Criminal Law (Sexual Offences) Bill 2015 [Seanad]: Report Stage

Amendments Nos. 1 and 52 to 55, inclusive, are related and may be discussed together.

I move amendment No. 1:

In page 6, between lines 8 and 9, to insert the following:

" "consent” in reference to sexual activity, means voluntary agreement to engage in the sexual activity in question, unless otherwise stated in this Act. Allowing sexual activity

does not amount to consent in some circumstances—

(a) a person does not consent to sexual activity just because he or she does not protest and/or offer physical resistance to the activity,

(b) a person does not consent to sexual activity if he or she allows the activity because of—

(i) force applied to him/her and/or to some other person(s),

(ii) the threat (express or implied) of force being applied to him/her and/or some other person(s), or

(iii) the fear of the application of force to him or her or some other person(s),

(c) in any of the cases in paragraph (b) above, it is immaterial whether it is the accused who applies force and/or threats of force against the complainant and/or

other(s), or not,

(d) a person does not consent to sexual activity if the activity occurs while he/she is asleep or otherwise unconscious,

(e) a person does not consent to sexual activity if the activity occurs while he/she is so affected by alcohol and/or some other drug(s) that he/she cannot consent or

refuse to consent to the activity, whether or not that person took alcohol and/or some other drugs voluntarily,

(f) a person does not consent to sexual activity if the activity occurs while he/she is so affected by a physical condition or impairment of such a nature and degree that

he/she cannot consent or refuse to consent to the activity,

(g) a person does not consent to sexual activity with another person if he/she allows the sexual activity because he/she is mistaken about the identity of that person,

(h) a person does not consent to sexual activity if he or she allows the activity because he or she is mistaken about its nature and quality,

(i) a person does not consent to sexual activity if that consent is expressed by the words and/or conduct of someone other than themselves,

(j) a person does not consent to sexual activity if he/she expresses by word and/or conduct, a lack of agreement to engage in that activity,

(k) a person does not consent to sexual activity if, having first consented to sexual activity, he/she expresses by words or conduct a lack of agreement to continue to

engage in that activity,

(l) this section does not limit the circumstances in which a person does not consent to sexual activity;".

I do not think there is a need to push our amendment. I welcome the fact the Minister has incorporated points we and others made. It is practically the same wording that was discussed on Committee Stage and I am happy to accept it and withdraw our amendment. This has been an important issue, particularly for rape victims. In theory, we should not need a definition of consent but we do. It follows a process that has taken place on campuses, schools and colleges about what is and what is not consent.

We have seen a number of cases where this issue became very important. In Ireland, cases were pursued with people bravely identifying themselves publicly and waiving their anonymity to progress this issue. I salute those in the rape crisis centres and other agencies who have pushed for this to be taken on board.

I thank the Minister for taking into account the views of those of us who raised the issue on Committee Stage. We also indicate our support for the Government amendment, which is comprehensive and covers all of the concerns articulated on Committee Stage.

We had tabled an amendment in respect of consent on Committee Stage, which we withdrew. The Minister indicated that she would propose a definition. That was helped in large part by a decision of the Supreme Court on 11 November in the case of the DPP v. O'R which gave a broad overview of the issue in respect of consent. Obviously, people previously had a definition of consent when it came to cases being heard by our courts, but it was not written down anywhere. There is an advantage for the public to be able to see in a written document, in a law, what this country regards as defining the meaning of consent. We have tried to do that as best we can.

Obviously, in practical terms when it gets to a court case, although the issue of consent is an objective fact, it is an issue that is sometimes in dispute. Irrespective of the definition we put on it - I think the one put forward by the Minister is a good one - it will still be an issue of conflict in a trial and it is matter for a jury to determine whether consent was or was not given. That is a very difficult task.

I am very glad that we are having this discussion. It is one that society has engaged in. In some ways we have moved on, and in some ways we have not. While "No" meaning "No" is the general guideline, this amendment seeks to address those grey areas where "No" might not have been expressed or there has been some reinterpretation.

As a society, we have advanced. We have moved from the position whereby, in the relatively recent past, for example, marital rape was considered acceptable. In those cases "No" meaning "No" was irrelevant. In the old days, masters could rape their servants, and in other parts of the world that still goes on. Ireland has moved on in that sense. However, there is a grey area where somebody might not have been fully able to articulate and express their consent. In that sense, I welcome some of the clauses in the amendment. I would prefer the amendment tabled by Deputies Róisín Shortall and Catherine Murphy. Of the three amendments, it is the most balanced and uses the clearest and most concise language, and it would be my preference.

While we need to spell out circumstances where somebody can go to bed with somebody else, engage in a sexual activity at the start of the night and decide not to continue or reactivate that later on in the night, we know of instances where somebody is incapacitated and wakes up to find somebody engaged in a sexual act. That is obviously not acceptable. However, there are issues. I am glad amendment No. 1 is to be withdrawn because I was concerned over references to somebody being mistaken as to the quality of the activity and that they did not give their consent to that, which leaves open a laughable scenario in which people could come back claiming they did not consent because they did not have an orgasm or whatever.

I am concerned about the issue of being mistaken as to identity of a person and I ask the Minister to explain it. There are a few scenarios. For example, this could mean that if somebody agrees to a sexual engagement with a person who may be a transgender person - he or she did not realise that the person had been born a previous gender, but he or she had liked that person and met him or her in their present gender - decided to have sex with the person and then realised later on that the person was born a man or a woman, he or she could then say, "I've been deceived here, I didn't give my consent to that." I do not think that constitutes rape or sexual abuse in those circumstances.

There are obviously issues relating to trust in a relationship. However, by us specifying it, where does that fit in? I have seen the television programmes featuring somebody masquerading as somebody in a position of influence. For example, in one television programme a janitor posed as a college professor, offering to sleep with women in return for their children getting into college. The women had agreed to do it and then found out that it was not actually a professor with influence, but the janitor in the college. The issue was that they were mistaken as to the person's identity because they thought they were sleeping with Professor Bloggs who decided on the admissions to the college and did not realise it was the janitor. I think that is a bit of a stretch. The behaviour of the individual is reprehensible, deceitful and appalling, but does that constitute rape? I am not sure.

We need to debate some of these issues in detail. When we define circumstances in black and white, we have to be very conscious that we are dealing with areas that are not black and white. Judges clearly need guidance because some of them have given the most appalling judgments, accompanied by really ignorant commentary. It is equally important that, as a society, we educate not just our judges, but also our young people, on sexual activity and on consent. Young people should be able to freely enjoy sex with other people who want to freely enjoy it with them. We need to get across an understanding that sex is best had when it is also enjoyed by the other person - or the other people or whatever one is having oneself. As long as the person agrees to that and gets pleasure from it, it is fine.

I have certain concerns. I am glad amendment No. 1 has been withdrawn. Given some of those complexities and the way things could be interpreted, the amendment tabled by Deputies Róisín Shortall and Catherine Murphy is by far in a way the clearest and gives the greatest protection to all concerned.

I apologise for being late in arriving.

I wish to speak to amendments Nos. 52 to 54, inclusive. Amendment No. 52 provides for a positive definition of "consent", which is important. It is very welcome that the Supreme Court last year reaffirmed that sexual activity without consent is rape. However, the Bill presents a key opportunity to address some of the case law going back as far as the 1800s and we should avail of that. I propose that we send a clear message by providing a statutory definition of consent, and I recognise that the Minister has done that on foot of points that were made on Committee Stage.

Amendment No. 52 would put in place a positive definition of consent and clearly define the circumstances in which consent should not be considered as having been given. The amendment would provide for a new Part 8 relating to consent with the first subsection of that stating: "An individual consents if he or she agrees by choice and has the freedom and capacity to make that choice." It is a recognition that for adults it should be very clear not just by stating what consent is not, but also by stating positively what is consent.

In a recent article, the CEO of the Dublin Rape Crisis Centre, Noeline Blackwell, noted that victims will often minimise their assault because they may not recognise the many ways in which rape can take place. Placing a non-exhaustive list on a legislative footing serves to provide clarity on the law.

The Minister has tabled her own amendment, No. 53, and while the substance of her amendment and the Social Democrats amendment is broadly similar, the Minister's amendment addresses coercion in terms of the application of force. I do not believe that is sufficiently wide in terms of defining "coercion". As we know, coercion can take many forms that do not necessarily involve physical force. That is the reason I am proposing the amendment that employs the more general term of "harm", which I believe is more appropriate. When we think of people being put under duress in circumstances like this that can involve rape, it is not just about physical force. There can be threatened harm in other ways apart from physical harm. We can think of endless ways. One way would be threatening to withhold a child or access to a child, for example. Another way would be to threaten to disclose something about the other person, which ultimately would amount to blackmail. There is potential for disclosure of information which is confidential to the victim and that person being put under duress because of threat of that disclosure. Another one we could very easily visualise happening would be a situation where, for example, a landlord put a victim under duress and threatened to harm the victim by changing their lease or evicting them from their home. There are umpteen ways in which threatened harm could put a person in a situation where they were under duress. What is required in terms of coercion is a broader definition. That is the reason I am proposing that we change "physical force" to "harm".

The final point I would make is on amendment No. 54. As the law stands, consideration is given to the intentions of the perpetrator of rape and whether they generally believed the victim was consenting, no matter how unreasonable that belief may have been. The proposed amendment would lower the threshold to a reasonable belief in consent while giving consideration to the intellectual capacity of the perpetrator. With regard to that proposed amendment, in light of the announcement made by the Minister, Deputy Zappone, the other day in terms of referring this matter to the Law Reform Commission and undertaking to produce an early Bill based on the findings of the Law Reform Commission, I am happy to withdraw that amendment.

I thank Deputies for their responses to these amendments. I have been considering this for a number of months. Deputies in the House raised this issue, as did the Rape Crisis Centre in the person of Ellen O'Malley-Dunlop and Noeline Blackwell, the current chief executive officer. I met with Dr. Susan Leahy, one of the experts on this topic who did her PhD on this subject. She has also met with officials from my Department and we have been liaising very carefully and in detail with the Attorney General. The original view was that we would work on precedent rather than a definition but we have worked it through to the point where I am in a position to bring forward these amendments this evening.

The amendment introduces the definition of consent into the Criminal Law (Rape)(Amendment) Act 1990 as opposed to a stand alone provision in this Act. Section 9 of that Act already provides for a clarification in respect of consent in that it states that failure to offer resistance of itself does not constitute consent.

The provision I am now proposing reflects that proposed by Members of the House and expands greatly on that clarification. Section 1 of the new section 9 of the 1990 Act provides that a person consents to a sexual act if he or she freely and voluntarily consents to engage in the act. Subsection (2) sets out the circumstances which, if proven, would vitiate consent. These include, as Deputies have said, the application of force; if the person is asleep or unconscious; if the person is incapable of consenting because of the effect of alcohol or some other drug; if the person has a physical disability which prevents him or her from communicating his or her agreement to the act; and if there is a mistake as to the identity of a person involved in the act or a mistake as to the nature or purpose or if the consent is given by a third person. All of these circumstances are reflected in the other amendments in this group.

Deputy Shortall's list is exhaustive. I would make the point, which is important, that the list I am introducing is non-exhaustive, which is the approach that has been supported by the people who would be very supportive of moving to a definition. The Deputy will see in the definition I have given that other factors can and will be taken into account in the circumstances of a court hearing on the issue.

Subsection (4) clarifies that consent may be withdrawn at any time. Subsection (5) confirms that failure to offer resistance does not of itself constitute consent. Subsection (6) defines what a sexual act is and replicates the definition already contained in the Criminal Law (Sexual Offences) Act of 2006 and in section 20 of this Bill. That includes rape, rape under section 4, sexual assault and aggravated sexual assault.

