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Dáil Éireann debate -
Tuesday, 6 Mar 2007

Vol. 633 No. 1

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Second Stage (Resumed).

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

I want to share time with Deputies Ó Snodaigh, Connolly and Catherine Murphy.

The Tánaiste and Minister for Justice, Equality and Law Reform, in opening today's debate, sought to construct a big tent as regards the fiasco that is this legislation. He welcomed the draft legislation produced by the Labour Party. He incorporated the Private Members' Bill produced by Fine Gael, although not without questioning the ability of the draftsman to produce a correct Bill. He sought solace from the fact that officers of the State who appeared before committees of the Oireachtas failed to spot the omission he detected, and then sought to apportion responsibility for the legislation and the omission collectively on this House.

He called for consolidated legislation in this area, with which there is no disagreement on this side of the House. However, it is the Minister's role in producing legislation in the manner he has that has given rise to the problem we are now facing, because he is a prince of "ad hocery". We are going through the motions to repair the damage of emergency legislation. What makes this Bill even more poignant is its subject matter and the fact it deals with the protection of children in circumstances where they are most vulnerable and where most damage can be inflicted upon them. This does not reflect well on this House. It reflects less well on the manner in which we are expected to do our business when legislation is presented to us.

This Minister, more than most in this Government, has been guilty of presenting legislation to the House in a haphazard way. Rather than trying to seek collective responsibility for the legislative mess we find ourselves in, it would be better if the Government took that collective responsibility. That, after all, is its constitutional responsibility.

This brings us no closer to the fact we have a loophole to address. There are grey areas to be filled in. The Bill is being taken on trust in circumstances where we have accepted similar legislation on trust from the same Minister and brought ourselves to exactly the same situation. I share the fear expressed by Deputy Howlin in his contribution that because we are dealing with a Bill the House has just been presented with, the way the debate has been structured and the lack of subsequent scrutiny it will receive as well as the Minister's track record, there is no guarantee we will not have to revisit it. This will probably not be in the life of the 29th Dáil, but the whole area will almost certainly have to be addressed again within a few months. In the event, perhaps we may then start to consolidate this entire important area of legislation.

We should go beyond this House. The Green Party, for example, supports the Barnardos call for a national child protection summit. This is a debate that requires the full involvement of civil society. We cannot go hopping from one crisis to another in this House in trying to produce legislation in this important area. We can no longer produce legislation on the basis of the most recent newspaper headline. We can no longer produce legislation on the basis of trying to deal with the most pertinent political crisis. We have a more considered role to undertake in this House. We have to look to the long term and put in place, after proper consideration, legislation that will survive long after us.

It is ironic that last week in the House we were dealing with the Statute Law Revision Bill 2007, which meant asking whether we should keep legislation dating from the 13th century. Here we are in the 29th Dáil trying to repair Bills that we cannot get right over a six-month interval. If anything testifies to the way this House is not working effectively, and how the Government is failing in its role to produce a proper legislative programme, this in particular speaks volumes.

The Bill will not receive any objection from the Green Party. It is obvious the loopholes need to be filled. Can we be confident, however, that the issue is being dealt with in its entirety? Even though the House is obliged to the Labour Party and Deputy Rabbitte for pointing out this omission, it is something that should have been detected during the legislative process and talked about on Second and subsequent stages.

I was taken by Deputy Howlin's contribution when he outlined the history of this legislation and talked about how the previous guillotines had worked. Guillotines are very pernicious instruments. The Government decides and votes through on a majority that time is not available to deal with a Bill. This means the elements that have not been examined, debated or voted upon in any proper sense in the House, become part of the Statute Book. Omissions that arise as a result eventually become obvious and glaring. I hope that if any lesson is capable of being learned by this Minister and Government, it is that we will not return to this situation again. I suspect that in the 29th Dáil the amount of emergency legislation probably rates as an historical high, outside the state of emergency during the Second World War. I would urge that an analysis be carried out in this regard. It is a damning indictment of this Administration's inability to govern that in peace time, given such a prosperous economic period and the stability of governance, it has been forced to come back to this House with such a large amount of emergency legislation. This is illustrated all the more in an issue of this type where the protection of our children is paramount. While the Government will get the support it needs, it does not enjoy the House's confidence that it is dealing adequately with the issue.

