Dáil Éireann debate -
Wednesday, 4 Oct 2023

Vol. 1043 No. 3

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

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

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

I am pleased to bring the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 before the House. The Government approved the drafting of the Bill in July of last year. Following publication of the report on the pre-legislative scrutiny of the general scheme by the Oireachtas joint committee in March, the Bill was published just before the recess in July.

The sexual offences and human trafficking Bill will update our sexual offences legislation and enhance protections for vulnerable victims. It provides for amendments to existing legislation arising from the recommendations of two expert reviews: the Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences, conducted by an expert working group, led by Professor Tom O'Malley, and recommendations from the Law Reform Commission on knowledge or belief concerning consent in rape law.

The Bill will also put a revised new national referral mechanism for victims of human trafficking on a statutory footing, which is key to making sure that those affected can access the supports they need.

In addition, the Bill will amend the Defence Act 1954 to implement recommendations arising from the report of the independent review group on the Defence Forces, which was published earlier this year. Finally, enactment of the Bill will remove the final legislative barriers to Ireland's ratification of the second optional protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.

I am sure Deputies will agree with me that we must do everything in our power to ensure that people impacted by sexual offences and human trafficking are afforded the strongest possible protection and support. I emphasise that development of this legislation is part of ongoing work in my Department to strengthen protections for vulnerable victims. Last week I brought forward a Bill to establish a dedicated agency on domestic, sexual and gender-based violence and I am grateful for the support it has received from across the House. Establishment of the agency is a key element of the third national strategy to combat domestic, sexual and gender-based violence. It will have a range of responsibilities, including the funding and commissioning of domestic, sexual and gender-based violence services, support for the delivery of refuges, and co-ordination of the implementation of the zero tolerance strategy. The agency will be charged with co-ordinating the Government's response to this important area. It will bring the dedicated and expert focus needed to tackle this serious and complex societal issue.

Other recent developments in this area include the establishment of a specialist sexual offences unit in the Office of the Director of Public Prosecutions. Training has been introduced for all staff who come into contact with vulnerable victims.

In order to promote more sustainable service delivery and planning, my Department is also offering multi-annual funding commitments to key NGOs working in this area. These grants cover accompaniment to court, to Garda interviews and to sexual assault treatment units, as well as emotional support and counselling.

The nationwide roll-out of divisional protective services units has ensured that vulnerable victims are dealt with by gardaí who have specialist expertise. A specialist training programme is delivered to all members of these units nationwide, in collaboration with the Garda College. This training on engaging with vulnerable victims includes modules on sexual crime investigation; domestic abuse intervention and investigation; victim engagement; sex offender management; and online child exploitation.

I turn now to the provisions of the sexual offences and human trafficking Bill itself, which I wish to outline.

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

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

Section 7 of the Bill amends the law on consent in rape offences. This was advised by the Law Reform Commission on foot of a detailed analysis, published in November 2019, of the existing rape legislation. It recommended that the law should be reformed in order that the accused's belief in consent should be objectively reasonable. This provision gives effect to the policy intention that a man who has nonconsensual intercourse ought to be acquitted only if his belief that the woman was consenting was objectively reasonable. Any steps taken by the accused to ascertain if the woman was consenting will also be taken into account by the jury in determining whether his belief was reasonable.

This is a key legislative reform; consent cannot and should not simply be assumed. Sexual offences legislation defines consent as free and voluntary agreement to a sexual act. Requiring a belief in consent to be reasonable underscores the need for active communication between sexual partners to ensure that everyone is on the same page. It is easy to check in with a partner to make sure he or she is okay with what is going on. However, as we are all aware, the consequences of not doing so can be devastating.

The rationale for reforming our laws on rape is clear. However, during the course of drafting this Bill, certain legal and practical considerations have arisen. These include a Supreme Court judgment delivered at the end of August, which involved a complex and nuanced judgment on criminal liability in sexual offences. The ramifications of this judgment are under active consideration in my Department and may influence the proposed legislative approach. For this reason, I would like to flag at this juncture that I may bring amendments to this provision on Committee Stage and I will elaborate on the rationale for these at that time.

The remainder of Part 2 of the Bill focuses on the recommendations from the O'Malley review convened by my Department in 2020 to carry out a detailed examination of the criminal justice process. Its report, Review of the Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences, contained many valuable recommendations. This work informed the development of Supporting a Victim's Journey, the implementation plan drawn up by my Department to give effect to these recommendations.

Several of these important reforms have been put in place already. The introduction of preliminary trial hearings has helped to increase efficiency in how trials are run. Potential issues can be identified and solved in advance, allowing trials to proceed on their scheduled dates. This reduces delays and eases what can be a traumatic process for victims. The O'Malley review recommended the use of intermediaries to assess the communication needs of vulnerable witnesses. Intermediaries can advise police, advocates and the court on the steps needed to assist such witnesses to give their best evidence. The professional diploma in intermediary studies at the University of Limerick began last year, with 20 students participating in the first year of the course. Successful graduates are qualified as registered intermediaries.

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

The Bill will also enact a number of recommendations relating to anonymity and the exclusion of the public from sexual offence trials. It goes without saying that these sensitive and difficult trials should not be held in public. The legislative provisions in this regard are being expanded to make sure that there is a legislative basis for excluding members of the public from the courtroom for all sexual offence trials. Provisions which require the sentence or verdict to be delivered in public are also being repealed. To be clear, this does not affect the reporting of such trials, as media representatives are still entitled to be present. What it does is remove nosy neighbours or complete strangers from a courtroom where highly personal and traumatic matters are being discussed. Anonymity provisions are similarly being expanded to ensure that all victims of sexual offences benefit from this. Revised definitions of "broadcast" and "publication" will cover publication by way of social media in order to protect the victim's identity.

This legislation also provides for the anonymity of an accused person, unless and until he or she is convicted of a sexual offence. A core principle of our legal system is that a person is presumed innocent until proven guilty. This is no less true for a person convicted of a sexual offence than for any other person before the courts. Even being prosecuted for a sexual offence can carry a heavy stigma. An accused person should therefore retain their right to anonymity until their guilt has been proven beyond a reasonable doubt, as our criminal justice system requires. I am glad to be bringing these well-considered and evidence-based legislative provisions before this House. They have been specifically designed to support and protect vulnerable victims in sexual offence cases and to ensure that our criminal justice system is more victim-centred. This is a priority for my Department, and our record reflects this.

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

The measures that I have outlined so far relate to the area of sexual offences. I want to turn now to the issue of human trafficking, which is the subject of Part 3 of the Bill. I am sure I speak for us all in condemning this abhorrent crime, which exploits vulnerable people in a particularly ruthless manner. The prevention, detection and prosecution of human trafficking is a priority for my Department. The proposals in this Bill will put a new national referral mechanism, NRM, for the identification of victims of trafficking on a statutory footing. The NRM is the framework through which the State fulfils its obligations to protect and promote the human rights of trafficking victims, working in partnership with civil society. Currently, An Garda Síochána is the sole competent authority for the formal recognition of people as victims of human trafficking. This is not an adequate response. Some victims of trafficking, because of interactions they may have had with law enforcement officials in other jurisdictions, may have a perception that police cannot be trusted.

Our new model acknowledges that other State bodies and NGOs have an important role in identifying victims of human trafficking and referring them to the NRM. The Bill additionally designates a number of Ministers as competent authorities, as well as Tusla, the Health Service Executive and the Workplace Relations Commission. In addition, NGOs that have been designated as trusted partners will be able to refer victims for formal identification. This provides an alternative and trusted pathway to recognition via civil society organisations which support victims. It will make it easier for victims of human trafficking to come forward and be identified so they can access all of the supports and resources that are available to them. International best practice has shown that a single NRM for all victims is the optimum vehicle to support as many victims as possible through a universal support framework. The Bill will allow for the sharing of information between agencies to identify victims. Accommodation, medical services, legal aid, advice and other supports will be provided to the victim. The Bill also provides that a victim of human trafficking will not be deported for immigration offences committed while being trafficked.

It is not the intention of this legislation to change the immigration laws of Ireland or the permissions required to remain. The purpose of the Bill is to put the NRM on a statutory footing. It also ensures that a person cannot be prosecuted for his or her role in his or her own trafficking. Deputies should be assured that consideration of other criminal offences will be on a case-by-case basis. This will continue to be done in the context of the Director of Public Prosecutions' prosecutorial guidelines. In tandem with these legislative provisions, work is also advancing on the development of a new national action plan on human trafficking. I expect to publish this before the end of the year. This new action plan sets out how the multi-agency work to combat this criminal activity and support victims will be taken forward. These measures will help to: combat trafficking; create a more victim-centred approach to identifying and supporting victims; and raise awareness and provide training for those who need it. Putting the NRM on a statutory footing is a clear demonstration of Ireland's commitment to addressing the scourge of human trafficking and will strengthen Ireland's international reputation in this area.

Part 4 of the Bill relates to amendments to the Defence Act 1954. Deputies will recall the publication earlier this year of the report of the independent review group on the Defence Forces. The report highlighted a catalogue of unacceptable behaviour in that organisation over recent decades, including bullying, discrimination, harassment and sexual harassment. The Government committed to the implementation of the group's recommendations as a matter of priority, in view of the seriousness of the issues raised.

The amendments to the Defence Act 1954 that relate to sexual offences are to ensure that sexual assault, aggravated sexual assault, rape and rape under section 4 offences that take place in this jurisdiction will be dealt with by An Garda Síochána and the civilian courts. Military law will continue to apply where such offences take place overseas or where An Garda Síochána does not have jurisdiction. The Minister, Deputy McEntee, our colleague, the Tánaiste and Minister for Defence and I were in agreement that the legislative amendments recommended by the group should be progressed as a matter of urgency. We offered that the Criminal Law (Sexual Offences and Human Trafficking) Bill could be an appropriate and timely vehicle to do so. Progressing these amendments in the Bill will ensure that sexual offences are no longer dealt with under military law or in the court martial system. Women and men in the Defence Forces will be able to access justice in civilian courts in the same way as all other citizens.

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

I reiterate the importance of the Bill and the package of measures it sets out. In various ways these are all designed to aid and assist vulnerable victims, whether it be to access supports, reduce trauma, strengthen protections during a trial or, more broadly, to ensure the criminal justice system is optimised and accessible for all. These measures are an important step forward in ensuring a victim-centred justice system, which is a key priority for me and for the Department. I look forward to the contributions of Deputies in the course of our debate and will be happy to address any aspects of the legislation that they wish to raise today and subsequently. I commend the Bill to the House.

Deputy Pa Daly

This is an important Bill with a number of long overdue reforms. I want to mention the hard work of a number of campaigners, including the Women of Honour. I note the Defence Forces section of the Bills digest includes reference to the independent review group on dignity and equality issues in Defence Forces. The Bill contains amendments to sections 169 and 192 of the 1954 Act. I pay tribute to the Women of Honour for pushing their case in order that we have better justice. Their campaign will continue, no doubt.

We have also seen many others in the courts bravely waiving their right to anonymity in sexual offences cases to encourage other women to come forward about abuse. No doubt some of the recommendations have come as a result of their bravery. These are difficult cases. The adversarial nature of the legal system, which is there to uphold the rights of defendants and victims alike, can sometimes lead to contradictions and challenges. I was struck by the words of one woman in a recent victim impact statement, as reported in The Irish Times. She was the subject of a high-profile trial. She said that although the defence lawyers had a job to do, they left her with her dignity. It has been my experience that the professionalism of defence and prosecution counsel is more the norm than some of the examples of unfortunate and inappropriate questioning that we have heard about. In my experience it has always been professional. We need to move towards this, as it was some sort of consolation to the victim in that particular case.