I believe the amendment I have brought forward reflects the amendments that have been submitted by Deputies in the course of the discussion on this Bill. I note that Deputy Shortall said she will withdraw the other amendment pending the referral. It is a very complex area of law. I have discussed it in detail with the Attorney General. What the Minister, Deputy Zappone, said to Deputy Shortall is correct, namely, that we agreed to refer it to the Law Reform Commission for a full report on it in order to deal with it effectively at a later point.

I accept that the Minister has gone a long way in terms of providing a very comprehensive definition of consent. However, I do not believe she has addressed the issues I raised, namely, that the question of force implies physical force but there are other ways a person can be put under duress by threats of causing harm in other ways. I listed three possible ways and there are umpteen others. It would be sensible if there was a change in the actual wording in terms of accepting the term "harm" instead of "force". I would very much welcome the Minister's comments in that regard because it will be a missed opportunity if she does not do it at this stage.

I would make the point, which I am sure Deputy Shortall is well aware of, that in all cases where consent is disputed, consent must be decided within the circumstances of each case. The amendment sets out the circumstances which have been identified by our courts as vitiating consent. Whether the Deputy decides to pursue this or not, I ask her to bear in mind the point I have made about it being a non-exhaustive list. There will be other legislation at a future point. We will also have the report from the Law Reform Commission on the other issue raised.

I had asked about the Minister's understanding of the section that dealt with somebody being mistaken as to the identity of the person. Could she clarify what that meant, particularly in the scenario I outlined in terms of a transgender person?

The Minister can only respond once but these are exceptional measures. I ask her to hold back and Deputies might indicate in advance. Deputy Coppinger has the right to contribute after the Minister has spoken.

I will leave it until after the Minister has spoken.

Deputy Coppinger can do so but if she has a question now is the time to ask it.

There have been a number of cases where this has been an issue - for example, cases where people have pretended to be medical professionals and various acts took place which led to court cases where issues of consent and rape became central. With regard to the issues raised by the Deputy, it is important they are included and I am advised they should be. Each case will be considered on its own circumstances, and the weight to be given to a particular issue on identity must still be decided at an individual court hearing, with all the circumstances taken into account, even in the type of case outlined by Deputy Coppinger. At the end of the day, this must be considered by the judge and jury, having heard all the circumstances relating to a particular case and an identity question.

The definition of "consent" put forward by me and other members of the Anti-Austerity Alliance was copied word for word from the Rape Crisis Centre. We took our cue from people who work in the area, who are experts and who deal with victims. The Minister has picked on one particular word but the definition she has gone with is virtually identical. The need to include definitions of consent is to try to in some way rebalance the rights of victims of rape and sexual assault, who, in the majority of cases, are women. The victims are not always women and obviously men can be the victims of rape but in the majority of cases the victims are women. We have a victim blaming culture when it comes to rape whereby women are continually questioned about their background, what role they may have played, what they wore and whether they fought. This is why these are important, and they have been campaigned for by young people, students, the USI and every progressive organisation there is. We could debate it further, but I am happy to accept what the Minister has put forward, on the basis it takes on board much of what the organisations working with rape victims have said.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 13, line 17, after "education," to insert "faith formation,".

This is an amendment to the section of the Bill which relates to a person in authority. A number of categories have been listed in the Bill but it is important to add "faith formation" after "education" because we know religious education and faith formation often take place in an informal setting. The amendment aims to clarify the existing section by placing beyond any doubt the inclusion of those engaged in faith formation among those considered to be a person in authority. I hope the Minister will accept the amendment.

Are the amendments grouped? I thought we would deal with amendments Nos. 1 and 52 to 55, inclusive, together.

We have dealt with them. They have been discussed together but it is when we come to amendments Nos. 52 to 55, inclusive, that we will move them.

Are we dealing with amendments Nos. 3 to 9, inclusive, now?

After we deal with amendment No. 2, which stands alone.

I support the amendment. While there are a number of definitions or cases included in the legislation, it is important to include faith formation because we will have situations where people engage in faith formation, including priests and religious teachers, outside of the school system and an educational setting. It makes sense to include it. With regard to the UN Convention on the Rights of the Child, which demands the highest standards of care are given to children, it would be appropriate to include the wording in the legislation.

Part of the definition of a person in authority is any other person who is, or has been, responsible for the education, supervision, training, care or welfare of the child. I take it this includes people such as sports coaches and members of the clergy involved with children at a particular time. I am interested to hear the Minister's view on this.

To answer Deputy O’Callaghan, he is correct and of course it would include a member of the clergy or a sports coach. It is absolutely envisaged that they would be dealt with under the definition.

Amendment No. 2 proposes to include the words "faith formation" in the definition of a person in authority in section 15 of the Bill. This section amends the definition of person in authority in section 1 of the Criminal Law (Sexual Offences) Act 2006. The Act provides for offences of engaging in sexual acts with children, and a person in authority who engages in a sexual act with a child is subject to greater penalties, reflecting the very serious breach of trust involved.

The amendment is not necessary for a number of reasons. The first is because of what Deputy O'Callaghan has said. Section 15(a)(f) of the definition of "person in authority" is sufficiently wide to include those with responsibility for religious or faith instruction. The definition is wider than the definition we have at present under the 2006 Act which it will replace. As an addition to including persons with responsibility for the education, supervision or welfare, which would include spiritual welfare, of a child, it also includes those with responsibility for the training and care of a child. I am absolutely satisfied the definition addresses the matters raised by Deputy Shortall.

A second issue arises, which is a drafting problem with the words "faith formation", because it is an undefined phrase which, at the very least, could be very broadly interpreted. At a colloquial level we all understand it but from a legal perspective it could be seen as very vague and leave the definition open to challenge, perhaps undermining the purpose of the amendment. This is a concern I have. Having said this, I am advised the existing definition, by referencing those with responsibility for the education, supervision, training, care or welfare of a child, includes members, and I want to be very clear about this, of religious orders who are in a position of authority in respect of a child.

The Minister and I will not agree on this. A person providing informal faith formation such as preparation for sacraments is strictly not covered under any of the categories. This is why I propose, for the avoidance of doubt and to be absolutely clear about it, that we include this category of person. It would be wise to do so. This is my view but I do not think the Minister and I will have a meeting of minds on it.

The example the Deputy has given would be covered under the current definition. A person involved in faith formation or giving classes would come under a number of the definitions in the Bill as it is drafted.

It has been subject to a lot of work and was the subject of extensive legal advices and scrutiny during the drafting of the Bill. I reassure the Deputy that the points she makes on faith formation are covered by the approach we have taken.

Amendment, by leave, withdrawn.

Amendments Nos. 3 to 9, inclusive, and 57 are related and will be discussed together. Amendments Nos. 4 to 6, inclusive, are physical alternatives to amendment No. 3.

I move amendment No. 3:

In page 17, to delete lines 7 to 34 and substitute the following:

“Sexual act with a relevant person

21. (1) A person who engages in a sexual act with a relevant person knowing that that person is a relevant person or being reckless as to whether that person is a relevant person shall be guilty of an offence.

(2) A person who invites, induces, counsels or incites a relevant person to engage in a sexual act knowing that that person is a relevant person or being reckless as to whether that person is a relevant person shall be guilty of an offence.

(3) In proceedings for an offence under this section, it shall be presumed, unless the contrary is shown, that the defendant knew or was reckless as to whether the person against whom the offence is alleged to have been committed was a relevant person.

(4) A person guilty of an offence under subsection (1) where the sexual act consisted of sexual intercourse, buggery or an act described in section 3(1) or 4(1) of the Act of 1990 shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.

(5) A person guilty of an offence under subsection (1) where the sexual act consisted of an act which if done without consent would constitute a sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.

(6) A person guilty of an offence under subsection (2) shall be liable, on conviction on indictment, to imprisonment for a term not exceeding 10 years.

(7) For the purposes of this section, a person lacks the capacity to consent to a sexual act if he or she is not able to understand, at the time that the sexual act occurred, the nature and consequences of the sexual act and the available choices at that time.”.

The use of language was another area on which there was a lot of discussion on Committee Stage. The use of the term "protected person" contravenes all the other legislation with which we have been dealing with recently. In its own report on sexual offences and the capacity to consent, the Law Reform Commission proposed that the term "relevant person" be used as opposed to "protected person". The term "relevant person" is also the term used in the Assisted Decision-Making Act. It is more respectful and has no material effect on the legislation. The Minister gave a commitment on Committee Stage to look at this and it is unfortunate that she has not been able to come back with a definition.

Amendment No. 7 states, "It shall be presumed that a relevant person has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act." Some people with intellectual disabilities have reported that their rights to consensual sexual relationships have been impinged upon by the shadow of the Criminal Law (Sexual Offences) Act 1993. The proposed Bill will still create a focus on the rights of persons with disabilities as being people with questionable capacity to consent and it is important that a rebuttal presumption of capacity is included so that persons with intellectual disabilities are free to enjoy consenting sexual relationships, free from interference, and so that people providing support, education and training have clarity on the legality of their own activities in providing that support or education. This amendment will provide that presumption of capacity. It should be noted that it only states a relevant person has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Bill. All the other issues around consent will still be included.

Our amendment in this group is amendment No. 4. This group of amendments is around some of the core provisions of the Bill relating to definitions and the burden of proof. Our amendment also uses the term "relevant person" for similar reasons as Deputy Jonathan O'Brien. We have some differences, however, and we want to tease out the interaction between the proposed definitions of capacity on the one hand and, on the other, consent and the reversal of burden of proof. We are concerned that there may be some injustices regarding the burden of proof. The Minister proposes that a person lacks the capacity to consent if he or she, by reason of a mental or intellectual disability or a mental illness, is incapable of understanding the nature or the reasonable foreseeable consequences of a sexual act or of evaluating relevant information for the purposes of deciding whether or not to engage in that act. It is clear that such capacity could be situation-specific. It could come and go and one could have the capacity on one day while not on another. An example might be somebody on medication, who had the capacity while on medication but not when they stopped taking it. Such a person might be in a stable relationship but the partner might not be aware that the other had not taken his or her medication. I do not have a problem with the definition but with the fact that it is combined with the burden of proof being on such a person to know that his or her partner does not have the capacity to consent. I ask the Minister to address that issue in order that we do not inadvertently put somebody in such a situation. Can she tease out this issue? Real issues are involved and we want to make sure we get it right

Our amendments in this group are amendments Nos. 5 and 8. I also am sorry that the Minister has not taken on board the points made on Committee Stage and inserted the disability-neutral language that has been very much sought after by disability advocacy groups, while removing the reference to protected persons. Our amendments look to do two things. The first is a new section with neutral language but which does not lessen any of the protections. The second expands the current narrow definition of a relevant person from a person with a mental or intellectual disability to a broader one that does not single out one group of people.

The legislation is a step forward on the 1993 legislation but it could go further by properly adopting disability-neutral language, as recommended by all the UN bodies. Human rights should be for all without distinction. The category of a protected person includes a requirement of disability and that is a distinction and, therefore, in contravention of UN human rights. It implies that people with disabilities should be treated differently in issues such as consent and sexual activity and in this sense it constitutes a form of disability-based discrimination that is prohibited under the Convention onf the Rights of Persons with Disabilities.

The Minister needs to understand that there are very legitimate concerns about language, status, labelling and so on and the protected approach can impact on the freedoms of a person as well as interfere too much with their ability to make decisions freely, because it presumes they do not have capacity. It thus takes a patriarchal approach, in contrast to the aims of the Convention on the Rights of Persons with Disabilities.

A lot of the organisations made submissions to the Minister and their views were not taken on board. They strenuously argued that a separate category in law, identifying those with intellectual disabilities, was not good. As Deputy Jonathan O'Brien said, the Law Reform Commission report on sexual offences and the capacity to consent proposed the term "relevant person". The Assisted Decision-Making Act proposes references to a relevant person. Legal advice given to Inclusion Ireland states it is not necessary to have such a category in a prosecution case and it advised against using it on the grounds that it was discriminatory and amounted to offensive terminology. If somebody is opening a case for the Director of Public Prosecutions and uses the term "protected person" they are prejudging something. The terminology requires a jury to make a judgment about a person before it has heard any evidence.

