Sex Offenders Bill, 2000: Committee Stage.

Sections 1 and 2 agreed to.

SECTION 3.

Ms Keogh

I move amendment No. 1:

In page 7, subjection (3), line 20, to delete "3" and substitute "2".

Senator Taylor-Quinn is unfortunately ill and unable to be present. I hope that the presence of Senator Connor and myself will be acceptable to the Minister of State.

There is concern about the age differential in section 3(3), which provides for an exemption from the notification requirement where the person guilty of the offence was aged not more than three years older than the other person involved. Two years older would be a sufficient gap and I ask the Minister of State to consider the amendment.

Dr. Henry

I regret I cannot support the amendment. Three years is a reasonable length of time. The intention is to protect young people from being coerced into sex with those who are considerably older and who would have great influence on them or who could even be seen to be in a position of authority. Since we are constantly told that boys mature much later than girls, three years is reasonable in this context.

Minister of State at the Department of Justice, Equality and Law Reform (Ms Hanafin)

I thank Senator Keogh for moving the amendment. The aim of the age differential is to draw a distinction between sexual activity taking place between young people of a broadly similar age and cases where one person is significantly older than the other or where an abuse of authority or trust may be involved. As a generality, I would put it no more precisely than that. Child abuse is indicative of the existence of an unequal relationship of power between the child and the older person but that would not be the case where the parties involved are teenage peers.

The proposal in section 3(3) is that consensual teenage sexual activity where the victim is aged between 15 and 17 years and the other party to the offence is not more than three years older than the victim should be exempted from the notification requirements. Where an offence has been committed in such circumstances and the sentence is non-custodial, it is almost certainly as part of a consensual relationship that does not imply that the offender represents any future danger.

It is difficult to know what the right age difference should be, that is, if there is a right or wrong age difference because essentially it is a value judgment with all the relevant circumstances having been considered. However, there are two important points to bear in mind. First, we do not wish to place on the register the names of young persons involved in a relationship among peers and, second, if the Bill is to be effective, it must be practical and have regard to social realities.

My concern is that we will not expose a young person who engages in sexual intercourse with a willing and socially mature partner of broadly similar age to a notification requirement aimed at paedophiles and serious sex offenders when that young person does not fall into either category. The age limits which attract the exemption in this area are, to some extent, necessarily arbitrary. If the amendment proposed by Senator Keogh was accepted the effect would be to potentially expose an 18 year old partner of a 15 year old teenager to the notification requirement, with all that entails. I consider that the three year age gap proposed in the Bill represents a more realistic difference in age having regard to the purpose of the Bill. Where the girl is under 15 years of age the other party will be included in the register regardless of his age or the age difference. The exemption in this respect only applies where the girl is 15 or 16 years of age.

It is worth bearing in mind that this exemption does not affect the criminal offences concerned such as defilement of a girl aged between 15 and 17 years. These remain criminal offences regardless of the age of the perpetrator. It is only the requirement to notify that is affected. There appears to be general acceptance of the need for these exemptions. We are simply discussing the question of the age difference. For the reasons I have explained, I consider that the balance lies with three years and appreciate Senator Henry's support on the matter. I do not propose to accept the amendment.

Mr. Norris

I also oppose the amendment for some of the reasons the Minister of State has outlined but those very reasons should give us pause to consider the operation of the Bill in these terms. I have always believed, for example, that a far better way of dealing with these issues is the principle of consent. I am aware that is awkward because it would have to go to a court and a judge, or some kind of panel, would have to determine whether consent actually existed but the Minister of State said it all when she said that any of these lines are arbitrarily drawn, and when these lines are arbitrarily drawn there will be cases where moral injustice or damage is done to young people.

