Vol. 186 No. 11
I move amendment No. 1:
In page 3, line 20, to delete "inserted" and substitute "as substituted".
I will not spend long on this amendment, as some of the others are more substantive. I am advised the word "inserted" should not be used and the appropriate legal term would be "as substituted". While I will not start a big row with as eminent a lawyer as the Minister, I have great faith in the people who give me advice.
Either is acceptable. If a section is inserted in lieu of another one, it is substituted. The draftsman prefers "inserted" and the Senator's colleagues in the Labour Party prefer "as substituted". I am indifferent. Rather than bringing the Bill back to the Dáil, I will stick with "inserted".
On a jocular note, I prefer "inserted". It is much clearer and thinking back to some of the other sexual Bills, if the terms are absolutely substitutable and one is the same as the other, we could have odd references about substituting instruments into various people's anatomies.
The Minister's belief in the consistency of parliamentary draftsmen is touching but it is not my experience.
Amendments Nos. 2 and 3 are related and may be discussed together by agreement.
I move amendment No. 2:
In page 4, between lines 3 and 4, to insert the following:
"(3) A defence available under the Act of 2006 shall be available in respect of an offence under this Act.".
As I think the Minister addressed this issue in his contribution on Second Stage I do not propose to pursue the amendment.
I would like to tease out the amendment because I cannot remember whether the Minister had returned or whether his replacement was dealing with the issue on his behalf. I did make the point that he spoke about mens rea and how it was such a fundamental part of the Constitution and so forth and that it was implied that it would be taken so by the courts and so on and then that we had the possibility of removing it again. It appeared to me there was a certain conflict which leaves me slightly confused. In cases where people are close in age, say, 16 years and ten months, it can be confusing. People are very different now. I am nearly 63 years old. When I was young, children were children. They looked like children. They were the size of children. By and large they behaved in a way that was regarded as appropriate for children.
However, there has been a substantial change in the 50 to 60 years since I was a child. In view of diet, for example, children are now considerably bigger. They have matured at a much earlier age. They express themselves sexually at a much younger age. It may be regrettable — I believe it is — but there is no question that young girls are being sexualised at very young ages. One has only to look at the clothing shops and the kind of merchandise that is being promoted as well as the magazines.
It is possible that a person would be at the borderline age and might well give the impression, having the appearance, behaviour, mannerisms and so on, of somebody who was of an appropriate age and was sexually experienced. In view of this there is a case that this defence should survive. In those cases it should be available for a judge to decide upon whether it is correct. Perhaps it will in some way. I understood the Minister to say that it is in force at present because of the mens rea provision but we might be getting rid of it in the referendum about children.
I was called to the Bar in 1974 and practised in most courts, including the criminal courts and I knew my criminal law at the time. It was accepted among all barristers, all solicitors and all judges that the general rule was that mens rea was required, that is, that one had to know one was committing an offence. However, there were a number of exceptions but one classic exception was in regard to under-age sex. We proceeded from 1935 to 2006 on that assumption.
On occasion some people said it was unfair as a rule but it was generally accepted orthodoxy among the lawyers and the Judiciary. There was one judgment of the Court of Criminal Appeal which stated it was fair because it spared children being cross-examined. It was not some accident or whatever, it was understood to be the law. The only reason I mention it is that was what everybody thought to be the case until relatively recently. There is the Constitution, our deep constitutional values and mens rea, but we always said this was one exception to it. That was what we all understood the law to be until last year.
This leaves us in a position where, if we want to have a zone of absolute protection, we have to change the Constitution. The argument which I think was not dealt with until we were bringing the emergency legislation through the Dáil and Seanad last year was that if one allows a genuine mistake to creep into these cases inevitably it is made an issue in very many cases as to how the victim behaved and what demeanour the victim had. Once one goes down that road, it is not so much that it is outrageous that it should be a subject for debate in a court case, it is that victims will say they do not want to be part of this and parents will say they do not want their child to be part of this. They will not wish to proceed on the basis that they are not putting their child up to have his or her sexual experience thrown at him or her, whether he was drinking at the age of 16 or whether she was wearing a mini-skirt at the age of 15. They will not go down that road and will make no complaints whatever.
