Criminal Law (Sexual Offences) Bill 2015 [Seanad]: Report Stage (Resumed) and Final Stage

Amendment No. 22 has not yet been moved but has already been discussed. Is Deputy Coppinger moving the amendment?

I move amendment No. 22:

In page 20, between lines 13 and 14, to insert the following:

"Review of supports and exit services for sex workers that report traffickers or organisers of prostitution to the Gardaí and/or them in prosecutions

27. The Minister for Justice and Equality is to report on the additional procedures and supports that should be available for the protection and assistance of sex workers who report traffickers, organisers of prostitution, and pimps and brothel-owners to the Gardaí, particularly in relation to Garda protection, regularisation of immigration status, financial compensation, access to employment, training and other exit services, within six months of the enactment of this Act.".

Amendment put and declared lost.

Amendment No. 23 is in the name of Deputies Clare Daly, Wallace and Connolly. It arises out of committee proceedings and was already discussed with amendment No. 17. None of the Deputies is present to move the amendment.

Amendment No. 23 not moved.

Amendment No. 24 is in the name of Deputy Thomas Pringle. It arises out of committee proceedings and was already discussed with amendment No. 17.

Amendment No. 24 not moved.

Amendment No. 25 arises out of committee proceedings. The amendment is in the name of Deputy Jonathan O'Brien.

Deputy Jonathan O'Brien wanted to move that amendment.

The Deputy is not here. Will another Deputy move the amendment?

I move amendment No. 25:

In page 20, to delete lines 25 to 32.

Does anyone wish to speak on this amendment? Does the Tánaiste want to respond to the amendment?

Is the amendment being pressed?

I want to speak to the amendment. The amendment in Deputy Jonathan O'Brien's name is a proposal to amend the legislation by removing section 28, which criminalises incest on the part of females of or over 17 years of age. This was discussed briefly on Committee Stage when the matter was before the select committee. The law in respect of incest is archaic and there was a discrepancy between the penalties imposed upon men and those imposed upon women. Under the Punishment of Incest Act 1908, the law was created so that incest by a man would be punishable by three to seven years and incest by a woman would be punishable by three to seven years. There was harmony between the two. In 1993, section 12 of the Criminal Justice Act amended the law in respect of incest by men and it altered the penalty to one of up to 20 years. Subsequently in 1995, the Criminal Law (Incest Proceedings) Act amended the penalty again to increase it from up to 20 years to up to life imprisonment. As matters stand, incest committed by a man is punishable by up to life imprisonment but incest committed by a woman is punishable by a term of three to seven years.

This issue came to some public prominence in January 2009 when we had a prosecution and conviction for incest which is highly unusual. In January 2009, a mother of six was convicted in Roscommon Circuit Court on ten counts of incest. At the time, the judge noted the only penalty available to the court to impose was a sentence of between three and seven years. That gave rise to some concern that there should be harmony between the two offences. However, my view is that a penalty of life imprisonment for incest in the context of the offences that already exist on our Statute Book is excessive. For example, if that case against the mother in Roscommon arose in the aftermath of the legislation before us being enacted, sections 16 and 17, which deal with sexual acts with children under the ages of 15 and 17, respectively, would apply. If the mother in question was prosecuted in respect of having sex with her son and if the son was under 17 years, she would now face the possibility of a term of imprisonment not exceeding 15 years. The imposition of a penalty of life imprisonment is anachronistic. The thing that slightly concerns me - I will wait to hear Deputy Jonathan O'Brien's view on it - is, if we agree to the amendment, the law will remain as it is at present so that men can be prosecuted and imprisoned for life in respect of incest and women can be prosecuted and imprisoned for three to seven years. My view is it would have been better if the penalty for both was three to seven years. It is a bit of a dilemma and I am interested to hear from the Tánaiste and Deputy Jonathan O'Brien.

I apologise for being late. I thought there were four matters on the Topical Issue debate but there were only three.

The amendment was discussed on Committee Stage. I pulled out the transcript of the Committee Stage debate this afternoon to make sure I was correct in what I am about to say. We raised the issue with the Tánaiste on Committee Stage . She gave a commitment that she would look at it for Report Stage. She said, "It is an interesting issue and I will examine it. The gender anomaly was upheld as recently as 2012." The Tánaiste went on to explain the case in question, which we discussed on Committee Stage. My amendment would remove what the Tánaiste is proposing, which is that:

Any female person of or above the age of 17 years who with consent permits her grandfather, father, brother or son to have carnal knowledge of her (knowing him to be her grandfather, father, brother or son, as the case may be) shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.

I understand very well that this is the current situation if one is male. If this amendment was accepted and if the Tánaiste's proposal in section 28 was withdrawn, incest would still be illegal on the Statute Book for any female person of or above 17 years. The penalty, as has been outlined by Deputy O'Callaghan, would revert to the penalty within the 1908 legislation, which is a term of three to seven years. This is not a case of removing the section and it suddenly becoming legal. It would still be illegal to have carnal knowledge of one's grandfather, father, brother or son. The question we are being asked by the Minister is to increase the sentence from three to seven years to up to life imprisonment.