I notice the Minister of State referred to the girl under 15 years but this is not confined to girls. There is no recognition or understanding of the whole area of gay sexuality in the Bill and my experience of this area, in founding counselling organisations and so on, is that whether society likes it very frequently and, in most cases, viewed positively by the subject, a young gay man's experience is in partnership with somebody who is some years older and seen by the younger person as a secure and reassuring entry into the full expression of sexuality. I do not believe there is any understanding of this fact in the Bill because the Minister of State simply referred to "a girl" and that is the way in which people think. They do not accept the area of gay sexuality at all.

Even the language in which many of these matters are couched is questionable. The Minister of State spoke about the defilement of a girl. This, presumably, is something that can take place with or without consent because the girl is under a certain age. Is this language we should accept in the 21st century as appropriate to describe a consensual sexual relationship, even though I accept that parents may be concerned because of a difference in age or because they believe their child, young woman or young man, is too young to have any experience of sexuality? There is a whole area therefore that has not been taken into account by those framing the Bill.

The Government's amendment, No. 18, appears to be in the same area – I am surprised it is not linked but I am sure there is a technical reason for this – where it specifies prison terms for persons found guilty of sexual assault and so on. If somebody is under the age of 17 years, regardless of whether there is consent, in legal terms it is defined as an assault. No consent can be deemed possible by a person under a certain age so a situation may arise where the relationship is perceived by the two parties engaged in it as consenting, yet the law describes it as assault and defilement and apportions severe penalties in terms of imprisonment or the social stigma of being added to a register.

I accept the enormous public concern about this issue, especially because so much tragic information has been given to the public in the area of paedophilia. The Minister of State used the word appropriately but unfortunately often in these discussions it is not used appropriately and people assume that certain types of behaviour of which they disapprove are paedophilia when they are not. I am against the idea of arbitrary age considerations and in favour of a principle of consent. Since that appears not to be available I support the Minister of State's view.

I ask the Minister of State and her advisers to bear in mind this area. I do not ask them to necessarily take what I say as fact but to contact those agencies that deal with young people with troubled sexuality, especially young people in the gay community who are coming to understand their sexuality. I also ask them to listen to what the people who deal with young people in this area have to say. Surprising conclusions may emerge which might affect the way these legislative provisions are framed in the future. I welcome the Minister of State's indication that this may be possible and that in future when such legislation is being framed these kinds of contacts will be made. As it is, a whole area of human sexuality is totally ignored in the consideration of this legislation.

Dr. Henry

I understand Senator Norris's point of view but we have not totally ignored gay sex in this legislation. I considered heterosexual and homosexual sex in the context of the Bill. At any given time society makes judgments, and arguing about consent on a case by case basis is extraordinarily difficult. The Senator will recall that we discussed this area some years ago when we considered the age of consent for homosexual and heterosexual sex. Children mature at different ages.

Mr. Norris

I said the same thing then.

Dr. Henry

That is correct and I do not accuse the Senator of being boring or repetitious because what he says is very important in that he can provide us with an insight into the thinking in an area where most of us do not have as much access. However, we must recognise that at any given time society makes decisions which reflect the best we can do. For example, it was not long ago – it was certainly the case at the beginning of the last century – that 12 was the age of consent for girls, yet nobody today would suggest that this was appropriate. Most legislation in other countries has raised the age of consent to 14 or 15 years.

Many of these provisions concerning girls were made for practical reasons because they were too young for motherhood. The dangers of becoming pregnant for physical reasons were so severe that the age of consent was continually raised. It was not raised simply for moral reasons or on the basis that girls were not in a position to properly give consent. The situation is more difficult when it is applied to boys.

The legislation strikes the right balance. Of course some children will mature sooner than others and will be in a better position to consent to sex but the legislation is drafted as well as possible. The Bill should be passed with this provision intact.

Ms Keogh

I realise the Minister of State is being reasonable in this regard. As she said, it is difficult at that stage to differentiate between two and three years. Others have made the point, which should be borne in mind, that people mature at different ages. Having listened to the various arguments, I am content to withdraw the amendment.