Last June I warned the Government that crisis-led legislation ultimately risked creating more loopholes than it closed. That is the case today and it is inexcusable because there was no need for any of this to have been crisis-led. In 1990, when the Law Reform Commission first recommended the law on statutory rape be changed, this Government and successive Administrations, including the Fine Gael-Labour Party-Democratic Left coalition, were aware of a possible clash with the 1937 Constitution. However, they all failed to act sensibly on this knowledge. Hence, it was only in June 2006 following the release of a convicted child sex offender that action was taken to amend the legislation accordingly. At the time we facilitated passage of the emergency Criminal Law (Sexual Offences) Act 2006. In doing so we called on the Government to use the period immediately following its passage to review, debate and introduce proposals for a comprehensive and coherent code of law covering offences against children that is free from anomalies and loopholes. It may be difficult to cover all angles, but that is part of our job in this House, and this is one initiative on which I would welcome legislation for once from this Minister, who is a serial legislator.

Speaking during that crisis last summer and with reference to his proposed emergency legislation, the Minister said: "I am confident that when the dust settles and the frenzy stops I will be seen to have acted with good authority and with competence, honesty and courage". I am not questioning the Minister's honesty in this but competence is lacking as may be seen from the legislation before us. The dust has settled, the frenzy continues because of his incompetence and that has led to new loopholes being clearly visible and further emergency legislation is required. A range of issues which should have been addressed by legislation subsequent to last summer's Act remains outstanding, with no evidence that this Government intends to address them at all. I shall return to those.

However, I wish to make a few points on the limited content of the Bill before the House. According to its explanatory memorandum, the purpose of the Bill is to add to the offences provided for in last summer's emergency legislation the offence of soliciting or importuning a child or a person who is mentally impaired for the purpose of committing a sexual offence. It also broadens the definition of "sexual exploitation" in the Child Trafficking and Pornography Act 1998 by including references to inviting, inducing and coercing a child "to participate in or observe any activity of a sexual or indecent nature". The Bill also introduces the offence of grooming. These developments are welcome in principle.

Like other parties in the House, Sinn Féin will facilitate the passage of this emergency legislation by not opposing it. The Government needs to ensure that the technical outworkings of the Bill will not create further loopholes or anomalies and that this Bill is constitutionally sound. Ultimately, the ad hoc nature of the developments in this area is unacceptable and is not in the interests of children.

The scale, extent and impact of child sexual abuse has been uncovered in recent reports. Many cases have been reported on, after years of denial when these issues were kept in the dark. Child sexual abuse often has devastating lifelong consequences for its victims. Under-reporting is a reality in this area, as it is with other crimes of sexual violence. Very few of the small number of cases which reach the courts result in convictions and appropriate measures. The health and counselling needs of victims are often not met, sometimes for resource or legal reasons, such as the requirement for parental consent. Traumatic court procedures can again make victims of children who have already suffered the worst forms of abuse. Uniform responses are not guaranteed under the reporting procedures involving the Garda and the HSE. Adequate resources have not been allocated for the Garda vetting of applicants who seek to work or volunteer with children.

It is not sufficient to create one or two additional offences — many matters need to be addressed urgently. While some of them will require underpinning legislation, others will not. On behalf of Sinn Féin, I ask the Government to introduce legislation to place on a statutory footing the recommendations of Children First: National Guidelines for the Protection And Welfare of Children. The Government should ensure that the guidelines are resourced and implemented fully.

I call on the Government to protect vulnerable children during court proceedings, for example by appointing court commissioners to take evidence. We should follow the lead of the authorities in Scotland by preventing the cross-examination of vulnerable children by aggressive counsel. The issues I have mentioned, as well as many other outstanding problems, need to be addressed if children are to be protected.

