Friday, 11 December 2015
Criminal Law (Sexual Offences) Bill 2015: Committee Stage
I move amendment No. 1:
In page 6, line 14, to delete “child pornography” and substitute “child sexual abuse material”.
As set out during Second Stage in October, tackling child sexual abuse material on the Internet has been a consistent priority for me throughout my time in the Seanad. I firmly believe the proliferation of child sexual abuse material on the Internet is a stain on our moral conscience. A child sexual abuse image is a crime scene, a digital record of sexual abuse being perpetrated against a real child in the real world. I reiterate my disappointment that the decision was not taken to introduce a filtering system against online child sexual abuse material or to do so by statutory instrument. We continue to rely on the threat of this as a means to coerce ISPs into self-regulation and on the Garda to develop a response.
The term "child pornography", as defined under section 2 of the Child Trafficking and Pornography Act 1998, is the same term used in this Bill. We should take this opportunity to replace the term "child pornography" with the more apt and reflective descriptor "child sexual abuse material". I have tabled amendments to this effect. I appreciate that the word pornography, which first appeared in the English dictionary in the mid-19th century, and the use of pornography have until relatively recently been associated with salaciousness and taboo and contrary to the morals of respectable society. Pornography was secretive, shameful and unacceptable. Against this backdrop, the term "child pornography" makes much more sense but attitudes towards pornography have changed significantly over the years. Pornographic material can now be purchased openly in newsagents and petrol stations throughout the country, where it is stored on the top shelves. "Pornography" is no longer a dirty word and its use is no longer an underground practice. As such, I really do not believe the seriousness and repugnant nature of depictions of children being raped, of incest or of children being sadistically assaulted or tortured for the sexual gratification of paedophiles is adequately captured by the term "child pornography". Furthermore, I believe the term is misleading regarding the child's role or agency in his or her exploitation. The majority of law enforcement agencies working in this area, most notably Interpol and Europol, agree. According to Interpol, the world's largest policing organisation:
A sexual image of a child is “abuse” or “exploitation” and should never be described as “pornography”.
Pornography is a term used for adults engaging in consensual sexual acts distributed (mostly) legally to the general public for their sexual pleasure. Child abuse images are not. They involve children who cannot and would not consent and who are victims of a crime.
The child abuse images are documented evidence of a crime in progress – a child being sexually abused.
The Minister of State will be aware that I tabled an amendment similar to amendment No. 1 to the Children First Bill. The Minister for Children and Youth Affairs, Deputy James Reilly, agreed that the term "child pornography" is outdated and fails to reflect the full horror of sexual abuse involved. He stopped short of accepting my amendment on the basis that "child pornography" is still the language used in international instruments by which we are bound. He referred in particular to EU Directive 2011/93/EU, which is to combat sexual abuse and sexual exploitation of children and child pornography, and the Lanzarote convention of the Council of Europe. I am not sure, however, whether it is strictly necessary as a matter of law to use the exact same language as used in the convention and elsewhere provided we give robust effect to the substance of the measure.
One of the methods of interpreting international treaties is the teleological or purposive approach, which involves looking to the purpose of the international instrument and the broad intent motivating the enactment of the measure rather than its strict text. Notably, Article 41 of the Vienna Convention on the Law of Treaties states, "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." Given that international treaties usually apply to multiple countries in many different languages and legal traditions, an excessively literal approach is often unhelpful. By analogy, it is submitted that, provided we address the substance of the relevant international and supra-national measures and achieve, in substance, the outcomes laid out in these instruments, the precise language we use to achieve these aims would not be of primary concern to the relevant monitoring bodies. The Council of Europe and the European Union are unlikely to be troubled if we use different language to achieve substantially the same outcome as set out in the relevant instruments.
The United Kingdom, our fellow European Union and Council of Europe partner, grappled with similar concerns over the inappropriateness and non-reflectiveness of the terms "child prostitution" and "child pornography". These are removed from its Sexual Offences Act 2003 through amendments in the Serious Crime Act 2015. The term for both phrases is now "sexual exploitation of a child".Incidentally, the practice of updating the language used in criminal statutes to reflect modern understanding is not unknown in Irish law. In section 2 of the Criminal Law (Rape) (Amendment) Act 1990, for instance, the offence of indecent assault upon any male person and of indecent assault upon any female person are effectively renamed as "sexual assault". It states, "The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault." I have used similar language in this amendment, the broad impact being that what was formerly known as "child pornography" should henceforth be known as "child sexual abuse material". I believe it is a case of when and not if other jurisdictions will follow suit. I am aware of concerted lobbying efforts by groups such as ECPAT in the UK and at EU and international levels to have these terms removed from the directives and the conventions. We can and we should act now. We need to show leadership.
I wish to clarify that the second subsection, as it were, that I included in this grouping of amendments is designed to avoid the risk of a trial collapsing because of an inadvertent reference to the existing terminology. I have tried to ensure that we protect it. I believe we should be taking this approach.
Senator van Turnhout has spoken on this issue previously in the Seanad. There is a great deal of sense in her point about the terminology used. It may not be possible to do it in this Bill and I accept there are issues particularly around the international language used and particularly as the Bill is explicitly required to give effect to a directive on combatting sexual abuse and sexual exploitation of children and child pornography. As the Senator said, there is an issue about the language used in EU and international treaties. We might look towards changing that culture where that language is used and rename it. I accept that would require a great deal of work in terms of education and so on but it would be a good idea to rename it to reflect more accurately exactly what we are talking about here.
I have always admired Senator van Turnhout's commitment to children and to addressing the damage being done to children. She has outlined in a cogent, effective and convincing manner, the reasons the Minister of State should take her amendments on board.
We are living in a changing world. I am not sure that I totally agree with the reference to the fact that "pornography" has become muted or diluted. We all understand what pornography means but in the context of children anything that would highlight to the general public the awfulness of these crimes is to be welcomed.
I am concerned about a matter which the Minister of State might address in his response. The report Changing Policing in Ireland published during the week indicated that child pornography cases, let us use that term for the moment, are taking up to four years to be processed. That is scandalous. We as a country cherish our children and while we may not do it in the spirit of the 1916 Proclamation, we all have good intent in that regard and certainly where our own children are concerned we will jealously guard and protect their rights.
It is unacceptable that the judicial system, or the legal system or the Garda system is inhibited to such a degree in this day and age. That is only one of many flaws or inadequacies in the technology that has been provided to the Garda. It is unacceptable. It is a severe criticism of the Government and of the Department of Justice and Equality that this has been allowed to fester and continue. Particularly in the context of these amendments, having changed the language, done everything right and put in the structures, when it comes to being effective in fighting against this pernicious crime or series of crimes, the Garda is operating with one hand tied behind its back in this modern technological age.
The Taoiseach is constantly going around the world saying that we are the best small country in the world to do business in and that we are a modern technologically advanced country. I would not confine those remarks to the current Taoiseach but the previous Taoiseach, Bertie Ahern, in trying to introduce electronic voting, said that he was fed up with the idea of a country that is so modern - this was ten years ago - using pencil and paper to count votes. Therefore, it is nothing new. This supposedly modern reformist Government that was elected in 2011 has done nothing.
I would like to support this amendment. There was a discussion on the word "pornography". It comes from the Greeks who defined it as the writings of or about prostitutes and prostitution. It seems pornography is very widely accepted, apparently. I have not visited the petrol stations or the newsagents patronised by other Members of the House, or at least I have not seen this material openly on view but I assume that they are correct in that it is. The phrase "child sexual abuse material" seems particularly appropriate in light of the spread of pornographic, or sexually explicit or derogatory material on the Internet. Again, I have no personal direct knowledge of these things because I do not use a computer. I have never watched the Internet, if one can watch it and I do not know if one can. It seems to be something up there in the ether. I have never seen child sexual abuse material or child pornography, nor do I want to. It is pretty disgusting. For that reason, I strongly support Senator van Turnhout. She has done us a favour by raising this issue.
I understand from Senator Bacik that there may be some reasons in terms of the correlation between this law and international legal procedure that means we cannot do this, but I do not take that argument because I do not see why we should not lead the way. This country led the way in the marriage equality referendum. We were the first country in the world to vote this through on a national basis. I do not see any reason we should not lead the world again. Why should we be so backward in feeling that we have to tie in with everybody else and that we have to use language that is not as explicit, that is not as clear and does not make the attitude of society as explicit simply because other countries have not yet caught up? We should be in the vanguard. We should be out front, leading proudly as Ireland, as a young progressive nation. I strongly support the substitution of "child sexual abuse material" for the phrase "child pornography".
People are now very chummy about pornography and seem to think it is a good thing and everybody openly discusses it on radio and television and all the rest of it. There seems to be something kind of warm and fuzzy and really sort of nice about pornography - there is the view that everybody does it and all this kind of stuff. Whatever about adults, and I spoke on this many years ago in defence of people's access to explicit sexual material for learning purposes, for instruction and for titillation - I do not see anything wrong with it, but that is when it includes consenting adults. This is children and children are always in these circumstances the victims of exploitation. They are never consenting. They are never willing. They are frequently, I understand from reading about it, as I have never seen it, I would not watch it and I could not bear to watch it, abused physically, they are raped and, in some circumstances, I understand, even murdered for the pleasure of adults. It is really horrifying.
The nice chumminess where one sits down after one's Sunday roast beef or roast lamb and says we will switch on the television and see pornography is a very different thing from child sexual abuse material. That terminology seems to get it, it focuses it and it makes it clearer. I commend Senator van Turnhout on her amendment.
I support Senator van Turnhout on tabling this amendment. The terminology "child sexual abuse material" is still not strong enough. As Senator Bacik said, there should be a stronger terminology. What that is I do not know, but perhaps it should be child rape and abuse or something like that. The horrific acts that are carried to young children are unimaginable. Thankfully, I have never experienced the viewing of it, but I have spoken to professionals who, during the course of investigations, have had to look at it and they have been physically and mentally sick and disturbed as a result of it. It is totally unacceptable. If we could think of a stronger term to use than that proposed, we should use it.
I support the amendment that every place in the Bill where the words "child pornography" are used, they would be substituted with the words "child sexual abuse material". Sadly, many young people do not know that child pornography is wrong. There is a normalising of pornography by society. It is the beginning of the ruination of many young people's lives. It is part of a grooming process being used and part of an acceptance culture. While the words may not be strong enough in the view of Senator Wilson, these are helpful words because they include the vital words "sexual abuse". I commend Senator van Turnhout on being perceptive in this area and on identifying a useful change that I hope we all can support.
I thank Senators for their comments. When debating this Bill, we all are united in our attempts to tackle this most heinous of crimes. The Senator refers to explicit material. There is a deliberate attempt among commercial enterprises to sexualise young people and children, to shorten their childhood and to make them aware of their sexual power above any other power. It is quite disturbing. It is something that must be addressed because it is completely disempowering and is warping the young minds of boys and girls as early as possibly for commercial benefit in the "legitimate" commercial and corporate sphere. This is something we may be able to return to between now and Report Stage because I am taken by the comments that have been made. I will give the technical response but maybe this is something we can work on.
The effect of these amendments would be to substitute the term "child sexual abuse material" for "child pornography" throughout this Bill and other Acts in which it appears. As the Senator will be aware, the language used in the Child Trafficking and Pornography Act 1998 and in this Bill reflects that contained in the EU directive which this Bill, among other matters, is giving effect to as well as the Council of Europe Convention on Child Sexual Exploitation. It is also a term used in other EU instruments, including the Council decision to establish Europol. These amendments are proposed on the basis that the term "child sexual abuse material" more accurately reflects the horrific abuse involved and avoids the idea of some form of consent which may be implicit in the term "pornography".
In terms of the wording of the amendments put forward, there is a technical difficulty, which means I would, in any event, be unable to accept them. The term "child pornography" appears in the Statute Book outside of the 1998 Act and any general amendment to that term throughout the Statute Book should be carefully done. I am advised that a general amending provision, as proposed by the Senator in amendment No. 25, would not suffice. Rather each provision in the Statute Book containing the term which it is proposed to amend should be individually identified. While it is not unusual to amend one form of words with another, it is done through individual identification of each instance. This is an important safeguard, particularly where the provisions relate to the criminal law.
The amendments proposed also raise other technical difficulties, such as the effect on the Short Title of the Child Trafficking and Pornography Act 1998. I am advised it is not appropriate to amend the Short Title to an existing Act by an amendment in subsequent legislation. The Act should be substituted and repealed.
For these reasons, I am unable to accept the amendment on this occasion. The Minister would, however, fully support including the Senator's proposal in any future review of child pornography legislation. It is a technical reason. Perhaps we could look again to see if we can overcome this technical matter because the language the Senator has proposed is stronger and most likely to be more appropriate.
As I stated earlier, the term has been proposed by Interpol and Europol, which have to deal with this abhorrent and horrendous crime. I appreciate the Minister of State's response. The United Kingdom has managed to find the legislative way and has done it. We will not be the first but we should be taking the lead. This is not a case of if it will happen; it is when it will happen. It is about updating our laws to reflect the true seriousness of the crime. However, I withdraw the group of amendments. I want to get this right but I also want to ensure we protect children and that we send a clear message that there is no consent, it is a crime scene, it is abhorrent and we will not tolerate it.
The purpose of amendment No. 3 is to allow the court to impose a fine instead of, or in addition to, a term of imprisonment on a person who is convicted on indictment of an offence under this section. A fine is already available as a penalty or part thereof for summary convictions under this section but was omitted in respect of convictions on indictment. It is unusual to provide both a fine and a term of imprisonment in the available penalties, particularly where financial gain may be a motivation in the offence. This is consistent with the framing of other penalty provisions contained in the Bill.