Mr. Norris

I want to comment on that. I accept that my position will not be advanced very much by this debate, but I would ask the Minister of State and her advisers to be particularly sensitive where gay sexuality is concerned and to make the kind of contacts I have suggested.

Senator Henry referred to girls and women. The whole concept of gay sexuality was left out of her contribution entirely.

Dr. Henry

I mentioned it.

Mr. Norris

I know Senator Henry mentioned it, but only after I referred to it, and subsequently she retreated to the subject of girls.

Reference was made to public opinion and society making decisions. Society is a very complex organism. Nobody who listens to the radio or reads the newspaper can be unaware of the fact that young people of 14, 15 and 16 years – schoolgoers – seem to be routinely engaging in sexual activity, not necessarily full sexual activity. I am concerned about any measures that would marginalise young men and women, either by putting them on a list as sex offenders or by subjecting them to terms of imprisonment.

I am simply sounding an alarm bell warning that the Bill must reflect the reality of society as a whole and not merely consist of the aspirations of an older generation. It must reflect the reality of young people who are sexually active, whether they are heterosexual or homosexual.

Ms Hanafin

I reassure Senator Norris that young men are dealt with in section 3(3)(b), which stipulates that they will be treated in the same way as young girls aged between 15 and 17 years.

Mr. Norris

That is the problem. The experience of young men may be radically different from that of young women. That is why the Minister of State must be in touch with the organisations.

Ms Hanafin

From the point of view of being an offence, which I think is Senator Norris's original question, it is in the Bill. We are not talking about changing the criminal law regarding such offences and a register. The question of consent will be examined when the discussion paper on the law on sexual offences is being considered further. Just as Senator Norris spoke of the appropriate use of words, the message today is that we should have the appropriate use of the register, which is designed to work against paedophiles and sex offenders. I thank Senator Keogh for withdrawing her amendment.

Mr. Norris

Would the Minister of State be prepared to give an indication to the House that, in the framing of this kind of legislation, there will be contact with counselling organisations, particularly those for gay men? That would be very helpful.

Ms Hanafin

The legislation is outside my remit, but I will pass on that information to the Minister for Health and Children.

Amendment, by leave, withdrawn.

Section 3 agreed to.

Sections 4 and 5 agreed to.

SECTION 6.

An Leas-Chathaoirleach

Amendments 2 and 3 are cognate and may be discussed together, by agreement.

Ms Keogh

I move amendment No. 2.

In page 7, line 37, after "conviction" to insert "or the date found guilty but insane".

There are two criteria concerning the Bill that must be satisfied – that the offender must be convicted and found guilty but insane. I know from amendment No. 2, moved on behalf of Senator Taylor-Quinn, that those words do not occur. Therefore, "or the date found guilty but insane" should be inserted after "the date of conviction" in section 6. If we are to have people on a register, it would be an omission if these words were not included. Will the Minister of State respond?

Ms Hanafin

Although an insanity finding is, in law, a verdict of acquittal, persons found to be guilty but insane of a sexual offence are included in the scope of the Bill. Research shows that sex offenders legally classified as mentally disordered are slightly more likely to re-offend than other sex offender groups. The Senator will notice that the definition of "conviction" in section 2 includes a finding of guilty but insane. Therefore, the amendments are unnecessary as the matters they are addressing are already catered for in the Bill. I will not accept them.

Amendment, by leave, withdrawn.

Section 6 agreed to.

Amendments Nos. 3 and 4 not moved.

Section 7 agreed to.

SECTION 8.

An Leas-Chathaoirleach

Amendments Nos. 5 to 9, inclusive, form a composite proposal. They may be discussed together, by agreement.

Ms Keogh

I move amendment No. 5.

In page 8, subsection (3)(a), line 22, to delete “2 years” and substitute “6 months”.

The period for which the person is subject to requirements must be tightened up. Amendment No. 5 concerns the deletion of "2 years". Therefore, subsection (3)(a) would read: “an indefinite duration if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for life or for a term of more than 6 months.”. Consequently, as indicated in amendment No. 6, section (3)(b) would read: “10 years if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for life or for a term of 6 months or less.”.