On Committee Stage, the Minister cited the word "protected" from the UN regulation, but failed to put that in the context in which it was intended at the time. That was clearly in the context of protecting rights and not creating a legal category called a protected person. Article 5, under the heading of "Equality and non-discrimination", calls on state parties to recognise that all persons are equal before and under the law, and are entitled without any discrimination to the equal protection and equal benefit of law. Furthermore, Article 12, under the heading "Equal recognition before the law", requires state parties to reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. It recognises that persons with disabilities enjoy legal capacity on an equal basis with all aspects of life.

Our amendment is changing the wording of the current section to offer the exact same level of legal protection and sanction against the perpetrator of an attack or crime against a relevant person, but it uses neutral language. It does not necessitate a separate category in the eyes of the law and therefore we are trying to give that person a right to equal treatment. We have given consideration to what is required in terms of providing necessary protection against abuse but without unduly overstepping the mark and interfering with a person's other rights. From a prosecution point of view there is no reason the absence of a protected person category would prevent a legal representative from doing their job effectively. It would not, so I do not see any justification or reason we need to compromise a person's right to equality or to differentiate his or her status. It is a hugely upsetting issue for activists in the disability sector.

I will come back briefly to the other amendment which is to broaden the definition of a relevant person as currently contained in section 22(8). It would allow a wider interpretation in order that one is not singling out people with an intellectual disability, but recognising that there could be any number of reasons a person could be reliant on a person in authority where such a person could exploit him or her and behave in a criminal manner. He or she could be in an incapacitating accident, have a drug or alcohol dependency, be in a period of recovery from surgery, have a temporary physical impairment or any other reason. The definition we have now is too narrow and makes an assumption about the capacity and status of the persons cited in the category of a person who has a mental or intellectual disability or a mental illness. At a minimum, the definition of "relevant person" must be expanded to include other adults who do not have a mental or intellectual disability or mental illness but who nonetheless might be sexually exploited by somebody in a position of authority.

I want to speak to amendments Nos. 6 and 8 as well. As Deputy Clare Daly said, it is vital we use disability neutral language in legislation. Particularly after the Assisted Decision-Making (Capacity) Act 2015, we should be very careful and use disability neutral language when we are drafting legislation. What we are doing in legislation should not cause further difficulties for people with disabilities in dealing with the law.

Language is important; we must, therefore, get it right. This has been mentioned by the UN Convention on the Rights of Persons with Disabilities, the Law Reform Commission and Inclusion Ireland. These amendments attempt to provide such neutral language and the same cover as was the original intention of the legislation.

The difference between amendments Nos. 5 and 6 is simply that the former is responsible for faith formation and we have had a discussion on that. As regards amendment No. 8, it is important to change the language used in the definition of a relevant person. The Bill states that a relevant person is a person who has a mental or intellectual disability or a mental illness. That is not a proper use of language, however. The amendment provides for more neutral language that gives the exact same cover, in effect, as has been outlined earlier. That is, therefore, very important.

I want to make one simple point. The language used and the creation of a new category does go against the 2006 UN Convention on the Rights of Persons with Disabilities. That convention advocates a rights-based and equal treatment approach. We should keep that in mind.

We had a long and detailed discussion on this provision on Committee Stage. I did consider it and looked at the section. I will take some time to go into detail on the approach in the Bill and why the various terms are being used. To begin with, the use of the term "protected person" is not related to disability but to the inability to consent to a sexual act. It identifies those persons who, owing to the nature of a particular disability, lack the capacity to consent to a sexual act. It is a very particular group of persons. The UN convention requires us to provide protection on a legislative basis. To provide adequate protection, we have to identify the group. Section 22 identifies the broader category of people which would address the concerns raised by Deputy Clare Daly and which are defined as "relevant persons". I want to go into detail on the approach but wanted to say that to begin with.

A number of amendments have been put forward which primarily seek to address issues regarding the language used in section 21, especially the use of the words "protected persons". The amendments indicate a preference for the words "relevant person". To go into the background, as has been outlined on Committee Stage, the provisions that will replace the status-based approach adopted in section 5 of the Criminal Law (Sexual Offences) Act 1993, are for the protection from exploitation of persons with disability. What is to be introduced by way of section 21 is what I would call a functional-based approach which will focus on the capacity of the person to consent to a sexual act.

Amendment No. 3 tabled by Deputy Jonathan O'Brien and amendment No. 4 tabled by Deputies Brendan Howlin and Jan O'Sullivan follow the approach set out in section 21. We all agree that the language and approach in section 5 of the 1993 Act is outdated. However, section 5 also fails to meet the requirements of the UN Convention on the Rights of Persons with Disabilities. That requires state parties to eliminate all discrimination against persons with disability, facilitating their full participation in society and the realisation of their human rights. In addition, Article 16 of the convention imposes a specific obligation to put effective legislation in place to ensure instances of exploitation, violence and abuse against persons with disability can be identified, investigated and prosecuted.

The UN Committee on the Rights of Persons with Disabilities has made specific reference to the need to provide protection against sexual violence committed against, for example, intellectually disabled women. Also considered in preparing these amendments were the responses to a discussion paper that was prepared by the Department and which included draft proposals on replacing section 5. They were circulated to a wide number of stakeholders, interest groups and academics. We got a wide range of written responses to this and took a lot of time around it. However, no consensus emerged or was identified. The Bill's provisions seek to address the substance of the concerns which were expressed by people about the existing law.

Section 21 creates the offence of a sexual act with a protected person. I will return to the term "protected person" shortly. In order to define the persons who require protection under this provision and to move away from the approach adopted in the 1993 Act, a functional test as to the capacity of a person with a mental or intellectual disability or mental illness has been adopted. Essentially, the offence arises where an individual engages in a sexual act with a person he or she knows lacks capacity to consent to the sexual act by reason of a mental or intellectual disability or mental illness. The offence also arises if the person is reckless as to the capacity of the person to consent to the sexual act. A lack of capacity to consent to a sexual act is defined in section 21(7) and arises where the person is incapable by reason of the disability or illness in question to understand the nature or reasonably foreseeable consequences of the sexual act, to evaluate relevant information for the purposes of deciding whether to engage in the act or to communicate his or her concern about the act.

There is no presumption. I want to be clear on this because some comments make the assumption that a disability or illness of itself gives rise to an incapacity to consent. However, where a disability or illness results in a person being incapable of understanding the act or evaluating relevant information or communicating consent, there will be no capacity to consent. As such, the section provides strong protection for persons who fall within its provisions as there is a presumption in section 21(3) that the accused knew or was reckless as to whether the person against whom the offence was committed was a protected person. This approach is in line with the UN Convention on the Rights of Persons with Disabilities which requires both a respect, which many Deputies have mentioned, for full participation in society by persons with disabilities as well as appropriate protection for those who lack the capacity to consent to such an act owing to the nature of their disability. The amendment will introduce the required provision.

The words "protected person" have been used in recognition of the lack of capacity of that person to consent, not the fact of a person's disability alone. We have also used the term "protected person" to distinguish the persons protected under the section from those to whom section 22 applies. Section 22 provides for an offence by a person in authority who engages in a sexual act with a person with a mental or intellectual disability or mental illness and in respect of whom they, as part of a contract of services, have a responsibility for education, supervision, training, treatment, care or welfare. This offence targets breaches of trust by persons who may take advantage of their positions to engage in a sexual act with someone in their charge. The category of persons is where there is some confusion. The category of persons protected by section 22 is different from that under section 21 as consent is not a defence under section 22. For this reason, the persons protected under section 22 are referred to as "relevant persons". Under section 21, where capacity to consent is an issue, we call them "protected persons". To be very clear sections 21 and 22 relate to two different groups of people. Therefore, to use the same words in both sections would cause confusion. That is why different terms are used.

Amendment No. 3 proposes to remove the reference to "disability" in section 21 and states at subsection (7) that a person lacks the capacity to consent to a sexual act if he or she is not able to understand at the time that the sexual act occurred, the nature and consequences of the sexual act and the available choices at that time. I note to Deputy Jonathan O'Brien that the effect of that amendment would be to make the offence apply to all persons and overlap with aspects of the amendments earlier discussed relating to consent. For example, it would arguably cover unconsciousness or intoxication as well as incapacity by reason of a particular disability. The UN Convention on the Rights of Persons with Disabilities also imposes an obligation on the State to put effective legislation in place to ensure that instances of exploitation and abuse against people with disabilities can be identified and prosecuted. We want to be clear in the legislation about who needs to be protected. That is why we have the two different categories.

The Minister will also need to look at amendment No. 7, which states that it shall be presumed that a relevant person has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of the legislation. That is important. I do not accept the Minister's explanation and I am sure I am not alone. Even having discussed last night the Disability (Miscellaneous Provisions) Bill, which is the State's attempt to give effect to the UN Convention on the Rights of Persons with Disabilities, it is clear that the wording is important. Therefore, I will be pressing my amendment. I cannot speak for anyone else but it is my view that the amendment is in line with the convention. It contains language which has been used in previous legislation and which has been articulated by the Law Reform Commission. Therefore, we will be pressing the amendment.

The Minister made a distinction between a protected person under section 21 and a relevant person under section 22. Will she elaborate on why the word "relevant" could not also have been used in section 21? They would then be the relevant persons under that section rather than under the other section. I did not fully understand her explanation as to why she was able to use "relevant" in section 22 but not in section 21 when "relevant" is clearly the preferred language of the various groups that have lobbied on the Bill. Will the Minister also address the issue I raised of fairness in a situation where the burden of proof is on the person who is being accused and where there may legitimately be a lack of knowledge that the person at that particular time did not have the capacity to consent when that person generally does have the capacity to consent in other circumstances?

I do not agree that the Minister's approach is a functional one. It is a status based approach. She talked about having an obligation under the UN Convention on the Rights of Persons with Disabilities in relation to the word "protected" but that is out of context. The context is that we have an obligation to provide protection for the rights of people with disabilities, not create a new category of protected person. In the context of our second amendment, the Minister's provision as drafted is, in effect, singling out people with intellectual and mental disabilities as the victims of an offence of being exploited sexually by a person in a position of power. In reality, this duplicates the offence of rape. If the goal is to recognise the seriousness of abusing a position of power to sexually exploit a vulnerable adult, this could be done by providing for an aggravating factor in sentencing. One does not need to create a separate criminal offence, which is what is being done here. It is a dangerous precedent to create a separate offence which only applies to certain groups of adults, such as people with disabilities.

If a person with a disability is raped, it should be prosecuted as rape rather than as a separate special form of rape which only applies when somebody has a disability. Everybody should have equal protection under the law. Section 5 of the 1993 Act has not resulted in increased prosecutions or convictions for sexual offences perpetrated against people with disabilities. However, it has been reported that it has had a chilling effect on the provision of meaningful sexual education and support for people with disabilities due to a fear among disability service providers and others that they might be aiding and abetting the commission of criminal offences by providing support for a person to have a sexual relationship.

We know that some parents cannot deal with the fact that their son or daughter who has a disability might also have sexual desires and the right to have a sexual relationship. We are being too presumptuous and the wording is too restrictive. Like Deputy Jonathan O'Brien, I think the amendments should be pressed.

I will give some more detail on amendments Nos. 5, 6 and 57 because I did not get a chance to deal with them earlier. I am absolutely satisfied that what the amendments seek to achieve is addressed in section 22. The majority of the submissions received during the consultation process supported a specific offence, as did the Law Reform Commission in its report on capacity and consent. What we are doing is precisely what the United Nations stated we should do in being able to prosecute these offences.

In response to Deputy Jan O'Sullivan's query, we need to use two different terms in sections 21 and 22 because using the same term in both sections could create confusion as both sections are related to the protection of two different groups in line with our obligations. That is the technical and legal advice I have received. It provides for greater clarity in different sections.