My apologies for wanting to return to my earlier comments but this Bill is as much about enforcement and here is a section dealing with fines. The report I referred to earlier, which the Minister of State did not allude to, has indicated serious inadequacies in the manner in which child pornography crimes and sexual crimes against children are followed up. For example, there is no cybercrime unit in the Department of Justice and Equality. With respect to Senator Norris's ignorance of the Internet, most of this awful traffic takes place on the Internet and yet there is no reference at all to what will happen following the enactment of a Bill which will include additional fines and more punitive measures against those perpetrating child pornography and child sexual crimes. The report, which was not done by the Department but by Mr. Olson, states quite clearly that we do not have a cybercrime unit in the Garda. I was gobsmacked when I read that.
I would like some response. I am not trying to make a political point but this is a serious issue involving the Garda and we are passing a law that will put extra pressure on Garda resources in specific areas relating to cybercrime and child pornography, much of which takes place on the Internet with paedophile rings, etc. I would like a response because it is the earliest opportunity this House has had to raise this matter, following the publication of the report. For the information of the Minister of State, the Leader of the House indicated that the House will debate this report in the new year. I am basing my questions on newspaper reports rather than on anything emanating from the Department. My understanding is that the Minister, Deputy Fitzgerald, has accepted the report in its entirety, which I welcome, but perhaps the Minister of State has some insight. I appreciate it may not be his main area of responsibility but in the context of this legislation, he might be able give some indication.
With the Minister of State's amendment, we have ended up diluting what is in the Bill. Will he give us an explanation? The Bill, as published, stated, "on conviction on indictment, to imprisonment for a term not exceeding 10 years." We have diluted that to a fine or imprisonment. In other words, we are leaving it to the discretion of the Judiciary. I would be of a view that an offence under this section warrants mandatory imprisonment and it should not be discretionary.The sexualisation of children is one matter, but the sexual exploitation of children is a more serious situation.
People should not be able to get away with a mere fine, which would not be related to the capacity to pay. It should be imprisonment, full stop. The term of imprisonment should be at the discretion of the judge. We should not remove mandatory imprisonment.
I share the Senator's concerns. Reducing the punishment to a fine or imprisonment dilutes the sanction for such a serious and heinous crime. Imprisonment at least offers some rehabilitation. Any imprisonment for sexual offences should be matched with rehabilitation. To leave the penalty at a fine gives an option for the offender to go scot free. It is not at all adequate. We are either serious about penalising sexual offences, knowing the effects on victims, or we are not.
This is standard legal practice, it is not unusual. To not do it would be an anomaly. The amendment is a standard framing of penalties in the State. A range of penalties are available for offences in the Bill and it is a standard in the drafting of penalties for offences. It is not in any way to suggest that a fine in this area is an appropriate sentence, it is just the way that legislation in the State is framed across the Statute Book in every single circumstance.
Reference was made to the report of the Garda Síochána Inspectorate.The office of Internet safety within the Department provides a hotline service for the reporting of crime and the Minister has completely accepted the report and is examining it in detail. The prosecuting of child pornography is a technically difficult type of investigation which can involve different jurisdictions, unnamed people and unnamed vulnerable victims. As it is Internet based it is particularly difficult to prosecute. However, there have been a number of recent sexual exploitation cases which were successfully prosecuted. It is given the highest priority but in order to execute a conviction one must have a proper, robust investigation. Unfortunately that can take time because of the complex nature of the offence.
I take the Minister's point that, in general, the option of "fine or imprisonment" applies right across all statutes. However, it is not universal within our Statute Book. If my memory serves me right there is mandatory imprisonment for offences regarding drug pushing. We have seen that sanction ignored by our Judiciary which, unfortunately, is a law unto itself when it comes to these issues and is not in any way accountable. Over the last decade the Judiciary has successfully resisted the efforts of Administrations to establish a judicial council, which operate in more progressive and democratic administrations.
We cannot compare the sexual exploitation of children - which in many instances may have a lifelong impact on those children - with other offences on the Statute Book where this discretion is allowed.
As legislators we should collectively say that this is an offence which is countenanced under no circumstances and that it is taken seriously. If a person engages in any way in this exploitation or encourages others, or engages in or encourages others to pay for or set up the exploitation - there is specific reference to the sexual exploitation of children - then one pays the price. That price is imprisonment and the Judiciary would have discretion on the term of that imprisonment. A person who may be well off financially should not be able to get off purely by paying a fine. It might be a substantial fine but because of their own financial resources it would be insignificant to them and the sanction would be meaningless. This would not be acceptable and it is not prioritising the protection of children in the way that should be done. I feel strongly on this. I know the amendment has gone through but I appeal to the Minister of State to re-examine it so that on Report Stage we could ensure this section reflects the graveness and seriousness of the offence of sexually exploiting children.
I will be brief in the context of the Government's proposals. I am at a loss to understand why this is happening. I appreciate the Minister of State has outlined that this is standard across various pieces of legislation. However, I refer to what has been happening with our nearest neighbour, the UK, with some very high profile cases relating to child pornography and operation yew tree. During the 1970s Gary Glitter was an icon to children and his hit records at the time conveyed that. Under his real name, Mr. Paul Gadd he was as a paedophile jailed in the UK and in the Far East. Several other high profile celebrities, when they went before the courts and were convicted of child pornography would have had, as Senator Walsh has said, massive financial resources and would have easily met a fine no matter how high. Mr. Rolf Harris was a case in point and he was jailed. This amendment is sending the wrong message. It is saying that these people have a possibility of getting off with a fine, no matter how heinous the crime.
I know that in practice it is being left to the Judiciary to decide if it will be a fine or imprisonment, but as far as I am aware the amendment is changing the original sanction which was a mandatory jail term, unless the Minister of State can tell me otherwise. To delete "to the imprisonment for a term not exceeding 10 years" and substitute "to a fine or imprisonment for a term not exceeding 10 years, or both", means in plain English that the original version was imprisonment for a term not exceeding 10 years. Now it is changed and the Minister of State is not sending the right message at all. I do not know why this was drafted and why it went through Cabinet considering all of the comments made in this House which would reflect the opinion of the population - that this is a heinous crime for which there will be no tolerance whatsoever.
I believe we are all agreed that this is a heinous crime and it is good to see it being defined and laid out in such detail in this important Bill about the sexual exploitation of children and of adults. However, I wish to inject a small note of reality into the debate. The amendment which has already passed without contest simply allows for a fine to be included alongside imprisonment. It is a technical amendment. When one looks at subsection 5, the subsection into which the amendment is being made, one sees that it provides for the sentencing in standard fashion - "a person shall be liable on summary conviction to a class A fine or imprisonment, not exceeding 12 months, or both". It is not a mandatory sentence of any kind. A summary conviction is in the District Court which is where fines are imposed in more cases than in the Circuit Court. It is at conviction on indictment where one sees the sanction of imprisonment for a term not exceeding ten years. If a person is being prosecuted on indictment in the Circuit Court on an offence under section 3, they are more likely to be subjected to a term of imprisonment than if they are being prosecuted in the District Court where fines are already imposed. It is simply technical that "fine or imprisonment" is always in there. One would very rarely have fines imposed by way of penalty where there is a conviction on indictment in the Circuit Court for an offence of this seriousness. I reassure colleagues that, as a matter of practice and reality, where one has an offence of this serious nature proceeding to prosecution on indictment, prison is the most likely outcome and much more likely than in the District Court. However, imprisonment is not mandatory in either case. The Bill uses the term "shall be liable". The point is that imprisonment is the maximum penalty.
Section 3(6) provides that a child "means a person under the age of 18 years". In section 4, child "means a person under the age of 15 years" and section 5 defines a child as "a person under the age of 17 years". In the space of three consecutive sections, the word "child" has three different meanings, namely, a person aged 18, 17 and 15 years, respectively. This is completely inconsistent. Why dither with the description of a child? The Minister of State may live in one of Dublin's leafy suburbs but I live in the north inner city where if one called a person of 18 years a child, one would get what is locally described as a poke in the snot. A person of 18 years is not a child, as I understand the word. The matter would be resolved by removing the word "child" and inserting the phrase "a person under the age of" followed by the prescribed age. Why not define the age in absolute terms instead of having this glaring inconsistency?
The age of consent is a troubled and difficult issue, although I have always agreed with the idea of an age of consent as a guideline. In this Bill, it is illustrated by the inclusion of three greatly different ages - 18, 17 and 15 years - to define the same thing, namely, a child. I assume that in respect of section 4, somebody who is aged more than 15 years is not a child. If somebody of 16 years is not a child in section 4, why should a person be a child until the age of 18 years for the purposes of section 3? This is completely daft in my opinion but I am a humble, ordinary person. Humility is one of my most remarkable attributes, of which I have a great number.
Senator Mooney referred to Operation Yewtree, which was horrible. I do not know if Gary Glitter was caught up in that particular operation.
The entire episode was utterly revolting and shocking. Jimmy Saville, in his autobiography, drew attention to the fact that he was molesting children. He was brazen in the extreme and it was shocking that he was not prosecuted at the time. Senators should consider the case of Cliff Richard who is a decent man as far as I know. While I have never met him, I have always liked him and his music and I approve of his Christian beliefs and so on. As part of Operation Yewtree, his home was invaded by police who did not tell him what they told television broadcasters and the tabloid press. The police have since had to withdraw the allegations. In this case, a person who was innocent of the allegations had his name trawled through the mud by the police, which is utterly shocking.
While I agree with the legitimate prosecution of these types of offences, which have correctly been described as heinous, a certain degree of sensitivity is required. It is profoundly shocking that in cases where persons were being pursued on suspicion or on the word of an unnamed third party whose anonymity was protected, police handed out information to the media before subsequently being forced to withdraw the allegations. While I do not expect the Minister of State to comment on that matter, I would appreciate a comment on the business involving the meaning of a "child".
Would it not be more logical to replace the word "child" in section 3 with the words "a person under the age of 18 years"? This phrase is perfectly clear and does not lead to the contradiction in the very next section in which a child is defined as a person under the age of 15 years. One could just as easily insert the phrase "a person under the age of 15 years". In section 5, one would then use the phrase "a person under the age of 17 years". That is the logical approach, rather than having this nonsense about children being of different ages all over the place.
The Minister of State indicated that it is standard legal practice to provide for the imposition of a fine or imprisonment for a term not exceeding ten years. However, the amendment changed the meaning of the original text, which provided for a sentence of imprisonment for a term not exceeding ten years. Is the inclusion of that penalty not also standard practice?
I share the view expressed by previous speakers that we must ensure the penalty is a term of imprisonment and the imposition of a fine is not an option. The withdrawal of a person's freedom is the minimum that should be experienced by the perpetrator of this heinous crime. Victims groups are driven mad by the sentencing that involves fines. How many times, following the handing down of inappropriate sentences for serious sexual offences, have Senators argued that the punishment did not fit the crime? We are of one view on this issue. The Bill gives permission for fines to be imposed. I ask the Minister of State to revisit this issue. Why did the amendment reduce the sentence?
If one views the section in its entirety, it is not about individual crimes, that is, one individual exploiting a child, but about group paedophilia. It is about obtaining, providing, etc., a child for the purpose of sexual exploitation in which money changes hands. The section refers to obtaining a child for himself, herself or another person and provides for a sentence "on conviction on indictment, to imprisonment for a term not exceeding 10 years". The amendment changed this by providing that such persons may be fined. The original text is clear and does not provide for the imposition of a fine or a term of imprisonment. I cannot understand the reason the provision is being diluted.
I was very reluctant to go down the road Senator Norris went down regarding Cliff Richard but I concur with everything he said. I am a great fan of Cliff Richard whom I have met and I believe what was done to him was outrageous. I did not want to go down this road because there is a case that is still unresolved and shows similar patterns much nearer to home. I refer to a person who has been accused in the public media without due process. My main focus in this matter is to ensure that what the Minister of State is doing in the matter of convictions is the right thing and will not in any way allow people to get off.
I do not wish to diminish the seriousness of the topic we are discussing. On the issue of fines and mandatory prison sentences, mandatory imprisonment is limited to a small number of offences, namely, certain drugs and firearms offences. The sexual exploitation of a child is addressed in the Child Trafficking and Pornography Act 1998 and carries a penalty of a life sentence. We are dealing today with an offence that is in part financially motivated. Therefore, the addition of a fine, as provided for in the amendment, is appropriate. It should be noted, however, that the amendment has been passed.It is a worthy debate but we have work to do.
In terms of the sections, as outlined by Senator Norris, and on the apparent discrepancy in the definition of what constitutes a child, these are technical issues and relate to international law. Section 3 is an EU directive requirement and, therefore, the age is 18 years. Section 4 is a passive form of sexual assault and the age below which one cannot consent to an act which may amount to sexual assault is 15 years. Section 5 stipulates 17 years which reflects the age of consent in national law generally.
I understand what the Minister of State is saying to the effect that we are bringing these things into alignment with international law. On the other hand, there is nothing to prevent him from taking out the word "child" and putting in "a person of such and such", which would remove the apparent contradiction. It does look like a contradiction. I would say that if in international law one has a situation where children are defined differently all over the place, then that is absurd as well. Why not call it absurdity? It is not just absurdity if it occurs in this jurisdiction. If it occurs throughout Europe, it is even more absurd, in my opinion, that children are classed as being such at different ages depending on what section of the law at which one looks. A child is a child is a child just as a rose is a rose is a rose. It seems to me to be utterly daft to have different definitions of what a child is in terms of his or her age. If in one section a child is somebody under the age of 15, then how can it be that somebody under the age of 18 is a child in the next section? It seems to me to be absurd. I am not going to push the matter but I think it is absolute nonsense.