Coming forward and making a report, often relating to historic abuse going back decades, is one part of upholding the rights of victims. An investigation in 2020 revealed that with regard to a range of institutions, including the Garda, social services, the legal system, youth services, the political system and mental health services, survivors feel let down. Access to therapeutic supports for adults and children continues to be an issue. While this is not under the remit of the Minister of State, I am sure he acknowledges their importance. In our recent debate on the Domestic, Sexual and Gender-Based Violence Agency Bill we highlighted the importance of a whole-of-government approach to these issues, which must be reiterated.

In 2022 it was revealed that 41% of requests to the Director of Public Prosecutions, DPP, for explanations where there was no prosecution related to sexual offences. This was followed by a recent review by the National Women's Council of Ireland and the Department of Justice. Complainants often want answers. They want to be trusted. We must look at policy solutions that can assist in this. Restorative justice is something on which we will launch a Bill soon. We will be tabling legislation. This could assist greatly. According to the EU forum for restorative justice, victim satisfaction is at least 85%. This is obviously very high. With many cases difficult to prosecute increasing its usage may give victims and those accused more satisfactory outcomes. I will say more on this later.

I have one or two comments on the Minister of State's speech. I note what he said on the Supreme Court judgment at the end of August. He described it as a complex and nuanced judgment on criminal liability. Consideration must be given to what the Minister of State has said. We look forward to discussing this further on Committee Stage and seeing the Minister of State's proposals arising out of the Supreme Court case.

We welcome sexual assault victims being entitled to legal representation. The Minister of State said that the scope of the provision is being expanded and it will not only be with regard to previous sexual history. Legal representatives will be present in court and will be able to advise the victim to object to any obtrusive question. We welcome this.

I note that the Bill refers to a verdict being announced but the Minister of State stated that verdicts will be delivered. I thought what the Minister of State said about excluding nosy neighbours or complete strangers from the courtroom to be curious. This is something that can be considered on Committee Stage. There will be a conflict between justice being seen to be done and the other side of the argument, which is removing what the Minister of State described as nosy neighbours. I am not sure there has been great difficulty with announcing the verdict in court but we can discuss this again on Committee Stage. Anonymity for victims and accused in sexual assault trials is important. It is possible for a number of offences already. I note the O'Malley review stated admitting the public could easily lead to identification. Let us examine on Committee Stage whether there has been a difficulty in practice rather than speculating as to whether it is taking place. I certainly never saw too many nosy neighbours around the courtrooms.

The O'Malley review stated that consultees were agreed that criminal proceedings for sexual offences should take place otherwise than in public and it was dissatisfied with the current arrangements, which do not amount to secret justice. He stated that bona fide representatives of the press are always entitled to be present to report on proceedings while respecting the anonymity of the victim and the accused, except of course where an application is made with regard to sexual experience. The review also discussed the stress that could be placed on complainants and victims by the presence of the media and the risk of anonymity being compromised. There is a balance there.

We do not want to move to a scenario, which some people have warned against, where a verdict might be delivered and not openly declared in court by a jury. Would people be able to tell whether it was unanimous or a majority? It is important that it would be announced in open court.

As I said, the Bill extends the right to separate legal representation and this is to be welcomed. It would be remiss of me not to mention the barristers who yesterday took action over cuts in the rates of their fees. This matter has been ongoing for some time. The buck has been passed between the Department of Justice and Department of Public Expenditure, National Development Plan Delivery and Reform. The latter Department cannot be blamed for everything. While this measure is welcome, it is important that a barrister would be found in these types of cases.

The viability of criminal defence and criminal prosecution, and a career at the Bar as a whole, is under immense threat. I note that according to one study, as many as two thirds of newly-qualified barristers leave the profession within six years. We support any fee restoration and link back to the position of assistant principal. The link between the payment and the assistant principal position was unilaterally taken away after the crash. Has a regulatory impact assessment been carried out with regard to this provision? What is the estimated demand for barristers that will arise as a result of more of them being brought into court to represent the views and interests of victims in criminal cases?

One other element of the Bill is, "Amending the mens rea or mental element of rape to provide that the offence is committed where there is non-consensual intercourse and the ... [person] 'does not reasonably believe' at the time of the intercourse that the woman consents." The need for education on this subject is very clear. I note that in every third-level institution now, consent classes are undertaken. Great strides are being made with regard to consent but the implications of this definition, which may become clear once a case has been prosecuted, does need to be teased out. That may be another point to discuss on Committee Stage.

The Bill puts the national referral mechanism for human trafficking on a statutory footing. We have long supported anti-human trafficking measures. We saw criticism of the State recently from bodies such as the Group of Experts on Action against Trafficking in Human Beings, GRETA, which have pointed out the lack of a compensation mechanism for victims as well as a lack of national referral mechanism. It is very complicated, but it is one area in which we must continue to make strides as well as acknowledge the wider socioeconomic pressures that lead people to fall victim to trafficking. Good migration policy will mitigate this. I am sure we are all united with regard to the protection of children, and the ratification of the provision of the second operational protocol on the UN Convention on the Rights of the Child has been long delayed.

Deputy Matt Carthy

I welcome the progression of this Bill, which contains a number of important provisions with regard to both sexual offences and human trafficking. New national referral mechanisms for victims of human trafficking will be a very positive and important step and stand as the type of additional human trafficking measures for which Sinn Féin and many others have long advocated. Likewise, measures that will allow the Government to ratify the second operational protocol of the UN Convention on the Rights of the Child are critically important.

It is particularly welcome that we will see the implementation of the O'Malley review recommendations strengthening the rights of victims, which is long overdue. My colleagues, Deputies Ó Laoghaire and Martin Kenny, introduced Private Members' legislation in this regard back as far as 2019.

As spokesperson on foreign affairs and defence, I want to touch on one aspect. The Department has availed of this opportunity to use the Bill to address specific matters related to the Defence Forces. That is a positive and constructive step. There was a fear that we would be waiting for defence-specific legislation either later in the year or even next year.

I want to put on record again the huge esteem in which the members of the Women of Honour group are held by all Members of this House. I recall the first time I heard the phrase "women of honour" was when I was in my car listening to a radio documentary that was produced by Ms Katie Hannon on RTÉ. I am very conscious throughout all of this debate that when we are talking about sexual crimes, there is a reason why a provision for anonymity is provided for victims of sexual crime. For the Women of Honour group and too many others, however, that anonymity was not an option. They had to tell their stories in order to bring about action. We owe them great due for telling their stories and bringing us to the point where there is at least recognition of the need for cultural and systemic change within the Defence Forces and the need for legislation like this. However, we know there are anomalies when it comes to the Defence Forces that need to be addressed. I hope they can be addressed in this legislation or, if not, that we will get a commitment from the Government that they will be addressed. Quite clearly, the biggest complexity is for crimes committed outside of this State which, obviously, when we are dealing with the Defence Forces, can create huge complexity. There are obviously concerns that issues outside this State that pertain to outside of the country, particularly on overseas missions, will still be subject to investigation, essentially, by the Defence Forces rather than An Garda Síochána. This Bill will ensure than anything inside the State will be under the jurisdiction of An Garda, and that is correct. However, there are serious questions to be asked. I ask the Minister of State to indicate in his closing remarks whether it is proposed by the Government to bring forward separate legislation to deal with issues pertaining to outside of the State or whether the status quo would be applied there. If we recognise that there is a difficulty in terms of internal domestic issues and we need to move beyond the court martial procedure to investigations by An Garda Síochána and the civic court, then the obvious question is, why would it be different if the same crime is committed outside of this jurisdiction. It would be helpful if the Minister of State could outline in his closing remarks whether the potential legal issues pertaining to outside of the jurisdiction have been examined by either the Department of Justice or Department of Defence, and the outworking of any deliberations that have taken place.

Finally, if the Minister cannot answer those questions today, he might indicate or express willingness, at least, that the Government will be open to discussing these matters on Committee Stage because we need to provide answers in all these areas. There are quite a number of developments in terms of addressing the concerns of the Women of Honour group. We now need to see real actions that we can point out to these women who, as a result of their bravery, have given such a service in telling their stories.

Deputy Réada Cronin

I am also very glad to speak to this Bill on this Stage. Its wide provisions are welcome, particularly the piece in Part 2 to which the Minister of State referred earlier whereby a person who provides a character reference on behalf of a convicted sexual offender would be available to be cross-examined by the court. That is really welcome.

I am also happy to say this is particularly welcome to see as it relates, as was mentioned by my party colleague, to the earlier work of an Teachta Ó Laoghaire and an Teachta Martin Kenny, who brought forward the Sexual Offences (Amendment) Bill in 2019. It has been a long four years. It is four years in which families saw their precious daughters’ names become hashtags or headlines. It is four years in which men, and it is mostly men, inflicted unspeakable damage and sexual attacks and assaults. It is four years in which women, and it is mostly women, suffered in those attacks or arrogant presumptions and, for too many, suffered again in their subsequent experiences within the system, which can be gruelling and often retraumatising.

I note and welcome the provisions in the matter of anonymity and also for legal representation where sexual history or attire are to be interrogated. That history or attire should feature at all is something widely regarded by women, especially, as prehistoric in its motivation. Men are, of course, victims of sexual violence, attack and assault too, and they too must be protected not only in legislation but by society and the community.

For all our cultural evolution, too many men still fear the stigma of sexual violence. This is certainly the case in respect of what has been shared by men regarding their time in the Defence Forces. I refer to a time of a sexual attack by another male, when even the suspicion of homosexuality carried its own stigma, being seen as not only an aberration by society but also, at times, as a crime in law. As my party's junior spokesperson on defence, I had many dealings with the outstanding Women of Honour group and with the men who are starting to disclose their experiences as a result of the bravery of these women. Some of these men were just boys at the time of their alleged targeted assault, attack or victimisation now being reported. I take this opportunity to say to any men in that position to come forward. They will not just be heard, but will be listened to. It is important that men in that position would feel respected and heeded.

I am especially glad, therefore, that within this legislation, on foot of the recommendation of the independent review group report on dignity and equality in the Defence Forces, is the capacity to amend the Defence Act 1954. This is an extremely important provision and I welcome it. I also welcome the ongoing engagement by the Tánaiste and Minister of Defence, Deputy Micheál Martin, with the Women of Honour group. I commend him on this engagement. I thank him for it and I know that it matters to the Women of Honour.

On the specific issue of the provisions, persons subject to military law who commit specified sexual offences in this jurisdiction will, as they should, be dealt with by An Garda Síochána and the civil courts, as opposed to courts martial. Inevitably, there was a sense of secrecy and separateness when courts martial were the fora in which cases were tried, victims heard and justice administered. Inevitably too, there was a sense of other law applying. From the perception point of view, it was a bit too much like Canon Law in the Catholic Church and that separateness and otherness inflicted untold damage on our society. With the Defence Forces now, and what has now been revealed by the Women of Honour and by other women and men, this kind of damage cannot be repeated. Every case of sexual violence, therefore, including targeting and humiliation involving the Defence Forces, should be heard before our civilian courts, wherever their jurisdiction applies.

I trust the Minister of State will examine the mechanism to extend jurisdiction where an offence was committed overseas when a member of the Defence Forces was posted abroad and how this might work within our civil justice system. An Army uniform, rank or decoration cannot be seen as a camouflage. I know that courts martial operate to the highest judicial standards but optics matter and this is something the Women of Honour group has raised with me. That group believes it is better that these crimes be subject to an investigation by An Garda Síochána and tried by the civil courts on the same basis. I wonder if the Minister of State, in his closing statement, could just consider this as well and come back to the Joint Committee on Justice before the legislation goes to Committee Stage.