Amendment 8 requires that "7 years" be substituted in the place of "5 years" in subsection 3(d). We are looking for safeguarding measures.

I am conscious of having a balance and that one must not go to the extreme of scapegoating people and using the most intemperate language and actions used recently in parts of England. However, we would like to satisfy people that offenders could be rehabilitated and that the timeframe allowed would be sufficient for the needs of both the offender and society.

Ms Hanafin

These amendments propose to reduce the severity of the sentence required before a person becomes liable for the relevant period for notification. With regard to amendment No. 5, a lifetime notification requirement would apply following a six-month prison sentence, instead of a two-year sentence, as is in the Bill. The provisions in the Bill in this respect are, to some extent, arbitrary in that deciding on the particular durations is not an exact science.

Two major concerns have directly influenced the proposals for the Bill. First, we looked at the English durations, took them as a base line and examined them to see if they were appropriate for Ireland. In other words, could we justify the imposition of different durations? The only change that could be justified using that yardstick was to reduce of the 2.5-year prison sentence for lifetime notification requirement to two years. This was done to bring cases within the jurisdiction of the District Court in certain circumstances.

Second, and more importantly, we had to have regard to proportionality – a concept developed over recent years by our courts. The balance between sentence and the notification obligation is about right, and to extend that obligation, as proposed in the amendments, could stretch that balance to breaking point.

It may be argued that we, as legislators, should decide what the courts should do. It may also be argued that the principle of proportionality is inherent in the amendments. It is here in the sense of the notification requirement, where a six month sentence is handed down and is greater than where the sentence is for less than six months. However, that is not necessarily what the courts had in mind when they introduced into Irish constitutional law, in the case of Cox v. Ireland, 1992, the notion of proportionality between offence and penal consequence. That was extended in the case of Lovett and the Minister for Education in 1997, which applied the notion of proportionality, by particular reference to the statutory objectives sought to be achieved, to consequences which would limit a citizen's constitutional rights and were sought to be applied as a secondary consequence of criminal conviction. What all that means by reference to the amendments is that a constitutional issue is involved and I am satisfied that acceptance of the amendments could upset the balance so carefully achieved in the Bill.

The Bill already provides a mechanism whereby persons with a lifetime notification requirement can apply to the court to have that requirement lifted, ten years after their release from prison. That indicates how seriously the notion of proportionality must be taken. I can understand the reason Senator Keogh put it forward but, for the reasons explained, I will not be able to accept it.

Ms Keogh

Can I ask the Minister a question in relation to this? Forgive me if I am not as familiar as I might be. If there has been an offence with a sentence of two years or less, and the person subsequently re-offends, what will be the result of that and will they automatically go on to a lifetime on the register?

Ms Hanafin

It is the length of time of sentence and not the number of times of offending that dictates notification on the register.

Amendment, by leave, withdrawn.

Amendment Nos. 6 to 9, inclusive, not moved.

Section 8 agreed to.

NEW SECTION.

Ms Keogh

I move amendment No. 10:

In page 9, before section 9, to insert the following new section:

"9.–The Governor of the prison or place of detention or the medical director of the hospital in which the offender was held shall inform the Garda Commissioner, in writing, of the date of release from that institution or place of detention or hospital of a person who is subject to the notification requirements of this Part".

This is an eminently sensible amendment as such information should be available. There is a later amendment on access to the register by the Garda Síochána. We are specifying that it would be the Garda Commissioner who would be informed in this instance. It is essential that there is an awareness of the whereabouts of the offender. If it is done in writing directly to the Garda Commissioner, that is a safe way of making this information known.

Ms. Hanafin

Senator Keogh will note that section 9 of the Bill, which was introduced by way of ministerial amendment in the other House, provides for what is proposed in this amendment. In fact section 9 goes further than what is proposed by also placing an obligation on the prison governor or the Director of the Central Mental Hospital to remind the sex offender before release of his or her notification obligation. I will not be accepting this amendment.

