Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Tuesday, 14 Feb 2017

Vol. 250 No. 1

Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 118, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister of State may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For the convenience of Senators, I have arranged for the printing and circulation of the amendments. The Minister of State will deal separately with the subject matter of each related group of amendments. Senators may, as part of the discussion on the group dealing with the subject matter of their amendments, discuss their amendments in so far as they are relevant to the amendments made by the Dáil. They will have the opportunity of formally moving and dealing more fully with the amendments after consideration of those groupings has been completed. I have also circulated the proposed groupings in the House. A Senator may contribute once on each grouping. I remind Senators that the only matter that may be discussed are the amendments made by the Dáil.

Question proposed: "That the Bill be received for final consideration."

This group of amendments relates to the offences in the Bill addressing the sexual exploitation of children.

Amendment No. 1 to section 10 of the Bill provides for the repeal of sections 3(2)(a) and 3(2)(b) of the Child Trafficking and Pornography Act 1998. Section 3(2)(a) of the 1998 Act contains an offence of travelling to meet a child for the purposes of the sexual exploitation of that child having met or communicated with that child on two or more previous occasions. This offence will be replaced and strengthened by section 7 of the Criminal Law (Sexual Offences) Bill 2015. Under that section, making arrangements to meet a child for the purpose of sexual exploitation of that child will also be an offence. Also under section 7, a single prior communication with the child will be sufficient to trigger an offence. Section 3(2)(b) provides for a similar offence of travelling to meet a child, however this offence applies to Irish citizens or persons habitually resident in the State who, while outside the State, travel to meet a child for the purpose described. This offence will now be covered under the Sexual Offences (Jurisdiction) Act 1996 by way of amendment to that Act in section 40 of this Bill.

Amendment No. 2 to section 11 of the Bill provides for offences relating to child prostitution and child pornography by way of inserting a new section, section 4(a), into the Child Trafficking and Pornography Act 1998. The penalty for an offence under this section is a fine or a term of imprisonment of up to 14 years. The amendment will allow both a fine and a period of imprisonment to be imposed. It is common in crimes which involve financial motivation, such as those contained in section 11, that a financial penalty may also be imposed. This is also in line with the penalty structures for the existing offences contained under sections 4, 5 and 6 of the 1998 Act.

Amendments Nos. 65 to 68, inclusive, add offences created under the Bill to the Schedules attached to existing legislation for the purposes of the provisions of those Acts. Legislation is amended as follows.

Amendment No. 65 adds offences to the Schedule of the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012. Schedule 1 of that Act lists offences against children in relation to which it would be an offence under that Act to withhold information. The amendments to section 1 propose adding a number of the new offences created under the Bill. Schedule 2 of the 2012 Act lists offences against vulnerable persons in relation to which it would be an offence under that Act to withhold information. The offence under section 21 of engaging in a sexual act with a protected person and the offence under section 22 by persons in authority are also to be added to the Schedule.

Amendment No. 66 adds references to some of the offences created by the Bill to the Schedule to the Taxi Regulation Act 2013. A conviction for an offence listed in part 1 of the Schedule gives rise to mandatory life disqualification from holding a taxi licence. A conviction for an offence listed in Part 2 of the Schedule gives rise to mandatory disqualification for a specified period. The effect of these amendments will be that a person convicted of the offence of engaging in a sexual act with a protected person under section 21 of the Bill will be disqualified for life from holding a taxi licence and a person convicted of certain other offences created by the Bill will be disqualified for a certain period from holding a taxi licence.

Amendment No. 67 makes various changes to the Children First Act 2015 on foot of the other provisions of the Bill. That Act imposes certain obligations on those working with children to protect them from harm, which includes sexual abuse. The intention of these amendments is to bring some of the child-related offences created by the Bill within the definition of sexual abuse. This is done by adding the offences to Schedule 3 of that Act.

Amendment No. 68 makes changes to the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016. That Act limits the effect of certain criminal convictions by allowing them to be effectively spent after a specified period. Some sexual offences listed in Part 2 of Schedule 1 are excluded from the Act so that a conviction for one of those offences will not be deemed spent at a future time. Paragraph (b) of this amendment will add some of the offences created by the Bill to Part 2 of Schedule 1.

I thank the Minister of State for coming here today and presenting this long-awaited Bill to the House. Fianna Fáil supports the passage of this Bill and it did so through the Dáil and Seanad previously. We are pleased that it has been strengthened by the inclusion of a definition of consent. The Bill criminalises the purchase of sexual services rather than the sale of them. We in Fianna Fáil are very happy to see this inclusion. The vulnerable women and children trafficked into this country for sexual exploitation deserve our protection. Decriminalisation will facilitate their access to vital health and support services. This is very welcome. Due to the changing nature of prostitution in Ireland we need legislation such as this to protect these vulnerable women and children. Criminalisation of the purchase of sexual services will do that.

Prostitution is not conducted in the way it used to be. It is now conducted over the Internet and the phone and not on street corners. In 1999, Sweden was the first country to criminalise the purchase of sex. This legislation was framed in terms of prostitution being incompatible with contemporary values and it being a serious social problem. It was also seen as a serious barrier to gender equality. A study in 2010 showed that since its introduction street prostitution was halved. In 1995, the estimated total of women involved in prostitution was approximately 3,000, with 650 of those engaging in street prostitution. In 2008, however, there were 350 advertised prostitutes on the Internet and 300 on the street, so clearly it has had a dramatic impact on numbers.

This Bill also strengthens laws to combat child pornography and prevent the sexual grooming of children on the Internet. It also amends provisions on incest and indecent exposure. This aspect has been welcomed by the ISPCC, and the special rapporteur on child protection, Dr. Geoffrey Shannon, has described this Bill as the most important legislation on child protection since the foundation of the State. That is very significant.

It is long overdue, and it will close the gap created by the outdated legislation that is currently in place that enables abusers to prey on vulnerable children on the Internet. We in Fianna Fáil were concerned that there was no inclusion of a definition of consent-----

Senator, forgive me for interrupting but we are on group 1. There are 13 groups to go through.

I was just giving an overview of the Bill.

You will get an opportunity in other groupings to come in again, no doubt.

I appreciate that we are on group 1, but I am a bit mystified as to why the Minister of State at the Department of Housing, Planning, Community and Local Government has been sent in here by the Tánaiste and Minister for Justice and Equality to deal with this matter. The Minister of State in his opening remarks ventured far and wide beyond group 1 and spoke about other things. Of course, we are now in the slightly odd position of being told that we can only talk about group 1.

I have given Senator Clifford-Lee some latitude, as I am equally prepared to give you.

The Minister of State took latitude, nobody interfered with it and he dealt with the broad extent of the Bill. Now suddenly the guillotine is coming down on people who want to respond to what he has said.

There is no guillotine coming down.

This Bill is an unusual one in that is has gone from this House to the other House. It was considered by the previous Seanad and is now coming back from the present Dáil. As Senator Wilson pointed out on the previous occasion, 80% of the Members of this House were not Members of the previous Seanad which considered this Bill, and although some of them were Members of the Dáil, the curious irony is that in their capacity as Members of Dáil Éireann, they did not get to debate this Bill either because it was only initiated after they had lost their seats.

We start from the proposition that we are considering this legislation in circumstances where 80% of the people in this House have never had an opportunity to discuss the principles that lie behind the Bill or the principles that lie behind any particular provision in the Bill until today. The Leas-Chathaoirleach read out the Standing Order which indicated that the First, Second and Third Stages of this Bill are deemed to have been passed already, which denies any Member, and I am speaking about myself, among others, who has a view about the principle of the Bill at large the chance to make a contribution in those circumstances. That is what has happened.

I am not going to waste much of the House's time on this issue, but I do want to make the point that the Constitution says that a Bill that is initiated in this House and amended in the other House is deemed to have been initiated in that House. It is very strange indeed that due to three-card trickery in terms of the Standing Orders, which were clearly designed to deal with the situation where we in this House sent a Bill to the other House and got it back again, that we would not go over the whole territory again. That was never intended, in my view at any rate, to cover a situation where 80% of people in this House have not had the opportunity to contribute on the principles involved in a Bill.

I have to protest in the strongest possible way that all my efforts to deal with this matter or to adjourn it in order that we could put in place a different arrangement to deal with this Bill in these unique circumstances have been batted down because it is apparently essential that this Bill be dealt with this afternoon or this evening. I have to protest strongly about that. I will not put the matter any further, but I will deal with each of the provisions as they come up.

Regarding the child pornography provisions and the provisions we are dealing with regarding sexual exploitation of children and the penalties for child pornography, I agree with the amendments that have been made. We have to have a robust law. It is important to emphasise that we need, especially where people are going to visit children for the purposes of sexually exploiting them, to have laws in place which will be workable and to have inferences of law from certain activities which allow those kinds of offences to be prosecuted to completion. There is nothing as evil or as wrong as the sexual exploitation of children, and there is nothing as demanding of our protection as children who are at the wrong end of efforts to groom them by sexual predators, particularly now that we live in an age where this can all be done in the anonymity of their own bedroom over the Internet by people pretending to be children.

I want to make it clear, in case it is stated later that I am taking a slightly oppositionist position in respect of some provisions of this Bill, that I strongly support the amendments in group 1 that have been made in Dáil Éireann and I strongly support this aspect of the Bill. I deeply regret that I have not been given the opportunity to make a Second Stage speech on the legislation in its entirety and I protest in the strongest possible way that that is the case, but in the interests of good order, I am content to have had my say and to have put on the record why I will be taking a different attitude at later stages of this legislation. It should not be debated in this way. This House is a serious House. Its function is to revise legislation. The Members of this House's function is to look at legislation that comes from the Dáil and consider each and every part of that carefully.

It is also the duty of Members of this House to consider what former Members of the Seanad have passed and to see if it stands up to scrutiny. We are part of the constitutional arrangement whereby the two Houses of the Oireachtas have functions in scrutinising legislation. In theory, a majority of the Members of this Seanad could petition the President on this matter. In theory and in practice, Members of this House could ask the President to refer this Bill to the Supreme Court, and I will be coming back to that later in relation to the prostitution sections. I want to put on the record at the outset of the debate, because I notice that a number of people are present in the Public Gallery who have motives and records in promoting law reform, what I object to in the way in which this Bill has been dealt with in order that nobody can misinterpret my motives when I speak later on other parts of this legislation.

I can assure the Senator that the Chair will not stifle him.

I will be very brief in respect of group 1. This legislation is long overdue, but I commend that there has been some strengthening of it, especially in the area of child pornography within group 1 and also in terms of the strengthening of the offence of withholding information in offences against children and vulnerable persons. That is positive. We have had a very deep problem and have a very deep legacy in Ireland of the covering up of child abuse and child exploitation in all its forms.

Anything that will strengthen that, send that mandate and include, as I believe is appropriate, the area of pornography and so on, is a strengthening of the Bill. I am happy to see those amendments and to support them. I will not speak to the general but will come back in at later stages on that.

Aontaímid leis an méid atá ráite cheana féin faoin bpíosa reachtaíochta thar a bheith suntasach seo. Tá an Bille tábhachtach do dhaoine ar bhoinn áirithe difriúla. Léiríonn an díospóireacht seo an méid spéise agus díograise atá ag daoine sa chineál ábhair atá á phlé againn inniu. Like Senator Clifford-Lee, I was hoping to try to respond in the general to the Minister of State's contribution. I will reserve some of my comments as we progress along the line.

Like other previous speakers, I think this legislation is very welcome. It is strong and very considered. While I appreciate and respect Senator McDowell's contribution and view on this, I do not think any of us, whether in these Houses or indeed as broader society, are approaching this issue green. All of us have had a sincere and deep discussion over many years right across Irish society about many of the issues reflected in this legislation we are debating today. That is why it is a positive that this Bill seeks to make the changes it does. While I respect and acknowledge that Senator McDowell is coming from a place of sincere honesty with his position, I disagree with him. Now is the time to make the decision on these issues contained therein. In many ways, we are in danger of not just being behind the people outside of these Houses, but furthering our distance behind them unless we progress appropriately and accordingly, if this legislation is supported and subsequently passed.

I hope it will, having engaged with representatives from the various relevant sectors and on foot of internal discussions at our Ard-Fheiseanna. I am sure many other parties have had the discussions around these issues internally. We have been coming to a change in position while reflecting on the human experience and stories and on the practical legal need for some of the changes in this legislation. It is right that we match the pace of society and meet the needs and requirements of people outside of these Houses. At the end of the day for me, while it is fairly comprehensive legislation, this is fundamentally an issue of human rights. This is about protections for people right across the board. This Bill is coming from a place that seeks to address those issues and protect those who are most vulnerable in our society at any number of different levels. That is a positive thing for me. That is a positive thing for my party. That is something that we want to see progressed and moved forward sooner rather than later. While I did have a bit of a contribution to make, I will reflect on what I want to say as the various groups pass through.

Of course. I thank the Senator and call Senator Ivana Bacik.

I welcome the Minister of State to the House and express the strong support of the Labour group for this Bill and for the need to secure its passage through the Seanad. I welcome the many groups represented here tonight and the many guests I have here in the Gallery. Many have worked with me and with a whole range of people for many years to secure the passage of legislation like this.

I echo the words of colleagues from across the floor that it is a Bill about human rights and that it seeks to combat and challenge exploitation, particularly of children as we see in group 1 amendments, relating to sexual exploitation of children and provisions on child pornography, and I very much welcome the strengthening of the provisions represented by the amendments. It is also a Bill more generally about sexual exploitation. In particular Part 4, which we will be dealing with in a later group, deals with the new approach, the reform of prostitution law, which I strongly support. Indeed, Senator Mac Lochlainn, who was formerly a member of the Joint Committee on Justice, Defence and Equality along with me in the last Dáil and Seanad visited Stockholm with me nearly four years ago in 2012. We met and heard from many people on the front line of operating the Swedish law to which Senator Clifford-Lee has referred. We saw at first hand how that law operates. Our report for the Joint Committee on Justice, Defence and Equality, published in June 2013, recommended unanimously on a cross-party basis that this reform of the law to criminalise only the purchaser and decriminalise the seller of sexual services would be adopted here in Ireland. I will say more about that when we come to it. I know people in the Gallery from the Immigrant Council of Ireland, from Ruhama, from the Rape Crisis Centre, and from the Turn Off the Red Light coalition have worked for eight years or more on this campaign to see this Bill pass.

