Criminal Law (Sexual Offences) Bill 2015: Committee Stage

Section 1 agreed to.
SECTION 2

Amendments Nos. 1, 2, 5 to 22, inclusive, 25, 46 and 47 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 1:

In page 6, line 14, to delete “child pornography” and substitute “child sexual abuse material”.

As set out during Second Stage in October, tackling child sexual abuse material on the Internet has been a consistent priority for me throughout my time in the Seanad. I firmly believe the proliferation of child sexual abuse material on the Internet is a stain on our moral conscience. A child sexual abuse image is a crime scene, a digital record of sexual abuse being perpetrated against a real child in the real world. I reiterate my disappointment that the decision was not taken to introduce a filtering system against online child sexual abuse material or to do so by statutory instrument. We continue to rely on the threat of this as a means to coerce ISPs into self-regulation and the Garda to develop a response.

The term "child pornography", as defined under section 2 of the Child Trafficking and Pornography Act 1998, is the same term used in this Bill. We should take the opportunity to replace the term "child pornography" with the more apt and reflective descriptor "child sexual abuse material". I have tabled amendments to this effect. I appreciate that the word pornography which first appeared in the English dictionary in the mid-19th century and the use of pornography have until relatively recently been associated with salaciousness and taboo and contrary to the morals of respectable society. Pornography was secretive, shameful and unacceptable. Against this backdrop, the term "child pornography" makes much more sense but attitudes towards pornography have changed significantly over the years. Pornographic material can now be purchased openly in newsagents and petrol stations throughout the country, where it is stored on the top shelves. "Pornography" is no longer a dirty word and its use is no longer an underground practice. As such, I really do not believe the seriousness and repugnant nature of depictions of children being raped, of incest or children being sadistically assaulted or tortured for the sexual gratification of paedophiles is adequately captured by the term "child pornography". Furthermore, I believe the term is misleading regarding the child's role or agency in his or her exploitation. The majority of law enforcement agencies working in this area, most notably Interpol and Europol, agree. According to Interpol, the world's largest policing organisation:

A sexual image of a child is “abuse” or “exploitation” and should never be described as “pornography”.

Pornography is a term used for adults engaging in consensual sexual acts distributed (mostly) legally to the general public for their sexual pleasure. Child abuse images are not. They involve children who cannot and would not consent and who are victims of a crime.

The child abuse images are documented evidence of a crime in progress – a child being sexually abused.

The Minister of State will be aware that I tabled an amendment similar to amendment No. 1 to the Children First Bill. The Minister for Children and Youth Affairs, Deputy James Reilly, agreed that the term "child pornography" is outdated and fails to reflect the full horror of sexual abuse involved. He stopped short of accepting my amendment on the basis that "child pornography" is still the language used in international instruments by which we are bound. He referred in particular to EU Directive 2011/93/EU which is to combat sexual abuse and sexual exploitation of children and child pornography and the Lanzarote convention of the Council of Europe. I am not sure, however, whether it is strictly necessary as a matter of law to use the exact same language as used in the convention and elsewhere provided we give robust effect to the substance of the measure.

One of the methods of interpreting international treaties is the teleological or purposive approach which involves looking to the purpose of the international instrument and the broad intent motivating the enactment of the measure rather than its strict text. Notably, Article 41 of the Vienna Convention on the Law of Treaties states, "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose".