Amendment No. 1 is out of order as it is declaratory in nature and its purpose could be more appropriately achieved by way of amendment to Second Stage.
Criminal Law (Sexual Offences) Bill, 1993: Committee Stage.
NEW SECTION.
When will this Bill come into operation? Is there a set period within which the Bill will be signed?
My understanding is that as soon as the Bill passes through this House it becomes law once the President signs it and there will be no delay.
Amendment No. 1 not moved.
SECTION 1.
I move amendment No. 2:
In page 3, subsection (1), between lines 20 and 21, to insert the following definition:
"‘solicits or importunes' means the persistent and unwelcome offer of financial reward for sexual services or the persistent and unwelcome offering of sexual services for financial reward;".
It is curious that a Bill, whose principal intention is to decriminalise sexual activity between males in private should start with a series of definitions of "motor vehicle", "public place" and "street" and although there purports to be a definition of "soliciting", there is not in fact. All it says is: "solicits or importunes includes soliciting or importuning from or in a motor vehicle, and cognate words shall be construed accordingly;". I feel it was important we should have a definition in law of what it meant to solicit or importune.
One of the reasons I feel it is important that we recognise this difficulty is the experiences in the United Kingdom and America where vague provisions regarding soliciting and importuning have been employed by the police to engage in the provocation of crime. They send police persons out as agents provocateurs and there are policies of entrapment in certain metropolitan jurisdications in both countries that are well documented. I felt it was useful, for the purposes of this Bill, to define soliciting or importuning as: “the persistent and unwelcome offer of financial reward for sexual services or the persistent and unwelcome offer of sexual services for financial reward”. That covered the aspect of nuisance to the public in both directions. It means that if a prostitute offers his or her services in an unwelcome, displeasing or offensive way, he or she is guilty of that offence or, alternatively, if a potential client harasses someone offering sexual services, they are equally guilty.
The amendment is not intended to be obstructive but it would be helpful and, in particular, would obviate the possibility of entrapment, although I have to say at this point that my experience of the police is this area is good. The Garda have a good relationship with the gay community; once or twice there have been some glitches when there have been murders and there has been a widespread trawl for information, which included the gay community but by and large relations are good and civilised. This definition is useful and is in the context of a Bill which begins with definitions such as streets, motor vehicles, etc. I will not be flippant. For that reason, I have not tabled additional amendments, including offences taking place from or within motorcycles, combine harvesters, skates or other means of conveyance. This is a serious matter and it is rather odd that we begin with definitions of motor cars, streets, etc.
In support of the general tenor of these amendments, I note that the section to which the amendments are proposed extends to prostitution, either male or female, and this is consistent. I ask if exception will be made in relation to young prostitutes, particularly young male prostitutes?
Acting Chairman
Senator O'Kennedy, it is inappropriate to raise this matter at this time. A specific section deals with this matter.
To which section do you refer?
Acting Chairman
We are dealing now with amendment No. 2; later we will deal with the section.
Both amendments refer to "the persistent and unwelcome offer of financial reward for sexual services or the persistent and unwelcome offering of sexual services for financial reward;. It is in that context that I am speaking. However, if I can raise this matter again——
Acting Chairman
There is no problem dealing with this matter when speaking to the section, unless it is related directly to the amendment.
I will not delay, I do not intend to be obstructive. However, there is a pattern in a number of European countries of young male prostitutes, many under 17 years of age; I could instance places and cities where they can be found. Will we treat young male prostitutes in the same punitive way as we treat others of mature age? I certainly do not want to be seen as promoting activities of young male prostitutes. However, because of their age and immaturity perhaps we could recognise this in an appropriate section or amendment.
I understand Senator O'Kennedy's concerns, but I would like to see such a section restricted to young male prostitutes. Many female prostitutes are extremely young; some are only 14, 15 and 16 years of age. If the Minister introduces legislation in this regard, it should not exclude young female prostitutes. This Bill is gender neutral and I hope both sexes are included in any new section.
The effect of this amendment would be to legalise many of the public manifestations of prostitution and, as such, I regret is unacceptable. I have explained in both Houses that prostitution is not illegal. What transpires in private between consenting adults is no business of the criminal law. The law must be concerned with the nuisance and annoyance caused by the public face of prostitution which is, in effect, soliciting, importuning or loitering for the purposes of prostitution.
Senator Norris' amendment would remove entirely the protection given by the law to persons living in areas frequented by prostitutes. Prostitutes could offer their services in public with inpunity and clients, including kerb crawlers, could wander around an area at their ease. Noise, rows and violence could continue throughout the night. Littering in gardens and streets would bear witness to the night's activities. It is not a pretty picture but it is what happens in areas where prostitutes and their clients congregate to do business. I am not sure whether the amendment would protect women who are not prostitutes from being accosted. Such a woman would have to be prepared to give evidence in court and experience shows that persons annoyed, frightened or harassed in that way are unlikely to go to court.
The Law Reform Commission in its report on vagrancy and related offences argued against the concept of persistence. They pointed out that a man who accosts a woman in an area known to be frequented by prostitutes in the belief that she is one, only to find she is not, is unlikely to be persistent. Nevertheless, the annoyance caused to the woman in question is likely to be considerable. The element of persistence is designed to ensure against the possibility of a person being arrested by mistake. The requirement in sections 7 and 8, that the solicitation must be for the purposes of prostitution and not just an ordinary sexual advance is sufficient safeguard. Therefore, it is unlikely that women who are not prostitutes who are accosted for the purposes of prostitution would be protected by the amendment, despite the fear caused to them by such accosting.
If I accepted the amendment, I would be failing in my duty as Minister for Justice to protect a section of the community against the considerable nuisance of solicitation in areas where people live, visit or pass through. For that reason I cannot accept the amendment.
Senator O'Kennedy raised a valid point. It was raised in the Dáil last week and has since been spoken about publicly. The Second Commission on the Status of Women made recommendations in relation to the way we treat prostitution. They made strong recommendations in relation to the cooperation of three specific Departments — the Department of Health, the Department of Justice and the Department of Education. Although they did not suggest the establishment of a task force, they were concerned that all three Departments should be involved in this area. By working together, a programme of rehabilitation and support could be initiated for young male and female prostitutes coerced into becoming involved in prostitution. I know Senator O'Kennedy wants both young male and female prostitutes involved in this process.
The Government has accepted the recommendation of the Second Commission for the Status of Women. I have given a commitment to both Houses that the three Departments will consider how best to implement that recommendation, rather than introducing legal provisions. By combining the three Departments we can help those involved in the situation outlined by Senator O'Kennedy.
I thank the Minister for her clear answer, although I do not agree with all aspects of her reply. She has certainly reassured me on the points that caused me concern; for example, I was concerned that the ordinary social relationship of chatting to someone in a public house might be construed as solicitation. Either in case law or by definition, there must be a definition of soliciting, otherwise I am not sure how this was arrived at. However, I am happy to withdraw the amendment.
I refer to Senator O'Kennedy's sensitive and appropriate intervention on the question of young males and females involved in prostitution. Senator O'Kennedy seemed to suggest that this was a phenomenon confined to continental Europe or England. Sadly, this situation has existed in this country for many years. One of the difficulties faced by the gay movement through the Hirschfeld Centre was the fact that groups of boys ranging from ten to 18 years of age infested the Dublin quays. Many were not homosexuals; they were victims of broken homes, of abuse in the home, or alcoholism of parents or other social problems and they were cast out on the streets.
Acting Chairman
Could we stay with the amendment? Once the amendment has been discussed I will allow Senators to speak on the section.
This made it virtually impossible for us because we could not reach out to them, much as we recognised the social problem, because we felt we would be stigmatised by the tabloid press as being involved in this. If the Minister has suggestions as to how this can be addressed by State agencies we would welcome that.
Amendment, by leave, withdrawn.
Question proposed: "That section 1 stand part of the Bill."
I wish to speak on the section in view of the Minister's response to a query I raised. I am happy to note that there will be co-ordination between the Departments most appropriately involved, and that is very important. Having said that, I still have to take note of the fact that there is no legislative provision as of now that will distinguish between young prostitutes of the ages Senator Norris mentioned, be they male or female. Under the law as we will pass it, they would be subject to the same sanction of the law as would mature people who engaged in prostitution and would be guilty of the proposed offences. I am concerned about this.
I welcome the fact that the coordination between the Departments of Justice, Health and Education and the advisory services will do everything possible to ensure that those young people, of whatever sex, will not be trapped in this unfortunate condemnation of life prospects. I am equally concerned that if they are for the time being so trapped, despite the help we would like to provide for them in the nature of services, they would not be treated in the same fashion because they are of immature capacity due to their age. What will happen between now and the time the various Departments co-ordinate their activities in this area? This Bill as I see it, although I would like to be told I am wrong, does not distinguish between young people of ten, 12 or 14 years of age and others of mature age.
Senator O'Kennedy will have the opportunity to support our amendments which might go some way towards assisting the situation by reducing fines or making allowance for their reduction or imposing community service orders. He may not find it possible to support them but it is a potential possibility.
Under age prostitution is tragic. Sometimes it is engaged in not solely for financial reward. These are very isolated and lonely people and although they may not wish primarily for sexual satisfaction from the men they engaged with, they are often looking for affection from an older person, shelter for the night and some degree of kindness. It is a comment on our society that people should be placed in such a perilous and neglected situation.
I would like to pay tribute to the extraordinary work of people like Fr. Peter McVerry in Ballymun and the inner city who have shown the proper face of what I would understand Christianity to be. If there is any funding available I think he would be one of the people most suitable to get this funding. I say this particularly because he has a very high reputation, he has been involved in this area for a number of years and would not have the difficulties that organisations like the one I have been involved with would have.
When we were approached by the leaders of some of these young people we had great difficulty because of the misinterpretation and the misconstruction that could have been placed on any intervention by us. We also had to be aware of the fact that in social situations within the Hirschfeld Centre, if we included people who habitually worked as prostitutes we would be exposing the decent members of our community to another kind of risk. In one or two circumstances where the people were not of a particularly young group and where we were convinced they were gay themselves, we allowed them to be included in some of the activities.
I am very glad to be able to tell the House that one of them is now a sucessful businessman. This is somebody who came to us when he was about 17 years old and was a hardened prostitute who came from a very difficult background of a broken home in the inner city. He has now made a life for himself. I think it is remarkable if such people can be assisted and taken off the streets where they are selling themselves. Nowadays they are extremely vulnerable to drugs. Anything the Minister can do in this matter would be very much welcomed.
I urge the Minister to do everything she can in this area because it is one where we can make progress. As Senator Norris said, many of these young prostitutes are homeless. Why are they homeless? A considerable number of them come not only from broken homes but have run away from homes where there has been child sexual abuse. Almost 95 per cent of the women involved in prostitution have been the subjects of child sexual abuse. One can discuss this with the Rape Crisis Centre because they have tried to take positive action in this area. If these people run away from home they have three options: they can beg, steal or become involved in prostitution. They already have a very low opinion of their own worth from a sexual point of view. Having been involved in abuse without payment, it is easy for them to continue being involved in abuse with payment.
I am disgusted at the campaign that has been mounted against the Stay Safe programmes in the schools. I am astonished at this opposition. There is yet another article in the newspapers today expressing inability to understand it. Have the people who oppose the programme read it? I do not see how any parent could object to it. It is wrong to say that most child sexual abuse is perpertrated by people from outside the family. This is not so. Our figures for the incidence of such abuse are similar to other countries. I urge the Minister for Education — and I have written to her about this matter — to keep encouraging this programme.
Children are entitled to protection. If we, as adults, have to tell them how to protect themselves it is of the utmost importance that they should learn that any sexual interference, no matter from whom, is unacceptable. I cannot understand why anyone would not try to help a child protect himself or herself. Statistics are constantly being produced which show the effect of sexual abuse on young people. It is to our great distress that we see them drifting into prostitution because they have so little value for their own physical and sexual integrity and their own bodies. Their attitudes is "I was not paid for it before but I am being paid for it now". I urge the Minister to do what she can to alleviate this problem.
