Tuesday, 6 October 2015
Criminal Law (Sexual Offences) Bill 2015: Second Stage
I am very pleased to present this Bill to the House.
This Bill is the most comprehensive and wide ranging piece of sexual offences legislation to be introduced in almost a decade. It strengthens existing law to combat child pornography, the sexual grooming of children, incest, exposure and other offensive conduct of a sexual nature. Not only will the provisions in this Bill target those who target children, there is also recognition of the needs of victims of sexual offences and those who assist them. In this respect, I am particularly pleased that provisions are included in this Bill which, when enacted, will regulate and bring certainty to the disclosure of counselling and therapy records in sexual offence trials. In addition, amendments to criminal evidence legislation acknowledge the difficult experience which a trial process may be for the victim of a sexual offence.
Other measures include the introduction of harassment orders prohibiting convicted offenders from contact with their victim. Finally, and an issue which has already been the subject of considerable debate, the Bill will criminalise those who purchase sexual services.
All of the provisions in the Bill, which I will outline in more detail, are the culmination of a long process and wide consultation.
For example, in terms of EU directives on child sexual exploitation and abuse and other international obligations which we have. There are, however, and I want to clearly acknowledge at the outset, provisions absent from the Bill which were approved for inclusion - most notably provisions to replace section 5 of the Criminal Justice Act 1993 in relation to the protection of mentally impaired persons and provisions to amend and update the Sex Offenders Act 2001. I assure Members of the House that these are not matters which have been discarded, far from it.
The repeal of section 5 of the Criminal Justice Act 1993 was the subject of a Bill brought forward by Senator Zappone last year. As I acknowledged when we debated that Bill, section 5- titled protection of mentally impaired persons - is of its time and should be repealed. It fails to facilitate the full participation in society of disabled persons and the full expression of their human rights. Achieving the necessary balance between those rights and ensuring appropriate protection is crucial. However, I can assure the House, and in particular Senator Zappone, that I will bring forward amendments in this House to this Bill to address section 5.
In relation to the amendments to the Sex Offenders Act 2001, the drafting of these provisions is also continuing. Legal issues which arose during drafting as well as the need to update the provisions to reflect operational advancements have been the primary cause of delay. However, many of those matters are now resolved. It is my intention that these provisions will be brought forward as a separate piece of legislation amending the 2001 Act. I assure the House that bringing forward the amendments to the 2001 Act is an absolute priority.
Given the wide-ranging nature of this Bill, it is not possible to outline every aspect and detail but I am confident that the provisions will be thoroughly considered during the further discussions today and at later Stages.
In my view the provisions contained in Part 2 of this Bill which address the sexual exploitation of children are among the most important criminal law provisions to be brought forward. We must take every step possible to combat and target those who engage in the sexual exploitation of children, and in those activities which support and promote the sexual exploitation of children. While we already have significant legislation in place to target those who prey on children, the provisions under Part 2 are a further step. Contained in this Part are measures which strengthen existing law in the area of child pornography as well as new offences targeting child sexual grooming which focus on those who use modern technologies to engage with children with the purpose ultimately of sexually exploiting those children.
Section 3 is an offence of obtaining or providing a child for the purpose of sexual exploitation. This offence builds on the existing offence of sexual exploitation under the Child Trafficking and Pornography Act 1998. In terms of paying a child or another person for the purpose of sexually exploiting a child, the provision is clear that such would include "any other form of remuneration or consideration" other than monetary. For example, the giving of a computer game or such to a child would fall under the provisions of this section. The section also criminalises offering a child or obtaining a child without reference to monetary or other form of remuneration. In order to target, at the earliest possible point, any intention to exploit a child, it is important that the law sets out in detail those initial acts or steps which a predator may take to gain access to a child.
What constitutes sexual exploitation is defined in section 2 and includes engaging a child in prostitution or child pornography, the commission of a sexual offence against the child or causing another person to commit such an offence. In line with the offence of sexual exploitation under the 1998 Act, and the requirements of an EU directive on combating the sexual abuse and sexual exploitation of children, the offences targeting these pre-emptive steps to the exploitation of children apply to children up to the age of 18 years.
Section 4 closes a possible gap in existing law in relation to the sexual assault of children. Under the law as it stands, a child under the age of 15 years cannot consent to an act which, without consent, would amount to sexual assault. While the touching of a child would amount to sexual assault, this section clarifies that a person who invites a child to touch them or another person is committing an offence. The penalty of up to 14 years is the same as for sexual assault.
Sections 5 to 8, inclusive, are offences connected with the sexual grooming of children. Sections 5 and 6 provide for offences relating to sexual activity in the presence of a child or causing a child to watch sexual activity.Familiarising children with such activity or material can take place during the early stages of the predatory process, leading to more serious forms of child sexual exploitation.
Section 7 is an offence which targets the point at which initial contact has been made with a child by a person intent on the sexual exploitation of that child. The offence arises where the person then meets with the child or makes arrangements to meet with the child. Again, this targets activity prior to actual exploitation of a child.
Section 8 contains two new offences addressing the use of modern communication technologies in the grooming and exploitation of children. Modern communication technologies and social media generally are incredibly useful tools for everyone. However, children and young people in particular are vulnerable to unwanted and seemingly innocuous contact from those who may prey on them. The offence under this section is an acknowledgement of that risk. It criminalises the initial stages of grooming where communication via, for instance, the Internet is the first step in facilitating the sexual exploitation of children. Section 8 offers further protection to children from unwanted advances by including an offence of sending sexually explicit material to a child by mobile or Internet communication. The seriousness of these offences is reflected in the potential penalties, which may be imposed, of between ten and 14 years.
Sections 9 to 14 amend the Child Trafficking and Pornography Act 1998. There are already significant offences under Irish law relating to child abuse material or child pornography as defined under the 1998 Act and the provisions in the Bill strengthen those provisions. In terms of new offences, recruiting or causing a child to participate in a pornographic performance is now a specific offence as is attending a live pornographic performance including viewing such by means of information and communication technology. We are hearing more and more disturbing reports of the international exploitation of children and children being made available for sexual exploitation that is being recorded and being viewed around the world.
I would also like to draw attention to the provisions in sections 16 and 17 of the Bill which provide for offences of a sexual act with a child below the ages of 15 and 17, respectively. These offences replace the existing defilement offences under the Criminal Law (Sexual Offences) Act 2006. There are two notable amendments to the existing offences. First, there is a change in relation to the defence of "mistake as to age". Under the 2006 Act, an accused could rely on a defence of honest belief as to the age of the complainant. This is a subjective test requiring the accused to prove that he or she honestly believed that the other party had reached the specified age. Under this Bill, the defence will be one of reasonable mistake as to the age of the complainant. This is an objective test under which the court shall consider whether in the circumstances of the case, a reasonable person would have concluded that the child had attained the required age.
The second issue I would like to highlight is the recognition in the Bill of under age, consensual, peer relationships through the introduction of a "proximity of age" defence. Under this provision, a person charged with an offence of engaging in a sexual act with a person between the ages of 15 and 17 years can rely on a defence where the act is consensual, non-exploitative and the age difference is no more than two years.
Part 3 of the Bill deals with the criminalisation of the purchase of sexual services. I will return to this Part shortly but would first like to outline some of the main provisions contained in the other parts of the Bill. Part 4 of the Bill modernises and restates the law in relation to incest. It corrects a gender anomaly with regard to the penalties for an offence of incest by a male and incest by a female. At present, incest by a male is punishable by a maximum sentence of life imprisonment whereas incest by a female is punishable by a maximum sentence of up to seven years' imprisonment. Under this Part, both offences will be subject to penalties of up to life imprisonment.
Part 5 of the Bill provides for a number of amendments to the Criminal Evidence Act 1992 designed to support and protect victims of sexual offences during the criminal trial process. Measures to further protect child victims of sexual offences from any additional trauma during the giving of evidence include giving evidence from behind a screen. Provision is also included preventing a person accused of a sexual offence from personally cross-examining a person under the age of 14 years unless the interests of justice require such cross-examination. A court may also direct that an accused may not personally cross-examine a child between the ages of 14 and 18 years. Safeguards to protect the rights of the accused to a fair trial are included, such as directing the jury that no inferences may be drawn from the fact that an accused has been prevented from conducting such a cross-examination.
A further provision in this part, which I would like to highlight, and which I mentioned earlier, is the provision under section 33 on the disclosure of third party records in certain trials. The appropriateness of the disclosure of such records will be the subject of a pre-trial hearing and any disclosure will, while respecting the rights of an accused to a fair trial, take account of the right of a victim of a sexual offence to privacy. Only records, or parts thereof, which are likely to be relevant to an issue at trial and which are necessary for the accused to defend the charges against him or her should be disclosed.
Part 6 of the Bill deals with amendments to existing jurisdiction legislation to include new offences created under this Bill to enable the prosecution of offences committed against children outside the State by citizens of the State or by persons ordinarily resident in Ireland.
