The case that convulsed a nation

Sat, Feb 4, 2012, 00:00

ON FEBRUARY 12TH, 1992, a short report appeared on the front of The Irish Times:“State Attempts to Stop Girl’s Abortion.” The careful 235 words were almost lost in the surrounding headlines about Albert Reynolds’ dramatic first day as taoiseach, when he sacked eight of 12 serving ministers.

Years later, his press secretary, Sean Duignan, recalled reporting for work to his new boss, only to find him upended by a file that had just landed on his desk. It was called the “X case”. “I don’t believe it,” said Reynolds. “How could this happen to me on my very first day?”

If Reynolds thought he had problems, they were nothing compared with those of Miss X herself, a convent schoolgirl, barely 14, the child of a “highly respected, middle-class” family, in the words of a garda. Only days before, her parents had learned that the father of one of her schoolfriends had been sexually abusing her since she was 12, a violation that culminated in full intercourse in December 1991. An act “to which she did not consent”, at the hands of a “depraved and evil man”, in the words of a subsequent court judgment.

In January, the girl discovered she was pregnant, and arrangements were made to travel to London for an abortion. This would have proceeded quietly had the parents not sought Garda advice on having the foetus tested for DNA to help subsequent criminal proceedings. The DPP was informed. They were already in London by the time the Attorney General, Harry Whelehan, was racing to the High Court, where he obtained an interim injunction prohibiting the child from leaving the jurisdiction for nine months. The family voluntarily returned to Ireland when told of this. By then, the girl was so distressed that a clinical psychologist was expressing serious concerns about her, and she was placed under medical supervision.

The AG had little choice. In an RTÉ documentary many years later, he said the problem “was stark. There was an unborn child with a constitutional right to life. There was nobody to advocate the right of that child to be born other than the attorney general.

“I don’t want this to sound harsh, but where the mother of the child who is entitled to have its life protected decided to seek an abortion, the only mechanism in our system is for the attorney general to intervene and to make a case for the child to be born alive.”

He was in a lonely place. But in a country steeped in moral fudge and rank political cowardice, convulsed by the effective internment of a pregnant child on the island amid reports of Garda plans to block the airports and watch the ferries, all against a backbeat of global outrage, many questioned the political wisdom of injuncting someone from leaving the country who had already left.

Ailbhe Smyth, then a UCD lecturer, remembers the sense of shock and fury about the Republic’s message to its female citizens. “I can’t remember a time when there was such a spontaneous outburst of absolute rage . . . It was control gone out of control.”

People had fought for these laws, she said, and could now “see themselves in the mirror, could see they had done something terrible, wrecked someone’s life”. Not everyone, of course. Across the country, arguments raged about zygotes, embryos and even how a 12-year-old could look so mature in full make-up nowadays and “ensnare” a grown man.

Sean Duignan summed up the politicians’ difficulty. The problem was that Whelehan had refused to think like them. “Both sides of the House were adamant that Harry should have taken advice. What they really meant by that is that he should have delayed . . . that the file should have dropped behind a radiator or whatever and he should have delayed at least until the girl was out of the country and she had her abortion . . . that it was all done and dusted and the most important thing was that it would be finished outside the jurisdiction.” The classic Irish solution to an Irish problem.

Marches, demonstrations and vigils extended from Dublin to Irish Embassies and Consulates around the world. In the Netherlands, politicians demanded that their leaders lodge a protest at this “gross violation of human rights”. A leading Australian senator called Ireland’s law “barbarous”. The French newspaper Libérationsaid it put a question mark over Ireland’s membership of the EC. Swedish politicians called for the cancellation of a royal visit to Ireland.

Gardaí seized thousands of copies of the Guardiannewspaper at Dublin Airport on the basis that it contained an advertisement for abortion services. They were also investigating the London Independentfor publishing the telephone number of the Irishwomen’s Abortion Support Group. A Labour councillor, Joan Burton, drew attention to the removal – on legal advice – of popular women’s health guides from Dublin city libraries.