Given that I raised the matter on Committee Stage and that we are now on Report Stage and the Tánaiste has not brought forward her own amendment, I do not believe she has demonstrated that it would be in the public interest to increase the sentence of three to seven years to up to life imprisonment. The Minister has not articulated her position. The only rationale she gave on Committee Stage was when she said, "The male offence would still be life. That is my point. We were equating the offences." I understand that the Tánaiste is trying to equate the offences but she still has not demonstrated what public good would be served by increasing the sentence from three to seven years to up to life imprisonment. We are not talking about sex which is not consensual. Let us be very clear on that. There is adequate legislation to deal with somebody who is having sex without consent. We are talking about a female over the age of 17 years who, with consent, would still be committing an illegal act and would still be liable for a prison term of three to seven years as opposed to life imprisonment. Unless the Minister can demonstrate the rationale behind the increased prison sentence, it is my intention to press the amendment.

I will go into some detail on this in order to be helpful. Sections 27 and 28 simply update and restate the existing provisions in the Punishment of Incest Act 1908 in so far as the offence of incest is committed by a male or female. We are trying to update the language and provisions of a very old Act. It will bring the penalty for incest by a female into line with that of a male. The Deputy's amendment would have the effect of bringing the sentence for a female to up to seven years and leaving that for a male at up to life. That inequality would remain if we went along with the Deputy's amendment.

I take the point Deputy O'Callaghan made and I will come back to that in terms of the overall approach to incest in this part of the Bill. There are two further distinctions between the offences, and the first relates to consent. The Deputy is suggesting that the entire section should be removed but, where the offence is committed by a male, it is not a defence that the female consented. The offence by a female does not provide for a similar provision. The reason for this is because the nature of the offence of incest by a female is different from that committed by a male. The offence by a female is committed where she permits a specified male relative to have carnal knowledge of her and relying on defence of consent on the part of the male would not arise. Incest by a male is committed where he has carnal knowledge of a specified female relative. In this case, it must be specified that consent by the female is not a defence. In fact, the female party to the act, by consenting, is liable for the offence under section 28. If there is no consent on either party, the offence is not one of incest but it is one of rape under the Criminal Law (Rape)(Amendment) Act.

I have already referred to, and the Deputy has quoted from it, the Supreme Court judgment regarding this where the Supreme Court upheld the gender distinctions, so I will not go into the detail of that again. The Chief Justice noted previous case law which held that the Oireachtas is entitled, on public policy grounds, to protect underage females from the risk of pregnancy - this was the Chief Justice and the Supreme Court saying this - as the female carries a greater burden from the act, emotionally, physically and psychologically, should she become pregnant. Similar policy grounds were also the basis for the distinction in section 2 of the 1908 Act. That is in regard to consent.

If we do what Deputy O'Brien is suggesting in his amendment, namely, delete this section, the consequence of that is that we would retain the existing provisions under the Act along with the difference in penalties. We would not go back to equating the penalties but to having a life sentence for a male and a seven-year sentence for a female.

I want to make some general points about this issue. The amendments I am tabling close an anomaly relating to the penalty which applies depending on whether the offender is a male or a female. What I am suggesting changes that. The fact is the offence of incest specifically recognises the harms and exploitation associated with intrafamilial sexual abuse and, as we know, it can extend beyond the victims to the entire family unit, and there have been some prosecutions. The purpose of the provision is to equalise the penalties between offences committed by males and those committed by females, as well as taking the opportunity to modernise some of the language in the Act.

However, I would make the general point that in so far as Deputies have expressed concerns about the framing of offences, as Deputies O'Callaghan and O'Brien have done, this is an area of law that we could look at again if Deputies consider that appropriate. I have looked at it. It is a very complex legal area and I do not believe that I can do it in this Bill. It would be an issue for other sexual offences legislation. If we were to reform this, that would require a good deal of consultation and discussion on the change in the penalties that I am advised we would have to consider. This was done in England, for example, and the whole issue of incest was completely taken out of sexual offences legislation and a separate Bill was brought forward. Quite an amount of work would need to be done on that. What I am doing here is equating penalties, dealing with the consent issues and describing why they are slightly different for males and females, and I am not going further than that.

I would ask Deputies to consider not pressing amendment on the basis that this is a very complex area and that I cannot go further than this in the legislation and in the amendments I am proposing, which are doing what I have set out.

I agree completely that this is a very complex area. That is why I would have preferred if the Minister did not insert this particular section and she had dealt with the issue in its entirety, as she suggested, in new legislation. While I do not doubt her sincerity in dealing with incest in separate legislation, the reality is, if this legislation passes, we will be increasing the penalty. I want to be clear on this. The section she proposes to insert - she referred to the Supreme Court case which dealt with females under the age of 17 - deals with females over the age of 17. To refer to the Supreme Court case to justify the insertion of this section is wrong at a minimum and misleading at best. We are referring to women over the age of 17. The Minister still has not demonstrated to me the public good that would be served by increasing a sentence ranging from a maximum of seven years to a minimum of three years to a life sentence. The only rationale she has given is that she wants to equate the sentences that would apply to the male and the female. The Minster should do what she suggested she wanted to do and that is deal with this issue in separate legislation. Let us make no mistake about this, we are not saying that if this section is removed, there will be no penalty. The penalty of a sentence of three to seven years will still be in place. I will be pressing my amendment because I do not believe the Minister has demonstrated what public good would be served by increasing that sentence to life in prison. If the Minister wants to deal with this as a separate issue, let us deal with it as a separate issue in separate legislation.

The Deputy's amendment proposes the removal of the section.

That would mean we would revert to the 1908 Act.

Yes, but that would not achieve what the Deputy has spoken about. The penalty would be left as a life sentence for the male. On the point Deputy made, his amendment would not result in making that change. I would just make that point.

I would change it for the female.

However, it would not change it for the male and we would revert to the earlier Act. I am just pointing that out.