I thank the Minister of State for his reply and explanation but neither have fully reassured me. I can understand from where he is coming a little better. This section is about obtaining or providing a child for the purposes of sexual exploitation so there is an intent. I agree in terms of the section on summary convictions, which would be dealt with in the District Court, and I have not put forward fines as an alternative. However, if it is a conviction on indictment, obviously the matter has been regarded more seriously by the Garda and also by the Director of Public Prosecutions. Does it matter whether we take a view that we can depend on the Judiciary? I do not think it does. It comes down to what signal this Legislature sends to the Judiciary. Are we happy to send it legislation which says that a fine is a satisfactory penalty or sanction for somebody who has obtained or endeavoured to obtain or who is providing a child for the purpose of sexual exploitation in circumstances where that is regarded a sufficiently serious offence to be subject to conviction on indictment? I certainly do not agree that it is sufficient. I accept what the Minister of State said about the section being passed. Unfortunately, I only spotted what we had done to the original text as I read the section. All I am asking is for the Minister of State to look at the matter. Can he give us an undertaking that he will look at the matter and come back to us on Report Stage when he has considered the points which we have made? Many people have spoken in favour of this point of view. From his comments, I do not think he has a fundamental objection with what has been said. I ask him to consider the matter between now and Report Stage.
The age of consent can be a difficult enough area. I spent some time, probably ten years ago, on a children's committee. Two of the other members of that committee were the then Minister for Health and Children, the late Brian Lenihan, and the then Minister for Justice, Equality and Law Reform, Michael McDowell. It was an all-party committee and I think the parties had their own legal representation. We took a strong view on the age of consent. One of the suggestions that came from the committee - which the Minister of State might consider, if not in the context of this Bill then perhaps in terms of another - is that where two senior adolescents, for example, 16 or 17 year olds, engage in sexual activity, they should be treated differently and perhaps the law should reflect that. I think the Judiciary probably does so. It is different from a situation where-----
Can I explain? I am referring to section 3(6), which deals with the age of 18 years. All I am asking is that the Minister of State, perhaps in this legislation or, if not, a future Bill, would consider having a situation where somebody of 40 or 50 years of age is regarded more seriously. The committee recommended that if there was a ten-year age gap, then the offence should be regarded more seriously. I wanted to share with everyone that which the committee to which I refer came up. Its findings might be something that may be looked at with regard to the age of consent, adding to what Senator Norris has said on that matter.
I wish to comment on the definition of what constitutes a child. I believe different definitions are needed. Let us say two 17 year olds are doing a line. Section 4(1) states, "A person who, for sexual purposes, invites, induces, counsels or incites a child to touch." If a child, in that instance, is defined in the same manner as a child in an instance of paedophilia or whatever, then that is different so we need a definition. The Minister of State should return to this matter because the legislation could deem all 17 year olds going out together to be criminals, particularly in terms of the phrase "inviting to touch." That is an issue.
We can examine it in the context of providing clarification and I have no difficulty doing so. As Senators stated, the definition is a sensitive issue. It is also a difficult one because different instances require different responses. In order to ensure there is clarity, we have no difficult in doing as I have outlined.
I thank the Minister of State. I am not trying to change the offence. It would be a good idea to substitute the phrase "a person of 15, 17 or 18 years." That would remove the question of these conflicting definitions of a child which are repugnant to reason and leaving that definition of a child-----
The proceedings on Committee Stage, shall be taken on conclusion of the debate on Committee and Remaining Stages of the Courts Bill 2015, and shall be adjourned not later than 5.30 p.m. if not previously concluded.
No, that was the Courts Bill. It is Committee Stage only of this Bill, which was to commence on conclusion of the Committee and Report Stages of the Courts Bill, which is being taken. We have concluded all Stages of the Courts Bill.
I am sorry but because of Senator Norris's contribution I do not know what the Minister of State said about the fines and imprisonment in terms of the core of the argument we made on the section. Can the Minister of State repeat what he said?
I was interrupted by the confusion over the legislation.Putting in the phrase "a person under the age of 18 years" does not change anything in the legislation. It also leaves us in a situation where this legislation can chime perfectly adequately with European legislation. It does not conflict with it.
The amendment has been passed and the justification for the amendment has been given. I have given an undertaking on the language provided in respect of the uncertainty of some Senators on the question of fines versus imprisonment as well as in respect of the definition of a child. We are happy to return to this issue on Report Stage to allay whatever fears Senators have.
It may be appropriate to ask the Minister of State to look at this section. There is a name on the question of an age difference, although I cannot remember what it is. It could become part of the age of consent issue and how it is framed and adjudicated by the Judiciary. I recall at committee meetings we had suggested a ten-year age gap.
I wish to make a point since we are on the age of consent. I know it is an extremely troubled area. When legislation was going through some years ago, I coined the phrase "the Romeo and Juliet syndrome". I pointed out that a sexually experienced 16 and a half year old girl could seduce a sexually inexperienced 14 year old boy, and the 14 year old sexually inexperienced boy would be guilty of rape. That is an outrage to common sense. It is complete rubbish, but it is still the law of this land and it was passed through both Houses of the Oireachtas.
The issue in respect of age of consent is addressed in section 17. The proposed section 17 includes a new section 3(8) of the 2006 Act and provides for a proximity-of-age defence where a person is charged with an offence against a child between the ages of 15 and 17 years. It shall be a defence that where the child consented to the activity and the accused is younger or less than two years older than the child or the accused is not considered to be a person in authority or there is no intimidatory or exploitative element to the relationship. Effectively what I am saying is that the issue Senator Walsh has raised is dealt with in section 17.
Amendment No. 4 brings additional clarification to section 8. Section 8 creates an offence where a person communicates by means of information and communications technology with another person for the purposes of facilitating the sexual exploitation of a child. The offence is committed whether the perpetrator contacts the child directly or contacts a third person to facilitate the sexual exploitation of the child. The purpose of this amendment is to clarify that the other person referred to in the provision includes the child, the victim. While implicit in the reference to "other person", this amendment makes it explicit.
Section 9 includes a new paragraph (a) with a definition of child pornography that includes any visual representation "that shows, or in the case of a document relates to, a person who is or is depicted as being a child". The reference to "the case of a document" seems a little odd to me. I presume this refers to a pornographic document. What happens in the case of Benny Hill dressing up as a child and engaging in frolics and so on? That is little nonsensical. In other words, what if we have someone who is an adult but dresses up in a pair of short trousers or a baby frock or whatever, but he is plainly and obviously an adult? Is it really very significant to attack this kind of practice? It does not titillate me, I have to say, but it seems a little absurd. It is fine in the case of a person who is a child, but I am unsure about the provision for "a person who is depicted as being a child". It seems to be a little daft. Again, maybe there is a cogent explanation.
Article 2 of the EU directive obliges member states to define child pornography as: "any material that visually depicts a child engaged in real or simulated sexually explicit conduct". In other words it covers the case of any real depiction of a child. The definition also includes:
Any depiction of the sexual organs of a child for primarily sexual purposes; or
"any material that visually depicts any person appearing to be a child engaged in real or simulated sexually explicit conduct or any depiction of the sexual organs of any person appearing to be a child, for primarily sexual purposes; or
"realistic images of a child engaged in sexually explicit conduct or realistic images of the sexual organs of a child, regardless of the actual existence of such child, for primarily sexual purposes".
In this context the term "a child or someone depicted as a child" is appropriate as determined by the EU directive.
I think that is rather silly. I do not care if it comes from Europe. An absurd idea comes into my mind. What about dwarf pornography? I do not know if such a thing exists, but they look like children sometimes. Are we outlawing dwarf pornography?
This section deals with a person who "causes, incites or compels...a child to participate in a pornographic performance". Again, this may be some kind of European thing. I am keen to ask the Minister of State because I do not know anything about it and I believe the House would welcome the information. Is there any evidence of child pornographic material being produced in Ireland? I am not aware of it. It may happen. I am not a consumer of these products, but I am curious and interested to know whether we are dealing with a real situation. Is child pornography being produced here?
I have done some research in this area. I will outline how people get involved in child pornography. What happens is that they accidentally come across it on the Internet. They may be horrified and step away and decide it is awful. Often, however, they will go back within a week and they start getting more involved in the imagery. In order to be king, they need to trade material. We have serious cases in Ireland. These can involve fathers, men or people making pornography in order to start trading.
I move amendment No. 23:
In page 13, to delete line 5 and substitute the following:“(c) a current or former step-parent of the child (‘step-parent’ shall include, for this purpose, a spouse, a civil partner (as defined by section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010) or a cohabitant (as defined by section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010) of the child’s parent),”.
For the purposes of the Criminal Law (Sexual Offences) Act 2006, a step-parent is treated as a person in authority. This means he or she is subject to heightened maximum penalties upon conviction of a sexual act with a stepchild. The traditional legal understanding of a step-parent has long been the spouse of a parent.Notably, Murdoch's Dictionary of Irish Lawdefines "stepchild" as "a child of one spouse by a former union". Other legal sources suggest that a marriage is required to make a person a step-parent. For the specific purpose of tax law, however, the child of a civil partner is treated the same as the child of a spouse, but this is a result of a specific amendment to the Finance Acts 2011 and 2012. While the meaning of "step-parent" may well have evolved or evolve over time, it is not clear whether the civil partner or cohabitant of a parent is also a step-parent for the particular purpose that we are discussing.
While a civil partner or cohabitant is likely to be treated as a person in loco parentisand, thus, a person in authority for this purpose, I remain concerned, since any ambiguity in legislation must be read in the favour of the accused. For instance, a civil partner could claim that he or she was not a step-parent and potentially escape liability, in particular if the civil partner is not for some reason in loco parentis. Arguably, he or she should be treated as a step-parent, but the point is unclear and the legislation would benefit from a wide definition of "step-parent" or a clear statement from the Minister of State that it was his intention that a current or former spouse, civil partner or cohabitant of a child's parent was a step-parent and, thus, a person in authority for the purposes of the Bill.
I endorse Senator van Turnhout's comments. The scientific research on all family types done in this regard shows that, by a significant degree, the highest at-risk situation for children is where a single mother cohabits. In such situations, the child is substantially at risk of sexual exploitation and physical and fatal injury. It would be essential not to permit a lacuna in the law regarding such situations, as that would be to exclude the most at-risk situation.
I am in sympathy with what Senator van Turnhout stated, as it is revolting that someone in a position of authority should exploit a child for sexual purposes. However, it strikes me that paragraph (d) covers this matter adequately. It reads, "a current or former partner of a parent of the child". As such, the amendment is redundant and I see no necessity for it. I would be interested in hearing the Minister of State on this point, however.
I have sympathy with the Senator's amendment. The evidence is that a great deal of the sexual abuse of children occurs within the family setting. This has been noted for a long time and was one of the bases on which the Stay Safe programme was introduced in the early 1990s. It is abuse in the most trusted of settings. I do not know what the legislation can do to prevent it. We have always addressed it from the point of view of empowering the child to know when there have been inappropriate approaches and touches, but it also depends on the culture of the family. Any legislative measure that we can put in place to protect the child or punish the offender is welcome but, unfortunately, it is often too late for the child, as the offence has already taken place. This forms part of a wider discussion on the issue.
The Minister thanks Senator van Turnhout for this amendment and will re-examine the drafting of paragraphs (c) and (d) to ensure that they cover comprehensively all persons who are or have been in a position of authority through a relationship with the parent of a child.
This addresses a concern regarding whether a reference to being charged with an offence should refer to a defendant being charged or a person being charged. Substituting the wording "Where, in proceedings for" removes this concern and is consistent with the approach already taken in section 17(4).
On Second Stage, the Minister informed the House that she would introduce amendments to Part 3 of the Bill relating to the purchase of sexual services that further decriminalised the women and men involved in prostitution by removing those who offered sexual services from the existing offences of soliciting and loitering for the purpose of prostitution. Amendment No. 26 makes the necessary provision while amendment No. 30 ensures that no inadvertent consequences may arise from it.
Section 7 of the Criminal Law (Sexual Offences) Act 1993 criminalises a person who, in a street or public place, solicits or importunes another person for the purposes of prostitution. Section 8 of that Act creates an offence where a person is loitering in order to solicit or importune another person for the purpose of prostitution and fails to leave that place when directed to do so by a garda. "Soliciting" is defined to include all parties whether male or female, prostitute or client or third party, such as pimp, and includes curb crawling.
There have been a number of calls, including from organisations associated with the Turn Off the Red Light campaign, for the removal of those selling sexual services from these offences. The effect of such a change will be that only those people who solicit the sexual services of others, that is, the buyers and pimps, will be prosecuted for the solicitation and loitering offences under the 1993 Act.
The primary rationale for decriminalising the sale of sexual services is that those offering the services involved in prostitution are highly vulnerable, often from impoverished backgrounds and frequently with addiction and other issues. It is often the case that those involved in on-street prostitution are among the most vulnerable and marginalised within an already vulnerable group. Retaining criminalisation for solicitation is to penalise this high-risk group. Decriminalisation will also allow people to report violence experienced on the street without fear of prosecution and encourage them to seek appropriate support services. The decriminalisation of on-street prostitution will bring the Irish approach further into line with that of Northern Ireland and the Nordic approach generally.
Amendment No. 26 deletes the current paragraph (a), which reads, "offers his or her services as a prostitute to another person", from the definition of "solicits or importunes for the purposes of prostitution" in section 1(2) of the 1993 Act. The effect of the amendment is to remove the persons offering sexual services from the offences under sections 7 and 8 of that Act of soliciting and loitering, respectively, in a public place for the purposes of prostitution. These offences will still apply to any person who solicits a prostitute, that is, the buyer or pimp, or any person who loiters in a public place for the purpose of soliciting a prostitute.
The inclusion of this amendment by itself gives rise to concerns that the Garda would be left with no means of combating any public nuisance if sexual offences were to be offered, for example, in a residential area. There is also a concern that the provision could be exploited by criminal gangs or others. Amendment No. 30 addresses these concerns. Section 8 of the Criminal Justice (Public Order) Act 1994 provides that a garda may direct a person who is behaving in certain ways, for example, intoxicated, threatening or abusive, to stop behaving in that way or immediately leave the specific area. It is an offence under section 8 to fail to follow such a direction.This amendment will add loitering for the purpose of offering services as a prostitute to the behaviours subject to a direction under section 8. The effect of these proposed amendments will be that on-street prostitution will not itself be an offence, but the Garda will still have the power to move on from a public place when necessary a person or persons offering sexual services. The remaining amendments in this group have been proposed by Senators and I will respond to them after they have been moved.
