Criminal Law (Sexual Offences) Bill 2015 [Seanad]: Second Stage

I move: "That the Bill be now read a Second Time."

I am pleased to present this Bill. Many Members on all sides of the Houses have been following its progress since its publication in September, as have many groups and organisations, some of which are joining us in the Gallery. Not only have they an interest in the Bill, but they worked with the justice committee and made substantial submissions some years ago. Present are representatives from the Turn Off the Red Light campaign, rape crisis centres, the Men's Development Network, Women's Aid and various other organisations that are supportive of and keen to see the Bill pass through the Houses and be enacted into law. I regret that we have not been able to get all-party agreement on progressing every Stage of the Bill today, as this important legislation needs to be progressed as soon as possible. For a variety of reasons, it spent longer in the Seanad than had been anticipated.

Whenever I refer to this Bill, I am inclined to note that it is the most comprehensive and wide-ranging sexual offences legislation to be introduced in almost a decade. By "wide-ranging", I refer to provisions that will strengthen our laws combating child pornography, new measures to combat the sexual grooming of children, the updating of laws relating to incest and indecent exposure and amendments to the Criminal Evidence Act 1992 that focus on the victims of sexual offences. I pay tribute to the significant amount of work that has been done by departmental staff on this Bill over many months. Detailed work has been done by the Office of the Attorney General on the many critical, difficult and technical issues that have arisen during the Bill's development. Some aspects also required detailed work by the Office of the Parliamentary Counsel, OPC, and my Department. There is considerable interest in and motivation and desire for completing the Bill.

The Bill's measures that focus on the protection of victims of sexual offences include the introduction of harassment orders prohibiting convicted offenders from contact with their victims. The Bill also makes provision for the repeal and replacement of section 5 of the Criminal Law (Sexual Offences) Act 1993 in respect of the protection of mentally impaired persons. That section has been criticised for adopting an overly paternalistic attitude and status-based approach to the protection of persons with mental disabilities. We had interesting discussions on this matter in the Seanad. The provision in the Bill adopts a different approach and looks to the capacity of the person to consent. It does not, however, presume that the existence of a disability implies a lack of capacity to consent.

The Bill criminalises the purchase of sexual services. Deputies are aware that, of all of the provisions in the Bill, these have generated the most debate. I am, however, convinced that they are necessary to tackle the exploitation associated with prostitution.

The Bill's provisions, which I will outline in more detail, are the culmination of a long process and wide consultation. As well as implementing the recommendations of a number of Oireachtas committees, the Bill brings Irish law into line with our international obligations. Regarding the provisions amending and updating the Sex Offenders Act 2001, I assure Deputies that the legal issues that arose during the Bill's drafting, as well as the need to update the provisions to reflect operational advancements, have been the primary cause of delay. Many of these matters are now resolved and the relevant provisions can be tabled as separate legislation amending the 2001 Act.

Given the wide-ranging nature of the Bill, I do not propose to outline every aspect and detail, but I will draw the attention of the House to its main proposals. The provisions in Part 2 that address the sexual exploitation of children are among the most important criminal law provisions being introduced. We must take every step possible to combat and target those who engage in the sexual exploitation of children or in those activities that support and promote said sexual exploitation. Unfortunately, there is far too much such activity nationally and internationally. While we already have significant legislation in place to target those who prey on children, the provisions under Part 2 are a further step. Contained in this Part are measures that strengthen existing law in the area of child pornography and create new offences relating to child sexual grooming that focus on those who use modern technologies to engage with children with the ultimate purpose of sexually exploiting them.

I acknowledge that matters addressed in Part 2 were also the subject of a Private Members' Bill introduced by Deputy Corcoran Kennedy. That Bill and the provisions before the House today have the shared goal of removing any gap in the law that can be exploited by those who would prey on children for the purpose of sexually exploiting or corrupting them.

