Ms Rachel Woods:

I thank the committee for the opportunity to present the Department of Justice's views on this Private Member's Bill. As the committee will be aware, during the debate on Second Stage, the Government did not oppose the Bill. In his remarks the Minister of State, Deputy Browne, noted the Government's support for the objectives of the Bill, which aims to create an offence of requiring or accepting sex as a condition of accommodation or of facilitating same. Both the Minister for Justice, Deputy McEntee, and the Minister for Housing, Local Government and Heritage, Deputy O’Brien, are engaging on how best to address this unacceptable behaviour and are in agreement with the principle of Deputy O'Callaghan's Bill. The Attorney General has advised there are some concerns of a legal and drafting nature to be addressed to ensure it is legally sound and achieves its objectives. The Minister of State outlined those concerns on Second Stage and they are detailed in the Department's submission, so I will not go over them again. I will just reiterate that any agreement to pay for accommodation with sexual acts is invalid and not enforceable under contract law. Additionally, sexual offences legislation makes it abundantly clear that consent must be freely and voluntarily given. Submission when a person is forced or has no other choice is not the same as consent, and sex without consent is rape and punishable on conviction by up to life imprisonment.

The Department agrees with Deputy O'Callaghan and other stakeholders here, including Rape Crisis Network Ireland, that the behaviour this Bill aims to target is unacceptable and exploitative and should be subject to criminal sanction. The Minister recognises there is a gap in the law here that has to be addressed, so any concerns we express are just about the manner in which that gap should be addressed. The Department has some concern that the level of the penalty proposed risks blurring the lines between a sexual act which takes place in an exploitative situation and a non-consensual sexual act. The proposed seven-year penalty in the Bill approaches that for sexual assault. It may be that the offence we are considering is more closely aligned to the offence of purchasing sexual services, which is one of exploitation targeted at people, predominantly women, in vulnerable and sometimes desperate circumstances. The penalty for that offence, however, is considerably lower.

The Department has highlighted the need to ensure any new offence created in this area takes account of the existing legislative framework. The Department believes further consideration is required in that regard. In that respect, the committee may wish to note that a review is under way of Part 4 of the Criminal Law (Sexual Offences) Act 2017, which deals with the purchase of sexual services. Recommendations on strengthening the safety and well-being of persons who engage in sexual activity for payment are awaited and will inform further legislative efforts in this area.