Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I thank the Senator for her comments. Following a number of judgments in the High Court which struck out offences relating to public indecency and exposure, section 39 will replace section 18 of the Criminal Law (Amendment) Act 1935. It provides for new offences to address certain behaviours. These are very clearly spelled out in the section. We have taken extensive legal advice and have liaised with the Director of Public Prosecutions and others on this section. I am very strongly advised that these provisions set an objective standard as the test for offensive conduct, that is, conduct which may be reasonably considered offensive by many.

Obviously, I take the point Senator Bacik is making. She is concerned that defining offensive conduct of a sexual nature as behaviour which is likely to cause fear, distress or alarm to any person could lead to the criminalisation of behaviour which is not intended to offend. The Senator has given an example and I understand her concerns. However, I want to reassure her that the definition as currently drafted establishes an objective test of what might reasonably be considered offensive, having regard to all of the circumstances. I am strongly advised that conduct that is not offensive per sesuch as the Senator Bacik described in her example would not be captured by this offence. The strong legal advice I have is that the drafting is quite strong.