I approach this Bill with doubts about whether rushed legislation is safe. The full horror of the heinous practice of sexual predators grooming young people over the Internet has emerged into the public consciousness over recent weeks. The phenomenon of Internet grooming, whereby paedophiles use the Internet to cultivate relationships with children with the aim of making contact with and abusing them, must be made illegal. We need to enact clear, coherent and effective laws which adequately respond to the issues of sexual abuse and, in particular, paedophilic use of the Internet. Legislation that makes Internet grooming a criminal offence, and nails the offender in the specific act of grooming prior to an off-line meeting taking place, is long overdue.

For several years, paedophiles have been using the Internet to contact children. They often pose as teenagers and initially make contact in chatrooms. They engage in e-mail correspondence with young people before attempting to arrange meetings. The problem of grooming has continued to escalate, even though children are being told each day about the risks they face on-line. I do not think education alone will stop children from trusting strangers they meet on-line. No amount of parental control or filtering software will stop children from giving their mobile telephone numbers, or home addresses, to people who have carefully groomed them over a long period. The legislation before the House is vital if we are to deter predators from engaging in activity of this nature — if we are to catch them in their tracks on-line before they commit sexual offences. I hope that evidence of abusive conversations or on-line solicitations will be sufficient to warrant convictions.

This problem is too serious to be the subject of political point-scoring or to make cheap political capital from it. I am delighted that this Bill will not be opposed. I am happy to note the Minister's intention of incorporating in this legislation the spirit of the Labour Party's Bill and the substance of Fine Gael's Bill. He was accused this morning of cogging, but he is cogging for right, admirable and useful reasons.

The issue of the protection of children has long been approached in a half-hearted manner. The Garda central vetting unit is able to check the backgrounds of people who work in the health service, but it lacks the capacity to perform similar checks on people who work with children in the voluntary sector. Voluntary organisations have to rely solely on Garda checks of criminal records. Such checks fail to take cognisance of the fact that just one in ten abusers has a criminal record. The differences between the child protection systems on either side of the Border create loopholes which can be exploited by child sexual abusers. In some cases, prospective abusers can work as ancillary workers in the same buildings as children. They will not have been the subject of Garda checks because they are not deemed to be working with children. I know of cases of this happening in schools. We need to make progress in that regard.

The anomalies and inconsistencies in the vetting procedures of both jurisdictions could be ironed out by the creation of a centralised system, such as a vetting clearing house. I have called previously for the establishment of such a facility, which would impose more rigorous standards in the background checks undertaken on prospective employees. The protection of our young people should be the over-riding priority. While many young people have mastered the use of technology, they remain vulnerable to insidious seduction by abusers.

It is valid to question whether we would be here tonight discussing this Bill if a guillotine had not been imposed last year on the legislation introduced in this area. On that occasion, we were not given enough time to tease out the various measures proposed. The Government is pursuing a piecemeal approach that is reactive rather than proactive. It is a defective way of making legislation. The Minister, Deputy McDowell, has accepted that the lack of consolidating legislation in this area is not helpful.

I regard this Bill as important. If we do not provide for a deterrent targeted at initial access, more serious offences will occur. The crime that will be committed in such circumstances will be a greater one. It is not enough to put laws on the Statute Book without considering how they can be enforced. An article in last weekend's edition of The Sunday Tribune highlighted in a graphic way the fact that behaviour of this nature is anonymous and difficult to police.

We need to reflect on the significant difference between the way many first approaches are made to children nowadays and the way this was done in the past. Most approaches were made personally in previous times, but now many victims are not contacted personally. Forms of technology such as text messages, chatrooms and the Internet generally are now used as first points of contact with children. That young people are often more competent than their parents in the use of such technologies makes them even more vulnerable. The word "grooming", for example, meant something completely different 20 years ago. It would have been almost strange to describe it as something that would become an offence at some future stage.