Deputy Aodhán Ó Ríordáin

I welcome the introduction of the Bill. The Labour Party fully supports the legislation and the intentions behind it. We will look to propose some amendments to strengthen and enhance some of the protections for victims as the legislation moves through the Houses of the Oireachtas. In April this year, the CSO released the results of the sexual violence survey, SVS, conducted in 2022. The results were stark. One in five women in Ireland had been raped and more than half of women had experienced some form of sexual violence. Three in ten adults had experienced sexual violence as a child.

It is clear that sexual violence continues to create trauma for far too many victims. Dealing with sexual violence remains one of the greatest challenges we face as a society. The Labour Party strongly supports the Third National Strategy on Domestic, Sexual and Gender-Based Violence 2022-2026. The end goal of the strategy is "zero tolerance of domestic, sexual and gender-based violence". The strategy aims to "ensure significant and ongoing reduction in [the] incidence of DSGBV". As part of that goal, we need to create "changes in behaviour so that Ireland becomes a place where victims and survivors receive integrated quality service supports and [enhanced access to] justice", something which we are all too aware our justice system does not always deliver. Too often, I have heard women, and I made this comment in a debate here last week as well, tell me that the court case was worse than the rape and the abuse.

I hope the Bill will bring us closer to a situation where victims of sexual violence will get better access to justice, victims are protected and the balance between victim and accused is fairer. The legislation will help to improve the process to make the courts more effective in providing justice and less traumatising for victims. Hopefully, this will also make it easier for those who have been raped or sexually assaulted to come forward, help to make undertaking a successful prosecution more likely and help to change our culture to one where consent cannot just be assumed. We want to create a culture where it is normal and widely acknowledged that consent to sexual acts must be negotiated and clearly communicated between sexual partners.

As regards the detail of the Bill, there are six main objectives. The first is to implement the recommendations of the O’Malley review of protections for vulnerable witnesses in the investigation and prosecution of sexual offences. To do this, the Bill will also extend the right to separate legal representation and legal aid to victims in trials for sexual assault. Where there is an application to question them on their previous sexual experience, victims will have their own barristers to represent them during the questioning. This will also help to rectify the appalling situation where victims are left with less protection than the accused and frequently feel like they are the ones on trial. The Bill will ensure anonymity for victims in all trials for sexual offences and provide anonymity for the accused for certain sexual offences. We welcome the fact that the Bill will update the definitions for "publishing" and "broadcasting" of the details of a case and remove the statutory requirement for the verdicts or decisions in trials to be announced in public. All these provisions are a direct result of the O’Malley review.

The second objective is to implement the recommendations from the Law Reform Commission on knowledge or belief concerning consent in rape law. The honest belief defence, as it stands in the Criminal Law (Rape) Act 1981, allows a defendant an unreasonable belief, formed unilaterally, by himself, as a defence for rape. It undermines the need for negotiation and communication implicit in the definition of consent, as no evidence is required of a defendant to back up his belief in consent or that he did not know the act was not consensual. This Bill will mean that where there is non-consensual intercourse, a defence of belief will have to be a reasonable one. It will not just have to be an honest one, but one that is objectively held to be reasonable. This is a key provision to legislating for a culture where consent is at the heart of sexual interaction. I note the draft Bill does not contain provisions related to intoxication or to the accused’s decision-making capacity, as had been outlined in the general scheme. This is something we may need to explore on Committee Stage. I also note from briefings that there has been a recent Supreme Court judgment, which means that the Bill also may need amendment. We will need to ensure that any such amendments will strengthen and not weaken these core provisions of the Bill.

The next objective of the Bill is to put the national referral mechanism, NRM, for victims of human trafficking on a statutory footing. An Garda Síochána is currently solely responsible for identifying victims of human trafficking. Under the new mechanism, multiple other relevant Departments and agencies will be designated as competent authorities to identify victims and this will also allow civil society organisations supporting victims of trafficking to be designated as trusted partners. We will also need to ensure that protections for witnesses and victims in cases of human trafficking are comprehensive and extend beyond just the conduct of a case. There are many complexities to be considered, which we hope to address on Committee Stage to ensure the Bill is as good as it can be.

The next purpose of the legislation is to make it possible to prosecute someone suspected of obtaining or providing a child for the purposes of sexual exploitation where some or all of the offence is committed outside the State. The Bill will allow us to ratify the second optional protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. This ratification is welcome, and even without the need for ratification, I believe the ability to prosecute Irish sexual abusers who offend abroad is to be welcomed in and of itself.

The Bill will also amend the Defence Act 1954. In March 2023, the IRG published a report on dignity and equality issues in the Defence Forces. One of the recommendations was that specified sexual offences should be investigated by An Garda Síochána and prosecuted in civilian courts rather than within the military itself. It is proposed that military law will continue to apply where such offences take place overseas. In view of the recommendation to extend prosecution to offences outside the State for child offences, this may require consideration.

My colleague Senator Wall has been very strong on this point. As others have done, I pay tribute to the Women of Honour.

The other main objective of the Bill is to address the provision of character evidence. Currently, if a witness is called to court to provide character evidence, that evidence is given under oath. However, written testimonies are not sworn. The new provision requires that when a person has been convicted of a sexual offence, character references presented at sentencing must be made via oath or affidavit. This follows on from similar provisions in a Private Members' Bill introduced in the Seanad by Senators Doherty, Chambers and Pauline O’Reilly, who are to be commended.

This Bill is a welcome step. Other speakers have referred to the ongoing barristers' dispute. A sexual assault court case was delayed last May due to the lack of availability of a senior counsel. That dispute must be resolved in order that criminal cases can proceed. There was strong pre-legislative scrutiny of the Bill, with excellent engagement on the general scheme from the Immigrant Council of Ireland, the Irish Human Rights and Equality Commission, the Bar of Ireland, the National Women's Council of Ireland and Rape Crisis Network Ireland. The additional sections that have since been added are reasonable and have come through engagement with transparent and worthy sources. We will continue to work to ensure the legislation is as good as it can be. There may be an opportunity to submit amendments that would resolve additional issues where there is an appropriate legislative fit. I commend the Minister of State and his Department on the Bill. I look forward to working with colleagues to improve it.

Deputy Catherine Murphy

I welcome the Bill. I agree with previous speakers that it could be improved and I hope the Minister of State will be open to taking amendments on Committee Stage.

The first prosecution in this State for human trafficking took place in 2021, with two women given sentences of five years for trafficking for the purposes of sexual exploitation. Those sentences were successfully challenged by the Director of Public Prosecutions, DPP, because of their leniency. Reading some of the press reports provides context to the case. There was dramatic evidence given of the victims' long journey from Nigeria via north Africa and southern Europe before arriving in Ireland. One of them, a 26-year-old mother, said she felt betrayed by the person who trafficked her. She told the counsel she would never have left Nigeria if she knew she was going to end up working as a prostitute in Ireland. The trial heard that the women worked in various locations around the country, including Limerick, Cork, Galway, Castlebar, Navan, Athlone, Letterkenny, Cavan and Dundalk. This shows that whatever supports are in place, they cannot just be available in city locations. It needs to be understood that this exploitation is likely to happen in any part of the country.

The detective who spoke outside the court after the verdict praised the bravery and perseverance of the victims and referred to the very lengthy and complex investigation into the crimes that occurred. It is really important that we see the evidence given at these cases because it will encourage others to come forward. It is also obvious when we hear about lengthy and complex investigations that dealing with this issue requires, in addition to everything else, significant Garda resources. After the DPP challenged the leniency of the sentences in this case and some additional time was added on, the Court of Appeal produced sentencing guidelines on the kinds of sentences that should apply to such crimes, depending on whether there is mitigation.

Sexual exploitation is one form of human trafficking and it is the most prevalent form. Victims may also be trafficked for the purpose of forced marriage, labour exploitation, forced criminal activity or organ removal. A suspected case of trafficking for organ removal was reported for the first time in the State recently. It is horrifying to think that could be happening. Figures from a recent report show that between 2013 and 2022, 55% of victims were trafficked for sexual exploitation and 38% for labour exploitation. More women than men are victims, and children represent 8% of victims in Ireland. This needs to be more widely known about because it will be necessary for people to be vigilant in regard to this kind of crime. It is happening because there are huge amounts of money to be made. The sums of money being talked about are astonishing. There is also a financial cost to this criminal activity, including law enforcement costs and the cost of supports that are needed for people when they have been identified as being trafficked.

Research from Muiread Murphy of Maynooth University points out that the Global Slavery Index for 2018 estimated there were 8,000 victims of human trafficking in Ireland. However, between 2015 and 2019, the Garda identified only 293 adult victims of human trafficking and 25 child victims. It was also identified that the four locations from which victims were most likely to be trafficked were Nigeria, Romania, Albania and Kenya. The identification of victims is really important. It is easy to understand how people who are subject to this kind of crime may be reluctant to come forward. They are in a country they do not know and often do not speak the language. They are being threatened with all sorts of things, including criminal prosecution, by the people who are the perpetrators of this crime against them. The nature of these types of offences means they are often hidden. I am interested to know about the kinds of approaches taken in other jurisdictions to identification of people who are subject to this crime and any ideas we can draw from the experience elsewhere.

I thank the Oireachtas Library and Research Service for the very good Bill digest it has provided. We have had debates on a number of occasions about the tier ranking for Ireland in the annual Trafficking in Persons report. It was a cause of serious concern that in 2021, Ireland and Romania were the only two states on the tier 2 watchlist. Our ranking has improved slightly since then. After being on the tier 2 watchlist in 2020 and 2021, we were assigned to tier 2 in 2022 and 2023 without being on the watchlist. I acknowledge that improvement, for which this legislation is partly responsible.

The 2023 Trafficking in Persons report for Ireland indicates that the Government did not meet the minimum standards in several key areas. No traffickers were convicted in 2022, which is a decrease compared with the prior year. Nobody has ever been convicted for labour trafficking under the anti-trafficking law. The report pointed to the persistence of "[c]hronic and systemic deficiencies in victim identification, referral, and assistance". It is noted that services for victims "remained inadequate".

The report goes on about overhauling the framework for trafficking. The Minister of State, Deputy Browne, will know from dealing with this legislation and dealing with the issues that we need to do significantly more. This legislation is certainly a step in the right direction.

The approach that has been taken internationally, which is now victim centred, is the correct approach but that does not mean there should not be prosecutions. The very fact there was a prosecution in 2021 drew attention to others. It is very likely to bring about the situation where others are at least concerned about being prosecuted for doing this.

I support the idea of this two-pronged approach, which is the way this is designed. The primary difficulties are noted throughout the respective reports, and in reports by other relevant organisations. They may be summarised as difficulties in proving the constituent elements of an offence of human trafficking, a common problem across jurisdictions. I am sure there is a cross-jurisdictional issue here.

We are also told there is a tendency to prosecute lesser offences, with comparatively minor penalties. The reports of the group of experts on action against trafficking in human beings, GRETA, are critical of this approach as it encourages a sense of impunity in traffickers and is not sufficiently dissuasive.

Frequent difficulties in identifying victims of human trafficking were identified.

Statutory limitation periods are also problematic given there are very lengthy investigations and so on. Trafficking cases often take considerable time to be investigated. Many people will have left the country where the crime has taken place before the case comes to trial. We can see there are a significant number of difficulties.

The national referral mechanism is very welcome. The national referral mechanism provides a way for all agencies, both State and civil society, to co-operate and share information about potential victims, identify those victims and facilitate their access to advice, accommodation and support. One of the things that has been talked about is mixing the people who are in international protection with those who have been trafficked. The situations really need to be separated out because they are not the same thing. There is also the need for appropriate types of accommodation. We are all aware there is a housing crisis but when there is a relatively very small number of people in this kind of situation then the State must identify them as being separate and also deal with them in a separate way.

