Catherine Connolly (Galway West, Independent) | Oireachtas source

I welcome the legislation which I will come back to but I want to make a number of preliminary points in view of what was said earlier in the Chamber. Unfortunately, Deputy Hildegarde Naughton has left but I want to correct what she said with regard to Galway. There was no charge, and the women she referred to were not convicted of being prostitutes. They pleaded guilty straight away and they were subsequently convicted of operating a brothel. That will continue under this new legislation, with even more severe penalties. However, the gardaí reckon that they were trafficked and under the control of Dublin or Belfast based pimps, but they were nonetheless fined €200. The gardaí were extremely humane in their response. They said they were four little girls. Four little girls in prostitution in Galway were being used and abused by many people. Their ages were 21, 22, 23 and 30. That is the first correction.

In terms of the second correction, I have not heard a single TD in this Dáil talk about a life enhancing experience as a sex worker. What they have done is raised serious concerns about the criminalisation of the purchase of sex because of the effect it will have on sex workers in driving them underground. The speakers in this Dáil, including myself, have not come up with those concerns. We have read reports and listened to Amnesty International. We have listened to the health organisations. We have listened to HIV Ireland, Sex Workers Alliance Ireland and so on.

I have read the Houses of the Oireachtas report the Minister referred to. I thank the Minister of State, Deputy Stanton, for his work. The report was a huge amount of work involving four public hearings and 800 submissions. It was specifically on the topic of prostitution. Unfortunately, since that report was produced, the evidence has moved on. The evidence today does not substantiate the criminalisation of the purchase of sex.

I appeal to the Minister to look at this section and go back to it, notwithstanding the tremendous amount of work the Minister has done. I acknowledge that the overwhelming number of submissions wanted to criminalise the purchase of sex. However, there were other submissions that asked the Minister to look at this because what will happen here is that the Bill will make it less safe for sex workers. The Minister based the report on the Swedish model. Indeed, the Minister took the work very seriously and went to Sweden. I commend the Minister for all of that work. However, according to a number of very reputable organisations, the Swedish model, and Norway's, do not stand up to scrutiny.

As I said, I very much welcome this Bill with the exception of two areas which I have serious concerns about. More importantly, those are concerns that have been raised by a number of organisations and institutions, such as Amnesty, the Irish Human Rights and Equality Commission, the Centre for Disability Law and Equality at NUI Galway, the Irish Society for the Prevention of Cruelty to Children, more particularly, concerns in relation to Part 3 of the Bill, which few have mentioned, relating to a sexual act with a protected person - I have serious difficulties in relation to that part of it, notwithstanding the Minister's good intentions - and under Part 4, which seeks to criminalise the purchase of sex. Furthermore, the lack of definition of consent has been raised by many Deputies on both sides of the House. Also, the Irish Society for the Prevention of Cruelty to Children has raised the continuous use of language such as "child pornography" rather than more specific language, such as "child abuse materials" and "images". I will return to these points before I finish, if I have enough time.

First, on a more general level, this is a Bill which, unfortunately, has had a very long gestation period, notwithstanding the urgent necessity to protection children, particularly given our obligations to do so under the Constitution and our international obligations under various legal instruments, legislation and conventions, and given the current lacunae in our current legislation - gaps which were highlighted as far back as 2007 in a special report by the Special Rapporteur on Child Protection, Dr. Geoffrey Shannon. That report highlighted the need for reform of the law in a number of very specific areas, which has taken nine years. This Bill is finally addressing those areas and I very much welcome those changes without hesitation.

