Brendan Smith (Cavan-Monaghan, Fianna Fail)

It appears, from the use in this amendment of the term "trafficked person", that the amendment relates only to adults. The first part of the amendment would make it an offence to sexually exploit a trafficked person. No provision is made for the defence of not knowing, or having reasonable grounds to believe, that the person was trafficked. It is an offence, under section 5, to engage in the trafficking of an adult for the purpose of "sexual exploitation". The terms "sexual exploitation" and "trafficks" are defined in section 2. The definition of "trafficks" includes taking custody of a trafficked person or taking a trafficked person into one's care or charge or under one's control. It also includes providing the trafficked person with accommodation or employment. Given the nature of trafficking, any person who sexually exploits a trafficked person is almost certainly guilty of the offence of trafficking. If an adult is to be deemed to have been trafficked for the purposes of sexual exploitation, there must have been coercion or deceit, or the person must have been threatened or abducted, or had force used against them. It is unlikely, in such circumstances, that the person is consenting to the sexual activity he or she is expected to indulge in as a result of being trafficked.

This amendment is unnecessary for the reasons I have outlined. Some of the sexual activity mentioned in the definition of "sexual exploitation" is already an offence. I refer, for example, to the commission of an offence listed in the Schedule to the Sex Offenders Act 2001 or to the controlling of the activities of a prostitute.

The second part of amendment No. 9 repeats a provision in the Child Trafficking and Pornography Act 1998, which relates to children. This provision is not a trafficking provision. It emerged from section 17 of the Non-Fatal Offences against the Person Act 1997, which created an offence of taking or detaining a child "so as to remove the child from the lawful control of any person having lawful control of the child". The maximum penalty on conviction set for that offence was seven years of imprisonment. A higher penalty was provided for when the taking or detaining of the child was done for the purposes of sexual exploitation. Accordingly, it was a child-centred provision, aimed at protecting children against sexual exploitation. It was not concerned with trafficking. Section 15 of the 1997 Act fully protects people against the activity which this amendment seeks to address. It provides that when a person takes or detains a person, causes a person to be taken or detained, or otherwise restricts the personal liberty of a person for any reason without that person's consent, the person commits an offence and is liable on conviction on indictment to imprisonment for life. The amendment would restrict the operation of that section by obliging the prosecution to prove that the person was taken or detained for the purpose of sexual exploitation. Apart from that comprehensive provision in the 1997 Act, the definition of "trafficks" in this legislation includes taking custody of a person or taking a person into one's care or charge or under one's control or providing accommodation for that purpose. For the reasons stated, the amendment would add nothing to the legislation in regard to the aspirations outlined by the Senator and I do not propose to accept it.