Criminal Law (Sexual Offences and Human Trafficking) Bill 2023: Second Stage

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of Justice (Deputy James Browne)

I welcome the opportunity to present the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 to the Seanad.

The Bill completed its passage through Dáil Éireann at the start of this month and I am glad to be able to bring it before the Seanad today for consideration. I trust that Senators will appreciate the important measures it contains on victim-centred reform of our criminal justice legislation.

The sexual offences and human trafficking Bill will update our sexual offences legislation and enhance protections for vulnerable victims. It provides for amendments to existing legislation arising from the recommendations set out in the comprehensive O’Malley review of protections for vulnerable witnesses in the investigation and prosecution of sexual offences. It also provides that from now on, character evidence in sexual offence trials must be given on oath or affidavit.

The Bill will put a revised new national referral mechanism for victims of human trafficking on a statutory footing, which is key to making sure that those affected can access the supports they need. In addition, the Bill will amend the Defence Act 1954 to implement recommendations arising from the report of the independent review group on the Defence Forces, which was published earlier this year. Finally, enactment of the Bill will remove the final legislative barriers to Ireland's ratification of the second optional protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.

Sexual offences and human trafficking are abhorrent crimes. Victims of these offences encounter our criminal justice system at a particularly vulnerable time in their lives. It is crucial that they feel protected and supported in coming forward and that we have measures in place which empower and encourage them to do so.

Senators will know that there has been significant work done by my Department in recent years to strengthen protections for vulnerable victims. This includes establishment of Cuan, the statutory domestic, sexual and gender-based violence agency, which has been operational since the start of last year, and publication of the Third National Action Plan to Combat Human Trafficking last November.

This legislation will further strengthen protections for vulnerable victims of crime and will build stronger, safer communities. I am pleased to outline this for the House the provisions of the sexual offences and human trafficking Bill.

Part 1 is a standard Part which gives the Title of the Bill and commencement arrangements. It defines the "Minister" as the Minister for Justice and provides for expenses, regulations and orders.

Part 2 deals with sexual offences and contains several important measures in that regard, which I will address in turn.

Chapter 2 focuses on the recommendations from the O'Malley review, convened by my Department in 2020 to carry out a detailed examination of the criminal justice process. Its report, Review of the Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences, contained many valuable recommendations and informed development of an implementation plan to give effect to these recommendations.

The Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 addresses a number of the O’Malley review recommendations which require legislative amendments. It will expand a victim's right to legal representation in circumstances where an application is being made to question a victim about his or her previous sexual experience. This is being done in two ways. First, the provision is being amended to ensure that sexual assault victims are also entitled to legal representation in these circumstances. Second, the scope of the provision is being expanded. Where an application to question a victim about their previous sexual experience is granted, the victim will continue to be legally represented during this questioning. This means that her legal representative will be present with her in court, able to advise her and, if necessary, be able to object to intrusive or irrelevant questions on her behalf.

The Bill will also enact a number of recommendations relating to anonymity and the exclusion of the public from sexual offence trials. It goes without saying that these sensitive and difficult trials should not be held in public.

The legislative provisions in this regard are being expanded to make sure that there is a legislative basis for excluding members of the public from the courtroom for all sexual offence trials. Provisions which require the sentence or verdict to be delivered in public are also being repealed. To be clear, this does not affect the reporting of such trials, as media representatives are still entitled to be present. What it does is remove members of the public from a courtroom where highly personal and traumatic matters are being discussed. Anonymity provisions are similarly being expanded to ensure that all victims of sexual offences benefit from this. Revised definitions of "broadcast" and "publication" will cover publication by way of social media in order to protect the victim's identity.

This legislation also provides for the anonymity of an accused person, unless and until he or she is convicted of a sexual offence. A core principle of our legal system is that a person is presumed innocent until proven guilty. This is no less true for a person convicted of a sexual offence than for any other person before the courts.

We have been clear that any behaviour from accommodation providers seeking to use their position to prey on vulnerable people is completely unacceptable. It is an appalling abuse of power by unscrupulous individuals and it will not be tolerated by this Government. I welcome the paper published by the National Women's Council of Ireland. As has been previously stated, we are committed to addressing this abhorrent and exploitative behaviour by making the offering or advertising of accommodation for sex in lieu of rent a criminal offence. This is an issue that was examined by the Oireachtas Joint Committee on Justice in the context of a Private Members' Bill. The committee itself recognised that this is a complex issue to address and one which requires careful legal and constitutional consideration. It is important that the law is changed to address this but it is equally important that it is done right. Officials from my Department have been working closely with the Office of the Attorney General to make sure that legislating to address this issue does not create any unintended consequences, including inadvertently criminalising consensual relationships. It is hoped that the drafting of the legal provisions to criminailise this behaviour will be finalised in time to be taken forward in this Bill once it reaches Committee Stage in the Seanad, and subject to Government approval.

