A Cheann Chomhairle, Deputies,
I move that the Bill be read a second time.
I know that many Deputies on all sides of this House have been following this Bill since its publication in September of last year and are anxious to see it progress so it's good that the Bill is before the House today.
I have also been determined to see this Bill progressed and I am determined
to see it enacted.
Everything I have seen, experienced and encountered in my career to date
convinces me that this Bill is essential. As a former social worker, an
advocate and campaigner for the rights of women, as a former Minister for
Children, I am certain this bill is urgent, necessary and contains the
right laws for these times. Laws that will protect victims of the most
vicious and depraved crimes.
Last week’s CSO Crime Figures showed that Sexual Offences are up 13% on the
same period last year. We cannot tolerate such crimes and I am determined
to meet this challenge head on.
This is the most comprehensive and wide ranging piece of sexual offences
legislation to be introduced in almost a decade. Earlier this week, I
spoke at a seminar by the Children’s Rights Alliance on the theme of
advancing children’s rights through this Bill. The support and welcome for
this Bill was clear to everyone. This Bill owes so much to the contribution
of many people and organisations across civil society. I would like to put
on the record my appreciation to all of those who made representations or
submissions to myself, to my Department or to Oireachtas Committees.
Those contributions are reflected in the provisions of this Bill which
include strengthening our existing laws to combat child pornography, new
measures to combat the sexual grooming of children, the updating of our
laws in relation to incest and indecent exposure as well as the amendments
to the Criminal Evidence Act 1992 which focus on the victims of sexual
offences.
Other measures to protect victims of sexual offences include the
introduction of harassment orders prohibiting convicted offenders from
contact with their victim.
The Bill also makes provision for the repeal and replacement of section 5
of the Criminal Law (Sexual Offences) Act 1993 in relation to the
protection of mentally impaired persons. The 1993 provision adopted an
overly paternalistic attitude and status based approach to the protection
of persons with mental disabilities. The provision in this Bill adopts a
very different approach and looks to the capacity of the person to consent.
It does not presume that the existence of a disability implies a lack of
capacity to consent.
Finally, the Bill criminalises the purchase of sexual services. I am
convinced that these provisions are necessary to tackle the exploitation
associated with prostitution.
As well as implementing the recommendations of a number of Oireachtas
Committees, this Bill brings Irish law into line with our international
obligations.
Provisions approved for inclusion – provisions to amend and update the Sex
Offenders Act 2001 - are absent from the Bill, but have not been discarded.
Legal issues which arose during the drafting of this Bill as well as the
need to update the provisions to reflect operational advancements have been
the primary cause for this absence. However, most of those matters are now
resolved and those provisions are to be brought forward as a separate piece
of legislation amending the Sex Offenders Act 2001.
Turning to the Bill. Given the wide-ranging nature of this Bill, I don’t
propose to outline every aspect and detail but I would like to draw the
attention of the House to the main proposals contained within.
In my view the provisions contained in Part 2 of this Bill which address
the sexual exploitation of children are among the most important criminal
law provisions to be brought forward. We must take every step to combat
those who engage in the sexual exploitation of children or in those
activities which support and promote the sexual exploitation of children.
While we already have significant legislation in place to target those who
prey on children, the provisions under Part 2 are a further step.
Contained in this Part are measures which strengthen existing law in the
area of child pornography as well as new offences targeting child sexual
grooming which focus on those who use modern technologies to engage with
children with the purpose ultimately of sexually exploiting those children.
I would like, at this stage, to acknowledge that matters addressed in Part
2 of this Bill were also the subject of a Private Member’s Bill brought
forward by Minister for State Corcoran Kennedy in this House. That Bill
and the provisions before the House today have the shared goal of removing
any gap in the law which can be exploited by those who would prey on
children for the purpose of sexually exploiting or corrupting a child.
Turning to Part 2 of the Bill. Section 3 contains an offence of obtaining
or providing a child for the purpose of sexual exploitation. This offence
builds on the existing offence of sexual exploitation under the Child
Trafficking and Pornography Act 1998. In terms of paying a child or
another person for the purpose of sexually exploiting a child the provision
is clear that such would include “any other form of remuneration or
consideration” - so not just monetary remuneration. For example, the
giving of a computer game or such to a child would fall under the
provisions of this section. The section also criminalises offering a child
or obtaining a child without reference to monetary or other form of
remuneration.
In order to target, at the earliest possible point, any intention to
exploit a child, it is important that the law sets out in detail those
initial acts or steps a predator may take to gain access to a child.
What constitutes sexual exploitation is defined in section 2 and includes
engaging a child in prostitution or child pornography, the commission of a
sexual offence against the child or causing another person to commit such
an offence.
In line with the offence of sexual exploitation under the 1998 Act, and the
requirements of an EU Directive on combating the sexual abuse and sexual
exploitation of children, the offences targeting these pre-emptive steps to
the exploitation of children apply to children up to the age of 18 years.
Section 4 closes a possible gap in existing law in relation to the sexual
assault of children. Under the law as it stands, a child under the age of
15 years cannot consent to an act which would amount to sexual assault.