Turning to Senator McDowell's points about the timing of the debate, it is unfortunate that colleagues who are concerned to learn more about the Bill and so on did not attend the briefing that I hosted with the Immigrant Council of Ireland two weeks ago on 31 January. It was a briefing about the Bill which some colleagues attended and which sought to put before people some of the principles that are in the Bill, in particular in Part 4 which deals with prostitution. It is important to note that we have quite a lengthy period of time allocated for this debate at Report Stage back from the Dáil. It is much longer than we would normally see on Report amendments back and indeed twice as long as we would normally have on a Second Stage. As one of those who was in the Seanad on the last occasion when we debated this Bill, it was a very lengthy debate, as anyone who was present will recall, and we rehearsed and teased out all the many arguments, particularly on Part 4 of the Bill but indeed about other parts of the Bill too. It had a very full debate subsequently in the Dáil. It was an accident of timing. We had all hoped it would pass under the last Government. The Government fell before it could conclude in the Dáil. It had started in the Seanad, and Senator McDowell and all of us would appreciate justice Bills in particular and all Bills starting in the Seanad, and because of that sequencing we see it coming back to us now.

There is a huge imperative to see it finally passed into law. It will make very important changes to criminal justice procedures, particularly for victims and complainants in sex offences, child complainants and so on. There are some very important provisions. Others have quoted the point made by the Ombudsman for Children as to how important this will be in the practice of trying child sex abuse cases. There is an urgency to get this through. I know we have had an e-mail from the Immigrant Council of Ireland and a range of other groups calling for its swift passage. It is fair that we would have the debate and give time tonight for those who have not previously been unable to contribute in the Chamber to do so but I think there is plenty of time to do that. The arguments have been very well rehearsed over many years. We have seen a great deal of public debate in the media in the public domain. We have had many briefings, most recently just two weeks ago, where many of us who were very supportive of the Bill and indeed deeply involved in it over the years had been trying to ensure that everybody was well informed on it. I simply make those observations and thank the Leas-Chathaoirleach for his indulgence.

I thank the Senator and call the Minister of State to respond to group 1.

I certainly did not try to take any latitude and will try to keep to the groups the Tánaiste put here. I did not pick the grouping but I tried to stick to it as well as I could.

I understand Members' frustration with the timing of the Bill but as has been referred to, this is a discussion and debate that has been going on for a long time. It started in the committee in 2012. We have had four or five years of debate and discussion on it at this stage. There is broad support for it. The Tánaiste at all times since she took over this brief has tried to be present for the debate and even on Committee Stage went to great lengths and changes to get back in time to be able to take all the Committee Stage of this Bill as well. It did not work out for her today. It was facilitated in order that the Tánaiste would be present but things have changed. I think Senator McDowell understands, having been a Tánaiste before, what that is about and that she would do her best to be here. There is time through these amendments and through the next four or five hours to have all the discussion that is wanted.

I am aware that there has been a lot of debate about this outside the Houses. Many people take the chance to have this discussion in the media. That is fine and that is the place for it as well. We have had debate on this. Many groups that are present have had a chance to come in to the committee over a two-year period because Deputy Stanton, with all the members there, did a lot of good work on this issue, which was taken very seriously. It was probably one of the most serious debates that we had on Committee Stage, although it was a committee in the previous Dáil, and rightly so, because it is a very serious and important issue for us to move on and follow other countries around Europe that are making changes here as well.

I am sorry that the procedures prevent people from having their say when they want it, but it is important that we recognise the importance of this House. We have had debates here about Seanad reform. This Bill started here. It was a previous Seanad but Seanaid and Dáileanna change. That is life. It started here and it is back here to finish. That is something that should be welcomed because we keep talking about the importance of this House and we are here to debate the amendments that were made in the Dáil. There are about 70 and we will go through most of them. Many are just technical but there are a few key ones which I acknowledge are of concern to Members. There should be enough time. I am willing, if the Chair allows, to have all the discussion that is wanted.

I certainly have not asked for any procedures to be put in place to prevent such a discussion.

I ask the Minister of State to deal with the second group of amendments, relating to sexual acts with a protected or relevant person.

Amendment No. 3 amends section 20 of the Bill, which provides a definition of "sexual act". The meaning of "sexual intercourse" has been added to the existing definition in the Bill. It replicates the definition of "sexual act" under the Criminal Law (Sexual Offences) Act 2006.

Amendments Nos. 61 and 62 have been made to allow the offences contained in sections 21 and 22 of the Bill, which are offences involving protected persons and offences by people in authority, to be included in the Schedule to the Bail Act 1997, by way of the amendment to that Act contained in section 48 of the Bill as it was passed by the Seanad. Under the 1997 Act, bail may be refused to a person charged with a serious offence when such a refusal is considered necessary to prevent the commission of a serious offence carrying a maximum sentence of at least five years. Serious offences for bail purposes are specified in the Schedule to the 1997 Act.

I agree with the idea that the term used to refer to someone in the protected category of people should be renamed "protected person". I think it is a good idea. I also agree that such people should be protected in a workable way.

A legal adviser to political people who are not here in the House - this person is not a legal adviser of my own - has asked me to draw the attention of the House to section 21(3) of the Bill, which provides that: "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 protected person". In a criminal trial, it generally falls to the prosecution to prove the person was a protected person, but the significance of this section is that it will require the accused person to show whether he or she: "knew or was reckless as to whether the person against whom the offence is alleged to have been committed was a protected person".

The point that was raised with me - this would not have occurred to me directly - is that the effect of this section of the Bill will be to require the accused person in this kind of case to testify. If the prosecution proves that somebody was a protected person, the accused will be guilty, in effect, unless he or she gets into the witness box and on oath tenders evidence establishing his or her state of knowledge. That might be a worthwhile and sensible rule to introduce, but it is also a far-reaching one. When a psychologist or a psychiatrist says that a party to sexual activity is a protected person, as defined in section 21(7), that will be the end of the case unless the accused person rebuts the presumption that he or she knew about the state of the other party to that activity. It seems to me that a presumption of this kind is a fairly serious one to bring about in our law. I think it was introduced by the Dáil. It could have far-reaching effects in trials. I would like it to be properly explained and defended. For that reason, I would like to propose that the Bill be recommitted in respect of this group of amendments.

Recommittal has to be proposed before we enter into the debate. We have already entered into the debate. Therefore, it is too late.

On that basis, could I say everything I have to say in relation to the matter?

It seems to me that the introduction of a presumption in criminal law of guilty knowledge against an accused person is a very far-reaching and most unusual provision of criminal law. The mental capacity of the person alleged to be a protected person is a matter to be proven one way or the other by the prosecution. As I read it - maybe others will disagree with me in this regard - there is an onus on the prosecution to establish that the alleged party to the sexual activity is a protected person and to introduce evidence which will ultimately place that issue beyond reasonable doubt.

It is worth looking at the presumption that underpins section 21(3) of the Bill. It means that in a case in which the prosecution has proven that sexual activity took place, the accused person - a man or a woman - took part in that sexual activity, and that the other party to that activity was a protected person, the crucial question of whether the accused person "knew or was reckless as to" the mental status of the person he or she was with is presumed against him or her in a most unusual way. The effect of the presumption against the accused person relates to the ingredient in section 21(1), which defines the offence when it provides that "a person who engages in a sexual act [this is defined in section 20] with a protected person knowing that that person is a protected person or being reckless as to whether that person is a protected person shall be guilty of an offence." That is the essence of the crime.

My reading of the meaning of this section is that the Dáil, following on from the requirement to prove that the accused person and the protected person engaged in a sexual act, as defined in this Bill, and that one party to that act was a protected person who "by reason of a mental or intellectual disability or a mental illness" was incapable of "understanding the nature, or the reasonably foreseeable consequences, of that act", of "evaluating relevant information for the purposes of deciding whether or not to engage in that act" or of "communicating his or her consent to that act by speech, sign language or otherwise", has introduced a presumption that forces the accused person to give evidence to prove his or her own innocence. That is a very far-reaching change in our criminal law. In effect, it is a presumption against the accused person in respect of one of the essential ingredients in the offence created by section 21(1).

I have doubts about the propriety of creating such a presumption to the extent provided for in the Dáil. I know there are difficulties in these kinds of cases, but it seems to me that this provision will affect an accused person who wants to raise an issue about a person with a slight intellectual disability - I do not like to use the word "handicapped" - after it comes to light that sexual activity took place between those two people. We are talking about people with various degrees of disability who engage in sexual activity, perhaps to the displeasure of their guardians.

The real issue is that the accused person will be presumed to have been reckless or to have known that that person's disability was such as to bring them over the line. I wonder about the propriety of that.

To clarify, we may have given incorrect information. The Clerk advised me but he has now re-advised me, that Senator McDowell may move to recommit the section before it is finished. My sincere apologies for that. He is free to move to recommit.

I move: "That the Bill be recommitted in respect of section 21."

I would prefer to have a conversation on this rather than simply firing one salvo myself.

On Report Stage we cannot go over and back. Can the Senator clarify which section he wishes to move for recommittal?

Section 21 of the Bill, as amended.

Is that in the Bill as passed by the Dáil?

This was done in the Seanad.

I believe Senator McDowell is under a misapprehension that section 21(3) was amended in the Dáil. It was not. I have the Bill as passed by the Seanad in front of me. We had a full debate on this section and section 21(3) was unamended.

The House is discussing the Bill as passed by the Dáil at the moment.

I would just like to provide some clarity. This is an issue on which we took a lot of legal advice from the Attorney General. We are very clear on the legal advice. It did change in the Seanad. The Minister addressed it and spoke to the Dáil on it, as well as on Committee Stage, but the change was made here. I say this as a point of clarity if it helps with the debate.

The proposed section 21(3) states that: "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 protected person." This is what is known as a reversal of evidential burden, where it is for the defendant to show, by raising a reasonable doubt, that they did not so know, or were not reckless as to the capacity of the person against whom the offence was committed to consent to the act. The closer the relationship between the two parties, such as whether the defendant is a person in a position of trust or authority, the more onerous the shifting of that burden. Clearly there would also be a requirement for the prosecution to show that the act took place.

In respect of how the defendant would prove that he or she did not have the requisite knowledge, or was reckless to the extent necessary to commit the offence, the defendant need only raise a reasonable doubt as to his or her knowledge or recklessness. We got strong, clear legal advice from the Attorney General on that. The Tánaiste referred to this on Committee Stage as well. She also referred to this approach being in line with the UN Convention on the Rights of Persons with Disabilities, which requires respect and which many Deputies have mentioned. She did raise it on Committee Stage but it happened here as well. We have very sound legal advice from the Attorney General on this.

I did want to say a little more on that.

I will let Senator Bacik back in momentarily. Could Senator McDowell please clarify which section he wished to move for recommittal? It must be a section from the Bill as passed by the Dáil.

The Bill as amended by the Dáil? I just want to be absolutely clear.

As passed by the Dáil or as amended by the Dáil?

I am dealing with section 21 on page 17.

That section was unchanged in the Dáil. That is the point.

We are on Report Stage so he is still entitled to move for recommittal, whether or not it was amended. That question is for agreement by the House. Does the House agree to move for recommittal?

Can I just say one more point in respect of the point that the Senator has raised? The Minister has answered him. The presumption is simply of an evidential burden. It certainly does not require that the accused would give evidence. Absolutely not. I remind the Senator that we have many other clear, instances of this. Probably the best known is section 4(2) of the Criminal Justice Act 1964 and the mens rea for murder.

Before Senator Bacik deals with this, can we decide whether we are in committee or whether we are on Report Stage?

We are on Committee Stage. It is recommitted.

It is not yet. It has to be agreed by the House.

I am arguing-----

Apologies, could the Senator give me the floor for a moment? There is a proposal that the Bill be recommitted in respect of section 21, page 17. Is that agreed?

No. I am objecting to the proposal to recommit. That is the point. I am explaining why I am objecting.

The Senator may speak briefly on her objection.

I am objecting to the proposal to recommit, and I believe the Minister has also objected, on the basis that this was something that we had already debated in the Seanad and which was not changed any further in the Dáil. We have other examples of this sort of presumption, which does not operate in such a way as to require an accused person to give evidence. Far from it. They simply must raise a reasonable doubt. I was about to say that section 4(2) of the Criminal Justice Act 1964 creates just that sort of presumption when it states that it is presumed in murder cases that the accused "intended the natural and probable consequences of his conduct; but this presumption may be rebutted". We have clear case law from DPP v. Hull, and from other cases, that that is a presumption in aid of the prosecution that may be rebutted by the defendant merely raising a doubt as to the existence of the presumption. It does not reverse the legal burden of proof; nor does it require the defendant to give evidence orally in their own case. I strongly oppose any proposal to recommit.

Are there any other Senators wishing to oppose? Otherwise I need to put the question.

Put the question.

The question is, "That the Bill be recommitted in respect of section 21." Is that agreed?

Can I indicate, before I divide the House, that the Leader said I would be in a position to move recommittals? All I am trying to do is-----

I cannot speak for the Leader but I would imagine that he was talking about amendments on Report Stage.

-----to discuss a section that I have never had an opportunity to discuss before in any shape or form.

It is a matter for the House.

I was elected to this House by-----

-----a considerable number of people, more than some Deputies got in terms of first preferences and in those circumstances, I think I am entitled to have a say on this.

I am allowing the Senator to put that question. That is the best that I can do under the rules.

Given the fact that I am not aware of what the Leader did or did not say, perhaps we could adjourn for a few minutes so that I can clarify with him.

Question put and declared lost.

In order not to waste the time of the House I did not press it to a vote but if there are any further motions of mine to recommit there will be a vote on them. I wish to make that clear now.

That is noted, Senator. We will continue discussion on group 2 on Report Stage if any other Senators wish to speak.

I agree with the premise from which the Senator is coming in the sense-----

The question has been decided, Senator.

I will make a quick point if that is okay. In terms of natural justice, and the fact that the Senator has a mandate and did not have an opportunity to discuss this-----

-----in the previous Senate, I agree with the principle from which the Senator is coming on it.

I thank the Senator.

Tá mé ag iarraidh cúpla focal a rá maidir le cúpla de na rudaí a phléigh muid cheanna. In respect of some of the things that have been discussed or touched upon, the 1983 Act has long been recognised as inadequate when it comes to persons with disabilities. We particularly note the broad welcome from organisations that work with people with disabilities for the repeal of section 5 and 6(2) of the 1983 Act. Their view has always been that the legislation needed to be changed as it was inadequate from a protective perspective.

