Thursday, 14 January 2016
Criminal Law (Sexual Offences) Bill 2015: Committee Stage (Resumed)
I was taken by surprise by the speed of the Acting Chairman. I wish to briefly raise an issue on the offence created in section 39 of "exposure, sexual conduct of an offensive nature". I raised this previously with the Minister and her officials. I know that there is quite a long history to the relevant previous offence of indecent exposure and that there has been some litigation and constitutional judgments relating to the issue of vagueness of language concerning this type of offence.
I wish to raise a concern which I have raised previously with the Minister and her officials with the wording of subsection (3) of section 39 which reads as follows, "A person who intentionally engages in offensive conduct of a sexual nature is guilty of an offence." That is still a very widely defined offence. Subsections (1) and (2) are very carefully framed. Subsection (1) very clearly concerns a very specific act, while subsection (2) concerns a person in a public place who engages in a series of specific acts. However, there is no such restriction about a public place in subsection (3) and I am concerned that "offensive conduct of a sexual nature" is too broad a term.
Subsection (6) provides for a definition of "offensive conduct of a sexual nature" which is very welcome, especially as it is quite specifically drawn. However, I have a residual concern that saying that conduct which is likely "to cause fear, distress or alarm to any person who is, or might reasonably be expected to be, aware of any such behaviour" is still quite a subjective test. I know there is an objective element to it but concerns have been raised with me by constituents about this.
A homophobic person, for example, might raise the fact that he or she suffered "fear, distress or alarm" by the behaviour of a gay couple but that would not be the sort of behaviour that one would want to see covered by this offence. There is a concern that it might give room, credence or justification to homophobic complaints. That is the concern that has been expressed to me and I ask the Minister to reassure me on that issue. I know that changes have been made to the way this offence has been drafted and that there is an awareness of the need to ensure that people will not be able to raise unjustified complaints about behaviour.
I thank the Senator for her comments. Following a number of judgments in the High Court which struck out offences relating to public indecency and exposure, section 39 will replace section 18 of the Criminal Law (Amendment) Act 1935. It provides for new offences to address certain behaviours. These are very clearly spelled out in the section. We have taken extensive legal advice and have liaised with the Director of Public Prosecutions and others on this section. I am very strongly advised that these provisions set an objective standard as the test for offensive conduct, that is, conduct which may be reasonably considered offensive by many.
Obviously, I take the point Senator Bacik is making. She is concerned that defining offensive conduct of a sexual nature as behaviour which is likely to cause fear, distress or alarm to any person could lead to the criminalisation of behaviour which is not intended to offend. The Senator has given an example and I understand her concerns. However, I want to reassure her that the definition as currently drafted establishes an objective test of what might reasonably be considered offensive, having regard to all of the circumstances. I am strongly advised that conduct that is not offensive per sesuch as the Senator Bacik described in her example would not be captured by this offence. The strong legal advice I have is that the drafting is quite strong.
I move amendment No. 48:
In page 32, after line 4, to insert the following:“PART 8Abuse of a position of dependence and trust
46. The Criminal Law (Sexual Offences) Act 1993 is amended by substituting the following for section 5:“Offence of abuse of position of dependence and trustConsent
5. (1) Any person who being in a position of dependence and trust—
(a) takes advantage of his or her position, or
(b) aids, abets, counsels or procures another person to take advantage of his or her position,
(i) induces or seduces a person to have sexual intercourse with him or her, or
(ii) commits any other sexual offence involving a person,
shall be guilty of an offence of abuse of position of trust and shall be liable upon conviction on indictment to imprisonment for a term of not less than ten years.
(2) Where a person charged with an offence under this section can establish that, in respect of the sexual act which had been engaged in, no offence would have been committed had the consent of the victim been granted prior to the act, it shall in those circumstances be a defence for a person who is charged with an offence under this section to prove that—
(a) the victim consented to the sexual act which had been engaged in,
(b) that such consent was granted freely and in the absence of duress or coercion.