It is a very complex area of law dealing with very complex family situations. I would be concerned that there would be unknown or unintended consequences in amending this area of law in the manner suggested. I would ask the Deputy to take on board what I have said with respect to what they have done in the UK where they have dealt with this legislation. We would need to consult on it and examine the area as opposed to taking the route the Deputy has suggested. I give a commitment that we would look at this area and seek consultation on it. I would ask the Deputy not to press this amendment.

Just to be clear in order that there are not any surprises, I agree with Deputy O'Brien. In terms of changing the law, the law is being changed if Deputy O'Brien's amendment is defeated. It is being changed if section 28 is introduced. The law at present provides that there is life imprisonment for a male who is convicted of incest but the sentence is three to seven years for a woman who is convicted of incest. That is the law today and it will continue to be law if the Deputy's amendment is passed.

I note what the Minister said. It is a complicated area and I have given it some thought. On first principles, I believe imposing a potential sentence of life imprisonment on a female for incest is excessive. Back in Edwardian times the penalty was three to seven years and the penalty for men was three to seven years. There was a reason in 2009 why the woman in Roscommon was prosecuted for incest. It was because there were other areas of the law that were not available. As I mentioned at the outset, sections 16 and 17 are broader sections that cover offences which were not covered previously. If a mother was inappropriately having sex with her son who was under 17 years of age, that is something that can be prosecuted and penalised for up to 15 years at present. My inclination is to support Deputy O'Brien's amendment.

Amendment put.

In accordance with Standing Order 72, as the required number of tellers have not been appointed for the Níl side, I declare the amendment carried.

Amendment declared carried.

Amendment No. 26 arises out of Committee Stage proceedings.

I move amendment No. 26:

In page 22, between lines 21 and 22, to insert the following:

Amendment of section 1 of Act of 1992

33. Section 1(4) of the Act of 1992 is amended in paragraph (a) by the substitution of “(except sections 14A, 15, 16(1)(b), 18 and 19A)” for “(except sections 15, 16(1)(b) and 18)”.”.

This amendment amends the interpretation section of the Criminal Evidence Act 1992 so that the new provisions contained in the Bill relating to the use of screens and the regulation of the disclosure of counselling records will only apply to criminal proceedings that are initiated after the commencement of those provisions. This is to ensure that rules do not change in respect of ongoing proceedings as to do so may result in successful legal challenge. However, the provisions being introduced in the Bill will prohibit the wearing of wigs and gowns in proceedings involving children and the prohibition on the cross-examination of victims of sexual offences by an accused will apply to proceedings at the time of commencement. It is a straightforward amendment.

Amendment agreed to.

Amendment No. 27 in the names of Deputies Shortall and Catherine Murphy arises out of Committee Stage proceedings.

I move amendment No. 27:

In page 23, line 12, to delete “under the age of 18 years”.

This section provides for persons under the age of 18 to give evidence from behind a screen and in a very difficult case and traumatic circumstances for a young person it is important that he or she be given the opportunity to do that and not have to face the perpetrator of the crime. Rape Crisis Network Ireland has made the case strongly that it would make sense to allow this provision for anybody, without an age limit.

The Bill acknowledges the need to consider the public interest in encouraging the reporting of sexual offences in section 38. Given the trauma associated with sexual offences and the difficulties which victims often face in coming forward, it is important that the courts make it as easy as possible for victims to give evidence. Removing the age limitations from this section would allow all those who wish to give evidence from behind a screen to do so rather than only those younger than 18 years.

The existing amendment makes provision for the court to remove this entitlement if it believes it is in the interest of justice to do so. I appeal strongly to the Tánaiste to accept this amendment, which allows for the extension of the arrangement to give evidence behind a screen to all persons in those circumstances.

Amendment No. 27 removes the age restriction from the proposed section 14A to the Criminal Evidence Act 1992, which allows for evidence to be given from behind a screen by a person under the age of 18 years. In this case the provision will apply to complainants and witnesses under that age recognising the special protection that should be afforded to children. A similar provision is to be introduced into the Criminal Justice (Victims of Crime) Bill 2016 which, although not age restricted, will apply to adults and will be limited to victims of crime. I do not believe it would be appropriate to extend the provision to all adult witnesses and nor does the victims' directive, a European Union directive. That Bill will address several matters relating to criminal evidence and victims generally. This issue will be included in the forthcoming Criminal Justice (Victims of Crime) Bill 2016 and the issues raised by the Deputy would be appropriately addressed in that context. That Bill has been published and will come before the House in this term.

It is unfortunate that the Tánaiste is not availing of the opportunity to extend this arrangement to all persons. In sexual offences cases the issues are very sensitive. It is very difficult for people to come forward and we know that people are slow to come forward so that when they do, they should be afforded every protection. I urge the Tánaiste to rethink her decision.

The Deputy should accept that this will be dealt with in all its complexity in the Criminal Justice (Victims of Crime) Bill 2016, which will be here this term. That is the appropriate place to deal with her suggestion. We are doing it here for children, those younger than 18 years, and there are issues that arise in respect of witnesses. I take the Deputy's point about victims and giving them as much protection as we can. The Criminal Justice (Victims of Crime) Bill 2016 will do that and change the balance in much of the criminal justice law.

Amendment put and declared lost.

Amendment No. 28 in the name of the Minister arises out of Committee proceedings. Amendments Nos. 28 to 51, inclusive, are related. Amendment No. 50 is a physical alternative to amendment No. 49. Amendments Nos. 28 to 51, inclusive, may be discussed together, by agreement.