The broad and vague nature of the 1983 Act has led to reports of people with intellectual disabilities having their rights restricted as adults as they were unable to have intimate relationships. Supporters and advocates felt that the effects too often left people feeling compelled to prevent relationships developing between persons who had intellectual disabilities. Clearly the State must have a more modern and rights-affirming approach to individuals' capacity to consent and must recognise that an intellectual disability does not automatically mean that an individual cannot participate in an adult relationship. We have in the past pointed to the UN Convention on the Rights of Persons with Disabilities, UNCRPD, and the need to eliminate discrimination when it comes to relationships, marriage and parenthood. The 1983 Act was deficient in not including or adhering to the UNCRPD requirement. While there must be protection for vulnerable persons against exploitation, there must not be undue influence on the right to have a relationship. Unfortunately, the proposed Bill still presents people with disabilities as having a questionable capacity to consent, unlike the general presumption of capacity afforded to those without intellectual disabilities.

For there to be no discrimination, we must have a rebuttal presumption of capacity to consent for all persons. Otherwise, the new law will continue to discriminate. It would have been appropriate to insert a new section to provide for presumed consent.

I also object to some of the terminology used in the Bill such as "protected person". Will the Minister refer to the recommendations made by the Law Reform Commission in its report on sexual offences and the capacity to consent? Will he instead use the term "relevant person"? In the Assisted Decision-Making (Capacity) Act 2015 "relevant person" is the terminology used. I hope the Minister agrees on the merit of being consistent in the approach taken.

While I began by welcoming the nature of the Bill, no Bill is without its flaws in some regards. The ones to which I have referred should be considered.

I welcome this group of amendments. The thrust of the Bill is to protect vulnerable people, whether they are individuals who have been trafficked, children or people with intellectual or learning disabilities. Many advocacy groups and Fianna Fáil have welcomed this legislation which will provide further protection and for a rebuttal presumption.

I spoke briefly about the last group of amendments, but since it has been referred to by many other Members, I want to raise the question of the timing and conduct of this debate. We have had a long journey with this legislation which has been debated in the public sphere for five years, with hundreds of submissions being made on it. I recognise the work of Ellen O'Malley-Dunlop, Noeline Blackwell, the Children's Rights Alliance and Sex Workers Alliance Ireland. Groups on either side of the argument have robustly and regularly debated this issue in the public space and committees. It is not fully accurate when it is said 80% of the Members of this House have not had a chance to debate it. Many Members debated it on Committee Stage in the previous Dáil and-or in the previous Seanad. As one of the Members who have not had the chance to debate it previously in a legislative capacity, I am happy and keen to see it move through. I recognise there is urgency, as well as an imperative. We are in a situation where our legislation, as it stands, is not fit for purpose or safe. We are looking at issues such as those discussed in the first group of amendments around the protection of children where there is deep inadequacy. I do not think we can stand over the fact that the Bill may be delayed further, even beyond another Government term.

I have some concerns about amendments Nos. 3, 61 and 62, but I will not propose amendments to them at this stage. This is necessary legislation, but it is not perfect. We will have it as a new baseline on which we can build and improve. The use of the word "buggery" is of concern, a concern which others have expressed. It is language from which perhaps we should have moved on. In other sections there is reference to carnal knowledge. These are questions of terminology and in the future we may need to fine-tune the language used. It is the substance that is important and needs to be moved forward.

Amendments Nos. 61 and 62 refer to protected persons. I note this is language about which there is some concern. Inclusion Ireland has raised the question of whether this is the most appropriate term to use and whether it is compatible with the UN Convention on the Rights of Persons with Disabilities.

I am supporting the passage of the Bill, but there will be a disability (miscellaneous provisions) Bill. It will be my intention at that point to look at the phrasing used in terms of the protected person. The Bill can be further amended and improved. It will represent a safer and better baseline for us from which to work.

There are some concerns about the language used. It is in line with the UN Convention on the Rights of Persons with Disabilities. It involves 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 include the required provision. This is in line with the UN convention. It is not an automatic assumption by the State that the persons in question do not have capacity. It is for those who do not have capacity and to protect them.

Before we move to group 3, Seanad Report Stage amendment No. 1 in the names of Senators Colette Kelleher and Lynn Ruane is related to this group. The Senators will be called on to move the amendment when all of the groups of amendments made by the Dáil have been disposed of. However, if the Senators consider it necessary to refer to their amendment in the discussion of this group of amendments, I will permit it.

The amendments in group 4 are intended to fully ensure the necessary protection from exploitation by persons responsible for the welfare, care and supervision of certain persons with disabilities. They create an offence of engaging in a sexual act with a relevant person. For this purpose, a relevant person is a person with a disability which is of such a nature or degree as to severely restrict the ability of the person to guard against serious exploitation. This is a functional test but not related to capacity to consent at a particular time or to a particular act. The aim of the offence is to ensure those persons with responsibility for the care and well-being of another do not take advantage of that person's ability to protect himself or herself against serious exploitation. The intention is to avoid a breach of trust by those responsible for another person's care and welfare. The relationship between a person in a position of authority and a person under his or her care may be such as to be open to exploitation. This provision does not undermine the capacity of a person who may be defined as a relevant person from consenting to a sexual act. It simply places a responsibility on those in authority to maintain an appropriate relationship.

I move: "That the Bill be recommitted in respect of section 22."

This effort to choke and prevent me from even asking some questions about a section about which I have never had the opportunity to speak is very undemocratic. The Leader told me he would not oppose recommital. I am not here to waste time on this issue. I want to ask some questions. Senator Ivana Bacik should know that I want to compare and contrast the presumption about which we spoke in discussing the last group of amendments and the provisions of section 22(5) which introduce a civil standard of proof regarding the state of knowledge of the person in authority. If it is not allowed, I will obstruct the rest of the debate. Morally, I am entitled to ask questions about legislation passing through the House. I regard it as deeply offensive that any Member would oppose my right to ask questions of a Minister. I am not wasting time. However, I resent deeply the notion that I am to be denied the right to ask a question about the meaning of sections and how they will operate.

On a point of order, is the Senator entitled to ask questions without recommitting the Bill?

The Senator is allowed one contribution on each group of amendments. Those are the rules of the House.

I am moving that the section be recommitted so that I can ask some questions about it. If Senator Bacik-----

-----wants to behave like this, there will be other days.

I object to being singled out like that.

It was a general opposition to the Senator's motion.

Excuse me. I am the Chair and I wish to speak. As Chair, I have no option. Senator McDowell has put a proposal to the House and I am obliged to seek the decision of the House. I am completely tied.

Question put:
The Seanad divided: Tá, 24; Níl, 15.

  • Boyhan, Victor.
  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway, Martin.
  • Feighan, Frank.
  • Higgins, Alice-Mary.
  • Hopkins, Maura.
  • Lawless, Billy.
  • McDowell, Michael.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Mullen, Rónán.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Donnell, Marie-Louise.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Céidigh, Pádraig.
  • Reilly, James.
  • Richmond, Neale.
  • Ruane, Lynn.


  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Clifford-Lee, Lorraine.
  • Daly, Paul.
  • Devine, Máire.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Landy, Denis.
  • Leyden, Terry.
  • Mac Lochlainn, Pádraig.
  • Murnane O'Connor, Jennifer.
  • Ó Clochartaigh, Trevor.
  • Ó Donnghaile, Niall.
Tellers: Tá, Senators Victor Boyhan and Michael McDowell; Níl, Senators Ivana Bacik and Kevin Humphreys..
Question declared carried.
Bill recommitted in respect of section 22.
Question proposed: "That section 22 stand part of the Bill."

We are now effectively having a committee-style debate on section 22. I call on the Minister of State to introduce section 22 if he wants to speak.

I call Senator McDowell.

I thank the Fine Gael Members for allowing me to ask some questions on this section. In respect of this evening's proceedings, I only now realise that a guillotine was proposed on the Order of Business. I was about half a minute late and did not hear that being proposed.

On a point of information, a Leas-Chathaoirligh------

Hold on a second. I was going to apologise.

There is no such thing as a point of information. Senator McDowell has the floor.

I did not hear that happening and that may explain why my amendment to adjourn at 7 p.m. sounded a bit strange given that the Leader had sought permission to have a guillotine at 9 p.m.

On a point of information, there is no guillotine. We will conclude at 9 p.m. It was agreed that we would finish at 9 p.m.

That was already agreed on the Order of Business. Senator McDowell, without interruption, on section 22.

The discussion will conclude at 9 p.m., but the question is whether all sections will be deemed to be passed at 9 p.m.

There are four hours of debate.

I am sorry but that is just a guillotine.

I do not care how the Leader describes it, it is a guillotine.

That is the order of the day. It was agreed on the Order of Business.

That is altering the fact.

In fairness, the Senator is pretty good at alternative facts-----

Order. Senator McDowell, without interruption.

-----going back to the referendum campaign.

Senator Buttimer, please.

If all matters are dealt with in the form of a single question at 9 p.m., that is my definition of a guillotine. I am not going to get involved in semantics.

I assure Senator Bacik that I am genuinely inquisitive as to why it is the case that in section 22 a relevant person is defined as somebody who has:

(a) a mental or intellectual disability, or

(b) a mental illness,

which is of such a nature or degree as to severely restrict the ability to guard himself or herself against serious exploitation.

In that case, a person in authority who engages in sexual activity with such a person is given an entirely different defence from the one we were dealing with in the previous instance. Subsection (3) states:

It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she was reasonably mistaken that, at the time of the alleged commission of the offence, the person against whom the offence is alleged to have been committed was not a relevant person.

Subsection (4) states:

It shall not be a defence to proceedings for an offence under this section for the defendant to prove that the person against whom the offence is alleged to have been committed consented to the sexual action of which the offence consisted.

Subsection (5) states:

The standard of proof required to prove that the defendant was reasonably mistaken that the person against whom the offence is alleged to have been committed was not a relevant person shall be that applicable to civil proceedings.

That is a different way of approaching the same issue as to how it is going to be proven in the case-----

For good reason.

In this instance, what is and what is not a defence is stated. The fact that consent was apparently given is not acceptable in cases where the relevant person is defined as being an individual who has a mental or intellectual disability or a mental illness which is of such a nature as to severely restrict the ability of the person to guard himself or herself against sexual exploitation. That is a different definition from that relating to "protected person". I find it curious that in respect of one group of people, namely, "protected persons" in section 21, that we introduce a different category of persons with disabilities and call them "relevant persons" and put a different standard into law in respect of individuals with mental or intellectual disabilities or mental illnesses that are of such nature or degree as to severely restrict the ability of those persons to guard themselves against serious exploitation.

I wonder about this matter. Let us take an example. Does a person who is suffering from bipolar disorder they fall within this category? Is somebody who is suffering from bipolar disorder and who is on a high and behaving egregiously, flamboyantly or in an uncharacteristic way simultaneously suffering from a mental illness that is of such a nature or degree as to severely restrict the ability of that person to guard himself or herself against serious exploitation? Arguably, somebody with bipolar disorder would fit into that category. A person in authority in respect of such an individual faces a different test completely from that contained in section 21 regarding the protected person category. I wonder why we are approaching people with mental disabilities or illnesses - temporary or permanent - in a different way in two sections, which are effectively about the same thing, namely, protecting people who are suffering from disabilities or mental illness from exploitative sexual activity by either persons in authority or any other person? The curious thing is that, as I see it, the defences outlined in section 22 are more generous to a person in authority than to an ordinary man or woman under the protected person section.

Without wasting any more time, why do we have two different standards in respect of a general rule for people who are "protected persons" and persons who are defined as "relative persons" under the authority of a person in authority? Why is it that the defence which is open to a person in authority seems to be more generous and easier to establish than is the case in respect of any other individual who has sexual activity with a person who is suffering from a mental illness or a disability?

The nub of the matter relates to the difference in the relationship. That is what we are trying to reflect. Section 21 reverses the burden of proof on to the defendant and, therefore, a reasonable doubt is sufficient to remove that burden. Under that section, it is only necessary to establish a reasonable doubt. It is a different relationship between a person who is in authority on foot of a contract for services and who may exploit a vulnerable person in their charge. They have responsibility over the person. They are in authority. It is a completely different relationship. The position outlined in section 22 is in line with the Law Reform Commission report on sexual offences and capacity to consent with regard to offences of persons in authority.

By way of background - I did not refer to this in my opening address because we had a vote in the meantime - section 22 was introduced by way of Government amendment brought forward on Committee Stage in the Dáil to fully ensure the necessary protection from exploitation by persons with responsibility - that is the difference - for the welfare, care and supervision of certain persons with disabilities. An offence is being introduced that will create an offence of engaging in sexual act with a relevant person. For this purpose, a "relevant person" is an individual who has a disability which is of such nature or degree as to severely restrict the ability of the person to guard against serious exploitation. Again, it is a fundamental test but it is not related - as is the case with section 21 - to capacity to consent at a particular time or to a particular act. The aim of the offence is to ensure that those persons with responsibility for the care and well-being of another do not take advantage of that person's ability to protect himself or herself against serious exploitation. The intention is to provide a breach of trust by those responsible for another person's care and welfare and who has contracted responsibility for the person. The relationship between a person in a position of authority and an individual under his or her care may be such as to be open to exploitation. This provision does not undermine the capacity of a person who may be defined as a "relevant person" from consenting to a sexual act. It simply places a responsibility on those in authority to maintain an appropriate relationship. The defence replicates the provisions in relation to sexual acts with persons under 17 years, as per the Sexual Offences Act 2006, which the Senator - who was then a Minister - introduced and which is being amended by this Bill.

I fully take the Minister of State's point that this particular offence under section 22 is concerned with people in authority. One might consider that a person in authority is under a higher duty when it comes to protecting an individual suffering from mental disability and under his or her authority from engaging in sexual activity with him or her. The point I am making, is that it is the exact opposite.

Members spoke earlier about section 21 of the Bill as passed by Seanad Éireann on a sexual act with a protected person. It states "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 protected person." However, in section 22, it is provided: "It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she was reasonably mistaken that, at the time of the alleged commission of the offence, the person against whom the offence is alleged to have been committed was not a relevant person." It is provided also: "The standard of proof required to prove that the defendant was reasonably mistaken that the person against whom the offence is alleged to have been committed was not a relevant person shall be that applicable to civil proceedings." The difference is that Senator Bacik referred to the case law regarding murder and the mens rea required in murder cases. It is the case that in murder cases one is presumed to intend the probable and natural consequences of one's actions. That is a presumption against one in a murder case. However, the Supreme Court has held that if there is a reasonable doubt as to whether one intended the probable and natural consequences of one's act, one is entitled to be acquitted. Therefore, the kind of presumption Senator Bacik mentioned earlier is not the same as what we are dealing with in this case because-----

I never said it was. I was speaking about a different section.