(3) In this section—
(a) ‘position of dependence and trust’ includes, but is not limited to, a
person who—(i) provides care,(b)‘sexual offence’ includes—
(ii) is responsible for welfare,
(iii) occupies a position of authority,
(iv) provides education, or
(v) provides support services including therapy or counselling, to the victim;(i) a sexual offence within the meaning of section 3 of the Sex Offenders Act 2001,
(ii) an offence under section 2, 3 or 4 of the Criminal Law (Rape) (Amendment) Act 1990,
(iii) an offence under section 6 or 7 of the Criminal Law (Sexual Offences) Act 1993,
(iv) an offence under section 4 or 5 of the Criminal Law (Human Trafficking) Act 2008, or
(v) any other offence of a sexual nature contained in any other enactment and which has been so prescribed in regulations made by the Minister for Justice and Equality under this section.
5A. (1) It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of that person, the existence of consent in respect of that act shall be determined in accordance with this section.
(2) In determining the existence of consent, an agreement between the parties to engage in the specific act must be established.
(3) In determining the existence of an agreement between the parties to engage in the specific act—(a) an examination of the communication between the parties immediately prior to the act shall be conducted, and(4) An understanding of the nature of the act shall only require the person to understand the physical nature of the act and shall not require the person to understand possible physiological consequences of the act.
(b) each person must be shown at that time to have understood the nature of the act.
(5) (a) In determining whether a person has consented to engage in a sexual act, no higher standard of understanding shall apply to persons with disabilities than that which applies to persons without disabilities.(b) In determining whether a person understood the nature of the act, the presence of a mental impairment shall not be a determinative factor.”.”.
This amendment proposes a new section in an effort to offer a repeal of section 5 of the 1993 Act and to replace it, effectively, with a Bill I put forward a year and a half ago. It is my understanding that the Government is going to bring forward its own amendment in order to repeal and replace it but we do not have that amendment yet. I understand it will be tabled on Report Stage but this is my effort to influence that amendment.
In terms of the Bill I put forward, the Department's response was to publish a discussion paper and invite submissions. It then developed the scheme of a Bill and so forth. I wish to respond to a number of proposals contained in the Department's paper by way of offering a rationale for my amendment. I am doing this in order to be as helpful as possible and to try to influence the Minister's thinking in terms of the amendment she will bringing forward on Report Stage.
Back in June 2014 the Minister spoke during the Second Stage debate on my Private Member's Bill. The amendment before us now is effectively that Bill. When the Minister responded to that Bill, she accepted that we need to repeal section 5 of the Criminal Law (Sexual Offences) Act 1993 and she stated that she had no difficulty with incorporating a number of the concepts in my Bill into her proposals to reform this aspect of law. As I have just said, following on from that commitment, the Minister's Department published a discussion paper in July 2014. That paper proposed the abolition of section 5 of the 1993 Act and its replacement with two new sexual offences. The first of these is a general offence of engaging in a sexual act with a vulnerable person and the second, a specific offence of abuse of a position of trust or authority in respect of a vulnerable person.The paper defined a vulnerable person as someone who "is suffering from a disorder of the mind, or (ii) has a disability which is of such a nature or degree as it (a) may cause the person to lack the necessary understanding to consent to sexual acts [in certain circumstances] or (b) may severely restrict the capacity of the person to guard himself or herself against serious exploitation by another person". That definition is very similar to that of a mentally impaired person which appears in the 1993 Act. Vulnerability is defined only in terms of the person's disability, which means that the individuals the proposed provisions seek to protect are almost identical to those covered by existing legislation. That poses a problem from a human rights perspective because it defines the vulnerability of victims in a way which discriminates against people with disabilities. That is one of my prime concerns and a key issue.
To return to the proposals made in the paper, the general offence of engaging in a sexual act with a vulnerable person, set out in the paper, covers all sexual activity and includes an offence of inducing a vulnerable person to engage in a sexual act. From conversations with departmental officials, it appears that this is targeted at defendants without disabilities who engage in sexual activity with persons with disabilities. The presence of consent or a reasonable belief that there is consent is proposed here as a defence, as is a reasonable mistake on the part of the defendant as to whether the complainant was a vulnerable person. If the defendant raises the latter defence, the court will consider whether, in all the circumstances of the case, a reasonable person would have concluded that the person was not vulnerable. That is the first proposal put forward in the Department's paper.
