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Seanad Éireann debate -
Thursday, 3 Feb 2022

Vol. 282 No. 8

Child Trafficking and Child Sexual Exploitation Material (Amendment) Bill 2022: Second Stage

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

I am sharing time with Senator Ruane. I am delighted with the work that has been achieved in respect of the Bill thus far. The phrase "child pornography" has always made me feel uneasy, but since becoming a mother I have realised how inappropriate and disgusting it is. It is out of date and completely incorrect. It does not truly reflect the nature of the abuse and it is unacceptable to continue using such inappropriate language when referring to such an awful crime.

I thank Jessica Bray, Eimear Taylor and all my team for helping me put together the Bill, and say a big "thank you" to my Civil Engagement Group colleagues and Deputy Pringle for supporting me. I thank also Mary Crilly, Caroline West and Vicky Conway for meeting me and working with my team on this legislation, and for the amazing work they do. While researching for and drafting the Bill, there were many different language options to consider. We originally used the term "child sexual abuse material" but we decided the term "child sexual exploitation material" better describes the many ways a child might face abuse. We felt the word "exploitation" recognises how varied the abuse may be. We must be clear: what is occurring here is exploitation.

While drafting the Bill, we also came across possible legal issues with changing the Title of an Act, which had not been done before. However, changing the Title of an Act does not change the reference number of the Act, so the Act can still be identified and referenced in this way. There should be no issue with changing the Title of our legislation should we need to do so, and in this case, it was very necessary. We can all think of words commonly used in the recent past that would now be recognised as offensive and divisive. I would like to think that, should words written in our laws be harmful to people, we would not hesitate to amend or replace them. This is the case here. While "pornography" is not in itself a problematic word, it is used in the incorrect context where it is, in fact, abuse. Where there is not consent, we must name it for what it is: exploitation, assault and abuse.

In 2016, a global organisation that aims to tackle child trafficking and exploitation gathered an international working group of 18 international organisations. The result was the Luxembourg Guidelines, which outlined the importance language can have in assisting and supporting victims and vulnerable people. The group recognised the role of communications and the power of language and the guidelines recommended the term "child pornography" was incorrect. As policymakers, we have a responsibility to ensure we use best-practice terminology. This has been recognised at both an international level and a local level.

I had the pleasure of speaking to representatives of the Fix It campaign this week, who have done great work in "fixing" Irish news headlines to use more appropriate language. They go by the motto "language matters", and it does matter. Language is a powerful tool and we need to ensure the language we use is appropriate and inclusive. It is time this was recognised at a national level. Language is a shared experience that allows us to communicate with one another. Our words carry meaning and we must be careful about the terminology we use. There can be no room for misunderstanding in legislation. We must ensure we use correct and appropriate language. The use of the phrase "child pornography" is incorrect and dangerous. We need a phrase that better reflects the nature of the abuse and the crime. We need to shift the focus from the victim to the perpetrator. By changing the language of our laws, we can guide the narrative on these issues.

Language shapes and defines our understanding, and the words we use are important. The terminology we use is vital. We must remove incorrect and harmful language from our legislation. We need to ensure that how we speak about and recognise abuse is correct. Let us get rid of the words "child pornography" from the Statute Book. Our laws should be written to protect those they serve by implementing appropriate language that truly names the act of the crime. We know that changing the Title of the Act in question is the right thing to do and that this really concerns child exploitation. We must shine a light on the acts being suffered by countless children.

It is our job to protect children in this country. We must listen to them regarding their experiences and do what we can to support children and victims. We must start by labelling what they went through correctly by calling it child exploitation. I have said it many times before and will say many more times that what we are talking about here is not pornography. It is exploitation and abuse, and it must change. We in this House have the power to lead by example and change the language in our legislation.

I begin by thanking Senator Flynn and congratulating her on her first Private Member's Bill. What an important one it is. There is the topic we are discussing itself, but even the conversation on language and its importance matters. I congratulate the Senator's office as well for all the hard work done in respect of the essential piece of legislation before us.