I know. The Senator was dealing with a different section. However, in one case, namely, murder, if at the end of the prosecution case the jury has a reasonable doubt, not withstanding the presumption present, one is entitled to be acquitted. Here we are dealing with a different standard of proof, not reasonable doubt; here we are dealing with balance of probabilities. One must establish that it is more probable than not. This is the standard of proof that must be applied. In other words, one cannot consider murder presumptions as a precedent in this area, as Senator Bacik argued earlier. One cannot-----

I did not. My argument is being misrepresented by Senator McDowell. I never entered the debate on section 22. My point about section 21 absolutely stands. That presumption is very much similar.

Senator McDowell has the floor. I will call Senator Bacik once-----

I wish to correct the record. Senator McDowell is suggesting I made an argument I did not make. I entirely agree with him that section 22 is very different. Its phrasing is different. Section 22 was added in the Dáil, and we did not debate it in the Seanad, so it is entirely different to section 21.

Senator Bacik will have an opportunity to contribute further and more fully if she wishes.

Regardless of where the section came from, it has been recommitted and we are discussing it now, despite the efforts to stop me recommitting it. I am just making the point that it is strange that the standard of proof and the defence in the case of a person in authority sexually exploiting a person with a mental disability or illness seem to be lower, and there seems to be a lower procedural requirement, than for the generality of people in the case of a section 21 offence. This is the point the Minister of State himself made. One would expect that people in authority would be under a higher standard of proof in this matter.

It is a more serious offence.

Considering these two sections side by side, a person in authority is entitled to a better defence than a person who is not in authority under section 21. This is a strange thing to happen. If we did not face a guillotine and if we had the right to propose substantial amendments to the Bill and bring some rationality to it, surely we should provide that a person in authority faces a stiffer hurdle in defending a charge of interfering with a person with a mental disability or illness under his or her charge than any Joe or Josephine Soap charged with an offence generally committed on a protected person. There is an inconsistency of standard in this regard. It probably derives from the fact that the draftsman who devised the Dáil section approached it in a slightly more circumspect way and put in a different set of defences for a person in authority, which, curiously, is more generous than that provided under section 21. That is the only point I am making, and I am entitled to make it.

I take the point the Senator makes and I have addressed it. I probably failed to make the point that the standard is different because a more serious offence is in question. That is what it is about. Furthermore, this is in line with provisions in the Criminal Law (Sexual Offences) Act 2006 to deal with underage people. The provision is carried over from the 2006 Act.

A more serious offence is harder to prove.

The Minister of State has the floor.

It is a more serious offence; it is not necessarily harder to prove. The reason is the serious nature of the crime due to the high level of responsibility. This is in line with another very serious Bill concerning underage people from which the provision was carried over.

I did not make any argument earlier about section 22. The point I was making was about section 21. I entirely agree with Senator McDowell that these are entirely different provisions. They are entirely different offences and the format of section 22 is very different. However, I take issue with the fact that he is suggesting, I think, that section 22, despite concerning an offence by a person in authority, is easier on the defendant. If one reads the section carefully, one will see it is harder on the defendant. It places a heavier burden on him or her. I will outline why. Under section 21(3), all the accused needs to do is raise a reasonable doubt - there is no reversal of the legal burden - whereas in sections 22(3) and 22(5), it is clear that the burden is heavier for the defendant. Under these subsections, the defendant must prove he or she was reasonably mistaken, so there is an objective test, and the standard of proof required to prove the defendant was reasonably mistaken is that applicable to civil proceedings. Therefore, there is a heavier burden of proof, as I read it, on the defendant who is a person of authority under section 22. I again agree with Senator McDowell that it seems strange that the language in the two sections is very different. They are two separate offences. As I said, we did not deal with the current section 22 in the Seanad. Perhaps it would have been preferable to have more of an alignment in the language but I accept that they are two entirely separate offences and that is probably the reason for the difference in the language used. Clearly, section 22 concerns a very different kind of defence. It is a defence that places a heavier burden on the defendants to raise because they must prove they were reasonably mistaken on the civil standard, that is, on the balance of probabilities, and they obviously need reference to an objective standard in order to do so because the test is not that they were genuinely mistaken but that they were reasonably mistaken. I read that as being a heavier burden on the defendant.

If no other Senators wish-----

The definition of a protected person in section 21 is "a person [who] lacks the capacity to consent to a sexual act [because] 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". That is the definition of a person protected by the general law, whereas the person protected by the special law for imposing a criminal liability on persons in authority is "a person who [suffers from] - (a) a mental or intellectual disability, or (b) a mental illness, which is of such a nature or degree as to severely restrict the ability of the person to guard himself or herself against serious exploitation". I cannot see for the life of me why there are different definitions of protection and of mental incapacity that attract, on the one hand, one set of protections for persons in authority and, on the other, different protections for people who are protected persons for the purpose of section 21(7).

Senator McDowell has raised a very important point and I commend him on his tenacity in insisting on raising these issues. I would appreciate further clarification. What Senators McDowell and Bacik have had to say is very interesting. Am I right in thinking that the questions of the standard the defendant must reach to access his or her defence and the different definitions of persons with mental disability are discrete issues? I would be interested in hearing from both my colleagues and the Minister of State. Could a person in authority who might escape culpability under the definition provided under section 22 still be liable to prosecution under section 21 if the victim met the definition under that section? Does section 21 also apply to persons in authority? I presume that it does. Perhaps the difference in definitions therefore is not crucial.

It is clear that the standard here is the same as that applicable to civil proceedings. The person in authority has to show on the balance of probabilities that they are entitled to the defence. Where precisely in section 21 does it treat of the level of proof the defendant must reach? I would appreciate some assistance on that question.

The capacity to consent in section 22 is not the relevant part. It is about the relationship. Again, it pertains to offences concerned with a breach of trust and a risk of exploitation. The person was in a position of responsibility, under a contract of service. What we are trying to protect here is the breach of trust. It concerns the relationship between the parties; that contracted relationship. We have been advised that as a defence of reasonable mistake is an objective test, then the appropriate standard is that of civil liability. I would stress that the difference between the sections is the relationship between the personnel. As I stated at the outset, it is because a person is in a position of trust and has been contracted into that position.

I would be grateful if the Minister of State could further address the question of the level of proof that the defendant, under a section 21 offence, must reach. How is it less than the burden placed on the person in authority under section 22?

It is beyond reasonable doubt.

In section 22 the Oireachtas is clearly displacing the normal statutory interpretation rule by providing explicitly that a civil standard of proof must be adhered to by the defendant there. Reading it again it is correct to say that section 22 imposes a heavier burden and obligation on the defendant because it requires that they prove on a balance of probabilities that they were reasonably mistaken. It is heavier in two ways, namely, because it requires a civil standard of proof and it requires that they prove that they were mistaken to an objective standard. In section 21, by contrast, there is no reference to the standard of proof required and therefore the normal rule applies, that the presumption of innocence applies and that the legal burden remains on the prosecution. There is case law establishing that where it is not specified and says something along the lines of, "It shall be presumed unless the contrary is shown or this presumption may be rebutted", the burden remains on the prosecution and all the defence need do is raise a reasonable doubt.

Senator Mullen may not have been present earlier when we dealt with that section, so if he would like clarity I can explain section 21 again. The proposed section 21(3) states, "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 protected person." This is effectively what is known as a reversal of the evidential burden, where it is for the defendant to show by raising a reasonable doubt that they did not so know or were not reckless as to the capacity of the person against whom the offence was committed to consent to the act. The closer the relationship between the two parties, such as when the defendant is a person in a position of trust or authority, the more onerous the shifting of that burden. Clearly there will also be a requirement on the prosecution to show that the act took place. That is assumed.

The question was asked as to how would a defendant prove that he or she did not have the requisite knowledge or was reckless to the extent necessary to commit the offence. The defendant need only raise a reasonable doubt as to his or her knowledge or recklessness.

I do not want to waste any further time on it because I can see that a different standard of proof has been applied for the two situations. Curiously, when one looks to the definition of the people who are to be protected from these crimes there is a further difference. A person could be in one category and not in the other. To be incapable of understanding the nature of reasonably foreseeable consequences of the act is, for instance, quite different from being a person who is suffering from a mental or intellectual disability or mental illness which is of such a nature or degree as to severely restrict the ability of the person to guard himself or herself against serious exploitation. It may be that one is more demanding a category than the other but I can foresee people who would be in one category for one offence and would not be in the other category for the other offence. I find that difficult to understand.

Senator Mullen raised the question that one could be guilty of both offences and that is true. Sometimes in Acts, one can say that a person who is prosecuted or indicted for offence A can be found guilty of offence B. That is not done here, as far as I know. We are therefore left in a peculiar situation where if both charges were put against a person on indictment, the judge would fling one of them out, saying that one cannot come at a person from two different angles. A judge cannot say to a jury that the presumption is one way in respect of one offence and another way in respect of the other or that in one offence the protected person is defined in one way and in the other, the protected person can suffer from different disabilities.

It would have been more to the point to have one single offence, and if there was a need to have an extra penalty for persons in authority that could be provided. I do not practise criminal law any more, and perhaps that is just as well.

I was right about section 22, was I not?

I am of the view that this is a lawyer's charter. It is an extraordinary item of legislation, and if these two sections sit side by side, articles will be written and judges will struggle to explain to juries the difference between one offence and the other and the requisite elements before they can convict for one offence or the other.

I will repeat it again. The capacity to consent is not relevant here. The breach of trust is the key part here, and that is what the focus is on. That is the difference. Sections 21 and 22 are different. It is the breach of trust we are trying to focus in on here.

In section 22 the crucial point in the definition of a relevant person, who is the victim of this crime, is that he or she suffers from a mental or intellectual disability or a mental illness which is of such a nature or degree as to severely restrict the ability of the person to guard himself or herself against serious exploitation. I think consent is relevant to that notion because effectively, if one cannot guard oneself against-----

This concerns contracted service.

That is for the person in authority. What we are talking about here are male orderlies in a nursing home or something like that. They would fall into the person in authority category here because they are under a contract of services with a person under their care.

The significance of this is that the relevant person must have:

(a) a mental or intellectual disability, or

(b) a mental illness,

which is of such a nature or degree as to severely restrict the ability of the person to guard himself or herself against serious exploitation.

That is a very different concept from the other section which refers to people being incapable of "understanding the nature, or the reasonably foreseeable consequences, of that act..."

I wish to raise another point. There is no "or" after section 21(7)(a). Therefore, section 21(7)(a) and section 21(7)(b) seem to have to be taken cumulatively. However, there is an "or" after section 21(7)(b), which means that it has to be taken disjunctively. That is a strange definition and seems to be faulty. I draw the Minister of State's attention to the wording of section 21(7), which states:

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) ...

The real question is: are (a) and (b) cumulative or are they disjunctive? Does either of them suffice or must both be proven? I do not like the way it is drafted.

We could have this debate all night. I want to make one very simple point. These are two separate offences, which are separately drafted. I have already pointed out to Senator McDowell that in section 22 the burden is heavier on the person in authority to raise a defence - I am right about that - than the defence available in section 21 or the onus on the prosecution in section 21.

It is also important to note that the person being protected, the complainant or victim in each section is also different. In section 22 it relates to a person who lacks capacity to consent.

I do not take Senator McDowell's point on the drafting and the "or". It is like oranges, apples or pears. I think that is very clear in section 21(7). However, one should look at the difference between the person who lacks capacity to consent, who is being protected in section 21, and the relevant person in section 22, who may not, in fact, lack the capacity to consent. However, where the offence against them has been committed by a person in authority, section 22(4) specifically states that it is not a defence to prove that the person, against whom the offence is alleged to have been committed, consented. These are two very different offences designed to tackle two very different types of exploitation or abuse. Perhaps we can wrap up the debate on the note that they are different. While at first sight the Senator might think the language should have been closer or more aligned, on closer perusal, one can see why the language is different in both because they are seeking to tackle two very different harms.

With respect to Senator Bacik, it is not appropriate to be talking about wrapping up the debate until the issues are sufficiently clear. Some very important points are being ventilated here. The nub of this appears to be that there is a category of vulnerable people in respect of whom it would be an offence for a person in authority to engage in sexual activity, but it would not be an offence for a person not in authority. It is very unfortunate, to say the least, that that distinction between those two categories of people appears to hinge on the use of wording such as:

(a) a mental or intellectual disability, or

(b) a mental illness,

which is of such a nature or degree as to severely restrict the ability of the person to guard himself or herself against serious exploitation.

It appears that a person might not meet the lack of capacity to consent test, but nonetheless has a severely restricted ability to guard himself or herself against serious exploitation. It is unfortunate in legislation which seeks to protect vulnerable people that the criminal liability in that situation would only apply to a person in authority.

As I read it, section 21(5) provides for a 14-year penalty. In other words, where the sexual act consists of an act which would constitute a sexual assault it shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years. However, the penalty seems to be ten years for a person in authority under section 21(6). Why does the less serious offence carry the more serious penalty?

That is what it is at. It is not an error.

It may be by design, but I ask the Minister of State to justify it.

The Senator is making the point that it is an error. I spoke earlier on both of these. To put Senator Mullen at ease, legal advice was taken on both definitions from the Attorney General. We also had a serious debate on section 21 earlier. We are very clear on this. It is a very serious offence with serious consequences. The strict liability is part of that and that is why it is a lower penalty.

I would love to wrap up the debate on this, but let us be clear about this. Section 22(6) which we are discussing now states: " 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 a term not exceeding 10 years." That is a person in authority who buggers a person, whom they are supposed to protect. A person found guilty of an ordinary sexual act with a protected person under section 21(5) is liable to be sent to prison for 14 years.

There is no getting around this. These two sections have been differently drafted. However, the section the Minister of State has been defending, as being more serious and requiring greater protection, carries the lesser penalty. I would like somebody to explain the rationale for that.

I will try to explain as best I can. We are trying to introduce protection because a person is under the care of a contracted person with responsibility.

With a ten-year penalty.

It is fair to say that in some situations there could possibly be consent and that is recognised. We are trying to do all we can to protect them. That is why it is a slightly lower offence. The Senator has practised criminal law. It is possible that there was consent. We have to try to protect the person who is under the care of somebody else. That is what we are trying to do here and get the balance right.

I will finish it at this stage. I find it inexplicable that if I am a person in authority and I bugger a person under my care, I am liable to a lesser penalty than a person who casually meets somebody suffering from, for example, a mental disorder.

It reflects the relationship that was there. We are trying to protect the person in authority. We recognise there is potential for consent because there could be a long-term relationship there, although it is with someone in authority. We have to allow for that.

If there was a lack of capacity for consent, it could also be prosecuted under section 21. There is a logic behind it. It has been debated. I am not trying to say-----

The Minister of State can see the logic; I cannot.