I welcome the Government's amendment. Our amendments were trying to achieve the same end. There has been a very long campaign to ensure we could decriminalise those who sell sexual services and I commend the people in the Gallery, who have been campaigning on this for a very long time. The Turn Off the Red Light campaign has been very effective and very important because it has long been the case that many women have found themselves in the position of being turned into criminals in situations where they have been virtually powerless. In light of the Government amendment, which obviously crossed with us tabling amendments, we will not be pressing our amendments. We are achieving the same aim and I welcome the statement of the Minister of State on this.
I welcome amendment No. 26, which the Minister had flagged on Second Stage and which was requested by the Committee on Justice, Defence and Equality. I also welcome those in the Gallery who have been involved in moving forward this law reform, particularly the Immigrant Council of Ireland, Ruhama and the Turn Off the Red Light campaign. We debated the policy behind the provisions of sections 20 and 21 on Second Stage and they are very welcome to target demand and to criminalise the purchase but not the sale of sexual services. I see amendment No. 26 as very important in confirming that policy because, as the Minister of State has said, it will decriminalise services as a prostitute by making that amendment to section 1 of the 1993 Act. That is very important. As the Minister has said, it will bring this jurisdiction into line with the law in Northern Ireland and in Sweden and other Nordic countries that have taken a similar approach to tackling demand. To stress that again, the women and men engaged in prostitution and the sale of sexual services will be themselves decriminalised. Sometimes those who criticise the Nordic approach have suggested this is all about criminalising clients. Offences around the purchase of sex are already criminalised.
This approach decriminalises those engaged in prostitution, recognising the exploitation involved. In this regard, I understand why amendment No. 30 has been included. I have some concern that it may lead to harassment on the street of those engaged in selling sexual services, those women and men engaged in prostitution. While I understand that, as the Minister of State said, it does not criminalise prostitution, which is now decriminalised, it does provide for the offence of failure to move on when directed to do so and specifically with reference to somebody who is loitering for the purpose of prostitution. I would ask that some regard might be paid to this if we are going to put that amendment through. I understand the public order issue, but we might look at guidelines for An Garda Síochána as to how it operates that provision. Those of us from the Committee on Justice, Defence and Equality who travelled to Sweden and heard about how the law there is implemented were very impressed by the multi-agency approach and by the exit strategies the police and social services were all engaged with. It was not just criminal justice.
It is, therefore, very important there is joined-up thinking and that the Garda is not, on the one hand, being given a directive that it should be moving on women or men involved in selling sex on the street and, on the other hand, trying to work with them to ensure the criminalisation of clients and pimps. We need to be careful about that. I very much welcome amendment No. 26. It is welcome and very much in line with the Committee on Justice, Defence and Equality request. Perhaps the Minister of State might consider putting forward an amendment to section 13 of the 1993 Act on Report Stage in line with the overall policy objective of section 20. That would be to extend to section 7A, the new offence that is inserted by section 20 of this Bill, the power of arrest already present for section 7 offences. It is a power of arrest contingent on the new offence in section 7A-----
I welcome the people from Turn Off the Red Light. I completely oppose their position and suspect their motivation. The information supply has been disastrous. Senator Bacik spoke about social workers in Sweden. Attempts were made to silence a considerable number of social workers in Sweden who have spoken out and given statements contradicting the position of Turn Off the Red Light. There is something incredibly patronising about people defining somebody as a victim despite that they do not feel they are a victim. They have no right to say they are not a victim. I welcome the Cathaoirleach's guidance on the matter. I am opposing the section, so I presume I do not speak until the section comes up for discussion.
Yes. I thank the Cathaoirleach. I welcome the partial decriminalisation of prostitution that is contained in this measure, but I deplore the criminalisation and it seems mad to take a unified transaction and criminalise half of it. It is absurd to decriminalise one half and criminalise the other half. There does not seem to be much logic in the Gallery here today.
This is a momentous day and I hope we pass this Bill. It would be nice to have unanimity on it. I welcome this amendment. The women and young girls who comprise most of those involved in prostitution are vulnerable, marginalised and poor. I appreciate the work done and the information shared with us by Ruhama, the Turn Off the Red Light campaign and the HSE. They speak about the frame of mind women who have had to engage in prostitution to survive have to get into to go through these acts. On exiting it, for those who have been able to do so, one of the quotes was "It was a shit life". When that is the only way a person has to survive, it may be seen as consent, but I would question consent under that type of pressure. There is no such thing as safe prostitution. Sometimes people are battered to death, in the words of one rape crisis volunteer. The HSE has reported on the gang rape of women. The Internet is not helping. Prostitution is gender-based violence against women. We are right to take an ethical stance against buying another person, because that is what we are talking about. This is an exploitation issue. There are no safety or labour laws in the prostitution context. The Netherlands has tried and failed for ten years. The profits, on the other hand, are extraordinary. I read a quote from one young woman who said she did not have to pay any more than 50% to her pimp. One wonders who has to put up with all the pain and who gets all the gain. The hands of the Garda have been tied. That came out in the "Prime Time Investigates" programme.
Is the Swedish model enough? I would say it is a start. I welcome the fact it makes it an offence for someone to purchase sex, but it is not the full solution for the woman, who may be vulnerable and poor. We need very solid exit strategies and supports to help the women rebuild their lives. It came across very well at a briefing we had in the audiovisual room recently that we have to bridge them into a new life. They have to be given holistic, psychological and financial support. One cannot leave people high and dry and on the breadline. They are also vulnerable to being enticed back. The best approach, and there was consensus about this, is a more victim-centred one, and the Garda would have to be trained and supported in that role. The Garda needs support in legislation. Can the Minister of State say in his response what extra resourcing of the Garda will be put into this?
I am talking about the amendment. We are bringing in an amendment to decriminalise the women, and men in some cases if they are involved in prostitution, and to criminalise the buyers. What extra resources will be made available for that?
I would like to flag another issue. Some of the women involved in prostitution have been trafficked here. Some of them do not have a visa status that supports them working here. If they make a report to the Garda, can we ensure they will not be criminalised for their visa status? Can we ensure the primary issue will be the health and well-being of the woman or man who is in prostitution and wants to get out of it? A very important balance needs to be struck within a competing set of rights. We might come back to that point. I welcome this legislation. I have been getting e-mails from people in Galway and elsewhere in the country for at least two years, and maybe three or more years, looking for it to be introduced. I am glad it is happening during the course of the term of the Government and before Christmas.
I welcome any moves which deal with the exploitation of vulnerable people. The people in question are women in the main, although some of them are men. I welcome any protection that is given to those who are trafficked in particular. It is extraordinary that in this day and age, we have moved back to a slavery trade that is probably more extensive than it has been at any time in history.
It is appalling that this trade is even more extensive than it was in the 19th century. It has not been addressed by the international community as comprehensively and energetically as it needs to be. Anything that protects these women in particular is essential and I welcome it. I also welcome the steps that are being taken to protect women who are vulnerable by reason of drug addiction. The Minister of State has taken the particularly strong line that the criminal system is not the way to deal with drug addiction and the crime that flows consequently from it.
I think it is a mistake to say that everybody involved in prostitution is being exploited or is vulnerable. All the reports clearly show that a coterie of women participate in high-class escort agencies and charge very high fees for the sexual services they offer. I do not know to what extent this is the case. I agree with Senator Norris that it is absurd that the purchaser is guilty of a criminal offence but the women who are selling the sex - it is a very lucrative business as far as they are concerned - are not guilty of such an offence. I think the Minister of State should look at that again. There is a danger associated with the manner in which this is being done. It is contingent on men, in the main, responding to the fact that they will be prosecuted criminally for what they do. That may not have the deterring effect that the Minister of State might expect or that any of us might expect. There are many laws on the books that are ignored by people.
I am concerned about vulnerable women, in particular. Some Senators referred to poor women who resort to prostitution as a means of getting some money. Poverty drives people into the sex trade. I am not sure the construction of this legislation will not have the opposite effect of increasing the number of women who participate in prostitution. That would be of some concern to me. I lived in an era when almost everybody was poor. We had nothing like the levels of crime we have today.
I do not think being poor should ever be regarded or accepted as a justification for resorting to any criminal activity.
I do not think this proposal should apply in certain situations. I refer to women who do this voluntarily. I am not speaking about those who do it out of financial necessity, because they are addicted to drugs, because they are being trafficked or because their pimps - boyfriends, in many instances - are forcing them to do it. It is absurd, as Senator Norris has said, that women would not be subject to a criminal offence in circumstances in which none of those things applies.
This legislation is criminalising the purchaser. That is what I am saying. What is good for the goose is good for the gander. That is my opinion in this regard. I ask for it to be looked at again. It is not the same, but it is a little akin to saying the drug addict should be criminalised and brought to court for purchasing drugs but the drug pusher should in some way be decriminalised. I know there is a significant difference.
We must keep a balance in the law, but we are not doing that here. I can understand the intention of this amendment, which is to protect vulnerable women. That is something I fully support, but I think we have gone way beyond it in creating this new situation.
This is a historic day. I thank the Minister of State for bringing this amendment forward. I was not on the Joint Committee on Justice, Defence and Equality. I thank Senator Bacik and her colleagues on that committee for all they work they have done. I was a member of committee D of the British-Irish Parliamentary Assembly in 2013 when it brought forward a report on human trafficking. Indeed, I met representatives of Ruhama and Turn Off the Red Light at that time. This issue was discussed ad nauseam by the committee, which made a recommendation in this regard. This was under the chairmanship of Lord Dubs at the time. We have seen the Northern legislation on streamlining. We know how trafficking works. There is no border on prostitution. It is a hugely significant day. Decriminalisation is most welcome.
Could I say while I am standing on my feet that the Minister of State has been sitting in the chair for four and a half hours? He was there when I was speaking on the previous Bill. He has not moved. Perhaps we might facilitate him by providing for a break of 20 minutes after we have dealt with this section.
I join others in commending the Turn Off the Red Light campaign for the manner in which it has approached and campaigned on this issue locally, nationally and internationally. This proposal is being made following an examination of the Swedish approach by the Joint Committee on Justice, Defence and Equality. The Minister and I have deliberated on the matter with various interest groups in this area. The Swedish approach comes from a Parliament that is 45% female. The issue of gender equality in parliamentary representation is an important one. We should think about that when we discuss the issue of gender quotas as well.
I accept Senator Bacik's well-made point that we cannot take legislation from another jurisdiction without resourcing and funding it, providing for a process of training with regard to it and discussing with the Garda and others how it will be managed and how it will come into effect. I assure Senator Walsh that we are not going to revisit this. I disagree with Senators Walsh and Norris. They are entitled to their opinion, but I disagree with it and the Government disagrees with it.
Arguments are always welcome. The argument for decriminalisation is that the seller is the vulnerable person. Prostitution is a demeaning, undermining and nasty industry. There is nothing glorious or glorified about it, contrary to what seems to have been suggested.
I am given to understand that in some circumstances the impression is almost being given that this is a liberating sort of profession. This is an industry that undermines, devalues, dehumanises and demeans those involved in it, most of whom are women but some of whom are men. In this amendment, we are attempting to decriminalise these individuals to ensure they know-----
-----they can approach the authorities, that help and support are available to them and that they are not criminals by virtue of having been lured or forced into this industry. The great majority of those involved in this industry are involved in it for reasons of poverty or addiction.The amendment criminalises the buyer, which is an appropriate response. That enables gardaí to properly tackle the issue in a proactive and realistic fashion.
I thank the Senators who have spoken on this. While I appreciate that people have come to the issue with different perspectives, the issue of prostitution is one that has been with us for a very long time. To suggest that we continue to approach it as we always have does not stand up to scrutiny any more. There are movements across the world to address the issue differently. The Swedish and Northern Irish approaches are being adopted here. As Senator Healy Eames has said, this is a good day.
It is disingenuous of the Minister of State to try to give the impression that anybody suggested prostitution is a glorious career. Nobody I heard in the Chamber suggested that. Perhaps it is because he does not have a better argument to defend against the point that was being made to him, which he ignored. I support fully the view that a majority of women who decide to resort to prostitution are very vulnerable, often due to financial necessity, drug addiction, or human trafficking, which is heinous. However, there is a coterie of women for whom it is a choice. Anybody who has watched this on various programmes internationally or here, or who has read reports on it, knows that there are women who make considerable money from it and it is a choice. While I agree fully with criminalising and charging the purchasers right across the board, that coterie who do it as a choice and do not have the defence of being drug addicts, trafficked, pimped or coerced should face the same rigours of the law as the men. It can be the converse too. It can be a gender-neutral situation, because there are male prostitutes also. In those scenarios, it is wrong that one party participating is being charged with a criminal offence while the other person is regarded as immune from any criminal prosecution. That is fundamentally wrong and it borders on sexism.
-----and to decriminalise the seller in an attempt to ensure that the vulnerable seller of sexual services feels that society takes a compassionate view of the situations in which they find themselves, that support services will be available to them, that they can approach gardaí without fear of criminal sanction, that they can find a pathway out of prostitution and that the resources of An Garda Síochána and the criminal justice system are channelled and funnelled toward the demand side of the equation. That is the purpose of the amendment.
I am ad idemwith the Minister of State on reducing the level of prostitution, and I agree fully that one of the ways to do so is to tackle the demand. However, the point I make is that if he is really serious about reducing it, why not tackle the supply side also, where it is not being produced by women who are vulnerable in any of the categories I mentioned? There are women who do it as a career because it is very profitable. Why not take the same approach to them? I see no good reason why the Minister of State would not. I do not disagree with tackling the demand side, because he is correct there, but for those who participate very willingly, have no qualms with regard to doing it, find it highly profitable and are not in any of the vulnerable categories that all of us would want to protect and not criminalise, why do we not make a distinction? That is the point I am making.