There is one other aspect that is very clear here. Gardaí in the State enjoy wide support from the community but that is not always the case with people who come from other jurisdictions where they may have an entirely different culture around law enforcement and immigration.

As we go towards dealing with this, not just through An Garda Síochána but also through the trusted partners, the legislation is to be welcomed but the agencies need to be resourced to make sure they have the ability to actually deal with it in a way that is not just about identifying the people and offering some supports: there must be a comprehensive range of supports.

It is very important that Ireland is not seen as a soft location where people can be trafficked. It is important also that we continue to see cases going to court.

Amendments are sought to the Bill. A very good submission was made by the Irish Human Rights and Equality Commission, IHREC, which suggested a number of amendments they require to be made. The IHREC has said:

We believe the identification assessment threshold has been raised by requiring the application to be ‘credible’ in addition to the assessment of ‘reasonable grounds’, which contravenes the jurisprudence of the Irish courts, the EU Anti-Trafficking Directive, the Council of Europe Directive and the OSCE.

We recommend that the Bill provide for trafficking-specific assistance and supports, separate from the International Protection framework. [I have already mentioned this but IHREC say it is problematic in conflating the two.]

We have also continuously highlighted the need to have equal and unconditional access to assistance for all victims of trafficking, irrespective of their immigration status and nationality. We therefore recommend that the Bill be amended to provide for immigration permissions for presumed and identified victims of trafficking who are third country nationals. [When we are looking at relatively small numbers of people I believe it is absolutely essential that we do this.]

Children are among the most vulnerable victims of trafficking.  We are deeply concerned by the absence of any age-estimation assessment process in the identification and assistance of child victims.  We recommend that the Bill be amended to provide for age-estimation assessments, and that responsibility for these be assigned to an appropriate agency, such as Tusla.

Finally, as traffickers often use the threat of prosecution as a means of control, victims are afraid to come forward. We recommend that the Bill be amended to include a statutory defence for victims of trafficking where they have committed crimes as a direct consequence of them being trafficked.

I am sure there was some consideration of those issues. They were certainly part of the submission. It would be useful in his summing up if the Minister of State addressed those five key areas as identified. The Minister of State might let us know if he is open to taking amendments. I would certainly like to see a number of those in improving this legislation. The Bill is very worthwhile and very necessary. I am glad to see it but I would like to see the resources that will go along with it. There will be resources for the training of gardaí and judges, and then directly with the victims of crime and around the kinds of housing supports and other social protection supports. Very often, if people are going to be within the system when prosecutions are happening with very long investigations, we are looking at those people being in that kind of situation for considerable periods of time. The housing aspect and the separating out the international protection from trafficking are very important in that context.

Deputy Emer Higgins

The 2022 sexual violence survey conducted by the Central Statistics Office paints a really grim picture here in Ireland. One in five women in Ireland has been raped with more than half experiencing some form of sexual violence. Most adults who suffered from this violence knew their perpetrator, which emphasises that these are not isolated incidents but are deep rooted societal issues. It is heartbreaking that such a significant portion of our population carries the weight of these traumas alone.

Forty-seven per cent of them have shared their experiences with another person, illustrating the stigmatisation and isolation that these victims often face.

A 2022 report by the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings, GRETA, has made it abundantly clear that while Ireland has made strides in combating human trafficking, there is an urgent need to elevate our efforts. GRETA's findings pointed to persistent limitations in our identification procedures, with a concern that trafficking for labour exploitation remains under-recognised and under-reported.

There have been no convictions for trafficking for labour exploitation in Ireland, despite the increasing number of identified suspected cases. The 2018 Global Slavery Index estimated approximately 8,000 victims in Ireland. That is a staggering number, especially when contrasted with the mere 293 adult victims and 25 child victims identified by An Garda Síochána between 2015 and 2019.

The latest figures from 2021 show 44 victims of human trafficking. European data, by the way, shows 20,000 victims across the EU. This discrepancy suggests that a significant number of victims are being overlooked or misidentified.

It is no longer enough to say we are doing our best. It is obvious, both from international bodies and our own national research, that we must do better. This Bill is a crucial step in that direction.

At its core, this Bill signifies a major shift in our approach to laws surrounding sexual offences and human trafficking, especially regarding consent.

Historically, a subjective belief around consent has been used as a defence in rape cases. This Bill strengthens the requirements surrounding, for example, character references in court. Those providing a character reference for someone convicted of a sexual offence will now need to do so under oath or affidavit. This change is designed to further protect victims from potential re-traumatisation.

The psychological impact on victims of sexual crimes is profound and we aim to ensure that when they seek justice, their identities remain confidential, alleviating the apprehension of public scrutiny.

This legislation is committed to the improvement of the criminal justice system for victims. It addresses the core issues pinpointed in these reports, from enhancing the protection and anonymity of sexual violence victims to establishing dedicated committees for human trafficking identification and assistance.

Legislation alone is not enough. Our efforts need to be bolstered with awareness. As rightly stated by Ms Noeline Blackwell, the CEO of Dublin Rape Crisis Centre, sexual violence remains "silenced in our society." We need the public to be our eyes and ears, to help identify victims and to eradicate the stigmas associated with these traumas.

The dedication of the Minister, Deputy McEntee, to tackling domestic, sexual and gender-based violence is evident, not only in this Bill but in her comprehensive zero tolerance plan. The recommendations from various reports, such as the O’Malley review, have been integral in shaping the Bill's proposals, ensuring that victims are at the forefront of our considerations.

The Bill puts in place a more inclusive national referral mechanism for identifying and supporting victims of human trafficking. This system acknowledges that trust in law enforcement might be a barrier for some victims so it includes a provision for NGOs and other State bodies to play a role in the identification process.

The Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 is a monumental step towards creating a justice system that is more protective of victims, more accountable to its people and more progressive in its views on consent and sexual offences. Let us push this Bill through, not just as a piece of legislation, but as a commitment to every individual in Ireland that we will fight for their rights, their safety and their dignity.

Consider, for a second, the journey of a young trafficking victim. Under our proposed framework, her access to resources will be streamlined, her identity in legal proceedings protected, and dedicated legal representation made available, easing the often-daunting legal journey.

This Bill embodies our unwavering commitment to refining our legal system to be more responsive, protective and aligned with modern standards. Let us collaborate and champion a more secure and just environment for all.

Deputy Martin Browne

It is vitally important that the provisions contained within a Bill such as this strengthens the laws against sexual offences. I would also suggest that of similar importance is a Bill that is structured in such a way as to give victims of these crimes the confidence to enter the legal process in the knowledge that it provides the assistance and protections that people in their situation should rightly be afforded.

We are all aware of reports that people who fall foul of sexual violence do not come forward because of negative perceptions of the procedure. Therefore, I welcome the inclusion of reforms in the areas of expanding anonymity and excluding the public from courtrooms in which, it must be said, are the most intimate of judicial procedures.

It is here that I also want to point out my support for the inclusion in trials of sexual assault of the victim's right for separate legal representation over and above the State's prosecution team if there is an application to question them on their previous sexual experience. As the O'Malley report said, the experience of a victim as a witness in a trial for sexual assault may be no less difficult or traumatic than in a trial for a rape or aggravated sexual assault offence.

The issue of character references is also worth comment. As matters stand at present, a written character reference or testimonials, not sworn and the person submitting it, cannot be challenged if necessary. This, of course, can leave a victim voiceless against any assertion that can be made about the convicted person. As part of this Bill, character references presented at sentencing must be made via oath or affidavit. It is also worth noting that these statements and character evidence serve little purpose legally as they are introduced after conviction has taken place and have little or no impact on the sentencing decision.

I want to turn to the provisions on tackling human trafficking, in particular, allowing for designated competent authorities or trusted partners to identify victims and for civil society organisations to support victims of trafficking. It is about time for this to become a reality because well-publicised instances of human trafficking have seen the important role that civil society organisations can play in terms of intelligence and in the identification of victims of trafficking.

Finally, it is good to eventually see measures being inscribed here that will enable ratification of the second optional protocol to the UN Convention of the Rights of the Child regarding the sale of children, child prostitution and child abuse imagery. It has been said that we are not screening for Irish trafficking for sexual exploitation as well as we should be, resulting in the statistics identifying trends understating what the reality probably is. If this Bill can address this, it will be work well done. I look forward to it being debated further.

An Ceann Comhairle

Deputy Jim O'Callaghan is sharing with Deputy Lawless but, in the Deputy's absence, Deputy Jim O'Callaghan can lead off.

Deputy Jim O'Callaghan

I thank the Ceann Comhairle. I think Deputy Lawless will be coming.

I welcome this legislation and I commend the Ministers, Deputies James Browne and McEntee, for introducing it into the House today.

I have a limited amount of time, but I want to speak in respect of a number of sections in the Bill. In particular, I refer to section 7 of the Bill because it contains quite a significant change to the law in respect of rape as it operates in this country. That is a change that we need to inform the public about. It is a change we need to make sure people are aware of.

Rape is an extremely serious and devastating crime for a victim. It is also an extremely serious crime for a person to be convicted of. It results, quite correctly, in a very lengthy custodial sentence in most circumstances and as well as that, it categorises a person as a rapist for the rest of their lives.

At present, the law in Ireland is governed by the Criminal Law (Rape) Act 1981. It sets out what is the mens rea required in order for the crime of rape to be committed. For serious criminal offences, it is essential that there is this mens rea, that the person accused of the offence has the intention of committing the offence. It is for that reason it is noteworthy the change that is contained in the legislation. At present, the law requires, and says, that, "A man commits rape if ... sexual intercourse with a woman who at the time of the intercourse does not consent to it ...". That is obviously clear. Then it goes on and sets out what mens rea is required, "and ... at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it ... ." That is the law as it exists today. We are changing that law and it is a change that I support. The law will now be, instead of paragraph (b), as I read out, "at that time he [the man] does not reasonably believe that she consents to the intercourse".

We are moving from a mens rea of knowledge or recklessness to a mens rea of reasonable belief. It is important, as lawmakers, that we announce and make people, particularly men, aware of the change that is happening. It will now be the case that a man commits rape if he has intercourse without consent and at that time does not reasonably believe that the woman consents to the intercourse. That is an objective test and men need to ensure that when they are having sexual intercourse they are absolutely satisfied they have reasonable belief that the woman is consenting to it. It is a worthwhile change but it is a significant change and something men need to be aware of when they are engaging in sexual activity.

If one looks at the circumstances of many rapes that come before the courts now, in many instances there are circumstances or events which take place in the context of too much alcohol being consumed by individuals involved. This law will change the position and provide that men, in particular, have to be extremely careful when they are having sex with a woman that they are fully aware and fully and reasonably believe that the woman is consenting to sexual activity. That is a change. Some people may not think it is a significant change but it is a change in the mens rea and one of which men in Ireland should be aware. It is also a change that I support. There is a responsibility on a man having sexual intercourse to ensure he has a reasonable belief that the woman with whom he is having sexual intercourse consents in respect of it.

There are other provisions in the legislation that I also welcome. It continues and broadens the anonymity that applies to a complainant in a sexual offences trial and also applies it to the person who is accused. Because of the consequences for individuals who are identified in rape trials, whether they be the complainant or the accused, it is worthwhile that the legislation is amended as it proposed.

I see Deputy Lawless is here so I will hand over to him.

Deputy James Lawless

I will take on the baton. I am pleased to see this Bill progress. The Joint Committee on Justice produced a considered report after the heads of the Bill were referred to us. I am glad that a number of its provisions have made their way into the Bill. My colleague, Deputy O’Callaghan, spoke about the consent provisions. Then there is the implementation of the O'Malley report on protections for vulnerable witnesses in sex offence cases, including separate representation at times. It is reassertion. There are already rules of evidence on what can and cannot be asked about the complainant’s background and circumstances in sex offence trials. The committee reiterated the need for those rules to be enshrined and protected, including separate legal representation where appropriate.