Given this, the unintended consequence of allowing this to become a litigable issue in these cases is that, like the frost on a field, the complaints will disappear. The Director of Public Prosecutions warned us of this very strongly in the All-Party Committee on the Constitution as did the child psychiatrist who gave evidence. They had no doubt that once we introduced that as a legitimate defence in these cases, many parents and children would say it was not worth the candle and would not make a complaint.
That is the raw practical effect of the CC judgment. As legislators we have to ask ourselves and the people will have to ask themselves, as the ultimate legislators, whether they want to put things back to the way they were or to continue on with the system as it is since the CC judgment. I am not concerned about answering that question today but the All Party Committee on the Constitution unanimously came to the view that it wished to return to the old system. That is set out in its report. It is not an ill-considered view. The members of the committee spent months coming to this conclusion and took expert testimony on it. They said the whole effect of allowing this to come back as an issue in these cases is that there will be far fewer cases because people will be nervous of exposing their children in this kind of cross-examination.
One can imagine a young girl of 15 or 16 years of age who has false evidence of age, in the form of her sister's passport, in her pocket, and is frequenting a night club, pub or whatever and wearing lipstick, a short skirt and looking very attractive, who will be put through the mill by a senior counsel acting for a man who either did not fall for it or did not care or, alternatively, did fall for it in terms of his guilt or innocence. The phrase used by the Law Reform Commission, which is so graphic, is that she will be converted from being a witness to an exhibit in the case. The case will be, what did she look like? The other question will be, what did she look like two or three years ago when the incident happened. People would not want to proceed in such circumstances and will not subject themselves to such questioning. This is an issue.
The same would apply to young men if they were the subject of this kind of law. It is not a matter on which there is some blindingly obvious principle. On the one hand one will say genuine mistakes should be an issue in every case. On the other hand, if it is allowed in, one knows what the effect will be on the protection of children. Children will be converted from witnesses into exhibits and will be dissected in court and the case will be counterproductive. That is an issue for another day.
However, I make the point that it is not self-evident to me that the system was so bad until the CC judgment. I believe our law was better prior to that judgment than since. Child psychiatrists and the DPP came before the committee and said that was their view also. Sometimes we take our law from the Supreme Court but the people have to decide where the pendulum should come to rest. That is the issue.
While I appreciate the point made by Senator Norris and we spent much time discussing it in the committee, I fully support what the Minister has said. We are in the business of protecting children and we have to set high standards. I know it is easy to think a 15 year old child is 17 or 18. I even notice it, as I am sure we all do, when I knock on doors while canvassing.
They are voters.
I will now always assume the person who answers the door is the voter because I have been caught out too many times when I have been wrong about his or her age. It is very easy to make a mistake. That is the point. It is so easy to make a mistake. Therefore, the onus must be on the adult to ensure he or she discovers the age. If there is any doubt, the adult does not get involved.
If we water that down, we are definitely making it difficult for children and putting them at risk. The zone of absolute protection must be provided. As the Minister said, we do not want our young children to be cross-examined in court. We do not want to put them through that. We know that parents will not put their children through that and there will be fewer cases. We see this with adult women who will not go through with a court case or even report a rape because of what they must put themselves through in court proceedings. Therefore, I certainly could not support Senator Norris's amendment. Perhaps when he thinks again about it, he might reasonably accept that we must set high standards and that it is up to adults to ensure they know the age and, if there is any doubt, they do not get involved.
With the greatest respect, I do not accept that Senator Terry is the only one with high standards. I think mine are reasonably high too. I accept and sympathise with the fact that one can have horrible cases, particularly in England, where, because they were wearing mini skirts, judges held that young adult women were inviting rape and that there was contributory negligence. These kinds of appalling situations exist. However, situations arise where a young man or woman aged 16 and a half years with a history of sexual experience goes out with a mini skirt and lipstick, or whatever the male equivalent is, to a nightclub with the intention of meeting a sexual partner. They are on the borderline and meet somebody who is then automatically guilty and has no defence. This is obviously unfair. The Minister has indicated that grey areas exist.