The Minister of State talks about demand and supply as if this was simply an economic situation, which it is not. Taking at a superficial level the question of tackling demand, there is nothing whatever to suggest that demand has decreased as a result of this. Any purported statements that this is the situation have been completely undermined by Swedish academics. When the Minister of State was talking, I said "What about prohibition? Did that work?". Worse than that, the Minister of State is not even suggesting prohibition. He is suggesting decriminalising the bootleggers and criminalising the drinkers. It is completely daft. I will have a great deal more to say about that when we get to discuss the section.
I move amendment No. 29:
In page 17, between lines 3 and 4, to insert the following:“(3) The Minister shall collect data to review the operation of this offence and report to the Houses of the Oireachtas after this offence has been in effect for two years. In particular the report shall set out—(a) information on the nature and extent of prostitution connected to human trafficking including numbers of arrests and convictions during the period covered by the report in connection with an offence under this section or section 2, 4 or 5 of the Criminal Law(Human Trafficking) Act 2008,
(b) the extent to which, in the opinion of the Minister, this section has operated to reduce human trafficking, and
(c) the impact of this section on the safety and well-being of prostitutes”.”.
My amendment would require section 20 of the Bill criminalising the purchase of sex to be reviewed and voted on again after two years by the Oireachtas. It is a very reasonable suggestion and, if it believes the law will result in a reduction in the number of people engaged in sex work and incidences of trafficking for sexual exploitation, I cannot see why the Government would oppose assessing its effectiveness in two years' time. According to Amnesty International, the criminalisation of sex work is increasingly being recognised as a human rights concern. The United Nations special rapporteur on the right to health has called explicitly for the decriminalisation of sex work. The final report of the Global Commission on HIV and the Law, an independent body convened by the UN Development Programme on behalf of the joint UN Programme on HIV/AIDS, has made the same call. The commission deliberated over a two-year period, undertaking extensive analysis and research including seven regional dialogues on the links between legal frameworks, human rights and HIV.
Sex Workers Alliance Ireland, represented in the Visitors' Gallery by Ms Kate McGrew, suggests two years would give an accurate picture of the impact of the legislation to adequately assess it. We must allow time for gardaí to be issued with guidelines around enforcement. A two-year period would provide the Garda with enough time to establish enforcement and the Government with enough time to commission an independent evaluation. There is zero evidence from Sweden that sex work has decreased since the introduction of the criminalisation of the purchase of sex, as there has been no consistent monitoring, independent research or evaluation of the legislation there. The Swedish Government's report evaluating criminalisation between 1999 and 2008 provided no data or evidence to prove that the levels of sex work had decreased or increased.The report stated, “Altogether, this means that we can feel somewhat secure in the conclusion that prostitution as a whole has at least not increased in Sweden since 1999.” No data or evidence is provided to back the statement in any way. As a result, the report is highly questionable. This is a highly complex policy area. We must ensure Ireland does not make the same mistake as Sweden and fail to adequately monitor the outcomes and impacts of our laws. This is why I propose the amendment to insert an operational review of section 20 into the Bill to ensure we have consistent, independent evaluation of this and other legislation related to sex work at regular intervals.
Sex workers tell us that where this law is implemented it makes their lives more difficult, and they often have very poor relationships with the police and support services. HIV Ireland and the World Health Organization, WHO, have expressed serious concerns over the impact of such measures on health care access and HIV rates. Ireland's HIV rate increased by 11% last year. This is very serious, and we need to do more to reduce HIV rates, not introduce laws which increase HIV rates, according to research by The Lancetand the WHO. We need this review of the legislation to ensure we monitor and assess the impact the law will have on health. It is a nonsense to criminalise the purchase of sex. It is a coalition between extreme feminists and right-wing fundamentalists. I am entitled to my opinion.
Senator White might be interested to know that the justice committee received unanimous support for the proposal to adopt the policy approach of decriminalising the sale and criminalising the purchase of sexual services.
Senator O'Donovan, Senator White's colleague in Fianna Fáil, travelled with us as part of the justice committee delegation. We received unanimous, cross-party support on the justice committee for the recommendation, which was subsequently developed by the Minister for Justice and Equality, Deputy Fitzgerald, and the Minister of State, Deputy Ó Ríordáin. It certainly is not a coalition of different views, as Senator White suggested.
The justice committee turned its face against considerable evidence. The document Research into Prostitution in Northern Ireland, prepared at the request of the Northern Ireland Department of Justice, is unequivocal, and our justice committee did not mention it. The objective, scientific realities were completely ignored. The Chairman of the justice committee, Deputy Stanton, put a notice on his website fully endorsing the Swedish model before the committee had heard any evidence. This shows how open-minded he was. Senator Bacik is right that the committee does not represent a diverse group of opinion. This is the problem with it. All the members are singing from the same hymn sheet.
I do. I practice it. It is a parliamentary skill in which Senator Bacik is very well versed. I have much to say about the committee. The members neglected to involve themselves with a series of people who proposed to talk to them. They omitted matters from the report.
Yes, and I support the amendment, given that it is absolutely rational. If the Minister of State rejects it, he will be doing the House a favour by exposing the hypocrisy of the exercise. If the Minister of State is not prepared to accept the amendment, it is an utter disgrace and an affront to democracy.
What have we got to be afraid of in a review of the operation of the Act? The Minister of State does not want to know the facts. He has turned his face against them. The amendment provides that the Minister shall collect data to review the operation of this offence and report to the Houses of the Oireachtas. What is wrong with it? It is good parliamentary procedure. The Minister's report would include information on the nature and extent of prostitution connected to human trafficking. There has been a blurring of the division between prostitution and trafficking.
It is a disgrace. It is a marketing exercise and a PR stunt by people who are radical feminists and ex-nuns. Some of them should be ashamed of themselves, given that they come from the order that operated the Magdalen laundries and are still trying to control people. The amendment provides that the Minister's report would include the extent to which, in the opinion of the Minister, the section has operated to reduce human trafficking. The Minister of State does not even want to know whether it will reduce trafficking. What is he afraid of?
He is afraid of the truth, reality, objective facts on the ground. He will not face them. The amendment provides that the Minister also report on the impact of the section on the safety and well-being of prostitutes. All this humbug about talking to the women is all tripe if the Minister of State is not interested in their well-being. If he were really interested, he would want to know the impact on them. Of the women spoken to for the report commissioned by the Northern Ireland Assembly, 98% were against this model. The Minister of State does not speak on behalf of these people. I attended the briefing session and it was laughable. There were people there who were interpreting the minds of these women and speaking on their behalf with no permission to do so. Unless the Minister of State accepts the amendment, his hypocrisy is completely exposed. He does not give a damn about the safety and well-being of the women who are walking the streets and the spread of disease. It is all a middle-class pretence and a load of hypocrisy.
I do not support the amendment. Originally, we came to the issue by way of a motion that was put down in the Seanad by the Independent group. Two motions were put down, which led to the hearings by the justice committee. I did my own research, met many people across the spectrum on the issue and examined considerable evidence, and I fully support the Government's approach on the issue. The only question I have left is what category Senators White and Norris put me in, but I do not care because I support the amendment.
Debates are good and extremes of view are good. I hope we will arrive at an in-between position which is good for everybody. What is bad about decriminalising the person who has to engage in prostitution? What is bad about criminalising the buyer, the person who says "There is a price on your body"? What is bad about criminalising a boyfriend who will force a girlfriend to go out to work? What is wrong with respecting the voices of people who work with the victims and who have heard the voices of the victims?
How many say this is their preferable position in life or that they do not always feel trapped? How many are willing to say this is the best career in which they could be involved? I have not heard that type of feedback.
It is looking for information on the nature and extent of prostitution connected to human trafficking, including the numbers of arrests and convictions during the period of the first two years. That is a matter in which every Member of this House should be interested. The second point looks for the extent to which, in the opinion of the Minister, this section has operated to reduce human trafficking. That is important because I presume one of the main objectives of the legislation is to reduce prostitution and, therefore, human trafficking and sex slavery. The third item is the impact of the section on the safety and well being of prostitutes. Senator Norris is correct in saying that these requests for information are a barometer, or litmus test, of the genuineness of the legislation and the motivation behind it. I am not querying the motivation behind the legislation but I accept that it is genuine. If it is genuine, I see no reason whatsoever why this amendment would not be accepted and endorsed by the Minister of State. It adds to what has been stated as being the purpose of the Bill. It puts in a check so that the Department and Garda offices are accountable. I hope the Minister of State will have no difficulty accepting this and I divorce the amendment from the manner in which it was introduced. I do not agree with the comments made when the amendment was introduced but I do agree with the wording and intent of the amendment.
In case there is any ambiguity, Amnesty International does not suggest that human trafficking, forced labour or the exploitation of children should be decriminalised. There is a deliberate fudging of prostitution and trafficking in this House and I am appalled by that. What the heck is wrong with the people here that they cannot support a review?
I do not understand the logic of my colleagues. We are here to do the right thing for society. Why can we not have a review of the Bill in two years' time? The people who do not support a review should not be here at all.
I will outline for the House the organisations who have been involved in this campaign, who have been described as radical feminists and right-wing extremists. They include AkiDwA, Barnardos, the Children's Rights Alliance, Doras Luimní, the Dublin Rape Crisis Centre, Focus Ireland, the Immigrant Council of Ireland, IMPACT trade union, the Irish Nurses and Midwives Organisation, my party, the Labour Party - perhaps we are radical feminists - One in Four, Pavee Point Traveller and Roma Centre, the Public Service Executive Union committee, Rape Crisis Network Ireland-----
-----we should accept that they have come to this view because, like all in this House, they are trying to do what is best. I have only listed a number of organisations but they should not be dismissed as having any motive apart from what is best for those who find themselves in a very vulnerable situation. The amendment inserts a review provision into the Bill in respect of one section only, namely, section 20, which criminalises the purchase of sexual services. I assure the Senator that all the provisions in this Bill which, in addition to dealing with the exploitation associated with prostitution, address the sexual exploitation of children and protections for victims in the criminal process will be kept under a continual review. While I appreciate that there is a similar provision in the Northern Ireland legislation, the provisions in this Bill are too important not to be fully and properly implemented and I have no doubt it will be kept under review, with or without the proposed amendment.
It is also the case that the information sought should be available on request at any time without the need for a future review provision. Given the considerable debate on these provisions, I fully expect the information to be sought from my Department well in advance of a two-year review. In so far as the amendment sets out particular matters to be reviewed, since 2009 the anti-human trafficking unit of my Department has been providing annual reports on trafficking in human beings in Ireland. These annual reports are available on a dedicated anti-human trafficking website blueblindfold.gov.ie. Information on the extent of prostitution offences is available from the CSO and is regularly published.
I certainly expect that any issues impacting negatively on the safety and well-being of prostitutes should be addressed as they arise but, as I have said and while there has been much discourse and narrative on this point, there is no substantive evidence showing a negative impact on the safety of those who provide sexual services-----
-----in those jurisdictions where a similar approach has been implemented. For these reasons, and because of a minor drafting difficulty with the amendment, I am not in a position to accept it.
The Minister of State is ducking the matter. It is like saying all items of legislation are under review. Any Minister can say that but we know in practice that it rarely, if ever, happens unless something occurs which highlights a lacuna. The Departments are not so proactive in monitoring what goes on in matters immediately under their control, not to mention previous legislation, which would probably be an impossible task. This is a specific request with regard to the area of human trafficking and the Minister of State is doing himself an injustice.He is exposing himself to giving credibility to some of the criticism that has been directed at him as to the motivation behind this. This is a very simple amendment. It would ensure that within two years - it would not be at the Minister's discretion, as it would be mandatory - such a report would be published on what are very germane matters concerning the outcomes of the legislation we are passing today. As somebody who has shown some degree of-----
I might not go that far, but as somebody who has shown some degree of ingenuity in the responsibilities he holds, the Minister of State should clearly exercise his right to accept this amendment. Too many Ministers of State who come to this House do not have any discretion, look over their shoulders for guidance and do not accept amendments. What distinguishes the good Ministers from the routine or run-of-the-mill Ministers is that they will exercise discretion in the House by accepting amendments that are sensible and enhance the legislation. That is the purpose of this amendment.
I have looked through the Bill and I can find no explicit statement in any section which suggests that there will be a review. I challenge the Minister to provide information as to the precise page and line number where this review is indicated in the Bill. I do not believe it exists, but if the Minister can direct me to it I will withdraw my allegation. Again, it is astonishing that the Minister would turn his face against the collection of data and information on the nature and extent of prostitution connected with trafficking, the extent to which this is operated to reduce human trafficking and the impact of the section on the well-being of prostitutes. The Minister might well say that the legislation in its entirety is subject to review, but that is not stated in the Bill. That is a general piece of waffle. Will the Minister be kind enough to show me the precise page and line where a review of this legislation, in whole or in part, is provided for, because I do not see it?
I will give the people in the Chamber, including the very esteemed professor of law and the Minister of State, a chance to think about it further. What the heck is wrong with having a review of the legislation? Why should it be carved in stone? That is what happens with much of the legislation passed by the Oireachtas - it is carved in stone forever and nobody returns to it. I will not press the amendment but I will table it on Report Stage. Hopefully, people will use their heads and the Government will provide for a review two years hence.
I understand how my colleague Senator Norris feels and I sympathise with him. However, I wish to give the benefit of the doubt to the people who are present in the Chamber today. What is wrong with reviewing legislation?
The Minister was seeking what is called a "comfort break," so perhaps he should take it now because I will take some time. I would not like him to be agonised while I speak. Does the Minister wish to have a break now?
On his own bladder be it.
To challenge the question of the Swedish experience, I quote from a report of the Norwegian Ministry of Justice: "The Swedish street prostitutes experience a tougher time." That is the evidence. The Minister asked if there was evidence and said there was none. I have it with me. It is an official report from the Norwegian Ministry of Justice. It continues:
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. [The prostitutes] are exposed to violence and sexually transmitted diseases. If the client demands unprotected sex, many of the prostitutes cannot afford to say no. Harassment by the police has increased and the clients no longer provide tip-offs about pimps, for fear of being arrested themselves. The social workers working on the streets have problems reaching them. [The prostitutes] use pimps for protection.