Ms Keogh

The wording that we propose is slightly different, but I accept what the Minister has said and I know that amendments were accepted at that level.

Amendment, by leave, withdrawn.

Section 9 agreed to.

SECTION 10.

An Leas-Chathaoirleach

Amendment No. 11 in the name of Senator Taylor-Quinn. Amendments Nos. 12 and 14 will be taken with amendment No. 11, by agreement.

Ms Keogh

I move amendment No. 11:

In page 10, subsection (1), between lines 6 and 7, to insert the following new paragraph:

"(b) his or her fingerprints,".

In order that the fullest amount of information would be available, the issue of fingerprints and a signed photograph attached is a very valuable way of having information on a particular offender. Would there be a separate way of keep ing this information on file without having this as part of the Bill?

Dr. Henry

I would have thought these were useful amendments, in that it would be more specific as to who the person was, particularly in a country where so many of us tend to have the same names. There are quite a few Mary Henrys running around the countryside, and there would be John Byrnes, and maybe even Helen Keoghs and John Connors and John Cregans. It would be an extra useful method of identifying people and it would also prevent the false identification of people, particularly if there were photographs. We have seen problems in England since their register was set up, with the false identification and people really having the most unpleasant time from vigilantes, before they were rescued by the law.

Mr. J. Cregan

I take a slightly different view from the previous speakers. The whole purpose of the Bill is to ensure that people notify the relevant authorities, and I think they are far more likely to notify them simply by having their names and addresses on the register. Fingerprinting and photographing might be going too far as people would fear that the photograph might appear at some stage in the future and we would be back to the situation which we are trying to prevent. The confidentiality of the register is the important element and people would not have easy access to it. I am against the amendment.

Ms. Hanafin

The amendment seeks to place two additional requirements on convicted sex offenders when they are fulfilling their notification obligations, providing photographs and having fingerprints taken. We are not aware that these obligations are used in any other jurisdiction. In preparing the provision relating to the information that a convicted sex offender would have to supply when registering, we were very conscious of the British and Northern Irish requirements in that respect, and the high compliance rates of up to 97% in those jurisdictions. There is a direct link between the two. Whatever about our own notions on sex offenders, their devious nature and heinous crimes, it would be counterproductive to persecute or demonise them at a time when they may be making an effort to avoid further offending and indeed the temptations to reoffending. There is a direct and verifiable link between the amount of information required to be notified and the compliance rate, and in the final analysis it is the compliance rate that is important.

In the non-punitive context of this provision, it is important to ensure that the actual notification system is easy to comply with and is one that will not frighten off sex offenders from notifying the Garda. Any fear, however unfounded or irrational, of say photographs given at the time of notification being made public would lessen the compliance rate and therefore the benefits of the notification system. The Minister is at present preparing legislation under which the Garda would have power to photograph any person who is arrested. In addition, any person on whom a prison sentence is imposed has their photograph taken, and in the case of those serving long sentences, the photographs can be re-taken closer to the release date and these can be made available to the Garda. This is a better of way of dealing with the question of photographs than picking out one group of offenders in the way proposed. With regard to offenders from abroad, photographs can be made available through normal police channels.

The argument can be made that persons can change their appearance and that old photographs might not bear a resemblance to their current appearance. While that is true, the photographs available to the Garda would be recent. It is also the case that even after registering, persons could significantly change their appearance whether a photograph was supplied.

Other considerations aside, I see no particular benefit in persons being required to give fingerprints when registering. Regardless of whether it is the intention, the amendments would require an offender to provide a photograph and have his or her fingerprints taken every time he or she notifies the Garda in accordance with the Bill.

