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

I move: "That the Bill be now 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 is 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 and 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 Central Statistics Office, CSO, crime figures show 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 comprehensive and wide-ranging sexual offences legislation, probably the most comprehensive 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. It owes 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 the Oireachtas committee.

Those contributions are reflected in the provisions of the Bill, and further amendments will be brought forward on Committee Stage, which will reflect some of the other submissions we have got in more recent times. The Bill includes 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 regard to the protection of "mentally impaired persons". The 1993 provision adopted an overly paternalistic attitude and status based approach to the protection 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, the Bill brings Irish law into line with our international obligations. Provisions approved originally for inclusion, such as provisions to amend and update the Sex Offenders Act 2001, are absent from the Bill but I assure Deputies they have not been discarded. Legal issues arose during the drafting of the Bill and there was a need to update the provisions to reflect operational advancements, and that is the primary cause for this absence. However, most of these matters are now resolved and those provisions are to be brought forward as separate legislation amending the Sex Offenders Act 2001.

Turning to the Bill, given its wide-ranging nature, I do not propose to outline every aspect in detail but I would draw the attention of the House to the main proposals contained in it. In my view the provisions contained in Part 2, which address the sexual exploitation of children, are among the most important criminal law provisions being 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 Members' Bill brought forward by the Minister of State, Deputy 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, 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 could fall under the provisions of this section. The section also criminalises offering a child or obtaining a child without reference to monetary or other forms 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 that we know a predator might take or could 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, on which I will go into some detail, provide for 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 contains 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 but we know that this is the process that predators will engage in.

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, as we know. However, children and young people in particular are and can be 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 ten 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 wellbeing 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 examining and considering all possible steps which can be taken to strengthen those provisions. The 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 Criminal Law (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 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. First, there is a change 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 have been carefully developed. A lot of time and attention has been given to the detailed work in this Bill and I thank my officials and everyone else who has been involved. My officials have taken a huge amount of time to work very carefully on the Bill which will give the most extensive and fullest protection possible to children.

Part 3 contains the offence which will replace section 5 of the Criminal Law (Sexual Offences) Act 1993 that 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. 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 moves away from the status-based approach of the 1993 Act. 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 attain the necessary balance and to ensure that appropriate protection is available to those who need it while respecting full participation in society of persons with disabilities.

Part 4 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 beyond the 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, and 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 Committee on Justice, Defence and Equality which made similar proposals in 2013. In making that recommendation, the justice committee heard presentations from 26 organisations and individuals and received more than 800 written submissions. In deciding to put forward these provisions, I 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 states that have introduced similar measures and those that have addressed prostitution in a different way.

Let me be clear as to what these provisions will 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 Member States". The Council of Europe has also studied this and has 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 combatting 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. 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 modernises and restates the law on 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 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. Giving evidence and the whole trial process can be very traumatic for victims of sexual offences. It is traumatic for any victim but obviously very particularly for victims of sexual offences and we want to try to protect those victims as far as possible.

A provision is also included to prevent 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 the 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 which are also being examined.

Part 7 amends existing jurisdiction legislation to ensure 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.

I draw attention to two provisions in Part 8. 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. 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. 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 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.

The House will agree the Bill's provisions are a significant step forward in targeting those who would abuse children as well as offering some further protections to victims of sexual offences. I look forward to hearing and discussing all these issues with Members. I thank the Members, many of whom have contributed to the Bill's content, be it through a Private Members' Bill, work on the Committee on Justice, Defence and Equality or through representations and submissions. This Bill is also a reflection of advances in technology, research, experience and debate. Regardless of the focus of the debate, either inside this House or outside it, we should not forget the Bill's primary purpose. It is built on the guiding principle of putting victims at the heart of the criminal justice system. We will shortly be introducing victims legislation, following on from the EU victims directive. It will mark a sea change in how the criminal justice system and the whole of society treats victims.

The Criminal Law (Sexual Offences) Bill will substantially strengthen our law to target those who target our most vulnerable, namely, our children. It will also send a message to all victims of sexual offences. In many instances before, their pain and suffering was kept hidden. It is only in recent times that we have been able to acknowledge openly the experience of so many who suffered so much, so often in silence. This Bill sends the message to all victims of sexual offences that we recognise the unimaginable harm and trauma inflicted upon them and that we support them. It will ensure the criminal justice system will offer more support to victims of these offences in the future.

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