I am only telling the Senator the facts of it. He has been involved in prosecuting cases on all sides and I think he understands this is a very complicated situation with the contracted relationship, certainly when it is one of a great length of service.

The contractual relationship is not with the patient; it is with the health authority or the nursing home. The Minister of State seems to be suggesting there is a contractual relationship with the person under care. That is not the case.

That is not what I said.

We are talking about, for example, male orderlies in a psychiatric home. The Minister of State is saying that if they bugger somebody, they are liable to a ten-year sentence, whereas if somebody takes advantage of somebody who is suffering from a mental illness in the street, they are liable for up to 14 years' imprisonment. I am saying there is no logic to that and it shows that although this is not hastily cobbled together, it is slowly but very badly cobbled together legislation. I will leave it at that.

It is very hard to argue with the logic which Senator McDowell is applying to this. The Minister of State has pointed out, and it was debated ad nauseam in the House during the previous term, that there may be situations of consent. There is the matter, where people may have mental health challenges, of equipping them with independence and with the rights to advocate for themselves and to enter relationships on their own behalf. It is a balancing act. It is impossible to get these things 100% correct and to balance all the needs correctly.

I suggest, and I think Senator McDowell would agree, that overall this legislation is important and necessary. I do not advocate bad law for the sake of having law, but at the same time it is open to us here to amend legislation if the courts prove that the legislation or certain sections of it are not working. That option is available but I suggest that, in the overall context, the legislation is certainly a significant improvement on what is in place.

It is not bad law, and neither is it ill thought out. It is very well thought out. It recognises that in some situations there is the potential for consent. We recognise that, whereas the Senator describes a situation of a stranger coming along the street. That is a very different scenario. The Senator is trying to compare apples and oranges and is way off the mark trying to compare the two situations.

If consent were open, it would be very strange, given that section 21(7)(c) is there, that the person's mental or intellectual incapacity or mental illness rendered them incapable of communicating consent by speech, sign language or otherwise, if consent were not a relevant issue in those circumstances.

I fail to see how the Minister of State's argument that some cases might involve consent proves the case that the maximum sentence should be ten years as opposed to 14 years. We are not talking about mandatory sentencing here. We are talking about a range of options that are open to the court in a range of circumstances, and if there is not consent, the ceiling is hit at ten years, whereas in the case of the person not in authority, the ceiling is not hit until 14 years. I am open to the views of colleagues on this since I have come a little later to this than they have, but I do not think the Minister of State's argument about consent in any way addresses it.

I will speak very briefly because I recognise that there are already three lawyers at work, engaging in detailed discussion of the potential and likely processes through the courts of these various offences.

I want to highlight one point which is important from my perspective. We are on section 22 and we will move to amendment No. 4 and the question of a person in authority. While there may be a debate on whether 14 years or ten years is the appropriate severity of penalty, the crucial point is that this legislation recognises two distinct areas of vulnerability and exploitation which are not currently tackled in the Statute Book. We may well find ourselves talking about this in a number of years. I am sure if we laid all the provisions of our criminal legislation alongside each other, we could argue over which is less serious and which is not. The question of burden of proof has been addressed. There are a number of crimes and a number of ceilings that are hit at different points.

I accept there may be much merit in what Senator McDowell is saying in this respect and I believe it has not been fully answered. We are addressing situations in which persons are exploited and where there is a breach of trust. I will speak specifically, because we will come to it, and I am not sure how the groupings work now that we are on Committee Stage, but I know that amendment No. 4 is in respect of-----

We are on Committee Stage now. We will go back to group 3 when we conclude this. I will put the question on the section and we will go back to group 3 again for anyone-----

Before the Acting Chairman does that, I want to point out that not merely is there a difference between ten and 14 years, but looking at section 21(4), which I was not looking at, the offence of buggery actually carries a life imprisonment sentence for people who are not-----

Senator Higgins should be allowed to finish. I thank the Senator for the clarification on it. Senator Higgins has the floor. I will allow Senator McDowell in again.

I am sorry. I thought the Senator had finished.

We will have comments through the Chair, please.

I am pointing to the fact we did not previously have adequate or appropriate legislation to address the particular breach of trust of a person in authority. The contractual relationship with a person in authority was referred to. There is a relationship of trust and it is a damaging thing when it is broken. It is not simply the actual violence against or abuse or exploitation of an individual which takes place but also the damaging of that individual's trust of an institution. We saw it with the abuse within our education system. We saw it with the abuse that took place in the mother and baby homes. There is a clear issue here which is that we should recognise, and it is appropriate that this legislation has recognised, when that trust is breached. It is not simply the damage that is done to an individual as a result of the acts that take place but also the damage done to that individual's relationship with the institutions of the State in which they should be able to have free, open, proper and full relationships.

I recognise that there are valid concerns of where the ceilings for sentencing might be. I believe such concerns are valid and that in future we may need to look to them. That said, I welcome that this other issue has been addressed. It is something we have to look back to in terms of the failure of trust in our institutions. Much of it stems from the issue not being addressed previously.

This section points to one of the core aspects of the Bill that I imagine we will debate later, that is, the imbalance of power and the exploitation of power. That is a fundamental point we need to bear in mind. There is a particular exploitation of power. That is in both these separate cases. I believe both section 21 and section 22 move our Statute Book forward, and if not perfectly then at least in the right direction.

Question put and agreed to.
Bill reported without amendment.

We move back to group 3. Would any further Senators like to speak on group 3? Otherwise I will call the Minister of State to respond to group 3.

That amendment will be moved later. I will give Senator Kelleher the opportunity to speak on it if she wishes at this stage, because it is related, but there is no onus on her to speak at this stage.

Can I still speak when it is being moved?

Yes. It is only because it is related to this group of amendments that we are affording the opportunity at this stage. I will ask the Minister of State to respond to group 3 amendments if he has anything further to say.

I will move on to group 4. Report Stage amendments Nos. 2 to 4, inclusive, which have been tabled by Senator McDowell, are related to this group. The Senator will be called on to move and debate his amendments when all the groups of amendments made by the Dáil have been disposed of. However, if the Senator feels it is necessary to refer to his amendment in this discussion, I will permit it. The subject matter is the amendment by the Dáil.

I move: "That the Bill be recommitted in respect of section 25."

This deals with the purchase of sexual services.

Is Senator Kelleher opposing the recommittal?

No, I am still back at group 3 because amendment No. 1 in my name relates to the same issue.

I allowed the Senator to speak on that amendment when we were on group 3. Equally, she will be allowed to speak on it when it is presented to the House.

I thought it was being presented.

It will be reached later. The Senator cannot move it at this point.

Question put:
The Seanad divided: Tá, 23; Níl, 17.

  • Boyhan, Victor.
  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawless, Billy.
  • McDowell, Michael.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Mullen, Rónán.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Donnell, Marie-Louise.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Grace.
  • Ó Céidigh, Pádraig.
  • Reilly, James.
  • Richmond, Neale.
  • Ruane, Lynn.


  • Ardagh, Catherine.
  • Bacik, Ivana.
  • Black, Frances.
  • Clifford-Lee, Lorraine.
  • Daly, Mark.
  • Daly, Paul.
  • Devine, Máire.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Landy, Denis.
  • Leyden, Terry.
  • Mac Lochlainn, Pádraig.
  • Murnane O'Connor, Jennifer.
  • Ó Clochartaigh, Trevor.
  • Ó Donnghaile, Niall.
  • Swanick, Keith.
Tellers: Tá, Senators Victor Boyhan and Michael McDowell; Níl, Senators Ivana Bacik and Kevin Humphreys..
Question declared carried.
Bill recommitted in respect of section 25.
Question proposed: "That section 25 stand part of the Bill."

If the Minister of State does not wish to speak on section 25 at this point, I will call Senator McDowell.

I have the greatest of difficulties with the provisions of this section of the Bill. I know it has had a long history. I know it has been considered at great length in a number of forums. I know it has a vocal support group among the community.

I have come to the conclusion that it defies common sense and is a seriously flawed proposal.

The effect of the section is to amend the Act of 1993. That Act was passed by Dáil Éireann when I was a member of the Opposition in that House. It decriminalised homosexual behaviour and dealt with the offence of soliciting for the purposes of prostitution. Section 7 of the Act states:

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 for a term not exceeding 4 weeks or to both, in the case of a third or any subsequent conviction.

That was the law when it was restated in 1993. Section 6 of that Act states:

A person who solicits or importunes another person for the purposes of the commission of an act which would constitute an offence under section 3, 4 or 5 of this Act or section 1 or 2 of the Criminal Law Amendment Act 1935 shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both.

Section 8 states:

(1) A member of the Garda Síochána who has reasonable cause to suspect that a person is loitering in a street or public place in order to solicit or importune another person or other persons for the purposes of prostitution may direct that person to leave immediately that street or public place.

(2) A person who without reasonable cause fails to comply with a direction under subsection (1) 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 for a term not exceeding 4 weeks or to both, in the case of a third or any subsequent conviction.

That was the law and the view taken by the Dáil at the time. It was a liberalising measure, but it was replacing several statutory provisions of considerable age.

Section 1(2) of the 1993 Act defines "solicits or importunes" for the purposes of prostitution in three ways:

In this Act a person solicits or importunes for the purposes of prostitution where the person—

(a) offers his or her services as a prostitute to another person,

(b) solicits or importunes another person for the purpose of obtaining that other person’s services as a prostitute, or

(c) solicits or importunes another person on behalf of a person for the purposes of prostitution.

It is worthwhile reminding ourselves what that section meant. It meant that someone was guilty of soliciting or importuning for the purposes of prostitution where he or she offered services as a prostitute to another person. However, the only offence created was doing it in a public place. It was not an offence to do it elsewhere. The first part of section 25 of the Bill, as sent by the Dáil, will remove from the definition of soliciting or importuning the act of offering services as a prostitute to another person. This creates a situation where, if the Bill is passed, a person can offer his or her services and it will not be an offence.

Under section 25 there will be a new section 7A in the Act of 1993, subsection (1) of which provides:

A person who pays, gives, offers or promises to pay or give a person (including a prostitute) money or any other form of remuneration or consideration for the purpose of engaging in sexual activity with a prostitute shall be guilty of an offence and shall be liable on summary conviction--

(a) in the case of a first offence, to a class E fine, and

(b) in the case of a second or subsequent offence, to a class D fine.

That is the first point. It means that anyone who pays any other person, including a prostitute, any form of remuneration or money for engaging in sexual activity is to be guilty of an offence. Subsection (2) of the proposed section 7A defines sexual activity as follows:

In this section ‘sexual activity’ means any activity where a reasonable person would consider that—

(a) whatever its circumstances or the purpose of any person in relation to it, the activity is because of its nature sexual, or

(b) because of its nature the activity may be sexual and because of its circumstances or the purposes of any person in relation to it (or both) the activity is sexual...

What does that mean in layman's language? It does not mean merely physical acts of sexual intercourse or things like it. It could mean many things. It could mean sado-masochism or fetishism in circumstances where one person engages in fetishistic behaviour with another. That is being brought into the category of sexual activity. For the first time, the section will make it a criminal offence to pay someone else to engage in such activity. Let us see what it does not do.

Let us suppose Lili Marlene is under a street lamp loitering and a person pays her money. It does not mean that that person is the only person who commits an offence. It means far more than this. It means that a woman who pays a male escort for services in a hotel commits an offence. It means that a man who pays what customarily is described as a rent boy in a hotel commits an offence. Let us consider another example. Let us suppose a woman, married or unmarried, goes to a hotel lobby, picks up a male escort, brings him home, has sex with him and pays him. It means that she commits a criminal offence. The section does not apply only to the 18 year old from County Kerry in Dublin for the all-Ireland final who walks down O'Connell Street with a few jars in him, meets a prostitute and goes up a laneway. It applies to every form of prostitution, wherever and by whomever the offence is committed. For the first time, it is to be made a criminal offence in Ireland. I call on those present to contemplate this. We are now saying anyone who pays anyone else money to engage in fetishistic behaviour, sexual intercourse or other forms of sexual interaction between people in their own home, in the other person's home or anywhere else, including a hotel room or any other place, commits a criminal offence.

We are told that this is an advance in the law. Is it? Is it to be the case that someone, for example, a woman who is lonely enough to go to a hotel and go home with a young gigolo or male escort, should be criminalised? I call on the Minister of State to ask himself that question. In what circumstance would anyone in this House suggest such a person should be brought before a court? That is the law we are being invited to enact by the Minister of State. Why should someone in these circumstances be made a criminal and liable to be prosecuted? I am not simply talking about the young 18 year old up from County Kerry in Dublin for the all-Ireland final who will have his life ruined by a conviction in the court and the report in the Evening Herald. It will have implications for his career and the conviction will always be there.

I am not talking about the poor fellow who will be solicited, without criminal offence, by a prostitute on the street and agrees to go into a hotel on Gardiner Street or somewhere like that and have it off with her. I am not talking about somebody like that who is that guileless and pathetic, whose life will be ruined by being brought before the District Court to be publicly humiliated and who will lose their employment prospects. I am talking about a vast variety of people who are quite different from that.

To return to the example of the woman I gave who goes to a hotel and picks up a male escort, what happens to her if she is prosecuted? She could be in a position of authority in employment which would be immediately terminated if her employer saw a newspaper report of her conviction and asked her if she was convicted in the District Court yesterday of paying a male escort. That is what we are being asked to do by a group of people who, out of huge conviction, believe this is the way to go forward.

It has never been the case until now that a woman who took money for sex had committed a criminal offence. Women who barter their bodies for sexual gratification by men and take reward for it are not punished now. I do not know whether many Members of this House have looked at BBC documentaries about young university undergraduates in England who deliberately supplement their meagre student grants by acts of casual prostitution but it happens. It has never been the case that any of those people have ever committed a criminal offence. A young woman who does that today or tomorrow does not commit a criminal offence. As the law stands, nobody can prosecute her, and that is the end of the matter.

As was indicated earlier in this debate, prostitution has changed dramatically. Most prostitution is not done on Benburb Street, Burlington Road or wherever it used to be done in Dublin; it has moved up a notch in terms of its sophistication. There are many prostitutes, male and female, who supply services either in hotels or in their customers' homes and that is not an offence now for a man, for a woman or for the purchaser of those services. Yet we are being told that we must stop that and we must criminalise those people who pay for those services. I cannot for the life of me think why that is a good idea per se. There are provisions in the Bill regarding trafficked women and men who are the object of prostitution and there are special measures to protect them. I do not need a lecture from Members of this House on the evils of the trafficking of women because I know a great deal about it, having been Minister for Justice, Equality and Law Reform. I know what has happened to Ukrainian, African and eastern European women who have been brought to Ireland and the circumstances in which they have been kept and exploited by pimps. I know about their passports being taken from them and I am not ignoring one jot of that but I am pointing out that a woman who offers prostitute services at the moment and a person who purchases her services do not commit any crime. The law of this State should not attempt to criminalise either of them. The act of prostitution is not, as the law stands, criminal and should not be made per se criminal, which, for the first time, this section proposes to do.