I would like to draw attention to two provisions in Part 7 of the Bill. Section 39 contains an offence of exposure and offensive conduct of a sexual nature. The existing offence of public indecency has been struck down by the courts on the grounds of vagueness and the new offences contained in section 39 clarify the acts and activities which give rise to an offence.
Section 40 introduces harassment orders whereby a court can impose an order prohibiting a convicted sex offender from contacting or approaching his or her victim for a specified period of time. The order can be imposed at the time of sentence or at any time prior to the offender's release. The order may be imposed where the court is satisfied that the offender has behaved in such a way as to give rise to a well-founded fear that the victim may be subject to harassment or unwanted contact by the offender such as would give rise to fear, distress or alarm, or amount to intimidation.
I think the House will agree that the provisions of this Bill are a significant step forward in targeting those who would abuse children, as well as offering some further protection to victims of sexual offences.
Returning now to Part 3 of the Bill, this part contains two sections providing for the criminalisation of the purchase of sexual services. This is a matter which has already been the subject of considerable debate both inside and outside these Houses, and indeed beyond this State. The two offences contained in the Bill, the first a general offence of paying to engage in sexual activity with a prostitute, and the second, the more serious offence of paying to engage in sexual activity with a trafficked person, are the result of considerable and extensive public consultation by my Department but, primarily, by the Oireachtas Joint Committee on Justice, Defence and Equality, which recommended similar proposals in 2013.
The committee received 800 submissions.
In deciding to put forward these provisions I have considered all sides of the debate. I have considered the experience of those states which have introduced similar measures and those states which have addressed prostitution in a different way. First, let me be clear as to what these provisions do. It will be an offence for a person to pay, offer or promise to pay, a person for the purpose of engaging in sexual activity with a prostitute. The person providing the sexual service, the prostitute, will not be subject to an offence. The purpose of introducing these provisions is primarily to target the trafficking and sexual exploitation of persons through prostitution. Both the Council of Europe and the European Parliament have recognised the effectiveness of the criminalisation of the purchase of sexual services as a tool in the fight against human trafficking.
Yes there are. There is a very detailed report from the Council of Europe and the European Parliament on this issue.However, even to leave aside this unquestionable objective, there is undoubtedly evidence of a wider exploitation of persons involved in prostitution outside of those trafficked, such as those coerced or otherwise forced through circumstances to engage in the activity. The most direct way of combatting this form of exploitation is to send the message to those who pay for these services and who ignore the exploitation of women and men involved, that their behaviour is unacceptable and that it supports the exploitation of other people. There are many aspects to the debate on these provisions which I expect will be raised here today and during the passage of this Bill. These include issues regarding the impact of them on the safety, health and well-being who work in prostitution; concerns that these changes will drive prostitution further underground; and arguments that women and men can freely and voluntarily provide these services without experiencing the exploitation which I believe is widely and normally associated with prostitution. In deciding to put forward these proposal I have listened to all sides of the debate and I am convinced that to target the exploitation associated with prostitution requires targeting those who demand those services. I look forward to hearing and discussing all of these issues with the Members of the House and in further debates on the Bill.
In recognising the exploitation associated with prostitution I would like to inform the Senators that I will bring forward amendments in this House which will further decriminalise the women and men involved in prostitution by removing from the existing offences of solicitation and loitering for the purposes of prostitution those who offer sexual services. I thank Members of this House, many of whom have contributed to the content of this Bill, through their work both inside and outside the House. I also thank the victims’ support groups and community groups who have contributed to the development of this Bill over a long number of years, who have made very thoughtful submissions and clarified their points of view, particularly in working with the justice committee.
I believe this Bill is overall a reflection on the advances in technology, research, experience and debate. Regardless of the focus of the debate today, or later inside this House or outside it, let us not forget the primary purpose of the Bill, which is to substantially strengthen our law, to target our most vulnerable - our children - and to send a message to all victims of sexual offences that we recognise the unfathomable harm and trauma inflicted upon them and that we support them.
On behalf of the House I thank the Minister for bringing this Bill to this House. Senators welcome the fact that as a former Leader of this House, the Minister appreciates that the contributions will be very worthwhile. I also welcome to the House the Minister’s senior officials from the Department of Justice and Equality.
I welcome the Minister here this evening. I will refer to key points in her speech which I fully support. The Minister said that the House will agree that the provisions of this Bill are a significant step forward in targeting those that abuse children as well as offering some further protection of victims of sexual offences. She said the Bill will substantially strengthen our law, to target our most vulnerable - our children - and to send a message to all victims of sexual offences that we recognise the unfathomable harm and trauma inflicted upon them and that we support them.
I believe that the sexual abuse of a child is on par with murder and that we are lax in our vigilance of potential predators of children, albeit in innocent circumstances. There are children in Ireland who are being minded by people where there is no oversight or Garda vetting. The vast majority of pre-school children in this country are in situations where there is no vetting of the people who are minding them. One day this will blow up in our faces.
I understand from the passion in the Minister’s voice that she is totally in support of the Bill. That is her prerogative. I would, however, like to deal with the section 20, as there is great confusion on this aspect. No matter what happens in the future, following the next election I will not be returning to the Seanad but leaving that aside, it is never wrong to say the right thing. I am a left of centre feminist but I am not an extreme feminist. I treat men and women equally but I believe that on this issue there is an alliance between extreme feminists and extreme conservatives. It is an extraordinary alliance and the less said on that the better, but I feel I must be honest with myself and say it. In this regard I believe that section 20 confuses trafficking with prostitution. It is daft. We all oppose trafficking of human beings. We are totally and utterly opposed to it. Our record is very poor on trafficking, criminalising trafficking and the people who traffic human beings. I want this to be on my record in this House, even as I do not intend to be here again following the election.
The buying and selling of sexual services in a private dwelling in Ireland is currently legal but virtually all other activities associated with buying and selling sexual services are criminalised. For example, it is illegal for more than one person to sell sexual services in a private place, it is illegal to buy sexual services on the street or in a public place and it is illegal to sell sexual services on the street or in a public place. Section 20 criminalises the purchase of sex in Ireland making it illegal to pay a person for sexual services. The stated aim of criminalising the purchase of sex is to stop sexual exploitation and trafficking by ending the demand.
However, in countries such as Sweden, where similar laws were introduced, there is no coherent evidence that demand is reduced or that exploitation and trafficking are decreased, as outlined by Sex Workers Alliance Ireland in its paper on criminalisation and safety. The sex industry merely adjusts and sex work continues, further from the authorities and further from safety. Independent research shows that the legislation proposed in line with section 20 simply does not work, rather it increases the risk of exploitation, trafficking and abuse. Sweden enacted legislation in 1999 to criminalise the purchase of sex. However, in the sex workers report, there are ten reasons outlining why the Swedish law does not work. Dr. Kathryn McGarry of NUI Maynooth states how the people that the Swedish ban purports to protect are the very people most adversely impacted by the ban. The report goes on to state that the 2010 official evaluation of the Swedish sex purchase ban provides little valid evidence of any noticeable difference since the introduction of the ban. Instead, sex workers were forced to sell their sex in areas less familiar, less safe and less visible. Their relationship with the law enforcement agencies deteriorated further.
Criminalised environments limit the abilities of sex workers to manage their own safety. It pushes those who may be more vulnerable in the first instance, street-based sex workers for example, to less familiar areas out of sight from law enforcers. The ban on the purchase of sex fails to acknowledge how and why women and men make choices to sell sex and it merely imposes constraints on sex workers in their abilities to make contact with clients. Evidence is growing on the adverse effects of the sex purchase ban on sex worker's lives in Sweden. There are negative impacts, not just on sex worker's ability to keep safe, but also threatening sex worker’s personal lives in terms of eviction, child custody arrangements and immigration problems. Women’s voices are too often sidelined and silenced in debates on sex work.Instead, women are often infantilised regarding their choice to sell sex, as something that they have been coerced into through circumstances. By only allowing voices that fit a particular victim frame to be heard, we deny women the opportunity to speak for themselves, to own their own issues and, crucially, to be involved in decisions that affect their lives. Sex workers themselves should be at the centre of any policy or law which directly impacts their lives.
I welcome the Minister and her official to the House and thank them for all their work on this very important legislation. I welcome those in the Gallery who are involved in this area, in particular John Cunningham, the chair of the Immigrant Council of Ireland. They are all very welcome.