There have been recent cases where young people have very honestly admitted that this is the situation. We should be caring and protective in so far as is necessary, but we also need to be realistic about what is happening. I will not go on because there are other amendments. I think the Minister is quite right in that we will definitely need to return to this because it is an area where, one way or another, the Minister has acknowledged that people may be unfairly convicted because of the lack of this defence. The balancing part of it is that one could have young people exposed to a brutal interrogation. This is a comment on the practice of law and the adversarial grilling that is practised.
In most circumstances where a young person is really assaulted, raped or inveigled into a situation, this is quite clear. However, a minority of cases involve Lolitas of both sexes aged 16 and a half years who are out to extend the range of their pleasurable experience and who can be quite callous about the fate that befalls their partner. I know it is unpopular and one could get into trouble. Senator O'Rourke previously indicated how one can be excoriated for raising honest points. This has also happened to me and it is a most horrible and disgusting experience. I refuse to be intimidated by the gutter press and cookery experts writing about sexual matters.
I concur fully with what the Minister has said and believe he has dealt with the matter comprehensively. I also agree with Senator Terry. In respect of Senator Norris's comments, great consideration and weight was given to the issue of mens rea at the meetings of the Oireachtas joint committee with responsibility for child protection. The committee heard from legal people who made the point from a legal perspective. Having weighed the matter up, there are other issues one must consider relating to child protection. A very compelling piece of information that was put before us was that since the “CC” case, the number of cases being pursued had dropped significantly. It was felt that if people were able to use this defence, which obviously would not be used only by the person who genuinely made a mistake but also by most defendants to extricate themselves from the charges, it would probably lead to a negligible number of cases being taken. This would be a serious miscarriage of justice.
The second thing the committee did, which might be of interest to Senator Norris and is related to the weight given to mens rea, was to recommend that honest mistake should be linked with a new age of consent of 16 to tie it all together so it is clear. We were effectively saying that anybody who had sex with a person under 16 has an absolute responsibility to satisfy themselves as to the young person’s age. This related to peer sex, while other issues related to people in authority. The Minister made a very sensible suggestion to the committee that an age differential might be introduced as part of that definition, but that is another argument.
May I make a quick point?
Senator Norris has already spoken a few times.
I commend the committee and the Minister on the suggestion about the age of consent of 16. This was a forward-looking, realistic and courageous thing to do. I despise the Opposition for the ignorant, disgusting and hypocritical way it behaved. I wish to serve notice on it that if it tries these kinds of prurient and hypocritical tactics again, it will get the same dose it got when it tried the same tactics when the law decriminalising homosexuality was introduced by a decent Minister from the Fianna Fáil Party, Máire Geoghegan-Quinn.
Time is limited.
For electoral advantage, the Opposition tried to introduce a discriminatory age of consent. Let us have none of this election politics about this serious issue.
Amendment No. 4 is in the name of Senators Tuffy, Ryan, O'Meara, Derek McDowell and McCarthy.
I move amendment No. 4:
In page 5, between lines 32 and 33, to insert the following subsection:
"(3) The Schedule to the Act of 2006 is amended, in the row relating to the Criminal Law (Sexual Offences) Act 1993, in the third column of that row, by the deletion of "Sections 3 and 4" and the substitution therefor of "Section 3".".
The Acting Chairman need only read out my name for the next amendments. I am quite happy to take the place of the other four Senators.
We know that. If he could, he would take their seats as well.
Senator Ryan without interruption, please.
Not at all. This amendment concerns the offence of gross indecency, which is a matter of controversy between my party and the Minister. The amendment attempts to restore an offence which has been deleted either by accident or design. That is the nub of the issue.
