Select Committee on Legislation and Security debate -
Tuesday, 8 Oct 1996

Sexual Offences (Jurisdiction) Bill, 1995: Committee Stage.

Chairman

I welcome the Minister of State at the Department of Justice, Deputy Currie, and his officials who are with us today to debate and, perhaps, conclude the Committee Stage of the Sexual Offences (Jurisdiction) Bill, 1995. This Private Members' Bill was presented to the Dáil by Deputies O'Donoghue and Eoin Ryan and passed Second Stage in Dáil Éireann on 15 November 1995. In accordance with Standing Orders, it was referred to this committee.

Committee Stage was due to be taken before the summer but was deferred because some of our Members wished to attend a conference in September which was directly related to certain provisions in the Bill. I am sure we will hear details of conference discussions in the course of our deliberations this afternoon.

I compliment Deputies O'Donoghue and Eoin Ryan as sponsors of the Bill.

NEW SECTION.

Chairman

Amendment No. 1, in the name of the Minister for Justice, seeks to insert a new section.

Minister of State at the Department of Justice (Mr. Currie)

I move amendment No. 1:

In page 3, before section 1 to insert the following new section:

"1.—(1) In this Act ‘a child' means a person under the age of 17 years.

(2) A reference in this Act to any enactment shall be construed as a reference to that enactment as amended, adapted or extended, whether before or after the passing of this Act, by or under any subsequent enactment.".

This amendment seeks to insert a new interpretation section to the Bill. The existing section 1 defines "a person" to mean a citizen or somebody ordinarily resident within the State. While this makes sense in the context of offences committed abroad, the definition is too narrow when dealing with offences which take place in this jurisdiction.

As we will see when we come to discuss later amendments, I am proposing the creation of a number of new offences arising from the incorporation into the Bill of the substance of Senator Henry's Child Sex Tours Bill, 1995. This would entail provision for a number of new offences which can be committed here as well as abroad.

If committed here, the effect of section 1 as it stands would be that only citizens and ordinary residents could be charged. I propose, therefore, to bring the broadest range of people within the scope of these new offences. This is achieved by deleting the definition of "person" and instead making specific reference to citizens and ordinary residents as and when required throughout the Bill.

One term which needs to be defined is "child", and the amendment so provides. Section 2(1) refers to a child under the age of 18 years. I propose that, for the purposes of the Bill, a child means somebody under the age of 17 years because this is the age of consent to sexual intercourse in this jurisdiction.

One of the key ideas which guides the amendments to the Bill is the importance of maintaining consistency with the existing law applicable to sexual offences committed against children here. It would be most inappropriate to have a situation in which the proposed protections for children abroad were greater than those for children here. Subsection (2) of the amendment contains a standard drafting provision.

Mr. O'Donoghue

I welcome the amendment. It is sensible and we have no difficulty in supporting it because, in the final analysis, it goes along with the broad thrust and principle of the Bill as originally presented.

The problem of child sexual abuse is extremely serious. All of the figures appear to indicate that it requires strict laws and penalties. The latest Department of Health figures for child abuse — the Minister of State also has responsibilities in that Department — indicate that almost 6,500 cases were reported in 1995. Approximately one third of these were confirmed. In 1979 only 200 cases were reported. There is a far greater awareness today of the danger of child sexual abuse. People are coming forward and these kinds of cases are being reported.

The purpose of this legislation is to ensure that if an individual travels abroad and commits a sexual offence against a child he can be tried here and appropriately punished. It is of fundamental importance that we recognise that we have a problem of child sexual abuse in here. It, therefore, follows automatically that people will take advantage of the laws in other countries where child prostitution can be rampant, and that they will travel from here to other jurisdictions and abuse children.

The mark of any civilised society is how it protects its most vulnerable members. Few in society are more vulnerable than children. This legislation says to the world that, irrespective of whether a child is Irish or Asian, we will impose the same penalty, we recognise that the problem crosses political and geographical boundaries and that we well deal with it in a serious way.