My amendment was disallowed because it was declaratory in nature. The Minister said she was bringing in legislation that was in accordance with the recommendations of the Second Commission on the Status of Women and that pimps and male clients of prostitutes will be treated the same as the women involved. She accepted the commission's recommendation of an integrated approach involving the Departments of Health, Education and Social Welfare.
I do not accept that we should be dealing with prostitutes in this Bill. Everybody accepted that this is dealing mainly with homosexuality and it is unfortunate that prostitutes are mentioned in this legislation. I would like to have seen the measures the commission recommended set in place before this legislation was enacted because of the effect it will have on women. The commission recommended — and the Minister accepted — an integrated approach involving the various Departments. It also recommended the establishment and funding of drop-in centres which would provide short term accommodation as well as opportunities for self-help and building the self-esteem of women. It should also involve relief from isolation, informal education and advice and medical and social assistance. These are measures Senator Henry, Senator Norris and Senator O'Kennedy would support.
We have been assured by the Minister this will happen but we cannot be sure. Today we are voting on a provision which implements part of what the commission recommended but we have no assurance the other recommendations will be introduced. Those developments would be ones I would like to see: the rehabilitation of prostitutes, of women who feel they must become involved in prostitution because they are homeless or in poverty. That is why this amendment was tabled but it has been disallowed. I would like to hear the Minister's comments because I fear this will be forgotten and nothing will happen.
The House wishes the Minister to reply on the substantive point relating to the position of young immature prostitutes be they male or female, when this legislation is enacted. I will comment on what has been said by my colleagues because the impression abroad is that the majority of sexual abuse occurs in the home. We must be careful when saying that. It may be the case but we must also acknowledge that happy and warm relationships exist in the majority of homes in Ireland. This is true between parents and children, and also uncles, aunts and other relations. That is the pattern of Irish life.
When we say most abuse of young people arises within the home, there is a risk that bona fide affection between uncles and nephews may be seen by young people as requiring caution. They may decide they must be wary of a particular member of the family. We must signal here we are confident that the pattern of life, of affection shown towards young people in the vast majority of homes in Ireland, will continue and will be encouraged by us. There should be no taint of doubt or apprehension in the young. There may be exceptional cases to be wary of but we should not give the impression it is the pattern throughout what is generally a happy society.
My second point relates to males or females forced into prostitution through homelessness. I do not disagree this is one of the main factors propelling them into this way of life. However from my observations in various European cities in which I have lived and worked, not all young prostitutes are forced into the trade because of homelessness or leaving unhappy homes. If one visits certain arcades in Milan, Paris or Rome one sees young people dressed in a style which does not suggest they are products of broken homes. They may be drawn in by people who have little concern for their welfare and may be kept in comfortable surroundings. The pattern is not that prostitution exclusively involves the poor, although we must have special concern for them. Many who do not come from broken or impoverished homes are also in danger.
Very few people enter prostitution voluntarily, without strong social or financial pressure. This is an enormous worldwide industry and women are being sold in parts of Asia. It is a revolting, appalling traffic and a real reproach to us all as members of the world community.
I return to an extremely valuable development mentioned by Senator Henry, the "Stay Safe" programme in schools. At the moment there is a consistent campaign to undermine it, which is quite wicked. The methods being used are dishonest and scurrilous and the usual connection exists with right-wing American agencies. Many years ago when I started the campaign for homosexual law reform I was accused of being part of an international conspiracy funded by New York Jewish money. I wish that had been true. It is certainly true that agencies in the USA committed to profoundly right-wing philosophies are exporting their lies to this country. There is a campaign in which possibly well motivated Irish people are involved and Fintan O'Toole's article in The Irish Times this morning frighteningly exposes this.
One can look at the language used, if I recall, by an Irish person, a lecturer in philosophy in one of our universities. He said children were being encouraged to report these attacks, even if they were carried out by the father. That almost implied if the father was responsible it involved a certain droit de seigneur and that a parent was entitled to make the first sexual advances on his own child. That is not tolerable.
At a gathering at UCC in February this statement was made by a lecturer in philosophy in one of our universities: I am glad to say it is not the one which employs me:
Children are being told to tell teachers if anyone interferes with them, even if it is their father. This is a direct attack on parental responsibility.
That, in my humble opinion, is taking that much abused term "family solidarity" to an utterly unacceptable extreme. Simply because one is a biological parent one is apparently given by these "Christian" people a licence to molest one's own children. No rational or decent person would support this attitude.
I hope the Minister will pass on to her colleague our concern in this area. As Senator Henry has indicated, this is the sort of situation which can create prostitution among children who are abused. She quoted the felicitous turn of phrase used to her by a young woman: "I wasn't paid for it once but I'll be paid for it now".
These people speak of a hidden agenda in education and denounce the United Nations Declaration on the Rights of the Child as a secular humanist plot. The names of these organisations are interesting as well. One is called PASS, Parents Against Stay Safe. Such people should be told that expressing these views is highly dangerous and in a real sense is subversive of the best values of the family of which Senator O'Kennedy spoke.
Of course, the majority of families in this country provide a decent positive environment for children to grow up safely but we must also legislate for the vulnerable. I am tired of easy phrases like "family solidarity". I also resent making an icon of the family as an institution. Then, when the word is invoked, no matter how rotten a family may be we cannot intervene. One need only instance the Kilkenny incest case to make this point perfectly clear.
When Senator Norris says he is tired of making an icon of the family as an institution, I remind him it has been elevated to the status of an icon not by any individual in or outside of this House but by Bunreacht na hÉireann. This document specifically elevates the family to a special status. It is good to put this on the record in this context, because while one may have various views about the organisation Family Solidarity, one cannot be in any doubts as to where the family stands in our Constitution. All of our actions here must be consistent with this Constitution. It states "the State recognises the family as the natural primary and fundamental unit group of society" and it says "as a moral institution". We do not like using the word "moral" anymore, but it is in our Constitution——
Is an incestuous family a moral institution?
This is what the Constitution, by which we are all bound, says —"a moral institution, possessing inalienable and imprescriptible rights, antecedent to and superior to all positive law." Positive law means the law decreed by the courts and the law we pass here and what we do here should leave no doubt as to the fundamental role of the family. It is not for us to suggest that the family is being elevated to the status of an icon. This has been done by decision of the people, and all of our actions must recognise that fundamental fact.
Just because we have been fortunate enough to be members of close and loving families we cannot forget that while such families are the vast majority, there are other families where great hurt has been done to its members. I wish to comment on people being enticed into prostitution. The Minister has been very frank about this. It is a criminal trade and Senator Norris was right when he spoke about women being bought and sold. I said yesterday I do not know any of the so-called high class call girls, but I know plenty of the women who are on the streets, and I would not describe any one of them as being the sort of person who had been enticed into prostitution for the sake of nice clothes or looking smart. Most of them are badly dressed and many of them look in very poor health. I am very pleased the Minister introduced this Bill in such good weather. I do not know if my enthusiasm for going on fact-finding missions would have been so great if I had had to go out on a cold November night. Last night I spoke again to some of the women in the Dublin 4 area and the majority of them are out on the streets because they are desperate for money. I never met one who was there for any other reason.
Senator McGennis was right in her comments yesterday. We have an extraordinarily odd idea about prostitutes, brought on, I suspect, by American films like "Pretty Woman", and she pointed out that this is not what prostitution is at all. It is a grim business for these women, and the Minister is trying to do the best she can for them. We are doing serious work now in trying to see how we can help people to avoid becoming involved in prostitution. I have grave doubts about dismissing it as being a soft area that people are enticed into. That does not happen at all.
I wish to speak for a moment about what Senator O'Kennedy has said about the family. All of us value the family as the institution that it is, and as it is laid down in the Constitution, but in a minority of cases things are happening in families which are not acceptable to any of us. The Senator spoke about people showing affection and love. Everybody needs love and affection; this enables us to be at peace with ourselves and to have confidence in ourselves. Giving love and affection to children, the affection they receive in families, enables them to cope with the difficulties of life when they go into the world. However, if children are not comfortable with something they have a right to come forward about this and we, as a society, should help them in that situation.
I agree with what Senator Henry and Senator Norris have said about the Stay Safe programmes. The only way we will overcome the problem of child sexual abuse is to convince children they are allowed to tell people if something is happening to them. I am concerned about those who are in some way against the Stay Safe programmes in schools. The very people who are against them are probably the people whose children need them most. That is my greatest concern. In the past people have not come out and spoken about the abuse while it was going on, and only when they became adults, with huge psychological problems that had built up over the years, were they able to talk about it. The Stay Safe programme encourages them to do that while they are young and, therefore, to enable all of us to help put an end to this abuse.
I did not have an opportunity to contribute to the Second Stage debate, and I wish to take the opportunity now to congratulate the Minister on this legislation. It was a brave and progressive step and she is to be complimented. It will be seen as one of the historic events of this decade. The fact that there is disagreement about aspects of this Bill proves there will always be some dissent when positive and progressive steps to taken.
On the question of the family which was raised by Senator O'Kennedy, there is a need to look realistically at what is being said. The whole area of sex education and the awareness of young children is something that concerns me every day of the week having as I do 25,000 members who work in this area. I have had to read that Constitution time and again and look at it in the context of the responsibilities of different people. Senator O'Kennedy will be well aware as a barrister that one does not in law weigh up one legal or constitutional right against another. The effect of law must be to ensure that the rights of all groups are maintained and protected.
I firmly agree with Senator O'Kennedy that the family unit is given an exalted position in the Constitution. Nothing has been said on this side of the House which would threaten that position. The responsibility of the State is clear. For example, Article 42 of the Constitution gives the family or the parents the right to be the prime educators but in the event of the family deciding to exert their right to be the prime educators and subsequently not discharging it to the satisfaction of the State, the State is authorised to intervene. It is understood that in other aspects of constitutional rights the State may be allowed to intervene in the same way.
The question of sex education is very clear, because Article 42.1 of the Constitution is quite specific. It defines education and includes moral education, as mentioned by Senator O'Kennedy, religious education, physical education and intellectual education. When it goes on to the next section, however, to determine where the State requires a certain minimum level of education, it gives a different definition, and leaves out two aspects which were previously mentioned. It does not refer either to religious or physical education. The reason for no reference to physical education was because of the intervention of the then Archbishop of Dublin, Dr. McQuaid, who saw physical education as touching in some way on sexual education and felt that this was an infringement of the rights of the family. While it was not stated at the time, it is accepted that that is what happened. We have now reached a situation——
That is a slur on the late Archbishop.
I am not creating a controversy, I am simply describing the facts as they are——
That is hearsay. There is no proof of that whatsoever.
Acting Chairman
Order. Senator O'Toole, you have not stayed on the section — this applies to other speakers also — and I have given too much latitude. I now call on the Minister to answer some of the questions which have been put to her.
No, I have not concluded.
Acting Chairman
We have strayed from the Bill. Let the Minister reply.
In deference to the Chair I will not continue with the point I was making other than to say I am not criticising the late Archbishop. He was entitled to do what he did, but it is not hearsay; it is chapter and verse. I would not have agreed with what he did, but I would have supported his right to do it.
The education of children in these areas is required of the family and if the family does not provide it, somebody else must. What is needed here is co-operation between the State, the family and the educational institutions. The programme we are discussing is accepted by the Church, the State and the educational institutions. The child abuse prevention programme was designed by Irish teachers for Irish children; it was neither brought from the United States nor modelled on the British programme. I know because I was involved in it at the embryo stage.
Anybody who has examined the programme would agreed that it did not take its brief from the United States. Last year 6,000 parents in Dublin looked at the programme and only three raised marginal questions about it.
I did not introduce the topic of the family to this debate, as Senator O'Toole may think. I was responding to an observation by Senator Norris, perhaps because of this view on Family Solidarity the people are trying or raise the family to the status of an icon. I pointed out that even before any of us spoke here the family was raised to that status by the Constitution.
