Brian Lenihan Jnr (Dublin West, Fianna Fail)

First, I should have said in reply to Deputy Ó Snodaigh in respect of the previous amendments that the question of a person who is a non-EU national and who has been given a period of recovery and reflection in the State is not contingent on a prosecution taking place. I have read into the record of the House and the Immigration, Residence and Protection Bill states that the period of recovery and reflection is given for the purpose of assisting the investigation or prosecution of an offence. Under the arrangement I intend to put in place on the enactment of this legislation and under the Bill when it is enacted, it will be possible for a person to get rest and reflection for the purpose of assisting an investigation. For example, it will be possible to do so for assisting the Garda Síochána in getting leads that may not necessarily result in a prosecution. It is important to put this on the record of the House. Deputy Ó Snodaigh raised this issue under the last amendments and it also is relevant and material to the consideration of the amendments under discussion.

As for the amendments in hand, Members spoke on this issue at some length on Committee Stage. I have given consideration to criminalising the activity envisaged in the first part of the amendment tabled by Deputy Naughten, that is, using the sexual services of a trafficked person, as well as in Deputy Rabbitte's amendments, which have a similar purpose. This issue received serious consideration when the legislation was being prepared. On the surface, the amendments appear reasonable but on closer scrutiny problems arise. Whatever about creating an offence of having sex with a trafficked person, my concern is for the alleged victim and one must make a judgment on what is in his or her best interest.

The first problem with the proposed offence is that the prosecution would be obliged to prove the accused knew that the alleged victim had been trafficked and this would be almost impossible. It is very difficult to see as a matter of proof how one could establish an offence, not only of purchasing sex but of purchasing sex from a person whom one knows to be a victim. The establishment of such knowledge as a matter of proof would be extremely difficult. I appreciate Deputy Coveney's point that Members have a function to make headline statements and that putting the proposed measure on the Statute Book would constitute such a statement. While I appreciate the point of so doing, such a statement would be incapable of practical enforcement.

A further issue in this regard is that when a prosecution takes place, it is likely that the Garda still will be investigating the alleged criminal offence of trafficking. For example, Members should consider a case in which a victim is prepared to state that he or she told the person who purchased sex that he or she had been trafficked. While such a statement undoubtedly would be controverted, one would have a case. The book of evidence on this offence is far more easily compiled than that on the trafficker. There is every practical possibility that the case of the purchaser of sex would proceed before that of the trafficker. Any suggestion that a person had been prosecuted for knowingly having sex with a trafficked person could prejudice the case against the person accused of trafficking and make it more difficult to obtain the trafficking conviction.

The third issue, which I mentioned on Committee Stage, is that the user of the sexual services might be the best chance a victim has of escaping her ordeal. It might be that if she pointed out that she was being trafficked to the person purchasing sex from her, she might be helped by that person. It is unlikely he would help her if he knew he had committed an offence. These are practical considerations. In terms of legal policy, if one wants to provide for what is being suggested, one must criminalise the purchase of sex generally. Deputy Rabbitte made a fair point and called for a debate on this subject. It is worth debating.

Deputies Naughten and Rabbitte referred to the experience in Sweden. It is worth examining the very fine research document prepared by Drs. Eilís Ward and Gillian Wylie entitled, The Nature and Extent of Trafficking of Women into Ireland for the Purposes of Sexual Exploitation: 2000-2006. The authors state:

A report commissioned by the Norwegian government to examine the impact of differing approaches to the sex industry in Holland and Sweden concluded that in the case of Sweden [where the purchase of sex has been criminalised] the abolitionist approach to prostitution has reduced the number of women on the streets but may have had unintended consequences such as sending the industry further underground and thereby increasing women's vulnerability. In addition, enforcement of prohibition has proved difficult and created evidential challenges.

This is in the context of a general prohibition of the purchase of sex, in respect of which the evidential burden is far lighter than that in respect of the offence of having sex with a person known to have been trafficked. There are very substantial difficulties in this area and the criminalisation of the act of purchasing sex might not necessarily minimise sex trafficking.

In 1993, when the offence of publicly soliciting for the purpose of prostitution was reintroduced to the Statute Book, there were calls to decriminalise the activity. When the legislation became law, there was controversy over its effects on the lives and working conditions of prostitutes. In retrospect, had we listened to those calls for decriminalisation, it would have been disastrous for prostitutes and, more latterly, for trafficked women. We therefore need to be very careful in this area.

Much has been written about the success, or otherwise, of the Swedish law that criminalises the purchase of sex and decriminalises its sale. There are those who see it as the answer to the problem posed by prostitution but others take a more cautious approach. Irish law is quite close to the Swedish model without criminalising transactions carried out in private by consenting adults. It has been claimed that the number of street prostitutes in Sweden has halved since the law was changed and the Swedish Government has estimated that the number of prostitutes in Sweden has dropped from 2,500 to 1,500 since 1999. However, these figures have been disputed by many, including a social anthropologist who has studied Swedish prostitution over the past decade. The anthropologist states no one knows if there are fewer prostitutes. This is not surprising because the law can only serve to drive prostitution further underground. One former prostitute is quoted as saying that underground profiteers, pimps and traffickers flourish under the new laws and that prostitutes would naturally rather avoid such people.

The authorities in Sweden admit that trafficking has increased somewhat since 1999 but that the level is lower than in neighbouring countries. It is very difficult to obtain hard evidence in this area. Sweden's national rapporteur on trafficking has estimated that the number of prostitutes has more than doubled.

It is clear that prostitutes in Sweden must now operate more secretly and therefore feel more vulnerable. The purpose behind the law was to treat prostitutes as victims so it is ironic that the very persons the law seeks to protect do not want that law. It is clear that demand does not disappear because of the introduction of a criminal law. It is displaced and re-emerges on the Internet and mobile phones and in rented hotel rooms. It re-emerges in neighbouring countries and regions such as south-east Asia.

The Swedish experiment is interesting and worthy of consideration but it is far from clear that it has been effective. Its main advantage is that it reduces street prostitution, but, as Deputy Naughten pointed out, the development of mobile phone technology has had a great impact on the phenomenon of street prostitution.

I appreciate the Deputies' points but to create an offence of purchasing sex from a trafficked person would not lead to any successful prosecutions and might not necessarily help their victims.

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