The legislation sets out the objective of the Bill presented by Senator Henry in the Seanad. It provides that those involved in the promotion of sex tourism can be punished and are targeted, among others, under the legislation. It may not be clear on a first reading of the legislation that this is so, but it provides for this kind of situation in that it makes it an offence to aid and abet, to counsel or procure the commission of an offence relating to child sexual abuse.

Amendment agreed to.

Chairman

Section 1 deleted.

NEW SECTION.

Mr. Currie

I move amendment No. 2:

In page 3, before section 2, to insert the following new section:

"2.—(1) Where a person, being a citizen of the State or being ordinarily resident in the State, does an act, in a place other than the State (‘the place'), against or involving a child which—

(a) constitutes an offence under the law of the place, and

(b) if done within the State, would constitute an offence under, or referred to in, an enactment specified in the Schedule to this Act,

he or she shall be guilty of the second-mentioned offence.

(2) Where a person, being a citizen of the State or being ordinarily resident in the State, attempts to commit an offence which is an offence by virtue of subsection (1) of this section (‘the principal offence'), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a penalty not greater than the penalty to which he or she would have been liable if he or she had been convicted of the principal offence.

(3) Where a person aids, abets, counsels or procures, in the State, the commission of an offence, which is an offence by virtue of subsection (1) of this section, he or she shall be guilty of that offence.

(4) Where a person, being a citizen of the State or being ordinarily resident in the State, aids, abets, counsels or procures, outside the State, the commission of an offence, which is an offence by virtue of subsection (1) of this section, he or she shall be guilty of that offence.

(5) Where a person conspires with, or incites, inside the State, another person to commit an offence, which is an offence by virtue of subsection (1) of this section (‘the principal offence'), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a penalty not exceeding the penalty to which he or she would be liable if he or she were convicted of the principal offence.

(6) Where a person, being a citizen of the State or being ordinarily resident in the State, conspires with, or incites, outside the State, another person to commit an offence, which is an offence by virtue of subsection (1) of this section ('the principal offence'), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a penalty not exceeding the penalty to which he or she would be liable if he or she were convicted of the principal offence.

(7) For the purposes of proceedings for an offence to which this section relates, a person shall be deemed to be ordinarily resident in the State if he or she has had his or her principal residence within the State for the period of 12 months immediately preceding the alleged offence.".

This amendment inserts a new section 2 in the Bill. The key provision is subsection (1) which extends our jurisdiction to enable prosecutions to be taken against citizens or ordinary residents who commit sexual offences abroad against children. Ancillary offences such as aiding and abetting, attempting, conspiring or inciting are also covered. The corresponding provisions of the Bill are sections 2 and 3. The amendment does not alter the thinking behind the present sections 2 and 3. It does, however, make a significant change to the way in which the wrongful act committed abroad is made an offence here. Section 3(1) of the Bill as it stands creates a new distinct offence of doing an act abroad which, if done here, would constitute an offence specified in the schedule. This approach has the disadvantage of omitting to take into account the whole body of related criminal law provisions which apply to sexual offences committed here. As the Minister for Justice pointed out during Second Stage, one such omission is the special protections afforded to complainants under the Criminal Law (Rape) Act, 1981 and the Criminal Law (Rape) (Amendment) Act, 1990. Deputies will be familiar with the requirement under those Acts that the identity of a complainant should not be disclosed save in exceptional circumstances. Another omission which is a cause for concern relates to powers of arrest. The Bill makes no provision for powers of arrest despite the fact that, if one of the offences with which it is principally concerned was committed here, a suspect could be arrested without a warrant by a member of the Garda. I am sure none of us would wish to preclude such matters from the scope of this Bill, but its present wording does just that. Subsection (1) of the amendment addresses these omissions by proposing the extension of our criminal jurisdiction instead of creating a brand new offence. In consequence, all related criminal law provisions will automatically apply.