The Bill is based on the Luxembourg best-practice guidelines on terminology and semantics for child protection. The framework was written to promote the use of child-protective language and was compiled by 18 international partners, including Europol, Interpol and the UN Committee on the Rights of the Child. All these agencies recognise and make clear within the guidelines the importance of language when it comes to how we conceptualise problems, prioritise issues and forge responses, especially when it comes to cases of child sexual exploitation and abuse. Every substitution of the term "child pornography" with "child sexual exploitation material" is a step towards Ireland and us, as legislators, being better equipped for dealing with the issue. Each of the 26 substitutions this Bill makes engenders more clarity in the way we conceptualise, define and constructively engage with ending the sexual exploitation and sexual abuse of children. When I was thinking about what the language means and what pornography means, it is something that is active and that someone is engaging in. It is like it is a category of something that someone just likes and that legitimises it. Calling it child pornography legitimises it as an activity or something that is just a category of pornography. That is why it is wrong and why we need to change it. The concept that has been labelled child pornography to date is not pornography. It is an oxymoron because what it refers to could never be described as pornography.

We might talk about language, what it means and where it originates from. Pornography translates from Greek roots as pórn, meaning "prostitute" and gráphein, meaning to record. What we are talking about is not prostitution. There is not any consent. There never could be consent because we are talking about children. It is and always has been the sexual exploitation of children and the abuse of those children. This is the key point. The language we use does not just allow us to label what we see; the language we use shapes what we see because we use language as a frame to understand ideas. Clear language allows us to take clear steps to address the issues before us. What this Bill engages in, and what all our legislation should strive to engage with, is the linguistic concept of radical prescriptivism. This is the concept that language should continually improve and adapt to better suit the world we live in today. However, before we create order within the language we use, linguist Dr. Guy Deutscher suggests we must "lead through alleyways of destruction". In essence, the language we use in this Chamber and outside it should strive to articulate order within in chaos. With the exponential growth of the Internet and the platform it provides for sharing of images of children being exploited and abused, it is more important than ever that we standardise the language we use when discussing it by using a universal and standardised definition of sexual exploitation and sexual abuse of children. By implementing Bills such as Senator Flynn's and standardising the language we use, it offers us a chance to work in concert with our international partners to fight these heinous crimes against children. It also allows us to have a common starting point to engage with and counteract whatever new manifestations of abuse grow from the continued evolution of information and communications technologies.

I will conclude by saying we must keep it at the forefront of our minds at all times that the language we use within the Chamber is not for us but for the public. Consequently, it should be accessible to the public. As George Orwell wrote in his seminal Politics and the English Language:

The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink.

How many times have we come in here to debate a topic, started out by saying it is a technical Bill and then followed it with drawn-out speeches of similarly dense and inaccessible language? We must remember that our role in this Chamber is not that of a lawyer or orator but a legislator. In order to perform that role properly, the public on behalf of whom we are legislating must understand what we are legislating for because the words we utter today will affect them tomorrow. It does not matter how flowery the speeches we make on various virtues or particular pieces of legislation are or how technically brilliant a piece of a Bill we bring forward in the House is. If the public do not understand it, if its aims are not clear and its language inaccurate then it is not worth the paper it is written on. I am asking Senators to support Senator Flynn's Bill and begin the process of making the language we use in this House clear, more accessible and to actually name what something is.

The Minister of State is very welcome back to the House. I begin by congratulating and commending Senator Flynn on bringing forward this very sensible legislation. It is her first Private Member's Bill and I compliment her on it. It is commonsense legislation and I am delighted the Government is not opposing it. I understand it has been flagged that there may be legal challenges going forward, as there are with many pieces of legislation. The Minister of State has outlined there will be consultation with the Attorney General but the principle proposed by the Senator makes perfect sense. It is only right that the term "child pornography" be excised from the Statute Book.

Senator Ruane spoke about how important language is. That is very true. It is very important and we must always be conscious of it in this House. As Senator Ruane outlined, it is not so much about those present here for a discussion such as this but the audience that will be listening in. That is vitally important not just with this legislation but with legislation generally.

I am not going to delay the debate. I am delighted to support the Bill. I am very heartened to support Senator Flynn in her efforts to bring forward this very sensible legislation. I have no doubt that other Members will do likewise. I am delighted the Government is not opposing the Bill. It is good, commonsense legislation and I look forward to its speedy passage through both Houses.

I begin by congratulating Senator Flynn on her ongoing major impact as a Member of this House and on our nation. This is very fine legislation to bring forward. The information we got brought me to looking at the Luxembourg guidelines and into an area of beginning to perhaps have the words needed to articulate many things around this that are very wise. The opening of the press release that came with the Luxembourg guidelines when they were announced states: "Words matter because they affect how we conceptualise problems, prioritise issues, and forge responses." That is wonderful. In the same press release, the UN Special Rapporteur on Sale of Children, Child Prostitution and Child Pornography stated:

In the fight against sexual exploitation and sexual abuse of children, terminology is not just a matter of semantics: it determines the effectivity of responses. The Luxembourg Guidelines will contribute not only to protecting children, but also in ending the impunity for these heinous crimes ...