It is important to understand the means by which crimes are committed. A lack of consolidated legislation has led to the problem we are trying to fix today. Our understanding of the use and misuse of technology, as it develops, will inform us about what is needed. I regret that we do not have enough time to consider this and other aspects of the legislation. Most people want to see more gardaí on the streets. It is clear that policing the Internet involves ensuring we have expert knowledge of the criminal ways in which technology can be used.

It is not enough to pass legislation — we must consider its end use. I support Deputy Boyle's proposal that we adopt the suggestion made by Barnardo's to organise a child summit. We need a more comprehensive approach. It is not just about legislation — it is about providing the resources to ensure that it is applied. We need to be ahead of the game in terms of understanding the use of technology. We should not be penny-pinching in providing the resources to deal with the problems which ensue when offences are committed.

I welcome the opportunity to speak on the Criminal Law (Sexual Offences) (Amendment) Bill 2007. Before speaking on the substantive Bill I wish to make a number of preliminary comments.

I do not believe there is such a thing as a "minor" offence, as has been suggested, when it comes to the sexual abuse of children. During the deliberations of the Joint Oireachtas Committee on Child Protection it was clear that the physical act of statutory rape or sexual abuse is almost always preceded by a period, sometimes a long period, of sexual grooming. While no physical act may take place, this has the potential to inflict life-long psychological damage on the child. The sexual abuse of a child is a depraved act. The preparation, solicitation and importuning of a child is equally depraved. It shows a level of deviousness and planning and demonstrates real malice aforethought. For this reason I am pleased the proposed legislation provides that the offence of solicitation and importuning will not be just a summary but also an indictable offence.

It is clear from events in the past twelve months, from the legislation that has been brought forward and from the deliberations of the joint committee, that the time has come for a complete restatement of the law relating to sexual offences against children and child protection in general in a new statute along the lines proposed by the UK legislation. A criminal law codification committee is currently working on this subject.

It is time to consider the increasing sexualisation of children which makes them sexual objects and increases the likelihood of predation. We must look at the causes of the increased levels of predation in society. There is something fundamentally wrong in society when a 14-year old boy accesses sexually explicit websites about gay sex. This is particularly disturbing and it raises questions more fundamental than the legislation which the House is debating tonight. The excellent journalism in the report by Una Mullally and Mick McCaffrey in The Sunday Tribune article exposed something terribly sad about our society. This is a society in which children, instead of reading “Roy of the Rovers” or Enid Blyton books or going out to play football with their friends in a safe and secure environment are instead at 14 years of age accessing gay sex sites.

This is a terrible commentary on society not just in Ireland but across the globe. As a global society we have presided over the increasingly early sexualisation of our young people so that they cannot enjoy the innocence of childhood in a carefree and pressure-free world. There is hardly a parent in the country who does not lament the early sexualisation of their children through television, magazines, the Internet, mobile phones, advertising, marketing and — increasingly and in a sinister development — through toys for very young children.

Today's pop culture, media and information society have made sexuality so pervasive and ubiquitous that it encourages young children and particularly young girls to see themselves as mere sexual objects without dignity. This is the society we have created and the sort of mess into which we have got ourselves. It has created and encouraged the type of offences for which we must now legislate. We must examine the society we have created. I recognise it may be difficult, if not impossible, to legislate in this area but surely those in authority, people in the media, people who control what our children read and see and what toys they play with, need to examine the effect which their publications are having on our young people. Is it right or proper that, in the pursuit of sales and profit, some of our newspapers openly advertise gay sex chat lines or any type of sex chat lines which are easily accessible and available to children? Is it not possible to exercise some moral judgment and to decide that this information will not be made freely available to 14-year-old children which inevitably encourages them to access sites such as, the subject of much comment in recent times?

I know that I am expressing a deep frustration felt by parents throughout our country, the same parents who protested outside the gates of Leinster House nine months ago about the lowering of standards of child protection as a result of the Supreme Court decision in the CC case. This case prompted the legislation which gave rise to the anomaly we are correcting today. The CC case also gave rise to the establishment of the Joint Oireachtas Committee on Child Protection which spent six months examining the issue of child protection and sexual offences in general. It was clear from the committee's deliberations that a full restatement of our law on child protection and sexual offences against children was needed. This was the core and first recommendation in the committee's report. I invite the Minister to make a commitment to this recommendation in his reply. The case for full restatement of our child protection could not be clearer.