In further support of this, I will quote from an interview in 2010 with a senior adviser regarding prostitution of the National Board of Health and Welfare of Sweden:
[You] put [them] in the same category, and you say that well, ultimately, it's all the same, it doesn't matter if you make €5,000 a month, you sell sex without intermediaries, independently ... you're in the same position as someone who is forced by third parties to, somebody who's underage and forced by third parties....
In other words, there is a complete blurring of the situation. I offer another quote from a social worker in Malmö's prostitution unit:
... [You are] not [included in the debate] unless you are a former sex [worker]. Or a former client [...]. If you ... give a picture [that's] painted in many colours, it's not okay. If you paint in black, it's okay. You can be listened to.
The senior adviser at the National Board of Health and Welfare for issues surrounding prostitution noted during an interview that a political consensus was formed by silencing discursive opposition, where Gunilla Ekberg and radical feminists working for the Social Democratic Women "really made an effort to control what people were saying, and then they, of course, did not invite those who were blacklisted, or on their shit list, they did not invite them to meetings, and of course you understood that your agency could not be considered for government grants ...". What is that if it is not bullying? Threatening to take away grants if one expresses a different opinion is a wonderful exercise in democracy. To quote an interview with a social worker in the Malmö prostitution unit in 2010:
...everyone must be on board. If you're not, if you say something bad about [the discourse], then you're against the whole law, you're against the whole thing. And then you're excluded...
I am quoting the National Board of Health and Welfare in Sweden. I am providing a series of quotes because I wish to be factual and clear. I wish to reply to what the Minister said about there being no qualifications in Sweden and about the results being clear, unambiguous and scientific. They are not.
They are open to the most severe challenge. I refer to a 2007 report of the National Board of Health and Welfare in Sweden. That is quite official; it is a fairly authoritative voice. It states:
It is also difficult to discern any clear trend of development: has the extent of prostitution increased or decreased? We cannot give any unambiguous answer to that question. [How does the Minister respond to that?] At most, we can discern that street prostitution is slowly returning, after swiftly disappearing in the wake of the law against purchasing sexual services. But as said, that refers to street prostitution, which is the most obvious manifestation. With regard to increases and decreases in other areas of prostitution - the 'hidden prostitution' - we are even less able to make any statements.
The Minister of State does not want to have a review because he does not want to face these facts.
Women involved in prostitution say that criminalising clients will see more women being trafficked into Ireland. After all, pimps always have access to clients. The new law will cause sex workers to be much more secretive about their job and unlikely to reach out to agencies for help and support. This is the wonderful way in which the Minister of State is helping women. The Swedish National Police Board issued a press release in 2010, a decade or so after the new law was introduced in that country, which stated:
Serious organized crime, including prostitution and trafficking, has increased in strength, power and complexity during the past decade. It 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.
That is the effect in another jurisdiction of the law the Minister of State proposes to introduce here. No wonder he does not want to learn about its effects. No wonder he does not want to have an examination or review of the provisions he has brought forward.
In a survey of sex workers in the United Kingdom, a roughly similar jurisdiction to ours with a very similar social make-up and so on, one of the key findings was that the large majority of interviewed migrant workers in the sex industry were not forced or trafficked into prostitution. In Northern Ireland, it was found that 98% of prostitutes interviewed were fully against the provisions the Government is introducing here. The UK study found that immigration status is by far the most important factor restricting sex workers' ability to exercise their rights in their professional and private lives. Working in the sex industry, it noted, is often a way for migrants to avoid the unrewarding and sometimes exploitative conditions they meet in non-sexual jobs.
I turn now to the negative consequences of the law, particularly the increased risk of violence. Although there is no reliable study on the issue, sex workers express fear of increased violence, as well as the conviction of an actual increase. Unlike speakers on the other side of the House, I am referring to actual research. Other speakers can only cite their jaunt to Sweden where they failed to engage with any of the groups working with prostitutes. They refused, for example, to meet representatives of the Rose Alliance and ignored the fact that when they were there, figures were released showing an enormous increase in prostitution and trafficking. I am referring to research conducted by Dodillet and Östergren in 2011, Scoular in 2010, Hubbard in 2008, the Norwegian Ministry of Justice in 2004 and Östergren in 2004. The Skarhed report of 2010 notes that a 2003 Swedish Government report referred to a heightened risk for sex workers because of greater competition among women for fewer clients. However, being a Swedish Government report, it concluded that this increase in violence was not the fault of the law but of the women themselves. As I said, the report by Queen's University, Belfast, noted that criminalisation of clients is not considered a useful policy measure by the vast majority of sex workers. Only 2% of the 171 workers who took part in its survey agreed that criminalising clients was a good idea. That is the level of support for these changes among sex workers.
In Sweden, sex workers and researchers say the crackdown on street-based sex selling has forced women to move to more hidden and thus potentially dangerous locations. The men still on the streets are reportedly the more dangerous ones, while the nicer, safer clients have moved to the Internet. That is a factor of which no account seems to have been taken. Since the 1980s, there has been a significant drift from the street to the Internet, a reality that is not reflected in this law. As sex workers avail of more hidden locations to avoid the police, they may end up in the hands of third parties in an effort to stay out of the view of the police and secure clients. That is documented in the 2011 paper by Dodillet and Östergren, the Swedish National Board of Health and Welfare report of 2007 and the 2008 paper by Bernstein. Is the Minister of State prepared to deal with these facts? Will he indicate whether he or his advisers have read the Queen's University report, Research into Prostitution in Northern Ireland?
I take this opportunity to offer a number of comments by Irish sex workers. It is vital that their voices are not silenced.
No, I am directly addressing my reasons for refusing to consent to the passage of this section. One Irish prostitute noted that the new law will make it more difficult to find apartments and hotels in which to work. She expressed concern that workers who are already established may find it easier as they already have a network, while new girls will be more likely to put themselves in danger as the industry goes further underground. Another is convinced that many sex workers will be driven into poverty and have to rely on benefits. Since the Cathaoirleach does not want the voices of these women to be heard, I offer those comments by two women as a representative selection and will omit the comments of the other 12 or 14 women. If Members ever want to hear the other statements, I will be happy to show them.
I turn now to the marketing campaign surrounding the alleged success of the Swedish Sex Purchase Act. It is claimed the law has reduced prostitution and trafficking for sexual purposes, had a deterrent effect on clients and changed social attitudes. Those claims were most recently stated in the 2010 evaluation of the Act. At least an evaluation was done. Even the Swedes did that much, but the Minister of State is not prepared to do the same because he is afraid of what he might find.
The problem with these claims is that if they are carefully investigated, they do not appear to be supported by the available facts from research. As soon as the official evaluation was published, it was criticised from several directions, with that criticism focusing primarily on the lack of scientific rigour. The evaluation did not, it was noted, have an objective starting point since the terms of reference given were that the purchase of sex must continue to be illegal. There was no discussion of the facts. Illegality was the starting point and the facts had to be found to fit that or, rather, the facts had to be concealed and buried. There was not even a satisfying definition of prostitution.
The evaluation of the law did not take into account ideology, method, sources and possible confounding factors. There were inconsistencies, contradictions, haphazard referencing and irrelevant or flawed comparisons. According to the academic report by Dodillet and Östergren, the Sex Purchase Act "was introduced by feminist policymakers who argued that prostitution is a form of male violence against women". In other words, it was ideologically driven. The report by the Norwegian Ministry of Justice talks about a general problem with statistics from Sweden, describing them as "highly uncertain". This is one Government commenting upon another.
There is not the slightest scrap of international evidence that the so-called Swedish model has reduced trafficking into that country. In fact, the UK and Ireland scored better than Sweden in a recent survey on global slavery. To be clear, we are scoring better than Sweden on this marker after some ten years of the operation of the new law in that country. That tells us how effective it has been. The finding is somewhat odd given the claims made by the proponents of the Swedish model that it has reduced trafficking for sexual exploitation. In addition, there is a general ignoring of the New Zealand example, which has been successful.
Between 2009 and June 2014, the total number of suspected victims of trafficking for sexual exploitation encountered by the PSNI was 81. The number of confirmed victims was 26 over that five-year period.This is a serious and dreadful situation, but it is hardly the epidemic to justify this massive campaign.
I am a member of three unions and I was never consulted. Not a single trade union consulted its general membership about this. This is the strength of it. It was a PR campaign railroaded through.
The Joint Committee on Justice, Defence and Equality had a jaunt to Sweden, and while it was there, the Swedish forum for human rights confirmed the trafficking of more than 166 children between 2008 and 2011 - hello, is anybody listening? - and confirmed the loss of 438 immigrant children in 2011 alone. On the final day, sex workers were graciously permitted in but no transcript of this was made publicly available. Neither of the two sex workers, whose appearance at the very end of the meeting was sheer tokenism, requested their testimony to be excluded from the transcript, but the decision was made not to record their views. How balanced is this?
I wish to put on record of the House a report from the press agency of the Rikspolisstyrelsen, which is the Swedish national police board. It has stated that serious organised crime, including prostitution and trafficking, has increased in strength, power and complexity over the past decade, that it constitutes a serious social problem for Sweden and that organised crime makes large sums of money out of it. Why, when it was considering this, did the Committee on Justice, Defence and Equality neglect to examine a variety of social models and concentrate exclusively on the Swedish model? Why did it refuse specifically to liaise with the New Zealand authorities and the New Zealand Prostitutes' Collective, despite the well-publicised success of full decriminalisation? Why did it refuse to invite the Swedish sex workers who expressed great dissatisfaction with the social model? At the Dublin conference in October, Pye Jakobsson of the Swedish Rose Alliance spoke about the serious and various negative consequences experienced by sex workers under the Swedish model. Why did the delegation which visited Sweden in November refuse to meet the Swedish Rose Alliance? I have referred to the fact Deputy Stanton put on his Facebook page a declaration about the situation before the committee had heard any evidence whatever.
In 2007, eight years after the law was implemented, the Government of Sweden conceded, according to an official Swedish Government document, that it cannot give an unambiguous answer to the question on whether prostitution has increased or decreased. That is an interesting comment from the Swedish Government. Reporting from 2008 to 2010 showed an increase of trafficking in Sweden of 106%. Reported cases of sexual services sold went up by 569%. This is hardly a great tribute to the success of the Bill. A paper in The Lancetin July 2014 stated full decriminalisation would inhibit HIV transmission by up to 40%. Is nobody listening to these things? Is nobody concerned about the spread of disease? It is all very well to be comfortably ensconced here in our little middle-class environment and prate about life on the streets when very few people have real experience of it.
Amnesty International is a highly reputable body of international reputation. One in Four was instanced by the Minister of State as supporting it, and perhaps it is, but the founder of One in Four is the director of Amnesty International, which has fully endorsed the report. This should tell us something about diversity of view. There are all kinds of sensational charges laid about Amnesty International and against anybody who speaks out on behalf of this vulnerable minority.
As I pointed out, 98% of prostitutes are against it, but 80% of the voters in Northern Ireland are in favour of it. This is why we have the unusual alliance between provisional Sinn Féin-IRA on the one hand and the Roman Catholic hierarchy on the other, together with the Paisleyite Protestants. It is an interesting alliance.
Amnesty International does not endorse or encourage sex work. It takes no position on this and is solely concerned with the protection of sex workers' human rights. Neither is Amnesty International's approach advocating any right to buy sex. Amnesty International states the moves to criminalise the purchase of sex run counter to increasing evidence that such an approach puts sex workers at risk and leads to human rights violations. This is Amnesty International stating it puts people at risk and leads to human rights violations, not a trade union or the Irish Countrywomen's Association, but the principal body dealing with human rights in this country.
The criminalisation of sex work is increasingly being recognised as a human rights concern. The UN special rapporteur on the right to health has explicitly called for the decriminalisation of sex work. The final report of the Global Commission on HIV and the Law, an independent body convened by the UN development programme on behalf of the joint United Nations programme on HIV-AIDS, has made the same call. The commission deliberated over a two-year period, undertaking extensive analysis and research, including seven regional dialogues on the links between legal frameworks, human rights and HIV. I apologise as this information has been put on the record by Senator White in a very fine statement.
The UN AIDS advisory group on HIV and sex workers recommended that states should move away from criminalising sex work or activities associated with it. It also recommended that the decriminalisation of sex work should include removing criminal penalties for the purchase and sale of sex. It could not be any more unambiguous. This is the most reputable international body. It also recommended that the management of sex workers, brothels and other activities related to sex work, to the degree that states retain non-criminal administrative law regulations concerning sex work, should be applied in ways that do not violate the workers' right or dignity and ensure their enjoyment of due process of the law.
Now let us turn to the World Health Organization, and the Minister of State can dismiss this any way he likes. It calls for countries to work towards the decriminalisation of sex work and the elimination of the unjust application of non-criminal laws and regulations against sex workers. The International Labour Organization has called on governments to recognise sex work as an economic sector and a legal occupation, with protection under the labour law, social security and health regulations. Human Rights Watch, Open Society Foundations and Anti-Slavery International, among other non-governmental groups, have also called for the decriminalisation of all sex work. A constellation of bodies is calling for the deletion of these two sections, which is my proposal. In Norway-----
That is why I was asking. The Minister of State still looks perfectly serene. I do not know how he can be in light of the blistering account I have given him of all those organisations that have a completely contrary point of view and whose voice was silenced by Turn Off the Red Light.
My document states:
In Norway, leading academic researchers have cautioned that the reported decrease in sex work is limited by “substantial uncertainties”; expressing concerns that the authors of the evaluation failed to sufficiently explore their own findings that demonstrated that the market in Norway “may have changed because the people involved try to ‘stay under the radar’ and avoid arenas where they can be observed, and by implication, counted”.
