Jonathan O'Brien (Cork North Central, Sinn Fein) | Oireachtas source

I welcome the opportunity to contribute on this Bill. As other Deputies have stated, it is long-awaited legislation and has spent many months or years in committee. I commend the Minister of State, Deputy Stanton, who is beside the Tánaiste, on the great deal of work that he did on this legislation as the former Chairman of the justice committee.

Our party will support the Bill. We are on record as supporting the criminalisation of the purchase and purchaser of sex and lending our support to the Turn Off the Red Light campaign. In particular, I note the work of the former Sinn Féin justice spokesperson, Senator Mac Lochlainn, on this issue. He was instrumental in ensuring that the party took this position, which was debated in the party. Not all people were of this view, but the party has come to the decision that we support the Turn Off the Red Light campaign and, as a result, we will support the legislation.

It is good to see that the Government has taken the initiative in this Bill to remove sex workers from being criminalised under the Criminal Law (Sexual Offences) Act for offences such as loitering and solicitation. That said, it is clear from the Bill that the Government has failed to address sufficiently the need not to criminalise sex workers who work outdoors, given its inclusion in the Criminal Justice (Public Order) Act 1994 of the offence of loitering for the purpose of selling sexual services. That offence includes a penalty of a fine and-or six months for failing to leave an area. It is unacceptable that vulnerable women working outdoors should be criminalised in this manner. Even the original offence contained in the 1993 Act was not as heavy, with a penalty of a fine on the first offence and a prison term on the third offence.

The Tánaiste has stated numerous times that the goal of the Bill is to end prostitution. However, one of the main barriers to people exiting sex work is a criminal conviction. The changes proposed in the Bill must be accompanied by a holistic and comprehensive support and awareness strategy, a view supported by the Irish Human Rights and Equality Commission, IHREC. Clearly, there must be a well-resourced exit plan for those whom the Tánaiste is going to force out of the sex industry. In the North, Departments were required to develop such a strategy within ten months of the legislation there coming into operation that would introduce a programme of assistance and support for those seeking to leave sex work in recognition of the barriers faced by people who wanted to exit prostitution. The same should apply in this jurisdiction.

Under section 24(b), a person found guilty of paying for sexual services may face a fine whereas a sex worker who works indoors with another or who returns to a public place may face a fine and a prison sentence. This is unacceptable and should be amended on later Stages.

Concerns have been raised to the effect that increasing the penalty for the existing offence of brothel keeping could place persons engaged in prostitution who are working together for the sole purpose of safety in greater danger, as they may opt to work alone despite the risks involved. Deputy O'Loughlin referred to a woman who had been raped, abused and assaulted. Therefore, it would be unacceptable that, by enacting this legislation, we could create the unforeseen or unintended consequence of forcing sex workers to place themselves in the vulnerable position of working alone. We need to be aware that, in some situations, women will work together indoors for the sole purpose of safety.

Further to this, I call on the Tánaiste and the Garda as a matter of urgency following this legislation's enactment to commit to ensuring the safety and well being of sex workers by introducing regular and robust monitoring and evaluation of the legislation once the provisions concerning sex work are enacted. There are genuine fears among many sex workers that this legislation will result in them being further endangered and criminalised. It is unreasonable to allow for the Bill to be introduced without some scheme to monitor its outcome. We will table a number of amendments to try to address these concerns.

I spoke to a sex worker recently. She pointed out what she believed was a contradiction in the Bill when other legislation on the Statute Book was taken into account. For instance, it will be illegal to buy sex, but it will not be illegal to sell sex. She posed me a question that I will now, on her behalf, pose to the Tánaiste. Is it true to say that, as a sex worker who will receive money from an individual buying sex, which will be illegal, she can be charged under the Proceeds of Crime Act, given the new legislation that we have introduced and the decreased limits in respect of money on one's person that, being found to be the result of the proceeds of crime, can be confiscated? If a sex worker could be liable to prosecution under that Act, we should examine this contradiction. Perhaps we might debate this matter further on Committee Stage.