I move amendment No. 28:

In page 26, between lines 19 and 20, to insert the following:

“(5) Where no disclosure application has been made by the accused in respect of a counselling record under subsection (3) and the prosecutor believes that it is in the interests of justice that the record should be disclosed, the prosecutor may make a disclosure application in writing to the court.

(6) Where the prosecutor intends to make a disclosure application under subsection (5), he or she shall, not later than the beginning of such period as may be prescribed in rules of court, notify the person who has possession or control of the relevant record, the complainant, the accused and any other person to whom the prosecutor believes the counselling record relates of his or her intention to make the application.”.

This amendment inserts two new subsections to section 38 of the Bill, which makes provision for the regulation of the disclosure of counselling records by providing for pre-trial hearings whereby the relevance of a record to an issue at trial can be determined by a judge. Currently under the proposed section the hearing will occur where an accused makes an application for the disclosure of the records in question. The amendments I am now proposing will also allow for the prosecutor to make the application for the disclosure of the records. This, however, will arise only where the accused, whether by omission or for any other reason, fails to make the application for disclosure and the prosecutor has in his or her possession, or has knowledge of, records which he or she believes should in the interests of justice be disclosed. It is effectively a safety mechanism to ensure that the integrity of the criminal process is maintained. Some renumbering is needed as a result and the other amendments are technical amendments to that effect.

My amendment No. 50 would ensure that complainants have access to legal advice on the issue of disclosure of counselling notes and records before signing a waiver of their right to non-disclosure. The traumatic circumstances of being involved in a sexual offences case make it very difficult to present in court. If in the context of the case a request is made to make counselling records available it is important that people are made fully aware of the implications of doing that.

For that reason, I think provision should be made for independent legal advice to be given to the person concerned. I encourage the Tánaiste to accept this amendment.

I do not think the Tánaiste has adequately explained why amendment No. 28 has been introduced. I am not sure why we should be allowing the prosecution in a sexual assault case to access somebody's counselling records. I would like to hear a bit more about that. The Tánaiste's amendment will allow the prosecution in sexual offences cases to apply for the disclosure of counselling records even if the defence has not looked for them. We have tabled amendment No. 1 to amendment No. 28 to provide that, if what the Tánaiste is proposing goes ahead, there should be a review of the operation of this measure "not later than two years after the commencement of this section". Such a review would look at the impact this aspect of the legislation is having on people involved in rape or sexual assault cases. This would enable us to ensure it is operating as intended and is not leading to the disclosure of counselling records becoming the norm, which could deter victims from coming forward. I think the Tánaiste should agree to review this, at least. It seems to be setting a precedent that I am not sure we want to set.

A number of non-governmental organisations and groups have raised concerns about section 38 of the Bill, which regulates the disclosure of the content of third-party counselling or therapy records in sexual offences trials. The Tánaiste said during the Seanad debate on this Bill that she expects to be in a position to address some of those concerns. One concern relates to the use of counselling records to question the competence of a potential witness. I suggest that our amendment No. 51, which proposes that "records relating to therapy or counselling shall form no part, partial or otherwise, of any assessment regarding a relevant record likely to be relevant to an issue at trial or to the competence of a complainant or witness to testify", would remove any doubt in that regard.

I support amendment No. 28, which has been proposed by the Tánaiste. It is important to recall what the function of a prosecutor in a criminal trial is. The function of a prosecutor here, unlike in America, should not be to adamantly pursue a guilty conviction. His or her function should be to put the evidence fairly before the jury so that it can determine whether the accused is innocent or guilty. My reading of the amendment that has been proposed by the Tánaiste is that it provides that if a prosecutor in a case becomes aware of a record that should be disclosed to the other side in the interests of justice, then it should be disclosed. The alternative is for there to be no statutory requirement for such disclosure. If the prosecution is aware of any evidence that might be to the benefit of the accused in the trial if it were available to the accused, it is important for the prosecution to make that evidence available to the other side and the matter should then be put before the jury.

I have given a great deal of consideration to amendment No. 50 in the name of Deputy Shortall. I am slightly concerned about her proposal that the individual has to be "offered a reasonable opportunity to obtain independent legal advice on the issue of disclosure rights". On balance, I think such a provision would probably confuse the matter. It would ensure that when an individual is asked to sign something with regard to disclosure, a mechanism will have to be put in place to give him or her an opportunity to avail of and receive independent legal advice. If it is the case that he or she signs something under duress, or he or she is pressurised into doing so, he or she should be able to say afterwards that this happened. Ultimately, it is important in any criminal prosecution for all relevant evidence put forward by the complainant relating to the guilt or innocence of the accused to be before the trial. The consequences of these matters for both parties - the complainant and the accused - can be extremely severe.

I remind Deputy Coppinger that the prosecution receives these records as part of the criminal investigation when it is making a decision on whether prosecution should take place. The concern that an accused may seek to delay a trial by not making an application is something that needs to be considered as well.

One of the concerns I have with Deputy Shortall's amendment No. 50 relates to its potential to undermine the independent rights of individuals in these cases to make their own decisions on whether records relating to them can be disclosed. The application process is being introduced to ensure relevant records only are disclosed. Obviously, this should not undermine each individual's right to allow disclosure outside that process or to give rise to legal argument on whether a statutory requirement has been met. I recognise that amendment No. 50 merely seeks to afford the opportunity to obtain advice. I am also aware that there is concern that victims might be pressurised to waive consent. A number of processes and procedures will need to be put in place prior to the commencement of section 38. In that context, I have asked for consideration to be given to the information that is to be provided to victims with respect to the disclosure of counselling records. This information should include information on the right of a victim to seek legal advice prior to waiving his or her consent. I can build that into the processes and procedures prior to the commencement of section 38.