The next chapter of the Bill concerns the vouching of character references in sexual offence trials. In this regard I must commend the sterling work of Senators Regina Doherty, Lisa Chambers and Pauline O’ Reilly. Members of this House will know that this provision began life as a Private Members' Bill introduced by the Senators. During the debate on this issue, Members from across the House lined up to express support and condemn current practices of character evidence in sexual offence trials. In particular, strong and unstinting support was expressed for the brave victims of these offences. The Government supported the Private Members' Bill on Second stage in its passage through Seanad Éireann, in recognition of the importance of protecting vulnerable victims from re-traumatisation.

The intentions of the Bill aligned with the work undertaken by my Department to improve the situation of victims, including supporting our plan, Supporting a Victim's Journey. Officials in my Department met Senators to discuss these issues and ultimately the measures set out in the Private Members' Bill have been incorporated into the legislation, which is before the Seanad today.

At present, if a witness is called to court to provide character evidence, this evidence is given under oath. However, written testimonials are not sworn. The new provision requires that where a person has been convicted of a sexual offence, character references presented at sentencing must be made via an oath or affidavit. This will ensure that a person providing a character reference, on behalf of a convicted sexual offender, must swear to the veracity of their statement and can be called before the court for cross-examination. The provision is designed to protect the victims of sexual crimes from further traumatisation during a sentencing hearing.

The measures that I have outlined so far relate to the area of sexual offences. These provisions have been specifically designed to support and protect vulnerable victims in sexual offence cases, and to ensure that our criminal justice system is more victim-centred. This is a priority for my Department and our record reflects this.

I want to turn now to the issue of human trafficking, which is the subject of Part 3 of the Bill. Human trafficking is an exploitative and particularly heinous crime which preys on some of the most vulnerable. Victims of trafficking can be found anywhere. They are sometimes hidden in plain sight, and their vulnerability can often make them particularly hard to reach.

My Department is committed to the prevention, detection and prosecution of this abhorrent crime, which exploits vulnerable people in a particularly ruthless manner. The proposals in this Bill will put a new national referral mechanism, NRM, for the identification of victims of trafficking on a statutory footing. The NRM is the framework through which the State fulfils its obligations to protect and promote the human rights of trafficking victims, working in partnership with civil society.

Currently, An Garda Síochána is the sole competent authority for the formal recognition of victims of human trafficking. This is not adequate. Some victims of trafficking, because of interactions they may have had with law enforcement officials in other jurisdictions, may have a perception that police cannot be trusted. Our new model acknowledges that other State bodies and NGOs have an important role in identifying victims of human trafficking, and referring them to the NRM. In addition, NGOs that have been designated as trusted partners will be able to refer victims for formal identification. It will make it easier for victims of human trafficking to come forward so they can access all of the supports and resources available to them.

The Bill will allow for the sharing of information between agencies to identify victims. Accommodation, medical services, legal aid, advice and other supports will be provided to the victim.

International best practice has shown that a single NRM for all victims is the optimum vehicle to support as many victims as possible through a universal support framework, which is the approach taken in this Bill.

Importantly, however, it contains a presumption of child status. This will ensure that when a victim comes forward and says they are under 18, they will be treated as a child from the outset and child-specific processes will be engaged immediately. The operational guidelines underpinning the NRM will include dedicated procedures and arrangements for children, with Tusla at the centre. The Bill also provides that a victim of human trafficking will not be deported for immigration offences committed while being trafficked.

Part 4 relates to amendments to the Defence Act 1954. Senators will recall the publication last year of the report of the independent review group on the Defence Forces. The report highlighted a catalogue of unacceptable behaviour in that organisation over recent decades, including bullying, discrimination and sexual harassment. The Government committed to the implementation of the group's recommendations as a matter of priority in view of the seriousness of the issues raised. The amendments to the Defence Act 1954 that relate to sexual offences are to ensure sexual assault, aggravated sexual assault, rape and rape under section 4 offences that take place in this jurisdiction will be dealt with by An Garda Síochána and the civilian courts. Military law will continue to apply where such offences take place overseas or where An Garda Síochána does not have jurisdiction. The Minister, Deputy McEntee, the Tánaiste and Minister for Defence and I were in agreement that the legislative amendments recommended by the group should be progressed as a matter of urgency. We suggested that the Criminal Law (Sexual Offences and Human Trafficking) Bill could be an appropriate and timely vehicle to do so. Progressing these amendments in the Bill will ensure sexual offences are no longer dealt with under military law or in the court martial system. Women and men in the Defence Forces will be able to access justice in civilian courts in the same way as all other citizens.