There is concern about the breadth of amendments Nos. 5, 6 and 57 tabled by Deputies Clare Daly, Mick Wallace, Catherine Connolly, Thomas Pringle and Jonathan O'Brien. If they were to be introduced, the provisions set out in the amendments would mean that there would be no limitation on the range of potential victims other than that someone must have a relationship of dependence or trust with another person who, in taking advantage of that position, engages in a sexual act with him or her without the him or her giving his or her free consent. That would be included in the definition of "position of dependency and trust" as a person who occupies a position of authority. That could be interpreted broadly and would present difficulties. Without further qualification, it would apply to a wide range of persons, including, for instance, where there was employment relationships, something Deputies should note. Because of the manner in which they have been drafted, the amendments would cause difficulties.

Amendment put:
The Dáil divided: Tá, 35; Staon, 0; Níl, 84.

  • Adams, Gerry.
  • Barry, Mick.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Broughan, Thomas P.
  • Buckley, Pat.
  • Collins, Joan.
  • Connolly, Catherine.
  • Coppinger, Ruth.
  • Crowe, Seán.
  • Cullinane, David.
  • Daly, Clare.
  • Doherty, Pearse.
  • Ellis, Dessie.
  • Ferris, Martin.
  • Funchion, Kathleen.
  • Healy, Seamus.
  • Kenny, Gino.
  • Kenny, Martin.
  • Mitchell, Denise.
  • Murphy, Catherine.
  • Ó Broin, Eoin.
  • Ó Caoláin, Caoimhghín.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • O'Brien, Jonathan.
  • O'Reilly, Louise.
  • O'Sullivan, Jan.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Ryan, Brendan.
  • Smith, Bríd.
  • Stanley, Brian.
  • Wallace, Mick.

Níl

  • Aylward, Bobby.
  • Bailey, Maria.
  • Barrett, Seán.
  • Breathnach, Declan.
  • Breen, Pat.
  • Brophy, Colm.
  • Browne, James.
  • Bruton, Richard.
  • Burke, Peter.
  • Butler, Mary.
  • Byrne, Catherine.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Casey, Pat.
  • Chambers, Jack.
  • Corcoran Kennedy, Marcella.
  • Coveney, Simon.
  • Cowen, Barry.
  • Creed, Michael.
  • Curran, John.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deering, Pat.
  • Doherty, Regina.
  • Donohoe, Paschal.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Fleming, Sean.
  • Harris, Simon.
  • Harty, Michael.
  • Haughey, Seán.
  • Healy-Rae, Michael.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kelleher, Billy.
  • Kenny, Enda.
  • Kyne, Seán.
  • Lahart, John.
  • Lawless, James.
  • MacSharry, Marc.
  • McEntee, Helen.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McGuinness, John.
  • McLoughlin, Tony.
  • Madigan, Josepha.
  • Mitchell O'Connor, Mary.
  • Moran, Kevin Boxer.
  • Moynihan, Aindrias.
  • Moynihan, Michael.
  • Murphy O'Mahony, Margaret.
  • Murphy, Eoghan.
  • Murphy, Eugene.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • Noonan, Michael.
  • Ó Cuív, Éamon.
  • O'Brien, Darragh.
  • O'Callaghan, Jim.
  • O'Connell, Kate.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Keeffe, Kevin.
  • O'Loughlin, Fiona.
  • Phelan, John Paul.
  • Rabbitte, Anne.
  • Ring, Michael.
  • Rock, Noel.
  • Ryan, Eamon.
  • Scanlon, Eamon.
  • Stanton, David.
  • Troy, Robert.
  • Varadkar, Leo.
  • Zappone, Katherine.

Staon

Tellers: Tá, Deputies Jonathan O'Brien and Pat Buckley; Níl, Deputies Regina Doherty and Tony McLoughlin.
Amendment declared lost.

I move amendment No. 4:

In page 17, to delete lines 7 to 34 and substitute the following:

“Sexual act with a relevant person

21. (1) A person who engages in a sexual act with a relevant person knowing that that person is a relevant person or being reckless as to whether that person is a relevant person shall be guilty of an offence.

(2) A person who invites, induces, counsels or incites a relevant person to engage in a sexual act knowing that that person is a relevant person or being reckless as to whether that person is a relevant person shall be guilty of an offence.

(3) A person guilty of an offence under subsection (1) where the sexual act consisted of sexual intercourse, buggery or an act described in section 3(1) or 4(1) of the Act of 1990 shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.

(4) A person guilty of an offence under subsection (1) where the sexual act consisted of an act which if done without consent would constitute a sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.

(5) A person guilty of an offence under subsection (2) shall be liable, on conviction on indictment, to imprisonment for a term not exceeding 10 years.

(6) For the purposes of this section, a person lacks the capacity to consent to a sexual act if he or she is, by reason of a mental or intellectual disability or a mental illness, incapable of—

(a) understanding the nature, or the reasonably foreseeable consequences, of that act,

(b) evaluating relevant information for the purposes of deciding whether or not to engage in that act, or

(c) communicating his or her consent to that act by speech, sign language or otherwise,

and, in this section, such a person is referred to as a “relevant person”.”.

Amendment put and declared lost.

I move amendment No. 5:

In page 17, to delete lines 7 to 34 and substitute the following:

“Abuse of a position of dependence and trust

21. The Criminal Law (Sexual Offences) Act 1993 is amended by substituting the following for section 5:

“Offence of abuse of position of dependence and trust

5. (1) Any person who being in a position of dependence and trust—

(a) takes advantage of his or her position, or

(b) aids, abets, counsels or procures another person to take advantage of his or her position, and

(i) induces or seduces a person to have sexual intercourse with him or her, or

(ii) commits any other sexual offence involving a person,

shall be guilty of an offence of abuse of position of trust and shall be liable upon conviction on indictment to imprisonment for a term of not less than ten years.

(2) Where a person charged with an offence under this section can establish that, in respect of the sexual act which had been engaged in, no offence would have been committed had the consent of the victim been granted prior to the act, it shall in those circumstances be a defence for a person who is charged with an offence under this section to prove that—

(a) he victim consented to the sexual act which had been engaged in, and

(b) that such consent was granted freely and in the absence of duress or coercion.

(3) In this section—

‘position of dependence and trust’ includes, but is not limited to, a person who—

(a) provides care,

(b) is responsible for welfare,

(c) occupies a position of authority,

(d) provides education,

(e) provides support services including therapy or counselling, to the victim, or

(f) is responsible for faith formation;

‘sexual offence’ includes—

(a) a sexual offence within the meaning of section 3 of the Sex Offenders Act 2001,

(b) an offence under section 2, 3 or 4 of the Criminal Law (Rape) (Amendment) Act 1990,

(c) an offence under section 6 or 7 of the Criminal Law (Sexual Offences) Act 1993,

(d) an offence under section 4 or 5 of the Criminal Law (Human Trafficking) Act 2008, or

(e) any other offence of a sexual nature contained in any other enactment and which has been so prescribed in regulations made by the Minister for Justice and Equality under this section.”.”.

Amendment put and declared lost.

I move amendment No. 6:

In page 17, to delete lines 7 to 34 and substitute the following:

“Abuse of a position of dependence and trust

21. The Criminal Law (Sexual Offences) Act 1993 is amended by substituting the following for section 5:

“Offence of abuse of position of dependence and trust

5. (1) Any person who being in a position of dependence and trust—

(a) takes advantage of his or her position, or

(b) aids, abets, counsels or procures another person to take advantage of his or her position, and

(i) induces or seduces a person to have sexual intercourse with him or her, or

(ii) commits any other sexual offence involving a person,

shall be guilty of an offence of abuse of position of trust and shall be liable upon conviction on indictment to imprisonment for a term of not less than ten years.

(2) Where a person charged with an offence under this section can establish that, in respect of the sexual act which had been engaged in, no offence would have been committed had the consent of the victim been granted prior to the act, it shall in those circumstances be a defence for a person who is charged with an offence under this section to prove that—

(a) the victim consented to the sexual act which had been engaged in,

and

(b) that such consent was granted freely and in the absence of duress or coercion.

(3) In this section—

‘position of dependence and trust’ includes, but is not limited to, a person who—

(a) provides care,

(b) is responsible for welfare,

(c) occupies a position of authority,

(d) provides education, or

(e) provides support services including therapy or counselling, to the victim;

‘sexual offence’ includes—

(a) a sexual offence within the meaning of section 3 of the Sex Offenders Act 2001,

(b) an offence under section 2, 3 or 4 of the Criminal Law (Rape) (Amendment) Act 1990,

(c) an offence under section 6 or 7 of the Criminal Law (Sexual Offences) Act 1993,

(d) an offence under section 4 or 5 of the Criminal Law (Human Trafficking) Act 2008, or

(e) any other offence of a sexual nature contained in any other enactment and which has been so prescribed in regulations made by the Minister for Justice and Equality under this section.”.”.

Amendment put and declared lost.

I move amendment No. 7:

In page 17, between lines 34 and 35, to insert the following:

“(8) It shall be presumed that a relevant person has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act.”.

Is the amendment being pressed?

I understand the amendment is no longer relevant as the section it proposed to amend was defeated and, as a result, the term "relevant person" does not appear in the section.

We still have to dispose of the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 18, to delete lines 26 to 30 and substitute the following:

“ “relevant person” means—

(a) a person whose capacity to consent to a sexual act is called into question, or

(b) a person who lacks capacity to consent to a sexual act,

and it states that a relevant person’s lack of capacity to consent for the purposes of this Act may arise because of—

(i) a disability,

(ii) ill health, or

(iii) any other reason.”.

Amendment put:
The Dáil divided: Tá, 35; Staon, 0; Níl, 86.

  • Adams, Gerry.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Broughan, Thomas P.
  • Buckley, Pat.
  • Collins, Joan.
  • Connolly, Catherine.
  • Coppinger, Ruth.
  • Crowe, Seán.
  • Cullinane, David.
  • Daly, Clare.
  • Doherty, Pearse.
  • Ellis, Dessie.
  • Ferris, Martin.
  • Funchion, Kathleen.
  • Healy, Seamus.
  • Kenny, Gino.
  • Kenny, Martin.
  • Mitchell, Denise.
  • Murphy, Catherine.
  • Ó Broin, Eoin.
  • Ó Caoláin, Caoimhghín.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • O'Brien, Jonathan.
  • O'Reilly, Louise.
  • O'Sullivan, Jan.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Ryan, Brendan.
  • Ryan, Eamon.
  • Smith, Bríd.
  • Stanley, Brian.
  • Wallace, Mick.

Níl

  • Aylward, Bobby.
  • Bailey, Maria.
  • Barrett, Seán.
  • Brassil, John.
  • Breathnach, Declan.
  • Breen, Pat.
  • Brophy, Colm.
  • Browne, James.
  • Bruton, Richard.
  • Burke, Peter.
  • Butler, Mary.
  • Byrne, Catherine.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Casey, Pat.
  • Chambers, Jack.
  • Collins, Niall.
  • Corcoran Kennedy, Marcella.
  • Coveney, Simon.
  • Cowen, Barry.
  • Creed, Michael.
  • Curran, John.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deering, Pat.
  • Doherty, Regina.
  • Donohoe, Paschal.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Fleming, Sean.
  • Harris, Simon.
  • Harty, Michael.
  • Haughey, Seán.
  • Healy-Rae, Michael.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kelleher, Billy.
  • Kenny, Enda.
  • Kyne, Seán.
  • Lahart, John.
  • Lawless, James.
  • MacSharry, Marc.
  • McEntee, Helen.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McGuinness, John.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Madigan, Josepha.
  • Mitchell O'Connor, Mary.
  • Moran, Kevin Boxer.
  • Moynihan, Aindrias.
  • Moynihan, Michael.
  • Murphy O'Mahony, Margaret.
  • Murphy, Eoghan.
  • Murphy, Eugene.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • Noonan, Michael.
  • Ó Cuív, Éamon.
  • O'Brien, Darragh.
  • O'Callaghan, Jim.
  • O'Connell, Kate.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Keeffe, Kevin.
  • O'Loughlin, Fiona.
  • Phelan, John Paul.
  • Rabbitte, Anne.
  • Ring, Michael.
  • Rock, Noel.
  • Scanlon, Eamon.
  • Stanton, David.
  • Troy, Robert.
  • Varadkar, Leo.
  • Zappone, Katherine.