It is really important, therefore, that we evolve our legislation as quickly as possible in order to ensure that we are up to date in our concepts and that we are ensuring we are capturing all that is happening, literally, to children and drawing a line between what is legal and illegal and lawful and unlawful.

I have a concern regarding the point at which sexual exploitation can be said to begin. This Bill should give us an opportunity to commence a national conversation on that. We have a concept in our minds about pornography and child pornography and how heinous that is. Having worked in criminal law I have seen some horrific cases. We also need a wider debate on when the exploitation of children begins. Hyper-sexualisation of children is constant in our society. An excellent paper by the Generation for Rights Over the World, GROW, deals with this hyper-sexualisation of children. We have to consider the exposure to pornography and the normalisation of pornography, and the fact that there are damaging acts that occur between allegedly consenting adults. We know that children cannot consent so there is a very clear line there. A national conversation is needed on what is all right. Children, girls in particular, aged 12, 13 and 14 are put under pressure to engage in sexual acts. They end up being photographed and there are consequences that flow from that. Highly sexualised dolls in fishnet stockings are being marketed to six-year-olds. Parents give them to their children - I have seen them come into my own house - because the child is part of the latest LOL trend, or whatever trend. That removes something of the very clear boundary between childhood and adulthood, between what we are consenting to and what the maturity level is. According to the GROW report:

We have seen that the hypersexualisation of [children] is a recent social phenomenon, but one that has intensified very quickly in Western countries, particularly through social networks, the film industry and pornography. The sexism of these practices is also undeniable. The law often remains powerless against this phenomenon, which particularly affects the new generations. Series, films, reality shows, advertisements [there is a constant barrage of advertisements on children's TV programmes], magazines, music, toys, etc., are ... all excessively sexualised.

In considering what I would say today, I considered the possibility of being a fuddy-duddy and of not being a trendy mom in raising this. I look at it through the eyes of a six-year-old and think of the exposure these children have. Our language matters. The point at which sexual exploitation is beginning is something we need to have a very hard conversation on. As a society, we need to reflect on what is tolerated. This GROW report states:

The hypersexualisation of girls is a form of violence against children: a physical violence of course, but also a symbolic (objectification of women's bodies), an economic (exploitation, transformation into a sexual object) and even a political (lack of government intervention to limit these excesses of [the commercialisation and targeting of childhood]) one.

We need to regularise the toy industry to ensure we do not have this hyper-sexualisation. I commend this excellent Bill. I am delighted that we are supporting it. In the context of the consultations with the Attorney General, we need to start considering where exploitation actually begins, and whether it begins with this hyper-sexualisation of children, especially young girls.

I am delighted to see the Child Trafficking and Child Sexual Exploitation Material (Amendment) Bill 2022 before the House today. I support my colleague Senator Flynn in proposing it. A number of terms have been used to replace the term "child pornography", such as "child sexual exploitation material", "child sexual abuse material" and "child sexual abuse imagery". Such phrases go to greater lengths to convey the gravity and severity of these crimes against children by placing the nature of the crime in the title or the term.

I have spoken in this House on several occasions about safeguarding children and women in this country. I am glad that Senator Flynn has spotted that our law is not up to date in this regard. I am delighted that we are acting on it now. Various Departments, particularly the Department of Justice, may have to go through their online articles or posts to update any uses of the phrase that might be found to ensure continuity across the board. Our legislation is obviously the most important place to do that.

This Bill touches on an important issue that is uncomfortable to talk about. I wish to hear more talk about the dangers posed by online grooming, the exposure of children to pornography by adults and by other children, and the role that is played by pornography in sexual and gender-based violence. I commend Senator Flynn on putting this amendment forward.

Cuirim fáilte roimh an Aire Stáit chuig an Seanad. Gabhaim mo chomhghairdeas leis an Seanadóir Ní Fhloinn as an reachtaíocht seo a chur os ár gcomhair fá choinne díospóireachta inniu. Mar atá ráite ag comhghleacaithe eile, is Bille thar a bheith tábhachtach é seo. Ar leibhéal amháin tá sé iontach simplí sa mhéid atá sé ag iarraidh a dhéanamh. Mar atá ráite agus mar atá súil agam go mbeidh mé in ann a rá inniu, tá an cuspóir agus an aidhm atá ag an mBille seo iontach tábhachtach. Déanfaidh sé difríocht ollmhór agus is maith é sin. I welcome the Minister of State to the House and commend Senator Flynn on bringing this Bill before us on Second Stage. She mentioned earlier this week that this is her first Private Members' Bill. It is a very important one and I commend her on it.

No matter the circumstances, language and terminology are crucial in shaping how people understand themselves and view the world. Using the wrong language and terminology often distorts the mind and can be a source of racism, sectarianism, sexism, homophobia and many other reactionary and base sentiments and behaviour. The rape crisis centres support the use of clear and stronger terminology, as does the Fixed It campaign. Both organisations have issued guidelines to the media advising it to use the correct terminology when covering cases dealing with trafficking, exploitation and gender-based violence. The justice system must also play its part and ensure its sentencing guidelines reflect the seriousness of sexual crimes against children. At its heart this Bill is about protecting children. To prevent children being trafficked and sexually abused has to be key aim for the Government and for law enforcement agencies.

This Bill is about using the correct terminology to describe it and, on that basis, enacting the provisions to ensure the law is effective in its aim and in its purpose. It seeks to replace the term "child pornography" with the term "child sexual exploitation material". If it is approved here today and on further Stages, it will create the following new titles: Child Trafficking and Child Sexual Exploitation Material (Amendment) Acts 1998 to 2021 and Child Trafficking and Sexual Exploitation Material (Amendment) Act 2004. The proposed changes are based on best practice as outlined in the Luxembourg guidelines. If adopted they will ensure that policies, laws and legislation use language and terminology that best serves those in need of protection. In this instance, the legislation focuses on children who are victims of sexual exploitation material or what would have been referred to as pornography. Pornography is the wrong word. It implies consent. In the context of protecting children, its use ignores the heinous nature of the abuse and the crime.

The language change will refocus the crime clearly onto sexual assault images that are recorded or shared, obviously without consent. We live in an Internet era. It provides a whole new set of circumstances and difficulties when it comes to illegal images and access to them, and how society organises itself in this field to protect children, who are those most vulnerable to exploitation. Laws not only outlaw abusive behaviour; they also assist in reframing people's understanding of what abusive behaviour looks like and how it is to be dealt with, a clearer understanding of what consent means in reality and the part that sex education plays in deepening people's awareness. A more comprehensive understanding of consent and abuse will surely help in combating that abuse. Punitive laws are of course essential but so too are correct and putative language which sharply and clearly defines the problem. It is not pornography; it is abuse.

I support the Bill.

I, too, welcome the Minister of State to the House today. I will start by congratulating Senator Flynn on the introduction of her first Bill. As a fellow new Senator, I know of the honour it is to introduce and discuss one’s first Bill. Today, I am sure, is a day on which Senator Flynn can be justifiably proud. In introducing her first Bill, Senator Flynn addresses serious outdated terminology in our Statute Books that have become associated with a dreadful and awful crime. As a parent, and there are many parents in the House today, this is a nightmare scenario that many of us cannot even contemplate. That is why it needs to be called out for exactly what it is. I welcome the fact that Senator Flynn has introduced this today. As Senator Flynn stated, this is exploitation and it should be described as such and simply as that. Referring to it as “child pornography”, as other colleagues have said, implies a level of consent that does not and can never exist, in my opinion. It fails to recognise the disgusting harm to the victims and the inherent trauma perpetrated against them. It is simply that. It is harm and it is perpetrated against them. The term “child abuse” is correct and allows for more accurate reporting, especially in our media. That is an important part of what Senator Flynn is trying to introduce today. That is where it needs to start. That is where this conversation needs to happen. I am sure that this is one reason Senator Flynn has proposed such legislation today. It also correctly places the perpetrators of this abuse in the category of child abusers, where they rightly belong.

As Senator Flynn says, language is important. Other colleagues have said that as well. In supporting the Bill, it is important that the current language, which is outdated and incorrect, is replaced. it is simply exploitation. It is simply abuse. That is what it is. It needs to be changed. In supporting Senator Flynn today, I welcome her bringing forward of this important Bill forward and I look forward to discussing it further as it progresses through the House.

I congratulate Senator Flynn on her Bill. I was pleased, while acting as Leader of the House on Tuesday, to be able to accept the amendment to the Order of Business in order that Senator Flynn could introduce this Bill today. I am doubly pleased to support it on the floor now.