In both Sweden and Norway, researchers have found evidence of increased risk-taking among sex workers in relation to their safety since the passage of the purchasing ban. [The Minister of State challenged me on this point so I am giving him the information.] Research in 2012 by Pro Sentret, Norway’s national centre of expertise on sex work policy, indicated that since the introduction of the prohibition on purchasing sex, some sex workers have reported seeing a decrease in ‘good clients’ and that the remaining ‘bad clients’ now make up a greater proportion of available options. The report indicates that sex workers are taking greater risks in their interactions with clients such as agreeing to visit their homes, concluding negotiations with clients more quickly or in secluded spaces that are safer for the client, and agreeing to take more dangerous clients. In Sweden, concern has been raised that this actually empowers those purchasers [and the pimps] who are willing to take risks as sex workers have less bargaining power and are potentially forced to sell sex cheaper and offer unprotected sex. [That is a wonderful way to address the problem of AIDS.] Research also indicates that this increase in risk is felt most acutely by the most vulnerable, resource-poor, street-based sex workers who cannot relocate indoors and now face increased competition for ‘bad’ clients, more pressure to conclude negotiations quickly and covertly, and reduced bargaining power.
Both the Swedish and Norwegian government evaluations reported that sex workers felt less safe since the passage of the purchasing ban.
The reality is that people feel less safe since the passage of the ban.
Moreover, the document states:
For example, the Norwegian report stated that:
“[W]omen in the street market report to have a weaker bargaining position and more safety concerns now than before the law was introduced. At the indoors market, prostitutes express concerns for ‘out-door calls’. They prefer to have customers visiting them at their own apartment or own hotel room. The threshold for reporting a violent customer to the police also seems to be higher after the law. People in prostitution are afraid that such actions will come back to halt them at later stages.”
Of their discussion with current sex workers in Sweden, the authors of the evaluation reported that:
“They describe having chosen to prostitute themselves and do not consider themselves to be unwilling victims of anything. [It is the Government that is calling them victims.] This self-righteous campaign decided that these people who do not feel they are victims. It is the responsibility of the government to decide what other people are ... ."
It is also stated:
"Even if it is not forbidden to sell sex, they feel they are hunted by the police. They feel that they are being treated as incapacitated persons because their actions are tolerated but their wishes and choices are not respected. Moreover, they state that there is a difference between voluntary and forced prostitution."
The criminalisation of the purchase of sex has also reportedly impacted on HIV prevention and harm reduction. Condom distribution to sex workers and clients has been publicly criticised for ‘encouraging sex work’ and running contrary to the law and has been scaled back in at least one area of Sweden since the passage of the law.
When thinking about the human rights of prostitutes, we must note that not all of them regard themselves as unfortunate. Some of them are, however. Some of them, as a result of the operation of the law in Sweden, have been deprived not only of a large proportion of their income but also of their homes. I find it shameful that, in Norway, the police actively targeted the landlords of known prostitutes and called this excursion Operation Homeless. It is fairly cynical driving prostitutes out of their homes in a police operation described as Operation Homeless. This has led to the eviction of sex workers from their place of work and occupation. Is that what the Government wants? Does it want an increase in risk and damage to the safety of women? Does it want an increase in the risk to health and the risk of HIV infection, the dispossession of women from their homes, the harassment of women, and the exposure of women to greater danger? I cannot believe this is what the Irish people want.
Sections 20 and 21 provide two offences for the criminalisation of the purchase of sexual services. 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 sexual activity with a trafficked person. These provisions are the result of considerable and extensive public consultation by the Department of Justice and Equality but primarily by the Oireachtas Joint Committee on Justice, Defence and Equality, which recommended similar proposals in 2013. The matter has already been the subject of considerable debate both inside and outside these Houses and even beyond the State.
In deciding on these provisions, the Minister considered all sides of the debate and the experience of those states that have introduced similar measures and those that have addressed prostitution in a different way. 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 European Parliament have recognised the effectiveness of the criminalisation of the purchase of sexual services as a tool in the fight against human trafficking. However, even to leave aside this unquestionable objective, there is undoubtedly evidence of wider exploitation of persons involved in prostitution outside those trafficked, such as those coerced or otherwise forced through circumstances to engage in the activity.
The most direct way of combating this form of exploitation is to send a message to those who pay for these services and those who ignore the exploitation of the women and men that their behaviour is not acceptable and supports the exploitation of other people.
Senator Norris raised many aspects in the debate today. He raised issues regarding the impact of the provisions, and safety, health and well-being of those who work in prostitution. The Minister is well aware of the arguments and concerns. In deciding to put forward her proposals, the Minister listened to all sides of the debate and is convinced that targeting the exploitation associated with prostitution requires targeting those who demand prostitutes.
I wish to comment on a point made by Senator Norris and to correct the public record. Having listened to his opinions on these issues, I believe they are also grounded in an ideology. I wish to correct his comment on the justice committee, of which I am a member, and the evidence provided to its members by sex workers. I have checked with the secretariat and it has advised me that the evidence of former sex workers was, at their request, taken in private session before the committee in order to protect their identity. The secretariat has also advised and reminded us that similar arrangements were also requested by current sex workers to protect their identity, and that we heard their evidence in private session. I am advised that if we hear evidence in private session, it is not normal procedure to produce a transcript of the meeting. I am informed that an initial examination of the records indicates there is no communication from any current or former sex workers of their evidence being omitted from the report.
In a review of the television programme “Sex For Sale” by RTE Investigates - that well-known, reputable group - Emmanuel Kehoe in The Sunday Business Poststated:
Viewers might be forgiven for wondering whether, when gangs can operate so successfully and openly in Ireland despite current legislation, a new law, if weakly enforced, will prove a real deterrent. Is it not likely that a few punters will get prosecuted in the full glare of tabloid publicity while the thugs remain at large, adapting their operations to the prevailing circumstance?
I do not just have compassion and interest in the welfare of the women involved. I also think of the men involved. What about the tabloid exploitation of the tiny and unrepresentative arbitrary number of people caught up in this thing? I can see suicides taking place as a result of this. It is perfectly lamentable.
It is useful that Senator Zappone has put the information she has on the record of the House. I did not get it all because there was much shouting and covering up of voices. As I am not on the justice committee, can I have it confirmed that what Senator Zappone said is that the voices of sex workers were taken into the account?
I am very pleased to hear that, because we do need to hear the diversity of voices.
We have had so much talk that I am not sure if there is a review built into this legislation. Can the Minister of State confirm that?
I am happy with the legislation the Minister of State has proposed. However, we need to measure the impact of all new legislation into the future and how it pans out in reality. It would be wise if, on Report Stage, the Minister of State considered bringing in a review of the overall legislation and its impact of practices in Ireland in this field.
The Minister of State referred to the large number of organisations which support this provision. He should ask them if they would have a problem with a review of it. No sensible person would have a problem with a review of the legislation in two years’ time. I cannot believe what is happening here. There should be a consensus of common sense that this legislation should be reviewed in two years’ time. I will withdraw the amendment for Report Stage and I hope the Minister of State will use common sense on this matter to do himself justice.
On the question, "That section 20, as amended, stand part of the Bill", a division has been challenged. However, in the absence of two tellers on the Níl side, the division cannot proceed. I declare the question carried.
I move amendment No. 31:
In page 17, between lines 3 and 4, to insert the following:“21. Section 9 of the Act of 1993 is amended—(a) in subparagraph (i) by the substitution of “€10,000” for “£1,000”,
(b) in subparagraph (ii) by the substitution of “€50,000” for “£10,000”.”.
This amendment proposes to bring the figures up to date as they appear to be out of date at this stage. We are in the era of the euro as opposed to pounds.
I thank the Senators for the amendment. It proposes to increase the penalty for the organisation of prostitution. The Minister supports the aim of the Senators' proposal. There have been calls to review the existing penalties for offences relating to prostitution. The Minister has concerns over some penalties in this area, for example, the maximum penalty for living on the earnings of prostitution of another person, pimping, is only a maximum of six months imprisonment. The Minister has asked for a review of the penalties for all offences relating to prostitution. On Report Stage the Minister will be increasing the penalty for loitering and she will bring forward other amendments where a forum is appropriate.
I move amendment No. 33:
In page 17, between lines 17 and 18, to insert the following:“22. The Act of 1908 is amended by the substitution of the following section for section 1 and 2:“1. Any person of or above the age of 17 years who has carnal knowledge of a person, who to his or her knowledge is his or her parent, child, brother, sister, grandparent or grandchild shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.”.”.
This amendment applies to two sections which deal with the same issue.This amendment proposes to make the offence gender neutral. The offence is split by gender, assigning a dominant role to the male and a passive role to the female. The penalties are much lighter for female offenders but are being equalised now. The problem is that males may be tried for incest from the age of 12 years and females from 17 years. As such, it appears that males and females are not treated equally regarding their intentional capacity under the Bill. We just wanted to point out this anomaly to the Minister of State. It needs to be addressed. If that is not done here, it could be challenged at a later stage.
I thank the Senator. The Minister appreciates the purpose behind the proposed amendment but she has initial misgivings about it. The purpose of the provisions in sections 22 and 23 is to remove the existing gender anomaly relating to the penalty for incest by a male as opposed to by a female. Otherwise, they reflect the provisions of the Punishment of Incest Act 1908. When offences of this nature occur, generally an adult and child are involved. The 1908 provisions were undoubtedly intended to protect children within the family but they were also motivated by the potentially adverse effects on any children born out of such relationships and eugenic considerations generally. For this reason, the Act and the amended provisions proposed in the Bill limit the offence to an act between persons where pregnancy is most likely.
The Senator's amendment broadens the offence in this respect. For instance, the current offence of incest by a male includes a male who has carnal knowledge of his granddaughter, but not a male who has carnal knowledge of his grandmother. Equally, in so far as there is an offence of incest by a female, it may occur where there is carnal knowledge with her grandfather but not her grandson. Obviously, where a person engages in a sexual act with a child under the age of 17 years, the existing defilement offences under the Criminal Law (Sexual Offences) Act 2006 will apply. However, where it is an offence of incest, the relationships within which the offence may arise are limited to those most likely to result in pregnancy. Therefore, the Minister wants to examine this aspect of the amendment to ensure that it does not unnecessarily extend the offence of incest. The amendment would limit the offence to persons over the age of 17 years where currently that limit only applies to females and not to males. The amendment would exempt males under 17 years of age from the offence, thus restricting its scope while expanding its extent by unifying the categories of prohibited relationships for both sexes. We must be careful not to bring about unintended or unnecessary consequences.
The Supreme Court has adjudicated that the Oireachtas is entitled to protect girls under the age of 17 years from the risk of pregnancy because a girl potentially carries a greater burden from the act physically and emotionally should she become pregnant. The Minister is concerned that accepting the amendment may preclude, where appropriate, the prosecution of a male of, for example, 16 years of age.
The amendment also deletes subsection (2) from the offence of incest by a male. Under subsection (2), a male cannot rely on the consent of a female as a defence to a charge of incest. While there is no similar provision in the offence by a female, it would not be correct to suggest that the offence by a female can be defended by the consent of the male. The nature of the offence by the female is different than that committed by a male. The offence by a female is committed where she permits a specified male relative to have carnal knowledge of her. Consent on the part of both parties is, therefore, implied and an element of the offence. Relying on the defence of consent on the part of the male would not arise. The offence by a male is committed where he has carnal knowledge of the female. A provision clarifying that consent of the female is not a defence is, therefore, required and brings it into line with the offence by a female. Removing this provision from the offence by a male would mean a male could rely on consent as a defence but a female could not. For these reasons, we cannot accept the amendment.
I thank the Minister of State for his detailed response, which we would like to study. We are probably coming from a similar perspective, but we want to be sure before making any amendment. I understand that the Minister of State is considering the matter as well and may table a Report Stage amendment on it. We will take what he stated on board and study it and we might revert on this matter on Report Stage. I will withdraw the amendment, by leave of the House.
I would like to tease out a few issues. This section relates to incest. Can incest take place between two males? There is an exclusion of male-to-male sexual activity from the Bill. I am curious as to why. I am not advocating that it should be included but I am curious to know why this particular form of behaviour is not covered by the Bill.
Regarding the line "Any female person of or above the age of 17 years" in section 23, what about someone who is 16 and a half years of age? Does the world dramatically change on a 17th birthday? Is it perfectly legal for a girl of 16 and a half or 16 and three quarters years of age to have sex with her grandfather, father, brother or son? The provision reads, "knowing him to be her grandfather, father, brother or son". There was a tragic case in Germany in the past ten years of a brother and sister who were separated at birth, did not know each other and went to different families. I am not sure whether they went to different towns. They met casually, fell in love, started a relationship and, as far as I remember, had children. They applied to get married.
Imprisonment for life is a harsh term. I am not in any sense encouraging incest but imprisonment for life is putting it on the same level as murder. I would be interested in the Minister of State's response.
It is a difficult discussion to have and I understand that it can cause great upset to people who have been victims of this offence or affected by it. In a technical sense, the offence of incest is limited to those relationships that may result in pregnancy. On that basis, sexual intercourse between two brothers would not be considered to be incest.
It is not considered to be incest. That is very interesting. I made the same point in an interview and was publicly pilloried for it but the Minister of State has put the fact on record. That is what I said but I was publicly humiliated and held up as some kind of libertarian rascal.
The Minister of State has not answered my question about a girl of 16 and three quarters years of age. Does she commit no offence?
That is very interesting. That satisfies the Lolita syndrome merchants. Here we are again. The question of consent and so on is interesting. This time, it operates in a different way. A girl of 16 and three quarters can have sex with her father, grandfather, mother, brother or whomever else - actually, it does not include the mother - until three months later. What if she is 16 years and 11 months old or 16 years, 11 months and 29 days old?
I find this discussion nonsensical. We are dealing with serious issues that affect people. In this serious legislation, to have an almost humorous debate on whether someone is one month older or younger than another and whether that is an offence does a significant disservice to victims throughout the country. I would appreciate it if we could stick to the Bill-----
Does the Senator see a smile on my face, or did she? Was I trying to be humorous? I am trying to project a hypothetical case and demonstrate that arbitrary lines like this have an element of folly. I did not smile once. How the Senator could construe my remarks as humorous, I simply do not know.
