Brendan Smith (Cavan-Monaghan, Fianna Fail)

Senator Mullen raised this issue on Committee Stage. I undertook to consider the amendment before Report Stage to see if there was a gap in the law that needed to be plugged. Following an examination of the issues involved, I am satisfied and advised that the Bill is strong enough to cater for the situation envisaged in the amendment, which has been resubmitted in a slightly different format.

Human trafficking is an offence against the person. It is different from people smuggling, which is an offence against the State. Persons who are smuggled into a country, usually economic migrants who have paid a substantial amount of money to the smugglers, are free when they arrive at their destination. The smugglers have no further interest in them. This is in total contrast to trafficking, where the trafficked persons on arrival at their destination are enslaved by the trafficker or by another person to whom the unfortunate trafficked person has been sold. This is the reason human trafficking has been described as a modern form of slavery. The trafficked person has no independence and he or she will remain under the control of the exploiter, whether the exploiter is at that stage still the trafficker or another person.

The definition of "trafficks" in the Bill incorporates all the persons in the trafficking network, from the trafficker him or herself to any person who subsequently takes control of the trafficked person. As long as the trafficked person is of value to the exploiter, he or she will be in the care or charge of the exploiter and will be under his or her control. The trafficked person would be also in accommodation provided by the exploiter.Therefore, under the provisions of the Bill, a person who is comprehended by the definition of "trafficks" who sexually exploits a trafficked person for any of the purposes listed in the definition of "sexual exploitation" would be guilty of one or more of those offences. Almost certainly, the trafficked person would not consent to the sexual abuse set out in the definition of "sexual exploitation". Even where she did consent or appear to consent, under section 5(2), that would not be a defence for the defendant in any case brought before the courts.

The effect of the amendment would be to criminalise a range of activities with a person who may have been trafficked but is now a free agent. At this stage, if it was ever reached, the person who had been trafficked but was now totally free to do as he or she wished would be in position that was no different to that of any other person who had not been trafficked. The conduct that makes up the definition of sexual exploitation of a trafficked person is a mixture of conduct which would, in any case, be an offence and conduct which may not, depending on circumstances, be an offence. An example of the former is paragraph (d) of the definition, that is, the commission of an offence specified in the Schedule to the Act of 2001. An example of the latter is paragraph (a), which is the production of pornography.

I hope I have adequately explained why this amendment is unnecessary and would offer no additional protections to trafficked persons, as would be its intention. It would also be bad law in that one person could be criminalised and face up to life imprisonment for doing something which, if done by another person, might not even be an offence. If Senator Mullen wishes to initiate a debate on any aspects of what is included in the definition of sexual exploitation, such as our attitude to pornography, that is his right. Such a debate might not be a bad thing. Any changes to the law on such issues could only follow a public debate and would have to take into consideration such modern technologies as the Internet, mobile phones and satellite television.