Criminal Law (Sexual Offences) Bill 2015

First Stage: 7 Oct 2015
Oireachtas Link: http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/seanad2015100600002?opendocument#O00100

Ivana's Contributions

Report and Final Stages: 21/01/2016

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Criminal Law (Sexual Offences) Bill 2015: Report and Final Stages

Thursday, 21 January 2016

Senator Ivana Bacik:   On a point of order, we have sat here and listened to Senator Norris make yet another speech against the policy that has been endorsed unanimously by the Committee on Justice, Defence and Equality and that is at the heart of the provision we are debating.

Senator David Norris:   I am still perfectly entitled to have my say on it.

Senator Ivana Bacik:   No. He is effectively making another Second Stage speech, having already filibustered through Committee Stage and delayed on that Stage.

Senator David Norris:   I am talking about the insertion of a new section. This is a classic attempt by the middle classes to stifle debate.

Senator Ivana Bacik:   On a point of order-----

An Cathaoirleach:   Please, Senator Norris.

Senator David Norris:   I have no intention of being silenced. The Chair can throw me out of the House but I will not be silenced.

Senator Ivana Bacik:   On a point of order, the Senator has been challenged on every point he has raised already, both on Second Stage and Committee Stage, by the Minister and a number of us. He is factually inaccurate in suggesting that what he said-----

An Cathaoirleach:   Senator Norris should resume his seat. He is not entitled to make a Second Stage speech. He should speak to the amendments.

Senator David Norris:   I am not making a Second Stage speech.

Senator Martin Conway:   He is.

Senator David Norris:   I am directly addressing these amendments.

Senator Ivana Bacik:   No, he is not.

Senator David Norris:   Yes, I am.

An Cathaoirleach:   Senator Norris, on the amendments.

Senator David Norris:   If Senator Bacik had been listening to me instead of gossiping and occupying herself with Twitter, she might then be in a better position to know whether-----

Senator Ivana Bacik:   I have been listening to the Senator ad nauseam.

An Cathaoirleach:   Senator Norris, on the amendments.

Senator David Norris:   I am on the amendments and will stay on the amendments.

Senator Martin Conway:   It is not nice to shout down a lady.

Senator David Norris:   I beg your pardon?

An Cathaoirleach:   Senator Norris on the amendments.

Senator David Norris:   I am sorry. I thought I heard a noise over there.

Cont’d

Senator David Norris: …. There is also no clear evidence on the relationship between the type of prostitution regime and the impact on the number of sex workers.

There is no information. What are we doing? In the absence of information, we are introducing these amendments. The purpose of these amendments, unlike the rest of the Bill, is to criminalise the purchase of sex, one side of a transaction. It is like criminalising the purchaser of a small amount of cannabis, leaving the drug pusher to go unscathed.

Senator Jillian van Turnhout:   It is not.

Senator Ivana Bacik:   It is not.

Cont’d

Senator David Norris:….. Some sex workers are concerned about the loss of decent clients and an increase of violent clients, and an increased involvement of organised crime groups and ‘pimps’.

That is who we should be going after, the pimps, not the mainly women who are involved.

Senator Ivana Bacik:   That is what we are doing.

CONT’d

Senator Ivana Bacik:   On a point of order, this amendment simply repeats what is already in section 20. If the Senator looks carefully at amendment No. 28, he will see the only changes it makes are to penalties and arrest power. The amendment is simply restating the provision that is already in section 20 otherwise in terms of policy. We have already heard from the Senator on Second and Committee Stages, when he made a long Second Stage speech on each occasion outlining his opposition to the policy at issue in section 20, but that is not at issue in this amendment.

Cont’d

Senator Ivana Bacik:   I welcome amendment No. 28 which restates the core principle in section 20 of the original version of the Bill to criminalise the purchase of sex. It also decriminalises the sale of sex and the person, usually a woman, engaged in prostitution. Senator Norris failed to take that on board in his polemic against the amendment and against the policy at issue. The policy, so clearly outlined by the Minister and other Members on Second Stage, is that of tackling demand by decriminalising the seller but criminalising the purchaser, the client. This is a policy the Joint Committee on Justice, Defence and Equality endorsed unanimously in its 2013 report.