The second aspect of amendment No. 50 concerns child complainants. I fully agree that child complainants warrant the fullest protection possible. I am satisfied that the provisions contained in subsection (8) of the Bill offer adequate protection without the need for the further provision that has been proposed. As Deputy O'Callaghan has suggested, this further provision would bring some unnecessary confusion to the process. I remind the House that I introduced an amendment to subsection (8) on Committee Stage to require the court to take account of "the likelihood that disclosing, or requiring the disclosure of, the record will cause harm to the complainant". This will apply to all complainants and not just to children, although the fact that a complainant is a child will be of relevance in determining the likelihood of harm.

Amendment No. 51, in the name of Deputy Jonathan O'Brien, seeks to remove counselling records from any assessment under the new provision. The purpose of section 38 is to regulate the disclosure of counselling records and to determine their relevance to the issue at trial. This process will be undertaken by a judge as part of a pre-trial process. The entire removal of counselling records from the process could give rise to a real risk of an unfair trial and could be open to legal and constitutional challenge.

I think I have made the main points I wanted to make on the various amendments. I hope the Deputies can support the amendments in my name. They will ensure that if an individual fails to make an application for disclosure, and the prosecutor is aware that there are records which are likely to be relevant to the issue at trial, the prosecutor may make an application for a pre-trial hearing. The disclosure or otherwise of the records, and the conditions attached to any such disclosure, will remain a matter for the court. I think I have dealt with Deputy Shortall's point by suggesting a way of approaching it.

I am also proposing amendment No. 42, which proposes to replace the word "trial" with the words "criminal proceedings for which the record has been disclosed" in subsection 12(b) of this section. The purpose of this amendment is to ensure any records used at a trial would also be available for any additional criminal proceedings for which the record was initially disclosed; for instance, if the case were to be appealed.

Finally, I would like to make a technical point with regard to Deputy Coppinger's amendment. She has not included the subsequent changes that are needed. This would have an impact on the ability to commence the section. It is a technical point.

Could the Minister outline the safeguards that are being provided to ensure any counselling or therapy records that are released will not be used to question the competence of a complainant or a witness who is testifying?

I would like to have further information, although we have limited time to discuss this. When somebody who has potentially been, or who claims they have been, the victim of rape or a sexual assault goes to see a therapist or a counsellor, I would have thought that was a completely private discussion where somebody gives their most personal thoughts and feelings. Yet, it is proposed that the prosecution could potentially use what is said to a therapist or a counsellor against that person. I can foresee many situations where that might happen. If the victim knew the person they were accusing of rape or sexual assault, and said things about that person, I could foresee many things that might then be used against the victim. I am surprised this is being proposed and agreed by different organisations, which is why I asked for a review. The Minister said there is some technicality with the amendment but perhaps it is one she could just agree to.

In response to Deputy Jonathan O'Brien, the issue of competence to testify was removed on Committee Stage and is gone.

In regard to Deputy Coppinger's point, there has been a lot of discussion about this whole issue of counselling records. The reality of what has been happening in recent times is that there has been no regulation in this regard. Records have been requested but, because it is unregulated, there has been huge concern in regard to private records. People go to a counsellor assuming that the discussion is private and that they will not end up in the situation the Deputy described. People working in the area have put a lot of work into this issue and want to see greater regulation and protection for victims, which is why we are coming forward with this legislation in order to regulate the issue. It is a protection for those appearing in court and a protection around counselling records. It is a regulation of this area which is not there at present and which most of the groups working with victims have been quite concerned about. What we are always trying to do, obviously, is to get a fair balance between privacy and a person's right to a fair trial. There are always competing rights which must be balanced. We are trying to deal with this issue of the availability of counselling records in a way that is fair.

I move amendment No. 1 to amendment No. 28:

To insert the following new subsection after subsection (6):

“(7) The Minister for Justice and Equality shall, not later than two years after the commencement of this section, review its operation and report thereon to both Houses of the Oireachtas.”.

Amendment to amendment put and declared lost.
Amendment agreed to.

I move amendment No. 29:

In page 26, line 20, to delete “(5) The” and substitute “(7) The”.

Amendment agreed to.

I move amendment No. 30:

In page 26, line 23, to delete “(6) The” and substitute “(8) The”.

Amendment agreed to.

I move amendment No. 31:

In page 26, line 27, to delete “(7) The” and substitute “(9) The”.

Amendment agreed to.

I move amendment No. 32:

In page 26, line 30, to delete “subsection (6)” and substitute “subsection (8)”.

Amendment agreed to.

I move amendment No. 33:

In page 26, line 31, to delete “(8) In” and substitute “(10) In”.

Amendment agreed to.

I move amendment No. 34:

In page 26, line 31, to delete “subsection (6)” and substitute “subsection (8)”.

Amendment agreed to.

I move amendment No. 35:

In page 26, line 33, to delete “subsection (9)” and substitute “subsection (11)”.

Amendment agreed to.

I move amendment No. 36:

In page 27, line 7, to delete “(9)(a) Subject” and substitute “(11)(a) Subject”.

Amendment agreed to.

I move amendment No. 37:

In page 27, line 7, to delete “subsection (10)” and substitute “subsection (12)”.

