Brendan Smith (Cavan-Monaghan, Fianna Fail)

I thank all the Senators who have contributed on amendments Nos. 8 and 14. The purpose of amendment No. 8 is to criminalise soliciting or importuning any person in any place for the purpose of prostitution. In other words, it extends the present soliciting laws to include soliciting in private.

I assume it is intended to repeal section 7 of the 1993 Act as it would overlap with this amendment and cause nothing but confusion. In that case, the amendment would decriminalise soliciting by a prostitute. The purpose and effect of this amendment are the same as those of an amendment defeated following prolonged debate on Committee Stage. It seemed to me during that debate that there was confusion as to the present laws governing prostitution and allied issues.

I will now outline the present laws. Some are very old, as most Senators have stated, but most are modern and originated in the 1990s. On the Criminal Law (Amendment) Act 1885 and the offences of procurement, there was some confusion over the meaning of "procure". Procurement has been interpreted in case law as bringing about a course of conduct that the girl in question would not have embarked on spontaneously or of her own volition. It was held that the offer of a large sum of money for undertaking tasks could amount to persuasion and, consequently, an attempt to procure.

The offences of procuring are: to procure or attempt to procure any woman or girl not being a prostitute or of known immoral character to have sexual intercourse with any other person; to procure or attempt to procure any woman or girl to become a prostitute or to leave Ireland with the intent that she should become an inmate of or frequent a brothel; and to procure or attempt to procure any woman or girl to leave her usual place of abode with the intent that she may, for the purpose of prostitution, become an inmate of or frequent a brothel. These offences are clearly out of date and are being examined at present in the context of the preparation of a sexual offences Bill, as a referred to Senator Lisa McDonald.

The main prostitution offences are listed in the Criminal Law (Sexual Offences) Act 1993 and were referred to by Senator Joe O'Toole. Section 7 created an offence of a person soliciting or importuning another person in a street or public place for the purpose of prostitution. The scope of this provision was questioned on Committee Stage. First, the soliciting must be in a street or public place. "Public place" is defined as "any place to which the public have access whether as of right or by permission and whether subject to or free of charge". The soliciting can be by the prostitute, the customer or the third party. This is set out in section 1(2), in which it is stated:

a person solicits or importunes for the purposes of prostitution where the person—

(a) offers his or her services as a prostitute to another person [in other words, the prostitute],

(b) solicits or importunes another person for the purpose of obtaining that other person's services as a prostitute [in other words, the client], or

(c) solicits or importunes another person on behalf of a person for the purposes of prostitution [in other words, a third party such as a pimp].

This has been outlined very well by Senator Joe O'Toole.

Under section 8 of the 1993 Act, it is an offence to loiter in a street or public place in order to solicit or importune another person for the purpose of prostitution. Again, this offence can be committed by the prostitute, customer or third party and is useful in curbing kerb crawling.

Section 9 of the Act made it an offence, for the first time, to organise, direct or control prostitution or to coerce or compel a person to be a prostitute. Under section 10, it is an offence to live on the earnings of prostitution. Section 11 recreated the offence of brothel keeping, an offence in respect of which the Garda has had some recent success in gaining convictions.

Section 23 of the Criminal Justice (Public Order) Act made it an offence to advertise a brothel or the services of a prostitute in circumstances that would give rise to a reasonable inference that a premises is a brothel or that the service is one of prostitution.

The Criminal Law (Sexual Offences) Act 1993, in so far as prostitution is concerned, had two purposes, the first of which was to protect areas of our cities from the harassment, noise and anti-social activities generally that accompany public prostitution. Those of us who were Members of the Oireachtas in 1992 and 1993 will remember the public call, through the broadcast and print media, to curb desperate harassment caused by prostitution. The call was made by community leaders, families and the public at large and the topic was covered constantly.

The Act protected prostitutes from the clutches of persons who controlled their activities or coerced or compelled them into prostitution. The provisions of the Act came about after much consideration following an earlier court case that had effectively struck down the soliciting provisions and created a balance that seems to be working reasonably well.

Virtually all street prostitutes are poor, vulnerable drug addicts who prostitute themselves to obtain money to feed their habits. No matter what changes are made to criminal law, these unfortunate prostitutes will still be poor, vulnerable and addicted to drugs. What they require is not a change to the law, which might increase their vulnerability, but the provision of services to enable them to come off drugs, obtain frequent health checks and have a normal, healthy life.