Project co-director Maeve O’Rourke said that because survivors did not have access to the records held by religious institutions, it could prevent them from pressing for criminal charges.
Although certain files relating to personal records from religious-run homes will be sent to the Department of Children, many others will be retained by the orders.
Ring explains that access to records held by institutions would be key to any potential prosecution.
“It’s bound up intimately with the question of the administrative files and the information relating to adoption that’s in the possession of the religious orders,” she says.
“But the government has to date refused to legislate to provide for those records to be taken into the possession of the State, and there’s still no real discussion about that.”
However, although the process would be easier if files were taken into the possession of the State, this would not necessarily need to happen for a prosecution to occur.
Because the Catholic Church is subject to civil law, garda investigators could obtain a search warrant from a judge to access some files on foot of a criminal complaint.
“There is no reason why gardaí wouldn’t be able to get a search warrant if they were investigating a crime and were able to show the judge that they were able to satisfy the requirements of the warrant,” Ring adds.
There is some precedent for this abroad: warrants have previously been used to access church files as part of criminal investigations in the US, the UK, Australia and Belgium.
Specialist unit
Gardaí could play an alternative role in helping to initiate investigations.
Clann Project also called for a standalone unit to be set up within An Garda Síochána to facilitate survivors of mother and baby homes.
A unit like this, staffed by specially trained gardaí, could provide a more welcome outlet for survivors to make allegations, which could in turn provide officers with a firm basis on which to kickstart an investigation into suspected criminal offences.
Inquests could be another route.
Doireann Ansbro, Head of Legal and Policy at the Irish Council for Civil Liberties, is among those who has called for exhumation at Tuam and other sites where human remains have been found or are suspected of being buried.
“The record of unexplained deaths and the extraordinary mortality rates in these institutions is truly shocking,” she said.
Under the Coroners Act 1962, coroners have obligation to hold an inquest where an unexplained or suspicious death occurs.
Hypothetically, such an inquest could return a verdict of manslaughter due to criminal negligence, which could then put pressure on gardaí to investigate the person or people responsible.
Dr Vicky Conway, Associate Professor at the School of Law and Government at Dublin City University highlights the inquest into the Hillsborough stadium disaster in 1989 as an example of where this occurred elsewhere.
She also tells TheJournal.ie that there is “no doubt” that inquests are legally required in relation to the unexplained deaths in mother and baby homes, particularly in light of the high mortality rates in the institutions and the fact that they were places of care.
“I am very clearly of the view that any coroner who fails to hold inquests is failing to perform their duty,” Conway says.
“This relates to a large number of coroners in every relevant district, and it would take unprecedented resources to hold. But they are mandated to do so by law.”
However, whether any investigation or inquest ever takes place may depend on the willingness of authorities to push for them to be carried out.
“If the will is there, and the resources are put into it, absolutely it could happen,” Ring concludes.
“It’s very clear that thousands of women and children have been directly harmed, and crimes have possibly taken place. We can’t just say it’s too difficult to try.”
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I think the fact she was a palliative care nurse says it all.
Apparently the clinic are giving a two for one discount next week.
She was 72 too, not exactly a spring chicken.
would this void her life insurance/assurance?
@Lily. You would not say that if you were 62 !
Her age is not the point…she was healthy. Personally I totally agreed with euthanasia but I struggle to understand why one would do that while healthy, husband/partner still alive, kids and possibly grandchildren?
Look when im old, I’ll admit im old. age doesn’t bother me. She had 72 good years and made her choice, its not like she was 20 with her whole life ahead of her. I don’t know what choice I would make, I hope I am lucky enough to live to 72 but I really have no desire to life past 100 where all my friends will be dead and possibly my kids too. I just hope I go before my kids. Perhaps that was her fear too.
Yes but obviously if she did this on a considered basis (as required by Dignitas) she would not have been paying life insurance premia.
I think she was crazy. If she was healthy then she should have stuck around. We have a duty to our loved ones to stick around. We may all be physically separate entities but we are psychologically and emotionally entangled.
Her life, her choice.