The second offence provided for in the paper is the abuse of a position of trust or authority in the case of a vulnerable person. This offence only applies to sexual acts which constitute rape or aggravated sexual assault and the defendant is defined as a person "who as part of their employment or as part of a contract for service supervises or provides treatment to a vulnerable person and that supervision or treatment directly relates to that person's vulnerabilities". In this case, the presence of consent is not a defence. However, a reasonable mistake as to whether the complainant was a vulnerable person is a defence. While this provision might, on the face of it, look similar to my proposed amendment, it is different in three important respects. First, it only covers rape and aggravated sexual assault, whereas my proposed amendment would cover all sexual offences. Second, the victim must meet the definition of a vulnerable person which is explicitly based on disability and, therefore, discriminatory and not inclusive. As I argued when I introduced my Bill, many people can be vulnerable to sexual violence, regardless of whether they happen to have disabilities. The presence of consent is not a defence to this offence, whereas it is to the offence I propose to introduce in the amendment. For these reasons, the amendment is preferable to the proposals the Minister has brought forward in the discussion paper. My approach is more inclusive and less stigmatising of people with disabilities.
It is clear that the Department's approach was aimed at avoiding any situation in which a complainant would feel compelled to consent because of fear of an authority figure or a fear that the support provided by the defendant might be withdrawn if she were to refuse. However, if that is the case, a definition of consent which emphasised the importance of consent being freely and voluntarily given without threat or inducement would better address this particular concern. I provide such a definition of consent in the proposed amendment.
The critiques I offer to the proposals which form the basis of my proposed amendment were presented to the Department of Justice and Equality by the Centre for Disability Law and Policy, the Connect People Network, the Inclusive Research Network and other organisations that involve self-advocates and people with disabilities. When the Department published the scheme of the Bill in 2014, it did not include a provision to replace section 5, a matter I understand the Minister will address on Report Stage. The scheme provided a definition of a vulnerable person for the purposes of providing for a new offence. The scheme states a vulnerable person is a person "who (i) is suffering from a disorder of the mind, whether as a result of mental illness or dementia, or (ii) has an intellectual disability, which is of such a nature or degree as to severely restrict the capacity of the person to guard himself or herself against serious exploitation or abuse." This definition equates vulnerability with specific disabilities and retains the approach that there should be a separate sexual offence where the complainant has one of these disabilities. I strongly urge the Minister to reconsider that approach in the light of submissions made by disabled people's organisations and their allies. We do not need or want separate legislation to address the issue of sexual violence against people with disabilities but want to ensure the general law on rape and sexual offences is applied equally to those who abuse and exploit people with disabilities.
I will mention a few words from self-advocates from the Connect People Network on the issue about which I am speaking. It is critical that these changes are introduced before the end of term of the Government. They say: "We think the current law is unfair for many reasons ... The current law is ignorant and old fashioned. It is from a time when people didn't know better ... We can have sex like everybody else ... We should be allowed to do all the sexual things we want to do ... The law is taking our power away ... It is just not fair ... It is nobody's business what I do in my spare time ... Other people don't get questioned so why should we get our private life questioned." They continue in that fashion. I bring some of their words into this debate because if it does not change in the next few weeks, all of it will still stand for people with an intellectual disability who can be criminalised if they engage in sexual relations prior to getting married.
I understand the Minister is anxious to avoid making provisions that make blanket assumptions about the decision-making powers of persons with intellectual or learning disabilities. I know that it has been difficult and that departmental officials have worked very hard on this issue to strike the appropriate balance between autonomy and protection. The purpose of my proposed amendment is to achieve the desired outcome of acknowledging the specific harm caused when disabled people are deliberately selected by the perpetrators of rape and sexual violence. Instead of developing separate sexual offences involving people with disabilities, it can be achieved by introducing provisions to provide for sentencing uplift or enhancement where crimes are motivated by bias or hatred of persons with disabilities or where disabled people are deliberately targeted for sexual violence on the basis of their perceived vulnerability. That approach is used in the case of a wide variety of criminal offences in the United Kingdom. It could be applied in Ireland and would send the correct message on how rape and sexual violence directed at people with disabilities and the members of other marginalised communities would be treated in the criminal justice system. It would do so without sending a stigmatising message to people with disabilities about their perceived ability to consent.
I hope the Minister will seriously consider the proposed amendment for these reasons. It is my effort to respond to some of the arguments made by the Department.