Part 5 relates to a United Nations protocol on child rights. The second optional protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography is an important measure protecting children from exploitation. Legislative amendments are required for Ireland to ratify this protocol. The offence of obtaining or procuring a child for the purposes of sexual exploitation can now be prosecuted where the offence is committed outside the State. Amendments will also ensure mutual assistance can be provided to convention states in accordance with the protocol. The Office of the Attorney General has advised that these amendments remove the last remaining obstacles to Ireland's ratification of the protocol.

The measures this Bill sets out are important reforms to our criminal justice legislation. They are designed to aid and assist vulnerable victims, whether it be to access supports, reduce trauma, strengthen protections during a trial or, more broadly, to ensure the criminal justice system is optimised and accessible for all. These measures are an important step forward in ensuring a victim-centred justice system, which is a key priority for me and my Department. I look forward to hearing the contributions of Senators in the course of our debate. I commend the Bill to the House.

Acting Chairperson (Senator Mark Wall)

Before I call Senator Horkan, I welcome the pupils and teachers of Rush National School to the House. You are very welcome to Leinster House and the Seanad. I hope you have a very good day and enjoy your visit.

Senator Gerry Horkan

I thank the Minister of State for a detailed and comprehensive opening statement. I commend him, his Department officials and the Minister on the work they are doing in this area. It is a comprehensive Bill, as the Minister of State outlined, and I do not believe there is any point in me rehashing and rereading everything he has just said.

There are certain things I would like to stress as part of my contribution today. Fianna Fáil welcomes and supports the Bill . As a Fianna Fáil Minister of State, Deputy Browne is leading this through both Houses. It has already gone through the Lower House and is now going through this House. I hope the passage of the Bill will take place very swiftly because it is important it is passed.

The Bill is broad in its remit. It does not just update our sexual offences legislation and enhance protections for vulnerable victims. There are many aims in the Bill, including the implementation of the recommendations of the O'Malley review of the protections for vulnerable witnesses and the investigation and prosecution of sexual offences, to put the proposed new national referral mechanism for victims of human trafficking on a statutory footing, and to clear the final obstacles to ratification of the second optional protocol on the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. The Bill will also amend the Defence Act 1954 to ensure persons subject to military law who commit specified sexual offences in this jurisdiction will be dealt with by An Garda Síochána and the civilian courts rather than through a military process. Finally, the Bill provides that character evidence introduced at a sentencing hearing for a person convicted of an offence listed on the Schedule to the Sex Offenders Act 2001 must be made on oath or via affidavit. As Minister of that State outlined, those who provide such evidence will be subject to cross-examination. The progress of the Bill is timely, given the recent introduction of an EU directive updating the original EU anti-trafficking directive, which guides the best practice approach towards cases of human trafficking and protecting the victims of trafficking.

As I have outlined, Part 1 deals with the Title of the Bill. Part 2 refers to sexual offences and contains several very important measures. Part 3 deals with human trafficking. Part 4 deals with the Defence Act. Part 5 deals with children, child prostitution and child pornography. In his summary, the Minister of State said the measures the Bill sets out are important reforms to our legislation and are designed to aid and assist vulnerable victims, including accessing support, reducing trauma, strengthening protections during a trial or, more broadly, ensuring the criminal justice system is optimised and accessible for all.

The Bill is an important step forward in ensuring a victim-centred justice system. We all know of people have been through the process and how difficult and traumatic it is for them to have suffered and then have to go through a legal process. We must do anything and everything we can to let society and the public know this is not behaviour that can ever be tolerated. We must ensure everything we do is victim-centred and look after victims as best we can, given they have suffered such terrible trauma. I commend the Minister of State on all he has done on this Bill. I also commend his officials, the Minister, Deputy McEntee, and the Tánaiste, Deputy Martin, in terms of his impact on the Defence Forces issue. I commend the Bill to the House.

Senator Sharon Keogan

I welcome the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023. It proposes key reforms that will benefit An Garda Síochána in its work of policing human trafficking and exploitation. Making the national referral mechanism for victims of human trafficking a statutory provision will be of huge benefit in bringing those who perpetrate these crimes to justice. This mechanism provides for co-operation between State organisations, Departments and civic society groups which assist victims of human trafficking to ensure adequate resourcing and support is available, especially when victims choose to come forward and report a crime.

