Michael McNamara (Clare, Independent) | Oireachtas source

Like everybody else who has spoken I regard sexual offences as heinous crimes which are exceptionally damaging to society, which is why we punish them as crimes, and to individuals. These offences leave a long-lasting mark on the victims. I can understand some of the calls in the Chamber for far greater punishment of perpetrators in that regard. Nevertheless, I have a couple of questions about the Bill. It might not be very fashionable at the moment but I still think it necessary to tease out legislation and do what we intend to do and not do that which we do not intend to do.

The first question I have is where the impetus for this Bill is coming from. All Ministers and especially, I suppose, Ministers for Justice want to punish evil and promote good, particularly in these times. I am yet to meet a politician who did not say up with good and down with evil, but where is the impetus coming from? Is it coming from An Garda Síochána? Has the Garda said it needs additional powers to deal with this matter? Has the Probation Service called for these additional powers? If not, where are these provisions coming from? It is important to determine where they are coming from so we can figure out how well they are going to be implemented or what the likelihood of their successful implementation is. I ask that this question be addressed.

I have looked at another provision of the Bill - section 5, which provides that the principal Act is amended by the insertion of a new section 3A after section 3.

It states that the amendments made by the Sex Offenders (Amendment) Act 2001 shall apply "whether the person is so convicted before or after the coming into operation of the amendment". The question I have is on whether the measures included in this Bill, such as electronic tagging and notification of information to persons in certain circumstances where An Garda Síochána think it appropriate, are a punishment or not. It is a thin line. Are these measures to protect merely incidental to a punishment, and there to protect society, or are they actually a punishment? The imprisonment of offenders is obviously a measure that protects society, but it is clearly a punishment too. If these measures are a punishment, I question whether the prohibition on retrospective punishment comes into play.

As the Minister of State will be well aware, Article 7 of the European Convention on Human Rights provides that there will no punishment without law and:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

This is not creating new offences. That is a given, but the issue is whether there is an additional, or greater, punishment than was in place at the time of the commission of the offence and these measures could be found to amount to a punishment. If they are, their retroactivity could be problematic and could lead to a declaration of incompatibility with the European convention. I assume this is a matter the Minister of State or, at least, the parliamentary draughtsman, has considered in the Bill to get it this far. I would like to hear the Minister of State's views on that.

I did not mean to be flippant in saying that sexual offences are heinous offences that, for a very long time, were not taken sufficiently seriously by the Legislature and, perhaps, by society as a whole. We can only assume they were not given what comes out of inquiries, including the testimony of women and children and what they went through. While I agree with much of what Deputy O'Callaghan said, I am not sure I fully agree these offences are perpetrated primarily against women. Unfortunately, in Irish society, sexual offences were perpetrated to a very large extent against children as well as women. We need to bear that in mind.

We need to consider what we mean by sexual offences. They are obviously very serious but like public order offences, or any offences, there is a spectrum. Some offences are inevitably more serious than others. I am not saying that even the most minor sexual offences do not have a profound impact on their victims, but it is self-evident that some offences are more serious than others. When we talk about sexual offences, we are talking about what is defined in the Schedule to the principal Act. Sexual assault is one of the offences that is a sexual offence. That will hardly come as a surprise, but sexual assault is defined in section 2(1) of the Criminal Law (Rape) (Amendment) Act 1990 as "The offence of indecent assault upon any male person and the offence of indecent assault upon any female person [and that it] shall be known as sexual assault." It was previously called indecent assault.

The Irish textbook, Criminal Law, by Charleton, McDermott and Bolger, is widely considered to be the seminal Irish legal textbook on the matter, all of whose authors, interestingly, have been elevated to the Bench since they wrote it. They state that sexual assault is the old crime of indecent assault relabelled into words more appropriate to the contemporary use of language, that sexual assault is defined as the assault accompanied by circumstances, which are objectively indecent, that the objective mental element requires an intentional act on the part of the accused, that the elements of the offence, thus, are that the accused intentionally assaulted the victim, or the assault and the circumstances accompanying it are proved to be indecent according to the contemporary standards of right-minded people and that the accused intended to commit such an assault as is referred to above. They go on to state that it does not appear that any element of hostility or regression is required and that in Faulkner v. Talbot, Lord Lane stated that an assault is an intentional touching of another person without the consent of that person and without lawful excuse and that it need not necessarily be hostile, rude or aggressive, as some cases seem to indicate.