I should have welcomed the Minister and wished her a happy new year. I also welcome the groups represented in the Visitors Gallery which have worked hard to secure the passage of this Bill, with all of the important provisions it contains. We are all very hopeful it will be enacted before the dissolution of the Dáil.
I commend Senator Katherine Zappone for the important provisions proposed in amendment No. 48. They raise important issues concerning the statutory definition of consent in sexual offences. I have already communicated with the Minister's office on this issue and, as the Senator said, the Minister is likely to propose amendments on Report Stage.We very much welcome that. The Senator outlined a very difficult and complex area, particularly when one considers statutory definitions of consent generally. The English Sexual Offences Act 2003 provides in section 74 for a statutory definition of the concept of consent that is very broad. In that, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice. That very broad definition has been criticised for being too broad and allowing too much discretion to judges and jurors in its interpretation. Senator Zappone's provisions are much more detailed and clearly relate specifically to issues around abuse of positions of dependence and trust. In framing any amendments, it is difficult to strike the balance between allowing a definition to be broad enough to encompass the idea of freedom and capacity, which is so central to consent, and yet be detailed enough so that any discretion can be structured rather than too open to subjective interpretation by jurors. I appreciate that it is a difficult task to draft these amendments.
I will briefly mention another amendment that I know Senator van Turnhout will put forward on Report Stage. It is an amendment to section 33. On the last day we did not get an opportunity to discuss her amendments Nos. 35 and 43 to section 33, which concern third party disclosure. I know we were all hopeful that we would conclude Committee Stage on 11 December last year and at that point Senator van Turnhout did not engage in any detailed discussion of those amendments. I know we have now dealt with them but on her behalf - she is engaged in business before the UN Committee on the Rights of the Child - I notify the House that she will put forward another amendment to section 33 on Report Stage concerning third party disclosure. She has probably contacted the Minister about this already. This will be an amendment to section 19A(17) of the 1992 Act, where the complainant or witness has expressly waived his or her right to non-disclosure of a relevant record without leave of the court. I thank the Acting Chairman for allowing me to raise that matter.
I thank Senators Zappone and Bacik for their contributions. It is obvious from their comments that there has been much discussion with the Department on the issue over a protracted period and I thank them and other Senators for putting forward their views. On foot of the responses to the discussion paper mentioned by the Senators, a number of concerns raised are being addressed in the amendments that I will bring forward on Report Stage. Bringing forward these amendments will give us the opportunity to discuss the issue again.
On the question of consent, I have met Dr. Susan Leahy, who completed her doctorate on the question of consent. It is very detailed work and my officials have been in touch with her as well to discuss the issue. In some jurisdictions there are definitions that are elaborate but we rely on case law. There is quite a debate as to whether we should go down that direction in terms of definition. I am examining this very carefully as I do not want to undo some of the very good work that has already been done with this. At the same time, if a stronger definition is going to strengthen the opportunity to prosecute in cases of crime where it can be notoriously difficult to achieve prosecution, I will bring it about. The matter is being examined very carefully from the legal perspective.
I cannot accept the Senator's amendments but I should provide some context. The Government and I fully support the repeal of section 5 of the 1993 Act and necessary measures will be brought forward. We are fully committed to addressing the principles behind the Bill, as we have made clear. The fact that the necessary amendments have not been brought forward today - they would have had to have been in by 9 December last year - is entirely a reflection of the complexity of the issue. I have been considering the range of legal issues and we have been getting extensive legal advice on them. They are extremely complex from a criminal law perspective, as the Senator appreciates, notwithstanding the periods involved with our discussions.
Section 5 of the 1993 Act is a very blunt instrument. It identifies a group of people by reference to mental handicap or mental illness and offers complete protection based on their ability to live an independent life or guard against serious exploitation. In particular, where the section refers to a person being "incapable" of living an independent life, it fails to recognise that a person who may need assistance with certain daily routines or tasks is nonetheless perfectly capable of making decisions about personal and sexual relationships and the wide protection offered by section 5 is, in this respect, unwarranted. I absolutely accept that.