However, the 2023 trafficking in persons report ranked Ireland as failing to meet the minimum standards in victim identification, referral and assistance. A study showed that 88% of trafficking victims engaged with the healthcare system during their time of being trafficked, but fewer than 1% were identified. We must train all healthcare workers in identifying trafficking.

While the HSE is listed as a competent authority in the Bill, the Department of Health is not, which will limit the scope of engagement with non-public healthcare workers. If we are serious as a nation about this vital issue, we must ensure all healthcare professionals are adequately trained and supported in identifying trafficking victims. Annette Kennedy and Anne-Marie Ryan of the health and social care education traffic group came to Leinster House recently to highlight vital issues regarding identifying trafficking. They noted that dentists, physiotherapists and even social workers do not typically receive training in identifying trafficking.

If the Department of Health is listed as a competent authority, the Dental Council, CORU and many other regulatory bodies should have it within their remit to train their members on identifying trafficking because trafficked people use a broad spectrum of health services. Including this training in the codes of professional conduct of these bodies will directly impact the educational institutions for these medical professionals and equip all medical staff, public and private, trained and qualified, in how to identify trafficking.

Beyond healthcare professionals, it is critical to implement licences for those who work with civic society groups which assist human trafficking victims or those coming into Ireland seeking international protection to ensure oversight and regulation of these services. Many people operate in this space as consultants without any specific certification or credentials. It is vital for the success of the initiative to regulate this space appropriately.

The criminal underground operations that thrive within our system are not merely undermining its integrity but also likely perpetrating heinous crimes, particularly in trafficking vulnerable individuals, especially women and children, into prostitution.

Organ trafficking is as yet unquantifiable, although we had one case last year. It is a growing international problem, especially in countries such as Afghanistan, which has a high number of international refugees worldwide. This is why the special licensing of international protection professionals is necessary. By demanding licences for professionals working in the international protection and refugee system, we can establish a robust framework that holds individuals and organisations accountable for their actions. Licences will help to ensure that only qualified and ethical individuals are entrusted with the responsibility of protecting and advocating for refugees and asylum seekers.

I previously highlighted concerns regarding Ukrainian children brought to County Mayo by a charity. This charity did not notify Tusla about the arrival of these children, many of whom flew without a parent or guardian. Under the law as it stands, notification to Tusla might be sufficient to comply with the current laws but is that really enough? When it comes to people crossing borders, especially children, we need to ensure the highest standard of protection for all involved. The national referral mechanism should perhaps include children by default as a way of ensuring children fleeing war get the particular support they need and that they are tracked in a system should there be any risk they have been trafficked. By clearly setting out guidelines and expectations through licensing requirements, we can instil trust and confidence in the system, reassuring both the public and those seeking safety and support. By training our healthcare professionals, we can aim to meet the highest standards in identifying and assisting victims of crime.

I bring to the Minister of State's attention that there are only 16 gardaí employed in combating human trafficking in the country at this time. That is simply not enough and the Department needs to be better resourced. That number needs to be doubled or quadrupled. To have just 16 gardaí dealing with human trafficking is not enough, and it is certainly not enough considering our record on the issue.

Senator Barry Ward

In welcoming the Bill on behalf of the Fine Gael group, I acknowledge what the Minister of State said about the genesis of this Bill and the fact Private Members’ Bills from Senators in this House, particularly from Senator Regina Doherty, have given rise to many of the provisions in this Bill. It is worthy of recognition that the Government sometimes does listen to what parliamentarians have to say. I appreciate the fact this has found its way into a Government Bill. The provisions are welcome.

While it may be stating the obvious, I want to highlight how serious the matters of sexual offences and human trafficking are. Sexual offences, in particular, are pervasive. They exist at every level of society, in every age group, although they are much more likely to be reported at younger ages, and for both genders. In fact, 52% of women and 28% of men report having suffered some sexual violence in the course of their lives, which is an astonishing statistic in real terms. When we translate that into the number of people who have been affected, it is a huge proportion of society. Therefore, it is right and proper we should be passing laws that seek to tackle this, especially ones that are targeted at the heart of the problem.

Some of the quite seismic measures in this Bill are very important in doing that. The one I will mention first relates to the test that is applied in moving away from the “honest belief” defence where there is an allegation of rape or somebody is being tried for rape. This is difficult for many and, as a criminal law practitioner, I know we have worked with a particular set of laws up to now. In fairness, it is probably the right thing to do. I acknowledge the work done by the Law Reform Commission in this area. The Law Reform Commission has been a strong, independent voice in looking at sexual offences in this country over many decades, and I am thinking of recent criminal law in the past 20 or 30 years that has been grounded on research, considered study and consultation done by the Law Reform Commission. It is timely we are now coming to a situation where we are changing that subjective standard for consent to an objective standard. I think that is reasonable given all the circumstances.