Staon

Tellers: Tá, Deputies Mick Wallace and Thomas Pringle; Níl, Deputies Regina Doherty and Tony McLoughlin.
Amendment declared lost.
Amendment No. 9 not moved.

Amendments Nos. 10 to 16, inclusive, are related. If amendment No. 10 is agreed, amendments Nos. 11 to 15, inclusive, which are physical alternatives to amendment No. 10, cannot be moved. Amendment No. 13 is a physical alternative to amendment No. 12. Amendments Nos. 10 to 16, inclusive, may be discussed together.

I move amendment No. 10:

In page 19, to delete lines 3 to 38, and in page 20, to delete lines 1 and 2.

It is unfortunate that a number of complex issues are conflated in this Bill. By this I mean that there is a conflation in the construct of the Bill in the context of the issues of trafficking, coercion, sex work and, to a degree, pornography. However, they are all very different issues. The justification for this Bill lies largely in what is known as the Nordic model. I am of the view that the Bill fails to understand and recognise that the most recent research into that model raises very profound questions around the criminalisation of the purchasers of sex. When the Unite trade union women's committee had a debate on this issue a number of years ago, I was a lone voice in opposing the Nordic model on the basis of the arguments I propose to make this evening. These arguments were rejected by very progressive women in the trade union who are now having a rethink on the attitude of the union to their response to the Turn Off the Red Light campaign at that time. That is a fair and intelligent thing to do in the light of recent evidence and research, and arguments made by groups such as Amnesty, that criminalising the purchase of sex will drive sex workers into more dangerous and precarious lives and increase their vulnerability and has done so in the areas where this model has been introduced.

Targeting the purchase of sex is driving sex work underground. Where clients are in a position to demand more structures regarding how the act they are about to purchase takes place and the sorts of safe places in which they wish to buy the sex or have the work performed, sex workers are even more vulnerable.

Let me refer to Amnesty International which examined the Nordic model and talked to Nordic sex workers. It concluded that it would be much better to decriminalise all aspects of sex work. The Amnesty report refers to a larger problem that befalls sex workers owing to the criminalisation of the buyer. It examines what happened in Norway and patterns of police surveillance of sex workers and of evictions and deportations, particularly of migrant women, who in some cases rely almost totally on sex work. The report finds that because sex workers are now sometimes used as evidence in court to convict a buyer, practices such as carrying condoms can be used as evidence in a court case. Therefore, sex workers tend not to carry condoms as much as they would have done before the purchaser of sex became the criminal. It does not have to be stated that not protecting oneself while carrying out a sexual act, particularly with a stranger, is extraordinarily dangerous to one's health. In many cases, it has led to an increase in sexually transmitted diseases, etc.

The reporting of violence, aggression and attacks has decreased among sex workers because they find complaints they make to the police often result in their being more harassed. There is no evidence that the criminalisation of the purchaser reduces the discrimination, stigma and violence experienced by sex workers. In reality, the Nordic model has increased the danger for sex workers. There is an urgent need to examine the evidence produced in many surveys. The survey by Amnesty International is particularly useful and broad. It refers to the utterly disgraceful circumstances of women seeking asylum and states their participation in sex work is often used against them to evict them and sometimes to deport them.

If we were to introduce this Bill, it would create all the dangers I have outlined for sex workers here. I refer in particular to sex workers living in direct provision and those who are refugees or migrants. The Bill would increase the risk and drive the whole business underground even further. It would do nothing to deal with the reality of the sex workers' lives. It would increase the sex workers' chances of being at the wrong end of the law and in the courts.

The Norwegian Government's own research found that criminalising the purchaser has the effect of strengthening and increasing the dependence of migrant sex workers on traffickers and exploitative third parties. When we examine the section that seeks to outlaw brothels and sex workers working together in groups of more than two, we will note that there is much evidence that the driving underground of sex work as an act or function also makes sex workers much more vulnerable. This Bill would worsen the lives of sex workers and increase the danger associated with their work and the danger to their health.

The purpose of our seeking to delete the section is to ensure all aspects of sex work and prostitution will be decriminalised. I refer to both the purchaser and sex worker. If we were to reach a point where we accepted this as the sensible norm, we could then regard our responsibility as legislating to provide supports, both educational and functional, to people who believe they are driven into sex work rather than those who have chosen it as a lifestyle. We are going about this in completely the wrong way. This is why we are arguing for the deletion of the entire section.

Since the introduction of the Nordic model in Sweden and Norway, there have been reports, including by government agencies in those countries, of greater harassment on the streets, increased competition for clients and more pressure on sex workers to accept riskier clients who are aggressive or drunk and engage in dangerous behaviour, such as unprotected sex. According to UNAIDS, criminalising clients deters those who do not want to commit a crime but not those who actually intend to abuse sex workers, thereby increasing the proportion of clients who are aggressive or dangerous. Prosecuting sex workers who work together indoors for safety on grounds of brothel keeping is another way to ensure they will be unsafe. The lack of focus on harm reduction in the Nordic model has led to increased surveillance and searches by the police in Sweden, who are reportedly confiscating condoms for evidence, thus increasing the risk of HIV and other sexually transmitted diseases. The World Health Organization and HIV Ireland are just two of the many health-based organisations advocating the decriminalisation of sex work as the model for preventing further transmission of HIV.

The Norwegian Ministry of Justice and Public Security report entitled Evaluation of Norwegian Legislation Criminalising the Buying of Sexual Services, dated 2014, found the Swedish law criminalising the purchase of sex had created a buyer's market and that violence against sex workers had actually increased.

In a context of high unemployment, depressed wages and increased homelessness and debt, where asylum seekers are forbidden from entering the workforce, it is actually irresponsible to consider any model of sex industry regulation that would make it more difficult for marginalised people to survive. Despite the overwhelming evidence highlighting the negative consequences of the Nordic model, the Irish Government has taken an unjustifiably positive view of the legislation. Mr. Michael Lynn, SC, stresses in his legal opinion the fact that there is no concrete evidence that the Nordic model has actually reduced the level of prostitution, which was its aim in the first place. According to the legal opinion, the importance of the evidential deficit cannot be overstated. It is claimed the legislation may have serious negative consequences for the rights, including the physical safety, of the group of people it is designed to protect. Nobody knows what the effect of the legislation will be in Ireland. It is stated gambling with the lives and welfare of sex workers is highly dangerous and obviously unjustifiable. According to research carried out by Chu and Glass in 2013-14, any claim that there has been a reduction in street prostitution in Sweden must be qualified by the fact that much of it has been displaced to indoor markets.

A key issue is that the Government willingly conflates the issues of sex work and trafficking. A report by the UN special rapporteur on the right to health in 2010 stated the conflation of consensual sex work and sex trafficking in such legislation leads, at best, to the implementation of inappropriate responses that fail to assist either of the relevant groups in realising their rights and, at worst, to violence and oppression. Clearly, where people are coerced into selling sex or are unable to leave sex work if they wish to, we need to have specific laws to protect them, but consensual adult sex is a very different issue.

The Bill portrays sex workers as vulnerable and without any agency or autonomy of their own.

No importance is attached to the consent of the sex worker. No sex act should ever happen without consent, but the Bill disregards the ability of a sex worker to give consent. This raises an interesting question. Why does the Government believe consent does not count when it comes to a sex worker? Treating all sex work as abuse or sexual assault is to tell the workers involved that their consent is irrelevant. If people can be believed when they assert that they do not consent to sex, surely they can also be believed when they say they do. By dismissing the rationale that adults have consented to sex, one is implying that one knows their minds better than they do.

Proponents of the Nordic model, consciously or otherwise, are seeking to undermine the right of sex workers to self-determination in the context of sex work. An upshot of this infantilising attitude towards them is that in not respecting their right to consent to engage in sex work, it makes it more difficult for sex workers who are the victims of rape or sexual assault to be taken seriously. Furthermore, the attitude that sex work is inherently degrading is not only insulting to sex workers, it also perpetuates the stigma around it. The Government believes it is helping sex workers through this Bill, but in diminishing their agency, it will make them more vulnerable. The legislation's moralistic nature must not be ignored. We could be discussing abortion laws, the symphysiotomy scandal or what happened in the Magdalen laundries, all of which continue to have serious implications for bodily autonomy rights.

Criminalising sex workers' clients is de facto a criminalisation of the sex workers and creates additional risks for an already marginalised group. Regardless of who is criminalised, it focuses law enforcement efforts and public money on fighting the sex trade, essentially treating everyone involved as a criminal and creating an adversarial atmosphere. Police officers are increasingly seen as enforcers rather than protectors. Any legislative change purporting to make sex workers' lives safer should focus on improving their relationship with the police in order that they will feel free to seek help when they need it while addressing the issue of exploitation. According to a 2004 report from the Norwegian Ministry of Justice and the Police, entitled "Purchasing Sexual Services in Sweden and the Netherlands: Legal Regulation and Experiences", the negative relations between sex workers and the police made them less likely to reach out when they witnessed trafficking, abuse or exploitation. Sex workers were less safe and abusers could act with impunity.

I do not see the rationale behind the Bill and disagree strongly with this approach. Sex workers have not been listened to and life will be more difficult for them after this legislation is passed.

I wish to deal with this amendment because I am perplexed. Perhaps the Deputies proposing it or the Tánaiste might provide clarity. It proposes to delete all of the new provisions, including that relating to paragraph (a) of the 1993 Act, from line 3 onwards to the following page. I fail to see how that would make the lives of sex workers safer or decriminalise them, given that section 25 of the Bill deletes from that Act solicitation by a prostitute - a person "offers his or her services as a prostitute to another person" - from the offence of soliciting for the purposes of prostitution.

Why are the proposers proposing the deletion of this measure? Doing this would also leave in place section 7 of the Criminal Law (Sexual Offences) Act 1993, which reads:

A person who in a street or public place solicits or importunes another person or other persons for the purposes of prostitution shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding--

(a) £250, in the case of a first conviction,

(b) £500, in the case of a second conviction, or

(c) £500 or to imprisonment...

I am in favour of the provisions on the harassment and criminalisation of sex workers being deleted. As such, why are the proposers proposing the deletion of those measures that decriminalise sex workers? Sex workers would continue to have no protection. In proposing the amendment the proposers are stating sex workers soliciting to sell sex should remain criminalised, up to and including being imprisoned for four weeks. It is bizarre. The Deputies profess to have an interest in sex workers' rights. Why would they rather see people continuing to be criminalised while men would remain free to buy sex? That is the element they are deleting but they are leaving the status quo. It seems that, in essence, they would prefer a woman who solicits for clients on the street to be sent to prison rather than criminalising the man. I cannot understand how people can claim that this would assist sex workers or make their lives safer.

Nobody could argue that consent and purchasing consent are the same things. To say there are no sex workers or people involved in prostitution or the sex industry who are not vulnerable is whitewashing and sanitising the industry. The Socialist Party and socialists in general do not make judgments about anyone who becomes involved in the sex industry. It is not about moralising or considering what is right but about perpetuating the culture that women's bodies or those of trans or vulnerable people are subservient to - let us face it - male desires. As the purchasers of sex are 99% male, there is a gender aspect.