This is probably wrong, considering she was healthy and given the fact that by law, any person with sound state of mind has a choice to refuse the treatment in any illness (so she could have done this to avoid being burden on health service or family if ill)
vaibhav , if she did become ill then yes she could’ve refused treatment , you are correct there but then she would still need care from her family and health services which I guess she wanted to avoid . her decision but I think it was a wrong one to make
yup, but no one can predict when one gets ill, she could have lived/outlived family members and probably could have gotten the chance to care for them instead. Infinite possibilities..
So she would rather break her family’s heart than be a burden on the health system.. Sounds strange to me.. I don’t how I would justify that to my loved ones
How do we know she wasn’t coerced? She seems to have believed that her life was not worthy. Maybe this was a result of an abusive relationship in which she was constantly told she was worthless. Did dignitas investigate this?
I know it’s all speculation, but so are all the comments supporting this action.
Her choice AM. I mean we are at a stage now where we are free to decide who we want in our lives and when we want to end it. Be it 17 weeks or 75 years, we now can choose. x
The brave husband drove through hurricanes tornadoes and natural disasters to get her there on time.
He was on time for the first time in his life bystanders said…. lol
Speaking from Las Vegas, the distraught husband with his twenty something companion in toe said he would try and move on.
Maybe doogle. But the information provided stated that her reason was that she didn’t want to be a burden. She was perfectly healthy . Why do perfectly healthy people feel they’re a burden on society? If she had said that she’d lived long enough and done what she wanted in life, I would have thought, ok, a bit selfish, but …. However when a person decides to take their life because they feel they are a burden, there could well be other issues involved.
Obviously none of us knows the whole story. So, the ‘it was her choice’ narrative is as speculative as mine.
Asked whether or not his wife was a burden, the husband said that of course his beloved was not, but is just glad its all over now and there is peace.
Her choice. Her husband didn’t sway her but a book on negotiation and persuading people was found on his bedside locker. A burden AM? Her choice. it’s free choice these days. Sure you have 26 week old peps who are a burden and their disposed of.
According to other news reports, there is a spike in inquiries from husbands around Europe for leaflets and information. The clinic are reporting a ‘brisk’ trade on bookings.
It may be your view Suzie that it was a wrong decision to make, but then what would you do if it was your elderly mother perhaps unconscious for weeks and months in hospital after a stroke and being fed through a peg in her stomach. What would you do if the doctors told you that she will probably never regain consciousness and then phoned you one day to say that your mother had pulled out the peg on more than one occasion. Would you force her to stay alive or would you let her die as it appeared her wish.
@chris – what you do if you were asked to give up your dreams for freedom?
Thankyou SY, the example I gave above was my mother.
Chris , in very sorry to hear about your mam , I watched my father die and he fought right up until his last breath to live . I wouldn’t wish it on anyone to have to go through it . this situation is different though , she was healthy and she could’ve had at least another 10 years in her . u don’t agree with what she did at all .
Well Suzie, I can’t answer that because every situation is different and hugely personal to individual circumstances. In a perfect world I wouldn’t want to make a choice, but one never really knows until it happens to someone close to you that perhaps a happy release is better for everyone concerned. Thinking back to my own situation I feel that we did the right thing in letting go.
Chris , we also told my father that it was OK to go but I have to say , going through what he went through I would fully support a decision that this woman took but not when you’re healthy
marty. ….Well put
“Her life, her choice.”!!!
It’s hard to get more simplistic and shallow than that!
Suicide prevention is an urgent concern in this country (and rightly so).
Yet “assisted” suicide seems to be accepted by many as worthy of support???
Seems to me that rationality is one of the first casualties in this debate!
Why not wait if perfectly healthy? Surely being healthy and having a loving family is better than dying prematurely? Very strange decision, but we probably only have half the story.
The husband was very supportive in her decision.
Her husband fully understood and respected her decision. He was unavailable for comment but a close friend says he is trying to live his life to the full
She has probably seen people grow old and it scared her. They lose their senses, their physical ability. Their families dump them in homes and hospitals and rarely visit them. No one takes them seriously and in some cases they get treated horrendously. They are at the mercy of every crook and conman and the only time they see their family is when they are checking on their inheritance. She was a realist and knew that the western world is a lonely and scary place to be old.