Back at Government Buildings, Duignan was cringing while briefing foreign correspondents. “I was running a weekly briefing session for foreign, largely UK correspondents, and these weekly briefings quickly deteriorated into a weekly humiliation zone, most certainly embarrassments.”

In March, after the interim injunction was made permanent by Mr Justice Costello, the family appealed it to the Supreme Court. Evidence was given by the psychologist of the girl’s suicidal state, and the court, in a majority ruling, allowed the appeal, permitting the girl to travel for an abortion. She was later reported to have had a spontaneous miscarriage in an English hospital.

The effect of that decision, making the threat of suicide a ground for abortion, reverberates to this day. Twenty years on, amid a score of promises made and broken, that judgment has not been legislated for.

NONETHELESS, THE SITUATION“has moved on hugely”, says Senator Ivana Bacik, who has been central to many of these battles. “Polls taken show the majority are now in the middle, supporting legalised abortion at least in certain circumstances. And there is much less rigidity on the anti-choice side, which is only a small minority now.”

Niall Behan of the Irish Family Planning Association, which took three cases to the European Court of Human Rights and triggered the recent appointment of an expert group on the issue, talks of a long, long road to here. Two attempts to roll back the X case judgments in referendums were rejected by the people, and large majorities voted yes in the referendum on information and the right to travel. The series of Oireatchas committees set up to consider action on the judgment, each of which made a series of recommendations, none of which has been introduced.

“We’ve had a whole range of UN human-rights bodies, all extremely critical of Ireland. Recently, we had the UN committee on torture asking questions. The big thing to come out of the European Court of Human Rights is that its judgment agreed with the Supreme Court – that there needs to be a mechanism to give effect to the X judgment. In doing that, it looked back on the Oireachtas committees and was basically asking, ‘Why haven’t you done this?’ Now we have the expert group, tasked to come up with recommendations around how we can give effect to the European Court of Human Rights decision. What it cannot do is come out with a menu of options, so they have to come up with something fairly substantive.”

Does Behan foresee more traumatic battles ahead? “We’re still talking about limited grounds for abortion, where a woman’s life is at risk. Even after legislation, we would still have one of the most restrictive abortion laws in Europe. The X case is pretty specific. Constitutionally, we can’t bring in legislation like they have in the UK.”

He is confident that the floodgates would not be opened. “In Switzerland, the abortion rate dropped because the year after it was decriminalised they also introduced education and access programmes . . . But the point is that we have an abortion rate here whether we like it or not. About 4,000 women go to England every year. It may be more. But we’ve seen numbers dropping over the last few years, probably because of better education and access to contraception and emergency contraception. It shows that criminalisation is not the way to go if you want to reduce abortion rates.”

The expert group has been told to report in six months – a short time frame, says Ivana Bacik approvingly. But meanwhile, Ireland is in violation of the European Convention on Human Rights. “We’re outside the convention family, so women’s rights are being violated,” says Behan.

Miss X is 34 years old now. A day rarely goes by when Ailbhe Smyth doesn’t think of her. “She is part of my history . . . I wish her well.” Her anonymity has been respected. As was the perpetrator’s – until March 2002, when he was sentenced to three and a half years for the kidnap and sexual assault of a 15-year-old girl who had hailed his taxi.

Back in 1992, when charged with unlawful carnal knowledge of Miss X, he delayed the trial for more than two years amid legal arguments that he could not have a fair trial. In the trial, he tried to pin the blame for Miss X’s pregnancy on a young local boy until DNA evidence drawn from the miscarried foetus proved decisive. A total sentence of 14 years was subsequently reduced to four by the Court of Criminal Appeal, mainly on the basis that he was unlikely to reoffend and had emerged from psychiatric reports as “a hard-working good family man”.

Much was made in the judgment of the sufferring caused by the loss of his business as a result of the case. The learned judges also emphasised the distinction made by the man’s counsel “between this case, serious though it is, and a case of out-and-out rape”. At no stage in the process was there any discussion of the coercion implicit in a sexual assault on a 12-year-old by a middle-aged man.

He was released in May 1997. Just over two years later he attacked the 15-year-old girl in his taxi.