We know the history of this behaviour in this country. As I stated, it is far too common both nationally and internationally. The vast majority of people can hardly believe it when they hear this activity is still happening, that it is possible, and that children are groomed in one country and exploited on the Internet for the purposes of predator rings around Europe or for trafficking. Turning to Part 2 of the Bill, section 3 contains an offence of obtaining or providing a child for the purpose of sexual exploitation. This offence builds on the existing offence of sexual exploitation under the Child Trafficking and Pornography Act 1998. With regard to paying a child or another person for the purpose of sexually exploiting a child, the provision is clear that such would include "any other form of remuneration or consideration" other than a monetary form. For example, the giving of a present to a child would fall under the provision of this section. The section also criminalises offering a child or obtaining a child without reference to a monetary or other form of remuneration. In order to target, at the earliest possible point, any intention to exploit a child, it is important that the law set out in detail those initial acts or steps that a predator may take to gain access to a child. What constitutes sexual exploitation is defined in section 2 and includes engaging a child in prostitution or child pornography, the commission of a sexual offence against the child or causing another person to commit such an offence. In line with the offence of sexual exploitation under the 1998 Act, and the requirements of an EU directive on combating the sexual abuse and sexual exploitation of children, the offences targeting these pre-emptive steps to the exploitation of children apply to children up to the age of 18 years. Section 4 closes a possible gap in existing law in regard to the sexual assault of children. Under the law as it stands, a child under the age of 15 years cannot consent to an act that would amount to sexual assault. While the touching of a child would amount to sexual assault, this section clarifies that a person who invites a child to touch him or her or another person is committing an offence in the context in which we are speaking. The penalty, of up to 14 years, is the same as for sexual assault. Sections 5, 6, 7 and 8 outline offences connected with the sexual grooming of children. Sections 5 and 6 provide for offences relating to sexual activity in the presence of a child or causing a child to watch sexual activity. Familiarising children with such activity or material can take place during the early stages of the predatory process leading to more serious forms of child sexual exploitation. Let us be clear that we are speaking about the development of a predatory process that is intended to lead to the sexual exploitation or grooming of a child. Section 7 outlines an offence that targets the point at which initial contact has been made with a child by a person intent on the sexual exploitation of that child. The offence arises where the person then meets the child or makes arrangements to meet the child. Again, this targets activity prior to actual exploitation of a child. Given the way in which technology is now used, we know this is precisely what happens in the steps leading up to the exploitation of a child. Section 8 contains two new offences addressing the use of modern communication technologies in the grooming and exploitation of children. Modern communication technologies and social media generally are incredibly useful tools for everyone. However, children and young people, in particular, can be very vulnerable to unwanted and seemingly innocuous contact by those who may prey on them. The offence under this section is an acknowledgement of that very real risk. All the evidence of police forces here and internationally shows this is a reality. The offence criminalises the initial stages of grooming where communication, such as communication through the Internet, is the first step in facilitating the sexual exploitation of children. Section 8 offers further protection to children from unwanted advances by including an offence of sending sexually explicit material to a child by mobile or Internet communication. The seriousness of these offences is reflected in the potential penalties that may be imposed, that is, penalties of between ten and 14 years. Sections 9 to 14 amend the Child Trafficking and Pornography Act 1998. There are already significant offences under Irish law relating to child abuse material or child pornography, as defined under the 1998 Act, and the measures in this Bill strengthen those provisions. In terms of new offences, recruiting or causing a child to participate in a pornographic performance is now a specific offence as is attending a live pornographic performance, including viewing such by means of information and communications technology. I draw attention to the provisions in sections 16 and 17 of the Bill, which provide for offences of a sexual act with a child below the ages of 15 and 17, respectively. These offences replace the defilement offences under the Criminal Law (Sexual Offences) Act 2006. There are two notable amendments to the existing offences. First, there is a change in regard to the defence of "mistake as to age". I am very pleased we have been able to include this. Under the 2006 Act, an accused could rely on a defence of honest belief as to the age of the complainant. This is a subjective test requiring the accused to prove that he or she honestly believed that the other party had not reached the specified age. Under this Bill, the defence will be one of reasonable mistake as to the age of the complainant. This is an objective test under which the court shall consider whether, in the circumstances of the case, a reasonable person would have concluded that the child had attained the required age. The second issue I would like to highlight is the recognition in the Bill of under age, consensual peer relationships through the introduction of a "proximity of age" defence. Under this provision, a person charged with an offence of engaging in a sexual act with a person between the ages of 15 and 17 years can rely on a defence where the act is consensual, non-exploitative and the age difference is no more than two years. Part 3 of the Bill contains the offence which will replace section 5 of the Criminal Law (Sexual Offences) Act 1993, which I mentioned earlier. Under that section, it is an offence to engage in an act consisting of sexual intercourse or buggery with a "person incapable of living an independent life or of guarding against serious exploitation", regardless of whether the person consents. The offence facilitates prosecution in that there is no need to prove lack of consent. However, it does not make allowances for the fact that a person who may need assistance on a day-to-day basis may, nonetheless, be capable of giving consent to a sexual act and, in this respect, it fails to respect the autonomy of individuals based solely on their status rather than capacity. The new offence under section 21 of the Bill moves away from the status-based approach of the 1993 Act. In order to identify the persons who require protection, a functional test as to the capacity of a person with a mental or intellectual disability or a mental illness has been adopted. Under the provision, an offence will arise where a person engages in a sexual act with a person whom they know lacks the capacity to consent to the sexual act by reason of a mental or intellectual disability or mental illness. This provision seeks to strike the necessary balance to ensure that the appropriate protection is available to those who need it while respecting the full participation in society of persons with disabilities. Part 4 of the Bill deals with the criminalisation of the purchase of sexual services and, as I am sure Members are aware, this is a matter that has been the subject of considerable debate both inside and outside these Houses, and indeed beyond this State. The two offences contained in the Bill — the first being a general offence of paying to engage in sexual activity with a prostitute and the second being the more serious offence of paying to engage in sexual activity with a trafficked person — are the result of considerable and extensive public consultation by my Department and by the Oireachtas Joint Committee on Justice, Defence and Equality, which recommended similar proposals in 2013. In deciding to put forward these provisions, I have considered all sides of the debate. I have considered the experience of those states that have introduced similar measures and those states that have addressed trafficking and prostitution in a different way. First, let me be clear on what these provisions do. It will be an offence for a person to pay, offer or promise to pay a person for the purpose of engaging in sexual activity with a prostitute. The person providing the sexual service, the prostitute, will not be subject to an offence. The purpose of introducing these provisions is primarily to target the trafficking and sexual exploitation of persons through prostitution. Both the Council of Europe and the European Parliament have recognised the effectiveness of the criminalisation of the purchase of sexual services as a tool in the fight against human trafficking. However, even to leave aside this unquestionable objective, there is undoubtedly evidence of wider exploitation of persons involved in prostitution beyond those trafficked, such as those coerced or otherwise forced, through circumstances, to engage in the activity.