  Senator Norris is so carried away with his own rhetoric that he missed that key point. This is very much an evidence-based legislative reform. It is based on evidence the committee heard, on a visit it made to Sweden and reports it read. It is also based on a recognition of the reality of prostitution and of the exploitation involved in prostitution, rather than on some romanticised or rose-tinted view of prostitution as a freely entered into contract between two equal individuals. The reality is very far from that.

  Senator Norris made some outrageous claims about the proportionate effect of this amendment and of the provision in section 20 suggesting-----

Senator David Norris:   I was quoting from government reports from Norway and Sweden.

Senator Ivana Bacik:   -----for example, that women engage in prostitution because the hours are convenient if one has children. I am sorry but that is just ridiculous.

Senator David Norris:   It is what they said.

An Cathaoirleach:   Senator Bacik, without interruption.

Senator David Norris:   Senator Bacik may consider it ridiculous but she is just trashing the women.

Senator Ivana Bacik:   With respect, Senator Norris spoke for half an hour - I timed it - having already made extremely lengthy speeches on Committee Stage in attempts to filibuster this Bill. I am happy that we will be able to conclude Report Stage in the Seanad today.

  There is a fundamental contradiction in the Senator’s arguments because he disparages and insults, as well as belittles, those of us who are supporting the Bill as being in some way unrepresentative and yet he points out he cannot get anyone to support him in his opposition to it. Perhaps all of us in this House who support this provision have been persuaded by the evidence. Perhaps we are not just a minority of feminists and ex-nuns as he suggested.

Senator David Norris:   They are supporting it because they are afraid.

Senator Ivana Bacik:   This provision is evidence-based. We have challenged every assertion Senator Norris has made on Second and Committee Stages. The 2013 Joint Committee on Justice, Defence and Equality report unanimously endorsed on a cross-party basis also debunks the arguments he made. We looked at the 2010 Swedish evaluation of the law and visited Sweden in 2012. We looked subsequently at the Northern Ireland report which came out after that which was based on interviews with 18 individuals.

Senator David Norris:   It was wrong.

Senator Ivana Bacik:   I note also that legislators in Northern Ireland, Canada, Norway and Iceland have followed suit with the Swedish approach, while it is under consideration in Britain and France, as it is elsewhere. The reality is that our model of law enforcement in prostitution is not working. A model which approaches it instead from the point of view of tackling demand, decriminalising the sellers and criminalising the purchasers is a better way in which to tackle exploitation.

  That is why I strongly support amendment No. 28. It restates the key provisions in section 20 of the original legislation. By changing the definition of "soliciting" or "importuning" in section 1 of the 1993 Act, it clearly decriminalises the seller of sex, which is welcome. It also increases the penalties for the offences of soliciting or importuning from the client’s point of view and for the organisation of prostitution, the living off the earnings from prostitution and brothel keeping. I particularly welcome the amendment of section 13 of the 1993 Act which allows for power of arrest for the new offence in section 7A. That is the provision I specifically sought on Committee Stage. I am glad to see that included as it will make the legislation clearly workable and enforceable by the Garda.

  On Committee Stage I expressed a concern about an amendment made to insert section 21 which will make it an offence to fail to comply with a Garda direction where a person is offering their services as a prostitute while loitering. This might lead to harassment of the people who we are decriminalising, namely, those engaged in selling sexual services. I accept it is not criminalising but it enables the use of Garda powers against them. Will the Minister look at the wording of this provision? There is a technical point about the wording too. Section 8(1) of the Act currently has an "a" or a "b”. Section 21 would insert a “c” but there is no “or” before it. It is a relatively minor drafting point which might be worth looking at again.

  The important policy provision is really deserving of all our support, namely, decriminalising the seller and criminalising the purchaser or client. I cannot see the principled objection to that when anyone recognises the reality involved in the exploitation of prostitution. Any Senator who disagrees with that should find out a little more for himself or herself in looking at the research, meeting those women engaged in prostitution and talking to those engaged in front-line services, such as Ruhama and the Immigrant Council of Ireland, which has conducted important research into migrant women who are strongly exploited here. I welcome all those in the Visitors Gallery who have been involved in the Turn Off the Red Light campaign to end demand.