People may ask what is the likelihood that a woman who has brought a male escort to her own home, given him €200 and thanked him for his services or a man who has done the equivalent to a woman or to another man would be brought before the courts. Is the Minister of State speaking of the real world or of the unreal world? I am speaking of the very real world - which none of the proponents of this legislation have ever even bothered to think about - of blackmail and thuggery. There are pimps and they will not go away. They will know to whom their prostitutes are supplying services and it will be easy for a rent boy, a male escort, a woman prostitute or whatever description one wants to put on the prostitutes we are dealing with here to blackmail their customers. When it comes to the payment of the €200, it would be very easy to take out one's camera, take a picture of the person and threaten that person that one would go to the Garda and reveal that the person has paid one for sex. If the Minister of State does not think that is possible, he should think this through. If a male escort is brought to a woman's home - she being a married woman whose husband is away on holidays - and he sees that it is an opulent home, that woman presents an easy opportunity for him to tell her that the bill is now €1,000 or that it will €2,000 by tomorrow evening and that on payment of the money, he will put away his mobile phone and will not report the matter to Donnybrook Garda station. Where are we then with this? How will all the wise people who know so much about trafficking deal with that situation, where people are subject to blackmail and being brought before the courts because they paid for sex?

We need only note what happens in the English tabloid newspapers where celebrities are set up by prostitutes in England. Usually, there is no blackmail involved unless drugs are taken in the hotel bedroom or unless the person is politically prominent, a prominent footballer or something like that, as there is no story for the tabloid to run with. Those types of people are vulnerable to the activities of prostitutes who would sell their stories. The Minister of State is proposing in this legislation that everybody from this day forward who pays anybody else for sex in whatever circumstance commits a criminal offence. He is also saying that this applies to anybody who pays for even some kind of weird fetish to be performed for his or her gratification. For instance, there are people who like to see other people abuse themselves and will pay for voyeuristic sex just simply to watch another person having sex or doing something sexual. All of that is now to be criminalised by this legislation if it becomes law. Anybody who ever does that will henceforth be in the position that he or she will be liable to criminal prosecution and, much more important, liable to blackmail.

The balance at the moment is not right. In case anybody has any doubts about it, I believe in decriminalising prostitution. I do not believe that the mere act of payment one way or the other should have any criminal consequences and I believe the law should remain that way. The Bill seems to state, with the amendments it is proposing, that importuning sex is no longer constituted by offering oneself.

As I wrote in the The Sunday Business Post recently, we have created a grotesque alternative universe where the law says it is perfectly okay to offer oneself for sex for money but it is criminal if anybody, no matter how vulnerable, takes up that offer. What purpose is served by such a change in our laws? It is indefensible morally and in terms of equity and fairness. It is indefensible that a 30 year old seasoned female prostitute, for instance, can offer her services to an 18 year old lad who wants to have his first experience of sex and to pay for it and her offer is regarded as something with which the law is not concerned. His foolishness, on the other hand, in taking up that offer is something that brings him before a District Court judge in the Bridewell or in the Criminal Courts of Justice, with reporters all watching what is going on, and results in humiliation for him, the loss of his job and damage to his future employment prospects. We live in an Internet world and we must remember that. Employers run checks and if that lad's name and address come up, he will never escape the indelible damage done by having been convicted for such an offence.

I would also say to the women here today, in particular, that the same applies to women. There are many women, admittedly not as many women as men, who pay male escorts for sex and the same applies to them. If they are discovered, blackmailed, exposed or revealed to An Garda Síochána, they can be brought before the criminal courts and prosecuted for what they have done, even if the male escort decides to pick up the best piece of silver as he leaves the room or the house. If he decides to do that, she is faced with a dilemma because if she reports that, she can be brought before the courts if he says that he took money for sex on that occasion. That is the new law that we are being asked to introduce and there is no useful purpose to be served by it. It does not stop trafficking or prostitution.

Senator Niall Ó Donnghaile is from Belfast. His party supported similar legislation in Northern Ireland. I take it that I am not going to be informed by him in the course of this debate that since the introduction of that offence two years ago in Northern Ireland, prostitution has stopped and no longer occurs there. I take it that I am not going to be told that. I am also anxious that somebody who proposes this nonsensical piece of-----

If Senator McDowell would let me speak-----

The Senator will be able to speak soon. Nobody has been prosecuted in Northern Ireland for this offence yet. The only good it has achieved anywhere is to render the customer liable to criminal prosecution. If members think that is a good thing, they must remember that it carries with it, necessarily, the problem of blackmail. It must do so. We are dealing with frequently exploited young people who, from now on, if they go to someone's home and commit a sexual act, will know that they have that person over a barrel, so to speak. They can, merely by revealing what happened in that home, bring upon that person a conviction or at least a summons to the District Court to face a charge of paying for sex. This is wrong. I know that Senator Bacik published her report-----

It is not my report.

Okay, her committee's report. She was the chief spokesperson for it and should not be so modest. I know there are people who passionately believe that the solution to the problem is stopping the demand for prostitution and hitting the purchaser rather than the supplier of sex for money. I know there are people who passionately believe that but they are wrong. The oldest profession will not be suppressed by this. It will just be driven underground, sideways and every which way but it will not be suppressed. Prostitution will not end as a result of this legislation but criminalisation of vulnerable people will begin.

I would say that most people, whether male or female, who avail of the services of prostitutes are inadequates of one kind or another. They are lonely people for the most part. They are people who do not have relations with others for the most part. There may be exceptions and there may be people who have huge fortunes, happy families, devoted spouses and so forth who engage prostitutes, but for the most part, those who are customers of prostitutes are inadequate people, in my view. It is morally wrong in principle and morally reprehensible to say that such people, if caught, will be brought before the courts and socially disgraced. That is simply wrong and it is not the way to deal with this problem. If one regards prostitution as a problem, then this is not the way to deal with it. The pimps are being given a new weapon against the customers of their prostitutes. Where pimping is involved, which is not always the case, the subservient prostitutes will now be in a position to blackmail and steal from customers because those customers, if they go to An Garda Síochána to report the theft of a wallet, for example, will end up in the District Court trying to argue that they did not commit an offence. That is the brave new world, the glorious new future, that is painted here.

This has never been adequately debated in these Houses. This House, at 8 p.m. with a guillotine at 9 p.m., is getting an opportunity to consider this offence. It has not been adequately debated. While it has been debated previously, it has not been adequately debated. A different Seanad, 80% of whose Members are not here now, considered this legislation before. It has not been properly considered by this House as currently constituted. This is a disastrous mistake. Who will take the moral responsibility when the blackmailing first comes to light? Will everyone say that they were warned about that but ignored the warning because they thought there was a greater good to be achieved? When the first woman who brought a male escort home is convicted before the District Court and ruined, even though that escort blackmailed or stole from her, who in this House will say that they voted for that, thought it was a good idea and is glad they did it? Nobody will. It is a shameful proposal. The law has never said that an act of prostitution was criminal, per se. Now, for the first time, this puritanical world is about to say that it should be. If I had a particular fetish, which I do not think I have, and paid a person to come to my house and gratify me by engaging in a sexual fetish with me, I do not see why I should be liable, if that person grasses on me, to be brought before a court. Are we liberals or what are we? What about the human right of privacy? What about the right to engage in this behaviour if one wants?

Why should a male escort not be paid by a woman for sexual services? It is their private business. What right has the State to suddenly say that if we discover that a man or woman has done this, we will drag him or her before our courts, ruin him or her socially and punish him or her in the eyes of the public? There is no moral entitlement to do so. It is a shameful proposal. It is indefensible in moral terms. It is all being done on the back of trafficking, pimping, etc. That is the excuse for this measure. That is what has created the leverage to bring the proposal this far and to the 11th hour and 59th minute of becoming law. No one can tell us that prostitution will decline as result of this measure. No one can tell us that the demand for sexual services will change because of this legislation. I can guarantee that it will change in one respect. It will go underground and become more evil and more dominated by the pimps. The single prostitute woman, single male escort or single rent boy operating on his or her own will be driven into the hands of pimps on foot of this new order.

I wish to make a second point. I spoke to the Tánaiste and Minister for Justice and Equality today. Normally, I would never say anything that was said in the Members' bar but she did say to me that she did not agree with the point I had made in The Sunday Business Post to the effect that, under the Petty Sessions (Ireland) Act, a prostitute who offers her services and takes money from a customer would aid and abet the commission of that person's offence. I do not understand on what basis she says that is not the case. If the Tánaiste wants to explain it to me, then I want a detailed explanation and not just a comment to the effect that the Attorney General does not think so. I want to hear why the Attorney General does not think so because we are making the law here and she is over there, I think.

Section 22 of the Petty Sessions (Ireland) Act provides that any person who aids and abets the commission of a summary offence is liable to be punished as if he or she were the principal offender. We must ask ourselves why that does not apply. If I am right about this point, and I would be glad to be corrected in one sense, then the purpose of today's legislation, which is to decriminalise the prostitute and criminalise the customer, would be defeated completely.

As Senator Bacik will know, normally when somebody is prosecuted for a criminal offence the evidence of an accomplice - or an aider and abetter - is not usually receivable against them except with serious warnings. Accomplice evidence is suspect evidence and very much so because of the risk of blackmail. Let us say that Senator Boyhan and I robbed a bank and he turned State's evidence against me. In such circumstances, the law would doubt his evidence because it would be accomplice evidence. I cannot for the life of me understand how a prostitute who avails of this new liberty, approaches a man on the street, offers her or his services to that person and gets paid for having sex in a hotel, house or wherever else, does not aid and abet the commission of that offence or how he or she is not an accomplice to it. I do not want to be told that the Director of Public Prosecutions may not prosecute. Why should the DPP not prosecute? Who is the more morally culpable? Is it the 18-year old boy from Kerry who has travelled to Dublin for an All-Ireland final or the 30-year old prostitute who has spent all day soliciting customers in central city bars and streets? I do not understand the provision at all. I am against the proposal. It is a big mistake. I do not care what happened in Sweden. We have to make laws for our society. Scandinavia is not the greatest happy place in the world. People say that Sweden does this, that and the other. Northern Ireland has done this, that and the other but it has not got a single conviction in two years and, as we know, prostitution is still rampant in Belfast. What useful purpose except an ideological goal is served by this legislation? I shall finish because I presume that other Senators want to contribute.

I never thought I would spend St. Valentine's night listening to what Senator McDowell's fetishes may be. It has been a strange experience. I started out being hopeful about this Bill, although I disagree with section 4 because it deals with how much danger women are subjected to. I shall go into detail about this matter later. I support the rest of the Bill. I wish I had been a Member of the previous Seanad because I would have amended some parts it.

Many of the things that Senator McDowell said have made me feel physically ill.

I am raging that I have had to follow him in this debate. We listened to him talk about seasoned prostitutes but sympathise with the plight of a poor 18-year old lad. We know who the Senator supports on foot of his comments. His contribution did not assist the campaign by some advocacy groups for full decriminalisation. He did them a disservice.

I am quite disappointed with Senator McDowell. I agree with him that section 4 should have been dealt with in another Bill.

In my previous career, I supported many people who were exploited through prostitution because they were addicts, homeless or lived in poverty. In the past few years I have become a very strong advocate for them. I want sex work to be criminalised in terms of the purchaser because the people I supported were vulnerable adults. If one provides a service for money because of being impoverished then one is automatically in a more vulnerable position and there is no balance of power. I have also spent a lot of time with women who have said that they provide services consensually. They do not see themselves as vulnerable. Such people must be legislated for. A differentiation should have been made between both cohorts. On one hand, there are vulnerable adults who are exploited due to poverty, abuse and addiction. Most of the sex workers that I supported would have had addictions. I would have preferred separate legislation that defined different areas.

I am concerned by the fact that part of the Bill encourages women to work alone. I have tried to consider this Bill not so much morally but more in terms of a harm reduction model or one that will cause the least amount of harm to the people involved in prostitution. The part of the Bill that removes the option for single operators to work alongside others out of fear of being viewed as a brothel is counter-productive to our aim of keeping women safe.

Advocates for sex workers have mentioned that the power balance shifts more to the man when his actions are criminalised. I would like to hear more on this aspect. This legislation means that it is the man who takes the risk and, thus, he will be in a greater position to influence the terms of reference. The power will now lie more with the man because he has been made the risk taker in this situation. We need to discuss these points and I look forward to hearing the views of the Minister of State on them.

I have divided my queries into sections. Section 27 refers to a review, which I welcome.

However, there was much advocacy for a review of the legislation after either 12 months or two years. As there is much evidence, as was suggested, that this model is likely to have a poor impact on the human rights of workers and interfere with their ability to protect themselves, there is concern as to what the law will review. It must not be an assessment of fluctuations in the numbers of sex workers alone but rather an assessment of the impact of the law on the human rights of sex workers. Considering no prior baseline research into the population was carried out and that the law will affect current sex workers, how does the Government propose to make comparisons with the review? What are the Government's plans to conduct meaningful and thorough consultation into the sex work population in Ireland and engage with it directly about the laws that affect sex workers' experiences and needs?

The second section to which I wish to refer is section 26. An amendment concerning the provision of legal clarification on the brothel-keeping law was attempted in the Dáil and seemed to have wide support; 42 Deputies voted in favour of it. This law is purported to arrest exploiters, but we know from CSO reports over the past five-year period that 92% of people arrested were the workers themselves. We very frequently see reports in the news of sex workers working in groups as small as two people being arrested, their money taken, fined and told to go to their country of origin. I believe last week a married couple working as escorts together out of their house, with no one else working alongside them, were arrested under such legislation and essentially charged for pimping each other. Their full names and addresses were printed in the newspaper. Last month, there was a case of four Romanian women in Galway who were arrested, their moneys taken, fined and sent home. They said they were working to send money home to their families. The judge referred to them as little girls and said he thought they were trafficking victims but he sent them home without investigation regardless of that comment. Why was the Criminal Law (Human Trafficking) Act 2008 not assessed in this regard for its failure to adequately address the problem of trafficking for sexual exploitation? Why was there no focus on implementing the existing law more effectively?