The most direct way of combating this form of exploitation is to send the message to those who pay for these services and ignore the exploitation of the women and men involved that their behaviour is unacceptable and supports the exploitation of others.

There are many aspects to the debate on these provisions which I expect will be raised, including issues regarding the impact of these provisions on the safety, health and well-being of those who work in prostitution. We must develop a range of support services for women who wish to move out of prostitution. There are concerns that these changes will drive prostitution further underground, and an argument is made that women and men can freely and voluntarily provide these services without experiencing the exploitation I believe is widely associated with prostitution. As I stated, I listened to all sides of the debate and I am convinced that targeting the exploitation associated with prostitution requires targeting those who demand such services.

Part 5 modernises and restates the law regarding incest. Part 6 provides for a number of amendments to the Criminal Evidence Act 1992 which are designed to support and protect victims of sexual offences during the criminal trial process. It includes measures to spare child victims of sexual offences additional trauma during the giving of evidence. Provision is also made to prevent a person accused of a sexual offence from personally cross-examining a person under the age of 14 years unless the interests of justice require such cross-examination. The relevant section includes a number of other safeguards.

Section 38 provides for the disclosure of third party records in certain trials. The appropriateness of the disclosure of such records will be the subject of a pre-trial hearing and any disclosure will, while respecting the rights of an accused to a fair trial, take account of the right to privacy of a victim of a sexual offence. Only records, or parts thereof, which are necessary for the accused to defend the charges against him or her should be disclosed.

Part 7 amends existing jurisdiction legislation in order that the provisions which allow the prosecution of offences committed outside the State by citizens of the State or persons ordinarily resident in the State will be extended to a number of the offences introduced under Parts 2 and 3. A number of other changes are made in section 44.

Section 45 introduces harassment orders, which will be an extremely helpful new mechanism. A harassment order may be imposed where a court is satisfied that the offender has behaved in such a way as to give rise to a well-founded fear that the victim may be subject to harassment or unwanted contact by the offender such as would give rise to fear, distress or alarm or amount to intimidation. Such cases, which we hear about all too often, will be covered under the new harassment orders.

Deputies will agree that the provisions of the Bill constitute a significant step forward in targeting those who would abuse children and offer some further protection to victims of sexual offences. I thank all Members and the many groups which have taken an interest in the legislation, which is a reflection of advances in technology, research, experience and debate. Let us not forget that its purpose is to strengthen substantially the law to target those who target our most vulnerable, namely, our children, and to send a message to all victims of sexual offences that we recognise the unfathomable harm and trauma inflicted upon them and support them.

I am pleased the House is discussing this Bill. I share the Minister's regret that it has not been possible to secure all-party agreement to pass all Stages today. The groups campaigning on behalf of victims of sexual offences have shown great dedication to their cause, and it is a matter of concern to all concerned that the legislation may not be enacted prior to the dissolution of the Dáil. I hope the Bill can be passed early next week, although I accept the matter is not in the Minister's hands. We can only play our part by assisting her.