I have heard from people who are concerned about the effect it might have on an individual who did honestly believe. However, in circumstances where that person is being tried for rape, it is reasonable for the jury, when considering the honest belief or subjective feeling of the person who is alleged to have committed the offence, to assess the scenario and the circumstances relating to that and adjudicate whether that was objectively reasonable. While people have expressed concern about that, it is a reasonable change and a strengthening of the law in that regard.

Consent is a huge issue. We recently saw the law passed by the European Parliament. My colleague, Frances Fitzgerald MEP, did a huge amount of work to bring through a directive in regard to sexual and gender-based violence, but it fell at the last hurdle because of issues in regard to consent. While we see rape as being an issue of consent, that is not necessarily true across all European countries, which was one of the difficulties. One of the things about rape we forget is that while it is obviously a sexual offence, it is not really a crime of sex but a crime of control and power. That is why consent is so central. This Bill goes a long way towards acknowledging the centrality of consent to the offence of rape and the decision a jury must make on an allegation of rape whether, in all the circumstances, there is an objective basis for believing consent was absent.

Similarly, with the cross-examination of witnesses, and these are the measures Senator Doherty brought forward in her Private Members’ Bill, I have a small disagreement. Both her Private Members’ Bill and this Bill suggest references should only be given on oath or on affidavit. The courts where these happen are not generally affidavit courts as they are generally the Circuit Court and the District Court. I absolutely agree with the notion that if somebody is willing to write down on a piece of paper that whoever it might be is a fine fellow and does not deserve to go to prison, they should equally be happy to stand up in court and say as much. However, there are practical implications with that evidence being given on oath or by affidavit. Is there perhaps a more flexible way for it to be done? In any event, the import of the section is that we are now saying to people that they cannot just willy-nilly sign a piece of paper and say that whoever is accused is a grand fellow and there should be no real problem. The reality is any person facing offences for which such a reference would be provided is facing serious offences and charges. Giving a reference in those circumstances should be something that is given only after deep consideration and a willingness to back up what is said within the references.

The national referral mechanism is very important. In the human trafficking sphere generally, we are behind the curve. Much is made of the watchlist we are on in America. I do not necessarily take lessons from the Americans in terms of human trafficking as it is a major problem there, but I do not think they are wrong either. They have identified a number of weaknesses in our system that we urgently need to address, and this Bill goes some way to doing that.

I do not know if the Minister of State considers this to be the be-all and end-all or whether there is further work to be done. Human trafficking is pervasive. I am not sure if the Minister of State could state the number of people who have been trafficked into Ireland and I do not know if that is even possible, but one way or the other, it is an enormous problem. The reality is that most of us, unbeknownst to ourselves, come in contact with people who are trafficked, in particular in the service industry, whether that is in a nail salon, a hairdressers, a hotel or wherever. Obviously, the further you go into illegal activity, the more likely you are to come across people who are trapped in a situation they cannot get out of.

I certainly do not feel that I am equipped with the skills to identify somebody who might be trafficked if I am dealing with him or her. I have said before in this Chamber that we should certainly, as part of the measures that are put into this Bill, look at a national awareness campaign and training for people who want to avail of it so they can recognise the signature, tell-tale signs of somebody who might have been trafficked. It is not so we can all be vigilantes. It is in reference to the national referral mechanism and the idea that people should be able to report this to the Garda. It is very difficult for people to do that if they do not know what they are looking for.

A public awareness campaign should be coupled with training for people to help them recognise the signs of a trafficked person so they can take steps if they feel they are in a position to do so, deal with the issues and help us to deal with the issue of human trafficking as it pertains throughout the island of Ireland. This training could be for anybody who wants it but also targeted at particular groups, and obviously for gardaí, although I suspect they already get some training in this area. I welcome those measures. The effect of human trafficking on us, whether we are aware of it or not, is huge.

I wish to make another general point that I make frequently in respect of legislation like this. This is a large Bill that does a number of important things. One of the first things it does is to amend the Criminal Law (Rape) Act 1981. I do not have a difficulty with the amendments but there are seven sections - sections 6 to 12, inclusive - that are simply entitled, "Amendment of Act of 1981". This means that a person reading this Bill cannot understand what it says without having an accompanying copy of the 1981 Act. One of the points I make all the time here is that we should be passing legislation that is accessible to members of the public. They should not need a database of past statutes in order to read the statute that passes today. The answer to that is to either repeal the 1981 Act and re-enact it as part of this, which in and of itself is a cumbersome exercise, but at the very least, for example, repeal section 1 of the Act of 1981 and restate it within this Act in order that it is clear for anybody reading what we hope will be the Criminal Law (Sexual Offences and Human Trafficking) Act 2024 to know what section 1 of the 1981 Act, as amended, says. I do not think it is an overly cumbersome thing to do. What we are creating time and again with any legislation that amends a previous statute is something that is largely illegible. Again, it removes the statute one step further from the people.

