Seanad debates

Tuesday, 26 February 2008

Criminal Law (Human Trafficking) Bill 2007: Committee Stage.

 

3:00 pm

Photo of Maurice CumminsMaurice Cummins (Fine Gael)

Amendments No. 1 and Nos. 4 to 8, inclusive, are related and may be discussed together by agreement.

Government amendment No. 1:

In page 4, between lines 21 and 22, to insert the following:

""trafficked person" has the meaning assigned to it by section 5(1);".

I will first explain amendments Nos. 1, 5 and 8. Amendment No. 8 is the substantive amendment and amendments Nos. 1 and 5 are consequential. The Minister, Deputy Brian Lenihan, undertook to consider the feasibility of drafting an amendment which would criminalise availing of the services of a trafficked person. Following consultation with the Parliamentary Counsel, which drafted the amendment, it was decided that the most appropriate way to draft it was to use existing terms which were well understood by the courts.

Under section 7 of the Criminal Law (Sexual Offences) Act 1993, it is an offence to solicit or importune in a public place for the purpose of prostitution. Although the expression "solicits or importunes" is not statutorily defined, it has been the subject of case law and is well understood by the courts.

Subsection (1) in the proposed new section 6 creates an offence of soliciting or importuning a trafficked person for the purpose of prostitution. The soliciting can take place anywhere — in public or in private. The person who is solicited can either be the trafficked person or another person, such as a pimp or minder or even the trafficker. No offence can be committed by the trafficked person. The offence can only be committed by the customer even where the customer is another trafficked person. This could happen where, for example, a person trafficked into Ireland for labour exploitation solicited a person who was trafficked for sexual exploitation.

Subsection (2) makes it an offence to accept or agree to accept any type of payment from the person who solicits. Again, this offence does not apply to the trafficked person who has been solicited. Accordingly, under subsections (1) and (2) where a trafficked person is solicited for the purpose of prostitution — in other words, for a sexual purpose — an offence will be committed by the customer, irrespective of whether the customer has been also trafficked, and any person who accepts or agrees to accept any kind of payment in exchange for the prostitution of the trafficked person. In no circumstances can the trafficked person who is solicited commit an offence.

The new section 6(3) sets out the penalties. I am making the offences arrestable in order that the Garda will be in a position to arrest, on the spot, the customer and any person — apart from the trafficked person — who has accepted or agreed to accept payment from the customer for the sexual services of the trafficked person.

The new section 6(4) provides a defence for the customer that he or she did not know, or had no reasonable grounds to believe, the person in respect of whom the offence was committed was trafficked. Such a defence is essential if justice is to be done. The wording is similar to that in an analogous amendment tabled by the Labour Party in the Lower House. It was the latter that gave rise to the tabling of amendment No. 8. Senator Mullen also includes the defence to which I refer in the amendment tabled in his name.

The new section 6(5) makes it clear that this provision is not in substitution for section 7 of the Criminal Law (Sexual Offences) Act 1993. While both sections criminalise soliciting for the purpose of prostitution, there are major differences between them. Under section 7 of the 1993 Act, the soliciting must take place on a street or in some other public place. It is essentially an anti-nuisance provision and does not take a moral stance. The person soliciting can be the prostitute, the customer or a third party such as a pimp. It is a summary offence with modest penalties. The new provision proposed in the amendment is confined to soliciting a trafficked person. The offence can be committed anywhere, including in the types of places — such as a brothel, a hotel room or an apartment — in which a trafficked person is likely to be solicited. The trafficked person cannot commit an offence of soliciting under this section. Both the customer and the person who accepts some form of payment for the service to be provided by the trafficked person can commit an offence. The final significant difference is that the penalties are more severe in this proposal than they are in the 1993 provision.

The new section 6(6) provides definitions. The reason it is necessary to define a trafficked person for the purpose of this section is that the term was only used in the Bill in section 5, which deals with the trafficking of adults. That is also the reason it has been found necessary to make minor drafting changes in sections 2 and 5, as provided for in amendments Nos. 1 and 5, respectively.

The amendments arose as a result of strong and compelling arguments made on Second Stage in this House and during the debate on the Bill in the Lower House. It is clear there was support on all sides for amendments along these lines. It was explained on Second Stage that any amendments would have to be credible. This provision is not merely a decoration in the Bill that is intended as some form of moral judgment or a sigh of disapproval in respect of those who have sex with trafficked persons. It would be bad law and bad practice to create an offence that would be impossible to enforce.

In light of the matters to which I refer, the format used in the amendments is regarded as the one most likely to make a practical difference. It largely applies and extends current laws on soliciting into an area that can be employed specifically to target the users of the sexual services of trafficked persons.

The amendments tabled by the Labour Party and Senator Mullen are based on amendments put down in the Dáil. The latter, in turn, gave rise to the Government amendments to which I have just referred. I am advised by the Parliamentary Counsel that the form of words used in the amendments tabled by Senators is too broad and would prove difficult to prosecute.

By expressing the offence in terms of soliciting for the purpose of prostitution, it would be easier to gain convictions. For example, it would not be necessary to prove in court that the customer actually had sex with the trafficked person. The offence of procuring is already well covered in Irish law. Under the Criminal Law (Amendment) Act 1885, it is an offence to procure any girl or woman to have sex with any other person or persons. Under the same Act, it is an offence to procure any woman or girl to become a prostitute or by threats or intimidation to procure or attempt to procure any woman or girl to have sex. That offence also applies where a person, by false pretences or false representations, procures any woman or girl to have sex. In addition, it is an offence to procure a person for the purposes of sexual exploitation. Senators will agree that the offence of procuring is well catered for under our existing legislation.

I wish to make a final point in respect of criminalising having sex with a trafficked person. If the trafficked person is clearly not consenting to sex, rape might be the appropriate offence with which to charge the customer.

I commend amendments Nos. 1, 5 and 8 to the House. In my opinion, they meet many of the concerns raised in the Lower House and on Second Stage in this House.

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