Senator Flynn’s opening of this conversation has been phenomenal. It was the first time that I myself thought about the need to change the language around this. This is because while the term “child pornography” is horrific, awful and none of us wants to think about it, we do have to deal with it. Looking at the language and phrases and recognising the importance of language and words, as well as the importance of including language that is more reflective of this reprehensible type of behaviour, is certainly very worthy. I welcome that the Minister of State, Deputy James Browne, is here to listen and to debate all of the issues around it. It is appreciated, of course, that the Government supports the principle of this Bill.

The Senator is talking about taking the words “child pornography” from the Statute Book and replacing them with references to “child sexual exploitation material”. This is correct, because the term “child pornography” is probably outdated. When we reflect on it, it needs to be replaced with a term such as that which Senator Flynn has outlined. Sometimes it is hard to reflect in the language that is used in a cold Statute Book to paint the vista of the full horror of what is involved in the offences that deal with the images of and the sexual abuse of children. We need to do that. We need to be able to try to show within our words and within our Statute Book the horror that something like this brings on board.

On the exploitation piece, the conversation needs to go wider than that. This is because we have to look at instances of children being groomed. Will grooming be to be covered by this? Senator Seery Kearney referred to this when she was talking about the exposure of children to pornography, as well as their exposure through their mobile phones to highly sexualised clothing, music, activity etc. I remember a few years ago, as I sought to buy some clothes for my young niece as a birthday present, asking myself whether I was being a real fuddy-duddy. That was because I was quite shocked - and this was for an eight-year-old - by the terms that were written on the clothes, such as “sex” and “sexy”. I thought it was not appropriate and I believe it is not appropriate. We need to have an honest conversation, not just in here but within society and within our communities. I remember talking to the mother of a young teenager about clothes who thought that - I am not knocking her at all for this - her daughter had a lovely figure and it was nice to show it off, and fair play. However, sometimes, we need to be conscious of oversexualisation. That is not taking away from somebody’s right to wear what he or she wants or to be able to express his or her own identity. While I might be saying this in clumsy language, I am trying to get that sense across.

I accept that the Government must consult with the Office of the Attorney General, which of course is always important. I know the Senator would want any legislation to completely true to its spirit and that it will be in a situation where it will not be contested etc.

Our society is a different society than it was. There certainly are systemic issues regarding abuse. Consent and sex education come into this as well. Senator Ruane and I worked on the education committee's proposal for a new approach to sex education, which is needed. We made 18 strong recommendations on which the present Minister for Education, Deputy Foley, is working. It is a priority for us to look at that and to bring them in. As a society and as a community, we need to look at what we regard or understand as what constitutes abusive behaviour. I will leave it at that. I thank the Minister of State for being here and I congratulate Senator Flynn again.

In the first instance, I welcome this Bill. I congratulate Senator Flynn on the work she has done on this, which is clearly extensive. It is not an easy task to approach the Statute Book with a view to carrying out an amendment that will cover all the bases. It is an arduous task to go through it. We can see that from the fact that a statute law revision project within the Office of the Attorney General has been going on for 20 years now. It is a long way away from making serious inroads into the massive volume of legislation of the past, much of which predates Ireland as a State. However, some of the legislation needs to be updated and changed. It is therefore welcome and laudable when an individual Member of the House takes the time, effort and enormous work that is concerned in embarking on a project like this. I therefore thank Senator Flynn and I congratulate her for that work.

I am just thinking about some of the speeches here, some of which mentioned the use of language and its importance. I am thinking of other terms that exist in legislation, because that term “child pornography” is not the only outdated term in our legislation. There are many others. It would not be fair to expect Senator Flynn to have gone through every piece of legislation and to have identified all the appalling terms. However, for example, the Aliens Act, is a really silly title and it is totally outdated. This nomenclature is not used any more. Even thinking about this area of child abuse and child sexual exploitation, when I worked here as a non-Member of the Houses, at one time there was a CC v. Ireland case in the Supreme Court, which struck down section 1(1) of the Criminal Law Amendment Act 1935.

That offence was unlawful carnal knowledge; an extraordinarily genteel term for rape of a child. One of the things at the centre of this debate and Bill and the work that has been done by Senator Flynn is the importance of calling things what they are. Reference was made to the Fix It campaign. That is tremendously important. I was looking through one of our national newspapers and saw the headline that read, "Man who impregnated girl, 15, who he thought was his daughter jailed for 12 years after pleading guilty to rape". That creates so many problems, as if somehow the fact he thought she was his daughter qualified it in any way and instead he pleaded guilty to rape.