In addition, as far back as June 2012, the Department of Justice and Equality opened a review of the law in relation to prostitution and then followed the Oireachtas committee hearings. In addition, many organisations, including Barnardos, the Irish Society for the Prevention of Cruelty to Children and the Children's Rights Alliance, have called for this legislation to go through the Oireachtas with speed and I can see why given the wide-ranging provisions contained therein to enhance the protection of children from sexual abuse and exploitation, including protection against online grooming - more comprehensive definitions and the inclusion of new offences, including the provisions for a harassment order. The Bill includes a reform of the law on incest, with the gender imbalance addressed. It includes enhanced protection for child victims of sexual assault in the criminal process. The absolute prohibition on the cross-examination of a person under 14 years by an accused person in a criminal trial is a major step forward and with the judge's discretion remaining in relation to prohibiting cross-examination by the accused of a victim between the ages of 14 and 18 years. Indeed, this prohibition on cross-examination by an accused of a victim should be extended to vulnerable persons. It has been acknowledged by the Government that it will look at that. There is also welcome regulation of disclosure of third-party records, although concern has been raised in relation to how extensive such disclosure will be but, more importantly, whether it will serve to inhibit children and adults coming forward for therapy.

Thankfully, the Bill, in section 173(8) also addresses consensual peer relationships through the introduction of a proximity-of-age defence of two years. 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. This is a most welcome new provision which more accurately and honestly reflects the real lives of young adults and teenagers and ends the criminalisation of young males.

The ISPCC, while welcoming the Bill, highlights a number of concerns, for example, the absence of a definition of "consent". They raise concerns in relation to the disclosure of therapy notes and I hope that is looked at and their concerns taken on board at the next Stage of the Bill. I have already mentioned that they have asked that the word "pornography" not be used and the Bill use more specific language that clearly shows what is going on and the abuse of children.

The Bill completely omits any reference to or provisions for the risk-assessment, treatment, monitoring or management of sex offenders. I understand the Minister has stated that this issue would be dealt with in further legislation in early 2017 and this should be progressed as swiftly as possible as this proposed legislation is also essential in ensuring that the public, especially children, are better protected from offenders who seek to prey on them. Finally, the Bill does not deal with other offences, such as stalking and victim-shaming, and additional legislation is needed to address this.

More specifically, let me deal with two serious concerns that I have. I refer to Part 3 of the Bill, Sexual Act with Protected Persons, in particular, sections 20 and 21. The Centre for Disability Law and Policy at NUI Galway, together with the Disability Federation of Ireland, Inclusion Ireland and the Irish Mental Health Lawyers Association amongst others, is concerned that Part 3 of the Bill does not respect the human rights of those with cognitive disabilities. I say that knowing that the Government has come forward in a bona fide manner to try and protect the vulnerable. If the Centre for Disability Law and Policy, together with all the other institutions that I have mentioned and the Irish Human Rights and Equality Commission, is raising concerns, we must listen to them given its expertise in this area. Section 21 of the Bill creates a new sexual offence which only applies to complainants with mental or intellectual disability or mental illness. Those with disabilities in Ireland have campaigned for many years to have disability-neutral sexual offences legislation and they do not want to see introduced a new offence which further stigmatises and marginalises those with disabilities.

More specifically, they identify three key problems from a human rights perspective with Part 3 of the Bill. While fully aware that the Bill is one of the final pieces of legislation the Government has committed to introduce in order to enable Ireland to ratify the UN Convention on the rights of Persons with Disabilities, they are seriously concerned that the Bill as it currently stands is not consistent with the human rights principles set out in the Convention. They identify three key problematic areas and they go further and offer three positive solutions or amendments. Section 21, which creates a specific provision which applies only to survivors of sexual violence who are persons with disabilities which the provision labels as "protected persons", is problematic because it implies that those with disabilities should be treated differently than others when it comes to their consent to sex and sexual activity. The consequences of this provision is that it creates or constitutes a disability-based discrimination in the legislation. Whether the Government likes it or not, it is building in discrimination which is prohibited under the UN Convention on the Rights of Persons with Disabilities. Their solution is that a more human rights-compliant approach would be to introduce a disability-neutral offence of abuse of a position of authority or trust.

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Apparently, this was proposed by the then Senator but now Minister, Deputy Katherine Zappone, on the previous Committee Stage of this Bill in the Seanad. This would ensure that people who might be targeted for sexual exploitation based on perceived vulnerability, including disability, would be adequately protected by the law. Further, a sentencing uplift or enhancement for crimes motivated by bias against persons with disabilities could also be introduced if we seriously want to protect vulnerable people.