As a strong advocate for the welfare and well-being of children, I strongly welcome this Bill which, in addition to tackling sex trafficking, will include stronger sanctions aimed at protecting children from sexual exploitation, child pornography and online grooming. I want to address one point that Senator White made on the Sex Workers Alliance report on the Swedish situation or model. The findings of our own justice committee completely dispute the statements that Senator White has made on the matter. I think it is important-----
Over the last two decades child pornography and online grooming, in particular, have become increasingly widespread both at a national and international level. As such, I am particularly encouraged that this Bill includes two new offences that target online sexual predators so as to protect children from exploitation by way of new technologies, including social media. This Bill includes provisions to criminalise adults who contact children either online or through mobile communications, such as text messaging, for the purpose of sexually exploiting the child. This offence is targeted at the initial stages of grooming and does not require physical contact or meeting between the adult and child in question. The penalty of up to 14 years' imprisonment reflects the serious nature and intent behind the communication and I welcome this in particular.
The Bill also includes the offence of sending sexually explicit material to a child. This new provision protects children from unwarranted and unwanted advances. This is also recognition that the intention behind this type of activity may be to expose the child to such material with a view to developing the child's familiarity with such material or activity.
The Minister has already outlined many of the provisions of the Bill but other new provisions in the Bill which I am very much in favour of include the strengthening of offences to tackle child pornography, the strengthening of the post-release supervision and monitoring of sex offenders, and the introduction of a new harassment order. It also addresses the gender anomaly in incest law.
Sections 3 to 8, in particular, introduce a range of offences that target the sexual exploitation of children. The new offences relate to: paying for the purpose of sexually exploiting a child; invitation to sexual touching; sexual activity in the presence of a child; causing a child to watch sexual activity; and making arrangements to meet a child for the purpose of sexually exploiting that child. New provisions included in the Bill will increase the penalty for incest by a female to up to life imprisonment in line with the existing penalty for incest. Heavy imprisonment penalties for all these new offences will hopefully be a sufficient deterrent and provide a significant step in combatting the risks posed to our children.
This Bill also contains a number of amendments to the Criminal Evidence Act 1992 which are intended to protect child victims of sexual offences from any additional trauma which may arise as a result of giving evidence during a criminal trial, such as extending the use of video recorded evidence and limiting the circumstances in which an accused can personally cross-examine a child witness. Moreover, additional protection will now be provided for victims of sexual offences who are at risk of continuing to be a target of their attacker. Persons convicted of sexual offences and who are to serve a sentence of imprisonment may be prohibited by court order from making contact with their victim.
On the specific issue of child pornography, this Bill includes provisions which strengthen the existing child pornography laws by specifically setting out the very wide range of activities and behaviours related to child pornography which will constitute a criminal offence and which will attract serious penalties. Building on existing offences, the new offences include recruitment of a child or arranging for a child to participate in a pornographic performance, attending a pornographic performance involving a child or organising child prostitution or child pornography. Moreover, offences relating to the possession and distribution of child pornography are strengthened, as the Minister has outlined.
This Bill criminalises the purchase of sexual service. This is a crucial addition if we are to successfully tackle the scourge of sex trafficking. This Bill introduces two new offences that criminalise paying for sexual activity with a prostitute. These offences specifically target the demand for prostitution. The first is a general offence of paying to engage in sexual activity with a prostitute and the second is the more serious offence of paying to engage in such sexual activity with a person who has been trafficked. I see no ambiguity here or confusion between the two. In both cases, the person providing the sexual service does not commit an offence. This approach seeks to address the very real and tragic crimes of trafficking and exploitation associated with prostitution. This provision mirrors the approach adopted in Northern Ireland and in other jurisdictions where there has been a reduction in demand and, notably, over time, an increase in support for similar laws. As such, this Bill reflects an all-island consensus on targeting the exploitative nature of prostitution. It is my understanding that the Minister also today confirmed that she is examining the possibility of introducing proposals to decriminalise a person offering sexual service from the existing offences of soliciting and loitering for the purposes of prostitution under the Criminal Law (Sexual Offences) Act 1993.
In conclusion, this Bill is crucial because it will bring Irish law into line with a number of international instruments including an EU directive on combatting the sexual abuse and sexual exploitation of children and child pornography. It is also a further step towards the ratification of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. I commend this Bill to the House and thank the Minister and her officials for the hard work on the legislation.
I welcome the Minister to the House and I also welcome the Immigrant Council of Ireland, Ruhama, the Dublin Rape Crisis Centre, the representatives of unions and others who have also participated in bringing about this Bill. The Bill before us is a huge achievement for the Minister and her Department. As the Minister has indicated, it is lengthy, complex and deals with a number of reforms. It is time for these reforms. Many children, adults, citizens and civil society organisations wanted them long ago. Their advocacy, legal analysis, research and experience from the front line significantly influenced the coming of these reforms. My own view is that many have suffered exploitation or injustice or a demeaning of their dignity in the absence of such reforms and until we enact and commence new law, this will continue to be the case.
I will speak on Part 3 of the Bill and also on a section of the Bill that is still absent - the Minister has referred to this in her speech - an amendment to section 5 of the current 1993 Act that prevents people with intellectual disabilities from having sexual relationships before marriage.
I will begin by addressing changes in the law that the Minister has outlined in Part 3. I welcome these changes to the Irish law. I know that some of my independent colleagues will also speak to this section because, as the Minister is aware, members of our independent group put forward two Private Members' motions in October 2011 and April 2012 calling on the Government to develop legislation to criminalise the purchase of sex in order to curb prostitution and trafficking.Indeed it was these motions that prompted Deputy Alan Shatter, the former Minister for Justice and Equality, to direct the Joint Committee on Justice, Defence and Equality to conduct a public consultation on the matter, out of which the recommendations for the Bill before us came. When the reform of our prostitution laws came before the Joint Committee on Justice, Defence and Equality the committee's recommendations were the result of an extensive consultation process and are cross-party and independent recommendations. I acknowledge the great leadership shown, and still being shown, by Senator Bacik in this matter.
In addition to the consultation, a number of Members visited Sweden to be informed by the experience there and we learned that it was necessary to engage directly with various organisations and individuals regarding the impact of the 1999 legislation enacted to prohibit the purchase of sexual services.
I wish to put on record my conclusions from that evidence-gathering visit.
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.
I welcome the Minister and her officials to the House and welcome all those in the Gallery who have played such a strong role in helping to form the shape of and influence this Bill for the good, namely, the Immigrant Council of Ireland, Ruhama, ICTU, the INMO and the Dublin Rape Crisis Centre in particular. As the Minister said, it is a genuinely reforming Bill which brings in substantive and significant changes to our law on sexual offences. If there is one overarching theme, it is that it is a Bill which addresses sexual exploitation, in particular of children and those engaged in prostitution. I am particularly proud of the role the Joint Committee on Justice, Defence and Equality has played, to which the Minister paid tribute, in formulating some of the policy basis for the changes proposed in the Bill. I take strong issue with some of the comments by Senator Mary White on the changes in Part 3 of the Bill relating to prostitution and I will speak on those in a moment. I absolutely agree with all Senator Zappone said on Part 3 of the Bill, in particular relating to sections 20 and 21 on the changes in prostitution law.
Two aspects of the Bill are particularly welcome. Part 2 deals with sexual exploitation of children, which Senator Noone has dealt with in detail. I wholeheartedly welcome the changes here, particularly those in sections 16 and 17 that change the 2006 Act in respect of the defence of mistake and in respect of consensual underage peer relationships. These are sensible changes that will greatly enhance protections in our law for children.
Part 5 of the Bill deals with provisions for criminal evidence. I welcome a couple of changes there, in particular section 33 which deals with disclosure of third party records in sex offence trials. The Dublin Rape Crisis Centre has worked very hard on this. Senator van Turnhout introduced amendments on this issue in 2013 which I supported and the Minister deserves our thanks for bringing in these careful provisions. I know from colleagues in practice what a huge issue the disclosure of records, particularly counselling records, has been in sex offence trials. It will be helpful for practitioners, judges and, most of all, complainants to see the clear criteria set out for decision making on the question of disclosure.
I also welcome section 30, a provision granting protection against personal cross-examination by the accused in sex offence trials where a witness is under 18 and under 14, for which there are different provisions. We are carrying out research in Trinity College on the real trauma that can be caused to complainants where a defendant chooses to cross-examine in person and currently there is no restriction on that in Irish law but this Bill will change that. It has been a huge and high profile issue in other jurisdictions and I am glad to see we are taking pre-emptive action. I suggest we consider extending this, perhaps in a more limited form, to adult complainants. This has been done in other jurisdictions to some positive effect.