There is a wide range of other provisions in the legislation that we welcome. The 1993 Act has long been recognised as inadequate when dealing with persons with disabilities. We particularly note the broad welcome of the repeal of section 5 and part of section 6 of the 1993 Act by organisations who work with people with disabilities. Their view has always been that the legislation needed to be changed, as it was inadequate from a protective perspective. The broad and vague nature of the 1993 Act has led to people with intellectual disabilities having their rights restricted as adults, as they were unable to have intimate relationships. Supporters and advocates felt the effects of this too, often feeling compelled to prevent relationships developing between persons with intellectual disabilities. Clearly, the State must have a more modern and rights affirming approach to individuals' capacity to consent and a recognition that an intellectual disability in itself does not mean that an individual cannot participate in an adult relationship.

We have in the past pointed to the UN Convention on the Rights of Persons with Disabilities and the need to eliminate discrimination when it comes to relationships, marriage, parenthood and so on. The 1993 Act was deficient in this regard of adhering to the UN Convention on the Rights of Persons with Disabilities requirements. Although there must always be protection for vulnerable persons against exploitation - that goes without saying - there must not be undue influence on the right to have a relationship. Unfortunately, the proposed Bill still presents people with disabilities with a questionable capacity to consent, unlike the general presumption of capacity afforded to those without intellectual disabilities. In order for there to be no discrimination, we must have a rebuttal presumption of capacity to consent for all persons; otherwise the new law will continue to discriminate. It may be appropriate to insert a new section 21A that presumes consent.

I further object to the use of some terminology in the Bill. One piece of terminology refers to the "protected person" and I urge the Minister to refer to the recommendations made by the Law Reform Commission in its report on sexual offences and capacity to consent. It argues that the term "relevant person" should be used rather than "protected person". In the assisted decision-making Act, "relevant" person is used. I am hopeful the Minister would agree on the merit of being consistent in the approach taken across all legislation. There are further points to be made on the functional approach to decision-making in the assisted decision-making Act that I do not have time to discuss today but I will raise them on Committee Stage.

Aside from this, it is noteworthy that the Law Reform Commission made recommendations in the aforementioned report that changes must be made with respect to the Criminal Evidence Act 1992 and the 1993 Act that would allow for persons aside from the accused during a trial to give evidence with the support of an intermediary and allow for the legal use of non-verbal communications where necessary. This is of utmost importance if we are to have a non-discriminatory approach to persons with disabilities. It may be that an amendment needs to be proposed on Committee Stage in this regard. I understand if the Opposition proposes an amendment, it may be very difficult to accept it because of legal ramifications arising from wording. We do not have access to the Attorney General like the Government. I will raise the matter in more detail with the Minister on Committee Stage and I hope that on Report Stage, she may be able to bring forward an amendment, having consulted with the Attorney General, to protect people with disabilities and give effect to what I am referencing.

We welcome the provisions in Part 2 of the Bill dealing primarily with the sexual exploitation of children, including offences to protect children against grooming from online predators and strengthening offences relating to child abuse images. With respect to the use of "child abuse images", we support calls from the Irish Society for the Prevention of Cruelty to Children to use that term instead of the current term of "child pornography", as the former is used in international law for each image or video made or disseminated depicting incidents of abuse.

The Bill also addresses consensual peer relationships through the introduction of a proximity of age defence, whereby a person charged with an offence of engaging in a sexual act with a person between the age of 15 and 17 can put forward a defence of consensual non-exploitative activity, provided the parties are no more than two years apart. This legal provision has been long overdue and it was a matter discussed at length by the previous Oireachtas committee, chaired by Deputy Stanton, on the constitutional amendment relating to children. This two-year age gap defence was exactly what we proposed during those committee deliberations. We understand that whereas age of consent offences and sexual assault, rape and other child abuse are sometimes connected, it is not always the case. That is why these crimes are distinct.

Clearly, sexual assault is a very serious crime that should carry one of the highest penalties. It should always be investigated, charged, prosecuted and penalised as such. However, there is no merit to criminalising or applying criminal sanction against young people of similar age who engage in what would otherwise be consensual sexual activity if it occurred between two adults. This presumes the activity is non-abusive and non-exploitative. That said, there is scope for further overhaul of our sexual offences legislation beyond the scope provided in this Bill. There is a glaring omission in that no attempt has been made to define what constitutes consent. It would perhaps be useful for the Oireachtas committee to consider that in due course.

I welcome the Bill and Sinn Féin will support it. We will address the various reservations I outlined during the course of my contribution and I look forward to working with the Minister to resolve these on Committee Stage.

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