Calling these things what they are is tremendously important. We are behind the curve on these issues. Even the original legislation that is being amended by this Bill is from 1998. This material predates 1998. In fact, for a long time in this country, there was a view that this kind of child exploitation material was victimless. There is an extraordinary difference between not being able to identify the victim and suggesting that it is victimless. We know that even if the child who is being exploited by these materials is in the Philippines, the United States or Ireland, that child is still a victim and will bear the scars and damage of that exploitation for the rest of his or her life.

It is incredibly important for these Houses to not only acknowledge that these are serious matters, and I believe the law does that, but also to call them for what they are. The term "language is important" was used earlier. It absolutely is. We have seen that in many other areas too but calling it what it is important. It is not child pornography; it is child sexual exploitation material. It is not underage sex; it is rape of a minor. It is not non-consensual sex; it is rape. Call it what it is because until we do, we do not understand what it is. It is incredibly important that the law calls it what it is because then we are sending out a really clear signal that we, as a State and a body politic, know and understand what it is and we are not going to stand for it.

Many speakers said today that they do not want to think about this material, which totally understandable, and they have not thought about the material. That is also understandable. Unfortunately, in my professional life, I have thought about this material. I have been involved in a number of cases involving child exploitation material. I can say that generally speaking, in the context of the courtroom, the terms that is used is "child exploitation material". Obviously, the legislative term is different and that will be referred to but in terms of discussing the issue, we generally use that term. There is a very clear understanding at that level of the damaging nature of this material and the incredible damage it does, not only to the victim of the actual exploitation but also to everybody who sees it. They are also damaged, whether they realise it or not. The call in this legislation, which is clarion in nature, is that we call it out for what it is and show we understand what it is and that we will not accept it. It is tremendously important. Once again, I want to put on the record my praise and admiration for Senator Flynn in terms of the work that is being done here. I welcome the fact that Government is accepting this Bill. I look forward to it becoming law so we can stop using that awful term.

I commend Senator Flynn on this legislation and, indeed, Ms Jessica Bray in her office and all those whom I know worked closely with her and, of course, the Office of Parliamentary Legal Advisers, OPLA, the Bills Office and others who have supported the work.

I am incredibly proud to have Senator Flynn as part of our Civil Engagement Group. In the course of this Seanad, she has shown herself to be an incredibly strong leader in public debate, as a public representative and as somebody who drives, questions, challenges and brings forward debate in that part.

Today, we are also seeing her make an incredibly strong contribution in that other really important part of our work as Senators, which is as legislators. The legislative work all of us take on, and that role and responsibility we have in the Oireachtas of shaping and stewarding the laws and, where necessary, challenging and updating them, which is so important. This is a really important legislative contribution.

I this Bill will pass soon, quickly and in its full Stages. Seven separate pieces of the laws of our land will be immensely improved by the passing of this Act, and, as Senator Ward pointed out, it is quite an achievement to improve seven laws at once. It is really important in that regard.

Laws reflect experience but they also shape experience. Similarly, language can reflect experience but it can also shape experience. That is what is being tackled here in both. We know the damage language can do and what the wrong word used in the wrong way can do. We also know there is a very important power in naming , that is, when we properly express and name a problem or elephants in the room, and talk about experiences. Sometimes, it is using the right word. It is not just the absence of the wrong word. Using the true language can be very powerful and important.

We saw that in similar areas in this House. When we talked about coercive control and this House made changes on that, it was important in terms of naming it as an offence but also in terms of naming it as a thing and as part of real lived experience. It was also very important that the phrase "revenge porn", which used to be used, was completely moved away from and instead we talk about what it is, which is image-based sexual abuse, and name it as such. That is important.

In this context, every time the wrong phrase is used - every time the phrase "child pornography" is used - it is damaging. Many people talk about not wanting to think or talk about it but those who are thinking and talking about it should be able to. It was really interesting that Senator Flynn said the phrase people want to use when they talk about it in courts is to name it as "child sexual exploitation material" or "abuse material". I have spoken to journalists who get contacted every time they report and use the phrase "child pornography" because people say that is not the right phrase. They know it is not the right phrase but it is what is in the laws. Multiple conversations, therefore, get affected. And then, for those who have experienced abuse and exploitation as children, every time they hear the phrase "child pornography", that is damaging. That is why we want campaigns like Fix It to not have to use their energy in fighting how the phrasing is used. We can also be pooling our energies towards the actual task at hand, which is ending and fighting child sexual abuse and exploitation. It is really important in this regard and has a very real affect.