I quoted one subsection and I will quote the following subsection and then rest my case. Let us recognise the status of the family in the Constitution. Article 41.2.2º says:
The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
If that is not elevating the family to the status of an icon, I do not know what is. That is the only thing that prompted my intervention when Senator Norris made his observation.
I have a personal statement to make on this matter which may help. It is one I was reluctant to make it as I find it rather embarrassing but it may assist Senator O'Kennedy. I am the product of biological reproduction which means I am attached, at least remotely to something called the family. I did not grow on a tree nor was I discovered under a cabbage leaf.
Did somebody suggest that the Senator was?
Of course, I like the family. I am part of the bloody family. Why would I not like it?
Unparliamentary language.
However, in using the word "icon" I am suggesting there is a certain blasphemous notion that you can elevate an institution above the rights of those individuals who compose it. I am sure Senator O'Kennedy would agree with me because the Constitution is quite clear. It talks about a moral entity, and who could possibly describe an incestuous family in which children were sexually molested, and sometimes murdered, as a moral entity?
There is no reference to the family in section 1. I am not accepting anything more about the family as it is outside the scope of this section. Would the Senator be seated, please?
I will not talk about the family. I would like to make one observation.
Acting Chairman
Only if it is not on the family.
I am a great admirer and upholder of the Constitution but there are some rather odd items in it, including the Preamble which purports to derive the Executive power of the State from the Trinity. Perhaps Senator O'Kennedy who is an expert on the family can arrange an introduction to the Trinity for me, or get a definition that would stand up in a court of law because I would welcome that.
The Senator's ridicule of the Constitution and the Preamble is unacceptable.
Acting Chairman
We are discussing section 1.
Senator Norris cannot pick and choose what is acceptable to him in the Constitution. The Senator is right, it is a theistic Constitution. I am afraid Senator Norris wants his own constitution.
Acting Chairman
This across the floor banter is not acceptable. I call on the Minister to speak on the section.
You will be delighted, Sir, that the Minister has no intention of getting involved in a constitutional argument.
To return to the points made on section 1, when I introduced the changes in relation to the laws on prostitution in this Bill, I had no intention of engaging in a fundamental reform of our laws on prostitution because it would have taken too long and delayed the Bill considerably.
The Report of the Second Commission on the Status of Women makes specific recommendations regarding potential reform in the area of prostitution. I am glad the report takes prostitution outside the exclusive ambit of the Department of Justice because when people think and talk about prostitution it is in terms of the laws that are, or are not, in place to deal with it. For the first time the Second Commission on the Status of Women has said clearly that a number of Government Departments are involved in this matter and that they should face up to their responsibilities and, more importantly, work together to produce proposals. Three Departments are now doing that and, in the event that they make specific recommendations in relation to changes in the laws, which they may well do, I will have no hesitation in bringing forward those changes.
They may recommend changes in relation to the area about which Senator O'Kennedy and others are concerned and that is, young prostitutes male or female. Senator O'Kennedy is right in saying that under the present law, and under this Bill when enacted, there is no distinction as to whether a prostitute is young or not so young.
When this Bill was introduced in the Dáil, I had included very severe penalties with which a number of Deputies from all political parties, including my own, took issue. As a result of the cogent arguments made in favour of reducing the penalties in the Bill, overnight I agreed to put forward a number of amendments and to accept a number of Opposition amendments. As a result, significant and important improvements have been made in the penalties area.
Senators made important points in relation to homes. The vast majority of Irish homes are places young people and all of us have been privileged to be part of, growing up in loving and affectionate relationships. Senator O'Kennedy makes an important point that because the majority of cases of child sexual abuse take place in either the immediate or the extended family we can often become paranoid about parents and adults showing affection for children. I know of people who would be concerned about showing affection for their children, or for a niece or nephew, in public, because certain people might say that was wrong. It would be a pity to go down that road. We need to encourage the development of loving affectionate relationships within families.
Senator Norris made a point about young boys and girls becoming involved in prostitution at an early age because they are looking for affection, friendship or a relationship they did not have in their own homes. As I said, there are loving, affectionate relationships in the majority of families.
We must introduce certain changes in the law on prostitution because, as Senator Norris knows, male prostitution was not included prior to this. When we were making the changes in the laws on homosexuality it was important that we included male prostitution when we were dealing with laws on prostitution.
Acting Chairman
Is section 1 agreed?
I am sure the Chair would like to see the proper exercise of democratic responsibility.
In view of what the Minister has said, as a matter of urgency will she ask the commission to make recommendations on the position of young prostitutes. She has acknowledged in her reply that there is an unsatisfactory aspect to the law. I know that everything cannot be achieved overnight but I ask the Minister if she will ask the commission to make recommendations on the position of young prostitutes, male and female.
I would be delighted to ask the people from my Department, who are considering this issue in relation to the recommendations of the Second Commission on the Status of Women, to raise with their colleagues in the Department of Health and the Department of Education the points made by Senator O'Kennedy and others, specifically in relation to young prostitutes and how we treat them.
Question put and agreed to.
Section 2 agreed to.
SECTION 3.
Acting Chairman
Amendments Nos. 3, 4, 5 and 7 are cognate and may be discussed together.
I move amendment No. 3:
In page 4, line 14, to delete "17 years" and substitute "18 years".
The amendment proposes that the common age of consent for both homosexual and heterosexual activity be 18 years of age. The Law Reform Commission does not recommend that this approach be maintained. It recommends that heterosexual intercourse for persons between the ages of 15 and 17 should not be an offence, except where the male is more than five years older than the female or the male is a person in authority. In the event of this recommendation being accepted, the Law Reform Commission has not recommended a similar change in respect of homosexual activity.
It is the Fine Gael view that 18 years of age, the age of majority, is the appropriate age in the case of the Bill before us. My party is conscious that teenage years are difficult years and that sexual orientation can sometimes be confused. My party is anxious to strike a correct balance between removing unnecessary criminal taboos and protecting vulnerable people under the law. There is a case for making the age of homosexual and heterosexual activity equal. However, my party believes that a case has already been made by the Law Reform Commission for a differentiation in certain circumstances and a differentiation would be justified in this Bill.
During the debate on Second Stage I said it was not our wish to reflect on the sexuality of anyone, whether they are homosexual, heterosexual or bisexual. Accordingly, I tabled amendment No. 3 which proposes that 17 years of age should be substituted by 18 years.
In order to have a calm and considered debate, we should not rush through each section. Otherwise, a person could say something which might upset people. If there had not been undue haste in dealing with section 2, I would have been in a position to say that I agree with the decriminalisation of homosexual activity. We should be mature about the way we handle this matter, rather than simply rushing the legislation through the House. We have an opportunity of demonstrating that, unlike the Lower House, we will allow proper time and consideration to this issue. I appeal to the Chair not to have us gasping for breath as we decide whether we agree with the various sections.
I have a certain sympathy for this amendment. Perhaps the Minister could reflect on the attitude she could adopt. I know it is not easy to accept amendments at this point because the legislation would have to return to the Dáil but perhaps I could make a suggestion to the Minister. I read her speech when she introduced this legislation in the Dáil. Unfortunately, I was not able to be here yesterday. I understood this debate was to continue until 8 o'clock and I came back from Cork to take part in it. I found the debate had closed by 6 o'clock because of the impetuous notion we have — it was no fault of the Minister——
Acting Chairman
That is not correct. There were no speakers here.
There were no further speakers from the Government's side, or from Fine Gael.
I spoke for Fine Gael.
Acting Chairman
There was no one here to speak.
I spoke for half an hour.
Senators should be here if they wish to speak.
Give the laurels to everyone.
Acting Chairman
There were no restrictions on the debate yesterday. There were no speeches left when the debate closed.
I accept that. I am expressing surprise at the fact that there were so few who were anxious to express their views.
The Senator should look to his own party for some of the people who could have expressed their views.
I understand——
Acting Chairman
Two members of the Senator's party spoke after each other in order to keep the debate going.
The entire Progressive Democrat Party spoke.
That was great. The Minister in her speech referred to mature people. I agree with that and support it if we are dealing with legislation in relation to mature adults. However, I wonder if 17 year olds can be presented as mature or fully developed with regard to their legal, constitutional or other responsibilities? In relation to their constitutional and legal position, 17 year olds are not recognised as being constitutionally mature because the franchise does not extend to them.
In relation to all aspects of the law, whether it is civil or criminal law, 17 year olds are specially protected. For example, if they enter into a civil contract which gives a certain advantage to the other party to the contract, the law does not recognise the contract as binding on the 17 year old. However, I would be bound to such a contract. Everyone else is accepted as being sufficiently mature, developed and responsible to abide by the consequences of their decisions. The law is correct in this. Of course, there is always a cut-off point; it was 21 years of age, then it was reduced to 18 years of age and now it is proposed to reduce it to 17 years of age.
I ask the Minister if she has considered these aspects of the issue and the fact that the vast majority of 17 year olds are still at school, with the exception of those from deprived homes who do not have the benefit of education at any stage in their lives. They are dependent in every sense of the word. I could not describe these people as being either developed or mature to the point where they should not get or deserve special protection from legislators. That is my position in relation to people of that age.
Some people might ask what is the difference between 17 and 18 years of age? If a person has a birthday on 31 May, does one day make a difference? However, there is always some measure of time in the law and this must be the case. The objective analysis suggests that the 17 year old deserves and requires special consideration. I will not quote the Constitution in support of my case again but there are many Articles in the Constitution that can be called in support of education and protection of those who have a special right or claim on us under the Constitution.
While the Minister is talking about giving equal treatment to homosexual and heterosexual activity, there is a difference and that should be recognised. The vast majority of people are heterosexual and would create the family in its traditional, constitutional sense. I recognise that there is a minority community and we must respect them. However, because of the ethos of the Constitution and our laws up to the present, I believe there is a cogent reason for making special provision for 17 year old males in this legislation. Perhaps the Minister could persuade me, but I do not agree with the argument that we treat people the same whether they are heterosexual or homosexual. As I see it, it is not like that.
In reference to a point mentioned by Senator O'Kennedy at the outset, if the Chair wanted to rush through sections of a Bill, the Chair can be assured that the vigilance of Senators on these benches would ensure that they would be debated in full.
I agree with Senator Dardis. The Chair can rely on the vigilance of all Members of the House.
I am relieved to hear that.
We all have a role here.
Acting Chairman
Senator Dardis without interruption.
The Progressive Democrats are opposed to the amendment. We support the position as outlined by the Minister yesterday, that to be consistent it is right that the same age should apply to heterosexual activity as to homosexual activity. The Minister explained that adequately in her reply on Second Stage and I accept what she said. The position is reasonable. I have reached the point of wondering if we will have a moral police force that will go around the country asking people whether they are 17 or 18 years old, or whether they are homosexual or heterosexual. I am appalled at the thought of the complications that could arise.
An underlying point that needs to be made, and which I raised yesterday on Second Stage, is that we have an extraordinary lack of confidence in our young people. People of 17 years of age are sexually mature. They are young adults. There are people in their 40s and 50s who are far less capable of making rational judgments than some of the young people I know.
The Senator is right; there are some who are far less capable than others.
Acting Chairman
Senator Dardis without interruption.
I let Senator O'Kennedy have his say and I listened to him, and I hope he would extend me the same courtesy. The civilities which were being observed yesterday, and to which the Minister referred, seem to be sliding progressively to one side at this stage of the debate.
The section states "in the case of an act of buggery with a person under the age of 15 years, imprisonment for life". There are severe provisions in the Bill which take age into account. We allow people to buy cigarettes that will kill them without any control on the age of the purchaser. I can visualise circumstances where sexual activity can be life threatening and they have been dealt with, I hope, in other legislation. Could we not have a little more confidence in our young people? They are responsible and, by and large good people, and they do not always require us to intervene on their behalf. Of course we should intervene in the cases referred to in our discussion on section 1 but I do not see the difference it will make here.
Yesterday we asked if we would enact the legislation which was originally brought into force during Victorian times if it was before us now, and the answer is that we would not. When the records of this debate are examined future generations will wonder why we disputed whether the age should be 17 years or 18 years. People of 17 years of age are mature; they know what they are doing and they are capable of having our trust invested in them.
I would also like to oppose this amendment. I listened with interest and profound sympathy to what Senator Neville had to say. His party has placed him in an impossible position. He said that teenagers were difficult, which they are, and in its usual modest, helpful way Fine Gael proposes to make them even more difficult.
He talked about people being confused. It is clear that not alone on this issue but on the telephone charges, the visit of President Robinson to the North of Ireland, hare coursing and on this Bill that the Fine Gael Party is in a terminal state of confusion. It would be absurd for a Government that has initiated a Ministry of Equality to open the battle by introducing discriminatory practices in a Bill whose principal intent is to remove discrimination. I cannot understand the logic of that. Senator O'Kennedy could not find the reference in the Minister's speech to this issue——
Perhaps the Senator will find it for me.
I cannot because, unfortunately, I do not have the speech. However, I can remember the substance of it since I listened to it with great care in the Dáil and I was moved by the clarity and logic of what she said. The Minister is able to speak for herself but, as I recall, she said that the only justification for a discrimination in this area would be the conviction that there was a difference of capacity for homosexual and heterosexual people which suggests that there was a lack of maturity or lack of intellectual ability. I do not believe that case has been established and if Senator Neville does not think I would be offended by the assumption that I was intellectually or emotionally inferior, then I must tell him that I would be offended.
I am impressed by the reasonable tones of Senator O'Kennedy, although I do not always find what he says as reasonable as his gracious manner of saying it, but I suspect he does not find my manner gracious or my substance convincing. However, despite the stridency of my tone, I do not regard myself as an absolutist. If I was an extremist or an absolutist I would have taken up a position which, perhaps, may have been indicated by Senator Neville, because I notice that there is a margin of differentiation in section 3, but I am prepared to accept that since it allows the Government to say to concerned parents that it recognises that they have concerns and that it has made some degree of legislative provision for them.
In this section, and thoughout the Bill, I regret, although it may be unavoidable, the continued use of terms such as "buggery" and "sodomy". They sound so unpleasant. They sound as if they are attempts at onomatopoeic representations of the act. I do not like them because, as I said yesterday, they derive from an antique religious prejudice. If the Bill passes and I hope it will as rapidly as possible, without precluding Senator O'Kennedy or anybody else from their full right of free speech, then regardless of what it is called, I would be happy.
I must speak against this amendment. The Minister has done the right thing by applying the same age of consent to both male and female teenagers. The mother is granted an important place in the Constitution; I think I am the oldest mother in the House who has children of both sexes who have left their teenager years.
I cannot compete with you for that position.
I could not see myself going home and telling to the girls that the age of consent for them is 17 years, but 18 for the boys, because they do not have their wits about them until they reach that age. That would be impossible and insupportable. I share Senator Dardis's view that we must have confidence in our young people. This is the most important issue. I believe the Minister is correct in this respect. There is no difference in maturity or intellectural ability or lack of sensibility in boys and girls in their late teenage years. I believe that both groups would cope with such sexual situations in the way which seems most natural for them. The vast majority of them are going to cope with these situations from a heterosexual point of view.
As he youngest elected Member of this House I am pleased to be in a positiion to contribute to this debate. Perhaps because of my tender age Senator O'Kennedy may not deem me fit to be present. However, that aside——
I must object——
I speak in jest, Senator. O'Kennedy raised the matter of maturity and that is the matter to which I wish to refer.
I would not suggest lack of maturity for one moment.
I thank the Senator. The issue of maturity is the substantive question. It is not an issue on which one can legislate. At 17 years of age I attended university and at 25 years of age I became a Senator in this House. Maturity is very much an individual matter. Some people at the age of 14 are forced, by virtue of circumstances, to reach maturity at an early age. Others reach that stage at a much later age.
The legislation before this House must be addressed. I have listened to the debate with patience and I find that while there has been diviation from the subject matter of section 1 of the Bill, the discussion has been most helpful. I trust that the matters raised were noted by the Minister; this would be for the benefit of all.
I agree with the substantive matter set out in the Bill and I disagree with the proposed amendment on the basis of equality. This Bill deals with the issue of equality and it would be nonsensical to suggest that 17 years of age would be a proper age for heterosexuals and 18 years fo age for homosexuals. If legislation is to enacted, especially this kind of legislation, then it must be done so on the basis of equality.
The debate so far has been wide-ranging. Some Senators may have had a better opportunity to debate the legislation yesterday but those who were not present then at least have had the opportunity to participate in the debate today. This I welcome.
There has been much talk of homosexuality and heterosexuality. However, as I understand it the Bill is concerned with the decrimination of buggery and with prostitution offences. It is worth mentioning that the Minister is not legalising buggery; she is decriminalising it, which I believe is correct.
I have some personal difficulties with the Bill. For example, I believe buggery is immoral but I do not wish to impose my own moral beliefs on other individuals except to ask them to accept them. I believe buggery should be decriminalised, but for different reasons than most people. I believe that buggery is a rather sick act, that it is contra naturum and any activity that is sick like that should not be criminalised.
Regarding the age of 17 years, I have a certain sympathy with this, but not for the reasons espoused by other people. I believe our young people are responsible and that there is a case to be made for equality, which is an admirable aspiration. However, if our nearest neighbour has an age limit of 21, I put the question, will there be an influx into this country of older people who wish to bugger young people of 17 years?
Another difficulty with the age of 17 years is that it may in some way indicate to people that buggery is an acceptable practice and should be taught in schools as such. This is something I would be entirely opposed to as it could indicate to young people that buggery is on a par with normal sexual intercourse, which I do not believe to be the case.
I support the amendment tabled by Senator Neville and I have listened with interest to the arguments put forward by other Senators. Senator Dardis suggested that the same age should apply to homosexuals and heterosexuals and this should be applied in this legislation for the sake of consistency. I suggest to Senator Dardis that if he is prepared to protect a person at the age of 16 years as opposed to 17 years on the basis of difference in age, then he should accept that there is also a difference between the ages of 17 and 18 years.
One year.
Precisely. I do not believe the argument by Senator Dardis that the age of consent set out in the legislation should equate with the heterosexual age of consent is sustainable.
There is a responsibility to ensure that legislation reflects the views and interests of society. It must be recognised that for this society to introduce legislation to decriminalise homosexuality is a major step forward and it is a measure supported by Fine Gael. However, it must also be recognised that there are limits to what society finds acceptable at any given time. Fine Gael believes that the age of 17 years is not acceptable in Irish society at present. This may change as the years go by and at that point legislation may subsequently be amended to accommodate such change.
Senator Norris, in his usual fluent manner, disagrees with the amendment put down by Fine Gael and suggests that it has put the party into an impossible situation. I assure the Senator that Fine Gael is not in an impossible situation at all and that the party is comfortable with its position on this amendment.
Fine Gael does not consider the amendment to be discriminatory. Senator Norris and other Senators frequently refer to legislation introduced in other countries, especially the legislation in the UK. In relation to this legislation, such Senators have conveniently omitted to mention that the age of consent set out in the relevant legislation in the UK is 21 years. Fine Gael is proposing an amendment to this legislation to increase the age of consent to 18 years.
Senator Henry referred to the difference between boys and girls and asked if there was to be one rule for boys and one rule for girls. It is accepted by psychiatrists, psychologists, parents and people in general that girls mature at a much earlier age than boys. The motivation of Fine Gael in proposing this amendment is to reflect as far as possible the wishes of society, to provide a balance as far as is possible and to protect young people, especially boys who are less mature than girls. I commend the amendment to the House and I invite other Senators to give it their support.
I did not have an opportunity to speak on Second Stage. This is an important Bill decriminalising homosexuality and I believe the age of 17 years is the correct age. It has been well thought through and I can see no grounds to substantiate a case to increase the age to 18 years. I could certainly not do so on the basis that girls are more mature than boys. The point I would make is that in recent times our young people have become very mature and we should have more confidence in them. It is now almost five years since the European Court of Human Rights found that our laws in this area were in breach of the European Convention on Human Rights. The Minister has been given many accolades for introducing this legislation but let us not quibble over a year. For that reason I would not support the amendment.
I would also like to oppose this amendment because when the Minister addressed the House yesterday she said that if 17 years was considered an age of sufficient maturity for consent to heterosexual sex there were no convincing grounds for arguing that persons of that age who are attracted to members of their own sex are any less mature. I agree with what the Minister is doing in this area. Yesterday she said she was accepting the proposals of the Law Reform Commission which recommended that the same legal regime should obtain for consensual homosexual as for heterosexual activity, and that no case had been established that the 17-year age of consent should be any different.
Senator Taylor-Quinn queried why we were doing this and why the age had to be the same. As several Senators have said, we are doing it on the basis of equality and I fully agree with that. We have a responsibility to look at what is happening in the country as well as the responsibility of leadership. The Minister is proposing the same consensual age for heterosexual acts as for homosexual ones and I accept that. We have to be mature; if we are not mature in this House we have little hope of expecting the people who elected us to behave maturely.
The Law Reform Commission in its reports on vagrancy, rape and sexual offences against the mentally handicapped gave other detailed analyses and reasons for ensuring that the age of consent be left at 17 years. It said that it would "encourage young people to develop responsibility and a positive sense of self which is the best defence against abusive, exploitative behaviour". Like Senator Henry, I am a mother; I have three children, all boys. I would be more concerned about boys maturing because I do not have girls. However, if one looks at individual children, one can have a child of nine who is more mature than a child of 14. I do not accept that 18 year olds are more mature than 17 year olds. Many 17 year olds are more mature than 18 year olds and Senator Belton said to me a few minutes ago that he wondered if men ever matured. I sometimes wonder myself.
That was off the record.
That is outrageous.
If I said that I would be in trouble.
Yesterday Senator Taylor-Quinn and the Minister referred to the fact that 17 years of age was not very low and that every other European country had a lower age of consent. I do not think we can suggest that any of these countries is less moral than we are, and that by having the age of consent lower than 18 years they are any less moral. The Minister also said that when the legislation was introduced in Britain the age of consent at that time was 21 years and she thought that was the reason for setting the revised age of consent at 18 years. I do not think that there is any reason for us to look at Britain and feel we should increase our age of consent from 17 to 18 years because it is higher in Britain. I oppose this amendment and I agree with what the Minister is doing.
I would like to take up a few matters that were raised by Senator Taylor-Quinn. For example, she said that some of us refer to British legislation repeatedly and that we were very shy of doing so yesterday. She cannot possibly have been thinking of me because I referred to the United Kingdom legislation and the fact that I regretted the British Parliament chose to demonstrate in public their view that the British male was less sexually mature than anybody on the planet in the same situation. I have frequently spoken about relations between Irish and British legislation, and almost always to deplore the laziness of Irish Governments which, in a series of cases — not even dealing with sexuality but with planning legislation, for example — took the easiest course and, since our laws have been historically so intertwined, simply reached into the nearest pigeon-hole, pull down the British equivalent and shoved it in. I am profoundly glad, and expressed my gratitude to the Minister yesterday, that she did not do the lazy thing.
I am glad a number of Senators spoke about people being mature at 17 years of age. I cannot imagine a young person, specifically in terms of this legislation a young male, defining himself as homosexual if there was the slightest ambiguity or doubt in his mind that he was. We are talking about the way in which people see themselves and I do not think we can afford to be quite as patronising and paternalistic as some speakers have been. The World Health Organisation, as a measure against venereal infection, has called for decriminalisation with a common age of consent, as has the Law Reform Commission and the Council for the Status of Women. Fine Gael think they know better, or do they because I have a very good idea what Fine Gael are up to——
Tell us.