This issue is of some significance. The effect of accepting this amendment would be that the offence of gross indecency would be restored in respect of a young male over the age of 15. Effectively, a young gay man aged 16 who engaged in some act which was not an offence under the 2006 Act, for example, heavy petting — I do not want to get too detailed in this regard — would commit an offence. An 18 year old gay man who had a heavy petting session with a 16 year old gay boy would commit an offence, whereas an 18 year old heterosexual committing more or less the same actions with a girl would not. If I were to accept this amendment, it would introduce a new discrimination against males. We tried to make the legislation gender neutral and say that if a girl did something, a boy should be able to do something and we should not look at the nature of the act by reference to gender.
Some people would remark on how awful it would be for a 40 or 50 year old man to grope a 16 year old boy. Many people would be turned off on hearing that but, equally, people would consider it wrong for a 50 year old man to grope a 16 year old girl. I do not intend putting back the clock and saying that a 16 year old boy is in a different position to a 16 year old girl. We should have a law which is gender neutral on ages of consent. If I were to accept this amendment, I would be bringing back an offence of gross indecency with a young man in circumstances where a girl was perfectly entitled to consent to exactly the same behaviour.
I move amendment No. 5:
In page 5, paragraph (a), between lines 35 and 36, to insert the following:
"(1A) (a) A person commits an offence if—
(i) he or she intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and
(ii) doing it will involve the commission of an offence under the Criminal Law (Sexual Offences) Act 2006.
(b) A person guilty of an offence under this subsection is liable—
(i) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding €5000 or both,
(ii) on conviction on indictment, to imprisonment for a term not exceeding 14 years.".
I again apologise to the Minister. I am doing my best in somewhat constrained circumstances. A valid point is raised in the amendment about the offence of grooming, per se. The consequences of grooming are being dealt with here, but the offence of grooming is not. The amendment seeks to establish that if somebody arranges or facilitates something that he intends to do, or believes another person will do, in any part of the world, that will involve the commission of an offence. That is what constitutes grooming. It is not the follow-up or meeting; it is creating the conditions out of which the meeting arises. That is what our amendment endeavours to deal with in this case.
I will listen carefully to what the Minister says on this matter. I understand it is similar to legislation in a nearby jurisdiction. That is not to say it is any reason to believe it is correct because they are developing peculiar laws over there at present. Nevertheless, the issue is whether grooming is covered without it being an offence to arrange, as distinct from to carry out, an action.
The particular section with which we are dealing was tendered as an amendment by the Labour Party in the Dáil yesterday. It is modelled on section 14 of the UK Sexual Offences Act of 2003. Fine Gael's Private Members' Bill incorporated into Irish law section 15 of that Act, but section 14 of the UK Act is the one with which we are dealing.
I have to reject it for a number of reasons which are technical in nature. The wording, "if he or she intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world", constitutes an extra territorial offence, while the wording "and doing it will involve the commission of an offence under the Criminal Law (Sexual Offences) Act 2006", constitutes a domestic offence. The amendment does not hang together. One commits an offence under the 2006 Act only if one does something in Ireland. This is one occasion when the very skilled Labour Party draftsman got it slightly wrong.
From what I hear, he is better than the Government's draftsman.
Nobody is perfect in all of this but I do not think he is correct on this one. In regard to the Child Trafficking and Pornography Act and the Sex Offenders Act, there is provision for extra-territorial offences to be committed. A person in Ireland who aids and abets the commission of an offence under those Acts commits an offence in this country. I cannot accept the amendment because of the way this is phrased. It is not drafted in a technically correct way. It is clear that subsection (1A)(a)(i) deals with extra territorial activity and subsection (1A)(a)(ii) requires it to be an offence under domestic law. The same Act cannot in my view be comprehended by both paragraphs. The existing law of aiding and abetting the commission of a child sex offence abroad is sufficient to cover that particular issue. I cannot accept the amendment.
How does the Minister believe the offence of grooming, as distinct from the consequences of grooming, is illegal? That is what I do not understand. We do not have any dispute with all the other issues. The offence of grooming is the process of making contact maliciously with the intent of doing something else.
This was a point that came up in the Dail yesterday. The Fine Gael Private Members' Bill was a very narrow Bill which was composed of two elements. It was obvious that the UK legislation was examined and one section was chosen as having potential for use in Ireland. Section 14, on which this amendment is based, is problematic. I wish to produce a proper grooming offence which is well thought out and properly thought through. One of the ingredients which will probably be necessary to deal with this issue is to tie down the grooming offence to something which is provable in court.