Part 3 has been addressed in detail by others but I agree with and strongly support the new provisions in sections 20 and 21 concerning purchase of sexual services. Those who have commented on this should know that these changes are supported by a wide range of organisations, including the Immigrant Council of Ireland, the National Women's Council, Ruhama and the Turn Off the Red Light campaign.The change is only being introduced, as Senator Katherine Zappone said, following careful consultations and, in particular-----
-----the long consultations carried out at the Joint Committee on Justice, Defence and Equality. Like Senator Katherine Zappone, I was proud to be part of that and part of the small group which travelled to Sweden and heard direct evidence from those engaged in front-line implementation of the Swedish approach there. Our committee received 800 written submissions. We heard from 26 individuals and representatives of groups through public hearings. Senators may be interested to know that, through hearings, we heard from those for and against the Swedish approach. We heard from those engaged in prostitution both for and against the Swedish approach. I ask colleagues to look at the evidence basis of our recommendations and our report which is careful and well-worded and sets out how persuasive we found the evidence on the reduction of demand for prostitution in Sweden since the introduction of the prohibition on buying sex there in 1999. We noted that 80% of the submissions to us favoured the Swedish approach, that these were drawn from a broad cross-section of civil society, including, trade unions, frontline medical workers, service providers and those working with migrants, in particular.
We also found, again on evidence we heard, that prostitution is widely available across Ireland. It is highly organised, highly profitable, highly exploitative and largely controlled by organised crime interests. We heard that women enter prostitution in Ireland at a young age, many under 18, many are trafficked into prostitution and the vast majority are subject to control by a third party or pimped.
Even those witnesses who told us that they had entered prostitution freely and who argued against the Swedish approach said they represented, at most, 15% to 20% of those engaged in prostitution. Clearly, there is a huge level of coercion and exploitation taking place on a daily basis across Ireland in the actual reality of prostitution and yet I know, as a former practising lawyer, how flawed our current Irish model for regulating prostitution is based on public order and on prohibiting the visible manifestation of prostitution through criminalising loitering and soliciting.
I welcome the Minister's undertaking that she will bring forward amendments in this House to further decriminalise those women and men involved in selling sex and prostitution by removing those who offer sexual services from the existing offences of solicitation and loitering. We did not address this directly in the Joint Committee on Justice, Defence and Equality report but we asked the Minister to make those amendments to the legislation. We found ultimately that the focus of our current law on regulating supply and on targeting those engaged in selling sex, because those convicted of prostitution-related offences are overwhelmingly women and overwhelmingly those selling sex, was flawed and ineffective and we argued instead that we should adopt, as we are going to do in this legislation, a different approach which targets demand and criminalises only the purchase and not the sale of sex, similar to that introduced not only in Sweden but in other jurisdictions, including Norway, Iceland, Canada and, very recently, our neighbouring jurisdiction of Northern Ireland. There are real and valid concerns that if we do not adopt a similar law, we may become a safe haven for traffickers moving women South. We know the immense levels of exploitation here in the sex industry and we know who extensive it is.
The approach we are seeking to adopt in sections 20 and 21 is a sensible alternative one. We also found from our studies in Sweden and in our research that the Swedish law is part of a multi-policy initiative; it is not just a penal law approach. The Swedish authorities have also introduced harm reduction measures, initiatives to support those exiting from prostitution and, generally, they have adopted a holistic approach to tackling prostitution.
That is what we recommended in our report should be undertaken here.
I strongly welcome this initiative. May I quote Monica O'Connor, who gave an excellent briefing, along with Nusha Yonkova, earlier to colleagues on the changes? The idea of free choice in prostitution is a misnomer. For anyone who has investigated and looked at the evidence, we know that prostitution in Ireland, as elsewhere, is about exploitation and commodification, in particular, of women but of those selling sex generally. We know the approach adopted in Sweden has had a strongly positive normative effect on social attitudes to sexuality and to equality. We seek to introduce a meritorious set of amendments.
I strongly support the Bill and look forward to raising issues, in particular issues around section 39 and around the definition of "consent" which I have raised previously with the Minister's officials. I hope the Minister might consider accepting amendments on section 39, in terms of vagueness of language on the indecency offence, and the definition of "consent" in sex offences, which has been raised with her by the Rape Crisis Centre and the Rape Crisis Network.
There are many good things in this Bill. In particular, I am glad the Minister has looked at a situation to which I drew attention over many years, which was completely misunderstood, where people close in age, but underage, are engaged in sexual activity and are criminalised. For example, there was a case of a sexually experienced girl of 16 and a half years of age seducing a 14 year old boy and he was guilty of rape. That is absolute nonsense. I am glad a bit of sense is being introduced. I have to say with regard to this criminalisation of the purchase of sex, this is a combination of spiritual self-aggrandisement on the part of the people who are promoting it and voter appeal. That is what got it through in the North of Ireland. Some 98% of the sex workers in Northern Ireland, according to a really detailed impartial study by Queen's University of Belfast, which did not start off from a position as the Joint Committee on Justice, Defence and Equality and the Swedish Government did, were completely against these proposals. Nothing was done to listen to them. I am not advocating prostitution but I am simply facing reality. In Sweden, a recent progress report in Gothenburg covering the years 2008-2010 showed an increase in trafficking of 106% and an increase in sexual services sold of 569%. With regard to the health risks, which have been so cavalierly dismissed here, The Lancet, in July 2014 had an article stating that full decriminalisation would stop HIV transmission by up to 40%. These are the realities. This is what we should be facing, not some sentimentalised notion.
In 2007, eight years after the law was passed in Sweden, the Swedish national police board conceded that it could not give an unambiguous answer to the question of whether prostitution has increased or decreased. This is from the Swedish authorities. At most, it could discern that street prostitution was slowly returning after swiftly disappearing in the wake of the law. I have a later press release from March 2010 in which the Swedish national police board stated that serious organised crime, including prostitution and trafficking, has increased in strength, power and complexity during the past decade - in other words, since the introduction of the Bill - and constitutes a serious social problem in Sweden and organised crime makes large amounts of money from the exploitation and trafficking of people under slave-like conditions. This was after the passage of the legislation.
Let us look at the Joint Committee on Justice, Defence and Equality. Why did it neglect to examine a variety of social models and concentrate exclusively on the Swedish model? Why did it refuse to liaise with the New Zealand authorities where their policy has shown-----
-----success in full decriminalisation? Why did it refuse to invite in Swedish sex workers who expressed grave dissatisfaction with the model in Sweden? At a Dublin conference in October, Pye Jakobsson of the Swedish Rose Alliance spoke about the various negative consequences experienced by sex workers under the Swedish model. I would have expected that would have been of interest to the committee but it was not, not a bit of it. Anything that disagrees with its preordained position is ruthlessly excluded and, of course, it is popular with the public, that is why it is being done by politicians.
Why did the delegation which visited Sweden in November refuse to meet with the Rose Alliance? What about openness to another point of view? The Chairman, Deputy David Stanton from Fine Gael, put on his website before the hearings a complete endorsement of the Swedish model. How impartial is that? I was astonished that anybody with an academic background would stand over this kind of thing. Why did the Chairman say at the 6 January meeting that all models dealing with prostitution legislation had been examined by the committee when no such examination of alternative models has happened?While the committee was in Sweden the Swedish Forum for Human Rights confirmed the trafficking of over 166 children between 2008 and 2011. With regard to the fact that some sex workers were ultimately admitted to the committee, the decision was made not to record their views. They were excluded. How impartial is this? Where is academic integrity?
I turn to the Queen’s University report. It found that between 2009 and June 2014, the total number of confirmed victims of trafficking for sexual purposes was 26. That is very regrettable but it is not the kind of flood or catastrophe that people have been talking about here. With regard to the motives for people getting involved, it is terribly patronising for middle-class people to stand up and tell people whether they are victims are not and that no matter what they say, they are not being listened to. What about all the slogans that we used to hear about "Hands off my body"? In a survey of 171 sex workers, between half and one third responded as to what they like about prostitution. Here are the first six: "It helps me to be financially independent. I like the freedom of being self-employed. It helps me save money for something important. I like the flexible working hours. I enjoy meeting different people. I enjoy bringing happiness to clients". I have spoken to people in Fine Gael, Labour and Fianna Fáil and they are against this legislation but they are afraid to say so because there has been an ideologically driven campaign to push this through.
Here is what one of the people involved says: “It was empowering, to be honest. If I hadn't turned to sex work I would have lost my house and it was fantastic to be able to do that ... It enabled me to do things I would never have been able to do otherwise". "[When it was my daughter’s] birthday I was able to take her into town and spend £200 on her, on clothes. Whereas, I was never able to do that before, never, and Christmas was always, you know, you're getting stuff out of catalogues, and then you just paid off before next Christmas, and then you have to get stuff again, so it was just a vicious circle. Plus I am able to help my sister out a lot,...". Here is another one:
I realised through this job that I was quite good at counselling people and people opened up to me. It is a lovely feeling. For disabled people, I found that difficult to begin with because I'm not used to being around people with certain disabilities. Again, it makes you realise that you are just one person in the whole tapestry of the world. I felt quite privileged that I was able to make somebody else happy that may never have had the chance to experience intimacy otherwise ... I like the fact that it made me a better person because I'm not judgmental as I used to be.
I do not think this could be seen as the words, the language of a victim.