——even though they are confused, and everybody else knows as well. They are trying to pull a Fianna Fáil type stroke basically and they are incapable of doing it because they lack the wit. They are attempting to wrong-foot the Government and expose the flank so that people who take a different opinion will have a little rebellion. Let us say that if Fine Gael lacks the moral courage to call a vote——
We will call a vote.
I am delighted, otherwise I would do it for you.
Acting Chairman
We are not at that stage yet.
We are now going to broaden the whole range of this debate.
May I say that if the Senator is talking to me like a Dutch uncle as part of his view of the family——
Let us be clear. When Senator Norris broadens the range of the debate like this, will you Sir, take note that, as a matter of procedure, he has created a precedent? He cannot be allowed freedom to express himself on sundry matters when the rest of us are told our comments are not relevant.
Acting Chairman
He is speaking specifically to the amendment.
I know Senator O'Kennedy's respect for the Constitution and the Trinity but may I respectfully suggest that he is not God yet.
I never wished to suggest such a thing.
No, I am well aware of that, but we are both sons of God, in all humility.
I would like to say something on the poll with direct relevance to the age of consent. Fifty per cent of people were supposed to be opposed to it and 36 per cent in favour. I am rather surprised that 36 per cent were in favour because of the way that question was worded. Anybody who knows anything about marketing surveys would know that the framing of the question is one of the most important things in the poll.
What has that to do with this amendment?
It said that "the Government proposes full legalisation of sexual acts between males at the age of 17, do you personally approve?" Very few people would personally approve of their sons or daughters having heterosexual relations at the age of 17. I think it was remarkable that we had this high figure of 36 per cent. It is obvious that there was a profoundly cynical motivation which was frustrated in the Lower House because some of the Members of the Dáil, particularly Deputy Shatter and the——
Acting Chairman
We are not concerned with what happens in the other House.
I am talking to the amendment and the way it was——
Acting Chairman
We are not concerned with what happened in the other House.
We are not allowed to mention it at all? The unmentionable place, it is the crime that must not be mentioned among Christians.
They are like the pestilential American figures Senator Norris was not allowed to mention.
That is absolutely true.
That is precisely what the Senator said, pestilential American figures.
As Senator Honan has already put on the record, at 17 years we will have the highest common age of consent in Europe, apart from Great Britain. If people are worried about the ethos, may I point out that this includes all the great Roman Catholic countries of Europe — Spain, Portugal, Italy, including Poland. Does anyone seriously suggest that the——
What about mother Russia?
——moral fibre of the Polish nation disintegrated because they had a common age of consent of 15 years and they still managed to produce a Pope who has views that I would regard as mildly conservative? I expect that those people who are against the common age of consent would feel that, at least in the instance of Poland, the moral fibre had not disintegrated entirely.
When Senator Norris refers to Poland he should also refer to the regime that operated there and the system under which the people had to live.
I would be happy to do so. It was a democratic republic at the time that this Act was passed in 1932. It was only subsequently that the Nazi party, which persecuted gay people, took over that unfortunate state——
Acting Chairman
Senator Norris must resume his seat. The Senator had his time and was not interrupted.
I resent the condescending manner in which Senator Norris refers to our amendment and his belief that his knowledge is superior in that he knows everything about all parties and is in a position to apply a cynical motivation to the Fine Gael Party in tabling this amendment.
Acting Chairman
The Senator must speak to the amendment.
I am speaking to the amendment. This amendment is tabled for a specific purpose, which is that the Fine Gael Party recognises society's situation and what it is capable of actually taking and accepting at this time. We recognise and we believe as a party, which has always acted responsibly in this House and in the other House and which has been to the forefront in relation to progressive legislation, that 18 years is the appropriate age to write into this legislation. We believe this is an inoperable age. Irish society is taking a major step forward in bringing in this legislation. I commend the Minister for doing so but Fine Gael also believes that society is not yet ready to accept the age of consent at 17 years. It would be in everybody's interests if the age of consent were raised to 18 years.
Is that not condescending?
As time passes and society becomes more conditioned to charge the legislation could be amended to acommodate the wishes of the people.
The Minister, typically, introduced a reference at the very begining of her contribution when she said the purpose of the Bill is to decriminalise sexual activity between consenting mature males. That was the term she used. I do not intend to repeat the queries I raised but I wish her to address them. However I feel I must address another point.
I do not mind condescending references to Fine Gael, to myself or to anyone else from Senator Norris or anybody else but I resent and reject condescending references to the Constitution. If Senator Norris wishes to ridicule the Constitution his actions must be exposed and I intend to do that. If he finds the Preamble to the Constitution undeserving of his respect, let me remind him that it was enacted by the people. I wish to refer to it regardless of whether he chooses to respect it. The Preamble reads:
In the name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred
We, the people of Éire,
Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of Trial,...
Do hereby adopt, enact and give to ourselves this Constitution.
Irrespective of whether we feel inspired by that, one thing is very clear. We are not entitled to ridicule what was adopted by all of the people, acknowledging the source of power we exercise here.
Acting Chairman
The Senator must speak to the amendment.
Senator Norris would privilege——
Acting Chairman
The Senator is not speaking to the amendment.
——to ridicule the Constitution.
I am not easily intimidated.
Acting Chairman
This cannot go on all evening. I call the Minister to reply.
Yesterday I quoted from a book, New Problems in Medical Ethics which was edited by Dom Peter Flood. I intended to quote from Passage of the Engel Through Sodom but it might be too exciting or too sensational. In these essays, which are mainly about homosexuality and were published 50 years ago, the age which is constantly discussed is the age of puberty. We are discussing an age which is far later than the age of puberty and sexual orientation. The Minister is even receiving support from this learned book.
I made it clear yesterday on Second Stage that I was not prepared to accept amendments which would set the age of consent for homosexual acts at a different age to that of heterosexual acts. This Bill, and it has been acknowledged by everybody inside and outside these Houses, sets a high premium on the principle of equality and equal treatment under the law. I feel very strongly that to now establish separate ages of consent, regardless of the age and which was higher or lower, would depart from that principle in a fundamentalist manner.
I listened to Senators speaking about 17 year olds and debating whether they are mature or fully developed but that debate seems to centre on homosexual 17 year olds. I cannot understand that because if a 17 year old is not mature or fully developed, then it does not matter if they are homosexual or heterosexual. We should not make a difference because of a person's sexual orientation. We also heard that 17 year olds are still at a very tender age and that many of them are still attending second level schools. I have a child who is almost 18 years old and he went to university two years ago. It is not correct to say that the vast majority of 17 years olds are in one system of education or another. Why should we make a special provision for male 17 year olds who are homosexuals and not for female 17 year olds or 17 year old males who are heterosexual? Senator Dardis made a very valid comment when he said we were showing a great lack of confidence in our young people. I do not think anybody in this House wants to propose, or wants to be seen to be proposing, that we lack confidence in our young people.
I go back to the points I made last night in reply to a suggestion that young people — and this suggestion has been put forward particularly by the main Opposition party — of homosexual orientation are burdened by a lower intellect or a lack of maturity. I do not accept that.
We did not suggest that.
Fine Gael are regretfully proposing to end one form of inequality by the introduction of another. Senator Taylor-Quinn, when she was a Member of the other House and particularly when she was a member of the Oireachtas Joint Committee on Women's Rights, was one of the strongest supporters of equality. On all the equality issues that were discussed in the other House, she was a very active supporter. I hope she will be able to persuade Senator Neville and the other members of her party in this House to look at this issue as one of equality and not to introduce a political each way bet.
The Minister would know all about that.
We should not end one form of inequality by creating another.
I agree with the Senators who said not all 17 year olds are mature but I refer again to what I said previously, that that applies equally to homosexuals and heterosexuals. Homosexuality does not become more or less attractive as an option because the age of consent for heterosexual relations is the same. As I said last night if someone decided to remain celibate or to live in a heterosexual union with another, I do not think that, because the age of consent was 17 years for homosexual activity, they would be swayed to move away from either celibacy or heterosexual union into homosexuality. I do not understand one term which was used by Senator Taylor-Quinn and I would like her to explain it. She said that 17 was an "inoperable age" and I cannot understand what that means.
Certain Members mentioned that the age of consent in the UK is 21. Senator Norris replied to that and I replied to it on Second Stage so I am not going to repeat it. When looking at this area, which was probably the most contentious issue I had to face as Minister for Justice, and in making my recommendations to the Government as to whether there should be a common age of consent or if it should be 18, 21 or higher, I had regard to the recommendations of one of the most respected bodies established under the Oireachtas — the Law Reform Commission. It clearly stated that no case had been established for proving that the age of consent should be any different for homosexuals.
As far as I was concerned that came as a result of the Law Reform Commission's publication of an interim report on the area asking members of the public and groups to respond to the recommendations. Those people responded to the interim report, yet when the final report was published the commission retained their original recommendation after listening to the submissions made to them. Senator Norris is correct in relation to the age of consent. As I said, we must compare what is happening here with those countries in Europe which have a cultural and religious heritage which is similar to our own. In France the common age of consent is 15; in Italy, it is 14; in Spain, it is 15, it is 16 in both Portugal and Belgium and it is 15 in Poland. They are countries which have a religious heritage very similar to our own.
I am a mother and I have an 18 year old son and a 14 year old son. I have said this publicly. I was very interested and influenced by a mother who came to me during the meetings I held while preparing this legislation and she made a telling, valid and compassionate point. She talked about her son who had come to her and said he had something he wanted to tell her. I suppose the first thing she thought was that he was in trouble with the law or that, if he had a girlfriend, she was pregnant and had an unwanted pregnancy with which she and her family would have to deal. Instead, he sat down and told her he was a homosexual. She was horrified, afraid and felt threatened. She did all the things any of us as parents and I, as a mother of an 18 year old, might do were we to hear a similar story. We do not know how we would react in these circumstances. She told him it was a passing phase, that he would grow out of it and that it was unnatural and abnormal. She brought him to the general practitioner who could not help in any way. They went through a lengthy period discussing the matter, taking her son to psychiatrists and psychologists and so on.
At the end of that painful, traumatic experience, if we put ourselves in the position of the parent who might be faced with that situation, we would have to ask ourselves what we would say to somebody to whom we had given love and affection for 17, 18 or 19 years. What do we say to them? Do we say that because of their sexual orientation, because they are homosexual, we do not want to know them any more and that, in some way, they are abnormal or unnatural and are not wanted as part of the family? I do not think any of us as individuals, if we are compassionate and tolerant and have truly given love and affection to that son, can say that. We would all like to think of ourselves as parents who would be understanding and who would continue to give love and affection to that individual even though they might be doing something of which we ourselves would disapprove.
I appreciate that many Members of both Houses of the Oireachtas and many people in Irish society have difficulties with the decriminalisation of homosexuality but I am not sure their difficulty is with the age. People often have a difficulty with the issue of homosexuality, how they treat it and they may feel threatened by it. Irish society has come a long way towards respecting, accepting and recognising difference and I think that is what we are doing here. As I said, nobody has made a case to me that would give the lie to the case made by the Law Reform Commission.
At no time in the debate yesterday did Fine Gael or any speaker from Fine Gael indicate that homosexuals had a lower intellect than heterosexuals. The Minister suggested that this was the thrust of our approach to the age issue. Nobody is saying that one should not be compassionate and loving to a young person who declares that they are homosexual. What we are saying to them is that they should give themselves space and not enter into homosexual activity until they are 18 years of age. That is quite distinct from implying that our proposal suggested that one should not be loving, compassionate or understanding of a young person who declares they are homosexual. One should be understanding, and everybody would accept that.
Much has been said about the difference between 17 and 18 as the age of consent. Of course one can make a case for 17 years being the age of consent but, as I said in my speech, on balance we feel that 18 is the right age. Somebody did decide that 16 was not the right age and 17 was; one can also make that case. Having seriously considered the situation we feel that 18 is the proper age for dcriminalising homosexual activities.