Subsections (2) to (6) deal with attempts, aiding, abetting, counselling or procuring and conspiracy or incitement. They are in line with the principles of the Bill and the changes proposed are no more than drafting ones.

Subsection (7) defines a person who is ordinarily resident in the State as someone who has had his or her principal residence here for 12 months immediately before the commission of the offence. Although along similar lines to the Bill's section 2(2), it contains a number of drafting changes.

Mr. O'Donoghue

This amendment tabled by the Minister of State again alters slightly the original Bill, but does so in a fashion which helps the legislation to achieve its objective. I accordingly compliment the Minister on his amendment because it helps improve the legislation and anything which does so in order to tackle child abuse is welcome. Many of its provisions are purely drafting amendments which do not alter significantly the original legislation. We welcome this amendment.

Mr. E. Ryan

I too welcome the amendment. It strengthens the Bill in some ways. I welcome the changes.

Mr. L. Fitzgerald

I compliment the proposers of the Bill and Dr. Mary Henry. It is worthwhile and timely. It is appropriate our jurisdiction should be seen to act responsibly to ensure we have the proper safeguards to deal with such offences. I welcome the amendment. It helps strengthen the Bill and is a positive addition to the legislation.

Amendment agreed to.

Section 2 deleted.

NEW SECTION.

Mr. Currie

I move amendment No. 3:

In page 3, before section 3, to insert the following new section:

"3.—(1) A person who, in the State, makes an arrangement to transport a person to a place in or outside the State or who authorises the making of such an arrangement for or on behalf of another person, knowingly for the purpose of enabling that person or any other person to commit an offence, which is an offence by virtue of section 2 (1) of this Act, shall be guilty of an offence.

(2) A person who transports another person from a place in the State to a place in or outside the State, knowingly for the purpose of enabling that person or any other person to commit an offence, which is an offence by virtue of section 2(1) of this Act, shall be guilty of an offence.".

The purpose of this new section is to deter and, where necessary, penalise any person who arranges to transport or actually transports a person for the purpose of child sex tours. The intention is to incorporate into this Bill the essence of two new offences proposed by Senator Mary Henry in her Child Sex Tours Bill, 1995.

Subsection (1) makes it an offence for a person to arrange to transport another person to a place, in or outside the State, in the knowledge that that person is travelling for the purpose of committing a sexual offence against a child abroad. The subsection extends to a person who authorises the making of such an arrangement so that, for example, a manager behind the scenes cannot escape liability.

Subsection (2) makes it an offence for a person to transport another person from anywhere in the State to a place in or outside the State for the purpose of enabling the other person to commit a sexual offence against a child abroad. An offence under this provision would entail transporting a person between two places in Ireland as part of a journey to a foreign destination.

Mr. O'Donoghue

This achieves an objective which Senator Henry set herself. In our legislation as originally presented, we provided for it to be an offence if people engaged in what I described earlier as sex tourism. Section 3(2) of the legislation as presented stated:

Where a person in this or in any other jurisdiction aids, abets, counsels or procures the commission of an act that, if done in the State, would constitute an offence specified in the Schedule, he shall be guilty of an offence and liable on conviction on indictment to the penalty to which he would have been liable if that act had been done within this State.

I suggest that by setting out those provisions we achieved the objective in the legislation as originally presented of ensuring that it would be an offence for any individual to arrange to transport a person in order for that individual to commit an offence. What the Minister is putting forward is more explicit but was achieved under the legislation as presented, although it may not have been immediately apparent. If the legislation as presented had been passed, I am satisfied a court would realise that the offence was contained in the original Bill. The amendment makes it more explicit. It achieves the objective which we and Senator Henry set ourselves and to that extent must be welcomed. We have no difficulty with the amendment, having originally decided that this activity should be a criminal offence.

Amendment agreed to.