The second problem identified by these various groups is that the definition of the vulnerable person relies on a functional test of mental capacity. This definition is inconsistent with existing legislation. It is inconsistent with the Assisted Decision-Making (Capacity) 2015, which is a very welcome Act. It recognises that anyone at any stage might lack mental capacity to make a particular decision, regardless of whether the person has a diagnosis or label of mental or intellectual disability or mental illness. The use of a diagnostic criteria in this definition is both discriminatory towards people with disabilities and, equally important, it is under-inclusive of people who might be vulnerable for other reasons to sexual exploitation. People who have no diagnosis of disability may nevertheless be shown to be unable to consent to sex. Those groups' solution is to define consent to sex in legislation. Again, it comes back to the absence of that definition. A more human rights compliant solution would be to ensure a comprehensive definition of consent to engage in sexual acts is provided in legislation.

The third problem identified by these various groups and to which they provide a solution is the reversal of the burden of proof on defendants. This is a fundamental change in our law. The Bill provides that it shall be presumed, unless the contrary is shown, that the defendant knew that the victim was a protected person. This reverses the normal burden of proof on the defendant in criminal cases by starting with the presumption that the defendant knew that the victim lacked the capacity to consent to sex and required the defendant to prove otherwise. In addition to this approach seriously restricting the rights of defendants, it will clearly reinforce the stigma and stereotypes about people with disabilities and that they lack the capacity to give consent to a consensual sexual relationship. The solution, these groups suggest, is to remove this reversal of proof from the offences. If the Minister of State's goal is to ensure anyone engaging in sexual acts with people with disabilities takes steps to ensure the person is truly consenting, this can be better achieved through a comprehensive legislative definition - we cannot get away from its absence - of consent to sex which applies in all rape and sexual offences cases.

Additionally, the Irish Human Rights and Equality Commission has reiterated that clear guidance from the Director of Public Prosecutions on the circumstances in which a prosecution will be taken under the Bill, if it becomes law, will assist in mitigating against the real danger of persons not entering into sexual relationships for fear of exposing themselves to a risk of prosecution. Accessible information on how the law will be applied should accompany guidelines from the Director of Public Prosecutions.

Those are the three gaps and problems highlighted in regard to Part 3. Part 4 consists of three sections. It is the Part that has drawn the most debate in the Dáil, yet there are 50 sections in the Bill, which is very well drafted and extremely important. There is a page and a half covering the criminalisation of sex providers, amounting to three sections. Leaving aside Part 3, which it is hoped can be remedied, I propose the simplest way to proceed is to leave out these three sections, that page and a half covering them. I have no idea why they are included in a Bill seeking to protect children in the first place. It has been said already that the Government is attempting to cover too much in the Bill. The most sensible way to proceed would be to leave out those three of the 50 sections and to consider that subject in separate legislation, particularly in view of the fact that what the Minister of State is proposing is to criminalise the purchase of sex.

I am not justifying or making a judgement in regard to prostitution. My main concern is whether the legislation will serve to protect sex workers, which is the Minister of State's intention. Unfortunately, after reading all the research, my conclusion is that it will not. I draw the Minister of State's attention to the up-to-date research in Northern Ireland, Norway and Sweden and to the senior counsel's opinion. We sometimes lambaste the legal profession in the Dáil, often rightly, and we lambaste the Judiciary. The senior counsel's opinion was provided on a pro bonobasis and he outlines at the start of it that those who commissioned him to prepare it probably would not like what he was going to say because he was absolutely of the belief that the criminalisation of the purchase of sex was the way forward, but after looking at all the research, he came to a different conclusion. He said there are serious concerns that the criminalisation of the purchase of sex will lead to health and safety issues in regard to sex workers. This has been backed up by HIV Ireland. I implore to Minister of State to look at that detail and the health implications of this.

Speakers have conflated human trafficking with sex workers. Human trafficking is abhorrent. It seems it is the third most profitable trade after the arms trade. I forget what the first one is but it will come back to me.

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