Amendment agreed to.

I move amendment No. 38:

In page 27, line 8, to delete “subsection (6)” and substitute “subsection (8)”.

Amendment agreed to.

I move amendment No. 39:

In page 27, line 14, to delete “(10)(a) Where” and substitute “(12)(a) Where”.

Amendment agreed to.

I move amendment No. 40:

In page 27, line 14, to delete “subsection (9)” and substitute “subsection (11)”.

Amendment agreed to.

I move amendment No. 41:

In page 27, line 20, to delete “subsection (9)” and substitute “subsection (11)”.

Amendment agreed to.

I move amendment No. 42:

In page 27, line 37, to delete “trial” and substitute “criminal proceedings for which the record has been disclosed”.

Amendment agreed to.

I move amendment No. 43:

In page 27, line 38, to delete “(11) The” and substitute “(13) The”.

Amendment agreed to.

I move amendment No. 44:

In page 27, line 40, to delete “subsection (10)” and substitute “subsection (12)”.

Amendment agreed to.

I move amendment No. 45:

In page 28, line 1, to delete “(12)(a) Subject” and substitute “(14)(a) Subject”.

Amendment agreed to.

I move amendment No. 46:

In page 28, line 7, to delete “(13) For” and substitute “(15) For”.

Amendment agreed to.

I move amendment No. 47:

In page 28, line 7, to delete “subsection (6)” and substitute “subsection (8)”.

Amendment agreed to.

I move amendment No. 48:

In page 28, line 11, to delete “(14) In” and substitute “(16) In”.

Amendment agreed to.

I move amendment No. 49:

In page 28, line 16, to delete “(15) This” and substitute “(17) This”.

Amendment agreed to.

As amendment No. 49 has been agreed, amendment No. 50 cannot be moved .

Amendments Nos. 50 to 52, inclusive, not moved.

I move amendment No. 53:

In page 30, between lines 13 and 14, to insert the following

Non-consent to sexual activity

44. An individual is to be taken not to have consented to sexual activity where-

(a) the defendant intentionally deceived the complainant as to the nature or purpose of sexual activity,

(b) the defendant intentionally induced the complainant to consent to sexual activity by impersonating a person known personally to the complainant,

(c) the complainant submits to sexual activity as a result of violence or threats of violence towards the complainant or towards a third party,

(d) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act,

(e) the complainant submits to sexual activity as a result of threats of serious harm or serious detriment of any type to the complainant or a third party,

(f) the complainant was asleep or otherwise unconscious at the time of the relevant act,

(g) the complainant was too affected by alcohol or drugs to freely agree to sexual activity,

(h) agreement is expressed by a third party not the complainant,

(i) the complainant having originally consented to engage in sexual activity expresses by words or conduct a lack of agreement to continue to engage in the activity,

(j) the complainant submits to sexual activity because of the abuse of a position of authority or trust.”.

Amendment put and declared lost.
Amendment No. 54 not moved.

I move amendment No. 55:

In page 33, between lines 6 and 7, to insert the following:

Amendment of Act of 1990

47. The Act of 1990 is amended by the substitution of the following section for section 9:

9. (1) A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.

(2) A person does not consent to a sexual act if-

(a) he or she permits the act to take place or submits to it because of the application of force to him or her or to some other person, or because of the threat of the application of force to him or her or to some other person, or because of a well-founded fear that force may be applied to him or her or to some other person,

(b) he or she is asleep or unconscious,

(c) he or she is incapable of consenting because of the effect of alcohol or some other drug,

(d) he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act,

(e) he or she is mistaken as to the nature and purpose of the act,

(f) he or she is mistaken as to the identity of any other person involved in the act,

(g) he or she is being unlawfully detained at the time at which the act takes place,

(h) the only expression or indication of consent or agreement to the act comes from somebody other than the person himself or herself.

(3) This section does not limit the circumstances in which it may be established that a person did not consent to a sexual act.

(4) Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place.

(5) Any failure or omission on the part of a person to offer resistance to an act does not of itself constitute consent to that act.

(6) In this section-

‘sexual act’ means-

(a) an act consisting of-

(i) sexual intercourse, or

(ii) buggery,

(b) an act described in section 3(1) or 4(1) of this Act, or

(c) an act which if done without consent would constitute a sexual assault;

‘sexual intercourse’ shall be construed in accordance with section 1(2) of the Principal Act.”.”.

Amendment agreed to.
Bill recommitted in respect of amendment No. 56.

I move amendment No. 56:

In page 34, to delete lines 1 to 22 and substitute the following:

Amendment of Act of 2001

49. The Act of 2001 is amended-

(a) in section 29, by the insertion of the following subsection:

“(6) In addition to the conditions referred to in subsection (1)(b), a sentence involving post-release supervision imposed after the commencement of this subsection shall include a condition requiring the sex offender to attend all appointments with the probation officer whose supervision he or she is under and to comply with the lawful instructions of that officer.”,

(b) by the insertion of the following section after section 30:

Power of court to amend conditions or include new conditions

30A. (1) In any case where a court has imposed on a sex offender, for an offence committed after the commencement of this section, a sentence involving post-release supervision, the court may, on the application of a probation officer not more than one month before the date of the offender’s intended release from prison or any time during the supervision period, amend any condition for securing that supervision referred to in section 29(1)(b) or additional condition referred to under section 30 or include one or more further conditions pursuant to either of the aforesaid sections.

