Brendan Smith (Cavan-Monaghan, Fianna Fail)

I will explain the reasoning behind these amendments. I am aware that there is some confusion in the House.

Deputies will recall that during the Report Stage debate in this House the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, undertook to consider whether it would be feasible to introduce an amendment creating an offence of having sex with a person trafficked for the purpose of sexual exploitation. His caution in committing himself at that stage to such an amendment was the belief that any criminal offence to that effect would have to be credible and enforceable. Placing such a criminal offence in the Bill would have to be more than a sign of society's intolerance and condemnation of persons using the services of those unfortunate persons who were trafficked into Ireland for the purpose of sexual exploitation.

Following consideration of the issues involved in the Seanad, I came to the conclusion that the most appropriate way to proceed was by using a statutory form of words that is well understood by the courts, that is, "soliciting or importuning, for the purpose of prostitution". Lest there be any confusion on the current law on soliciting, I will outline it briefly.

Under section 7 of the Criminal Law (Sexual Offences) Act 1993, it is an offence for any person to solicit or importune another person for the purpose of prostitution. This is essentially a public order provision aimed at protecting our neighbourhoods from the inevitable and unacceptable consequences of soliciting, such as harassment, noise, intimidation and violence, as well as the detritus associated with prostitution. Accordingly, under section 7 of the 1993 Act, the soliciting must take place in a street or public place, as defined very widely in that Act. Any of the persons involved in the public prostitution transaction can commit the offence of soliciting or importuning. This is made clear in section 1(2) of the 1993 Act, which states:

a person solicits or importunes for the purposes of prostitution where the person—

(a) offers his or her services as a prostitute to another person,

(b) solicits or importunes another person for the purpose of obtaining that other person's services as a prostitute, or

(c) solicits or importunes another person on behalf of a person for the purposes of prostitution.

In other words, paragraph (a) refers to the prostitute, (b) to the customer and (c) to a third party, such as a pimp.

The amendment made in the Seanad, for which I am now seeking the agreement of the Dáil, makes it an offence to solicit or importune a trafficked person for the purpose of prostitution. This offence differs from the existing soliciting provision I have just outlined in three important respects. First, the soliciting can be in any place, public or private; second, the trafficked person who is forced to work as a prostitute does not commit an offence; and, third, the penalties are more severe than for the soliciting offence under section 7 of the 1993 Act.

I do not intend to make extravagant claims for this new offence. It will not be easy to enforce. However, it could be useful in certain circumstances, such as where a trafficked person is forced to operate from a hotel room, a room in an apartment block, where other residents may become aware of what is going on. It may also prove useful in planned Garda raids on brothels from where trafficked persons are compelled to operate. It would be an easier offence to prove than if the offence was worded, for example, "availing of the sexual services of a trafficked person". I thank Deputies Naughten and Rabbitte, who first raised the issue of availing of the services of trafficked persons and I am happy we were able to come up with a workable solution. The Minister gave a commitment on Report Stage that he would take on board the views of both Deputies on this issue.

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