The committee also considered the question of anonymity for complainants and that they not be exposed to media, particularly in trials of this nature. We recommended that we go beyond the traditional definitions of broadcast media to encompass social media and other new media. Somebody has already gone through an ordeal prior to getting to court. The court process, while adversarial and allowing the accused party a right to a defence, should not in any way amplify or double down on the wrongs already perpetrated on the complainant. There should be provision made to support that person through the process rather than trigger them again and have them revisit their ordeals.

The human trafficking element is also extremely important. We made detailed and technical recommendations around that, not least as to what referral agencies would be involved and how that would work, as well as the right to an appeal, the right to representation at an appeal and a number of definitions which we felt should be interpreted to the benefit of the person in the spotlight, and putting the trafficked person front and centre. I attended a number of Interpol conferences earlier in the year as a member of the Joint Committee on Justice. Sometimes we think of human trafficking as something that happens in other countries but it happens in Dublin and many other locations in Ireland. I think we would be surprised and shocked were we to look at the detail of some of the things I have been unfortunate enough to learn about through talking to colleagues here and in other jurisdictions.

Deputy Ruairí Ó Murchú

The House has dealt with many issues recently related to violence against women, sexual assault, sexual violence and rape. There is no more heinous crime than rape. It can have a life-long impact on people, women in particular, so we need to ensure that all the protections of the justice system are put in place. All the updating of law is to be supported, whether we are dealing with consent, protections in the court setting around anonymity or separate legal representation. All of these are absolutely vital.

We are all aware of the issue with character witnesses. This testimony is easily offered but it can be part of what is almost a retraumatising of victims. It is vital that it is required to be made on oath or via affidavit.

We owe the Women of Honour a huge amount for the work they have done in highlighting legacy issues in the Defence Forces and the lack of a fit-for-purpose method for dealing with cases of sexual assault and rape. It is a stain on the State and we need to make sure we deal with it by all necessary means of inquiry. It is vital that we provide the capacity to An Garda Síochána to deal with the issues as they pertain to the Defence Forces. The matter should have been dealt with a long time ago but we are all very supportive of having it dealt with now.

We live in a world with huge levels of organised crime and despicable organisations that involve themselves in trafficking. It goes without saying that anything required to protect victims of trafficking, whether children or women, and to ensure we have the capacity to deal with it from an investigative point of view should be available. That is particularly the case as regards the protections that are required. It is the least we can do when we are dealing with crimes so bad they cannot be comprehended. We need to ensure we have all the pieces that need to be put in place.

Sinn Féin is very supportive of this legislation. I hope we can bring this to a better place.

Deputy Alan Farrell

I welcome the opportunity to speak on this important Bill which will have important ramifications for criminal justice procedures with specific regard to sexual offences and human trafficking. The Bill will make a range of changes to existing procedures, modernise our approach to such cases, provide for better victim experiences of the judicial system and protect vulnerable people from exploitation and abuse.

With specific regard to sexual offences, I welcome the provisions that will see greater sensitivity provided to these cases which, as we know, can be deeply traumatic and difficult for those involved. Important changes such as character references being provided on oath via affidavit require a more rigorous approach with regard to such matters. The Bill will ensure that due consideration is given to providing references and hold such information to a higher standard than has previously been the case. This is to be welcomed.

Furthermore, I welcome the Minister’s comments and commitment to multi-annual funding for sensitivity training programmes for legal professionals. This is vital in achieving the aim of granting victims the dignity and consideration they are entitled to, as well as ensuring that best practices are adhered to at every step of the legal process.

I also believe the measure removing members of the public from sexual offence trials is a positive step which will remove a potential barrier to victims feeling comfortable in pursuing justice and, in so doing, respect their right to privacy in what can be an incredibly difficult and stressful time as they recount their experience before a court.

This Bill will also make significant changes as to how we approach cases of human trafficking, which cannot be understated. As a former head of the delegation to the Organization for Security and Co-operation in Europe, I often listen to my American counterpart decry Ireland's record in respect of human trafficking. I believe it is only a positive step when legislation comes before the House in this regard. The development of a national referral mechanism for victims of human trafficking is placed on a statutory footing. I acknowledge that this is an extremely difficult issue to tackle, reaching across a number of Departments, however the development of this mechanism is a vital step in helping people escape this fate and provide them with the support and assistance that they so vitally require.

It is also extremely important that provisions are included in the Bill setting out that victims of human trafficking will not be deported or prosecuted for offences in relation to their being trafficked. It is imperative that victims of human trafficking do not feel afraid to seek help for fear of recrimination in relation to acts which they had no control over. The operation of this mechanism is critical to making a great impact, which will save people from years of suffering and in some cases will save their very lives. I note that the Bill details that certain registered charities will be designated as trusted partners for receiving and referring applications to recognise a person as a victim of human trafficking. As I mentioned already in relation to sexual offences, it is important that staff in these charities are provided with adequate training, and indeed support, as the details of many cases can be harrowing to say the least. I would also like to note that, as detailed in the Bill, a victim of human trafficking, to be recognised as such must have been trafficked by certain criteria, including the use, or threat of, force. I would however highlight to the Minister of State that evidence of such can often be very hard to prove for a victim. It is important that the system is built with enough flexibility to account for this difficulty and reflect a compassion-based approach and I would ask that the Minister of State ensure that this is the case.

A Cheann Comhairle, it would be remiss of me not to mention the important changes that this Bill will also make that will pave the way for us to ratify the UN Convention on the Rights of the Child, which to date has required amendments to existing legislation. Crucially, this will allow us to better prevent the exploitation of children, including child pornography and child prostitution. Children are the most vulnerable people in our society and it is incumbent on us as legislators to do absolutely everything we can to ensure that they are granted the highest level of protection. I welcome the achievements the Minister, her team, the Minister of State and the Department are making with regard to a wide range of areas that touch upon the topics I have raised today including, but not limited to, the criminalising of grooming children into crime; criminalising the sharing of intimate images of other persons; the introduction of the third national strategy on domestic, sexual and gender-based violence; and much more. I also commend the Department and officials on the statutory footing of the agency associated with domestic, sexual and gender-based violence, once it is created. These steps will help move us towards a safer society, a more compassionate sphere for victims and being more ready to act against offenders. In turn I believe this will help us to build a more confident and stronger State; and I look forward to the passing of this legislation.

My last remark, interrelated with this Bill given that it is a criminal matter, would be to make reference to the strike yesterday before the criminal courts of justice and to note that it is very hard not to agree with the position that barristers have adopted. There is no denying that their fee structures have not changed since 2002, despite the fact that everybody else operating in the criminal courts of justice has seen pay restoration associated with the financial emergency measures in the public interest, FEMPI. I would like to see a move on that as promptly as possible so that we can remedy the situation and ensure that access to our criminal courts is not disrupted in the future.

Deputy Donnchadh Ó Laoghaire

I apologise for missing my original speaking slot and thank the Ceann Comhairle for facilitating me. We regularly discuss the challenges that exist to ensure that people who perpetrate sexual violence and sexual offences are brought to justice. Notwithstanding the fact that legislation has improved and that there have been improvements in reporting to some extent, it is still the case that sexual offences are extremely challenging things to report. Even when they are reported, very often they do not proceed to prosecution. Even at the court stage, very often they can be unsuccessful. We need to consider why that is and try to address it. According to the Rape Crisis Network, it is still the case that about 62% of victims of sexual violence do not make a formal complaint. In terms of the supports that exist for victims of sexual violence, we need to address that. It is also important to include provisions in this legislation to ensure that when they come forward, they are supported the entire way, that in the experience they have of the criminal justice system, the traumatic nature of it is minimised to the greatest extent possible and that as many successful and safe convictions are achieved as possible.

A number of provisions in this legislation are important in that regard, including the provisions in respect of consent and an objective test, which I think is logical. The main thing I want to reference is partially related to the O'Malley review of protections for vulnerable witnesses. That review made a number of recommendations, many of which are good, including the provision made here, which relates to a preliminary hearing in respect of sexual history. The legislation I brought forward myself with Deputy Martin Kenny in 2019 covered that, as well as another item which is not covered in the present legislation, namely, the area of clothing evidence. The Minister of State will recall the scandalous situation a number of years ago where a defence lawyer held up a thong in court. I think the quote was: "You have to look at the way she was dressed. She was wearing a thong with a lace front." That was absolutely scandalous. It should not have been allowed to happen in an Irish courtroom but it was in accordance with the rules at the time. Even after the passage of this legislation I believe that would still be the case. We need to address that. In this legislation, we should be considering amendments to ensure that is the case. There is a basis for doing so with a very similar mechanism to what is happening with the sexual history evidence, that there is a preliminary hearing. Of course there are incidents where clothing could have an evidential value. That was not the case in that incident. It was a clear implication, a form of victim-blaming. In the legislation I brought forward, there was a mechanism for doing that and I think similarly in this legislation it is possible to bring forward a mechanism as well. I would urge the Minister of State to do so. What happened there was an absolute scandal and should never be allowed to be repeated in an Irish courtroom.

An Ceann Comhairle

Next is Deputy Nolan.

Deputy Mick Barry

Are we not next?

An Ceann Comhairle

You are not next. You were not here for your slot so we will take you in the second round. We have to wait until everyone who was here has their statements made. That is the normal practice.

Deputy Carol Nolan

I welcome the debate on this vitally important issue of sexual offences and human trafficking. This is an issue that needs much more attention and, of course, in Ireland we do need tougher laws and tougher sentencing, and we need it urgently. Two years ago, I and my colleagues in the all-party Oireachtas life and dignity group organised a briefing on countering human trafficking in Ireland where we heard from Ms Sunniva McDonagh, a lawyer specialising in fundamental rights and a member of the Irish Human Rights and Equality Commission. The event was organised in reaction to reports which raised concerns about the level of human trafficking and the lack of protections against such offences in Ireland at present. The Minister of State will be aware that in recent years we have witnessed the downgrading of Ireland's ranking in the fight against human trafficking in the US State Department's annual trafficking in persons report. This is considered the international gold standard when it comes to evaluating how well countries are faring out in the prevention and deterrence of modern-day slavery and the trafficking of human beings. As I understand it, human trafficking is a practice affecting 40 million people globally, generating annual profits of at least $32 billion according to the International Labour Organization.

I also understand that from 2013 to 2017 we were among the tier 1 countries whose governments fully met minimum standards for the elimination of trafficking. Then that ranking dropped down to tier 2 in both 2018 and 2019. We must question why it dropped, as we need answers on that. This meant that while our Government's actions did not fully meet the minimum standards, it was making significant efforts to rectify it. Unfortunately however, things got worse and we slipped further down the ranking in 2020. We found ourselves in the tier 2 watch list category with states like Saudi Arabia and the Democratic Republic of the Congo. Again, serious questions present in that regard. Why did it happen that we slipped further down the rankings?

The Garda National Immigration Bureau confirmed to me that it has detected 279 illegal immigrants in transport vehicles at Irish harbours since 2018. This number points to the terrifying scenario of vulnerable people being trafficked into the State for financial or sexual exploitation, but it also highlights the likelihood of a potentially serious security breach, as the number of those detected can only represent those who have been unsuccessful in evading checks upon their illegal entry into the State. Therefore, it is only the tip of the iceberg.

I support the provisions of the Bill before us in terms of ensuring anonymity for both victims of trafficking and the accused in trials for sexual assault, including the exclusion of the public from the courtroom. We must urgently address the legal deficits that exist in this area to ensure that a far greater number of successful prosecutions for sexual assault in the context of human trafficking actually occur in Ireland.