(2) In any case where a court has imposed on a sex offender, for an offence committed before the commencement of this section, a sentence involving post-release supervision, the court may, on the application of a probation officer not more than one month before the date of the offender’s intended release from prison or any time during the supervision period, amend any condition or include one or more further conditions pursuant to section 29(1)(b) where such conditions are necessary for securing that supervision.

(3) Subsection (2) shall apply in respect of post-release supervision orders extant at the time of the commencement of this section.

(4) Any condition referred to in subsection (1) or (2), whether an amended condition or a new condition, shall have the same effect as a condition included in a sentence involving post-release supervision.

(5) In this section “the date of the sex offender’s release from prison” means the date on which the sentence of imprisonment imposed on the sex offender expires, or as the case may be, his or her remission from the sentence begins.”,

(c) in the Schedule to the Act of 2001-

(i) in paragraph 16 by-

(I) the insertion of the following subparagraph after subparagraph (b):

“(ba) section 4A (child prostitution and child pornography);”,

(II) the insertion of the following subparagraph after subparagraph (c):

“(ca) section 5A (participation of child in pornographic performance);”,

and

(ii) the insertion of the following paragraph after paragraph 17:

“17A. An offence under the following provisions of the Criminal Law (Sexual Offences) Act 2017:

(a) section 3 (obtaining, providing etc. a child for purpose of sexual exploitation);

(b) section 4 (invitation etc. to sexual touching);

(c) section 5 (sexual activity in presence of child);

(d) section 6 (causing child to watch sexual activity);

(e) section 7 (meeting child for purpose of sexual exploitation);

(f) section 8 (use of information and communication technology to facilitate sexual exploitation of child);

(g) section 21 (sexual act with protected person);

(h) section 22 (offence against relevant person by person in authority).”.”.

This is intended to address the attachment of conditions to the post-release supervision of sex offenders under the Sex Offenders Act 2001. Under Part 5 of the Sex Offenders Act, a court can impose on a sex offender a sentence involving post-release supervision. This is imposed at the time an offender is being sentenced but will only take effect from the release of the offender from whatever prison sentence has been imposed. The supervision on release is undertaken by the Probation Service and the offender is required to comply with such conditions as are specified to secure the supervision. Failure to comply with a condition is a criminal offence punishable by imprisonment for a maximum term of 12 months.

We have recently been made aware that, in some very few cases, an order is made without conditions being imposed. This means that if an offender does not co-operate with a supervising probation officer, no offence is committed and, in effect, a breach of the order cannot be sought. This amendment will amend the relevant section to provide that a sentence involving post-release supervision shall automatically include a condition requiring the sex offender to attend all appointments with his or her probation officer, whose supervision he or she is under, and to comply with the lawful instructions of that officer.

Effectively, all orders for post-release supervision will contain automatic and inhering conditions as set out in paragraph (a) of this amendment. Paragraph (b) allows a probation officer to apply to the court one month prior to the release of the offender to amend any of the conditions imposed in regard to post-release supervision. This recognises that, depending on the length of the prison sentence, the type of conditions which are necessary to secure the post-release supervision of the offender may have changed from the time of the original sentence, as the offender's needs may have changed over that time. I hope I have the support of the House in this regard.

Amendment agreed to.
Bill reported with amendment.
Amendment No. 57 not moved.

I move amendment No. 58:

In page 38, after line 12, to insert the following:

“PART 9

CHANGING SEXIST AND ANTI-LGBTQ ATTITUDES

56. The Minister for Justice and Equality is to report on measures that could be taken by the State to combat sexist and anti-LGBTQ attitudes in society, including: a review of sex education in schools and colleges; classes on consent, respect for women and LGBTQ people and the damaging effects and exploitative nature of the sex industry; and public awareness campaigns on consent and to discourage men from buying sex, within six months of the enactment of this Act.”.

The purpose of the amendment is to tie in with the stated intention of the Minister in introducing criminalisation of the purchase of sex. We are proposing that measures need to be taken in society to combat sexist and anti-LGBTQ attitudes in society. We are proposing a review of sex education in schools and colleges. Classes on consent are in place at third level but not at second level. There needs to be a discussion about respect for women and LGBTQ people and the damaging effects and exploitative nature of the sex industry. We also need to discourage men from buying sex. In effect, we need a public awareness campaign on consent, and for this to take place within six months of the Act being enacted.

After the Minister put forward her proposal, we proposed other amendments relating to exit strategies. We need to put in place real supports, including financial, language, addiction and welfare supports as well as many other supports, to allow people who want to get out of sex work to do so. If such supports are not in place, the number of vulnerable people involved in prostitution will not reduce. That is the reality.

The amendment also targets demand. There is demand for the purchase of sex. It is created by our culture and society. Basically, our society prioritises the needs of men - 99% of the purchasers of sex are male - and subordinates the needs and desires of women. LGBTQ people are involved in prostitution as well. Of course vulnerable men are involved in sex work too, as are transgender people.

The amendment would seem like common sense if the Minister were serious about bringing about a change in behaviour in society in respect of sex work and prostitution. If that is the goal, these measures are essential.

Amendment No. 59 also calls for a full review of the rights of victims. The provision is found in others aspects of the Bill relating to sexual offences. Free counselling and independent legal advice are among the supports needed for those affected.

The Deputy is proposing to use criminal law relating to sexual offences to pursue a wide range of issues, from equality matters for members of the LGBTQ community to sex education in schools. It is not within the remit of my Department to deal with issues around the purchase of sex. Of course the new offence of criminalising the purchase of sexual services is dealt with. We have already introduced an amendment to deal with a review.