The Law Reform Commission recommended the legalisation of heterosexual activity for persons between the ages of 17 and 15 provided the male is not five years older than the female, but it has not said that the same situation should apply to homosexual activities. The Law Reform Commission, in another report, indicated that there should be a difference. Having looked at the situation, we feel that, on balance, 18 should be the age at which consensual homosexual activity should take place.
I am not saying we are absolutist about it. It is a balanced opinion and for people to say that they are absolutely certain that 17 is the right age smacks of a little arrogance because one cannot be absolutist about these things. Maybe in ten, 20 or 30 years time, 15 might be the right age if society has changed. It is accepted that people are developing much faster now than they did 30 or 40 years ago. Things do change but having looked at the situation, Fine Gael feel in 1993 that 18 is the age at which consensual sexual activity should be legally allowed to take place between homosexuals.
I wish to clarify one or two points. I go back to what you, Sir, said when you talked in terms of recognising the responsibility of young people.
You understand that I cannot reply.
I appreciate that so I will not take undue advantage of the fact. We are not implying that we do not recognise people of certain age as being responsible. It is quite the opposite. I would not like to be represented as considering young people to be irresponsible. In my relationship with young people, at home and in the community, I would like to think that we have a happy, healthy relationship and a mutual respect which does not raise any problems in relation to age. I respect young people and I have confidence in them.
The Minister in her reply has quite significantly and understandably referred to the situation in other countries such as Greece. In quoting ages of consent as low as 14 and 15 years, the Minister raises an interesting point. I will not say anything about the effect of the sun on the genes. I lived in Italy for a year so I know a little about that also. The common age of consent in Europe is 15 years of age. It is 14 years in Italy, 15 years in Spain. We are being told that we should take note of and respect that. A year does make a difference because under this legislation, we would treat some of those as criminals liable for imprisonment for life. How do we reconcile wanting to be influenced by what the Italians, Greeks or Spaniards are doing with the statement in this Bill that says:
A person who commits or attempts to commit an act of buggery with a person under the age of 17 years shall be guilty of an offence and shall be liable on conviction on indictment in the case of an act of buggery with a person under the age of 15 years to imprisonment for life.
Apparently a year more or less does make a difference. We are saying in this legislation that what is considered normal and reasonable in countries such as Italy and Greece renders a person liable to imprisonment for life in this country. I ask those who say a year does not make a difference, where is the consistency?
We can only measure time by an imperfect instrument which is age. It is not absolutely comprehensive and reliable. This section itself makes distinctions between the ages of 15, 16 and 17 years for the purposes of the penalties to be imposed. For those who would try to imply that a year does not make a difference between the ages of 15 and 18 years, I would call into evidence this Bill which goes on to say that in the case of an act of buggery with a person of or over the age of 15 years and under the age of 17 years, namely 16 years, there is a different term of imprisonment, not exceeding five years.
I will not comment on whether each of those four subsections are entirely right, but somebody has concluded that there is a difference of gravity between the offence of buggery committed with a person at different ages in those developing years. I am not qualified to say what is the appropriate stage of development in each case; individuals vary but there are general norms. If we are going to impose sanctions of the order of imprisonment for life and hold up other countries as examples of enlightenment, we should recognise that a year does make a great difference. I call into evidence of that this section itself.
I appreciate some of what Senator O'Kennedy said but there does seem to be, if I might say with respect and I hope without condescension, a certain failure of logic in one element. Surely it is more logical if one accepts the persuasion of European models to move in their direction rather than away from them. There is a logic in moving towards a younger age rather than an older age. The Minister spoke movingly about a mother confronting the dilemma of her son's homosexuality. What answer would it be to that son to tell him that he was defined as a criminal at that age? I do not think that would be a caring response.
I regard it as completely appropriate that there should be a wide expression of opinion from all sides of the House. I would be happy with a free vote. However, I wish to tell Fine Gael that one needs to be shrewd when one tries to pull a Fianna Fáil type stroke because if it backfires there are no boys better equipped or more willing to plant a boot in one's face in return. I hope I am not being too presumptuous but this is what I confidently anticipate will happen today.
Did the Minister hear what the Senator said, that we are all alike?
I did, and I am greatly distressed.
After all the kind things the Minister said.
Senator Norris did say "boys".
May I further pour oil on the conflagration by taking up the question which Senator O'Kennedy raised about the Constitution? I have good reason to respect the Constitution because I have found that although I got a divided judgment in the Supreme Court and did not win my case——
Acting Chairman
The Senator is straying quite considerably from the substance of the amendment.
Yes, but let us do so just for a minute. I would like to put on the record that I refuse to be bullied or intimidated out of a laugh. I wish to inform Senator O'Kennedy that there is nothing at which I will not laugh, nothing is immune from the comic spirit as far as I am concerned. There are aspects of the Constitution which I find offensive and I recognise that it is up to me to try and persuade the rest of the Irish people to alter those if it is possible. I will tell you precisely what I find deeply offensive. I am a believing Christian to the best of my ability but I find it offensive that we have in the preamble this invocation of the Trinity because not everybody knows what it is——
Acting Chairman
Senator Norris, you are really testing the Chair's patience. Please stay on the substance of the amendment.
There are Moslems, Jews, atheists and Unitarians in this State.
I do not want to discuss the Constitution but Senator Norris has stated that he finds this offensive. I just want to make the point——
Acting Chairman
We have gone through this on several occasions and it is now getting to the point where we should put the question.
We would not be entitled to enact a regulation here, much less a law, were it not for the Constitution from which our authority derives. Senator Norris may personally find much of the Constitution unacceptable and offensive. I am merely quoting to him what the Irish people adopted and enacted and until such time as he can persuade the rest of the population that this is an aberration or whatever else, he will have to respect it. I merely quoted it to him as being as binding on him as it is on me.
Question put: "That the words and figures proposed to be deleted stand."
The Committee divided: Tá, 33; Níl, 9.
Tá
- Bohan, Eddie.
- Byrne, Seán.
- Cashin, Bill.
- Cassidy, Donie.
- Crowley, Brian.
- Daly, Brendan.
- Dardis, John.
- Fahey, Frank.
- Farrell, Willie.
- Fitzgerald, Tom.
- Gallagher, Ann.
- Henry, Mary.
- Honan, Cathy.
- Kelleher, Billy.
- Kelly, Mary.
- Kiely, Dan.
- Kiely, Rory.
- McGennis, Marian.
- McGowan, Paddy.
- Maloney, Seán.
- Mooney, Paschal.
- Mullooly, Brian.
- Norris, David.
- O'Brien, Francis.
- O'Kennedy, Michael.
- O'Sullivan, Jan.
- O'Toole, Joe.
- Ormonde, Ann.
- Roche, Dick.
- Sherlock, Joe.
- Townsend, Jim.
- Wall, Jack.
- Wright, G.V.
Níl
- Belton, Louis J.
- Cosgrave, Liam.
- Cotter, Bill.
- Cregan, Denis (Dino).
- Farrelly, John V.
- McDonagh, Jarlath.
- Neville, Daniel.
- Reynolds, Gerry.
- Taylor-Quinn, Madeleine.
Tellers: Tá, Senators Mullooly and Wall; Níl, Senators Cosgrave and Naville. and Naville.
Question declared carried.
Amendment declared lost.
Acting Chairman
Amendment No. 4 has already been discussed with amendment No. 3.
I move amendment No. 4:
In page 4, paragraph (c), line 26, to delete "17 years" and substitute "18 years".
Question: "That the words and figures proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Acting Chairman
Amendment No. 5 has already been discussed with amendment No. 3.
I move amendment No. 5:
In page 4, paragraph (d), line 33, to delete "17 years" and substitute "18 years".
Question: "That the words and figures proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 6:
In page 4, between lines 36 and 37, to insert the following subsection:
"(2) Proceedings for an offence under this section shall not be taken except by or with the consent of the Director of Public Prosecutions.".
I tabled this amendment to ensure that any prosecutions taken would have substance to them. This is an indictable offence and, as Senator O'Kennedy said, the penalties imposed under this section are heavy; one can get life imprisonment under the first subsection. This subsection will ensure that no proceedings would be taken due to a malicious nature, etc. In my view, the Minister should accept this amendment.
Some of the wording in this section is offensive. Yesterday, the Minister said she found some of the words in section 5 unacceptable, and amended them. Since we are abolishing the crime of buggery, the words "buggery" and "gross indecency" are also offensive and should be replaced. I intend to table an amendment on Report Stage saying that these words should be replaced by "anal sexual intercourse" and "intimate sexual behaviour".
I support this amendment. However, I recognise that for reasons of management of political business, it is unlikely that amendments will be taken, although that possibility does remain. Senator Honan has established an important point with regard to neutrality of language and non-judgemental language in this type of legislation. I referred to this obliquely yesterday when I took a brief look at the etymological origin of the words "buggery" and "sodomy". I would support her anticipated amendment in this area. The language in the legislation should be neutralised and should not reflect prejudice in this matter.
I support the amendment. A good argument has been put forward. The penalties imposed under the section are heavy. I thought — I stand corrected on this — the amendment would be superfluous because that would be the course of action taken.
In regard to the phrase "gross indecency" in the pleadings in the High Court and Supreme Court, one of the arguments registered by my counsel was that there was a disparity in the treatment between women and men. The learned judges — or some of them at least — determined that while ladies might be capable, under severe provocation, of indecency, no lady could be guilty of gross indecency, which is the province of males.
I also support the amendment. To have such serious consequences for this type of crime means we should be sure that these cases are taken only with the sanction of the Director of Public Prosecutions.
I have already spoken on the principle of equality underlying the provisions in this Bill. That means that homosexual and heterosexual offences should be treated in the same way. Proceedings for an offence of unlawful carnal knowledge against a girl who is under 17 or 15 years of age, as the case may be, do not require the consent of the Director of Public Prosecutions. I can see no reason proceedings for an offence of buggery with a person, that is a boy or a girl under 17 years of age, should have different requirements.
Offences under the mental impairment provisions will require the consent of the Director of Public Prosecutions in accordance with the recommendation of the Law Reform Commission in their report on sexual offences against the mentally handicapped; different considerations apply. In the case of unlawful carnal knowledge or buggery with a person under 17 years of age, an objective yardstick is available, the age of the victim, when a decision on whether to prosecute is being taken. While the definition of mental impairment does have an objective element, the position is that in cases of mild mental handicap it may be appropriate not to prosecute. Therefore, it is essential in the case of a sexual offence against a mentally impaired person that the consent of the Director of Public Prosecutions be required for a prosecution as a matter of public policy and to ensure that inappropriate prosecutions are not taken. Those considerations do not apply in the case of age where the only relevant matter to be decided is the age of the victim at the time of the alleged offence. That is a question of fact and can be easily ascertained. I regret, therefore, I cannot accept this amendment.
Amendment put and declared lost.
Section 3 agreed to.
SECTION 4.
I move amendment No. 7:
In page 4, line 38, to delete "17 years" and substitute "18 years".
Question: "That the words and figures proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Section 4 agreed to.
Section 5 agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
I formally oppose this section on this occasion. However, it would be tedious to repeat my opposition to sections which I oppose. I oppose these sections because, in principle, it is a pity to link both subjects. I understand the Minister's reasons. She made a coherent case for the need to revise laws on prostitution and the fact that a full revision would require a comprehensive survey. I believe this should be done. I do not agree with the degree of criminalisation which exists, as I understand it, in these provisions. They may make the lives of the women principally, and the men involved in prostitution worse.
I am glad the Minister availed of the opportunity in the Lower House to remove some of the more dangerous and contentious matters; for example, section 10 (2) of the original Bill related to living on the earnings from prostitution. It stated that in any proceedings for an offence under subsection (1) it shall be presumed, unless the contrary is shown, that a person who lives with or is habitually in the company of a prostitute was at the time of the alleged offence living on earnings of that prostitute from prostitution and was aiding and abetting such prostitution.