Deputy Michael Healy-Rae

The main thing to say is that we must make every effort we can make to protect the lives of people who are vulnerable or endangered by this inhuman practice. We must put our shoulders to the wheel and try to stop, prohibit and hinder this awful practice in every way possible.

All of us were horrified in recent years when we saw the images of articulated trucks having their doors opened, knowing there were multiple deaths inside in those containers - lovely, beautiful human beings, who in the hope of going to a better place, paid to be smuggled from point A to point B and died in insufferable conditions, with heat and no water or food. They were young people, older people and middle-aged people. It is a horrifying thought and a horrifying death. Any proper parliamentarians here, in England or in any part of Europe have to do everything we can to ensure that practice is not possible in the future. We have to be seen to do everything to prevent any person or group of people involved in smuggling, whether it is just for money by organised gangs, who prey in particular on vulnerable young girls and women in any part of Europe or the world to again take them from point A to point B for sexual purposes or any of that type of business. We must do everything we can to make it harder to participate in that and bring those people into this country.

There are significant concerns that the available statistics on human trafficking in Ireland may underestimate the true extent of the problem. The Council of Europe, among others, has pointed out that it is likely that these figures do not reflect the actual scale of human trafficking in Ireland. That is a very worrying thought.

One of the main issues contributing to this underestimation is the persistent limitations of the national referral mechanism and the fact that An Garda Síochána remains the sole authority responsible for identifying victims of trafficking. Various forms of human trafficking remain under-recognised and under-reported. A comprehensive study from 2021 conducted in collaboration with senior academics, An Garda Síochána, the Police Service of Northern Ireland and the Department of Justice and Equality and the Department of Justice in Northern Ireland revealed that the actual number of trafficked victims was likely to be 38% higher than official national statistics. This study considered both probable and possible victims of trafficking in Ireland. It is a horrifying and very sobering thought for any of us to think when we are inside in this Chamber in the capital city of Ireland, Dublin, today, that perhaps not far from where we are in this city there are people inside buildings who are being mistreated, blackguarded, which is the polite way I will put it, for monetary gain. It is a horrifying thought. We are all human beings. There is no one in this world better than anyone else. Everyone is the exact same and it is a sobering thought for all of us if those poor unfortunate people are suffering, and we must do everything we can. I support any endeavour by the Government, or any future government, that would put a stop to this horrible, vile practice and the horrible vile people that are involved in it. They will never have a day's luck for it.

Deputy Mattie McGrath

I too am pleased to have a chance to speak to this Criminal Law (Sexual Offences and Human Trafficking) Bill 2023. Like previous speakers have said, we did engage with the all-party Oireachtas human dignity group, which had a meeting here. There were presentations from people who really know about this, who work at the coalface. We were shocked at the figures. That is not to say we did not know what was going on, because to a great extent we have known for a long time what has been going on. The fact is that it is vile and pernicious and it could not be called anything else. The Minister has our full support in trying to do anything we can to reduce the extent of the problem.

As Deputy Nolan stated, I am disappointed that our country, which had a good ranking for detection, rejection and an abhorrence of these practices, has badly slipped down the ladder and we have gone into the second tier of defence against this. That is totally reprehensible in the extreme.

I am delighted that two or three years ago, the Department of Justice set up specialised units for sexual crime and violence against women. In Tipperary, there were ten gardaí for each unit and two sergeants. It was totally oversubscribed by members of An Garda Síochána who wanted to go into this area, which they are involved with anyway, but to deal specifically with sexual violence and sexual crimes. That was the case in every other division as well. With the shambles the Government has made of defence and the annoyance of the gardaí, the worry is that we are definitely losing the drugs squad in Tipperary and community policing. I am told that these units are safeguarded and will not be touched but I wonder. The traffic corps has been devastated by a Minister and the Minister will not listen to anybody. I will not even talk about the Commissioner today. There is a huge amount of exploitation and it is going on in many countries.

We talk about Ukraine at the moment. There is sexual exploitation and trafficking of children. They are also killed and their organs are harvested. That is going on and it is a massive industry. We are here jumping up and down in support of Ukraine but there is an awful lot of baggage in that country, and anywhere sexual crime and trafficking and exploitation of children comes from.

We are gone green and we want green electricity but we have turned a blind eye, súile dúnta, to the savage exploitation of minors, children as young as eight, slaving for hours mining lithium with hammers and chisels. It is lovely to go green and we all want to go electric. We want to be the cheerleaders against climate change and everything else but we are ignoring that basic, disgusting, degrading slave trade. When we treat children like that it is only a step away then to exploit and traffic them for sexual exploitation. Deputy Michael Healy-Rae spoke about the containers and the horrific stories in that regard.

We know it is going on in every city and town in this country, and maybe rural areas as well. It is a massive issue. As a parent and grandparent, it is horrific. There could not be more heinous crimes.

Mention was made of how some defence counsels use certain items on display. That is reprehensible, but everybody is entitled to a defence. Measures have to be taken to stop that. I hope the Bill will be robust, strong and specific enough to deal with those areas. We can bring in all of this legislation, but we cannot turn a blind eye forever to the slave labour that is mining lithium batteries for our lovely electric cars.

Deputy Danny Healy-Rae

I am glad to get the opportunity to speak on this very important Bill. I support it, as everyone who is elected here should. Deputies have spoken about people who died in terrible conditions in containers, including one case a couple of years ago. Other speakers mentioned the heat and lack of water, but people died because there was no air. That kind of death was totally inhuman. We must ensure that anyone involved in that kind of carry-on comes before the courts in this country and is dealt with seriously. It is the worst type of crime to do that to human beings.

Human trafficking is a grave violation of human rights and a global problem that affects people from various regions who are trying to reach a better world. People, including those seeking better opportunities, cannot be blamed for that. Traffickers prey on the dreams and vulnerabilities of migrants, promising them a brighter future but subjecting them to unimaginable exploitation.

One alarming aspect of human trafficking in Ireland is the practice of confiscating identification documentation from victims before they even land in the country. That tactic is part of a broader strategy to keep victims trapped and under the control of traffickers. Traffickers often confiscate identification documents for several reasons.

We have been told that new data for 2019-20 revealed that child victims represented 23% of all registered victims in the EU. However, in Ireland only nine children were identified as victims during the same period, accounting for less than half of the total number of victims. This discrepancy between the EU and Irish averages is striking and suggests potential issues with identifying child trafficking victims in Ireland. The Bill is important to prevent the exploitation of women for sexual reasons, prostitution or whatever. We must endeavour to ensure that women, men and children are treated humanely and the traffickers who are involved in desperate moneymaking operations are deterred from that by dealing with them properly in our country. We need to ensure that the might of the law is brought upon them and that they pay for severely for their practices.

Deputy Michael Collins

Human trafficking is a grave violation of human rights and it is a global problem that affects people from various regions, including those seeking better opportunities in Ireland. Traffickers prey on the dreams and vulnerabilities of migrants, promising them a brighter future but subjecting them to unimaginable exploitation.

One alarming aspect of human trafficking in Ireland is the practice of traffickers confiscating identification documents from their victims before they even land in the country. This tactic is part of a broader strategy to keep victims trapped and under the traffickers' control. Traffickers often confiscate identity identification documents for several reasons.

Addressing human trafficking in Ireland requires a multifaceted approach. It is crucial to strengthen laws and law enforcement efforts to combat traffickers effectively. Simultaneously, support systems must be in place to identify victims, provide them with the necessary assistance and ensure their safety and well-being. This includes providing safe housing, legal representation, medical care and counselling services.

While I am talking about criminal justice, I also have to speak about the system in our country. Criminal justice and trafficking is something we see happening across the world, but we have issues here with how it is dealt with in our justice system. The State solicitor service has been in existence for more than 100 years. The Courts Service has been well served by our State solicitors over the years. Malachy Boohig retired in November in 2022 as State solicitor for west Cork after 36 years. He was replaced on a temporary basis by Jerry Healy of Fermoy. He is now State solicitor for north Cork and west Kerry.

In June 2023, the State solicitor for east Cork, John Brosnan, retired and has not been replaced. It is the view of many in the legal profession that the DPP will not replace any of our State solicitors once they retire. It is also possibly the case that eventually a prosecution team will be put in place in a Cork county office where everything for Cork city and county will go through. Up to now there has been no consultation process regarding the future of our State solicitor service, which has worked well for the past 100 years. It is worrying to think that this system might be abolished without any objection or discussion. This may affect bringing criminals who carry out human trafficking to justice.

Has there been any consultation with solicitors, barristers, gardaí or the Courts Service regarding what type of service they would like? The acting State solicitor, Jerry Healy, now has twice the volume of work that he had a year ago. It is also likely that he will have to travel to courts in Bantry, Mallow, Bandon or Clonakilty. West Cork covers a very large area.

How is the DPP progressing with the review of the overall delivery of the prosecution service in County Cork? Has the report been prepared or finalised and, if so, when will this be available? Has the position of State solicitor for west Cork been advertised since Malachy Boohig retired?

These are very serious issues because we have to bring criminals coming into this country and who were engaging in human trafficking to justice. We need to have a system in place whereby justice can be carried out adequately and quickly. To have people stretched all over the place cannot be very healthy. In bringing criminals to justice, we have to consider our gardaí and the crisis we face in the force, where, despite 98.7% of the force having voted against the Garda Commissioner, Drew Harris, he is still in his position. That is another serious issue because we have to bring people to justice. We need to have a Garda that is strong, united and working together for the people.

Deputy Thomas Gould

I welcome the opportunity to speak on the Bill and acknowledge the long journey that has taken us to this place. In 2019, when Deputies Donnchadh Ó Laoghaire and Martin Kenny published their Bill, it was clear that no victim of sexual assault should face questioning on their clothing in a courtroom without legal representation. Some four years later, following Trojan work by victim advocacy groups, we are finally at a place where the Government has listened.

This year, the Cork Sexual Violence Centre celebrated 40 years in existence. I want to pay respect to the amazing work it has done in Cork, in particular to the work of Mary Crilly and the other staff and volunteers who create a safe place for those going through the hardest of times. They have called now for a ban on sex for rent. This is often a tactic used by unscrupulous landlords to target vulnerable women who have nowhere to live. This has been highlighted by numerous reports and Sinn Féin recently published a Bill aimed at banning sex for rent.

I am asking the Government not to wait four years this time. It has taken four years to get to this stage and we do not need to wait another four years because victims of sexual assault need support.

It is so often the case that victims in this State are overlooked and that basic change take too much time to be implemented. Reform should have happened sooner and now we need to see an end to the sex for rent practice.

The Irish Human Rights and Equality Commission has once again slammed Ireland for the treatment of victims of human trafficking. A total of 42 victims were identified last year. This is considered to be just the tip of the iceberg. Once again though, we must look at Garda resourcing. We are asking gardaí to investigate these complex crimes but there are not enough gardaí to police the streets of our cities. Thanks to their work last year, gardaí identified 42 victims of human trafficking but only eight beds were available in a specific shelter for them. It is time we took this issue seriously and work to address the significant gaps in our approach to the horror that is human trafficking.

Deputy Thomas Pringle

I am grateful for the opportunity to contribute to the debate. I welcome this legislation and many of its provisions regarding sexual offences. I particularly welcome the provisions that were introduced on the back of the O’Malley review, which contained 51 recommendations with four overarching themes. These were promoting better awareness of victims’ rights legislation; promoting education about the meaning and importance of consent; improving interagency co-operation and exchange of information, especially in respect of services for victims; and ensuring consistency in service delivery. It is extremely important that victims feel supported and protected. This is key if we expect victims to take that first step in coming forward.