Senator Jillian van Turnhout:   I, too, support amendment No. 28. I had not formed my opinion on this issue when I first entered the Seanad. It is something I have researched on my own and then met with others to form my opinion. The reality is that the 2009 Kelleher report stated 11% of those trafficked into Ireland for sexual exploitation were under 18 years of age. We know from the Ekberg report of 2004 that the majority of women who enter prostitution first do so as minors. I am not going to get into selective quotes and going back and forth. I want the record to clearly show that I formed my own opinion and looked at the evidence. With the greatest respect, I listened to Senator Norris on Second and Committee Stages. I re-read the research to ensure I felt a similar strength of opinion regarding my views. That is why it is good to have a debate and to hear dissenting voices.   The Senator has the idea he is in a minority of one and the rest of the House has come together to ram through this legislation. We are not here to do that. This legislation has been debated considerably in this House. I am part of a group of colleagues which tabled two motions on this issue. It went to the justice committee and a range of submissions were received, the majority of which were in support of the policy approach that is being taken here.

  I have listened carefully to the comments but I am confirmed in my opinion. I support this amendment and I agree with Senator Bacik who is correct about this matter. I support the proposals to criminalise the purchase of sex but it is also welcome to see proposals for decriminalising of the sale of sex. This does address some of the issues raised. I would like to make it clear to the House, and I am sure it is clear to many of my colleagues, that we can read the evidence and make up our own minds. I like to read the full evidence. I have met with people who work in law enforcement in Sweden who have told me a different story to the one presented here by Senator Norris. However, I will not get involved in a back and forth as we have formed our own opinions. I respect Senator Norris's opinions and I ask that he would respect-----

Senator David Norris:   I respect Senator van Turnhout's opinions, but there are those in this House who are bullied into supporting this legislation.

Senator Jillian van Turnhout:   I wanted to make the record absolutely clear. Thank you.

Cont’d

Senator Ivana Bacik:   I commend colleagues for putting down these amendments. There has been a broad welcome for section 34. It has been hugely important to see for the first time in statute these very important provisions on disclosure of third party records, which have been such an important issue for so many complainants and for their legal teams, and, indeed, for rape crisis centres which have been working with them for some time. I commend the Minister for the provision in section 34.

  There is a concern about the issue of non-disclosure and in what context complainants and witnesses waive the right to non-disclosure. That is at the heart of these amendments. This is an issue worthy of further consideration.

CONT’D

Senator Ivana Bacik:   I add my voice to that of Senator van Turnhout and others to say how delighted I am to see the Bill pass Report Stage in the Seanad. I am also delighted that the Minister introduced the Bill as a Seanad Bill. I thank the Minister and commend her on her great work on the Bill and on bringing forward such a comprehensive and ground-breaking piece of reform. In particular, I thank her hard-working officials who have been so patient with us during the long process of the Bill. They helped us so much with numerous queries. I thank them all very much.

  The Bill is ground-breaking in many ways. It provides for comprehensive reform of the law on sexual exploitation of children, incest and prostitution, and also introduces some very important evidential changes which will provide great support for victims and complainants, particularly for child witnesses in sex offence trials. Many of the measures in section 31 are going to be really significant and important in practice, especially for child witnesses, in addition to the provisions on disclosure that we debated so much as well.

  In terms of the change to prostitution law in section 20, that has had a long journey from when the Independent Senators tabled the original motion in this House in 2012, through our work on the justice committee and our report in 2013, in addition to all the public debate around it. I commend the Minister on her introduction of the Bill. It will make a real difference in terms of the law on prostitution to see for the first time the decriminalisation of sellers and the criminalisation of buyers of sex. I welcome the considerable work of civil society groups on that law reform in particular - groups such as Ruhama, the Immigrant Council of Ireland and the Turn off the Red Light campaign. I also commend the many other groups who worked on that reform and on the important reforms for victims and complainants, particularly the Dublin Rape Crisis Centre, Rape Crisis Network Ireland and various groups of counsellors who all helped us so much and gave their input on the Bill.

  All of us who support the Bill will very much hope that it will see passage through the Dáil in the limited time available to the Government. I know the Minister will do all she can and we will do anything we can to help secure the Bill's passage, because the reforms it provides for are so important. As the Minister said, the Bill is ground-breaking, comprehensive and of such significance that it is vital that we see it passed in the next week or so.