Maybe he’s going to inherit the family fortune now.
@John Michael. Its true. Its gas looking at families wandering around Nursing Homes on Christmas Eve pretending they know which room Granny is in. Its the only day of the year when the car park is full !
I lost my mam to suicide a few years ago. I don’t agree with this at all. The fact that someone thinks they will become a burden on society and others is a sad reflection on a broken society. I’d never want anyone to feel this way or help facilitate someone else to do this. My mother made her decision and followed through on it herself and I love her and forgive her but I would hate for someone to pressure me into helping them with this. Please please please talk to someone first before doing anything like this, you just don’t know how important you are to someone out there. There are lots of helplines and people to go to. It’s never the answer!
I’d never consider it for myself even if I were terminal… But that’s my call to make. You never know what’s going through somebody’s mind and if she didn’t have that choice would she have committed suicide instead?
She did die by suicide. Just in an institution.
pokey….Have you walked in your mum’s shoes? …….Do you know what is like to hate living? …..Or feel no pleasure in anything? ….Your mom wasn’t being selfish. ..She was probably being true to her own wants for the first time in years. We don’t want all to continue living because the choice not to would inconvenience so called loved ones
On an individual level I believe this was an altruistic, well intentioned deed – though I can’t agree with it. I didn’t realise Dignitas facilitated healthy people in ending their lives and I condemn them for that.
She decided to die by suicide. She did it in a very public way asking her family and friends to be ok with it, both personally and in public. So it may be her decision but it did affect, hurt and bereave others. It asked a huge amount from those who loved her, in the name of sparing them and herself pain.
I get that it’s a personal choice but it is never just about the person who dies. Others carry their pain afterwards.
Surely every person owns their own life
@Richard. Would you give the same advice to a 17 year old who feels they’re currently a burden on their family and society?
Life is there to be loved, cherished and enjoyed. I see no problem with people who are terminally ill, and suffering in severe pain because of it, utilising euthanasia. Only in those circumstances though
Sorry Todd but you can deny a perfectly healthy young person the right to die.
We’re not talking about 17yr olds. Suicide in that age group is a very serious issue.
I dont think you can compare the two.
Your right Gerry, apparently 53 is the cut off point.
Anne: Then you’re dictating their choice by forcefully keeping them alive. Euthanasia doesn’t merely cover sick people. It’s also for people seeking to end their life (which they have a right to do).
Reg, why is age the measure of health all of a sudden?
I disagree Richard. We are all each other.
So she choose to end her otherwise healthy life for economic reasons, seems reasonable.WTF were the individuals thinking that facilitated this?
Freedom of choice Norm.
Just as you choose to be an @## hole, but I fully support your choice.; )
? That’s the roids talking
No just my opinion, right up there with personal choice.Don’t take ‘roids bad for the body.
Where did that little outburst come from? Anyway, it’s a person’s choice to end their life like in this instance.
A summation of the idiocy I have seen you post on this site today, including this article.Now you have good one.; )
You were nicer when you where chubby Norm. You idiot.
Interesting name you choose to post under ‘Emma’.Once an a## hole always an a## hole. lol.
I see you have been outed as both Reg/Jane aswell.Hope the young girl who’s picture you lifted is ok about it.
75 is too young, if you’re in good health, to be considering this. I have parents and other relatives in their late 70s and 80s that are vital people, enjoying their lives. I hope this lady reconsiders.
The woman is dead
Damn. Missed that bit.
She might reconsider yet Daisy baby. They reckon her husband was right behind her decision. I’m all for it. Pro choice for all!
Do you always reply first and read the post second?
It’s her life. ..nobody else’s. …If she wants out she’s being unselfish to others who probably dont give a toss anyway
I am all for euthanasia if someone is terminally ill or has no quality of life. I think in many years to come it will be common practice too. I don’t understand how a healthy person could make that decision for herself but I’d assume what she has seem in her line of work has greatly influenced her decision.
Nobody can safely assume she was “influenced” by her line of work.
Her choice and hers alone. She went on her own terms, being a palliative nurse she most likely saw others suffering terribly and wanted none of it.