When victims come forward to disclose a sexual assault, they are frequently met with more questions than support. This has to change. One of the biggest issues is that the Criminal Law (Rape) Act 1981 is mostly subjective. It is unacceptable that an "honest, though unreasonable, mistake that the woman was consenting" is considered a defence to rape. I welcome that this legislation will change the mens rea for rape in section 2(2) from "knowledge or recklessness" to "reasonable belief". This changes the accused’s belief from a subjective recklessness as to the victim’s consent to an objective standard of reasonable belief.

I welcome that section 8 ensures that when the defence in a trial involving a sexual offence makes an application to question the complainant about his or her sexual history or experience, the complainant is entitled to be separately legally represented when such application is being heard by the trial judge. This will, hopefully, improve victims’ experiences of the criminal justice system. However, I wonder whether there is a need to question a complainant about their sexual history at all. I fail to see how someone's past sexual encounters have any relevance to a sexual offence of which they are a victim. The prospect of being subjected to character assassination based on previous sexual history deters a lot of victims of sexual crime from continuing with a prosecution or even from making a report to An Garda Síochána in the first place. The consideration of someone’s sexual history is extremely invasive and seems to add very little to a trial while at the same time creating more barriers for victims coming forward with disclosures. The accused's previous history is not allowed to be disclosed in court and rightly so yet the victim can be held to account for their past behaviours.

I am glad that section 15 provides that where a person has been convicted of a sexual offence specified in the Schedule to the Sex Offenders Act 2001, any character evidence adduced at the sentencing hearing must be given on oath or via affidavit. We have seen celebrities such as Ashton Kutcher and Mila Kunis give character references for a friend convicted of a sexual offence and these character references hold significant weight, especially if they are given by someone with influence. Mila Kunis and Ashton Kutcher are only an example of this due to the fact that their character references were leaked but this happens on a much larger scale, and it happens in this country. It begs the question of whether these references would have been given in the first place if those providing them knew that they would be made public or knew that they would have to swear to the veracity of their statement and could be called before the court for cross-examination. This would mean character reference letters will no longer be read out in court unchallenged if such a challenge is warranted. This is a very positive development.

Where this Bill does fall short is in regard the human trafficking. The fact that the general scheme does not provide for a child-specific NRM is extremely disappointing. This was raised at the Oireachtas Joint Committee on Justice's pre-legislative scrutiny of the general scheme and the Department came back and said that the approach taken in the legislation is to create the NRM framework for all victims and to specify its membership, which will include the Child and Family Agency. I do not believe this goes far enough. We need a dedicated identification mechanism for child victims of trafficking. Children are among the most vulnerable victims of trafficking. Given their unique vulnerability, child victims of trafficking need child-specific processes and procedures. A 2022 report by the Irish Human Rights and Equality Commission indicated that child trafficking in Ireland has received very little public or political attention, there is limited research, debates on the issue are seldom and that relative to trafficking in adults, it appears that child trafficking remains more hidden and unknown. This is extremely shameful. We should be doing everything in our power to tackle child trafficking and the laws in this country do not go far enough in protecting child victims. At the very least, we need to put in place procedures to see how big a problem it is so that we can legislate for it. It is shameful that we are not even looking at the incidence of it.

On that note, I would also like to raise the outdated language in the Child Trafficking and Pornography Act 1998. Senator Flynn introduced the Child Trafficking and Child Sexual Exploitation Material (Amendment) Bill in the Seanad last year to address the outdated language used in our legislation. Unfortunately, the Minister has not engaged with this legislation since then. I will finish by urging her to consider strengthening the 1998 Act to ensure further protections for victims of child trafficking and to update the outdated and harmful language within the legislation.

An Leas-Cheann Comhairle

I understand that Deputy Bríd Smith and Deputy Barry are next.

Deputy Bríd Smith

I think Deputy Wynne is next. We are Paddy last.

An Leas-Cheann Comhairle

I have alternative instructions. I call Deputy Costello. It was just who was in the Chamber first.

Deputy Mick Barry

Where are we on the list?

An Leas-Cheann Comhairle

When the list comes up, I will call it out. The Deputies are further down. Deputy Costello is next.

Deputy Mick Barry

I want clarity on this.

An Leas-Cheann Comhairle

I will give the Deputy clarity. As I have it before me, we are on the second round of the debate and the first speaker in the second round is Deputy Costello.

Deputy Mick Barry

Where are we on the list?

An Leas-Cheann Comhairle

Deputy Barry and Deputy Bríd Smith are further down the list.

Deputy Mick Barry

We have been waiting for far longer.

An Leas-Cheann Comhairle

I am not having an argument with the Deputy. He is further down the list. He could be next if nobody comes in but at the moment, he is down the list. The only reason I was going to Deputy Barry and Deputy Bríd Smith first was because they were in the Chamber longer. That was the only reason.

Deputy Patrick Costello

I am unclear.

An Leas-Cheann Comhairle

I am telling Deputy Costello that he is next.

Deputy Patrick Costello

Deputies Wynne, Barry and Bríd Smith have been in the Chamber longer than me.

An Leas-Cheann Comhairle

I am not having a discussion. If Deputy Costello does not want his slot, I will move on.

Deputy Bríd Smith

We are not allowed to be nice to each other.

Deputy Patrick Costello

Like other Deputies, I welcome the changes relating to sexual offences. Plenty of time is spent in this Chamber discussing the issues of violence against women, assault and sexual violence and the fact that this is a cross-society issue, but the justice system needs to play a part in that. Regarding the journey of a sexual offence from the point at which it happens to the point at which somebody is convicted, the number of times victims do not come forward, the number of times they come forward but the case does not progress to trial or the number of times it progresses to trial but the trial collapses have been very well documented.

There is a huge swathe of victims whose perpetrators have never been brought to justice, so the justice system absolutely needs to play its part. This legislation dealing with sexual offences helps us achieve that and helps us move closer towards it. We need to do better on vulnerable witnesses. This was something that came through loud and clear in the pre-legislative scrutiny and in the report from the Joint Committee on Justice. We are not doing enough to protect the vulnerable witnesses with regard to sexual offences and until we do that, they are very unlikely to come forward, the system is very unlikely to change and perpetrators will still get away with it. The justice system needs to ensure it is playing its part.

I am have been on my feet numerous times in this House to speak on human trafficking and the national referral mechanism and on how, as it exists at the minute, it simply is not good enough. In many ways, given the amount of time we spent on tier 2 watchlist in the Trafficking in Persons, TIP, report, we are probably very lucky we have not fallen down to tier 3. Indeed, as I brought a Bill of my own on reforming the national referral mechanism some time ago, this is welcome. The Bill as it stands before us is not without its difficulties and challenges. I echo the comments of Deputy Pringle before me that we need a bespoke system for children. Children are holders of rights in their own right. We have enshrined that in our Constitution. We have signed up to the United Nations Convention of the Rights of the Child so they are individual rights holders and that needs to be recognised and vindicated. Caoilfhionn Gallagher KC, who has recently been appointed as Special Rapporteur on Child Protection, was before the Joint Committee on Children, Equality, Disability, Integration and Youth, where she highlighted as a significant child protection issue, the failure in terms of identification and support for child victims of trafficking. I have encouraged her to link in with the Department and with the Minister to address this very issue because this is a huge glaring weakness in this legislation.

Another thing is that we need to recognise that victims of trafficking need support before, during, and after the process of coming forward and being recognised as victims of trafficking. The legislation as it is provides that supports "may" be provided instead of using the terministic legal language of "shall be provided". Again, drawing a parallel with child protection, when it comes to aftercare provision, we see the State "may", not "shall", provide aftercare support and in many cases, aftercare support for children in care has been identified as being lacking and not up to scratch. The campaigners in that area have campaigned for a change in the law so that the legislation says the State "shall" provide supports. Similarly here, instead of sticking with the looser language of "may", we need a stronger black letter law to set out we "shall" provide the supports because we need to provide the supports. We need to provide supports for people coming forward so that they come forward. It is only when people come forward that we can start arresting, trying, and convicting the perpetrators of human trafficking. Thus far, we have barely scratched the surface of human trafficking in this country; both in terms of recognising victims and in arresting and convicting perpetrators. Anything that encourages people to come forward is essential. Anything that blocks them coming forward needs to be looked at. The issue of immigration status is something that is going to block people coming forward. It has been campaigned for that victims of trafficking, who are recognised as such, should have an immigration status that allows them to stay in this country. This is something that is essential to ensure they come forward and they seek out his help and service. Again, we need them to come forward so that we can actually start unravelling the networks of trafficking and hunting down and fining its perpetrators. While the changes are welcome, we need a bespoke system for children. This is essential to vindicate the rights of children and children's rights experts have said this. We need to do more to support victims; we should be providing services by tightening the law to say we shall and not may provide supports; and the immigration status needs to be addressed or we will not doing victims justice. They will not come forward and we will never catch the perpetrators.

Deputy Mick Barry

I am sharing time with Deputy Bríd Smith.

We are debating and discussing a change to the law. Where has the pressure for this change come from? It has come from below. It came from the repeal movement, the Me Too movement, and from the sentiment for I Believe Her in the aftermath of the Belfast rape trial. Insofar as this legislation is a reflection of the aspirations and the demands of those movements, it is positive and represents a step forward. However, it is a mild reflection of the aspirations and demands of those movements, it does not go far enough and the process of putting the changes before the Dáil has been very slow. It has been five years, which is too long but it is here now so we will debate some of the issues at stake.

On the issue of consent, it is currently a defence in a rape trial to say "I thought there was consent" or "In my opinion, there was consent". That is now going to change, if and when this legislation is passed and that is a good thing. It is definitely a step forward. What will be required now is something a reasonable person would see as consent, which is better than what is there beforehand. It is less than a situation where it could be said that consent must be actively obtained. That would be a higher bar and a clearer position, and it would be a better position than what is proposed in the legislation. It also needs to be made clear that consent can be withdrawn at any time.

On the issue of the sexual history and sexual experience of a victim, we have seen many times where a victim has ended up defending themselves in the courtroom or that the victim - overwhelmingly in the majority of cases a woman - gets put on trial and her sexual experience and history becomes part of the debate in the court. That should not be the case. It should never be the case. It should be ruled out and the fact that it is still allowed in any circumstances in this legislation is a weakness in the legislation.

On the issue of character references, the Bill seeks to reform the use of character references by making them sworn and for the authors of said references to be potentially subject to cross-examination. This too is a step forward. I agree with Deputy Pringle and also ask whether character references should be allowed to play any role in such cases. Recently we had the case in the United States of the Hollywood actor Danny Masterson who was sentenced to 30 years to life for the rape of two women. Mr. Masterson's co-stars in the comedy "That 70s Show", Ashton Kutcher and Mila Kunis, provided character references for him. Mr. Kutcher said that Mr. Masterson was a role model, that he "set an extraordinary standard around how you treat other people", and that he was not able to recall an incidence where Mr. Masterson had lied to him in the 25 years they had known each other. Ms Kunis said she had first met Mr. Masterson when she was a teenager and that on meeting him she could "sense his innate goodness and genuine nature". Now I have no doubt that there are rapists who have friends who admire them and some of their personal qualities. Equally, I have no doubt that there are rapists who have little good that could ever be said about them. However, the point is that it does not really matter. Both do equal harm to the victims.

I do not think a victim-centred justice system would allow such character references any longer in such trials.

If I had more time, which I do not, I would make more detailed points about trafficking. I would say the State is part and parcel of a racist EU border policy, the fortress Europe policy, which helps put traffickers into business. Victims of trafficking need protection from prosecution and should have a guaranteed right to live and work here.

I welcome the fact that the legislation proposes an end to a situation whereby someone would be tried for rape in front of a military court. That case would now be heard in the civil courts. That is a significant step forward, and I salute the work that has been done by the Women of Honour, who I believe have played an important part in pushing for that change.