In that book, the learned authors state that it is a question of fact for a jury to determine whether the circumstances proved by the prosecution amount to indecent behaviour as judged by contemporary standards, so it is suggested that to merely snatch a kiss from a girl may merely be assault, while the same act accompanied by lewd suggestions by the assailant crosses the boundary that makes the assault sexual, albeit a mild one, by contemporary standards and that while cultural norms differ as between continents, it is suggested that the deliberate fondling of the genital area in males or females constitutes, according to Irish contemporary norms, a sexual assault and that, regrettably, in the majority of cases that come before the courts, there is no question of a defence of lack of sexual circumstances to the assault being open.

A fondling of the genital area would constitute an assault, but section 14 of the Criminal Law (Amendment) Act 1935 provides that "It shall not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such person consented to the act alleged to constitute such indecent assault." If there is, therefore, an act as described by the learned authors of Criminal Lawas a fondling of the genital area upon a 14-year-old by a 15-year-old, then that is a sexual assault and the perpetrator will be convicted if a complaint is made. He or she will not be able to avail of the defence of consent because the victim was too young to consent. Do we mean to include such persons, in such cases, in this Act? I ask the Minister of State and this House whether they think it is good to include them in the Act?

There is also an act of defilement of a minor. Any offence under the Criminal Law (Sexual Offences) Act 2006 is contained in the Schedule. I am open to correction on that, but I checked it before I came to the House. I apologise for perhaps not being better prepared, but sometimes it is difficult to prepare in a relatively short period. In any event, there are two different offences: the defilement of a child under 15 years of age; and the defilement of a child under 17 years of age. The defilement of a child is obviously a very serious offence and at the most serious end of sexual offences. It is defined in sections 3(1) and 4(1) of the 1990 Act as "aggravated sexual assault" and "rape", which are obviously very serious offences. These sections also include, however, sexual intercourse or buggery between persons who are not married to each other.

The act of buggery or sexual intercourse with a child under 15 or under 17 years is a serious offence, as is attempting to engage in such an act which is prosecutable as attempted defilement of a child. The difficulty arises where the perpetrator is of a similar age to the victim. Section 7(3) states: "it shall not be a defence to proceedings for an offence under this section for the defendant to prove that the child against whom the offence is alleged to have been committed consented to the sexual act of which the offence consisted." If two 15-year-olds, or indeed a 17-year-old and a 15-year-old, engage in sexual intercourse or attempt to engage in sexual intercourse, that is an act of defilement or attempted defilement of a child, they are captured as sexual offences and, therefore, this legislation becomes operable. If an offence involves two minors of approximately the same age engaging in an act where they would consent but for the fact that they cannot because of statute, so it is not consensual, is this legislation intended to capture these acts and the perpetrators of these acts? Is it intended that it would follow them around for the entirety of their youth and thereafter? There is a five-year period. The wheels of criminal justice do not move terribly quickly, especially with restrictions on criminal trials due to Covid-19, so it will follow them around through college, etc. I am not saying that it is not a good thing that sexual offences cannot be forgotten and that the Garda is able to keep a watch on people whom it needs to keep a watch on, and that people who need to be informed about perpetrators of offences are able to be informed.

I am not against the legislation. I am talking about specific circumstances, namely, sexual activity between minors. Am I right in saying it is captured by the legislation? If so, is it intended to be captured in circumstances where there is no lack of consent as a layman might understand consent, as opposed to legal consent which, of course, cannot be given? I am not condoning it or saying it is right. I am led to believe that it is not uncommon for there to be sexual relations between minors. One has to be careful in what one says because sometimes people want to mischaracterise what one says and take it out of context. I am not suggesting that sexual activity between a minor and an adult is acceptable or that it should not be punished or fall within the remit of the legislation. I have a more specific caution.

I do not have a question about the general intent of the legislation but I question where the impetus for it came from and, in particular, how it will apply to consensual sexual activity between minors. Is that something that will be regarded as a sexual offence under the remit of the legislation that will follow somebody around for a period thereafter? If that is the case, is that a good thing? I thank the Chair for the time.

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