This is relevant given the Government's policy on supporting people to the greatest extent possible in living ordinary lives in ordinary places. By definition, this includes having relationships with other people, whether that is friendship or more. That duty sits alongside the duty to provide appropriate protection for those at greatest risk of exploitation. There are balances and we are trying to find a legal formulation to deal with that issue. For the first time we are seeking to introduce provisions into our criminal law that will protect only those who are unable to protect themselves while ensuring the rights of everybody to engage in everyday relationships. The challenge is that criminal law cannot be vague and there must be clarity as to the nature of an offence. Where the law purports to offer special protection, those it protects must be identifiable; that is a very obvious statement but it has proven complex in many ways.
As I have stated, we found the consultation process useful in hearing a wide range of views and proposals. There was not a clear consensus on the way forward. The time it has taken to bring forward these proposals reflects the consideration they have received. They are very close to finalisation. I have looked at them in detail. The final proposals will represent the very best solution available in criminal law for this issue.
With regard to the amendments put forward today, the proposed new section substitutes a new offence of abuse of position of dependence and trust. The offence arises where a person, being in a position of dependence and trust, takes advantage of his or her position and induces or seduces a person to have sexual intercourse with him or her or commit any other sexual offence involving a person. The proposals do not deal with situations outside this category of offence of abuse of position of dependence and trust. For example, a person who may be vulnerable to exploitation and who is so exploited by a neighbour, for example, may not be afforded the protection of this provision. In other respects, the provision is quite wide, as it does not include any limitations on persons who may fall within the category of a victim of this offence.
In terms of the defence of consent in subsection (2) of the proposal, consent must be granted freely and in the absence of duress or coercion. There is some concern as to whether this defence could be successfully relied upon where a person in a position of dependence and trust taking advantage of that position would effectively groom a victim for the purpose of having sexual relations. Depending on the form of act or activity involved, it may not amount to duress or coercion. There is a continuum with which it is difficult to deal.
In its report on sexual offences and the capacity to consent, the Law Reform Commission frames an offence on the basis of capacity to consent. The proposals being developed within the Department also contemplate the approach of capacity to consent.I share, as does my Department, the Senator's commitment to uphold and promote the integrity and rights of all persons. I have made it clear that we are obviously not satisfied with section 5. We are preparing an amendment that addresses what she has outlined in the best possible way. It is very complex. The ongoing work is equally focused on that goal. Where persons are at a greater risk of exploitation or abuse, the law must offer appropriate protection as, I am sure, the Senator would agree.
We are looking at several issues and finalising the amendments, including the definition of "vulnerable person" and the issues around consent. I am not in a position to accept the amendments today. We are working very closely with the OPC on the final drafting and I hope we will make good progress in the coming days.
I thank the Minister and I know people with intellectual disabilities will also appreciate it. I acknowledge the complexity, as the Minister has outlined, and therefore am happy to wait a bit longer for what she will bring forward. I absolutely agree, of course, that section 5, as it stands, is a blunt instrument. I am grateful to hear what the Minister has said and I know from my conversations with her and her officials that she is committed to the same principles that are behind my amendments. Hearing the different issues she raised is helpful in preparing my response to what she will bring next.
We all have responsibility to ensure protection is provided to those who need it. We also need to look very carefully at the complex issue of capacity. The advocates for people with intellectual disability, in referring to the issues of protection and capacity, simply say that many people with extra support needs can protect themselves and make up their own minds. We need to remember that as we deal with this part of the Bill.
Given that we did not have the Committee Stage amendments in advance, I would appreciate if the Minister could share the amendments she will table on Report Stage with me before we come here for discussion. That would be helpful in preparing my response.
In light of what the Minister has said, I will withdraw the amendment with the option to reintroduce it on Report Stage.
I just want to mention that we will be introducing amendments to the harassment order under section 40 to clarify that such orders will take effect as soon as the offender is notified.
I take this opportunity to thank Members for their contributions today and on the previous occasion. As Senators are aware, it is a wide-ranging Bill addressing child protection, including emerging threats, support of victims and an update of existing law and reform of prostitution laws. I thank everyone for the broad support for the Bill to this point. Will be introducing a range of amendments on Report Stage.
We need to come back on the definition of "image" in sections 6 and 8 of the Bill. Those are offences relating to the grooming of children and target those who seek to familiarise children with sexually explicit material. The term "image" arises as part of the definition of sexually explicit material. For the purpose of clarity it is proposed to define the word and I will be introducing an appropriate amendment in that regard when I return to the House.