A key to this whole issue is education. We need comprehensive sex education programmes in the education system. The question of consent needs to be central to that education. Awareness about consent needs to be raised right throughout society. There is a pushback against modern and progressive sex education in this country at the moment. It is coming from the far right. They have their supporters in this Chamber, who echo the talking points and pushback against sex education. Some of them have made spirited contributions to this debate but have avoided that issue and the boost they are giving to the far-right talking points. The far-right pushback against sex education needs to be defeated, and the Government needs to stop wobbling and bending to that pressure.

Deputy Bríd Smith

We support the Bill and believe, to echo what others have said, that it needs amending. We would welcome an answer from the Minister as to whether he is open to amendments and if and when the framework as to when the Bill might be passed would be outlined to us.

We have been through an epidemic of misogyny and gender-based violence, violence against women. Sometimes, when you stop and think about it, it is quite extraordinary and you wonder what the hell is going on in the world and why this has taken off in the way it has.

It is also important to be very clear to the population, to our constituents, because there are muddled messages out there as to why we see such a high level of sexual and gender-based violence in our society. One of the messages is that the biggest threat to women and children comes from the foreigners or the refugees, particularly those who are not from Ukraine, who, it is said, come into this country and are a big threat to us all. It is said they are unvetted and a threat to women and children. We should use this opportunity, in debating this Bill, to scupper that notion and look at the statistics, the facts and the research coming from many organisations, including local ones. Deputy Barry has just shared a quote with me from a Cork rape crisis centre. There is the national rape crisis centre and the Irish Human Rights and Equality Commission. The vast majority of gender-based and sexual violence is committed and perpetrated on people by somebody who is intimately known to them. Some statistics show us that over 80% of sexual violence is perpetrated by somebody in the family or intimately known to the victim. That is a very important point that we need to use this opportunity to get across in order to cut out the hate-filled bile being quoted and permeated around our communities as we speak. I say that very genuinely to my constituents. They need to think twice about what they are hearing, what they are reading on social media and what sort of bile is being passed as genuine information to them.

Having said that, there is an epidemic of gender-based violence. The responses to it have been amazing, when we look back at the outburst after the murder of Ashling Murphy and after the murder of Sarah Everard, who was murdered in Britain by a member of the Metropolitan Police. You wonder if you can really trust any level of authority in this society. The outburst of emotion, anger and support for the victims has been extraordinary and unprecedented. Like Deputies Barry and Pringle argued, in many ways it is that response that has forced governments and ministers to look at changing the legislation around how victims of sexual and gender-based violence are used and abused in the courts. We have loads of examples of that. I will not repeat any of them here.

Also, the question of sex education is hugely important. If we go to the younger generation now with comprehensive, non-moralistic, non-ethos-based sex education and really explain to them what consent actually means and how it is implemented in one's life, then we can look forward, I hope, to future generations being much more open, much kinder to one another and much more receptive to one another. Then this sort of perpetration of sexual violence against women and girls, and sometimes against boys, will be removed from our society, not just by criminal law but by changing culture.

Having said that, we welcome elements of the Bill but we also support some of the criticisms, particularly from the Irish Human Rights and Equality Commission. I am sure it wrote to all Members, but it is worth quoting the commission. It states:

There is still no statutory protection from prosecution for victims of human trafficking – where a person has committed a crime as a direct consequence of them being trafficked. The United Nations High Commissioner for Human Rights has clearly stated that victims should not be punished for any unlawful activities that arise as a result of trafficking ...

It is really important that we look to amend this Bill to include that. IHREC's statement continues:

The Commission is also disappointed to see that victims of sexual exploitation are still not afforded the same protections in criminal trials as victims of other sexual offences. By choosing not to extend separate legal representation to victims of sex trafficking, if there is an application to question them on their previous sexual experience, once again leaves these victims – who are disproportionately migrant women – with diminished protections in trials.

In its criticism, the Dublin Rape Crisis Centre "expressed disappointment that there is no provision to ensure that victims have access to legal advice from the outset, and as they need it during the investigation and the trial process." This, it said, "was recognised as a necessary part of supporting victims on their journey through the justice system, and its absence denies victims the right to be fully informed and equipped to deal with the system, where they play such a crucial part in their own cases on behalf of all society."

Again, the question is whether we are open in progressing this Bill to amendments because there are very sensible and crucial points being made by these highly professional organisations, which are informing us of the need to amend the Bill.

Finally, like others, I pay tribute to the Women of Honour. I think many people will be surprised to know - and it is only because of the Women of Honour that we know - that persons subject to military law, in the past and up to now, when they have committed sexual offences in this State have been dealt with by court martial rather than by gardaí and civilian courts. This Bill will now change that. Court martial will apply only where those offences are committed abroad. This is a very welcome change, and all honour to the Women of Honour for campaigning to make sure that this was included in the Bill.

Deputy Violet-Anne Wynne

I begin by acknowledging the trafficking and exploitation of human beings, especially children, as a global issue that is not unique to Ireland. However, compared with our counterparts in the EU, Ireland is lagging in tackling human trafficking in all its forms. Convictions for traffficking and the number of identified victims of trafficking are extremely low.

Ireland is considered a country of destination for trafficking. The most prevalent form of trafficking in the State is for the purpose of sexual exploitation. In 2021, An Garda Síochána's anti-trafficking unit identified 44 victims of trafficking. In 2022, five child victims of trafficking were identified for the first time.

These numbers are inaccurate as instances of human trafficking are severely under-reported, while obtaining a conviction for human trafficking is even rarer. The first ever conviction in the State for human trafficking was handed down only in 2021. While great strides have been made in recognising human trafficking and exploitation as an issue worth tackling, we have a long way to go in identifying and supporting victims. Ireland was the only country in the EU to be placed on the US State Department’s tier 2 watchlist in 2021. Unfortunately, our place in the report’s ranking has not improved as again the US State Department’s Trafficking in Persons report places Ireland in tier 2 this year. Ireland’s placement in tier 2 for a second consecutive year means we have again failed to meet the minimum standards in tackling human trafficking.

I am pleased the Bill targets the many weaknesses in the State’s response to human trafficking, specifically in the identification of victims. Currently, the identification of victims is the sole responsibility of An Garda Síochána, but as we have seen, it creates few opportunities to identify victims. The highly secretive nature of human trafficking means the vast majority of cases may never come to the attention of the Garda. I mentioned earlier that human trafficking is a crime that is severely under-reported. That is so because it often happens in secrecy, and chillingly, in plain sight. The introduction of the NRM will allow the State to cast its net wider in terms of identifying victims.

Agencies such as the HSE, Tusla, and the WRC will form part of the proposed operational committee under this Bill. This is incredibly positive as it shows a greater understanding of human trafficking. The trafficking of human beings happens for several reasons and exploitation can take many forms, including labour exploitation, forced begging and forced criminality. The wide-reaching areas the organisations named will aid the Garda in identifying the victims that are harder to spot. I particularly welcome that Tusla, the Child and Family Agency, and charities focused on trafficking, have been proposed to form part of the operational committee.

For too long the State has failed in its obligations to protect and support victims of trafficking, especially child victims. While the Bill introduces considerable progress to our current laws relating to trafficking, some gaps remain. Robust child protection measures for child victims of trafficking are absent. It gives effect to the optional protocol to the UN Convention on the Rights of the Child on the sale of children. The Bill does not clearly state whether child victims are protected under the Children First Act 2015 to ensure that the best interest of the child standard is applied to child victims of trafficking. Will there be specific criteria for identifying child victims of trafficking? Second, once a child victim is identified, what is the process for determining the child’s age? What are the specialised mechanisms to support child victims once identified?

In addition, I previously mentioned that forced criminality is a form of exploitation endured by trafficking victims. Coerced criminal behaviour often prevents victims of trafficking from coming forward. Will there be protection from prosecution for these victims under the legislation? For Ireland to finally achieve an adequate standard of protection for victims, it is vital that these issues are ironed out, not only to improve Ireland’s standing among fellow member states but also to quash the idea in the minds of potential traffickers that such things will be tolerated by the State. It is both noteworthy and extremely concerning to international observers and potential traffickers that in the 15 years since legislation was introduced to tackle human trafficking, we have only managed to secure two convictions for human trafficking.

We face many complex challenges in Ireland, with the crises in health and housing at the forefront of many people's minds, and rightly so. However, we cannot continue to ignore the issue of human trafficking in Ireland. In many cases, the lives and safety of vulnerable people, especially children, depend on large swathes of society being alert to the problem of human trafficking. It is extremely likely that the average person has encountered a victim of trafficking either at their place of work or local business. That brings me to my final question. Will the Government commit to raising public awareness on human trafficking and its different forms? I want to conclude by commending the Minister of State and all in the Department of Justice on this Bill. It is a much-needed improvement on our current laws but to ensure that it is successfully implemented, I urge him to resolve the issues I have highlighted and consider raising awareness on the issue.

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

The Bill sets out a package of measures that will introduce important reforms across a number of areas. I would like to stress that the common ground underpinning all of these measures is our commitment to strengthening the protections of vulnerable victims. Victims of sexual crimes and human trafficking undergo harrowing personal journeys. These can often be long, difficult and traumatic. They deserve to feel safe and supported in accessing justice and in availing of protections that they deserve. They also deserve systems that prioritise their well-being and that deliver for them. Enhancing protections for vulnerable victims is a priority for me and my Department.

The Domestic, Sexual and Gender-Based Violence Agency Bill 2023, which I was pleased to introduce to the Dáil last week, is another important measure, and this agency will be instrumental in driving forward the whole-of-government, zero-tolerance approach that underpins our third national strategy. Legislation creating new stand-alone offences of non-fatal strangulation and stalking was also introduced in recent months. In addition, the maximum penalty for assault causing harm has been increased from five to ten years. Meanwhile, the Sex Offenders (Amendment) Act 2023, enacted in April, is designed to strengthen the management and monitoring of sex offenders in the community.

However, we acknowledge that legislation alone is not enough, and that is why our Department has also developed an ongoing series of high-profile awareness and information campaigns, including raising awareness of victim's rights and of intimate image abuse as a criminal offence. Further awareness campaigns are planned for later in the year. We have also seen the establishment of a specialist sexual offences unit in the Office of the Director of Public Prosecutions, and the Criminal Justice (Legal Aid) Bill 2023 underwent pre-legislative scrutiny only yesterday. The provisions of that Bill allow for the Legal Aid Board to provide free legal advice in sexual offence cases, with free legal advice also available to a victim at any time after a sexual offence has taken place.

The main objectives of this Bill include reforms around consent in line with the O'Malley review on protections for vulnerable witnesses in the investigation and prosecution of sexual offences. They also include a proposed new NRM for the victims of human trafficking and putting it on a statutory footing. Another objective of the Bill is to clear final obstacles around the ratification of the second optional protocol to the United Nations Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. The Bill also aims that, on foot of the recommendations of the independent review group report on dignity and equality issues in the Defence Forces, the Defence Act 1954 will be amended to ensure that persons subject to military law who commit specified sexual offences in this jurisdiction will be dealt with by An Garda Síochána and the civilian courts, rather than by court martial. The Bill also provides that character evidence introduced at a sentencing hearing for a person convicted of an offence listed on the schedule of sexual offences in the Sex Offenders Act 2001 must be made on oath or via affidavit.

All of these measures address insidious, often hidden, heinous and horrific crimes against the most vulnerable of victims in our society. A zero-tolerance approach is the only approach. A whole-of-society and a whole-of-government approach are ones that have to be taken. Significant work has been done by the Minister, Deputy McEntee, and myself in the Department, and more work is ongoing. All of this is at the heart of law and order and ensuring a just society. I have heard the Deputies’ comments, which will be taken into account. We will have a further opportunity on Committee Stage to discuss amendments.

Question put and agreed to.