I will cite Mr. Tom Meagher who is involved with the White Ribbon campaign and whose wife was murdered by a rapist. He made the point that anyone who challenged the male purchasing of sex or male violence was told that "men were men." He stated: "The sentence 'it's not ok to pay for sex' is controversial and often unpopular, one that invites accusations of moralising ... as if it is simply sex and not the systematic oppression of women and the rape and murder of women in prostitution in particular that we object to." That is the nub of the argument. Passing laws will not get rid of prostitution. Prostitution is the product of a society in which there is significant inequality and eight men have as much wealth as 3.5 billion people. As long as this continues to be the case, people will be pressured because of poverty, drug addiction and so on. There are people who have been able to make a decision to take part in sex work, but they are in a minority and should not be over-represented in the general discussion. The amendment is particularly mystifying if people want to protect sex workers.

Further down the list are amendments which could be deleted if this amendment is passed, in which we in the Anti-Austerity Alliance argue that the pimps, the organisers of prostitution and the traffickers should be pursued and heavily fined. Some of these points have been taken on board, whereas others have not. In recent cases people who have been arrested for engaging in prostitution have had the proceeds taken from them. This should be catered for in the Bill, but it is not. We will continue to see sex workers being persecuted.

I am mystified by the proposal that the entire section be deldted, including measures that would increase the safety of those involved in prostitution in the context of soliciting, loitering and so on.

I just do not understand where that is coming from if one wants to protect sex workers. It seems that in trying to prevent the purchase of sex, generally by men, and in deleting that measure, all of the protections are being deleted and I wonder why that is the case.

We have similar concerns to those expressed by Deputy Ruth Coppinger on amendment No. 10. As people are aware, it is our party policy to support the Turn Off The Red Light campaign, and while there is growing evidence around the purchase of sex and whether that has a knock-on effect on the safety of sex workers, we think deleting the entire section is also deleting some of the existing protections for sex workers. Two separate debates are required and for that reason, unfortunately, we will vote against amendment No. 10 if it is put to a vote.

Amendment No. 11 is a well thought out amendment tabled by the Labour Party. If it remains the case that we are going to criminalise the purchase of sex, the sex worker could be prosecuted under current legislation, namely, the Proceeds of Crime Act, as he or she could be perceived to benefit from a crime having been committed. The Minister must clarify the situation in this regard. If there is no clarification and the amendment is put to a vote, we will support it.

We support Government amendment No. 12 as it includes penalties and goes after those who organise prostitution, namely, the pimps. While we can argue about whether what is proposed goes far enough, a penalty of up to ten years in prison is something we welcome.

Amendment No. 13 also deals with sentencing. Perhaps Deputy Ruth Coppinger or even the Minister might clarify whether it is possible to specify an unlimited fine in legislation. If that is the case then I would not object to that. Whatever about an unlimited fine, we should certainly consider including a minimum fine and we need not specify a maximum fine. We will support the amendment if it is put to a vote.

Amendment No. 14 is a Sinn Féin amendment. Amendment No. 15 has been moved by the Anti-Austerity Alliance and amendment No. 16 by People Before Profit. In essence, they all propose to do the same thing, namely, to give some protection to a sex worker who is working within a property or building with another sex worker for safety reasons. There is a significant difference between individuals who are forced into the industry by pimps, who are victims of trafficking and exploitation and the women who choose to be sex workers and to engage in such activity. We should provide every safety mechanism to those women that we can. The essence and spirit of the three amendments tries to do that and to distinguish between a sex worker who is working within a property with another sex worker for his or her own safety, as opposed to someone who has been forced into the industry by a pimp and has been subjected to trafficking.

We often talk about unforeseen, unintended or unknown consequences when we deal with legislation, but in this case the consequence has been flagged on every Stage of the legislation. It is unfortunate that the Minister has not been able to come up with a wording to provide protection to sex workers who work in groups for their own safety and who are not being exploited or who have not been trafficked. It is unfortunate that we have not been able to come up with a suitable combination of words. Provided amendment No. 10 does not pass, we will push amendment No. 14 to a vote, and if amendments Nos. 15 and 16 are also pushed to a vote, we will also support them.

I welcome Deputy Jonathan O'Brien's support for our amendment No. 11. I hope the Minister will consider accepting the amendment which I signalled in the course of my Second Stage contribution on the Bill. We felt there was an anomaly in the Bill whereby a person who is a sex worker could have his or her assets seized by the Criminal Assets Bureau as a result of the legislation. We propose that money or any other form of remuneration or consideration that is paid or given to a sex worker in return for sexual services would not, by reason of the creation of the new offence, be deemed to be the proceeds of crime for the purposes of the Proceeds of Crime Acts 1996 to 2016. In effect, anything above €5,000 could be seized from a sex worker as the proceeds of crime.

I thought it was €1,000.

I am sorry, it is €1,000. The point we wish to make is that this is an unintended consequence of the legislation and we do not believe the sex worker should have his or her home or anything else seized by the Criminal Assets Bureau.

On the more general issue, I also have a problem with amendment No. 10 because I would be very concerned if we were to remove protections from sex workers, which appears to be the result of taking out that entire page of the Bill. I know that the proposers of the amendment will have another opportunity to explain the position to us.

We are also generally in support of the intention of the legislation and of the Turn Off The Red Light campaign. The Immigrant Council of Ireland and Ruhama have told us stories about women who in many cases are coerced into being sex workers. There is a great deal of exploitation and for many sex workers it is not a free choice but they are in the industry for a variety of reasons that are not connected to freely choosing to be a sex worker. I accept some sex workers are in a position to make a free and unencumbered choice that is not exploitative. However, I contend a large number of sex workers are exploited and for that reason we have given our support to the Turn Off The Red Light campaign. Clearly, there are different views on that major element of the legislation but we do support the Government in this regard.

I urge the Minister to consider accepting the Labour Party amendment. I do not think it would cause any difficulty for the intention of the legislation but what it does do is protect the sex worker from having his or her assets seized by the Criminal Assets Bureau.

I will let those who are on the committee deal with the more technical point that seems to be raised, if they can answer it. Clearly, the suggestion that amendment No. 10 is removing protections is absolutely not the intention. It is also not entirely clear that is what it does. As I understand it, it leaves in place some of the existing legislation, which should be amended.

To deal comprehensively with all the legislative aspects of trying to decriminalise sex work, which is the intent of our amendment, one would require further amendment of the 1993 Act. We take that point, but I do not think the suggestion that what we are doing is removing protection is correct. Deputy Catherine Connolly and others might add to what I said in that regard.

On the substantive issue, Deputy Bríd Smith made the biggest point. Everybody here is at one in wanting to ensure we protect women or people engaged in sex work from exploitation, abuse, violence, being treated in a degrading way, objectification and the commodification of women's sexuality against their will. We are probably all at one on that, but we believe a law and order approach is not the way to deal with those problems because in an effort to make things better, one ends up making things worse for the very people one believes one is trying to protect. That is the essence of it. A law and order approach does not and will not work. The evidence for that is increasing. It is obvious that if you criminalise the buyer of sex, prostitution will not end, as has been acknowledged by those who oppose this amendment. It will continue, people will continue to purchase sex and the people who do so will be the ones most willing to defy the law. They will be the more dangerous buyers of sex. The business will be driven underground in a way that will remove protections that may exist for sex workers. That point has been largely made.

Some people involved in sex work make a decision to do so. As Deputy Mick Wallace said, we should not stigmatise and patronise all those involved in sex work and assume that at least some of them do not make a decision of their own free will. However, I believe this is a minority, as Deputy Jan O'Sullivan said. If we want to do something about the majority of women who go into sex work because they are forced to do so, we need to look at what forces them into it. I do not believe it is demand - the fact that there are people willing to buy sex - that forces women who would not do so otherwise into sex work and the degradation involved in it if it is not their free choice. If the Government wants to do something about that, they need to look at the profile of people who are forced into sex work. What categories of people are being forced into sex work and what are we going to do to give them options so that if they do not want to be involved in sex work, they do not feel they have be involved in it? If one looks at things that way, one is immediately into areas like student poverty or people who are denied rights because they are migrants or in direct provision or because in one way or another, they are on the margins or are vulnerable people who do not have other options available to them and who feel the necessity to engage in sex work to survive. That is the issue that needs to be addressed. It is about dealing with issues like low pay and precarious work that affects women. One of the terrible things is the increase in young university students getting involved in sex work because of high levels of student poverty. If you want to do something about that, it is not about a law and order approach, it is about dealing with escalating dire student poverty that is forcing young people in universities into feeling that they must go out and engage in sex work to survive.

On Second and Committee Stages, Fianna Fáil's attitude to Part 4 of the Bill, which deals with the purchase of sexual services, has not altered. Therefore, we will not support amendment No. 10. It is important to recall what lies at the heart of prostitution. At its heart lies abuse of vulnerable women and that vulnerability has been growing in recent times. When you look at the statistics in respect of the women involved in prostitution in Ireland, you find that very many of them are immigrant women living in significant states of destitution who are forced into prostitution. I fully recognise that if we criminalise the purchase of prostitution, it will not end it. It will still continue. Notwithstanding that, if we were to adopt that argument, we would criminalise nothing and say things are just going to continue and what is the point in introducing any laws to deal with it. It is extremely important that men recognise and take responsibility for the fact that they get involved in an abusive situation with women. Up to now, they have been able to walk away scot free and the woman is the person who has faced the consequences. For that reason, we will not support amendment No. 10. I do not know what the consequences of this will be in terms of prostitution, however, I believe it will be of assistance to women who find themselves in prostitution because it will lessen demand and that will have a consequence for women who find themselves involved in sex work.

With due respect to Deputy Jan O'Sullivan, I do not think amendment No. 11 is helpful. This amendment could create even greater difficulties for vulnerable women who find themselves working in prostitution. The proposal put forward by the Deputy would mean that moneys that are the proceeds of crime and that are held by sex workers and prostitutes would not be confiscated. This just provides an opportunity for those in organised crime and men who are criminals to force sex workers and prostitutes to hold on to money in the knowledge that this money will be protected from seizure by the Criminal Assets Bureau. Last year, this House introduced legislation to ensure we could have a mini Criminal Assets Bureau whereby smaller amounts of money could be seized. The obvious way for criminals to get around that would be to hand it to women and say, make sure you say this is money you got from sex work or prostitution.

Amendments Nos. 12 and 13 are similar, although the use of the word "unlimited" in amendment No. 13 is not appropriate. It is appropriate that there should be a fine and a punishment for conviction on indictment for the organisation of prostitution. That fine needs to be there and it is important that men or women who are in the business of organising prostitution, which preys on extremely vulnerable women, know that if they are convicted for that, they will face a serious sentence and that on indictment, they could face a sentence of up to ten years.

Amendment No. 14 from Deputy Jonathan O'Brien and amendment No. 15 would defeat the whole purpose of the legislation. What we are trying to do is to ensure there is criminalisation of the purchase of sex. Amendment No. 14 states no person shall be prosecuted for an offence under this section where the premises is used by that person to provide his or her own sexual services and that section 10(1) does not apply to that person. My reading of that is that there would be no prosecutions if the sex work was provided in the sex worker's own accommodation. That defeats the whole purpose of the legislation because it would be so easy to get around it. Everyone would simply engage in the services in their own accommodation.

I support amendment No. 10 which provides for the deletion of a section inserted by the Tánaiste in respect of the criminalisation of the purchase of sex. We propose to remove something the Tánaiste is proposing. It is surprising that people would turn that on its head and choose to translate it into suggesting we propose to remove protections for sex workers. Everyone here is genuinely motivated. People here who are putting forward diametrically opposed views are doing so for genuine reasons. To imply motivation in some people's motions or contributions by stating that this is being done in order to overturn and remove protections for sex workers is utterly ludicrous.