I am not saying prostitution is wonderful. I am just saying face the reality, the medical reality. What about the welfare of the people involved in this? I remember when decriminalisation of homosexuality went through this House and, as usual, the Government tacked on a counterweight which was inimical to the welfare of prostitutes. I stood up in this House and I said I would not accept my freedom at the expense of other vulnerable people and that I would be speaking here as more or less a lone voice for those vulnerable people.
With regard to the Swedish issue, in a recent survey by the Global Slavery Index, the Republic of Ireland and Britain did better than Sweden, after 15 years of this legislation. The Norwegians have been instanced. The Norwegian Ministry of Justice talks about a general problem with statistics in Sweden since they are highly uncertain. This is what it says about the 2010 official evaluation by the Swedish Government:
The criticism has primarily been focused on the evaluation’s lack of scientific rigor: it did not have an objective starting point, since the terms of reference given were that the purchase of sex must continue to be illegal; there was not a satisfying definition of prostitution; it did not take into account ideology, method, sources and possible confounding factors; there were inconsistencies, contradictions, haphazard referencing, irrelevant or flawed comparisons and conclusions were made without factual backup and were at times of a speculative character.
This is the Norwegian Government talking about the Swedish Government’s report:
The Swedish street prostitutes experience a tougher time. They are more frequently exposed to dangerous clients, while the serious clients are afraid of being arrested. Prohibition will never be able to stop the purchase and sale of sex. It could only make conditions worse for the prostitutes. They have less time to assess the client as the deal takes place very hurriedly due to fear on the part of the client. They (the prostitutes) are exposed to violence and sexually transmitted diseases.
That is where we are going. I know the Minister is a concerned and decent person and I urge her to take on the welfare of these people engaged in this business and not the ideological pretensions of what amounts to an ideologically driven lobbying group.
This is very welcome legislation and has been greeted as such by the non-governmental organisations in this area. The Bill addresses many anomalies which exist in our laws relating to sexual offences. In particular, I welcome the provisions dealing with the online sexual exploitation of children. Additionally, provisions to protect children against grooming and online predators are most welcome. Of particular note are the introduction of heavy sanctions for production and possession of images of child sexual abuse.
There are also positive provisions in respect of the age of consent. While the age of consent is to remain at 17 years, the Bill properly contains a modern provision in respect of younger teenage sexual activity. It acknowledges that such teenagers might indeed engage in consensual sexual activity and, importantly, it attempts to provide that teenagers of the same age would not be criminalised for doing so.
The advocacy group, One in Four has indicated that it has an issue with consent not being defined in the legislation. I do not have a fixed view on this matter but I wonder if the Minister is satisfied that existing legislation and case law is sufficient and that no further definition is warranted here. She might perhaps comment on that.
While the major focus of media coverage has been on the welcome criminalisation of the purchase of sex, there are a few other areas I would like to concentrate on. In respect of the disclosure of counselling notes during a trial, I welcome the tightening of procedure contained in the legislation. There has been a belief that the alleged abusers were merely engaged in fishing expeditions in seeking such disclosure, the purpose being to discredit the alleged victim. This legislation is therefore welcome in that proper reasons will now have to be advanced before the court allows any disclosure. Is the Minister satisfied that this is as far as she can go constitutionally? There are some who would advocate a total ban on counselling notes being made available. The Minister might comment on that.
On a somewhat related matter I would like to hear the Minister’s views on a total ban on personal cross-examination of alleged victims by alleged abusers in sexual crimes. While we could not deny counsel for an accused the right to cross-examine there is a stateable case for preventing an accused doing so him or herself. This is the case in England and Wales. Is the Minister legally constrained in that area? It would seem that the accused does not have an absolute right to personally cross-examine. I say that as this legislation provides that an accused may not personally examine a person under 18 years of age in a criminal trial. Would the Minister consider that a complete ban in sexual offence cases would be open to legal challenge?
I welcome the repeal of section 13 of the Criminal Evidence Act 1992 which provided that where evidence has been given by a child through video link neither the judge nor the barrister or solicitor involved in the examination of the witness shall wear a wig or gown. Section 30 of this Bill introduces a similar provision which will be extended to the giving of evidence in all circumstances by children under the age of 18. The requirement not to wear a wig or gown will no longer be limited where a child under 18 gives evidence via video link. I welcome this updating of the law in respect of sexual offences and refer to the Children’s Rights Alliance comments on the publication of the Bill, which it warmly welcomed. It views it as "a critical step towards protecting our children from grooming, exploitation and abuse". It went on to say that the legislation will "combat the exploitation of boys and girls" and that the law will "bring Ireland into line with a growing international trend and send out the message that Ireland is not a soft target for paedophiles, pimps and traffickers".I commend the Minister and her officials for bringing forward this progressive legislation.
I support the concept of this Bill and my party fully supports the criminalisation of the purchase of sexual services. The matter was discussed at two Ard-Fheiseanna and motions on it were passed by the grassroots of my party. The Children's Rights Alliance rightly states it knows from the testimony of prostitution survivors and women who have been trafficked that children are being abused in brothels. We are concerned about the use of the word "consent" and how it can be defined. There are issues, on which we may table amendments on Committee Stage.
A total of 73 organisations made submissions to the Joint Committee on Justice, Defence and Equality and I fully concur with the thrust of the committee's report. I acknowledge the significant work done by my colleague, Senator Ivana Bacik, in this regard. Are we to ignore submissions made by organisations such as Ruhama, Turn Off the Red Light and the INMO which stated, "Ireland must act now to end the demand for exploitation and, at the same time, decriminalise those who were prostituted so as to facilitate their access to vital health care and support services". My party has consistently supported efforts to eradicate prostitution in Ireland and put an end to the human trafficking the sex industry fuels. In government we passed the Criminal Law (Human Trafficking) Act 2008 which criminalised the human trafficking of persons for the purposes of sexual exploitation. It is now clear, owing to the changing nature of prostitution, that we need legislation to criminalise the purchase of sex. We must take cognisance of the "Prime Time" programme, Profiting from Prostitution, which was broadcast by RTE a few years ago and highlighted the appalling treatment of migrant women trafficked into Ireland and forced into prostitution.
We fully support the work of the Turn Off the Red Light campaign to have our laws strengthened. In this regard, I was contacted by at least 100 young women aged between 18 and 23 years, some of them students in my constituency of Cork South West, urging me to support legislation and proceed to along the lines on which the Government had embarked.
The nature of prostitution in Ireland has changed dramatically in the past decade. Street prostitutes who are the most visible face of prostitution have been largely replaced by off-street prostitutes who can be contacted over the Internet or by telephone. The massive explosion in the number of foreign prostitutes operating in Ireland compared to a decade ago raises a question about the extent of the trafficking of women into and within Ireland for sexual exploitation. According to Garda testimony before the justice committee which we cannot ignore either, the number is estimated at 800 women a day; a year long RTE "Prime Time" investigation estimated it at 700 a day, while on any given day, regular checks of websites, chat rooms and forums by the Turn Off The Red Light campaign show that as many as 1,000 a day could be involved in prostitution. The issue at stake in the Bill is the exploitation of these women and the need to develop a fresh approach to the problem. An attempt was made to portray sex trafficking as modern day slavery, but it is more sophisticated than that. People are not brought here in containers or chains; they arrive at Dublin, Cork or Shannon airports, often under false pretences relating to work, a relationship or marriage, etc. It is only outside the terminal when their passports, documents and money are taken from them and within hours they are placed in a brothel that reality dawns.
In 1999 Sweden was the first country to pass a law that prohibited the purchase of sex. The rationale for the offence was rooted in the belief prostitution was a serious barrier to gender equality and that it caused serious harm to those involved in prostitution, as well as to wider society. A high level inquiry headed by a Swedish Supreme Court judge in 2010 showed that since the introduction of the ban, street prostitution had halved, which contradicts what Senator David Norris said. In 1995 the estimated total number of women involved in prostitution was 3,000, 650 of them on the streets. In 2008 there were 350 prostitutes advertising on the Internet and 300 on the streets. The law in Sweden assumes that prostitution is incompatible with contemporary values and a serious problem which can and should be abolished.
We have come a long way. My party supports this legislation and I am a member of the justice committee. I have issues with the legislation, but this is not the day to deal with them. I have been contacted by Rape Crisis Network Ireland regarding tabling amendments on Committee and Report Stages and I may do so. The thrust of the Bill, however, is worthy of support. I am concerned about the comments of those who say this is not an open and transparent debate. The justice committee put a great deal of work into considering this issue and the legislation is not a knee-jerk reaction. The issue has been in the ether not only in my party but also in other parties. The Bill might not be the silver bullet or the utopian answer, but we can protect some of the women who are in slavery as prostitutes. There has been no mention in the debate by those who oppose the legislation of the pimps or traffickers who control the women involved. They are operating openly with disdain and no respect for the law, society and the authorities.