In any legislation dealing with an age limit, this matter will always arise. One could say it is nonsensical for somebody who is 17 years and 364 days old not to be able to vote but that is the reality of our current arrangement. It features in this legislation also. It is the Supreme Court adjudication that the Oireachtas is entitled to protect girls under the age of 17 years from the risk of pregnancy as a girl would potentially carry a greater burden from the legislation physically and emotionally should she become pregnant.
The Minister is concerned that accepting the Senator's amendment may preclude, where appropriate, the prosecution of a male of, say, 16 years. While I can understand the Senator's examples, the law draws a line in the sand when it comes to somebody's age. That is the way it has been and the way it always will be.
I am sorry if Senator Cahill believes I am being humorous. I am certainly not being humorous but I am teasing this matter out as I am required to do as an elected Member of Seanad Éireann.
The Minister has confused matters further by introducing a High Court or Supreme Court ruling on the question of pregnancy. Is the Minister of State suggesting that somebody under the age of 17 years cannot get pregnant? People get pregnant at quite early ages. It may be very regrettable but it is a fact. At what age can people be married?
People can get married at 16. Senator Cahill should note these are the anomalies in the law. As with the Code Napoléon, we need to codify laws in a coherent and sensible manner so we are all treated in the same way. When the Minister introduces the notion of pregnancy, it seems almost to imply that somebody under the age of 17 cannot get pregnant. Quite plainly, she can and, therefore, the argument does not-----
Again, the language is quite clear. The legislation refers to protecting girls from the risk of pregnancy. The Oireachtas has a responsibility to protect girls from the risk of pregnancy. We are not in any way suggesting that somebody under 17 cannot become pregnant. Such a suggestion would be preposterous. The Supreme Court adjudication dates from 2006.
Again, what I said is perfectly sensible. The reference to protecting girls from the risk of pregnancy is quite clear. I am suggesting that the Minister of State is implying there is no risk of pregnancy under the age of 17. I do not accept that. When the Minister of State spoke about the risk of pregnancy, perhaps there was something I did not understand. He says the age is over 17 because of the risk of pregnancy and so on. What about people under 17? Are they not at risk of pregnancy?
That is why we are protecting them. My point has been made. It is our responsibility as legislators to protect a girl under the age of 17 from a risk of pregnancy through a sexual violation, sexual assault, rape or incest. This is what we are dealing with. In a manner, we are dancing on the head of a pin but essentially the point has been made.
Amendments Nos. 35 to 43, inclusive, are related. Amendment No. 38 is a physical alternative to No. 37. They may all be discussed together by agreement. Is that agreed? Agreed.
Has Senator Ó Clochartaigh permission to move amendment No. 35?
Yes, I have been asked by Senator van Turnhout to move her amendment.
I move amendment No. 35:
In page 22, line 27, after “in this section” to insert “and in section 19B”.
The purpose of amendment No. 36 in my name is to restrict the availability of therapy notes in criminal proceedings to those which have a direct bearing on the offence in question. We have raised issues around this at different Stages. Therapy, following from sexual abuse, is not solely concerned with discussing that experience. According to representations from the CARI Foundation, the Children’s University Hospital, Temple Street, and Our Lady’s Children’s Hospital, Crumlin, therapy often covers a range of family and relationship issues which are often not relevant to proceedings. Without a definition of relevance, there is a risk that defence representatives would cast a deliberately wide net, seeking sensitive information which does not contain reference to the actual offence.
Amendment No. 38 is to ensure therapy records do not provide an indication of whether or not a complainant has an ability to testify at trial. Such notes do not capture the current developmental, verbal or emotional competencies of a complainant or, in any way, assess a complainant’s capabilities to participate in the criminal justice system.
The purpose of amendment No. 39 is to ensure therapy records do not provide an indication of whether or not a complainant has an ability to testify at trial.
Amendment No. 41 is to ensure vulnerable people such as children are protected from re-traumatisation. It is the opinion of special care units that the risk of harm, psychological harm in this context, which could be caused to the victim by unnecessary disclosure should be included as a factor. This is consistent with EU directives which describe that child witnesses should be protected from further victimisation and re-traumatisation within the criminal justice system.
To put it in a nutshell, we are concerned by the way therapy notes could be misused by unscrupulous legal representatives and how they could possibly drag up many issues which people might not like to have discussed in a public or other court. This could be a deterrent to some people taking cases. We know these cases are difficult to prosecute in any sense. I imagine the Minister of State is coming from a similar type of perspective to ourselves on this. I hope he will consider these amendments helpful and take them on board.
Section 33 regulates the disclosure of the content of third-party counselling or therapy records in sexual offence trials. The disclosure of counselling or therapy records in the context of criminal proceedings, especially with regard to sexual violence, touches on several sensitive issues and balancing of rights. The right to a fair trial for an accused must be respected. However, so too does the right of the victim not to feel further violated in the criminal justice process. This section establishes a process for the disclosure of such records, where appropriate.
Since the publication of the Bill, the Minister for Justice and Equality has received several submissions proposing changes to this section. Notably, submissions from the Ombudsman for Children, Rape Crisis Network Ireland and Q4, representing the child sexual assault units in Temple Street and Crumlin children’s hospitals, are being considered by officials in the Department of Justice and Equality. The necessary balancing of fundamental rights involved in the disclosure of sensitive personal records requires careful consideration from both a legal and operational perspective. The Minister expects to be in a position to address several concerns raised about this section by way of amendment as the Bill progresses through the Houses. For example, the Minister intends to accept one proposal raised in the submissions of Q4 and Rape Crisis Network Ireland, namely the removal of all references to the competence of the complainant or witness to testify, as she is persuaded that counselling records are not relevant to competence.
With regard to the specific amendments proposed, I thank the Senators van Turnhout, O’Donovan, Cullinane, Ó Clochartaigh and Reilly for their amendments. The Minister fully appreciates the points they have made.
Senator van Turnhout’s amendments Nos. 35 and 43 propose a separate disclosure regime to apply to children. The Minister is concerned that difficulties would arise in applying two regimes simultaneously but will consider the particular protections applying to children as part of the review of this section.
As to amendment No. 36, there are several difficulties with the definition of “relevant record” proposed. The proposed amendment deletes the reference to the prosecutor having sight or knowledge of the record, making it almost impossible to identify which records would be subject to a disclosure application and pre-trial hearing. Requiring, by definition, that the record has some probative or evidential value also raises the question of how this can be determined in advance of a pre-trial hearing and may create a presumption in favour of the disclosure of the record at a hearing. These are matters appropriate to the hearing.
Amendments Nos. 37 to 41, inclusive, seek changes to the list of assertions in section 33(4) which, on their own, will not establish the relevance of a record, and the factors in section 33(9) which the court must consider in determining whether to disclose a record. These are issues which have also been raised in the submissions the Minister has received and the two subsections in particular are being reviewed.
The Minister is minded to take on board some of the changes proposed. However, it is important to emphasise again that a careful balancing of rights is involved to ensure the disclosure provisions are constitutionally sound.
I welcome the Minister of State’s contribution. It is important these issues are taken on board. We will take the Minister of State at his word that amendments will be introduced on Report Stage. As we tend to get amendment lists quite late, would it be possible to get these amendments at an earlier stage after they have been drafted to ensure we can get sight if they cover the issues we are addressing?
I thank the Minister of State for his response. I was one of the Senators who contacted the Minister for Justice and Equality about various points concerning section 33 and on ways in which the disclosure regime could be strengthened, as well as the rights of victims protected. I look forward to the Report Stage debate on this.
These are quite important amendments and I appreciate the Minister of State has addressed them. I note, for example, that amendment No. 36 is in the names of Senator O’Donovan and the Sinn Féin Senators. I presume this is as a result of extensive lobbying by groups interested in this area.
One does not want records disclosed all over the place willy-nilly. The amendment certainly seems to have merit in that it should be a “record that has some probative or evidential value to the alleged sexual offences that is or are the subject of the criminal proceedings.” We all know the ways of lawyers, paceSenator Professor Dr. Bacik.
We also know the way in criminal trials how counsel is often inclined to draw in red herrings and smear one side or the other. For that reason, this is a very well-argued and reasonable amendment. I will certainly support it. Although it has been withdrawn, I hope some version of it will be put back on Report Stage.
Amendment No. 40 is about the impact of such disclosures. Amendment No. 41 deals with the risk of harm to the person to whom the record relates. These are sensitive matters concerning the personal medical and therapeutic records of people giving evidence in a criminal case. They need to be treated with the greatest possible sensitivity. For that reason, I welcome the fact the Minister of State has indicated he will look at these for Report Stage and bring amendments to the House in that regard.
I move amendment No. 44:
In page 27, after line 41, to insert the following:"PART 7Choice of Individual to Consent
39. An individual consents if he or she agrees by choice and has the freedom and capacity to make that choice.".
I withdraw my amendment but I would like to hear what the Minister of State has to say.
I thank the Senator for bringing forward these amendments. This question of introducing a statutory definition of consent has been raised by a number of groups, in particular those who work with and support the victims of sexual offences and also by the Oireachtas Joint Committee on Justice, Defence and Equality in terms of domestic and sexual violence.
Moreover, this is an issue which does not appear to have received any significant consideration since Law Reform Commission's proposals in 1988. I know that the Minister is of the view that the question of providing a statutory definition of consent is overdue for review and that she has directed officials within her Department to undertake that work.
There is a clear understanding of the arguments favouring a statutory definition, including the clarity and understanding it will bring, as well as the assistance it could offer jurors, particularly in cases that may be difficult to adjudicate. However, there are also concerns that a statutory definition of consent may mean the flexibility of the common law system would be lost.
Aside from whether there should be a statutory definition of consent and if the answer is "Yes", what that definition should be, there are also a number of other questions which must be considered. Other common law jurisdictions have adopted different approaches to what is or is not consent. For instance, in the UK consent is defined with the addition of listing both evidential and conclusive presumptions about consent. While not defining consent itself, the New Zealand approach is to list the circumstances under which allowing sexual activity does not amount to consent. The Canadian model defines consent as well as setting out those circumstances where no consent is obtained and those circumstances under which a defendant's belief that consent was given would not be a defence.
While other jurisdictions share a number of similarities in their approach to the question of consent to a sexual act, there are differences, and Ireland should adopt a model appropriate to this jurisdiction. That is a complex matter which warrants a comprehensive review and appropriate consultation with those involved in the investigation and prosecution of sexual offences. While that process is ongoing, the Minister is currently unable to accommodate Senator O'Donovan's amendments today but, again, I thank him. The approach adopted in these amendments will also form part of the further consideration of this issue.
It is regrettable that the Minister of State is not taking on board the relevant points made by Senator O'Donovan in his amendments. Amendment No. 45 refers to the "non-consent of sexual activity" which formed the basis of a case recently. The amendment continued:
(f) the complainant was asleep or otherwise unconscious at the time of the relevant act;
(g) the complainant was too affected by alcohol or drugs to freely agree to sexual activity;
(i) the complainant having originally consented to engage in sexual activity expresses by words or conduct a lack of agreement to continue to engage in the activity;
(j) the complainant submits to sexual activity because of the abuse of a position of authority or trust.".
These are very real situations in which people are abused every day. It would add quite appreciably to the Bill to have those definitions included, if one can call them definitions. They would assist juries by quite a lot to reach judgments that assist the victim.
Two of the amendments deal with the question of consent. Amendment No. 44 reads, "An individual consents if he or she agrees by choice and has the freedom and capacity to make that choice." That seems to me to be a reasonable definition of consent. I have not thought deeply about the matter but it seems to me to be a fairly commonsense view of the question of consent.
Do the amendments propose new sections because I can see that the headline reads "Consent"? I presume that means it is an entire new section.
They propose to put in a new section, yes, but it does not actually say that. The Cathaoirleach has been helpful and I thank him very much. I notice that the provision comes in at the end of the Bill. The amendment does not say that it is a new section and come in after line 41 on page 27 of the Bill, after the end of a short two paragraph statement about double jeopardy. The section does not really talk about consent at all. Section 38 reads:
(1) Where a person has been acquitted of an offence in a place other than the State, he or she shall not be proceeded against for an offence under this Act consisting of the alleged act or acts constituting the first-mentioned offence.
(2) Where a person has been convicted of an offence in a place other than the State, he or she shall not be proceeded against for an offence under this Act consisting of the act or acts constituting the first-mentioned offence.
I do not see any connection whatever there with consent. It is unusual that amendment No. 44 states, "In page 27, after line 41."
Amendment No. 45 states:
An individual is to be taken not to have consented to sexual activity where:(a) the defendant intentionally deceived the complainant as to the nature or purpose of sexual activity.
I am not sure what that provision means. Perhaps I could get some further information from the proposer. Does that mean that the defendant says, "We're just having sex not for pleasure but in order to produce children"?
I am serious. What does "deceived the complainant as to the nature or purpose of sexual activity" mean? I do not understand it. Perhaps I can sit down and continue later if Senator Healy Eames can explain to me what it means. I do not follow it.
As I was saying, I do not understand what the phrase meant. I know the amendment has been withdrawn but it shall be put forward on Report Stage so it is still meat for discussion. I do not understand subsection (a) in amendment No. 45. Subsection (b) states, "the defendant intentionally induced the complainant to consent to sexual activity by impersonating a person known personally to the complainant." Again, I would counsel that if this amendment comes back on Report Stage such a line is removed because how on earth would one do so? Such a scenario beggars and stretches belief. People talk about things being ludicrous and frivolous. I mean, if somebody presents themselves in front of one, one can see them and one knows who they are.
I do. Sorry, that was frivolous and lighthearted. I must not smile as this is a grim Chamber, the star Chamber of Seanad Éireann. The amendment continued, "(d) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act." Again, the provision is perfectly reasonable. If, for example, one was imprisoned-----