I am glad that provision has been removed because it violated a fundamental principle of Irish law, and that is the presumption of innocence. There are circumstances where a husband, or the wife in the case of a male prostitute, is unaware of the fact that the spouse with whom they share the home is supplementing their income with earnings from prostitution. I heard a male prostitute on the Marion Finucane radio programme say that his wife was unaware of his activities. In my view it would be wrong to criminalise, by presumption, the spouse in that case.
I have had a number of letters from constituents and non-constituents who did not support the sections on prostitution. A letter from a doctor said he did not know what my attitude would be, and that we might not agree on this issue. However, he said that last thing we needed in this field was more restrictive legislation. He continued to say that although we needed laws to protect women from pimps and children from abuse and that street soliciting was undesirable, the present proposals were open to abuse. It was a thoughtful letter which presented a good and balanced argument.
I welcome the thrust of a great deal of what the Minister said in relation to this proposal in the other House. The Minister is attempting to undermine the career of pimps, a noxious breed of people. I remember a savage case where an unfortunate prostitute and her aunt were burnt to death by a pimp because the prostitute had attempted to separate herself from the economic connection with this person. As far as I am concerned, the strongest measures are called for against pimps.
Some sections are not as sensitive to the rights of prostitutes as they might be. I want to put on the record what might be an unpopular position. I think that far from criminalising the activities of prostitutes, even in the softened way it is being done in this Bill, we should recognise and regularise these activities. Prostitutes should be registered, licensed, subject to health checks and the areas in which they operate should be regulated.
I was surprised to hear a Member of the other House suggest that much of this activity occurred on the south side of Dublin rather than on the north side of Dublin. I have news for them. Somebody asked would the people of North Great Georges Street like a brothel located next door to them? I can answer that because a brothel was located next door to me. Although I do not claim the title of "the politician in the brothel", I was in that brothel. After a football match a gang of thugs tried to beat down the door with an iron bar, but I got my mother's shillelagh which protected her in darkest Africa and twirled it around my head, letting out a string of invective and filthy language which would shatter the chandeliers, I scattered them.
Acting Chairman
Senator Norris, your experiences are always of great interest to the House. However, you are straying from section 6. Section 6 does not relate to prostitution and brothels.
How confusing. Why was I opposing the section?
Acting Chairman
The previous section relates to what may or may not be done.
This section relates to soliciting and importuning. The Minister is a woman of considerable flexibility, as is the Chair who allowed me to wander into this area. Having disastrously made the argument on an inappropriate section, I shall confine myself to a humble silence on the appropriate section because I am sure the Minister will take on board the arguments I should have made at that time.
Even if the arguments made by Senator Norris had been appropriate to this section he had indicated that he was not pressing his opposition to this section.
Question put and agreed to.
NEW SECTION.
Acting Chairman
Amendment No. 8 has been ruled out of order as it involves a charge on the public Revenue.
Amendment No. 8 not moved.
SECTION 7.
Acting Chairman
Amendments Nos. 9, 10, 11 and 12 are related and may be discussed together.
I move amendment No. 9:
In page 5, to delete lines 38 to 43 and substitute the following:
"a term of community service under the Criminal Justice (Community Service) Act, 1983.".
This amendment follows from my opposition to the sections. Since prostitutes are not in a position to pay a fine this is an inappropriate response. By imposing fines on prostitutes, it would seem that the State is living off immoral earnings, and that would be difficult to square with the Christian and democratic nature of the Constitution which we all profoundly respect. I strongly feel that a more appropriate sanction for a social infringement, which is how I see prostitution, would be the imposition of a community service order. First, this would not humiliate the women involved and secondly, it would not place them in a situation where they would very likely have to go to jail as they would be unable to pay the fine. I am against the criminal conviction of these women in any case because of the impact this may have on them and their children.
In the correspondence I received from my constituents, one of them makes the point that if a woman is convicted she has a criminal record which makes it impossible to her go get a visa for the United States and other jurisdictions. Yesterday Senator Henry mentioned that one of these women discussed her fears that if, for example, her son wanted to join the Garda Síochána a conviction registered against the mother would militate against him. The Minister is shaking her head and I am very glad, but this level of apprehension exists among the women.
I do not think many of them are all that wealthy. I also do not think they are particularly provident people. I am worried that they may not be able to pay the fines. I am worried particularly about imprisonment. I honestly do not think that imprisoning prostitutes is a good idea. There is no room in our jails and it does nothing but embitter them and possibly exposes them to drugs because they would be bored out of their skulls in prison and drugs are easily available throughout the prison system, I regret to have to say. It may not be widely known but this is a fact. I am strongly against the criminalisation of prostitution. I am also strongly against these penalties, although I accept that the Minister has reduced them. I welcome that. It shows goodwill and sensitivity, but I would prefer what I see as a more appropriate sentence, a sentence to something positive, to engage them in the community in community service.
Notwithstanding the fact that amendment No. 8 has been ruled out of order, I would like to comment on it. Would the Minister state what services she would provide, having regard to the health aspect of prostitution? This has taken on a new urgency because of the spread of AIDS and because the application of the law on prostitution is always focused on the prostitute, who is usually a woman. It will take more than a change in the law to alter that and I feel it would be easier for the Garda to arrest a woman to bring charges against her. My question to the Minister arises from this amendment, which impressed me even though it was ruled out of order. It states that "The Task Force shall consider all legal, social, and health aspects of prostitution ..." This should be taken on board because it has been said that people engage in prostitution for many reasons, including social problems. This issue merits attention from the Minister and I am anxious to hear her reply.
In any examination of the penalty structures provided in sections 7 and 8 the following points must be considered. The penalties are not for prostitution nor are they specifically aimed at prostitutes. The penalties are for the public nuisance and worse caused by prostitutes, their clients and touts in neighbourhoods frequented by those classes of persons, and I am not an expert where those areas are but I accept in good faith Senator Norris's points in relation to this.
I explained in some detail yesterday what the effects on people living in areas frequented by prostitutes can be and there is no need for me to repeat it now. Suffice to say that the persons living in, visiting or simply passing through such areas have the basic human right to enjoy their environment. Unless the Garda and the courts are given adequate powers to deal with soliciting and loitering for the purposes of prostitution we, as legislators, would be failing those persons. The penalties will apply to prostitutes, their clients and touts. The actual nuisance and annoyance caused by each in neighbourhoods they frequent is the same. Therefore, it would be illogical and unsustainable to provide different penalty structures for different persons in respect of the same offence. I would also have some difficulty with any argument which suggested that all prostitutes were poor and all clients were rich.
The penalties provided are maximum penalties, they are not mandatory and, like all such penalties, they are designed to cater for the worst manifestations of the offence. Unless they are compelling reasons, such as persistence, maximum penalties are not usually imposed. I freely admit that the penalties in the Bill as published were on the high side, I said that at the end of the discussion on Second Stage. I say that, even though the present inoperable law provides for a maximum prison sentence of six months and the Law Reform Commission recommended a maximum penalty of a fine of £500 or six months imprisonment, or both. The penalty provisions in sections 7 and 8 are considerably less than those. They are also less than the penalties proposed in most of the Opposition amendments to the penalty provisions which were submitted on Committee Stage in the Dáil.
Having said that, I can well understand the concerns of this House that prostitutes would continue to be liable for imprisonment even for a very short time. However, I consider that it is right to retain even the possibility of such short term imprisonment, as what I would call the ultimate deterrent for the worst cases of public soliciting.
Most of the amendments seek to substitute a community service order or a fine and alternatively a community service order for the penalties provided in the sections. The amendments would have the opposite effect to that intended and I will explain why. Section 2 of the Criminal Justice (Community Service) Act, 1983, provides that a community service order can only be imposed by a court as an alternative to a prison sentence. In other words, if a prison sentence is not an appropriate penalty for an offence, a community service order cannot be imposed. A community service order cannot be imposed as an alternative to a fine or as a penalty in itself. Therefore, none of the amendments to sections 7 and 8 would be workable. The only way the court will be able at its discretion to impose a community service order for soliciting or loitering is as an alternative to the short prison sentence in sections 7 and 8 as they stand. That does not have to be specifically catered for in those sections; there is a general application under the 1983 Act.
Senator Henry's amendment refers to "any other sanctions which the Courts are empowered to impose". These offences are statutory offences and the courts would have available to them only those provisions or penalties which are established and provided for by statute. I will conclude by informing the House that the question of extending the scope of the Criminal Justice (Community Service) Act, 1983, is at present being considered in the context of a very broad policy review which is under way in my Department in relation to prison policy generally.
I regret I cannot accept the amendments both for technical reasons, which I have explained, and for policy reasons.
I thank the Minister for her very clear and convincing explanation, particularly with regard to community service orders. I particularly welcome the indication she has given that this area will be developed as a result of the review in her Department.
Finally, may I put on the record some of the content of a letter I received. This is a different correspondent to the one I quoted earlier.
Prostitutes, by and large, are poorer, less well educated people. They are essentially a disparate disorganised group not homogeneous as popular and uninformed opinion portrays them. They do not have high-profile, articulate and entertaining spokes-persons to champion their cause or vindicate their rights. I would therefore appeal to you to be magnanimous and oppose the recriminalisation of prostitution. There are grievous implications in this for women who are convicted. They may be refused entry to a number of countries, they can lose custody of their children, they will suffer all the disadvantages and all the discrimination that a criminal record brings, especially one that is sexually related. God knows they are not criminal but this law would allow the authorities to meddle in their lives, thus alienating them completely. These are profoundly serious and the legislation has conveniently disguised them.
He then speaks about the clients of prostitutes. As the Minister has indicated not all prostitutes are poor and not all clients are wealthy. My correspondent dealt at some length with the financial circumstances of some clients. He said:
I was once employed in Fitzwilliam Square and I still vividly recall one occasion when I had to work late at my office, emerging onto the street at 10 o'clock to encounter the appalling sight of protesting women being unceremoniously herded into a van by grinning gardaí while others who had cowered behind parked cars were physically removed. The fact that some were black only reinforced the pathos of that unsavoury vista. Though I am now retired and work only part-time I never again want to see or hear such actions against non-offending people in my native city. The spectacle of police and courts being used against anybody who has not committed a crime is to my mind absolutely reprehensible.
Last year the police were told to hold back arresting women going abroad for an abortion. This year their role in relation to condoms became redundant. Now they will no longer have any legal reason to peer through the bedroom windows of gay couples. Instead they are being directed by the State against the weakest, most vulnerable and most outcast of all sexual minorities. My citizenship of this State causes me embarrassment. The Minister would have been better advised to leave this issue aside for the moment and not to slip it through as a mere footnote to a Bill that is otherwise sound and forward-looking.
I may not agree with all the nuances of this letter but I felt it appropriate to place it on the record as an unsolicited prompt from someone who took the trouble to write to me and to put his name and address on the letter. I received four or five letters; none of them was anonymous and some of them strongly espoused the idea of regularising and legalising prostitution on health and social grounds.
As regards the nuisance caused by prostitution this may be true but we are a filthy race. It is not only prostitutes or their clients who discard condoms everywhere. I jog on Dollymount Strand and it is the middle classes who litter them there. On O'Connell Street people continually discard them.
Acting Chairman
Senator Norris. once again you are testing the patience of the Chair.
I am addressing the issue of prostitutes causing nuisance through littering condoms——
Acting Chairman
We will deal with that on the Litter Acts, if we may.
That is precisely what I am suggesting. I thank the Chair for his most helpful intervention. I have experience of living next door to what was described as a massage parlour. The house was in disastrous condition and was owned by a middle aged, middle class couple. When I rang to complain that nuisance was being caused to the respectable married couple living in my basement flat who were being solicited by drunken sports enthusiasts to perform various acts, the solicitor laughed at me on the telephone. However, since the woman who ran the massage parlour left, was evicted or was thrown out, the place is in a deplorable state. At least she kept it clear, tidy and swept.