In listening to and opposing the points we made on Committee Stage about soliciting, the Tánaiste suggested that our removal of section A inadvertently leaves soliciting in place. However, that can be amended in the primary legislation at any stage. It is not, therefore, a reason to oppose the amendment. Ironically, by removing soliciting, the Tánaiste has inserted a new soliciting offence under the loitering under public order offences. What she gives with one hand, she takes away with the other. Concentrating on that rather than focusing on the real issue, which is the broader debate that societies are having about how best we deal with this issue, is regrettable and an attempt to muddy the waters.

The theory of the Nordic model is that criminalising the purchase will reduce demand and the activity will go away. That is it in a nutshell - traffickers will be deterred because nobody will be buying. The sad fact is that there is no evidence to support that viewpoint. In fact, there is a considerable and growing body of evidence showing the opposite, namely, that it does not do as has been suggested. It is not necessary to be a rocket scientist to know that prohibition has never worked. All it does is drive the activity underground to a less visible place where transactions are likely to be negotiated in a more rushed way, compromising the health and safety of the sex worker.

Points have been raised about how a purchaser of sex can be tracked. That can only be done through the person who is selling. The issues of surveillance of and interference with sex workers will take centre stage in that regard. Many of the issues raised have not been adequately addressed. For example, what role will the Garda play? We know that many people are highly vulnerable from the point of view of immigration status. They are also highly vulnerable to further exploitation and threats. For example, 70 complaints were made to GSOC from sex workers about gardaí attempting to exploit them and demanding sexual favours. How much worse will this be when the legislation is changed?

HIV Ireland has serious concerns about the model. Apart from an elevated risk of violence against sex workers, the whole issue of HIV and sexually transmitted infections, STIs, is very worrying in light of issues relating to carrying condoms and so on.

I will not repeat the points made by other Deputies. International data-based studies have been conducted by organisations such as Amnesty International, which argue for a human rights-based approach to protect sex workers. It is worth saying that the only research carried out on this island relates to a study conducted by Queens University Belfast. The researchers talked to sex workers and their clients. Some 67% of sex workers said they would not report crimes against themselves to the PSNI. The users of sex workers - those who purchase sex - said criminalising the purchase would not deter them from the activity of doing that. The notion that it will suddenly go away if we do this does not stack up.

A previous speaker said that all sex workers were exploited. I recognise that fact. However, all work is exploitation. The idea that a sex worker does not have the ability to realise what a consensual sexual act is - albeit that he or she chooses to engage in that activity in exchange for money - is an appalling thing to say about any woman, any man, any human being. In the context of remarks made about consent, I find that absolutely incredible.

Of course, there are people who are trafficked into this country and who are coerced and made to perform sexual acts that they would not otherwise willingly perform. Those crimes are already prohibited in our laws. The new addition here relates to those instances where adults consent to a sexual activity in exchange for money. People can put whatever moralistic spin on it they like. It might not be a great choice, it might be a very limited choice or it might be a choice that the person would not, in many other circumstances, make. However, they are rational responsible adults who can say, "Well, okay, I don't like it, but it's the choice I'm going to make."

The Tánaiste should listen to the testimony of the USI students in this country who are engaged in sex work and who will tell her why they are doing it. It makes me sick to think that we patronise women in particular in this country while we are cutting grants, cutting housing benefits, attacking lone-parent payments and making it harder for women to support their children in decent employment, yet we are taking away an option making it more difficult by taking away their clients.

This legislation will not help any woman. It will not deter any man or person who wants to purchase services from a man, a woman or a transgender person. We say that based on the evidence in other countries. We have debated this matter on many occasions in the House. We all know how the votes will go. However, a review of this area is badly needed. I am sorry to say I believe we will regret passing this legislation tonight.

The Bill is very positive and I support it. However, I think sections 24 and 25 have no place in it. This is a Bill to protect vulnerable children and people with disabilities. I have difficulty with the definition of "capacity". The simplest thing to do in order to get consent across the floor would be to delete these two sections. There is absolutely no need for them. I have taken the precaution of reading the contributions to the Oireachtas Joint Committee on Justice, Defence and Equality and I realise the huge work that went into the legislation. The fundamental problem is that the Tánaiste is either inadvertently or deliberately conflating two issues - trafficking and the purchase of consensual sex.

Dr. Eilis Ward and her colleague from NUIG, where I am from myself, made a very sensible contribution. She told the committee that their research suggested that prostitution is an area of social policy that is not amenable to control through the law and may, in fact, be impossible to abolish. Their written submission expands on this:

"[T]he current policy situation [where the purchase of sex is not a criminal offence] may in fact represent the best kind of response – one in which prostitution is neither legalised nor abolished, in which the state is empowered to address trafficking through existing anti-trafficking legislation...

In the Bill the Tánaiste proposes to criminalise the purchase of sex, ostensibly to protect the sex worker. I have no doubt it will do the complete opposite. I did not come into the Chamber lightly to speak against these two sections. I realise that more than 90% of the women involved in prostitution wish to exit it. That was very clear in their contribution to the Oireachtas joint committee. Quite a substantial number of the sex workers get into the sex industry below the age of 18 years. I have no hesitation in acknowledging openly that this is a very vulnerable segment. However, the Tánaiste is approaching this in a patriarchal manner whereby the Government knows best, as opposed to actually listening to the voices of the people involved.

They have pointed out repeatedly that it will lead to more danger for them. They continue to express concerns that the criminalisation of the purchase of sexual services will greatly impact the safety and the well-being of workers. Criminalisation puts sex workers at risk of isolation and further danger as the power to set terms and conditions lies with the person facing risk of arrest. I want to deal with that, and the Minister might reflect on it as a woman. If a man is paying for the purchase of sex and he is criminalised for doing that, how dangerous does the Minister believe that makes it for the woman? She provides the service, gets her money and is then supposed to complain to the Garda. Can the Minister imagine what a vulnerable position that places her in to the person who is now being criminalised? I do not know how the Minister will get convictions because she is asking the sex worker to make the complaint and go into the court as a witness in order that the man can be criminalised.

Deputy Ruth Coppinger is right in one sense. By deleting all we are deleting, we are leaving the 1993 Act in place, which makes it an offence to solicit. However, what she is failing to point out is that the Minister's legislation is introducing a new offence of loitering under the Public Order Act.

It is introducing further punishment. It is introducing a fine for the purchaser of sex, but it is introducing a prison sentence for the sex worker. The Minister is actually introducing a fine-----

It has been deleted from the Bill. It was removed on Committee Stage.

The Minister will have an opportunity to respond.

To be clear, the Minister is introducing a fine as a way of penalty for the person who is purchasing the sex and in parts of this Bill she is introducing a prison sentence for the sex worker. I do not know if the Minister has read it, but that is what she is actually doing here in the guise of protecting the sex worker on the ground. This is a very good legislation that should be passed unanimously by the Dáil, but it cannot be passed because of these two pages regarding the criminalisation of the purchase of sex. It will do absolutely nothing to lead to better safety for the sex worker.

I will conclude by referring to what the sex workers themselves have said. They stated: "We think it unacceptable that under S. 24(b) people who are found guilty of paying for sexual services are subjected to a fine yet if the sex worker who provides the service is found guilty of working indoors with another person or of returning to a public place after being directed to leave by Gardaí they can face fines and/or a prison sentence." Where is the protection for the sex worker in that?

Many organisations, including Amnesty International, have pointed out that this model is a failed model. It is not a model to follow. In addition, other organisations have pointed out that it will lead to health and safety concerns.

I am saying to the Minister we should work on this as women. There is talk of a caucus in this House. We should work together to pass this legislation, which is excellent legislation in regard to the protection of children and all the sections the Minister has brought in. We should leave out these sections and come back to them on another day in a more reasonable and rational manner.

That brings us to the Minister who has seven minutes to respond. Nine Deputies have spoken, each for seven minutes. Seven minutes may be sufficient time for the Minister, but if she needs a few extra minutes, she make take them, with the agreement of the House. Is that agreed? Agreed.

I thank Deputies for their contributions. I want to deal with those two technical points raised and provide factual information on them. The first relates to the public loitering section mentioned by Deputy Catherine Connolly. I removed that on Committee Stage so that is no longer in the Bill.

Second, Deputy Ruth Coppinger is right. Deleting the entire section will reintroduce the offence of solicitation by those offering sexual services. That offence is being removed by paragraph (a) of the section. Deputy Clare Daly has commented on that. I am not saying anything about the motivation behind it. I am just making the point that it does that. In deleting the whole section we go back to the original legislation and so we are reintroducing the offence, which is the opposite of what Deputies actually wanted to do with regard to solicitation.

The Minister is just not deleting it. That is slightly different.

We are deleting the whole section, yes. That is what happens when we do that.

I refer Deputies who have spoken to the most recent research that has been done regarding this issue. It is well worth reading. It has been done by the European Commission and the University of Lancaster. It was published in 2016. We have had a good deal of research quoted here. I can quote a good deal of very fine research that totally supports the approach I have taken. It concluded that the evidence for the harmful effects of the sex purchase law in Sweden was extremely weak. I point out to Deputies that this European Commission report recommended just last year that member states consider criminalising the purchase of sex. What is clear is that, legal or not, prostitution is an underground activity. It carries risks for all involved.

This new offence is about targeting the demand which feeds both the trafficking and the exploitation of persons for the purposes of prostitution. It is expected that, in time, this will reduce the numbers of young women and young men in prostitution which will result in an overall reduction in levels of harm. I put it to the House that that is a valid aim, and it is the very clear aim of this legislation.

It is interesting to look again at the very detailed study from just last year where it references the impact in Sweden of the legislation and the changes that have come about as a result in Sweden. It is called Study on the Gender Dimensions of Trafficking in Human Beings. The first point it makes is that 95% of these women are the victims of trafficking, mostly for the purposes of sexual exploitation. A small number are for labour exploitation. It highlights the impact of trafficking on women that is leading on to sexual exploitation. It refers to the seriousness of the very specific ways the bodies of trafficked women are abused. There is severe, brutal and long-term gender specific physical, gynaecological and mental health harm, risks to life, and trauma from trafficking for purposes of sexual exploitation. It refers to the need to take account of all of this information on trafficking and prostitution and how much of prostitution is now dependent on trafficking. We see that in Ireland as well.

The study refers to demand reduction being a strategy that is absolutely appropriate. Somebody here said that demand reduction does not have anything to do with the issue. Of course, it does. It is a strategy to prevent trafficking by reducing the economic attraction of the institutions into which people may be coerced by traffickers.

Another point it makes about the introduction of this legislation in Sweden is the normative effect it has had on male behaviour. That is well worth thinking about. We have had a good deal of discussion here about sex workers and the rights of sex workers and I recognise the issues around danger. I have spoken about increased supports to Ruhama, for example, and other services. I take the broader economic point that we do not want to see women being forced into prostitution. It refers to the normative effect of the legislation on male behaviour or the threat of sanctions, how the market has decreased in Sweden, which has a smaller sex market than many other European countries and so on.

I can also quote the joint committee that looked at this and made this recommendation unanimously, and the European Parliament. I have never suggested there are not women who voluntarily engage in offering sexual services for payment, but I am convinced that the level of exploitation associated with prostitution must be tacked. To ignore that and to focus solely on the small numbers who engage voluntarily is to blindly ignore the exploitation and harm associated with prostitution.

I am very surprised at the lack of discussion by some contributors in the House about the harm of prostitution and its broader social context.

I would like to address some very particular points, if I have the time. To take Deputy Jan O'Sullivan's amendment, about which a number of Deputies have spoken, it would disapply the proceeds of crime legislation to the conduct set out. I have very serious concerns, and Deputy Jim O’Callaghan has also addressed this issue, about a specific exemption from the Proceeds of Crime Act because it could create opportunities for those who would seek to exploit such an exemption. For instance, the exemption of purchasing sexual services from criminal conduct with regard to the proceeds of crime could lead sex workers to being pressurised into holding moneys as legitimate-seeming fronts for pimps, traffickers and other organised criminal gangs. It could also make it more difficult for the Criminal Assets Bureau, CAB, to pursue proceeds of crime held by such people. For example, the CAB would be required to show a derogation from trafficking-related prostitution as distinct from non-trafficking-related prostitution. There are difficulties with going down the route of the amendment and I ask Deputy Jan O'Sullivan not to push it on this basis.