I welcome the Minister and thank her for bringing forward the Bill. I welcome the representatives of the various organisations in the Visitors Gallery, including the Immigrant Council of Ireland, Ruhama, Dublin Rape Crisis Centre and ICTU.
I am not a member of the Joint Committee on Justice, Defence and Equality, but I would like to congratulate its members on their preliminary work and the report they published. I have read the report and it is good that representatives of both sides of the debate were recognised, had an input and appeared before the committee. Appendix 6 is a list of all the organisations concerned. Voices were heard and there cannot be a good or an informed debate without hearing from all sides. That is why I welcome Senator David Norris's contribution. The committee heard from all sides and I congratulate its members on their input.
I welcome Fianna Fáil's support for the Bill. While I was in my office listening to the beginning of the debate, I had a different impression listening to one of the other Members. There is free speech in every party and I thank Senator Denis O'Donovan for outlining the party's support.
I have taken an interest in this issue because everybody in Ireland has done so, particularly women. As I look around the House, I congratulate the men sitting on the opposite benches. Women sell their bodies and men pay for them, but money is freely available, while one's consent and precious body is one's alone. Women suffer in this regard, but men pay with money.
The Bill comprises seven Parts and 45 sections. Senator David Norris concentrated on sections 20 and 21 in Part 3. While they are among the most important, there are other important provisions which should be commended and lauded. Part 2 details protections for children from sexual exploitation. Contacting a child for the purpose of sexual exploitation will become punishable by law, with the invitation to sexual touching and causing a child to watch sexual activity. Children can be spared the trauma of abuse by the recognition that sexually suggestive language and other pervasive actions by adults are used to groom children for the purposes of sex. Part 2 also includes a provision on the age of consent, which remains 17 years. When the Bill is enacted, a consensual act engaged in by two minors within two years in age of each other will no longer be treated as sexual abuse or rape of a minor. Senator Hildegarde Naughton referred to the definition of "consent". We have all received representations on the lack of a definition in the Bill. One in Four, in particular, made representations on the issue.
I welcome section 8 which strengthens provisions on the use of IT to facilitate sexual exploitation. Technology is like a second hand to children who are more familiar with it than adults.
Part 3 relates to the payment of adults for sexual services and has generated the most discussion.The Bill criminalises the buying of sex but not the sale of sex. The latter aspect remains. The crucial change is for the good of women. As a woman speaking on this subject, some women, for whatever reason, feel the need to sell sex but perhaps they have been pushed to their limits. Whether their consent is freely given is questionable. Some people think prostitution is an easy way to make money. Consent is an issue and questions arise for many as to whether women truly have free will in respect of this matter. This legislation represents a key development in the national conversation on consent.
There is a key distinction between the decriminalisation of the person selling sex and decriminalisation of the industry. Our society judges the buying of consent to be morally and legally wrong. With the enactment of the legislation before us, women who sell sex will no longer be judged as the wrongdoers in this exchange, rather the buyer will be so judged. The legislation will send a clear message to boys and men that consent is important and cannot be traded like a cheap commodity. The duty of An Garda Síochána will revolve around the protection, rather than the punishment, of women who chose to be involved in such sexual activities, which is a welcome development. The training and education of gardaí will be critical. The message is that consent should be contemplated within the larger conversation relating to this matter.
Section 21 relates to the amendment of section (5) of the 2008 Act and refers to where it is known that a person receives payment for sexual activity in cases where an individual has been trafficked. I know about this matter because I am a member of the North-South body that conducted a report into trafficking. This new and stringent provision is most welcome.
I welcome section 21. One could say that when a person enters counselling, such a delicate matter should only be discussed between the counsellor and himself or herself. I would like the provision to be further strengthened. I do not have time to discuss Part 4. I thank the Minister for bringing forward the legislation.
I welcome the Minister of State, Deputy English, who has just arrived to take over from the Minister for Justice and Equality. I wish to say to her, before she leaves, that I commend her initiative to push this Bill. Over the past few years we have consistently raised the issue to which it relates in the House and pressed the Government on it. It is remarkable that within a short period of assuming responsibility for the justice brief, the Minister has pushed this matter forward. It is fair to note all of that.
The Bill is quite comprehensive and comprises many different elements. I am restricted to five minutes so I shall focus on two areas, namely, section 3 and the Rape Crisis Network's call for a definition of "consent". First, I wish to acknowledge the people from the Rape Crisis Network, the Immigrant Council of Ireland, Ruhama, the Irish Congress of Trade Unions, ICTU, and other organisations who are seated in the Visitors Gallery.
In the context of Part 3, I strongly support the Government's intention to criminalise the purchase of sex. The provision follows an extensive consultation process that was undertaken by the Oireachtas Joint Committee on Justice, Defence and Equality. It was probably one of the most extensive consultations conducted on any issue, particularly in view of the large volume, namely, 800, submissions received. It should be noted that the proposal has the support of the widest coalition of civil society groups I have ever seen in respect of any issue. The proposal has the support of the ICTU, the IMO, nursing organisations and a wide range of groups representing civil society. The fact that they have all come together with the Immigrant Council of Ireland and other organisations to push for reform reflects a broader concern about prostitution in our society and a desire for change. I wish to acknowledge the fact that it has taken a great deal of work on behalf of that group - in addition to briefing and lobbying of Members and others - to get to where we are today.
Some people like to glamorise the sex industry and have claimed that those who work in prostitution are equal partners in a legitimate transaction. The reality is very different. Those who sell sex - it is mainly women but there are some men - rarely choose prostitution. For many, it is just a survival strategy. A large proportion of the people who enter prostitution do so in their mid-teens. Many of them have experienced the most horrific sexual and physical abuse at home. Many of those involved in prostitution are homeless or have drug addition issues. How anybody could claim that people who enter an industry in such circumstances genuinely provide consent is beyond me. Even if somebody in his or her 30s or 40s is involved in prostitution, the fact that he or she got involved and was first exploited as a 13 or 14 year old child mitigates any notion that there was ever any real consent or that his or her current involvement is anything other than a follow through on a litany of abuse that he or she faced at an earlier point in his or her life. It is important to acknowledge that the people who are involved in prostitution are in a very vulnerable situation and that, by contrast, those who buy sex have all the power. The buyers of sex have the money, power and opportunity. Our laws on prostitution, as they currently stand, do nothing to help victims and encourage people trafficking. I have heard Senator Norris and others say that some people have a notion that one can separate trafficking from prostitution. I contend that there is no supply without demand and, therefore, that it is not possible to separate the two elements and claim they are completely distinct. The Turn Off the Red Light campaign has estimated that the industry generates €250 million annually. The reality is that if there was not such a lucrative industry in Ireland for the exploitation of women and children, then there would not be a pull factor that brings people into this country through trafficking. That is the reality of the situation.
Under existing Irish law, the buying and selling of sex are not crimes. Soliciting is a crime which applies equally to the purchaser and seller. Instead of seeing the women and some men who are involved in prostitution as victims we criminalise them for soliciting and other related offences, plus we stigmatise them. That is totally the wrong approach.
I know that the Oireachtas Joint Committee on Justice, Defence and Equality considered a number of different options before deciding to recommend the Swedish model. I admit that no model or law is perfect, particularly when one takes on such a complex, well-funded and well-organised industry. As the Garda has pointed out, the links between prostitution and organised crime in this country are extraordinary. In terms of international organised crime, many of the people who are now involved in pimping and managing the industry here are involved in international criminal gangs. As a result, no law that seeks to tackle such an industry will be perfect. In my view, the Swedish approach is the best option as I have surveyed the different laws that are in place in other countries. I know that the justice committee held months of hearings before deciding on their final proposal. The Swedish model has not only reduced prostitution it has also made prostitution unacceptable to Swedish society which is another important aspect. If we are genuinely committed to equality in Irish society then we must reject the idea that women and children are commodities that can be bought and sold. We must send out the clear message that paid abuse is something that we will not tolerate and I welcome the fact that the Bill does so.
I wish to briefly put on the record my intention to support, on Committee Stage, amendments that deal with the lack of a definition of consent in the Bill. Consent is an issue. A lack of consent is an issue that must be proved in every rape case and, therefore, we need more clarity on consent. There is also a general concern in Irish society about the lack of rape cases that go forward and a poor rate of conviction when they do. The more clarity that can be provided in law the better.
Cuirim céad fáilte roimh an Aire Stáit. Tá áthas orm go bhfuil mé ag fáil deis labhairt ar an mBille fíor-thábhachtach seo. Cuirim fáilte roimh na haíonna speisialta atá anseo.
I commend all the individuals involved in framing this legislation, those who lobbied on behalf of the various groups and people who have been the victims of these crimes. The groups in question include the Immigrant Council of Ireland, the National Women's Council of Ireland, the rape crisis centres, Ruhama, the INMO, ICTU, those involved in the Turn Off the Red Light campaign and others. I welcome to the Visitors Gallery those from the groups to which I refer who are able to be in the House today. I also wish to commend the Oireachtas Joint Committee on Justice, Defence and Equality on the work it has done in respect of this issue. My colleague, Deputy Pádraig Mac Lochlainn, has worked very hard on the committee and he would concur with the thoughts of those that have been mentioned previously.