The fact that an elderly man befriends somebody in a chatroom and sends them chocolates is not of itself a criminal offence, but if one can prove it was for a sexual purpose, then one is into different territory altogether. The real difficulty is to define grooming in a way which allows a perfectly innocent act of generosity on the one hand and, on the other, which prohibits something which is part of the preparation of a child for sexual exploitation. It is a complex issue and requires a tricky drafting balance.
I am dealing with a mess myself so I am not in a position to criticise draftsmen in other countries too much. With the greatest respect to the UK draftsman, I am uncomfortable with a number of the provisions of the UK legislation. We can do a better job ourselves if we take some time. The section in my Department dealing with this issue is working on an Irish version of a sexual grooming offence. It will have to be sufficiently definite to pass constitutional muster. It would also have to be sufficiently broad to be effective. It is a most tricky drafting process. I am not happy with this amendment. Fine Gael was correct to avoid section 14 of the UK legislation and to concentrate on section 15. We have to come back to this issue on a more comprehensive basis and introduce a grooming offence.
Senator Jim Walsh inquired earlier about why two incidents of communication are required. This was done in Britain. The reason it was done is because this issue is on a vague cusp of two different patterns of behaviour and the intention is to make it necessary for the prosecution to show a pattern of behaviour before somebody could be convicted of grooming, that it was not just a case of one conversation or one chatroom event. The idea of grooming is that over a period, one puts a great deal of effort into subverting a child's self-defence mechanisms so that he or she will trust one. The pattern idea is implicit in this approach.
It was agreed on the Order of Business this morning to conclude the Bill at 1.30 p.m. I commend the Minister for his generosity in saying he did not want to truncate the debate and that he would be available to stay on for longer. I propose an amendment to the Order of Business, to extend the debate until 1.45 p.m., which is 15 minutes more.
Is it agreed to amend the Order of Business and to extend the debate by 15 minutes? Agreed.
At the risk of being beaten up by Labour Party lawyers, the Minister has a point in his argument about the amendment as it is drafted. I will deal with the consequences of this, I am well able for it. The Minister is conceding that grooming is not, per se, illegal in this country. That is a matter of concern. In party political nonsense I could beat the Minister over the head with this but it ought to be a matter of concern. The Internet is facilitating this new area and we are slow to deal with it. We should avoid being five years behind technology.
Last July the Government approved the scheme of a Bill that involves a general offence of grooming. The Department is working on it, in conjunction with the Office of the Attorney General. I had hoped it would be published by now but other matters have held it back. I commend Fine Gael on not taking all of the UK legislation and using it in its Private Members' Bill because some of it is problematic. The party used discriminatory judgment to include some aspects and omit others.
Senator Ryan has a point in that grooming is not totally criminalised by the provisions of the Fine Gael Private Members' Bill that I have included. I cannot provide the House with a satisfactory formula and, given that we are legislating in a hurry, I do not wish to slap down any old thing and then find the Bill challenged in the Supreme Court under Article 26 because I have gone too far. This must be a workable law and the State must be able to prosecute people under it. Fine Gael avoided the mishmash that would follow from copying UK legislation into an Irish Bill. This could cause immense difficulty. I ask people to give us a few months to get this right rather than attempting something dubious.
We should not think that grooming is exclusively confined to the Internet. Grooming over a period of years was part of the process of clerical abuse and that was not reliant on technical advances such as the Internet.
I move amendment No. 6:
In page 5, lines 38 to 40, to delete all words from and including ", having" in line 38 down to and including "occasions" in line 40.
The Minister made a valid case in respect of a pattern of behaviour. The Labour Party was concerned about the person having to meet the child more than once.
I move amendment No. 7:
In page 6, line 31, before "inviting" to insert the following:
"in the case of a child who is more than 5 years younger than the person concerned,".