While the intimate touching of a child would amount to sexual assault, this
section clarifies that a person who invites a child to touch them or
another person is committing an offence. The penalty of up to 14 years is
the same as for sexual assault.
Sections 5, 6, 7 and 8 are offences connected with the sexual grooming of
children. Sections 5 and 6 provide for offences relating to sexual
activity in the presence of a child or causing a child to watch sexual
activity. Familiarising children with such activity or material can take
place during the early stages of the predatory process leading to more
serious forms of child sexual exploitation.
Section 7 is an offence which targets the point at which initial contact
has been made with a child by a person intent on the sexual exploitation of
that child. The offence arises where the person then meets with the child
or makes arrangements to meet with the child. Again, this targets activity
prior to actual exploitation of a child.
Section 8 contains two new offences addressing the use of modern
communication technologies in the grooming and exploitation of children.
Modern communication technologies and social media generally are incredibly
useful tools for everyone. However, children and young people in
particular are vulnerable to unwanted and seemingly innocuous contact by
those who may prey on them. The offence under this section is an
acknowledgement of that risk. It criminalises the initial stages of
grooming where communication via, for instance, the internet is the first
step in facilitating the sexual exploitation of children. Section 8 offers
further protection to children from unwanted advances by including an
offence of sending sexually explicit material to a child by mobile or
internet communication.
The seriousness of these offences is reflected in the penalties which may
be imposed of between 10 and 14 years.
Sections 9 to 14 amend the Child Trafficking and Pornography Act 1998. As
a violation of every aspect of a child’s well-being and their rights,
little compares with the manufacture, organisation, publication and
dissemination of child pornography. While there are already significant
offences under Irish law relating to child abuse material or child
pornography as defined under the 1998 Act, we must remain open to examine
and consider all possible steps which can be taken to strengthen those
provisions. This Bill will introduce a number of new offences which will
see recruiting or causing a child to participate in a pornographic
performance becoming a specific offence.
Child pornography is increasingly a technology-enabled crime and we must
identify and combat new means of disseminating this form of child abuse
material. To that end, the Sexual Offences Bill will introduce a specific
offence of attending a pornographic performance involving a child. Very
importantly, attendance is defined in the Bill as including viewing a live
feed by means of information and communication technology.
I would also like to draw attention to the provisions in sections 16 and 17
of the Bill which provide for offences of a sexual act with a child below
the age of 15 and 17 respectively. These offences replace the existing
defilement offences under the Criminal Law (Sexual Offences) Act 2006.
There are two notable amendments to the existing offences. Firstly, there
is a change in relation to the defence of ‘mistake as to age’.
Under the 2006 Act, an accused could rely on a defence of honest belief as
to the age of the complainant. This is a subjective test requiring the
accused to prove that he or she honestly believed that the other party had
not reached the specified age.
Under this Bill, the defence will be one of reasonable mistake as to the
age of the complainant. This is an objective test under which the court
shall consider whether in the circumstances of the case a reasonable person
would have concluded that the child had attained the required age.
The second issue I would like to highlight is the recognition in the Bill
of under age, consensual, peer relationships through the introduction of a
‘proximity of age’ defence. Under this provision, a person charged with an
offence of engaging in a sexual act with a person between the ages of 15
and 17 years can rely on a defence where the act is consensual,
non-exploitative and the age difference is no more than two years.
All of the provisions in Part 2 of the Bill have been carefully developed
to offer the fullest and most extensive protection possible to children.
Part 3 of the Bill contains the offence which will replace section 5 of the
Criminal Law (Sexual Offences) Act 1993 I mentioned earlier.
Under that section, it is an offence to engage in an act consisting of
sexual intercourse or buggery with a “person incapable of living an
independent life or of guarding against serious exploitation”, regardless
of whether the person consents or not. The offence facilitates prosecution
in that there is no need to prove lack of consent. However, it does not
make allowance for the fact that a person who may need assistance on a day
to day basis may nonetheless be capable of giving consent to a sexual act
and, in this respect, it fails to respect the autonomy of individuals based
solely on their status rather than capacity. The new offence under section
21 of the Bill moves away from the status based approach of the 1993 Act.
In order to identify those who require protection, a functional test as to
the capacity of a person with a mental or intellectual disability or a
mental illness has been adopted. Under the provision, an offence will
arise where someone engages in a sexual act with a person they know lacks
the capacity to consent to the sexual act by reasons of a mental or
intellectual disability or mental health illness.
This provision seeks to strike the necessary balance; to ensure that
appropriate protection is available to those who need it while respecting
full participation in society of persons with disabilities.
Part 4 of the Bill deals with the criminalisation of the purchase of sexual
services. Members are aware that this is a matter which has already been
the subject of considerable debate both inside and outside these Houses,
and indeed beyond this State.
The two offences contained in the Bill – the first a general offence of
paying to engage in sexual activity with a prostitute and the second the
more serious offence of paying to engage in sexual activity with a
trafficked person – are the result of considerable and extensive public
consultation by my Department and by the Joint Oireachtas Committee on
Justice, Defence and Equality which recommended similar proposals in 2013.