The next point I wish to make concerns sex workers and their distrust of the Garda. Many come from countries where the police are quite abusive. According to a report that came out last week, the Ombudsman is looking into 70 accounts of sexual assault by gardaí over six years. It was reported last year in the news that when gardaí raided a work apartment, one garda returned after the operation and allegedly raped one of the workers. When someone mentioned last week on "Today with Sean O'Rourke" that gardaí were receiving training to deal with sex workers more sensitively, a garda texted in to say they were receiving no such training. When Galina Sandeva - I might have the pronunciation of her name wrong - a Bulgarian sex worker in Norway, where a similar model exists, died, her friends did not contact the police until they found her body themselves. Amnesty International's report on the effect of this law in Norway quoted a worker as saying:

You only call the police if you think you are going to die. If you call the police, you lose everything.

When workers hear these accounts, they become even less likely to reach out to the police and they have a greater fear of being mistreated. If the Garda and judges continue not to interpret the law in a way that protects the workers, will there be scope for legally clarifying this brothel-keeping law so that stronger measures to protect workers from exploitation are introduced?

The Minister rejected a proposed amendment in the Dáil to include provisions in the Bill for viable alternatives to working in the sex industry and for supports that may serve as preventive measures against entering the industry in the first place. This was a hugely flawed decision. How are we to look to move women out of prostitution or reduce the level of prostitution if we do not increase the supports available to people to make that transition? What measures does the Government intend to introduce to address the survival situations that are leading people to engage in the sex industry? Senator McDowell referred to students. Their involvement in sex work is not isolated to the UK; this happens in Ireland as well. He is right that it is happening but he made it seem as if it were a choice, which it is not. Again, it goes hand in hand with the need to be able to pay for an education and how inaccessible that is. When we consider different laws, we need to consider the contributing factors to people entering the industry in the first place. Why was there not a thorough examination of the legislative model of full decriminalisation, as obtains in New Zealand, considering it is the single model for sex-worker-led organisations worldwide?

We all know that so many parts of the Bill need to go through the Houses. It was the hardest thing to even attempt in any way to think about what I was going to vote for or against, whether I would delay the Bill or whether we would push amendments. Many of us found ourselves in a real dilemma, which we should acknowledge. People, including activists and representatives, have been working on this for a long time, but when one stands here as a Senator and must decide whether to put one's vote behind something when one has not had as full an engagement with it as one would have wished, it is a really difficult position to be in. The Leader of the House said this morning that there was cross-party support for the Bill and that it was widely supported by NGOs, yet Amnesty International, which is the largest human rights NGO in the country, does not support it, so question marks still surround it. Simply because the legislation has been around for a long time does not mean it is not flawed and cannot be improved. I regret that we did not get to a stage at which we could attempt to improve the Bill where we thought it could be improved but I welcome the rest of the Bill. I hope at some stage we can look back, perhaps in the review period, and make amendments in line with some of our concerns.

I wish to repeat how strongly I support this section and section 25, which we extensively debated on previous occasions in the Seanad. I am listening carefully to what colleagues say, particularly those who did not have an opportunity to speak in the previous Seanad. I hope those who have expressed doubts have looked at the justice committee report from June 2013, which was a report of the entire committee and was unanimously accepted on a cross-party basis. It did consider decriminalisation and all other models of regulation and reform. We were asked to do so by the Minister for Justice and Equality at the time, Alan Shatter. The report sets out quite fairly the cases for and against the various models and in conclusion recommended we adopt a model of criminalisation of the purchaser and decriminalisation of the seller and of the related offences of loitering and soliciting.

I listened to Senator McDowell's contribution. He raised quite a number of points that I would characterise as red herrings and clichés. In objecting to section 25 and the premise on which it is based, he spoke about the propensity for blackmail or so on but the same argument could be made in respect of any criminal offence. I do not suppose Senator McDowell recommends we decriminalise possession of drugs, for example. Possession of drugs offences also lend themselves to such extortion or blackmail. The Senator's argument is not a reason, in my view, to object to the section; it is a spurious argument. He also raised the argument that these offences relate to a private sphere. Arguments of privacy will have been well rehearsed in this debate but one should recall that privacy arguments were also used against criminalising marital rape and domestic violence. There are times when privacy rights must be read in the broader context of exploitation of power imbalance, to which Senator Higgins referred earlier. There is a broader context of power imbalance and exploitation. It is from this perspective that I approach this legislation, and it is the basis on which I support the legislation. Senator McDowell also referred to the fact that legislation such as this might drive prostitution underground. This was something we canvassed directly with the proponents of the Swedish model when we went to Sweden and met with those arguing for it here. The point they made, which is a very practical one, is that prostitution, like drugs offences, cannot be driven so underground that users cannot access it. It must be accessible so that clients can access prostitution. Prostitution is by its nature clandestine, as drug sales are, yet there must be a way in which prostitution is available and accessible to clients. As one Swedish police officer put it to us, if it is available and accessible to clients, it is also accessible to police. However, it is legislated for. It is also-----

Is the Senator suggesting it should be available?

I did not interrupt Senator McDowell.

Senator McDowell suggested that, in some way, the sellers of sexual services who are not currently criminalised would become criminalised under this legislation but that is not the case. In fact, the seller will be decriminalised.

In respect of his argument on aiding and abetting, Senator McDowell referred to the Petty Sessions (Ireland) Act but one could also simply ask whether the Director of Public Prosecutions could prosecute for conspiracy in that sort of situation, simply using the common law. The answer is clear and is addressed in the response of the Joint Committee on Justice, Defence and Equality to questions raised by the then Minister for Justice and Equality, former Deputy Alan Shatter, in 2013. All of this information is accessible on the Oireachtas website. The committee issued a response to the Minister in November 2013, where we pointed out that the Constitution permits the Oireachtas to take a view on social policy issues and on a relationship such as that between the seller and purchaser of sex. There is an inherent imbalance of power in such a relationship and, on social policy grounds, the Oireachtas is entitled to legislate so as to make one party to what may be seen, in some quarters, as a consensual transaction criminally liable and not the other. Indeed, we have the MD (Minor) v. Ireland judgment of the Supreme Court of 23 February 2012 in which the court upheld the criminalisation of under age intercourse for a boy but not for a girl. We did deal with that issue at the time.

When one looks at the legislation and the section we are currently debating, one sees that subsection (a) amends the 1993 Act specifically to decriminalise the person who is loitering or soliciting for the purpose of offering services as a prostitute. That is an important change that clearly reflects the view of the Oireachtas to date in getting the legislation to this point, which is that this is a relationship that is not equal. It is a relationship of exploitation and one in which one party can be viewed as the exploited party and is, therefore, not to be criminalised.

In terms of the arguments in favour of the legislation made at committee, which we accepted and which formed the basis of our recommendations, having received 800 submissions and held a series of public hearings, we found prostitution to be widely available across Ireland, highly organised and highly profitable. We also found that it was highly exploitative and largely controlled by organised crime businesses. We heard from women who were engaged in prostitution and women who had left it. We heard from women who were in favour of the Swedish approach and from those who were against it. We found that women were entering prostitution in Ireland at a young age; many were under 18 and many were trafficked into prostitution. Senator McDowell has spoken about that. The vast majority of prostitutes here are pimped. I asked a question of one witness at the committee who was arguing for a decriminalisation model and who spoke of herself as an independent escort and someone who was not pimped. I asked her how many prostitutes she would be representative of and she said in the region of 15% to 20% of those involved in prostitution. That was her analysis and it is a pretty low figure, although the Kelleher report and other research conducted in Ireland would suggest that it is a rather inflated one. Nonetheless, the view we took was that the Oireachtas would be entitled to legislate to protect the vast majority of those engaged in prostitution who are pimped and exploited in this way.

Those who dispute this approach end up either arguing for full decriminalisation or defending the status quo and saying that we should not make this change. I must say, as someone who worked in criminal practice for many years and represented women on prostitution charges, that the current Irish model of regulating prostitution is deeply flawed. It is based on a very outdated notion of nuisance.

I agree with Senator Bacik on that.

I am glad Senator McDowell agrees because it is indefensible. The current law on prostitution is indefensible. The vast majority of those appearing before the courts are people who are selling sex, usually women, who are the most visible and the most easily targeted by gardaí. They are, of course, prosecuted for the offences of loitering, soliciting and a failure to move on and so forth. The model for regulating prostitution is based on a view of prostitution as a public nuisance, the visible manifestation of which must be controlled. That is utterly ineffective in terms of tackling demand or protecting the women involved. It makes the conditions under which they work appalling and it further ensures that they are victimised and subject to victimisation by gardaí, who, quite understandably, are prosecuting them because that is the basis of the law. The focus of the current law is to regulate supply but this is manifestly not working. Anyone who has read our report or seen any of the investigative programmes on RTE about prostitution will be clear on that point. It is manifestly not working.

The Swedish model is no longer just a Swedish one because there are now similar laws in France, Norway, Iceland, Canada and Northern Ireland. There is a movement internationally to change the focus of prostitution law. The basis of the Swedish approach is gender equality. It is seeking to tackle the exploitation inherent in the prostitution relationship and to put out a declaratory message to the public about the nature of prostitution as inherently exploitative. It also, of course, has a very practical effect in that it tackles demand. Again, looking at the evidence from Sweden, we see that it has had great effect in reducing the incidence of trafficking into Sweden because it tackles demand. Unlike any other law that we have tried in Ireland to date, it seeks to tackle the purchaser or the client and in that way, it is a practical approach. I would argue, as did the committee in 2013, that it is potentially a much more effective approach to tackling prostitution. Will it abolish prostitution? Probably not, just as drug prohibition laws did not abolish drugs or murder laws do not abolish murder. There is a point to be made in that regard and those who suggest that this law will not make prostitution go away are missing the point. It is clearly effective in reducing demand and, therefore, reducing the incidence. That is what we have seen and that is the basis upon which similar laws have been introduced in other countries. I will not go on because we spent extensive time on this point in the Seanad previously. However, I would say that this legislation has very widespread support. A range of NGOs that provide front-line services to women, particularly those from migrant communities who are vulnerable and who have been exploited, are strongly supportive of the Bill. Indeed, they have taken the initiative in pushing for this legislation over many years. It really is long overdue.

I agree with much of what Senator Bacik said. I, too, was quite disturbed by some of the comments that have been made. Many of them had classist undertones. I refer to remarks about robbing pieces of silver on the way out the door, about people having nice houses and involving stereotypical images of prostitutes as individuals who are just on the make. Such comments really disturbed me.

Blackmail can work both ways. Vulnerable people who engage in prostitution are often blackmailed for the rest of their lives. Their lives are as valuable as anybody else's. I would have great concerns about the comments that were made on blackmailing. In terms of the comment about the young lad up from Kerry, it is right and proper that he should face consequences. We should see the purchase of sex as abhorrent and not something in which anybody who wishes to progress in life should be engaging. He is not just some innocent bystander, led astray by a 30 year old woman. We should be shifting society to a place where it sees prostitution as abhorrent, just like drink driving has become in recent years.

Reference was made to the Swedish model and Northern Ireland was also mentioned. I do not know too much about the situation in Northern Ireland but I do know that the legislation there was only introduced two years ago. It may take some time to see its full effect in terms of a reduction in demand. That is what this Bill is all about, namely, reducing the demand for prostitution. We need people to feel that there is a huge risk involved in paying vulnerable individuals for sex. I do not think anyone engages in prostitution unless he or she is vulnerable. That vulnerability may be the result of trafficking, poverty or a combination of both. Nobody who has grown up enjoying the opportunities that many of us have enjoyed would engage in prostitution. It is not compatible with contemporary values, as I said earlier. It is also a serious barrier to gender equality.

Some of the arguments presented during this debate are quite shocking. The argument on privacy rights expressed by Senator Bacik was quite right and I fully agree with her views on that.

Where does one start? I will tell the House who I feel sorry for in this instance. It is Senator Conway. The Fine Gael team voted to allow that drivel we just heard and then ran away and left the poor Senator and the rest of us to sit here and endure it.

It is not as disrespectful, however, as what we heard in the first contribution.

On a point of order. It is an argument which the Senator might not agree with but he should get on with his own.

That is certainly not a point of order.

I will tell you what-----

The Senator should speak through the Chair.

I will make this point through the Chair. I note I have been asked to speak through the Chair while others have not.

I will afford the Acting Chairman that courtesy while I am being shouted at from a number of positions.

Senator Ó Donnghaile, without interruption.

It takes a lot for me to be flabbergasted. As other colleagues alluded to, some of what we heard during the first contribution really did that, if not go beyond that. It was supreme in not just its ignorance of many of the issues pertinent to this question but in its nuanced divergence from many of the issues relating to this legislation. While admitting I do not have the wily legal, legislative or oratory skills of Senator McDowell, I only wish I could defer to some of the groups in the Gallery to speak on my behalf and, more importantly, on behalf of the people we are trying to protect, support and empower with this legislation. For me and Sinn Féin, the fundamental core of this legislation and this issue is about human rights and the protection and safety of people. It should come as no surprise that Senator McDowell in his contribution would run against the grain of progressive thinking in this State.

Much like Senator Clifford-Lee, I took issue with some of the specific nuances raised such as the case of the 18 year old from Kerry. I do not know what Senator McDowell has against people from County Kerry. It might be telling of an underlying argument that there were continual numerous references to a lonely woman availing of a gigolo in a hotel. There was a careful dance and a swerve. We were told by Senator McDowell that he would not take lectures about the exploitation of women because he knew it all and had been told it all.

If he is aware of the awfulness which exists in that scenario but argues against this legislation, then he is defying logic. It is beyond my realm of understanding. We are talking about an industry which is the monetary equivalent of, if not worth more, than Coca Cola and McDonald’s. It is happening on the streets of Dublin, Belfast and in the rural laneways and byways all over both jurisdictions on this island. If we can do anything which empowers people to actively stop this and protect the people being trafficked into both states who are being violently raped, abused, exploited, mistreated, then we have an obligation to do that.

By no means did I want to turn this into an overtly emotive debate - it will always be an emotive one - which focuses simply on clichés. I want to see this legislation come into being. I appreciate people will have different opinions. Their view is that this legislation will not assist people. My view is that it will save lives and protect women. The reality is, despite the pictures painted earlier, it is women, by and large, who are the victims of sexual exploitation and prostitution.

Not playing these situations down, but I found it immeasurably strange that we had another imaginary story of a young girl at university who went into prostitution to help pay for her education. Does that not have exploiting someone’s disadvantage and economic poverty at its very core? As if someone would say, "I will just go and prostitute myself." Maybe the young lad from Kerry or the lonely husband whose wife is away on business wants to avail of this student’s services, but by no means should we criminalise that girl. It should be the person who is exploiting that girl’s economic disadvantage and the situation in which she finds herself who should be held responsible. That is at the core of this legislation. It is about apportioning responsibility. Without simplifying it, that is fair enough.