Another point I wish to make is related to measures in the Bill that provide for representation for complainants in sexual offences cases. This is hugely important. It exists to an extent already but this expands the provisions of it. It is important that complainants have that representation. Often when people hear about, for example, a rape trial occurring – this is also true of complainants who come into court - they do not understand that the Director of Public Prosecutions, DPP, represents the people of Ireland. The prosecution is there for the people of Ireland, not for the complainant. It is not a case of the complainant against the accused; rather, it is a case of the people of Ireland against the accused. In those circumstances, a complainant is unrepresented. That means that very often victims or complainants go into court and think somebody there is on their side, but that is not the case. They will often refer to “my" barrister when they are talking about the prosecution barrister when, of course, that barrister is not there for them but, rather, for the DPP. Levelling the playing field somewhat in circumstances where the accused person has professional representation is a good thing. It already exists on a statutory footing but expanding that is a good thing. Making it clear what the powers are for the representative of the complainant and ensuring that, in doing so, we are not encroaching on the important and vital rights afforded to accused persons in our criminal justice system is also important.

The measures relating to anonymity are also tremendously important and I welcome that they are put on a statutory footing. There is a situation now where we are preserving the anonymity of people who are coming before the courts as complainants. We should never forget in matters like this that it is incredibly difficult for a person who feels - more often than not correctly - that they have been a victim of a criminal offence, such as a serious sexual offence, to come forward. It is incredibly daunting to go to the Garda full stop. We know that only about half of sexual offences in this country are told to another person, an even smaller number of them are reported to the Garda and an even smaller number again result in a criminal conviction. It is very difficult for a person who has been raped, sexually assaulted or a victim of sexual crime to actually go to the Garda to tell their story, then go through the process of making themselves available for statements, possibly for forensic examination or whatever it might be, and then ultimately to go to court. Anything we can do that does not encroach on the rights of the accused in an unfounded way but makes it easier for complainants is a good thing, and the anonymity provisions in this Bill certainly fall into that category, so I welcome them.

In light of what the Minister, Deputy McEntee, has done in this area, this is another step down the road. We are making huge progress. I welcome the fact that we are passing this legislation, which will bring us further down the road.

I think I had time left when the bell rang. I was going to finish on time. As one of my colleagues often sees the zero only as a sign to possibly start winding up, I am almost tempted to keep going. I thank the Minister of State. I welcome the Bill and look forward to its fast progress.

Acting Chairperson (Senator Gerry Horkan)

I had actually picked up the hammer and tipped the bell by accident. It was eight seconds, but I think Senator Ward is okay. As always, I would be lax and generous with time for him in particular, not that he would never need it. As I often say, it is a maximum rather than a target.

Senator Fintan Warfield

I do not think I have ever hit the target. On behalf of Sinn Féin, I welcome the progression of this Bill, which contains a number of important provisions regarding sexual offences and human trafficking. I acknowledge the hard work of a number of campaigners, including Women of Honour. I also acknowledge the many victims who have waived their right to anonymity in sexual violence cases in an effort to encourage others to come forward as well. Some of the recommendations have come as a result of their bravely. This long overdue Bill will include a number of significant reforms. I pay tribute to their determination in ensuring that we have better justice.

I also wish to speak on the O’Malley recommendations. I welcome the fact we will see the implementation of the O’Malley review recommendations. The strengthening of victims’ rights is not only welcome but long overdue. My colleagues, Deputies Ó Laoghaire and Martin Kenny, introduced a Private Members’ Bill in 2019. It has been a long four years in which families saw their loved one’s names become hashtags and headlines; four years in which men – it is mostly men – inflicted unspeakable harm; and four years in which women – it is mostly women – suffered not only in those attacks but in their subsequent experiences in an often retraumatising legal system.

I also welcome the fact that this legislation, on foot of the recommendations of the independent review group's report on dignity and equality in the Defence Forces, proposes the amendment of the Defence Act 1954. Too many men still fear the stigma of sexual violence and it is certainly the case in respect of what has been shared by men regarding their time in the Defence Forces. The suspicion of homosexuality once carried its own stigma and was even a criminal offence in my lifetime. I therefore welcome the fact that men are starting to disclose their experiences, and I take the opportunity to tell men in that position to come forward. They will not just be heard, they will be listened to.