The reservations concerning the amendments are based on the firm belief, supported by evidence in other countries, that the less information that has to be notified the more likely it is that the person concerned will comply with the notification requirements. I remind Senators of the compliance figure of 97% in Britain and Northern Ireland. It would be far better to have a very high compliance rate based on the provisions in the Bill than a significantly lower percentage where photographs are supplied and fingerprints taken.

I remind Senators that as soon as the Bill is enacted the analysis of the discussion paper on the law on sexual offences will take place and if the need for changes to the law is identified Government approval will be sought to prepare the necessary legislation. By then this Bill will have been in operation long enough for any weaknesses that could only be identified from experience gained from its operation to be rectified. If, for example, experience showed that the need for photographs to be produced at the time of registration outweighed the desirability for a very high compliance rate, this could be looked at as part of the review. For these reasons, I do not propose to accept the amendments.

Ms Keogh

I am a little surprised at the Minister of State's comments. Offenders should comply with requirements. I question whether making it mandatory to give fingerprints and supply a recent photograph would frighten people off. As the Minister of State said that photographs would be available anyway, I fail to see what the big problem is. More mistakes can be made by having names bandied about than having adequate information available on offenders. None of the information should be made public unless an individual behaves in breach of the requirements.

We want complete information made available about persons who are subject to the requirements. We do not want to demonise them but are calling for an acceptable and normal amount of information to be made available. Nobody objects, for instance, to calls for the introduction of identity cards for young people to tackle under age drinking. There is nothing extraordinary in making people readily identifiable by photograph as well as by signature.

The Minister of State cited the case of Northern Ireland and Britain. The question is whether the requirement to supply a photograph makes any difference to compliance rates. I do not know what they are in countries where photographs are required. Having both a photograph and fingerprints would provide a more complete information kit about offenders. If people are willing to comply with the requirements, they will not be demonised in any sense but better information will be available. It is unlikely that an offender will move so often that the requirement to provide information each time an offender moves will be a great burden.

Mr. Connor

I add my voice in support of my colleague, Senator Keogh. I belong to the category of strong defender of people's personal and civil rights. I am no great supporter of overweening intrusion of the State into people's private and personal lives. However we are dealing with people who have been convicted of serious offences. These sexual offenders are very often inclined to move around because it is in the devious nature of their activity to do so. Initially therefore the register should contain a photograph. A fingerprint or other DNA evidence of identity should also be lodged with the Garda. If they move around the requirement to report should mean that they provide at least a signed photograph at any new location. Fingerprinting or the submission of other DNA evidence will only be necessary once in a lifetime.

I see the Minister of State's point with regard to the very high compliance rate of up to 97% in other jurisdictions. However the law requires compliance and such levels should be achieved in all domains, not only in respect of sexual offences.

There have been instances of tabloid newspapers using identity photographs of sex offenders to target people by telling readers that a certain sex beast is coming to live in their midst. Everyone deplores this. There is a risk that photographs given to the police can be leaked to people in certain journalistic circles who like to sensationalise these stories and it appears that there is an insatiable appetite for this kind of journalism.

The amendment should be taken more seriously because there is a great fear among the general public of offenders who move around. It is often in the nature of their activity to be highly mobile. Stricter reporting procedures should be laid down in the Bill. At the risk of repeating myself, while the Minister of State and her officials justify their position by using figures showing compliance with similar requirements in other jurisdictions I, as a defender of personal rights, believe we should go further.

Ms Hanafin

We are not aware of any other jurisdiction which requires the use of photographs and fingerprints. It is important to remember that although they are obliged to notify, the people concerned have served their sentence and are therefore free and no longer felons. Our concern with compliance is mainly due to the psychological fear on the part of sex offenders that their photograph might appear in the public domain. A name is just a name but a photograph is of oneself. If in the follow-up discussions on the paper on the law on sexual offences we find that photographs are needed in the application and enforcement of the register we will re-examine the matter. For now we will follow other jurisdictions.

Amendment put and declared lost.

Progress reported; Committee to sit again.

Seanad Éireann debate - Wednesday, 30 May 2001