I, too, pay tribute to the many organisations involved in this issue. They have done a major service by informing and briefing legislators about the issue and providing us with background information. I also pay tribute to a number of women who were forced to work as prostitutes. It was a horrific experience listening to their testimony and great credit is due to them for meeting Members, both privately and publicly. I attended a private briefing session they gave in Buswells Hotel and they also appeared before the Joint Committee on Justice, Defence and Equality. Many of them have also participated in documentaries and current affairs programmes such as RTE's "Prime Time".

It is often said that prostitution is the oldest trade in the world and people tend to laugh off the issue with a little bravado. The brouhaha associated with it does not cut any ice with me and many others. As I have consistently stated, organised criminality lies behind prostitution and people are making large, illegal profits on the back of a form of slavery and coercion. I was particularly struck by the testimony of a witness who pointed out that the younger a prostitute is purported to be, the busier he or she will be. Men, women and children are involved and it is high time we addressed the matter. My party naturally supports the Bill.

In the short time available to me, I propose to outline some of the concerns that have been brought to my attention and, I am sure, that of the Minister. I hope they will be addressed during the passage of the Bill. The Irish Society for the Prevention of Cruelty to Children welcomed the Bill as a wide-ranging reform that aims to offer greater protection to children. However, it expressed concern about the apparent omission of risk assessment guidelines and provision for post-release supervision of sexual offenders. This is one of the key components of ensuring children and members of the public are better protected from offenders who may seek to prey on them. I ask the Minister to address that issue in due course.

The National Women's Council of Ireland also welcomed the publication of the Bill. It is concerned, however, that the legislation contains significant gaps in terms of providing protection for victims of sexual violence. While the NWCI acknowledges that the Bill introduces many important and much-needed reforms, especially for children, it believes that significant gaps remain, particularly in the provisions on the protection of women who are victims of sexual violence.

The One in Four organisation highlighted the issue of protection from disclosure of counselling notes during a criminal trial. Under the Bill, an alleged abuser will no longer be able to seek disclosure as part of a fishing expedition or in an attempt to discredit the alleged victim and will have to provide clear reasons for the production of counselling notes. The organisation believes counselling notes should be completely excluded from criminal trials. Nonetheless, it welcomes the measures as a positive step towards complete privacy in respect of counselling notes.

I met Mary Flaherty, a former colleague of the Minister and the director of the CARI Foundation, a leading voluntary organisation with a proven track record in providing child-centred specialised therapy and support for children, families and groups affected by child abuse. While welcoming the move towards establishing a clear statutory framework for the duty of disclosure in criminal cases, Ms Flaherty raised issues about the disclosure of therapy notes of children who have experienced sexual abuse. She pointed out that for therapy to be effective and child centred, a private space is required for a child to explore sensitive issues without fear of the information being used for any other purpose. She also noted that in cases where confidentiality cannot be assured, the core undertaking of therapy is undermined at a very fundamental level. The disclosure of such a record, she continued, can also lead to further psychological distress and potential re-traumatisation for the child, especially as the person who has sexually abused the child can have access to his or her more sensitive and private information.

Concerns have also been raised regarding cross-examination by accused persons.

The Bill prohibits the cross-examination of a person under 18 years of age by the accused person in a criminal trial. This is welcome. However, many believe that this exclusion should be extended to all victims of sexual crime, as is the case in England and Wales. A representative of One in Four has asserted that it is horrifying to think that a victim of sexual violence should be subjected to a verbal assault in court by the person who violated him or her in the first place, and that this must change.

I alluded to the criminalisation of the purchase of sex at the start. Obviously this is contained in the Title of the Bill. The Minister is aware that we fully support it. The Children's Rights Alliance is on board, as is the Irish Medical Organisation. I wish to put on the record that the Fianna Fáil party has consistently supported efforts to eradicate prostitution in Ireland as well as efforts to put an end to human trafficking, which the sex industry fuels. I remind people that in government we passed the Criminal Law (Human Trafficking) Act 2008, which criminalised the trafficking of human persons for the purposes of sexual exploitation.

The last item I wish to raise relates to the need for a new Sexual Abuse and Violence in Ireland report. The members of Fianna Fáil are keen to raise this. It is not covered in this legislation but it is a connected issue. There is a need to commission another report on sexual abuse and violence in Ireland. My colleague, Deputy Kelleher, raised the matter in November. The original SAVI report was published in 2002. It was the foundation on which the Ferns, Ryan, Murphy and Cloyne reports were delivered. Representatives from the Dublin Rape Crisis Centre and others believe that a second SAVI report should be conducted.

I am delighted that this legislation has been introduced. I sincerely hope that it helps to bring closure for the many people who were forced into being prostitutes or sex workers against their will. Moreover, I hope it delivers another tool in the armoury of An Garda Síochána to focus on gangland criminality, which is behind the trafficking of people for sexual exploitation.

Debate adjourned.