This Bill puts the national referral mechanism for human trafficking on a statutory footing as well. Sinn Féin has long supported anti-human trafficking measures. There was criticism of the State recently from bodies such as the Group of Experts on Action against Trafficking in Human Beings, which pointed out the lack of a compensation mechanism for victims as well as a national referral mechanism. It is complicated but it is an area in which we must continue to make strides as well as acknowledging the wider socioeconomic pressures that lead people to fall victim of human trafficking. A good migration policy will mitigate this also.

I hope this Bill will bring us closer to a situation where all victims of sexual violence will get better access to justice. However, it is just one step of many that must be taken on this road. I hope the Minister of State will work with us in Sinn Féin to ensure the next steps are taken quickly.

I thank the Minister of State for bringing the Bill to the House and I thank the Acting Chair for the time.

Senator Joe O'Reilly

I welcome the Minister of State to the House for the second time in a couple days. The protections outlined in the Bill are both important are long overdue. Our laws must develop to accommodate the intricacies of modern crime while also ensuring the safety and dignity of all citizens. This law represents a critical step in that direction.

One of the most significant elements of the measure is the increased anonymity of victims and defendants during sexual assault prosecutions. By barring the public from the courtroom, we provide a safer environment for victims to relate their story without fear of exposure or further pain. This protection is critical for encouraging more victims to come forward, knowing that their privacy will be maintained throughout the legal process. In addition, the measures grant victims the right to separate legal representation and legal aid in certain cases. This clause acknowledges the unique and often overwhelming obstacles that survivors of sexual assault and exploitation encounter.

Legal representation ensures that their views are heard and their rights are safeguarded, giving them the assistance they require to navigate the complexity of the legal system.

Another important aspect of this Bill is the modification of the definition of rape which focuses on the mental component of the act. By defining rape as non-consensual intercourse in which the perpetrator does not believe the victim consents, we link our legal definitions with a more accurate and just understanding of assent. This change is vital in holding offenders accountable and providing justice for victims. Another significant component of this legislation is the creation of a legislative national referral mechanism, NRM, for victims of human trafficking. Human trafficking is a horrible crime that necessitates a comprehensive and effective response. By formalising the NRM we ensure that victims receive prompt and appropriate support, allowing them to escape exploitation and restore their lives. Furthermore, this Bill gives effect to the second optional protocol to the UN Convention on the Rights of the Child which addresses child trafficking, prostitution and pornography. This ratification is more than simply a symbolic gesture. It represents a commitment to maintaining the highest standards of child protection and international human rights.

The change to the Defence Act of 1954, which requires that acts committed within the State by personnel subject to military law be addressed by civilian tribunals and by An Garda Síochána, provides much-needed transparency and accountability. It emphasises that no one is above the law, regardless of status or position. This legislation also requires that character evidence presented at sentencing hearings be made under oath or by affidavit. This policy is intended to avoid the misuse of character references and ensure that sentencing judgments are based on accurate and reliable information. I have anecdotal evidence to support the importance of that and I am sure the Minister of State and my colleague, Senator Ward, who is also a distinguished lawyer, would know of this too. There is a lot of anecdotal evidence of the misuse of that process.

This legislative measure might be reinforced further by requiring training for healthcare workers in detecting and assisting victims of human trafficking. Dr. Annette Kennedy is chair of the health and social care education human trafficking, HSCEHT, group and her colleague, Dr. Anne-Marie Ryan, is a very distinguished academic. Both of them began as nurses in the Richmond Hospital and have really serious practical information in this area and they are giving this back to society. The group is excellent. Recently I invited them to the audiovisual room in Leinster House to make a presentation. It was a wonderful occasion where we learned that many people lack the requisite skills to identify indicators of trafficking and provide proper assistance. Incorporating the Departments of Health and Further and Higher Education, Research, Innovation and Science within the Bill would ensure comprehensive education and inter-agency coordination, potentially saving lives. I urge the Minister of State to bring this suggestion to Cabinet and to all relevant stakeholders for consideration. By educating our healthcare workers, we can greatly enhance our response to human trafficking and guarantee that victims receive the assistance they require. The data makes clear that a significant number of trafficking victims connect with healthcare services while in captivity but they stay undetected even through that process. Implementing these educational approaches during training of nurses and social care workers is an important step towards modernising our approach to preventing human trafficking.

