Ivana Bacik (Independent) | Oireachtas source

I was taken by surprise by the speed of the Acting Chairman. I wish to briefly raise an issue on the offence created in section 39 of "exposure, sexual conduct of an offensive nature". I raised this previously with the Minister and her officials. I know that there is quite a long history to the relevant previous offence of indecent exposure and that there has been some litigation and constitutional judgments relating to the issue of vagueness of language concerning this type of offence.

I wish to raise a concern which I have raised previously with the Minister and her officials with the wording of subsection (3) of section 39 which reads as follows, "A person who intentionally engages in offensive conduct of a sexual nature is guilty of an offence." That is still a very widely defined offence. Subsections (1) and (2) are very carefully framed. Subsection (1) very clearly concerns a very specific act, while subsection (2) concerns a person in a public place who engages in a series of specific acts. However, there is no such restriction about a public place in subsection (3) and I am concerned that "offensive conduct of a sexual nature" is too broad a term.

Subsection (6) provides for a definition of "offensive conduct of a sexual nature" which is very welcome, especially as it is quite specifically drawn. However, I have a residual concern that saying that conduct which is likely "to cause fear, distress or alarm to any person who is, or might reasonably be expected to be, aware of any such behaviour" is still quite a subjective test. I know there is an objective element to it but concerns have been raised with me by constituents about this.

A homophobic person, for example, might raise the fact that he or she suffered "fear, distress or alarm" by the behaviour of a gay couple but that would not be the sort of behaviour that one would want to see covered by this offence. There is a concern that it might give room, credence or justification to homophobic complaints. That is the concern that has been expressed to me and I ask the Minister to reassure me on that issue. I know that changes have been made to the way this offence has been drafted and that there is an awareness of the need to ensure that people will not be able to raise unjustified complaints about behaviour.