The wording of section 6(b)(e), concerning the definition of sexual exploitation, is peculiar. The Minister stated that no court would entertain a charge but the Bill concerns the consequences of grooming. The section refers to intentionally meeting or travelling for the purpose of doing anything that constitutes sexual exploitation. The definition of sexual exploitation refers to a child, anyone under 17. Section 6(b)(e) refers to “inviting, inducing or coercing the child to participate in or observe any activity of a sexual or indecent nature”. This does not refer to anything illegal. We all wish that people would delay all forms of sexual activity until they are old enough to manage it, in which case none of us would ever start. None of us is immune to the pressures of it, unless there are saintly people on the other side of the House. From what I know of human beings, the most extraordinary mistakes are made in pursuit of sexual passion. I am concerned that teenage activities that are a part of growing up are being unintentionally defined as sexual exploitation. I support educating young people to make them aware of the joys and pitfalls of sexual activity and the potential human damage. The definition in the Bill includes inviting the child to participate in any activity of a sexual nature. Do we not mean any activity of a sexual or indecent nature that is illegal? I will not go into graphic detail of the intermediate stages between what is illegal and what is legal. The Catholic Church, and many of its adherents, spent 20 years of my childhood defining the phrase “How far can you go?”. Many American Catholic journals advised teenagers about this.
Senator Ryan is bringing back memories.
The Bill suggests any activity of a sexual nature is a form of exploitation. I will not engage in autobiography because it could be a banned book. It could be a case similar to the The Tailor and Ansty, with a large chunk of the Official Report being deleted because we do not want the nation to be corrupted.
Senator Ryan has identified a weak clause. I invoked the reference in The Tailor and Ansty to taking the nephew out to watch the bull covering the cow. The section refers to “inviting, inducing or coercing the child to participate in or observe any activity of a sexual or indecent nature”. This could involve inviting a child of 16 years and 11 months to a film. Many films have explicit sexual material. This section makes such a situation an offence, which is daft.
The Long Title of the Child Trafficking and Pornography Act states: "AN ACT TO PROHIBIT TRAFFICKING IN, OR THE USE OF, CHILDREN FOR THE PURPOSES OF THEIR SEXUAL EXPLOITATION AND THE PRODUCTION, DISSEMINATION, HANDLING OR POSSESSION OF CHILD PORNOGRAPHY, AND TO PROVIDE FOR RELATED MATTERS." The overall purpose of the Act, as stated in the Long Title, must be considered when one examines the detail. It is to protect children from sexual exploitation. For a child to see a bull covering a cow or a stallion covering a mare does not constitute sexual exploitation. The Director of Public Prosecutions would not get away with that and no reasonable court would interpret the law in that way. We are dealing with a dirty old man, having communicated with the child, who gets the child to come to his house and shows the child blue movies or allows the child to see two friends engage in sexual intercourse on a bed. Sexual in this context would undoubtedly mean human sexual activity and not budgerigars mating in a cage or the like. That allowed, I do not know how one would criminalise a dirty old man who communicates with a child on a number of occasions on the Internet, gets that child to come to a place, for example, a hotel bedroom, and has the child witness a couple having intercourse or some act of sexual fetishism.
This is the difficulty of the grooming offence. One knows one wishes to criminalise that activity and that it is outrageous for a dirty old man to do that to a child. However, to say, as was put to me last night, that a babysitter who kissed his girlfriend in the presence of a child, having gone to the house to look after the child, would commit this offence is fanciful. I was thinking overnight about how to differentiate between the two scenarios I have outlined. There is nothing illegal about a couple having sex in a hotel bedroom and there is nothing theoretically illegal about a child seeing it. However, there is something very wrong about somebody arranging for that to happen. That is the problem we are dealing with.
I cannot decide not to go down that road because it is difficult. Fine Gael could have decided not to do anything about it in its Private Members' Bill since there is nothing wrong with it in principle, but there is something deeply wrong with it. I ask the House to take the view that a court looking at the legislation would see it as a Bill to prevent the sexual exploitation of children. It is not exploitative of a child to bring that child to a farmyard when a stallion is covering a mare; there is nothing exploitative about a child seeing a babysitter give his girlfriend a kiss. These are extreme examples which have no basis in reason or common sense. No court would entertain a case of that type and the Director of Public Prosecutions would not prosecute such a case. However, we must criminalise a dirty old man who, for the purpose of grooming a child, inveigles that child to go to a hotel room to witness a couple having intercourse.
