Thomas Pringle (Donegal, Independent) | Oireachtas source

I am grateful for the opportunity to contribute to the debate. I welcome this legislation and many of its provisions regarding sexual offences. I particularly welcome the provisions that were introduced on the back of the O’Malley review, which contained 51 recommendations with four overarching themes. These were promoting better awareness of victims’ rights legislation; promoting education about the meaning and importance of consent; improving interagency co-operation and exchange of information, especially in respect of services for victims; and ensuring consistency in service delivery. It is extremely important that victims feel supported and protected. This is key if we expect victims to take that first step in coming forward.

When victims come forward to disclose a sexual assault, they are frequently met with more questions than support. This has to change. One of the biggest issues is that the Criminal Law (Rape) Act 1981 is mostly subjective. It is unacceptable that an "honest, though unreasonable, mistake that the woman was consenting" is considered a defence to rape. I welcome that this legislation will change the mens reafor rape in section 2(2) from "knowledge or recklessness" to "reasonable belief". This changes the accused’s belief from a subjective recklessness as to the victim’s consent to an objective standard of reasonable belief.

I welcome that section 8 ensures that when the defence in a trial involving a sexual offence makes an application to question the complainant about his or her sexual history or experience, the complainant is entitled to be separately legally represented when such application is being heard by the trial judge. This will, hopefully, improve victims’ experiences of the criminal justice system. However, I wonder whether there is a need to question a complainant about their sexual history at all. I fail to see how someone's past sexual encounters have any relevance to a sexual offence of which they are a victim. The prospect of being subjected to character assassination based on previous sexual history deters a lot of victims of sexual crime from continuing with a prosecution or even from making a report to An Garda Síochána in the first place. The consideration of someone’s sexual history is extremely invasive and seems to add very little to a trial while at the same time creating more barriers for victims coming forward with disclosures. The accused's previous history is not allowed to be disclosed in court and rightly so yet the victim can be held to account for their past behaviours.

I am glad that section 15 provides that where a person has been convicted of a sexual offence specified in the Schedule to the Sex Offenders Act 2001, any character evidence adduced at the sentencing hearing must be given on oath or via affidavit. We have seen celebrities such as Ashton Kutcher and Mila Kunis give character references for a friend convicted of a sexual offence and these character references hold significant weight, especially if they are given by someone with influence. Mila Kunis and Ashton Kutcher are only an example of this due to the fact that their character references were leaked but this happens on a much larger scale, and it happens in this country. It begs the question of whether these references would have been given in the first place if those providing them knew that they would be made public or knew that they would have to swear to the veracity of their statement and could be called before the court for cross-examination. This would mean character reference letters will no longer be read out in court unchallenged if such a challenge is warranted. This is a very positive development.

Where this Bill does fall short is in regard the human trafficking. The fact that the general scheme does not provide for a child-specific NRM is extremely disappointing. This was raised at the Oireachtas Joint Committee on Justice's pre-legislative scrutiny of the general scheme and the Department came back and said that the approach taken in the legislation is to create the NRM framework for all victims and to specify its membership, which will include the Child and Family Agency. I do not believe this goes far enough. We need a dedicated identification mechanism for child victims of trafficking. Children are among the most vulnerable victims of trafficking. Given their unique vulnerability, child victims of trafficking need child-specific processes and procedures. A 2022 report by the Irish Human Rights and Equality Commission indicated that child trafficking in Ireland has received very little public or political attention, there is limited research, debates on the issue are seldom and that relative to trafficking in adults, it appears that child trafficking remains more hidden and unknown. This is extremely shameful. We should be doing everything in our power to tackle child trafficking and the laws in this country do not go far enough in protecting child victims. At the very least, we need to put in place procedures to see how big a problem it is so that we can legislate for it. It is shameful that we are not even looking at the incidence of it.

On that note, I would also like to raise the outdated language in the Child Trafficking and Pornography Act 1998. Senator Flynn introduced the Child Trafficking and Child Sexual Exploitation Material (Amendment) Bill in the Seanad last year to address the outdated language used in our legislation. Unfortunately, the Minister has not engaged with this legislation since then. I will finish by urging her to consider strengthening the 1998 Act to ensure further protections for victims of child trafficking and to update the outdated and harmful language within the legislation.

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