It is good that the offence of obtaining a child for sexual exploitation outside the country can be prosecuted here. That is an important reform. I also note the points made by Senator Ward. We are all aware that we are listed in various US reports as not being very proficient in this area but hopefully this legislation will change that. I welcome the legislation. I urge the Minister of State to look seriously at the issue of the education of health and social care workers to enable them to recognise victims of human trafficking and to report same immediately. I am very interested in his response in that regard.

Minister of State at the Department of Justice (Deputy James Browne)

I thank Senators for their contributions to today's debate on this important Bill. The Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 sets out a package of measures which will introduce important reforms across a number of areas. The common ground underpinning all of these measures is our commitment to strengthening protections for vulnerable victims. Enhancing protections for vulnerable victims is a priority for me and my Department and this is borne out by our achievements in this area. A number of recommendations in the O'Malley review of the protections for vulnerable witnesses in the investigation and prosecution of sexual offences have already been implemented. This includes the introduction of preliminary trial hearings which has helped to increase efficiency in how trials are run. Potential issues can be identified and solved in advance, allowing trials to proceed on their scheduled dates. This reduces delays and eases what can be a traumatic process for victims. More recently, 17 people have graduated from the new professional diploma in intermediary studies at the University of Limerick, funded by my Department. We are now putting in place a 12-month pilot scheme in criminal courts nationwide where the register of qualified intermediaries will be available to the Office of the Director of Public Prosecutions and the courts. The use of professional intermediaries will assist vulnerable witnesses in giving their best evidence in court cases.

This Bill is implementing further recommendations of the O'Malley review specifically designed to improve the treatment of vulnerable victims of sexual offences and I welcome the support expressed for these measures. They aim to reduce the stress and anxiety which many experience during the investigation and prosecution of sexual offences. Above all, these measures aim to protect victims from retraumatisation and revictimisation during this process. Similarly, in requiring that a character reference provided on behalf of a convicted sex offender must be sworn, either on oath or affidavit, we will protect victims of sexual crimes from further traumatisation during the sentencing hearing.

As Senators will be aware, our wider work on domestic, sexual and gender-based violence includes the establishment of Cuan this year and a new action and implementation plan for 2024 has recently been published. Cuan has a specific mandate to drive implementation across Government, bringing the expertise and focus required to tackle this complex social issue. Key actions this year will include work on the national services development plan, increasing refuge spaces and safe homes, progressing legislative reform, evaluating the effectiveness of awareness-raising campaigns and the development of a research and data plan to support collating domestic, sexual and gender-based violence information across Government Departments and agencies. Cuan will also lead on consistent and ongoing research to inform domestic, sexual and gender-based violence policy development.

I have already outlined the steps we are taking in this Bill to put the new national referral mechanism, NRM, for victims of human trafficking on a statutory footing. The new NRM will provide a mechanism for all agencies, both State and civil society, to co-operate and share information. This new approach will make it easier for victims of trafficking to come forward to be identified and to access advice, accommodation and support. Human trafficking is an exploitative and particularly heinous crime which preys on some of the most vulnerable. Victims of trafficking can be found anywhere and are sometimes hidden in plain sight. Their vulnerability can often make them particularly hard to reach. Putting the new NRM on a statutory footing is a clear demonstration of our commitment to identify and support victims. It is a key element in the new national action plan which sets out a suite of measures to combat trafficking, create a more victim-centred approach to identifying and supporting victims, raise awareness, and provide training for those who need it. It will also strengthen Ireland's international reputation in this area. In 2020 Ireland was downgraded to the tier 2 watchlist in the US State Department's annual trafficking in persons report. This meant Ireland was considered a State that no longer meets the minimum standards for the elimination of human trafficking. In 2022 Ireland was removed from the tier 2 watchlist, in a very welcome move. Enactment of this Bill is an important and necessary step which will further improve Ireland's standing internationally in advance of the next trafficking in persons report.

The Bill also contains important and necessary amendments to the Defence Act in respect of sexual offences. These amendments mean that women and men in the Defence Forces will be able to turn to the civilian system in the investigation and prosecution of such offences.

Last, but not least, the Bill provides for the legislative amendments required for Ireland to ratify the second optional protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. This is an important international instrument for protecting children from exploitation.

I again thank the Senators for their many thoughtful and constructive contributions during this debate. There will be further opportunities to tease out the issues that have been raised and I look forward to constructive discussion of the Bill’s detailed provisions on Committee Stage.

Question put and agreed to.

The Seanad adjourned at 12.42 p.m. until 1 p.m. on Tuesday, 21 May 2024.

Seanad Éireann debate - Thursday, 16 May 2024

Criminal Law (Sexual Offences and Human Trafficking) Bill 2023: Second Stage

Seanad Éireann debate -
Thursday, 16 May 2024