I will point to another reason this legislation is important. We talked about pornography. One of the problems with that word for me, which other people have spoken about, is that it points towards the imagined viewer rather than, as this Bill clearly states, material evidence of a crime that has been committed in sexual exploitation and of something awful that has been done to a child or that a child has experienced. Many of the Acts that are being amended by this important Bill today predate the referendum we had on the rights of the child in Ireland. That is a really important point too.

When we talk about the rights of the child, the child needs to be at the centre. I know and understand people are speaking as being parents and caring for the child. We all have a role in terms of protection. When we talk about protection, we absolutely have a role in terms of having laws that protect and vindicate the rights of the child. The child must be at the centre. Children's rights and, indeed, their experience and power should be at the centre. That is why it was good that we mentioned, for example, the work Senator Ruane and others have done around consent education and empowering sexual education in our schools. It is about making sure that children, as citizens of the country, see laws that care about, reflect and empower them and speak authentically to their experience. It is a really positive Bill. I am delighted that it is moving forward today. I urge the Government to help us create space within the schedules of the Seanad and Dáil to move it through as rapidly as possible.

I thank Senators Flynn, Higgins, Ruane and Black for bringing forward this very important Bill. I understand it is Senator Flynn’s first Bill. I congratulate her hugely on bringing forward this very important legislative contribution.

I want to acknowledge the very genuine intentions of all of the sponsoring Senators in bringing forward this Bill.

The objective of this Bill is to remove from the Statute Book language that is outdated and fails to reflect the full horror of the sexual abuse involved in images of child sexual exploitation. In her remarks, Senator Flynn has eloquently explained why the language that is currently used on the Statute Book is problematic, at the very minimum, and why it should be and needs to be changed. I fully agree with her.

Senator Flynn has correctly stated the importance of the use of correct and appropriate language. Images of child sexual abuse are not “pornography”. Pornography is a term used for adults engaging in consensual sexual acts. As Senator Ruane has outlined the etymology of the language as well. The either-or definition is not appropriate for what this is. These are child sexual abuse images. They are images of appalling crimes committed against vulnerable children. They involve children who cannot and would not consent, and who are victims of a crime. Such images are not only a record of the initial crime perpetrated against the child but the images themselves continue to harm and victimise the child each time they are shared or viewed. I agree with the Senator that it is important that we name such images for what they are - images of child sexual exploitation. For this reason the Government is not opposing the Senator's Bill today.

As Senator Seery Kearney rightly pointed out, this is not just an issue of semantics. Equally, Senator Ruane pointed out that language should be clear and accessible, especially in these Houses. Linguistics are important and can be determinative. Senator O'Loughlin also put the situation into a wider context of concerns about the over sexualisation of young people. This is not the first time that this issue has been raised. Officials in my Department, and in the Office of the Attorney General, have previously considered how it can be addressed. Appealing as it may be to propose the straightforward replacement of the offending words with more appropriate terms, it is unfortunately not so simple. There are some very significant problems with the approach.

The Senator has already highlighted the importance of language, and the effect that it can have on how we view and interpret things, which is doubly true in law. Every word in legalisation has a purpose and a meaning. While I know that it is not the Senator’s aim to alter the nature of the offences she proposes amending, the act of changing the words does alter the offence. In altering the offence, a risk is created regarding prosecutions that are already under way and to future prosecutions that may be brought for offences committed before the change in wording.

A significant portion of the amendments proposed in this Bill are to substantive serious offence provisions. Great care needs to be taken in making changes to such offences that no unintended consequences arise. Unfortunately, there may be quite serious unintended consequences arising from these proposals.

The Constitution clearly prohibits creating offences which were not offences at the time of their commission. I understand, of course, that this Bill does not aim to do that but without transitional and saving provisions for each offence that the Bill proposes to amend, the effect of the Bill could be interpreted as removing the existing offence and replacing it with a new one. The old offence will no longer exist and the new one cannot apply to offences committed before the Act but not yet prosecuted. It may be that the courts would not interpret the change to the wording of the offence in that way but, at the very least, the amendments could create the unintended consequence of creating technical loopholes for offenders to challenge prosecutions and convictions and, potentially, evade justice. I have no doubt that no one in this House wants or intends that outcome.

