Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I move amendment No. 103:

In page 34, between lines 2 and 3, to insert the following: “Amendment of Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016

54. Schedule 1 to the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 is amended—

(a) in Part 1, by the substitution of the following paragraph for paragraph 4:

“4. An offence referred to in—

(a) paragraph 8 of Part 2 (defilement of child under the age of 17 years), or

(b) paragraph 23, 24 or 25 of Part 2 in so far as it relates to an offence referred to in subparagraph (a),

committed prior to the commencement of section 17 of the Criminal Law (Sexual Offences) Act 2016 shall not be a sexual offence for the purposes of Part 2 of this Act if the person who is convicted of the offence was at the date of the commission of the offence, not more than 24 months older than the child with whom he or she engaged or attempted to engage in a sexual act within the meaning of section 1 of the Criminal Law (Sexual Offences) Act 2006.”.

(b) in Part 2—

(i) in paragraph 17—

(I) by the insertion of the following subparagraph after subparagraph (b):

“(ba) section 4A (organising etc. child prostitution or production of child pornography);”,

(II) by the insertion of the following subparagraph after subparagraph (c):

“(ca) section 5A (participation of child in pornographic performance);”,

and

(ii) by the insertion of the following paragraph after paragraph 22:

“22A. An offence under any of the following provisions of the Criminal Law (Sexual Offences) Act 2016:

(a) section 3 (obtaining, providing etc. a child for purpose of sexual exploitation),

(b) section 4 (invitation etc. to sexual touching),

(c) section 5 (sexual activity in presence of child),

(d) section 6 (causing child to watch sexual activity),

(e) section 7 (meeting child for purpose of sexual exploitation),

(f) section 8 (use of information and communication technology to facilitate sexual exploitation of child),

(g) section 21 (sexual act with protected person),

(h) section 22 (offence against relevant person by person in authority).”.”.

Again, the amendment is consequential. It makes changes to the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016. The Act limits the effect of certain criminal convictions by allowing them to be effectively spent after a specified period. Some sexual offences listed in Part 2 of Schedule 1 are excluded from that Act, so that a conviction for one of those sexual offences will not be considered as spent for the purposes of that Act. Paragraph (b) of the amendment will add some of the offences being created by the Bill to Part 2 of Schedule 1 of that Act and Part 1 of that Act effectively lists the circumstances under which certain sexual offences may not constitute a sexual offence for the purposes of the Act.

Currently, that applies where there is a difference of less than two years between the victim and the perpetrator in respect of the offence of engaging in a sexual act with a child under 17. Section 17 amends that offence to add the defence of proximity of age. A defendant will be able to rely on that defence where he or she is less than two years older than the child, is not a person in authority and there is no aspect of exploitation or intimidation. For that reason it is considered appropriate that the offence under section 3 should not avail of an additional proximity of age exemption for the purpose of a spent conviction, but the exemption is to be retained for the purpose of an offence committed before the Bill is enacted. That is the purpose of paragraph (a).