Some of the issues which need to be addressed go beyond the technical correction being introduced tonight. There must be a full restatement of the law in order to keep pace with the increasing levels of predation and the sophisticated and subtle means in which sexual predation against children is now carried out. It is clear that the sentences are not severe enough and neither are they being imposed by the courts which increasingly take the side of the criminal and the predator. The scales of justice are tilted in favour of the accused rather than the child victim or the victim of general crime and they need to be recalibrated.

The committee has identified a clear need for a new offence of child sexual abuse and the need for training and education of gardaí and others in child psychology. The entire body of rules of evidence needs to be reformed with regard to the cross-examination of child witnesses, the giving of evidence behind a screen, video-link evidence, the videoing of witness statements from children. The law relating to sexual offenders and the internationalisation of sexual predation against young children also needs to be considered and updated on a regular basis.

Two further major issues also need to be addressed. The vetting of adults who have unsupervised or limited access to children needs to be fully addressed. The joint committee's report contains numerous and helpful suggestions in this area. Second, legislation is required to govern the area of soft information. I welcome the proposed referendum which would give the Oireachtas constitutional authority to legislate in this area. A full and comprehensive statutory scheme needs to be formulated.

The proposed legislation will close off the anomaly created by the 2006 Act. While it is important to have these offences reinstated and anomalies corrected, despite adverse media comment, I have no doubt there were other offences, including common law offences of aiding, abetting, counselling, procurement and incitement, which could have been used to deal with recent offences highlighted in the media.

I have a concern with regard to section 2(3)(b) which provides that a person guilty of an offence under this Act will be liable on conviction to a prison sentence of less than five years. This is far too short a time. The Child Trafficking and Pornography Act 1998, which makes the distribution of child pornography illegal, carries a maximum sentence of 14 years. I see very little difference between both offences. Solicitation is connected to grooming of young children by groups of men. The act of planning and preparation and solicitation can be just as sinister and depraved as the offence itself. If somebody has been conclusively proven to be planning, preparing, soliciting, importuning and grooming children for the most depraved acts, are we seriously suggesting that, with good behaviour, they should be let out on the streets after four years? It is regrettable that the depravity to which some individuals are prepared to stoop is only matched by their imagination and a sentence of less than five years is surely not sufficient in this area.

While it may be a discussion for another day I am deeply concerned that the courts are not handing down more severe sentences in the area of sexual abuse in general. I have raised this point in the House before. A premeditated and violent rape or sexual act, be it against an adult woman or a child, should carry a minimum sentence of 15 years without remission. The sort of sentences being handed down for premeditated rape, which are of eight, nine and ten years, fall far short of the level of protection for our children and adult women which the courts ought to be providing. I am reflecting a view which I believe is held strongly by people, namely, that the short, increasingly lenient sentences which the courts are handing down, particularly in rape cases, is a matter that needs to be addressed. I invite the Minister, who has not been shy in pointing out to the Judiciary where it is falling down in this area, to again take up this important matter. It sends out certain messages to society generally that the abuse of our children and women by sexual predators is not being dealt with in the most severe way by the courts and the Judiciary.

I commend the Bill to the House.

I thank Deputies for their contribution to this debate. I will begin by referring to the contribution of Deputy Peter Power, which was thoughtful and which surveyed recent events in a fair-minded and reasonable way. I agree with him that this area needs to be restated comprehensively. I will ask that the criminal law codification committee takes this as its first task. It is not good enough that our law on sexual crime is scattered over so many statutes that keeping them all in synch poses a significant difficulty. The attempt to find out what is the law and trying to work out exactly how one Act interacts with another Act have become difficult tasks.