With regard to the campaign against AIDS among gay males, the most effective method of inhibiting the spread of the disease has involved the use of fairly explicit material. Will the Minister reassure me that this will be protected? It is an important health issue. However, I agree with the Minister's example of dirty old men showing blue movies to children to get them excited and have their way with them. That is not acceptable and should be criminalised.
Does Senator Ryan wish to withdraw the amendment?
Not yet, although it will be withdrawn due to time.
We can take five minutes more.
Nobody argues with what the Minister says. However, I am thinking of the irate father who comes home to find his 16 and a half year old daughter, slightly dishevelled, with her 17 and a half year old boyfriend. The father is angry and knows the local Garda sergeant. I believe it would be possible to prosecute the 17 and a half year old for this if it were the couple's second or third date. We must be careful. I do not envisage a huge number of the type of people Senator O'Rourke mentioned earlier——
They did come to me.
——demanding that 17 year olds be prosecuted, but we ought to be clear about what the legislation means. I believe it means that teenagers, where one is over age and the other is under age or where both are under age, could be prosecuted for things which, to put it bluntly, most of us did.
I suggest that we continue for another five minutes and then conclude.
Is it agreed that we conclude at 1.50 p.m.? Agreed.
If we wish to stop a dirty old man bringing a child to a room and putting on a blue movie or bringing a child to a room to show a couple engaged in sexual intercourse, we must have a law to do so. It is not easy. I genuinely believe that no court would consider that an offence of sexual exploitation was committed in the circumstances described by Senator Ryan. For this section 2A offence to be committed, one intentionally meets the child for the purpose of doing anything that would constitute sexual exploitation. I believe a court would take the view that this legislation is in place to stop sexual exploitation of children, not to prevent a grope by two teenagers. That is not what it is about. I do not know how one differentiates between the two but the age difference is not the crucial item.
No.
It is deeper than that. Perhaps in the fullness of time we will return with a better definition but the Fine Gael Party's Private Members' Bill, which is based on the United Kingdom legislation, is good legislation. I am not aware that a better formulation is available. I rely on the common sense of the Judiciary and the Director of Public Prosecutions not to conjure up entirely fanciful sexual exploitation prosecutions.
Does the Senator wish to withdraw the amendment?
I will when I am ready. I will not hold up the House. I know what the Minister is trying to do but I also know that it means something different. I was a Member of this House when the first pro-life amendment was passed. We were going to defend this nation against abortion. However, that section of the Constitution ultimately resulted in the legalisation of abortion. One cannot have such faith in how the courts will interpret something.
Judges are sensible and if somebody was charged with this, they would probably send them home with a slap on the hand. However, the Minister cannot convincingly say that situations in which teenagers could be found are not illegal under this section. That is what bothers me. It is not the biggest issue in the world, but to a degree, it reflects our age and the peculiar way we have of looking at teenagers.
Does the Senator wish to withdraw the amendment?
The Chair is very keen for me to withdraw it. Is there some reason for that?
I am keen to get the legislation dealt with and another Member has indicated that he wishes to speak on the section.
I had a query on Second Stage with regard to a citizen who has not been in Ireland for 20 or 30 years and is found to have committed a crime under this legislation in another part of the world. I am not sure how he could be prosecuted. Perhaps the Minister will put my mind at rest on this.
This section applies to a citizen of Ireland or a person who is ordinarily resident in Ireland. If we are to assert extra-territorial jurisdiction, under the Constitution we are obliged to so in accordance with ordinary principles of international law. One of them is that there must be some link to the State. A citizen owes a duty of loyalty to the State under Article 9 of the Constitution. A person who is ordinarily resident in this country owes a different set of duties. That is a tangible link.