If some people living in the area I come from heard those remarks they would be shocked. This happens only in certain parts of the State.
The Senator should not underestimate the people in Cork. They are not so easily shocked.
The Minister accepted amendments from my party about fines, and I appreciate that. Yesterday evening I had a consultation with a legal person who represents people who may find themselves in this position. I was told there was no way fines of this magnitude, if imposed, could be paid. The likelihood was they would face imprisonment. I did not put down a further amendment as the Minister had accepted other amendments and an amendment to section 8 to the effect that a person would need reasonable cause for suspicion. That alleviated the problem.
Will the Government's approach to prostitution be limited to strengthening the law and increasing penalties? Is there any other part of the Government's or the Minister's programme to deal otherwise with this issue to help those people?
I thank the Minister for explaining so clearly why my amendment would be counter-productive. I will withdraw it. However, I still have anxieties about these regulations being enforced in an unjust manner. The women who solicit are easier and more likely to be picked up by the police and charged than those who kerb crawl. The latter are a dreadful curse. To give an example of persistence, I was followed one dark night from Burlington Road as far as Beggars' Bush and that was quite frightening.
I understand the Minister's intention here. However, I hope it has been taken into account that these women will have criminal records. The majority of those to whom I have spoken are poor and the fines are high but the Minister has explained they are the maxima.
The amendments to the section are worrying because, as Senator Roche said yesterday, prostitution is the worst form of exploitation of a human life. It has been suggested pimps and clients of prostitutes should be subject to the full rigours of the law but prostitutes should be treated differently. It is a horrific profession or lifestyle with nothing to recommend it. To suggest it should be dealt with differently may send out signals to young men and women that we recognise what they are doing is a type of work. That message should not be sent.
Senator Sherlock is right to ask if the Government has another policy to deal with prostitutes. If we were to adopt even the tone of these amendments it might become Government policy to suggest that prostitution is acceptable if a person is in particularly bad circumstances. That could be said of 60 per cent of my constituents who are unemployed and find themselves in a position of having to shoplift. A distinction is not made between those who shoplift because they have to and those who do not, although perhaps the judiciary should when it comes to sentencing.
What is suggested does not sound right although I may be mistaking the intention. We should clearly tell young boys and girls who may be considering prostitution because of desperation that it is the worst road to take. I have a blind spot about this and I would hate to see a softening of the tone for the unfortunates who follow this lifestyle. The Minister says there will be a review of community service orders and that fines will not be imposed, but there must be a penalty for prostitution as well as one for those who use the services of a prostitute or else we are sending the wrong signal.
Acting Chairman
The Minister has been asked several questions and she should be allowed to answer them. I call Senator Taylor-Quinn.
It is difficult to support this section. It introduces fines and criminalises prostitutes. I think the Government is putting the cart before the horse here. I appreciate the Minister is attempting to tackle loitering, vagrancy and the public nuisance of prostitution. Nonetheless, we must tackle the fundamental question of why these women are on the streets. What are their social backgrounds, their economic problems and what has forced them into this position? We also must appreciate that many of these women are on the streets unwillingly, they are forced onto the streets. They are there at the behest of people who are gaining from their activities.
The Law Reform Commission referred to the Garda Síochána; the Garda Síochána said that the non-prosecution of prostitutes for loitering seems to make little difference to its incidence. I suggest that this section of the Bill, if it were to go through, would make no difference to the incidence of loitering on the streets, and for that reason I do not think it is useful.
I am concerned for these women and know many of them in my constituency. Perhaps the impression is being given here today that prostitution is peculiar to Dublin. There are few towns in Ireland where some prostitution is not carried on, particularly in traditional port towns. Many of those engaged in prostitution come from extremely deprived backgrounds, and many of them have been victims of various types of abuses. Most of them come from families who have been traditionally involved in this activity and know no better. I suggest that the Minister withdraw this section and proceed, with the Departments of Social Welfare, Health and Education, to address the real social problem — why these women are on the streets in the first place.
An Leas-Chathaoirleach
I must remind the Senator to stay within amendments Nos. 9, 10, 11 and 12. The Senator will have the opportunity of expanding on that issue when we are dealing with the section.
I wish to remind Senator McGennis that the Minister, Deputy Howlin, who was here last week referred to ladies involved in that activity as "female sexual operatives". The Minister might convey Senator McGennis's view to Deputy Howlin. I share her apprehension.
I dealt comprehensively with Senator Henry's and Senator Norris's question in relation to the community service orders. I explained why they are not operable, and that what they were proposing could not be done for policy and technical reasons. I will confine myself to questions raised about Government policy on prostitution and what we are doing to combat this problem.
The Report of the Second Commission on the Status of Women made a specific recommendation in this area. This is the first time public recognition has been given to the fact that it is not only the Department of Justice which should be involved in this area, that it is not an issue that relates only to the law but that it relates to health protection and education and so on. Therefore, at least three Departments should be involved very closely. The Commission on the Status of Women made that recommendation because they felt there was insufficient co-operation between the Departments, and that the onus of responsibility for changes in this area had rested up to now with the Department of Justice. For that reason I am pleased with the commission's recommendations.
Senator Honan said she was concerned that this issue might be forgotten and that assurances I give might not be lived up to. I wish to reassure her that that will not be the case. All three Departments are working to see how best the recommendations of the commission can be implemented. The commission could have gone as far as recommending a task force, a special working group or a working party to look at this area but they did not and I am not sure they had very good reason for not going that far. In regard to taking an integrated approach of this problem, all three Departments are working on that basis. When they come forward with proposals, I will have no hesitation, if they are within my area of responsibility, in putting them to the Houses of the Oireachtas.
Amendment, by leave, withdrawn.
Amendments Nos. 10 and 11 not moved.
Question proposed: "That section 7 stand part of the Bill."
I oppose this section and I have already given my reasons. The Government and the Minister may be putting the cart before the horse. It would be advisable to proceed with the consultation required between the Departments of Health, Education, Social Welfare and Justice in relation to the social difficulties which give to prostitution, particularly as they affect the prostitutes themselves. Why are these women involved in prostitution? From what economic and social backgrounds do they come? What type of under-privilege or abuse have they suffered? What are their present circumstances? It is important that this work commence urgently to solve these problems.
The report of the Law Reform Commission clearly suggested that the women involved in prostitution should have an input into decision making about the type and level of service they require and designing social rehabilitation programmes. It is important that the Departments proceed along those lines because we must remember that a number of women are not voluntarily involved in prostitution. Many of them are forced onto the streets, some work on the streets, some in brothels, some provide an up-market call service, etc. This issue is not confined to the streets or brothels of Dublin. Few towns do not have some level of prostitution, particularly port towns. The issue needs to be addressed nationally.
The Minister needs to address the underground operations in rural areas. I speak of one with which I am familiar where a pimp is operating a service from a caravan, using young girls of 15, 16 or 17 years of age. When the Gardaí investigated, they were not in a position, legally, to anything about it because they did not have a search warrant. In a number of instances the Garda have tried to prevent prostitution operations but the operator had the upper hand under the law because the gardaí investigating were not in possession of the necessary search warrant.
One issue which needs to be addressed is the social deprivation suffered by some of the prostitutes. Admittedly there are some who are not poor, who are operating at a sophisticated level, and that issue needs to be addressed separately. It is a wide ranging matter which needs exhaustive and extensive research and all Departments need to address it. To bring the heavy hand of the law down on these unfortunate people without taking the initial steps of providing a rehabilitation service is unacceptable; it is putting the cart before the horse
I have listened to this debate and it struck me that there is a mood in the House that prostitutes cause prostitution. I do not believe that is the case. It is a case of supply and demand. The area in Limerick city where prostitutes originally were to be found was not a place anyone in their right mind would go, but to seek out prostitutes.
To use a sledgehammer to hit the poor unfortunate prostitutes over the head ignores the real issue: why are they there in the first place? Nobody has ever answered that question. If you moved all the prostitutes from the streets, the brothels and the caravans Senator Taylor-Quinn mentioned, what would happen? The problem would still be there, albeit in a different form. In other words, the prostitutes are the victims and not the cause of the problem. We need to address the reason men seek out prostitutes. If that was not there, where would they go and what would happen?
This matter must be seriously addressed before we begin jailing all the prostitutes or forcing them to engage in other activities to pay the fines. The fines are severe and I imagine many of the women involved in, for example, dockside prostitution would not have that kind of money. If they are to pay the fines they will be further in the power of pimps and moneylenders, they will get into worse financial circumstances and may become a greater danger to themselves than before.
I wish to make a brief comment on the amendment establishing a task force on prostitution which I regret was not allowed. I will not go on tediously about it because I poached that amendment from the Workers' Party amendment in the Dáil to which the Minister responded there.
Democratic Left.
I beg your pardon, the Democratic Left, what a solecism. I altered it slightly by suggesting 12 members including representatives of the gay and lesbian community. The response that the Second Commission on the Statue of Women did not call for the establishment of such a task force is inadequate. It is still open to the Minister to establish such a task force.
I believe the basis for a task force is in what the Minister said about the network of relationships between the Departments of Health, Justice and so on, dealing with this problem. The Minister said she included the sections dealing with prostitution, although that is not the principal intention of this Bill, because a lengthy and comprehensive review would otherwise have been necessary, thereby, putting the matter on the long finger. That implies that this is an interim solution, that there wil be a long term examination and that this area may not be neglected.
I recognise the difficulties in accepting the amendment at this stage and that I have spoken a great deal during the day, perhaps to the tedium of the House, but I urge that this matter not be completely dismissed. A task force to tease our some of the problems highlighted in the House might be established specifically to look into the health and welfare of prostitutes.
Senator Taylor-Quinn said the the Minister is putting the cart before the horse and that we need to look at this social problem. I agree. However, we should not look only at prostitution, we need to look at the whole area of crime — why it happens, how we respond to it and the effects of punishment.
Senator Norris complained about people loitering, causing a nuisance, etc. He rings the same garda who will now have powers to concentrate on the poor, unfortunate prostitutes. What if the Garda responded that they agree loitering is a nuisance but are looking into the social problems behind it and are not going to impose any penalties in the meantime? That could be done across the board.
Politics is probably the only other profession as old as prostitution and we still have not figured out why people engage in it. It would seem daft to suggest that, because we are looking into the social problems behind prostitution, there will be no penalties imposed in the meantime. I could suggest many areas where we could withhold the penalties and pump money into looking at the causes.
The State is dealing equally with the prostitutes and the people who are using their services and everybody who is causing the nuisance. It is not enough to say we are looking at the social reasons and there are no penalties.
I supported the amendment Senator Norris says we poached from the Democratic Left. A task force should be set up, although the commission did not recommend it. I put down this amendment because I am concerned at the prospect of women being put in prison. The Minister said, that under the Criminal Justice Act community service could not be imposed on somebody unless this was commuted from a prison sentence and I withdrew the amendment.
We do not want to put unfortunate women from deprived backgrounds in prison. We are more concerned with the safety and health of, and social supports for, women involved in prostitution. I would like to see an end to prostitution, because like the rest of society I am not content to see women — in this case prostitutes — remain as part of an under-class. We should work towards eliminating this.
Senator McGennis said that prostitution is one of the oldest professions. I do not see it as a profession but as one of the oldest forms of women's exploitation. It is only now that we, in this country, are beginning to do anything about it. I found it very offensive when the Minister for Health spoke about women sex workers in the House last week. I would not like the signal to go out that this is how we see these women. The exploitation of prostitutes is an exploitation of all women which we should be working towards ending.
I agree with Senator Honan that prostitution is an absolute form of women's exploitation. If we proceed with this section not alone will we be part of that exploitation but of the further victimisation of these women. In many instances an unfortunate woman could be arrested on the street, whereas the person, usually a man, who put her there will escape the law. I do not see that as fair in natural justice. It will be far easier for a garda to arrest a woman on the streets than to find the pimp. That is not fair.
Progress reported; Committee to sit again.