James Browne (Wexford, Fianna Fail) | Oireachtas source

On behalf of the Minister for Justice, I thank Deputy Cian O'Callaghan for bringing forward this timely Bill with very important proposals. Members are all too aware of reports in the media of offers being made to provide accommodation in exchange for sex; there are reportedly even worrying offers being targeted specifically towards vulnerable Ukrainian women. I am also aware of reports of existing tenants in vulnerable circumstances being approached in a similar way.

I am acutely aware of the level of distress such an advance would cause to a tenant, particularly somebody in a vulnerable position, perhaps where the tenant is no longer in a position to be able to pay rent. It is also upsetting for people generally and all of us reading such advertisements placed by people attempting to exploit others for their own self-gratification. Let me be quite clear that any behaviour from accommodation providers seeking to use their position to prey on vulnerable people is totally unacceptable. It is an appalling abuse of power by unscrupulous individuals and it will not be tolerated by this Government.

It is important to note the laws surrounding sexual offences have been significantly strengthened in recent years, notably with the introduction of the Criminal Law (Sexual Offences) Act 2017. Sexual offences legislation now makes it abundantly clear that consent must be freely and voluntarily given. In other words, submission when a person is forced or has no other choice is not the same as consent. Sex without consent is rape and punishable by up to a life term in prison.

There have been other important legislative advancements in the area in recent years, including the Domestic Violence Act 2018 and Coco's law, otherwise known as the Harassment, Harmful Communications and Related Offences Act 2020, which introduced the offence of sharing intimate images without consent. That was legislation championed by Deputy Howlin and it is evidence of the Government's willingness to work with the Opposition to introduce important legislation to protect vulnerable users.

My Department is also working on a number of new legislative measures to strengthen further our laws in the area of domestic, sexual and gender-based violence. Before Easter the Minister, Deputy McEntee, aims to publish a Bill that will include new specific criminal offences for stalking and non-fatal strangulation. The general scheme of the Government's hate crime Bill, published in April 2021, will create a new and specific hate-aggravated offences for crimes motivated by prejudice against protected characteristics, including that of gender. The Sex Offenders (Amendment) Bill 2021 currently before the Houses will, among other provisions, strengthen the monitoring and notification provisions applicable to convicted sex offenders.

I will now turn to the Bill itself. The aim of the Bill is to create a criminal offence for acquiring or accepting sex as a condition of access to or retention of accommodation. The Bill also aims to make it an offence to arrange or facilitate such behaviour. The Government supports the objectives of the Bill in principle and will not be opposing it today.

My Department has considered the provisions of the Bill and sought advice from the Attorney General on its proposals. I am advised there is no difficulty with the intent of the Bill but there are, however, some concerns with the detail that would need to be addressed to ensure it is legally sound and can achieve its objectives. I will outline some of the concerns around the Bill so we can perhaps work towards addressing them.

In its current form the Bill is very general and for a criminal statute not sufficiently precise in terms of the definition of the terms used in it and the parameters of the offence. Offence provisions that are impermissibly vague risk being found incompatible with the Constitution and in order for the provisions in this Bill to be constitutionally sound, it would be necessary to define more clearly the precise nature of the conduct that is to be criminalised. For example, more clarity is required on what is meant by requiring sex as a condition of access to accommodation and who falls within the term of "provider" of accommodation. The terms "accommodation" and "sex" should also be defined.

Section 3 creates the offence of facilitating an offence under section 2 and it is particularly vague. The mental element of the offence is different for a person and a publisher but a publisher is not defined. An offence by a publisher is committed by failing to take on specified remedial action in an unspecified reasonable time after being informed that its actions have arranged or facilitated an offence under section 2. It is necessary, at a minimum, to specify remedial action and a required timeframe for action to ensure this offence can be clear and enforceable.

Our further concern with the proposed offences in section 3 arises with respect to existing offences. The penalty under section 2 of the Bill is imprisonment for a period of up to seven years, and this means an offence under section 2 is an arrestable offence. It is already an offence under section 7 of the Criminal Law Act 1997 to aid, abet, counsel or procure the commission of an arrestable offence, so it appears there is an overlap between an existing offence under the 1997 Act and a new offence under section 3 of this Bill. The penalty for aiding and abetting under the 1997 Act is punishable by the same penalty as the primary offence, which in this case is up to seven years of imprisonment. The Bill provides a penalty of a fine of up to €50,000 for arranging or facilitating a section 2 offence.

If the aim of this section is to create an offence of publishing an advert requiring sexual acts as payment or part-payment for accommodation, it would be preferable to provide expressly for that rather than having the wider construction of the offence proposed in the Bill. The Bill creates a new offence in a stand-alone capacity and does not consider how the proposed new offences would interact with existing sexual offences legislation.

Deputies will be aware there is a comprehensive body of laws in the area of sexual and domestic violence, further strengthened in recent years, notably with the sexual offences Act of 2017 and the domestic violence Act of 2018. Consideration should be given to any implications to the proposed offences where they occur in the context of intimate relationships, particularly where parties are cohabiting and the relationship breaks down, and it is not clear what the intended scope of the offence is in the Bill in the context of personal relationships. This is particularly the case where parties are not married but living together and there is friction, as the current formulation could result in complaints of criminal behaviour being made under section 2(1).

Section 7A of the Criminal Law (Sexual Offences) Act 1993, as inserted by section 25(b) of the Criminal Law (Sexual Offences) Act 2017, makes it an offence to pay, give, offer or promise to pay "money or any other form of remuneration or consideration for the purpose of engaging in sexual activity with a prostitute". This offence does not cover the circumstance where a tenant is offered accommodation in return for sex as there is no suggestion that it would occur for the purposes of prostitution, so any potential overlap between the two offences should be considered.

The proportionality of the penalty for the offence under section 2 would itself benefit from further consideration. By way of contrast, a first offence of paying or offering to pay for sexual services for the purpose of prostitution under the 1993 Act has a maximum penalty of €500.

I offer the above not by way of criticism but rather to outline some challenges that we can explore and seek to resolve. My colleague, the Minister, Deputy McEntee, and I fully agree that the behaviour that Deputy Cian O'Callaghan's Bill aims to target is unacceptable and exploitative. It should be a criminal offence. On that basis the Government will not oppose the Bill on Second Stage and it fully supports its principle. As I have outlined, the Bill requires further precision and careful consideration in how it interacts with other legislation in the area of domestic, sexual and gender-based violence. The Minister, Deputy McEntee, is happy to engage with the Deputy to assess the best way to advance the principles of the Bill.

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