We cannot have a law in Ireland that allows us to prosecute an Australian for something they did in Thailand because it comes to our attention from a newspaper report. Normally, the citizen would have to be arrested in Ireland. There could be an extradition of an Irish citizen in certain circumstances where they were unlikely to be prosecuted abroad, but that is most unlikely. The truth is that this is most likely to arise in a sex tourism situation. The Attorney General's advice is that there must be a legal connection between the offence and this State before we can assume extra-territorial jurisdiction. That means the perpetrator in cases of sex tourism must have some linkage to the State. Ordinary residence or citizenship is sufficient. We cannot think of some other basis on which Ireland would purport to exercise extra territorial jurisdiction.
While I fight with the Minister on everything and disagree with him about most matters, he is one of the more forthcoming members of the Government. It is worthwhile to engage with him on Committee Stage. I believe the Bill will present problems in criminalising matters that are not intended to be. The sooner proper codified sexual offences legislation is introduced the better because we are finding ourselves in an enormous mess.
I commend the Minister on the expeditious manner in which he dealt with this legislation after it was brought to his attention. Senator Norris and others have commented on the magnanimous manner in which he gave due credit to the leader of the Labour Party and the Fine Gael Party for the initiatives they had taken.
Legislation on grooming is a recommendation of the child protection committee and I would like it classed as a serious offence. The approach being taken is prudent because care must be exercised in this area. I have encountered teachers and youth coaches who are nearly afraid to pat a child on the head or put an arm around a child reassuringly because we have gone to the other extreme. While nolle me tangere may operate within various religious orders, it would be a pity if it became a practice in general society. It is an area that needs to be teased out with great sensitivity to ensure we are not creating a society that we do not aspire to.
I commend the Minister on the manner in which he is amenable to amendments from the other side of the House.
I wish to be associated with the remarks thanking the Minister and his officials in dealing with this matter, particularly in taking on board suggestions from the Fine Gael and Labour parties. That is the way I like to do business and would like to see more of it done this way. Keeping in mind the impending general election, the Minister took the matters on board in a good-spirited way. This matter concerns the sexual exploitation of children. We will depend on the common sense of the Judiciary in how it interprets the law, no matter how watertight it is. It is dealing with a small percentage of people who exploit children and we will depend on the Judiciary to interpret the intention of the Oireachtas.
I thank the Minister for taking a direct and personal interest in the matter and ensuring he was available for the debate. I also thank him for dealing with it in his usual vigorous and informative manner. I am glad he has indicated that fuller sexual offences legislation will be introduced. Whatever the make-up of the next Government, it will be charged with that responsibility. I am glad there is a commitment that this matter will be properly addressed.
I found this morning's business a refreshing treatment of the Seanad.
I appreciate the Minister gave his full attention to the legislation and thank him and his officials for their work on it. I congratulate the Minister for attending to this matter as quickly as he did. It is a good example of how the Seanad works in how the legislation was teased out.
I thank the House for the spirit in which it took today's debate. I also thank all parties in both Houses in their approach to this issue. No party or Member is more or less concerned than any other on protecting our children. This is not a perfect set of circumstances and I wish I did not have to come before the Houses to introduce this legislation. However, I believe we have done some useful work.
I thank my officials for whom the past 108 hours have been a nightmare and for their hard work. I thank the Parliamentary Counsel and the Attorney General for their assistance.
All laws must be interpreted in a manner which is consistent with the Constitution. The Constitution empowers and directs the Judiciary to interpret our law in accordance with the rules of common sense. There is no mandate in the Constitution for trying people against common sense. There is no mandate in the Constitution for putting people on trial for events which are manifestly devoid of criminal content. A constitutional construction must always be put on legislation. I am in no doubt the DPP and the courts will never interpret this legislation in a way that flew in the face of common sense or would be unfair to ordinary individuals. This is about protecting children from sexual exploitation. I have no doubt that the Long Title, the Constitution and common sense will direct the prosecuting authorities and the Judiciary to interpret this legislation in a manner which is consistent with the Constitution and not in a manner which would be an abuse of our Constitution.