Deputy Peter Power has the unique experience of having chaired an all-party committee on sexual offences in recent times. The central theme of that committee was that this process of codification should be done. Even though we are somewhat overhung by the uncertainties in regard to the zone of absolute protection, it seems the criminal law codification process could get going, notwithstanding that this issue has not yet been decided on finally. Bearing in mind there is an all-party consensus to create an absolute zone of protection, the committee should proceed to prepare a draft chapter of a code in this area which would consolidate all sexual offences, both in regard to adults and minors, on the assumption that these Houses and the people will reinstate a zone of absolute protection in the proximate future. That would be a good idea.

It is noteworthy that, as Deputy Power said, the exploitation of young people is a very complex issue and that sexualisation of young people is now also a very complex issue, and very prevalent. I do not know whether we are in the midst of an irreversible tide of sexualisation of young people or whether it can be reversed — it is a matter on which I am not in a position to express a useful opinion. However, while I do not say this critically with regard to anyone, if one runs a newspaper, for example, and has chatlines which are accessible to children, one should not at the same time on earlier pages in the same newspaper be giving out about monsters. To do that would be to burn the candle at both ends.

Section 6 of the 1993 Act, as Deputy Howlin pointed out, had a very chequered career. It did not emerge as the primary defence of children in this area but as a by-product of the reform of the law in regard to prostitution and homosexuality, as set out in the legislation of the former Minister, Mrs. Máire Geoghegan-Quinn, when the Fianna Fáil-Labour Party coalition was in office. Clearly, attitudes have since changed. A summary offence under the Constitution has to be categorised as a minor offence but most people would not consider it morally minor that an approach was made to their child by somebody——

I do not believe the Minister does either.

Nobody does. It is not morally minor in that sense. This explains to some extent how the particular section was overlooked. If it had been an indictable offence, it would have leapt out in the drafting process for last year's law that there was a problem in this regard which had to be addressed. However, it looked like a District Court offence and did not look to have all the importance it now does in retrospect. There is no doubt there is now a consensus in the House that it should not be regarded either constitutionally or legislatively as a minor offence. This is the reason it has been made indictable.

Deputy Peter Power raises the good question of why the sentence for solicitation is only five years. The point we must bear in mind is that last year, in the context of legislating for attempts, we set in place penalties which were less than five years. This is why a general upgrading of the penalties is contemplated in this Bill. To make this an arrestable offence in which there was a power to detain for questioning, the maximum penalties for these other offences, which are by definition more serious — an attempt is more serious than pure solicitation — have had to be recalibrated across a number of offences.

Deputy Howlin asked me to explain why, with regard to this particular offence, we are not providing a defence of honest mistake. I go back to the old offence of indecent assault, now called sexual assault. It was in the same 1935 statute and the Supreme Court, for reasons which are quite complicated, held that it did not carry with it an exclusion of the requirement for mens rea in that particular case. Therefore, the offence of sexual assault as we now know it was not comprehended by the finding that portions of the 1935 Act were unconstitutional for the reasons set out by the Supreme Court.

With regard to sexual assault, for example, we did not amend the law last year to provide for a specific defence of honest belief because the Supreme Court had said it exists as a matter of constitutional construction. That is why in regard to these offences——

What happens when we change the Constitution to put in the ability to have a zone of absolute protection?

I should draw attention to the fact the Minister has only five minutes to reply.

I did not realise I had only five minutes. I thought I had the usual time.

It is the order of the House.

Can we alter that order because we are running early?

The Deputies will have Committee Stage for further discussion.

That is fine.

I must conclude but I want to record that it is not necessary to stick into every offence for which we legislate, just because the Supreme Court laid down that particular judgment in regard to one section of the 1935 Act, that there should be an explicit defence of mistaken belief. On principles of constitutional construction, an Act is construed in accordance with the presumption that it is constitutional and if there are two ways of construing it, the constitutional construction is preferred. I will deal with the other matters raised on Committee Stage. I do not want to ignore them, nor do I want to be disorderly.

Question put and agreed to.