Senator McDowell and others referred to the law in the North. It is in its infancy, with only 18 months since it came into being. While there have been no prosecutions, I understand several cases are going through the system. Running parallel to this, which thankfully I read about more frequently, are cases of women being rescued. Again, these are women who have been trafficked, abused and subjected to some of the most horrific unimaginable treatment. While by no means is that law perfect, it has made a significant change. I am confident and will do everything in my power to ensure it actively delivers for those in need.

In the North, the relevant Departments were required to develop a strategy within ten months of the legislation coming into being which would introduce a programme of assistance and support for those seeking to leave prostitution, in recognition of the barriers faced by people who want to exit prostitution. The same should apply in this jurisdiction.

Senator Clifford-Lee referred to those who exploit prostitutes, finding themselves in court and how that impacts and affects the rest of their lives. Senator McDowell offered a scenario in which we should hang our heads in shame and feel guilty that we have presumed to hinder and stop the professional aspirations of an 18 year old from Kerry. I do not know how much he views the lonely old housewife having career aspirations but that is what he told us to think of in this instance. When this legislation is going forward, it will not be those people I will be thinking of, with the greatest respect to them. I am not a reactionary, or a Daily Mail reader or someone who believes in actively criminalising and haranguing people who do certain things. With this legislation, when the people who are actively exploiting, raping, abusing and trafficking women find themselves in front of a court - not the young lad from Kerry - then I will not leave this Chamber with my head hanging in shame. Instead, I will hold it high on that day.

I was not one bit disturbed by Senator McDowell’s comments. I commend him for making his case with passion and to the best of his considerable abilities. I listened carefully to what he said and read his article in The Sunday Business Post. In fact, he made his case so well, he almost convinced me on occasions. What I do not like, however, is the parliamentary trolling that goes on when people sense they have someone in the minority and they will seize the high moral ground.

There was a very unpleasant tone of that in this Chamber tonight. New Senators who were elected or appointed to this House for the first time last year should consider that without Senator McDowell's initiative, they would have not had a chance to comment at such length on this important legislation.

I am very glad to see this day. I am pleased this legislation is before the House. I commend the various Deputies and Senators who were involved in considering it at the justice committee over recent years. I am thinking in particular of the current Minister, Deputy Zappone, and Senator Bacik. I will take a little credit by mentioning that I was probably the first person in this House to push strongly on this issue. Since I was first elected to the Seanad in 2007, I have listened carefully to the arguments made by real heroes like those involved with Ruhama, who go out onto the streets to work with women, in particular, who are involved in prostitution and to offer them support, advice and assistance. They see this issue with great passion and through the lens of their deep experience about what prostitution involves in our society. The encouragement I took from such people inspired me to propose amendments to the human trafficking legislation to seek to criminalise purchasers of sexual services. However, the political establishment was not with me at the time. Government Ministers told me laughingly in the corridors that students were making pocket money out of this industry. I was made to feel like I was a troubled little nanny. The reality is that people's views and values on this issue have shifted. We have seen an expansion in various countries of the legislative model that was led by Sweden. It is now being adopted in other countries, as Senator Bacik has pointed out.

I still think there is a lot of philosophical incoherence on this issue, even among those who support the model of criminalising the purchaser of sexual services. Those who are talking about issues like power relationships and gender equality, which are important in themselves, are not actually getting to the nub of the issue. Part of the problem these days is that we do not get back to basics by asking ourselves what law is about. Law is about promoting and protecting the common good and seeking to protect vulnerable people, in particular. It is about doing enough to achieve those goals, but not doing too much so that we end up unnecessarily encroaching on human freedom. The law always has to strike a balance between the promotion of the common good and the protection of human freedom. That is why all of us here, including myself as the first and perhaps the strongest advocate of the criminalisation of the user, have to listen with respect in the first instance to what Senator McDowell has to say. There are potential anomalies, contradictions and difficulties that have be reconciled. We cannot scoff at his example and say it is too extreme. We need to consider whether this potential downside of the legislation is justified by the good we are seeking to achieve. It seems to me that this would be a much more genteel and logical approach to the legislation before the House this evening.

It would be more dignified.

Roughly speaking, we can talk about three categories of people who will be affected by this legislation, the first of which comprises those who avail of so-called sexual services by purchasing them. Those who provide such services fall into the other two categories. Everybody agrees that pimps and controllers, who comprise the second category, should be criminalised and they will continue to be criminalised under this Bill. If we are to examine with honesty the vulnerability of the third category - those who supply the service themselves, often in circumstances of extreme vulnerability - we have to look beyond the simple issue of consent in the moment. People often come to prostitution against a background of sexual abuse, familial abuse, drug abuse, severe financial deprivation and human desperation. The proposed law seeks to recognise the context in which prostitution takes place in our society and to lessen the evil. I found myself in disagreement with Senator McDowell when he said that while he would be concerned to hear whether prostitution had come to an end in Northern Ireland, he did not want to hear about the experience in Sweden. I disagree with him because there is a need to look at the evidence. The evidence we are looking for is not the elimination of crime. Laws against crime reduce crime, but they never eliminate it. I have been trying to make this point for years in the context of the eighth amendment of the Constitution. People tell us that abortions go on anyway, which is something we know. All sorts of other tragic events happen. Sometimes the law brings down the incidence of the problem. I happen to believe that is true in the case of criminalising the purchaser of sexual services. It will help to make this country a colder house for traffickers. I think we need to rediscover some of the words that were at the heart of the address made to the UN General Assembly by the new UN Secretary General, António Guterres, but which have not been mentioned during this evening's debate. I refer to the concept of human dignity.

The idea of human dignity can unite people coming from disparate backgrounds, including people who come from a strongly feminist persuasion who approach this issue through that philosophical or ideological lens. As everybody here probably knows, the origins of Ruhama are rooted in the good work of certain religious congregations that have been focusing on the issue of human dignity. Human dignity is a concept that can unite all people of goodwill. The question we should be asking ourselves as friends this evening is whether this law will protect human dignity more than it will hurt it. I would argue that it will do so because it will inhibit trafficking. I believe it will decrease the incidence of prostitution. We have to be courageous enough to say that what is at stake here is not the power relationship between men and women, but the relationship between men and women in our society. We want to promote attitudes that are not conflictual or exploitative, but which are gentler and respectful. I will not get into talking about Ryan Tubridy and "The Late Late Show" last Friday night because I did not see it, thankfully. I believe it was a tremendously crass piece of television.

It was desperate.

Nonetheless, it got people tweeting quite a lot. I mention this because it is closely related to the point I am making in so far as it shows how quickly a tipping point can be reached that results in the exploitation of others. The exploitation of others - and it is mainly women who get exploited - is at the heart of prostitution. I was very impressed by a column written by Breda O'Brien in which she asked what young girl grows up with the aspiration of being in prostitution. I would like to conclude by making two pleas. I appeal for the abolition of phrases like "sex worker" and "prostitute" because they sanitise people in one case and stigmatise people in the other case. We should talk about "people who are engaged in prostitution" as something sad and regrettable that we need to work to end. I would also like to appeal for the question of whether this legislation might have unforeseen consequences to be taken very seriously. If Senator McDowell is right in what he says about the decriminalisation of the activities of one party and the criminalisation of the activities of the other party, that is not an argument for failing to criminalise the purchaser and the desirability of criminalising the user stands. It is an argument for revisiting this issue and we should always be open to a discussion on it. The unforeseen and unhappy consequences raised by Senator McDowell need to be considered. Perhaps they should be considered after 9 p.m. this evening to enable us to see whether this legislation needs to be tweaked to address them in some way, or whether this is simply something we need to review on an ongoing basis into the future.

Are other Senators indicating, because it will affect how long I will speak for?

There is one more after the Senator, Senator Martin Conway.

I will try not to take too much time. I would like to speak on one or two of the specific concerns raised by Senator McDowell and by my colleague, Senator Ruane, and then I will come to why I have reached the position of supporting the criminalisation of the purchase of sex. I want first to address the question raised about aiding and abetting. Currently, no prosecution has taken place of the purchaser using the argument that they were aiding and abetting. We have some precedent to look to which suggests that it would be unlikely that it would be used when we effectively flip the balance of criminality in this case. The background shows that this argument has never been used to prosecute purchasers, who may have been seen as aiding and abetting under the previous situation.

I also wanted to address------

It was not an offence for the woman to take money in the past.

I was speaking in terms of solicitation. I will keep going as I am very limited in my time. I have much less time than Senator McDowell.

I am sorry for interrupting.

I also wanted to speak on the question, which the Senator raised, of the fetish. It is not something that someone suffers with. People have fetishes and that is all very well and fine, but it is very important in areas such as sadomasochism that there is mutual desire and very clear lines in terms of consent. It is more important in those areas because of the potential damage that may come about. That is the question. It needs to be mutual and needs to be looked at in that regard. This Bill overall is very sex positive. The consent legislation is positive and allows for people to agree and engage. It looks to consent and the question of consent being ongoing.

There are two things that are going to happen as a result of this legislation in regard to where prostitution is still taking place, and we acknowledge that it will still take place. First, there will be a shift in the balance of power, which Senator Mullen spoke about. It is important, and it important to discuss it. My esteemed colleague, Senator Ruane, and I have debated this issue and have come to slightly different positions because I believe that this legislation will shift the balance of power in situations where prostitution is taking place. This is because it moves towards a situation whereby the person taking the risk is the person purchasing sex. Where previously there was no sanction, there is now the potential of sanction for that person. That strengthens the situation of power.

I disagree strongly but respectfully with Senator McDowell in respect of the vulnerabilities which he has seen and described. I see that the balance of vulnerability currently sits with the person who is selling sexual activity or is receiving money in respect of sexual activity. If we look to the evidence of it, we see a level, some 68%, of post-traumatic stress disorder amongst those selling sex, whereas the person purchasing has a clear choice. Research from the Dutch police found that over 50% of those working in legalised brothels were involuntary workers. They were not necessarily all victims of trafficking but suffered other forms of pressure and exploitation. The balance of exploitation and vulnerability absolutely sits with them. I heard very strong and important testimony from groups like Chrysalis, the Sex Workers Alliance Ireland and others, who spoke about the vulnerabilities of those currently engaged in prostitution. We need to be clear on where the balance of power actually is at the moment. It is my belief that this Bill will tilt that.

There is a second thing happening. First, there is a new criminal sanction for the person who is purchasing sex, but this legislation also reaffirms consent and makes it very clear that consent can be withdrawn at any point. There are two protections coming through in this legislation and two points which will strengthen the hand of the person who is giving consent. I want to speak about a couple of the phrases that were used in terms of the impact of this. One was the idea of the life ruined. This is language which has been used against consent. Senator Clifford-Lee put it very eloquently when she said that all lives have value. The damage prostitution causes in terms of post-traumatic stress and other issues has been very well documented.

I am conscious that I have many points and I wish that I had the length of time that we had been allocated. I did abstain on the guillotine so I would have liked a little more time on this. I want to speak on a couple of other specific points. I will be brief as my time is nearly up and I will pass to Senator Conway in a moment. I support this Bill because I believe those who purchase sex should be prosecuted. Ultimately, they are supporting an exploitative, violent, international and highly lucrative business worth tens of millions, a business which both benefits from and contributes to gender and economic inequality and also to the marginalisation of those who are LGBTQ in our society. I genuinely believe that prostitution is a contributor to this as well as something that benefits from these societal problems which need to be addressed.

As Senators we are not allowed to put forward amendments in respect of resources but I pledge that I will be pressing for and expecting action in respect of resources. We need to have resources, as was highlighted by my colleague, both to prevent those who are vulnerable entering prostitution and to assist those seeking to exit. We need to bring this to the Joint Committee on Social Protection. We need to look at the provision of health services. I recognise that demand and reduction of demand is one part, and that is what is being addressed here, but there is also a need to address the other range of supports which are required.

I welcome the review. I recognise there are concerns and I would regret if the review were to be amended away or removed, as Senator McDowell sought to do. A review will allow us to understand how this is being prosecuted. The Senator has spoken about his hypothetical scenarios but it will be good in three years if we can look to what has happened in terms of prostitution. I particularly welcome that the review looks at the safety and well-being of the persons who are engaging in sexual activity. It is welcome that this is central to it. I apologise for not leaving Senator Conway much time.

He has a minute or two left.


I have many other points that I would like to make but I will put them aside.

Will there be a time extension?

No. Unfortunately, the order of the day stands.

As somebody who was, with Senator Bacik and others, a member for five years of the Joint Committee on Justice and Equality, I worked extensively on the report. I came down very much on the side of what is being proposed. That was after many hours of consideration. I respect Senator McDowell and the arguments he has made, which might be well intentioned but I do not agree with them.

There was a "Prime Time" television programme about three or four years ago, produced by a gentleman, whose name, I think, was Paul O'Brien, that showed that prostitution was a systematic, well-organised and dangerous business involving the most vulnerable people in society. It showed there were a small group of highly organised criminals making tens of thousands a week by regularly transferring innocent, young and mostly foreign girls from one town to another. It was shocking, upsetting and very distressing.

As with all legislation that comes to this House, and Senator McDowell knows this well, if issues arise, they can be addressed and the legislation can be tweaked. That is why we have an Oireachtas, because laws change all the time. He has painted scenarios about young men coming up from the country and their lives being ruined and issues of blackmail. If, in the fullness of time, these scenarios present themselves, if people are blackmailed and if blackmail becomes an unintended consequence of this legislation, we can deal with that. This legislation has been on the political circuit for some time now and we owe it to the most vulnerable people in society to enact it and to ensure, as my colleague has rightly said, that the resources are put in place to ensure the lives of the people who need this most will be improved. The unintended consequences can be dealt with if they occur.

It is new in Northern Ireland, but it is working in other countries. The arrangements in those countries are not perfect, but they are a damn sight better than what we have here.

As it is now 9 p.m., I am required to put the following question in accordance with the order of the Seanad of this day: "That section 25 is hereby agreed to on recommittal, the Bill is hereby received for final consideration and the Bill is hereby passed."

It is customary to welcome the passing of a Bill. I would like to take this opportunity to acknowledge the role played by our former colleague, Máiría Cahill, who is in the Gallery, on this Bill when she was a Member of this House.

Question put and agreed to.

When is it proposed to sit again?

At 10.30 a.m. tomorrow.

The Seanad adjourned at 9 p.m. until 10.30 a.m. on Wednesday, 15 February 2017.