Jillian van Turnhout (Independent) | Oireachtas source

I move amendment No. 1:

In page 6, line 14, to delete “child pornography” and substitute “child sexual abuse material”.

As set out during Second Stage in October, tackling child sexual abuse material on the Internet has been a consistent priority for me throughout my time in the Seanad. I firmly believe the proliferation of child sexual abuse material on the Internet is a stain on our moral conscience. A child sexual abuse image is a crime scene, a digital record of sexual abuse being perpetrated against a real child in the real world. I reiterate my disappointment that the decision was not taken to introduce a filtering system against online child sexual abuse material or to do so by statutory instrument. We continue to rely on the threat of this as a means to coerce ISPs into self-regulation and on the Garda to develop a response.

The term "child pornography", as defined under section 2 of the Child Trafficking and Pornography Act 1998, is the same term used in this Bill. We should take this opportunity to replace the term "child pornography" with the more apt and reflective descriptor "child sexual abuse material". I have tabled amendments to this effect. I appreciate that the word pornography, which first appeared in the English dictionary in the mid-19th century, and the use of pornography have until relatively recently been associated with salaciousness and taboo and contrary to the morals of respectable society. Pornography was secretive, shameful and unacceptable. Against this backdrop, the term "child pornography" makes much more sense but attitudes towards pornography have changed significantly over the years. Pornographic material can now be purchased openly in newsagents and petrol stations throughout the country, where it is stored on the top shelves. "Pornography" is no longer a dirty word and its use is no longer an underground practice. As such, I really do not believe the seriousness and repugnant nature of depictions of children being raped, of incest or of children being sadistically assaulted or tortured for the sexual gratification of paedophiles is adequately captured by the term "child pornography". Furthermore, I believe the term is misleading regarding the child's role or agency in his or her exploitation. The majority of law enforcement agencies working in this area, most notably Interpol and Europol, agree. According to Interpol, the world's largest policing organisation:

A sexual image of a child is “abuse” or “exploitation” and should never be described as “pornography”.

Pornography is a term used for adults engaging in consensual sexual acts distributed (mostly) legally to the general public for their sexual pleasure. Child abuse images are not. They involve children who cannot and would not consent and who are victims of a crime.

The child abuse images are documented evidence of a crime in progress – a child being sexually abused.

The Minister of State will be aware that I tabled an amendment similar to amendment No. 1 to the Children First Bill. The Minister for Children and Youth Affairs, Deputy James Reilly, agreed that the term "child pornography" is outdated and fails to reflect the full horror of sexual abuse involved. He stopped short of accepting my amendment on the basis that "child pornography" is still the language used in international instruments by which we are bound. He referred in particular to EU Directive 2011/93/EU, which is to combat sexual abuse and sexual exploitation of children and child pornography, and the Lanzarote convention of the Council of Europe. I am not sure, however, whether it is strictly necessary as a matter of law to use the exact same language as used in the convention and elsewhere provided we give robust effect to the substance of the measure.

One of the methods of interpreting international treaties is the teleological or purposive approach, which involves looking to the purpose of the international instrument and the broad intent motivating the enactment of the measure rather than its strict text. Notably, Article 41 of the Vienna Convention on the Law of Treaties states, "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." Given that international treaties usually apply to multiple countries in many different languages and legal traditions, an excessively literal approach is often unhelpful. By analogy, it is submitted that, provided we address the substance of the relevant international and supra-national measures and achieve, in substance, the outcomes laid out in these instruments, the precise language we use to achieve these aims would not be of primary concern to the relevant monitoring bodies. The Council of Europe and the European Union are unlikely to be troubled if we use different language to achieve substantially the same outcome as set out in the relevant instruments.

The United Kingdom, our fellow European Union and Council of Europe partner, grappled with similar concerns over the inappropriateness and non-reflectiveness of the terms "child prostitution" and "child pornography". These are removed from its Sexual Offences Act 2003 through amendments in the Serious Crime Act 2015. The term for both phrases is now "sexual exploitation of a child".Incidentally, the practice of updating the language used in criminal statutes to reflect modern understanding is not unknown in Irish law. In section 2 of the Criminal Law (Rape) (Amendment) Act 1990, for instance, the offence of indecent assault upon any male person and of indecent assault upon any female person are effectively renamed as "sexual assault". It states, "The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault." I have used similar language in this amendment, the broad impact being that what was formerly known as "child pornography" should henceforth be known as "child sexual abuse material". I believe it is a case of when and not if other jurisdictions will follow suit. I am aware of concerted lobbying efforts by groups such as ECPAT in the UK and at EU and international levels to have these terms removed from the directives and the conventions. We can and we should act now. We need to show leadership.

I wish to clarify that the second subsection, as it were, that I included in this grouping of amendments is designed to avoid the risk of a trial collapsing because of an inadvertent reference to the existing terminology. I have tried to ensure that we protect it. I believe we should be taking this approach.