In making that recommendation the Justice Committee heard presentations
from 26 organisations and individuals and received over 800 written
submissions.
In deciding to put forward these provisions I would like to assure the
members of the House that I have considered all sides of the debate. I
have spoken, as have my officials, with representatives of both sides of
the debate. I have considered the experience of those states who have
introduced similar measures and those states who have addressed
prostitution in a different way.
Firstly, let me be clear as to what these provisions do. It will be an
offence for a person to pay, offer or promise to pay, a person for the
purpose of engaging in sexual activity with a prostitute. The person
providing the sexual service – the prostitute – will not be subject to an
offence.
The purpose of introducing these provisions is primarily to target the
trafficking and sexual exploitation of persons through prostitution. In
2014, the European Parliament adopted a resolution which states that demand
reduction should form part of an integrated strategy against trafficking in
the EU Member States. The Council of Europe has also recognised the
effectiveness of the criminalisation of the purchase of sexual services in
the fight against human trafficking. However, even to leave aside this
unquestionable objective, there is undoubtedly evidence of wider
exploitation of persons involved in prostitution, outside of those
trafficked, such as those coerced or otherwise forced, through
circumstances, to engage in the activity.
The most direct way of combating this form of exploitation is to send the
message to those who pay for these services, and who ignore the
exploitation of the women and men involved, that their behaviour is
unacceptable and contributes to the exploitation of other people.
Now, it has been argued that women and men can freely and voluntarily
provide these services without experiencing the exploitation widely and
normally associated with prostitution.
I have listened to all sides of the debate and I am convinced that to
target the exploitation associated with prostitution requires targeting
those who demand those services.
Part 5 of the Bill modernises and restates the law in relation to incest.
It corrects a gender anomaly with regard to the penalties for an offence of
incest by a male and incest by a female. Under this Part, both offences
will be subject to penalties of up to life imprisonment.
Part 6 of the Bill provides for a number of amendments to the Criminal
Evidence Act 1992 designed to support and protect victims of sexual
offences during the criminal trial process. Measures to further protect
child victims of sexual offences from any additional trauma during the
giving of evidence include giving evidence from behind a screen. Provision
is also included preventing a person accused of a sexual offence from
personally cross-examining a person under the age of 14 years of age unless
the interests of justice require such cross-examination. A court may also
direct that an accused may not personally cross-examine a child between the
ages of 14 and 18 years. Safeguards to protect the rights of the accused
to a fair trial are included such as directing the jury that no inferences
may be drawn from the fact that an accused has been prevented from
conducting such a cross-examination.
Following calls during the earlier debates on this Bill, I am looking at
extending some of these provisions to adult victims and appropriate
amendments will be brought forward.
Section 38 provides for the disclosure of third party records in certain
trials. The appropriateness of the disclosure of such records will be the
subject of a pre-trial hearing and any disclosure will, while respecting
the rights of an accused to a fair trial, take account of the right of a
victim of a sexual offence to privacy. Only records, or parts thereof,
necessary for the accused to defend the charges against him or her should
be disclosed. Again, during the debates in the Seanad, there were calls
for amendments to this section of the Bill which are also being examined.
Part 7 of the Bill amends existing jurisdiction legislation so that the
provisions which allow the prosecution of offences committed outside the
State by citizens of the State or by persons ordinarily resident in the
State will be extended to a number of the offences introduced under Parts 2
and 3 of this Bill.
I would like to draw attention to two provisions in Part 8 of the Bill.
Section 44 contains an offence of exposure and offensive conduct of a
sexual nature. The existing offence of public indecency has been struck
down by the courts on the grounds of vagueness and the new offences
contained in section 44 clarify the acts and activities which give rise to
an offence.
Section 45 introduces harassment orders whereby a court can impose an order
prohibiting a convicted sex offender from contacting or approaching his
victim for a specified period of time. The order can be imposed at the
time of sentence or at any time prior to the offender’s release. The order
may be imposed where the court is satisfied that the offender has behaved
in such a way as to give rise to a well-founded fear that the victim may be
subject to harassment or unwanted contact by the offender such as would
give rise to fear, distress or alarm or amount to intimidation.
I think the House will agree that the provisions of this Bill are a
significant step forward in targeting those who would abuse children as
well as offering some further protection to victims of sexual offences.
I look forward to hearing and discussing all of these issues with the
members of the House today.
Before I finish, I would like to thank the members of this House many of
whom have contributed to the content of this Bill, be it through a Private
Members Bill, work on the Justice Committee or through representations and
submissions to my Department.
This Bill is also a reflection of advances in technology, research,
experience and debate. Regardless of the focus of the debate today or
later, inside this House or outside it, let us not forget the primary
purpose of this Bill.
Ceann Comhairle, members of the House, this Bill are built on my guiding
principle of putting victims at the heart of the criminal justice system.
It will substantially strengthen our law to target those who target our
most vulnerable – our children – and to send a message to all victims of
sexual offences that we recognise the unimaginable harm and trauma
inflicted upon you and we support you.
ENDS