Prostitution is a vicious, exploitive and brutal criminal enterprise which allows pimps, traffickers and thugs to take millions out of the Irish economy by trampling on the rights of others. The organised crime which lies at the heart of Irish prostitution and human trafficking has been well documented, not just by the Garda but through multiple media investigations, the experience of front-line support agencies and, most importantly, the testimony of those women and girls who have survived this evil trade. The fact that the debate on this legislation is taking place is a tribute to the bravery and courage of those survivors. I refer, in particular, to people who sacrificed their privacy in order to relive their ordeals and make this Bill a reality. I want them to know that Sinn Féin and, indeed, Members on all sides of this House this evening stand shoulder to shoulder in solidarity with them.
While I have a general welcome for this Bill, I am keenly aware that this debate is overdue. The legislation before us will restore the all-island approach to combating these crimes that was broken when laws targeting the buyers of sex became a reality in the North on 1 June.On that date, six counties on our island moved ahead of the rest of us in wrecking the business model for pimps and traffickers. Indeed, I note that the Immigrant Council of Ireland recorded a steady increase in online prostitution along the Border in the weeks running into the commencement of the laws in the North. To take one example, the number of women for sale online in Dundalk increased by 85% as those behind the trade moved their business to the safety of the South. As the law took hold, there were 26 women profiled on escort websites in Dundalk, while ten minutes over the Border in Newry there was just one. This cannot continue.
The figures for sex trafficking speak for themselves. The US State Department "Trafficking in Persons Report", released earlier this year, found that Irish authorities initiated 79 trafficking-related investigations last year, up from 56 in 2013. Some 46 suspected victims were identified, most of them victims of sexual exploitation. Through its front-line services, the Immigrant Council of Ireland last year supported 20 women, with a further 11 new cases so far this year. Almost without exception each survivor tells of being placed in prostitution as a girl. As with all crime, it is difficult to get an exact figure on how much these crimes cost our country but figures range from €180 million to €250 million a year. To put it another way, sex buyers are putting an estimated €600,000 a day into the pockets of thugs. In fact, the sex trade is now only second to drugs in terms of financing those behind Irish crime.
We know that targeting demand can crush this activity. Sex buyer laws are a reality from Sweden and Norway to Canada, as well as in major US cities and, as I said, most recently in the North. Laws are also expected in France by January, while targeting demand for sex trafficking is backed by both the Council of Europe and the European Parliament. Sinn Féin representatives were proud to back such measures both in Stormont and in Brussels.
There is one area, however, where the legislation before us does not meet best international standards. It is wrong that those who have been exploited and abused in prostitution could end up being treated as criminals. That is unacceptable. The decriminalisation of the seller was a key plank of the Stormont legislation and one for which Sinn Féin fought hard. When the Oireachtas justice committee issued its unanimous recommendations on laws covering prostitution it could not have been more clear. It wanted a full package of measures where the buyer faces the law and those being sold are offered support and protection, not running the risk of ending up in a Garda cell or in court. That package of measures is commonly referred to as the Swedish model, and the police, social services and politicians in Sweden cannot be more clear that the model involves decriminalisation. I welcome the commitment of the Minister today to deal with this by amendment and urge her to do so as a matter of urgency.
At the outset, I referred to this legislation as historic. It is - not for us in this Chamber but for those survivors watching, some of whom are in the Visitors Gallery today. It is not good enough to listen to their stories with sympathy. They want us to act. I urge all Members to do that and let us join the growing list of countries criminalising buyers, not sellers. We support the Bill but we intend to bring forward amendments on Committee Stage.
I welcome the Minister. I will speak in particular on Part 3, sections 20 and 21. The Bill is exceptionally important legislation. On a historic day I wish to acknowledge the members of civil society who have campaigned long and hard for this historic change. They should be very proud.
Unlike Senator Norris, I believe this is ideologically driven. At the heart of this are human rights, equality and protection of the vulnerable. I call that ideological, and I am proud to acknowledge that and to support that section in the Criminal Law (Sexual Offences) Bill 2015. Our group, which includes Senator van Turnhout and Senator Zappone, tabled and supported several motions, notably on October 2011 and April 2012, and several Senators who are present today supported our motions. The April 2012 motion contributed to accelerating the referral of the matter by the then Minister, Deputy Shatter, to the Joint Committee on Justice, Defence and Equality. I commend the work of Deputy Stanton, Chairman of that committee, and also Senator Bacik, who invited me to be part of the committee proceedings even though I was not a member of the committee. I listened to the evidence from all sides. It was not ideologically driven or a set up. We listened to, and looked at, everything. I commend the work of the committee in that regard. The public consultation in which it engaged and the subsequent report that was produced were in-depth and comprehensive.I welcome Part 3 of this Bill providing for the criminalisation of the purchase of sex and strongly support this move.
I acknowledge the work of the former Minister, Deputy Shatter, and the current Minister, Deputy Frances Fitzgerald, in not allowing this subject to fall off the radar and disappear from the public discourse. That is key. I have criticised the Government for delaying much legislation, particularly electoral reform, but this is something of which we should be proud. I hope a general election is not called in November because otherwise this Bill would fall. I call on all Members to listen to those who have most experience in this field. A total of 73 organisations have come together to support this legislative move, including Ruhama, the Immigrant Council of Ireland, the Rape Crisis Centre, the National Women's Council, Focus Ireland and Barnardos, to name a few that have been fighting for this cause under the Turn Off the Red Light campaign. We must listen to these voices, which have the experience, and continue to work hard to highlight the evidence and reality of prostitution for all who find themselves the victims of it.
Ruhama has stated that one can procure a prostitute anywhere in Ireland and have access to her services within 30 minutes. Over 1,000 women and girls are for sale for sex in Ireland daily. Monica O'Connor, who has worked and campaigned on this issue for years, cites demand as the main driver of prostitution and strongly supports this legislation. There is currently no definition of prostitution in Irish statute law and most people are unaware that it is currently legal. This is not acceptable. The reality is that this State is failing some of the most vulnerable within its borders.
Prostitution encompasses layers of abuse. It feeds violence against women, child abuse, racism and particularly trafficking. We must do more to protect the women and girls who, through vulnerability and not consent, find themselves trapped in cycles of prostitution and poverty. A brief compiled by Grainne Healy and Monica O'Connor in 2006 stated that women who have worked in prostitution exhibit the same incidents of traumatic brain injuries as a result of beatings as do those who suffer and survive torture. The idea that women who end up working as prostitutes have made a willing choice can no longer be tolerated. It can be due to anything from physical abuse to actual poverty. We heard that evidence during the committee hearings.
This legislation alone, if passed, will not immediately impact the existence of prostitution in Ireland but, as the Swedish model shows, it opens the door to system change and increases the onus on the State to provide real exit strategies for women.Significantly, Sweden also introduced supports for the criminalised users to target root causes. It should be a normative shift away from the idea that it is acceptable in our society for financial power to buy consent. In Sweden over the past ten years, the demand for prostitution has fallen whilst the decriminalisation of sex workers has meant they maintain access to support services. The industry did not go underground. In countries that have legalised prostitution, such as Germany and Holland, all reports appear to show a huge increase in the numbers of women entering sex work, with pimps and traffickers gaining a form of legitimate business status.
As a man nearing middle age, with two daughters, I am within the primary bracket of those who most frequently use the services of prostitutes. As a nation, we tend to turn a blind eye to the issue because it makes us uncomfortable, but we must address it. To this end, I note the striking and truly eye-opening "Prime Time" investigation of Paul Maguire into the reality for women involved in prostitution. He appeared before the justice committee to give evidence. It is a programme of extraordinary impact which was screened over two years ago.
Over the past six months-----
There are not that many. I have been waiting since 2011 for this.
We might be a long way from significant improvement on this issue but that is why we must make this change now. In the short few months since Northern Ireland changed its law on 1 June last, the Immigrant Council of Ireland has recorded a marked increase in prostitution in Border areas such as Dundalk, as Senator Ó Clochartaigh mentioned. We are in danger of becoming a safe haven for traffickers and pimps if we do not act now. Victims of prostitution and trafficking are individuals who, in almost all cases, find themselves without options or personal choice. As the Government of this country, we must start making changes to re-open the choices of these women and girls, and this Bill is an excellent start.
