Katherine Zappone (Independent) | Oireachtas source

The size of the industry is dramatically smaller in Sweden than in other European countries and this has been verified by all the European and international experts. Critics maintain that there is no evidence that this is a result of the law but there is no other determining factor in comparative studies for similar countries such as Denmark. An approach that diminishes the size and scale of prostitution has major implications for the control of trafficking as there is increasing evidence that there is a direct corollary between the level of trafficking in a destination country and the size of the sex industry in that country. An emphasis was placed on the extensive services in Sweden which, in the view of the delegation, negated the unnecessary polarisation of harm reduction versus criminalising buyers. We heard evidence that the Swedish law ensures there is a focus on exit routes, which is what the vast majority of women say they want in any regime.

I am also of the view that prostitution is intrinsically a violation of human rights and the UN Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, and the Convention on the Elimination of All Forms of Discrimination against Women are clear on that. The pimping or procuring of others for the purpose of prostitution has been condemned by the UN convention on trafficking and the Palermo protocol states that ratifying nations must aim to reduce the demand that leads to sex trafficking. Research has shown that decriminalising leads to sex trafficking.

I will direct my next remarks to the amendment to section 5 of the 1993 Act, which the Minister has addressed and to which she will table amendments on Committee Stage. I express my gratitude to her for her willingness to take Second Stage of my Criminal Law (Sexual Offences) (Amendment) Bill 2014, which puts forward a way to bring our laws with regard to people with intellectual disabilities into line with what they advocate for themselves and with best international human rights standards, including the United Nations Convention on the Rights of Persons with Disabilities. My Bill, which was written in consultation with self-advocates and the centre for disability law and policy in Galway university, proposed to delete section 5 of the current Act, which criminalises people with intellectual disability if they engage in sexual relationships before marriage. I understand that is what the Minister will also propose but my Bill puts forward additional amendments to the Act to avoid any discrimination against people with disability, including a statutory definition of consent to sex that respects the sexual agency of all actors while criminalising all sexual acts that are not agreed upon or understood by all parties. It provides a nuanced definition of consent which is inclusive of people with disabilities. It states that, in determining whether consent was validly given, a person's mental impairment is not a determinative factor. This requirement reflects the obligations contained in the UN Convention on the Rights of People with Disabilities, especially in Article 12, as interpreted by the UN committee, which states that deficits in mental capacity must not be used as a justification for denying legal capacity.

The debate has been considered by the Minister and her Department in order to assist them deliberate on how to amend these parts of our current law. I am grateful for that but I am dismayed by the fact that these amendments are still not part of the Bill before us. As she will be aware, the Joint Committee on Justice, Defence and Equality met with the Department on 4 February 2015 and was briefed on the heads of the Bill, which were published approximately a year ago. The heads did not contain a replacement of section 5. It was blank apart from a note that the Department was considering submissions received on this section. I am aware that submissions received in this section from at least nine organisations supported a move away from any disability-specific offences or any offences specifically targeted at vulnerable persons where vulnerability is primarily defined on the basis of an impairment.

At the meeting of the Joint Committee on Justice, Defence and Equality on 11 March we sought an update on the drafting of this head and on 1 April the Department responded by saying it had not yet been finalised but that it was expected shortly and a copy would be sent to the committee. That never happened and it is deeply regrettable that the Joint Committee on Justice, Defence and Equality was unable to do any pre-legislative scrutiny of this issue. I think this reduces the potential of the Government amendment to be as good as it could be. The self-advocates and the advocates and legal experts who support them have a right to be disappointed in this hole in our legislative process. Let us hope that, when the amendments are tabled on Committee Stage, these people are not also disappointed in their content and their substance.