Several of the matters raised by Deputy Coppinger are relevant to ongoing campaigns. Awareness raising campaigns are run by my Department and the National Office for the Prevention of Sexual, Domestic and Gender-based Violence. Recently, that office launched a national awareness-raising campaign, "What would you do?", as part of the second national strategy. Considerable funding is going into the campaign and it is under ongoing review. The campaigns are aimed at raising awareness of domestic and sexual violence. Moreover, they are aimed at bringing about change in long-established societal behaviours and attitudes. The idea is to activate people with the aim of decreasing and preventing this violence. Such education and awareness will be underpinned by legislative provisions, including the provisions of this Bill as well as the Domestic Violence Bill, which I published last week.

Deputy Coppinger's amendment is outside the scope of the Bill. Clearly, that is not to show any ambivalence in standing up to domestic, sexual or gender-based violence. I cannot accept the amendment. It is not within my remit to report on a review of sex education in schools and colleges. That is one function the amendment seeks to provide for. Clearly, everyone in the House is agreed with the basic proposition that we should take every possible action to deal with sexual and gender-based violence and to withstand all forms of it. I believe this can be done by a variety of actions, activities and processes as well as strong legislation that we are committed to introducing. It is a broad amendment and, unfortunately, I am not in a position to accept it.

It is within the scope available to the Minister. She is the Minister for Justice and Equality. We tabled the amendment because the Minister is bringing in a law aimed at tackling prostitution and the sex industry through criminalising the purchase of sex. However, the Minister is not taking other measures to attempt to reduce the demand for the purchase of sex. We believe it is within the scope of this law. This is the only legislation being brought in to change the laws on prostitution and sex work. However, without this amendment, no attempt is being made to influence change in society. Simply bringing in a law is not going to solve the problem. If this is to be a serious attempt to protect people and to decrease the numbers involved in sex work, the Minister should undertake the measures I have proposed. There should be a discussion about consent, respect and the nature of mutually respectful relationships and so on in the schools and workplaces of our society. I would have thought it was within the scope of the Bill.

Amendment put and declared lost.

I move amendment No. 59:

In page 38, after line 12, to insert the following:

“PART 9

VICTIMS’ RIGHTS

56. The Minister for Justice and Equality is to report to the Dáil on progress in developing a Victims’ Rights’ Bill and on additional measures necessary to fully support and protect victims’ rights, including guaranteed access to free counselling services and free, independent legal advice within three months of the enactment of this Act.”.

Amendment put and declared lost.
Bill, as amended, received for final consideration.
Question put: "That the Bill do now pass."
The Dáil divided: Tá, 94; Staon, 3; Níl, 6.

  • Adams, Gerry.
  • Aylward, Bobby.
  • Bailey, Maria.
  • Barrett, Seán.
  • Brady, John.
  • Brassil, John.
  • Breen, Pat.
  • Brophy, Colm.
  • Broughan, Thomas P.
  • Browne, James.
  • Bruton, Richard.
  • Buckley, Pat.
  • Burke, Peter.
  • Butler, Mary.
  • Byrne, Catherine.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Chambers, Jack.
  • Chambers, Lisa.
  • Collins, Michael.
  • Collins, Niall.
  • Corcoran Kennedy, Marcella.
  • Coveney, Simon.
  • Cowen, Barry.
  • Creed, Michael.
  • Curran, John.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deering, Pat.
  • Doherty, Pearse.
  • Doherty, Regina.
  • Donnelly, Stephen S.
  • Donohoe, Paschal.
  • Doyle, Andrew.
  • Farrell, Alan.
  • Ferris, Martin.
  • Fitzgerald, Frances.
  • Funchion, Kathleen.
  • Grealish, Noel.
  • Griffin, Brendan.
  • Harris, Simon.
  • Harty, Michael.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kelleher, Billy.
  • Kenny, Martin.
  • Kyne, Seán.
  • Lahart, John.
  • Lawless, James.
  • MacSharry, Marc.
  • McGrath, Finian.
  • McLoughlin, Tony.
  • Madigan, Josepha.
  • Martin, Micheál.
  • Mitchell O'Connor, Mary.
  • Mitchell, Denise.
  • Munster, Imelda.
  • Murphy O'Mahony, Margaret.
  • Murphy, Eoghan.
  • Murphy, Eugene.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • Noonan, Michael.
  • Ó Broin, Eoin.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Snodaigh, Aengus.
  • O'Brien, Darragh.
  • O'Brien, Jonathan.
  • O'Callaghan, Jim.
  • O'Connell, Kate.
  • O'Dea, Willie.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Keeffe, Kevin.
  • O'Loughlin, Fiona.
  • O'Reilly, Louise.
  • O'Rourke, Frank.
  • O'Sullivan, Jan.
  • Penrose, Willie.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Rabbitte, Anne.
  • Rock, Noel.
  • Scanlon, Eamon.
  • Stanley, Brian.
  • Stanton, David.
  • Varadkar, Leo.
  • Zappone, Katherine.

Níl

  • Connolly, Catherine.
  • Daly, Clare.
  • Healy, Seamus.
  • Martin, Catherine.
  • Ryan, Eamon.
  • Wallace, Mick.

Staon

  • Barry, Mick.
  • Coppinger, Ruth.
  • Murphy, Paul.
Tellers: Tá, Deputies Regina Doherty and Tony McLoughlin; Níl, Deputies Clare Daly and Mick Wallace.
Question declared carried.