I welcome the Minister and this Bill, there is so much to welcome in it. It is comprehensive and it engages many issues and it is certainly not possible to deal with all the issues in any one speech here. I note the comments of the Minister in relation to sexual offences, the vulnerable and people who are disabled. I look forward to discussing the Minister’s proposals at a later point. I am concerned about the possible impacts of some of Senator Zappone’s proposals in relation to sexual offences and people who are disabled, but I will revisit this matter later. As the Minister is aware, section 176 of the Criminal Justice Act 2006 creates an offence of reckless endangerment of children, however there is no specific equivalent relating to reckless endangerment of people who are vulnerable. I would advocate for a criminal sanction, equivalent to the civil tort of misfeasance in public office, specifically in relation to sexual offences against those who are vulnerable. I hope the Minister will comment at a later stage regarding offences where predators target those who are vulnerable.
I will now turn to the main element of the Bill which will make it a criminal offence to purchase sexual services. This country has gone on a journey and even some of the people in these Houses who support this legislation have been on a journey. I remember during my first term in the Seanad putting down motions calling for the criminalisation of the purchase of sex. I put down amendments to the human trafficking legislation which was for too conservative and timid in its approach. It remains my view that by criminalising the purchase of sex we help to make this country a cold house for traffickers of humans which is one of the big arguments in favour of this Bill.
The human trafficking legislation which was brought in some years ago did not go nearly far enough. We had the ridiculous situation that one had to have convicted somebody of engaging in trafficking before anybody could be prosecuted for buying sex from a trafficked person. That was clearly an unsustainable situation. It was doing nothing to protect victims of trafficking and it was certainly doing nothing to protect victims of prostitution. I am glad that we in this country have made the journey and that those who were previously timid now realise that we must follow the Nordic model and criminalise those who would purchase sexual services.
It is farcical and ridiculous to claim in any kind of serious argument that there is some kind of legitimate adult choice going on in the decision to enter prostitution. When one considers the lives, the background, the suffering, the self-esteem issues, the drug addiction - and so many things which blight the lives of those in prostitution - it is clear that it is not a profession that anybody would willingly or freely enter into in the same way that we would encourage young women to enter other areas of the workforce and to train up. It simply is not an industry like anything else. It is a sordid industry, one that corrupts people and entices them through the supposedly respectable front door of strip clubs and gentlemen’s clubs. In reality, in the back room, there is the direst exploitation of people and the deprivation of their human rights.
It is one of the great tragedies of recent times that Amnesty International has allowed itself to become corrupted on this issue. It has called for the decriminalising of prostitution based on a human rights principle of consensual sexual conduct between adults being entitled to protection from state interference. I believe it is not too adventurous to say that Amnesty International, among others, has been corrupted by people who have a vested interest in the sex industry. They do not make some kind of intellectual argument. Organisations like that go wrong and Amnesty has gone wrong in several areas recently. Tragically it has sullied its great reputation, probably to the point where some alternative human rights advocate is needed to take centre stage to promote human rights and human dignity in an authentic and inclusive way. Organisations like Amnesty International do not just go around because they meddle with ideas and then come up with bizarre theories, they go around because of the people who entice them, get involved, infiltrate them and seek to make the organisations pursue their agenda. They claim to agree with the approach taken by the German Government in 2002 when it decriminalised the sex industry. By registering, prostitutes were supposed to get more access to benefits but in reality the prostitutes did not register and there are now mega-brothels in Germany. According to one advocate against violence against women, the German situation is deeply harmful. The reality is that the women are sex workers and the men are clients who can ring up and order a women like a take-away. This is the tragic scenario happening in this world.
The Government has taken the right direction by disregarding the advice of Amnesty and the advice of my esteemed colleague, Senator Norris, who must be aware of the shambles in the Netherlands because of its approach of decriminalisation. It is a welcome step that has been taken here. It is a step in favour of human rights and the dignity of men and women and I hope it will pass speedily through these Houses.
I extend congratulations to the Minister and her officials in the Department. Many of the aspects we see in this Bill were raised in the 2006 Law Reform Commission report. I know that the Cabinet gave the Minister approval for this Bill in 2014 and I say "Well done" to all involved. I could not have predicted in 2011 how important and relevant this Criminal Law (Sexual Offences) Bill 2015 would be to my work in the Seanad. It seems that throughout my tenure it is where many of the issues I have worked have ended up. I speak specifically about my work on child sexual abuse material, criminalising the purchase of sex in Ireland and third party disclosure of children’s confidential counselling records during criminal trials. My entry point into these issues has consistently been to promote and protect the rights and interests of children who are particularly vulnerable to exploitation and damage across these areas. This is an extensive Bill and a genuine effort to reform the law and, where necessary, to introduce new laws to protect children from sexual exploitation, child sexual abuse material and online grooming. While I welcome and support the Bill, there are opportunities to strengthen it in areas such as the issue of consent, which is raised by the Dublin Rape Crisis Centre. I will provide more detail about this on Committee Stage where there will be adequate time to make a full contribution.
I will now turn to three issues I mentioned. The first is the sexual exploitation of children. The Minister is aware of my commitment to tackling child sexual abuse material on the Internet. While I welcome the introduction of new categories of offences in this Bill, and a bolstering of existing offences, I am disappointed that the decision was taken not to introduce a filtering system against online child sexual abuse material or to do so by statutory instrument. We remain reliant upon the threat of the same as a means to coerce ISPs into self-regulation and on the Garda to develop a response. The UK has this system in place and we should have a similar protection.
I also have concerns about the continued use of the term "child pornography" rather than taking this opportunity to replace it with a more apt and more reflective descriptor of child sexual abuse material, which is suggested by Interpol and Europol. The Minister is aware that I tabled an amendment on this issue under the Children First Bill and I note that the Minister for Children and Youth Affairs, Deputy James Reilly, agreed. He said, "The term child pornography is outdated and fails to reflect the full horror of the sexual abuse involved." The word "pornography" implies there may be some consent but we are talking about children, there is no consent, it is a crime seeing any such picture of a child. I note that the term "child pornography" is used in existing language and international instruments and will revert to this issue on Committee Stage. I will also return on Committee Stage to concerns I have around a new offence called "sexual extortion".
I fully echo and support what my colleagues, Senators Zappone, Power and Mac Conghail, have said on the purchase of sexual services. As a group we have worked on my interventions in October 2011 and April 2012 focused on the impact of prostitution and trafficking on children and noted that the majority of women in prostitution and trafficked into prostitution enter as children. Once again we cannot even discuss the issue of consent as there is no consent.
I am delighted that the recommendations of Dr. Geoffrey Shannon, special rapporteur in child protection, and my amendment to the Courts and Civil Law (Miscellaneous Provisions) Bill 2013 on the admissibility of sexual assault communications made by children have led to the inclusion in section 33 of this Bill of a disclosure of third party records in criminal trials.I am grateful to the Law Reform Commission for acknowledging my contribution in this area in its report on Disclosure and Discovery in Criminal Cases in 2014 and I will return to this issue on Committee Stage. I fully support the Bill in what it aims to achieve and from what I have heard in the House this evening, any amendments tabled will be to strengthen, bolster and support it. I wish the Bill a speedy passage in this term.
I was caught by surprise there. I thought there were a few more speakers.
The Minister for Justice and Equality and I would like to thank Members for their contributions. As the Minister said in her opening remarks, this is a wide-ranging Bill which addresses child protection, including new emerging threats, support of victims, the updating of existing law and a reform of prostitution laws. Dealing with such a range of issues in a single Bill is challenging, to put it mildly. On behalf of the Minister, I welcome the broad support for the Bill in this House, which reflects the support its provisions have received since they were published. It also recognises and reflects all the hard work that has been done on this issue by many people and groups over a long number of years.
There will be an opportunity to address a number of the issues raised at this Stage when the Bill is debated in more detail on Committee Stage. There has been wide, if not outright, support for Part 3 of the Bill on the criminalisation of the purchase of sexual services. These proposals were brought forward by the Minister for Justice and Equality as a result of the extensive review by the Joint Committee on Justice, Equality and Defence. The Minister would like to specifically acknowledge the hard work of that committee and all its members, led by its Chairman, Deputy David Stanton. It is recognised that much great work was carried out, and I make that point on behalf of the Minister.
The Minister will bring forward amendments on Committee Stage to address the matter raised by Senator Zappone and others on section 5 of the 1983 Act and to further decriminalise those involved in prostitution from the offences of solicitation and loitering. The Minister will also consider all of the issues raised today and expects to further discuss them on Committee Stage.
The Minister and I would like to thank all Members of the House for their contributions. The Minister looks forward to even more detailed consideration of the Bill on Committee Stage. This is a very important Bill and what is contained in it will add substantially to the protection of our children against sexual abuse by targeting those who would abuse or attempt to do so. Every step necessary must be taken to achieve that goal. The Bill will introduce additional provisions to further protect vulnerable victims during criminal trials and of particular importance are the provisions which will, for the first time, regulate the disclosure of counselling and therapy records. I am sure the House agrees that this Bill represents a significant step forward. I again thank the House for all its efforts on working on this.