Other amendments are to Acts which reference what could be characterised as the "source" offence of child sexual exploitation material. For example, the Bill seeks to amend the Schedule to the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012, which provides for mandatory reporting where a person has information that certain offences have been committed against a child. Again, careful consideration of ongoing prosecutions, and potential transitional provisions, are required to ensure that the reporting requirement is not inadvertently removed regarding offences committed prior to the change in language, and to ensure the safety of prosecutions under that Act for failure to comply with the reporting obligations. Similar issues arise with reporting obligations under the Children First Act.

The Bill, in section 9, proposes amending the Schedule to the Sex Offenders Act 2001. The Schedule to that Act determines the offences for which a convicted person is subject to the reporting requirements in the Act. If that Act is amended to remove the existing offences which relate to “child pornography” then a person who has a conviction for such an offence will no longer be subject to the reporting requirements of that Act. The reporting requirements under the Sex Offenders Act are important safeguards to ensure that the Garda Síochána can monitor and manage the risk posed by convicted sex offenders. Caution must be exercised before making changes to this Act as it applies to those who already have convictions. It is not possible to retrospectively alter the offence for which a person has been convicted. Senators will appreciate that these are serious risks that could have consequences for the effectiveness of our laws in respect of very serious offences.

In addition, there are a number of more technical issues with the Bill. I am advised by the Office of the Attorney General that there are technical difficulties relating to the amendment of the Short Title and Long Title of the Bill. It is a matter of drafting convention that titles are not amended. It is, of course, open to the Oireachtas to dispense with that convention if there is a pressing need to do so but they do serve a purpose. Adhering to drafting conventions, particularly regarding the titles of Acts, provides a degree of legal certainty in interpreting references to those Acts in amending legislation, case law and debates in these Houses. All of those things are important for the courts, and the public in understanding, and interpreting the intent and application of our laws and the offences contained within them.

There are also difficulties with amending section titles or "shoulder notes" which do not, in law, stand part of an Act. As such it is not clear whether the proposed amendments to section notes would have any legal affect. Of course the wording is hugely important. Finally, there is a lack of precision in the identification of the provisions to be amended.

As I have said, none of these points are meant to be a criticism of the Senator or of the Bill in and of itself. The intentions of the Bill are very much accepted. The Senators should be applauded for bringing forward this Bill.

As I have said, I fully agree with the objective that the Senators are trying to achieve with this Bill and for that reason, the Government is not opposing this Bill on Second Stage. However, there are significant legal and technical issues that do need to be addressed. These are issues that could jeopardise the prosecution of offences for child sexual abuse material and related reporting, and post-conviction obligations if they are not addressed and do need careful consideration.

I thank the Senators, in particular Senator Flynn, for bringing forward this legislation. The Minister for Justice looks forward to working with the Senator further on this piece.

I thank the Minister of State and call on the proposer, Senator Flynn, who has five minutes to conclude. It is nice to have a debate where everybody is on the same side, everybody is very supportive and there is no criticism as such.

I thank the Minister of State for coming to the House. I thank him for highlighting some of the issues that his Department believes will arise. I was delighted to hear from Senator Ward who has experience in this field and rightly said that the courts name it for what it is, which is child exploitation. I thank the Minister of State for the fact that the Government has not opposed the Bill so it could have been an awful lot worse. We look forward to further discussions in committee but, more importantly, with the Minister and I hope that we will be able to progress on to the next level.

As all of the Senators have said here today, let us name this for what it is and where there is a will there is a way. I have highlighted the fact that it was not easy to do this work and just because it has not been done before does not mean that we cannot do it. I hope to work very closely, along with the Minister for Justice, to change this going forward and I look forward to seeing this through. Anything is possible and it might be possible to have this work done by the end of the year.

I thank the Minister of State for his reply and I thank all of the Senators who expressed their support for this Bill today.

Question put and agreed to.

When is it proposed to take Committee Stage?

Committee Stage ordered for Tuesday, 8 February 2022.

When is it proposed to sit again?

At 2.30 p.m. next Tuesday.

Cuireadh an Seanad ar athló ag 2.30 p.m. go dtí 2.30 p.m., Dé Máirt, an 8 Feabhra 2022.
The Seanad adjourned at 2.30 p.m. until 2.30 p.m. on Tuesday, 8 February 2022.