Euthanasia when healthy or ill must be an issue that will confront societies in the West as the baby boomers get older. I think laws in many Western countries will – and should – change to facilitate euthanasia to some degree.
I fully support assisted suicide but only in the circumstances of terminally ill or chronic pain where medication could not assist. If we go down the road of allowing assisted suicide for people who are burdens of the state we begin to look at people on the dole and others that do not contribute to the economy. A bit of a stretch but that’s where it could end up.
they you’re dictating their choice.
Want to try that again?
Why dont they just call it assisted suicide.useing a medical term does not make it sound any better
what the hell type of poll is this??
the social and cultural engineering is being laid on thick and fast lately.
right now young kids in school are being brain washed that they are destroying the planet, brainwashed about sexuality etc. its not impossible to see a 17 year old after years of indoctrination being convinced they would be better off dead…………and then there will be calls to allow euthanasia in that case.
the topic of euthanasia is a tricky one…………….its 1 thing if someone is terminally ill and in constant pain but its a different matter if a person is healthy yet somehow disturbed.
that person needs help………..not euthanasia.
100% john. Few see the real intent behind this kind of poll.
There are plenty of healthy, happy and active people out there at 75. So if you retire at 66 you have like 9 years before you become a burden??
That’s very disturbing … Could pave the way for unscrupulous relatives of vulnerable elderly people …
Absolutely outrageous thing to do. Utterly selfish action dressed up as not wanting to be a burden. Imagine being married to a healthy woman and she’d rather die than be with you.
The liberal will not end until every sacred bastion is not only turned on its head, but utterly destroyed
A little extreme in this case if she was going well, however , if this were going down hill I would prefer to move on swiftly and without the trauma of a prolonged ending.
Supporting euthanasia is the same as supporting suicide. All life is precious and no one has the right to decide to take it away.
Who are you to decide if someone can end their life or not?
LIKE ABORTION AS WELL?
What a load of religious tosh
Welcome to the Brave New World!
I believe it’s called suicide.
gripping subject but pointless poll!! the option of if I was terminally ill is redundant since the question asks would you chose euthanasia if healthy!!! you can’t be both!!!.
Fair play to her. She lived her life. The way some families act to keep elderly relations alive for as long as is medically possible is a disgrace. I don’t want anyone wiping my ***. Personally I would much prefer the money to be spent on sick children.
I am also a nurse in a similar job. The Journal question is misleading. This lady was not healthy, ok,she did not have a terminal illness but her quality of life through other illnesses and pain had deteriorated and she did not want to become housebound and wait for the inevitable to occur. She wanted to take control and plan her own death. That we should have to leave that in the hands of others is no longer acceptable to me. One very brave lady
Perhaps she knew something the rest of the family didn’t, it’s a hard call to make for someone who is sound of mind and body. Suicides usually have some impetus to do what they do but to make a rational decision to do this goes against the natural way of things.
Its one thing if you are suffering from a gruesome disease, with no chance of recovery but if your in good health it is a bad idea that would only encourage heartless relatives to nag you until you feel you have no choice but to jump into the arms of that Grim Reaper shyster, whom we will all meet one day, but why rush it if you are in good health.
I THINK IF HER FAMILY WERE A LITTLE MORE LOVING THEN SHE MIGHTN’T HAVE CHOSEN THAT?
If I No longer want to be here No one will stop me from leaving
Another idiotic neo-libtard idea.
Murdering people because they need help in their old age.
What’s next?
Glanbia proposes to reprocess the “waste”?
I would disagree that she was “healthy”. In my honest opinion and with the greatest of respect to the lady and her family, I think that she must have had mental issues.
Isn’t that really just suicide?
Colm You can also die with dignity
Bollocks to “dignity”. Let that German doctor who did live dissection a few years back dissect me on live TV. If one person watching my body get sliced is inspired to become a doctor & save lives, then that is a far higher dignity.
Dignity? Cowardice more like.
No. If I know I’m to die, I will die fighting. An enemy, an illness, if by my death others may live or doctors can cure others, then that’s how I go.
We are all going to die one day. You can die crying or die fighting. Your choice.
You live your life as you see fit
let her end hers as she sees fit to
have your say