It is also the case that while the amendment would disapply the proceeds of crime legislation to money obtained by a person who offers sexual services, that money would still be the proceeds of criminal conduct for the purpose of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. To attempt to exempt the purchasing of sexual services in this respect could have potential effects on international obligations. It could have effects on the regulatory system for money laundering prevention and detection and the potential for sex workers to be used as legitimate-seeming fronts for holding money in the way I have described. The risks posed by it are too great and I cannot accept the amendment on this basis.

We have had a very extensive discussion on this legislation. When we discuss later amendments, I have built in various reviews because I absolutely take the point we need to review the legislation. We are joining many other countries which have moved in this direction and they have all thought about it, looked at it carefully and examined at the research. They include Sweden, Norway, Iceland, Canada, Northern Ireland and, in April last year, France. I accept there are different views on this, which are legitimately held, and there are different approaches but this is the approach I recommend at this point in time based on good evidence and certainly on built-in reviews, as have been requested by Deputies. I have looked at the research and the experience of states that have addressed prostitution in a different way. The goal of these provisions is primarily to target the trafficking and sexual exploitation of persons through prostitution. The Council of Europe and the European Parliament have recognised the effectiveness of the criminalisation of the purchase of sexual services as a tool in the fight against human trafficking.

On a point of information, the Minister stated the section on the increased offence of loitering was removed on Committee Stage. It is in the Bill as amended on Committee Stage. It is section 25(c).

That is just the penalty that applies to the person purchasing the sex and it is related to the 1993 Act. It has been removed for the person-----

Does that not relate to the person who does not move on?

The Minister can deal with it in her response.

Perhaps the Minister might clarify this, but it is my reading that it is "A person who without lawful authority or reasonable excuse fails to comply with a direction" under section 7A(1) as inserted in the 1993 Act in section 25. As section 7A(1) refers to a person who pays, gives, offers or promises to pay, my reading is that it only relates to the purchaser of sex but perhaps the Minister can clarify that. It references back to section 7A(1), which makes it very clear that it is not with regard to the sex worker herself or himself.

I take on board what the Minister said on amendment No. 11. Will the Minister comment on amendments Nos. 14 to 16, inclusive, which try to give some protection to sex workers who work with another sex worker for their own safety? I understand fully we are speaking about a very small number of individuals when we speak about people who give their consent. While the legislation is primarily directed at victims of trafficking and exploitation and targets the pimps and organised criminals who exploit and traffic those individuals, we also have to recognise that a small number of individuals who are involved in sex work give their consent and are not trafficked, coerced, harassed or exploited. Amendments Nos. 14 to 16, inclusive, try to recognise this small group of people do exist and try to give them some protection from the legislation proposed. If these amendments are not acceptable to the Minister, how do we propose to give some protection to these individuals who want to work in pairs for their own safety?

I still do not accept the fact that a sex worker should be impoverished. I understood the amount specified in the Proceeds of Crime Act is €5,000 but I am subject to correction if it is €1,000. Either way, whether it is €1,000 or €5,000, if a woman is to be only left with that basic amount of assets then she will be impoverished. Surely there is some way in which the CAB could distinguish between money that a pimp was asking a prostitute to hide as opposed to the basic money she earned from her sex work. I am not concerned about whether it is €5,000 or €1,000, but I am concerned we could end up basing having the CAB seize most of the income and assets of a sex worker. I do not know whether it should be in this legislation or whether there should be a way of amending the Proceeds of Crime Acts but either way, there is a danger that we are exposing women to losing their basic assets. I am not speaking about thousands or millions that might have been earned in an illegal way. I am just talking about the woman herself and the income that would have actually come to her. If there is any way the Minister can deal with it then I ask her to look at it.

I will not comment further on the other issues. It has been made fairly clear and I can understand the way in which people have read this, but it is clear enough because it is under section 7A(1) that it deals with the purchaser as opposed to the sex worker.

I wish to discuss some of the other amendments apart from section 10. The Minister has taken on board the loitering issue, which was deleted and I absolutely agree it would have been scandalous to keep it in, but there are other measures in the Bill. Sex workers will still be penalised whereby if they arrested, their earnings can still be removed. I ask the Minister to support the amendments several of us have tabled in this regard. The Minister made the point that it could lead to people higher up the chain, such as big organised prostitution pimps, putting pressure on prostitutes, but the reality is sex workers are those who are paying. We should bring in laws to deal with the pimps and the organisers.

I note that the Minister has taken on board the much heftier penalties against those who organise prostitution. We have tabled an amendment to exclude from the definition of brothel-keeping two women working together in a brothel but not pimping. This is important because sex workers should not be subject to harassment and prostitution. It might be asked how we can go after the brothel owners in such cases but that is very simple. We introduce different laws to deal with them. We do not have to keep laws that penalise sex workers to target people higher up.

The points made by Deputy Catherine Connolly were very strong and she spoke a lot of common sense. I wish the Government would take some of them on board. Queens University, Belfast did some research that found it was a bad idea to criminalise the purchase of sex, but the Northern Ireland Executive ignored the research, despite the fact it was involved in commissioning it. Not listening to the people for whom we are supposed to legislate does not sit well with me. Just because those who choose freely to work in the industry are in the minority does not mean they are not entitled to rights. I agree with Deputy Jan O'Sullivan's amendment on money. It is common sense and money should not be taken from them in that manner. We need to be sensible. This is not something that should get bogged down in technicalities. If we are genuinely trying to help sex workers we would not penalise purchase.

Our amendment does not reintroduce the offence of soliciting. There is an offence of soliciting as it stands, and if our amendment were passed, the situation would be exactly the same tomorrow. If the Minister amended that legislation, we would happily support her. These issues should not be in this legislation. What could have been a really good Bill with really positive protective measures has been in a quagmire for years over the controversial aspect of the criminalisation of the purchase of sex.

The points the Minister made about Sweden and trafficking are not substantiated and everybody would be delighted if we could just magic away trafficking. Trafficking is already outlawed and criminal and by criminalising the purchase of consensual adult sex, Garda resources are being taken away from trafficking and the exploitation of young children. That point has been supported by the police in Sweden which states claims about a drop in the purchase of sex cannot be substantiated because the data were never collected.

The Minister mentioned France but the sex workers union, STRASS, noted a very sharp increase in the number of attacks and acts of violence since the law was changed. It says the new laws have already put the livelihoods of its members at risk, forcing them to accept more undesirable clients than previously and placing them in much more danger than before. A review is very urgently required but our measures are being proposed because what the Minister is providing for will make the situation more unsafe for sex workers. We think the section should be deleted.

I support what the Deputy said. Later on the Minister proposes a review after three years, but this is much too long. It will be more dangerous for sex workers on the ground. The Minister is conflating trafficking with sex workers. If the Government is seriously interested in stopping demand and stopping sex workers on the ground, it would have built an exit strategy into this Bill. I understand that Northern Ireland has done something like that, with a firm commitment of an exit strategy to help those who want to leave the industry, which amount to over 90%. I would be much more reassured of the Minister's bona fides if there were such a measure in the Bill.

On Deputy Jan O'Sullivan's point, the main concern I have is the exploitation of the exemption. I have very strong advice that there would be huge concerns over this and it would not be easy to disaggregate the money as she suggested. It would be fraught with difficulties and I would be very concerned about the exploitation of women in those circumstances. I am not in a position to accept the Deputy's amendment. While I cannot accept the Deputy's amendment because of a very minor technical point, I am moving an amendment that deals with what she is proposing.

The Deputy also raised questions about amendment Nos. 14 to 16, inclusive. I am very concerned that any decriminalisation of brothel-keeping would create a legal loophole ripe for exploitation by organised crime gangs involved in trafficking and exploitation of women in prostitution. Women would come under pressure to claim they were working independently when that was not the case and gardaí would be limited in the actions they could take to close brothels and disrupt the activities of pimps and criminal gangs. There is evidence from New Zealand that some women have been used by pimps to establish businesses which appear legitimate and from which the pimps profit. Creating exemptions from existing criminal law is a clear signal to those who would seek to exploit such exemptions and the opportunities it would present. I do not want to accept that. Amendments to the offences under the 1993 Act would require very wide consultation with law enforcement to understand fully and comprehend the impact of such amendments.

A number of people have spoken about whether women were more or less likely to seek help. There is no robust evidence to support this claim nor did most women seek assistance before laws like this have been passed in other jurisdictions. It can also be counter-argued that the decriminalisation of persons offering sexual services makes it possible for the police, support services and other professionals to have more open relationships with the women involved. We have shown our commitment to and support for services that work with women with our increased funding for Ruhama and the work of the anti-human trafficking unit. There has also been funding for further training courses to support women who want to exit prostitution.

10 o'clock
Amendment put:
The Dáil divided: Tá, 10; Staon, 1; Níl, 100.

  • Broughan, Thomas P.
  • Collins, Joan.
  • Connolly, Catherine.
  • Daly, Clare.
  • Healy, Seamus.
  • Kenny, Gino.
  • O'Sullivan, Maureen.
  • Ryan, Eamon.
  • Smith, Bríd.
  • Wallace, Mick.

Níl

  • Adams, Gerry.
  • Aylward, Bobby.
  • Bailey, Maria.
  • Barrett, Seán.
  • Barry, Mick.
  • Brady, John.
  • Breathnach, Declan.
  • Breen, Pat.
  • Brophy, Colm.
  • Browne, James.
  • Bruton, Richard.
  • Buckley, Pat.
  • Burke, Peter.
  • Butler, Mary.
  • Byrne, Catherine.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Casey, Pat.
  • Chambers, Jack.
  • Coppinger, Ruth.
  • Corcoran Kennedy, Marcella.
  • Coveney, Simon.
  • Creed, Michael.
  • Crowe, Seán.
  • Cullinane, David.
  • Curran, John.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deering, Pat.
  • Doherty, Pearse.
  • Doherty, Regina.
  • Donohoe, Paschal.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • Ellis, Dessie.
  • English, Damien.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Funchion, Kathleen.
  • Harris, Simon.
  • Harty, Michael.
  • Haughey, Seán.
  • Healy-Rae, Danny.
  • Healy-Rae, Michael.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kelleher, Billy.
  • Kenny, Martin.
  • Kyne, Seán.
  • Lahart, John.
  • Lawless, James.
  • MacSharry, Marc.
  • McEntee, Helen.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Madigan, Josepha.
  • Mitchell O'Connor, Mary.
  • Mitchell, Denise.
  • Moran, Kevin Boxer.
  • Murphy O'Mahony, Margaret.
  • Murphy, Catherine.
  • Murphy, Eoghan.
  • Murphy, Eugene.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • Noonan, Michael.
  • Ó Broin, Eoin.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • O'Brien, Darragh.
  • O'Brien, Jonathan.
  • O'Callaghan, Jim.
  • O'Connell, Kate.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Loughlin, Fiona.
  • O'Reilly, Louise.
  • O'Sullivan, Jan.
  • Phelan, John Paul.
  • Quinlivan, Maurice.
  • Rabbitte, Anne.
  • Ring, Michael.
  • Rock, Noel.
  • Ryan, Brendan.
  • Scanlon, Eamon.
  • Smith, Brendan.
  • Stanton, David.
  • Tóibín, Peadar.
  • Troy, Robert.
  • Varadkar, Leo.
  • Zappone, Katherine.

Staon

  • Pringle, Thomas.
Tellers: Tá, Deputies Bríd Smith and Mick Wallace; Níl, Deputies Regina Doherty and Tony McLoughlin.
Amendment declared lost.
Debate adjourned.
The Dáil adjourned at 10.20 p.m. until 12 noon on Thursday, 2 February 2017.