Committee: 14/01/2016

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Criminal Law (Sexual Offences) Bill 2015: Committee Stage (Resumed)

Thursday, 14 January 2016

Senator Ivana Bacik:   I apologise for interrupting but when we adjourned this debate in December I had indicated that I wanted to speak on section 39.

Acting Chairman (Senator Paschal Mooney):   Go ahead, Senator.

Senator Ivana Bacik:   I was taken by surprise by the speed of the Acting Chairman. I wish to briefly raise an issue on the offence created in section 39 of "exposure, sexual conduct of an offensive nature". I raised this previously with the Minister and her officials. I know that there is quite a long history to the relevant previous offence of indecent exposure and that there has been some litigation and constitutional judgments relating to the issue of vagueness of language concerning this type of offence.

  I wish to raise a concern which I have raised previously with the Minister and her officials with the wording of subsection (3) of section 39 which reads as follows, "A person who intentionally engages in offensive conduct of a sexual nature is guilty of an offence." That is still a very widely defined offence. Subsections (1) and (2) are very carefully framed. Subsection (1) very clearly concerns a very specific act, while subsection (2) concerns a person in a public place who engages in a series of specific acts. However, there is no such restriction about a public place in subsection (3) and I am concerned that "offensive conduct of a sexual nature" is too broad a term.

  Subsection (6) provides for a definition of "offensive conduct of a sexual nature" which is very welcome, especially as it is quite specifically drawn. However, I have a residual concern that saying that conduct which is likely "to cause fear, distress or alarm to any person who is, or might reasonably be expected to be, aware of any such behaviour" is still quite a subjective test. I know there is an objective element to it but concerns have been raised with me by constituents about this.

  A homophobic person, for example, might raise the fact that he or she suffered "fear, distress or alarm" by the behaviour of a gay couple but that would not be the sort of behaviour that one would want to see covered by this offence. There is a concern that it might give room, credence or justification to homophobic complaints. That is the concern that has been expressed to me and I ask the Minister to reassure me on that issue. I know that changes have been made to the way this offence has been drafted and that there is an awareness of the need to ensure that people will not be able to raise unjustified complaints about behaviour.

Minister for Justice and Equality (Deputy Frances Fitzgerald):   I thank the Senator for her comments. Following a number of judgments in the High Court which struck out offences relating to public indecency and exposure, section 39 will replace section 18 of the Criminal Law (Amendment) Act 1935. It provides for new offences to address certain behaviours. These are very clearly spelled out in the section. We have taken extensive legal advice and have liaised with the Director of Public Prosecutions and others on this section. I am very strongly advised that these provisions set an objective standard as the test for offensive conduct, that is, conduct which may be reasonably considered offensive by many.

  Obviously, I take the point Senator Bacik is making. She is concerned that defining offensive conduct of a sexual nature as behaviour which is likely to cause fear, distress or alarm to any person could lead to the criminalisation of behaviour which is not intended to offend. The Senator has given an example and I understand her concerns. However, I want to reassure her that the definition as currently drafted establishes an objective test of what might reasonably be considered offensive, having regard to all of the circumstances. I am strongly advised that conduct that is not offensive per se such as the Senator Bacik described in her example would not be captured by this offence. The strong legal advice I have is that the drafting is quite strong.

Senator Ivana Bacik:   I thank the Minister for her response. It is helpful to put on the record that it is an objective test and is designed to be such.

  Question put and agreed to.

  Sections 40 to 42, inclusive, agreed to.

  Amendment No. 46 not moved.

  Section 43 agreed to.

  Amendment No. 47 not moved.

  Section 44 agreed to.

CONT’D

Senator Ivana Bacik:   I should have welcomed the Minister and wished her a happy new year. I also welcome the groups represented in the Visitors Gallery which have worked hard to secure the passage of this Bill, with all of the important provisions it contains. We are all very hopeful it will be enacted before the dissolution of the Dáil.

  I commend Senator Katherine Zappone for the important provisions proposed in amendment No. 48. They raise important issues concerning the statutory definition of consent in sexual offences. I have already communicated with the Minister's office on this issue and, as the Senator said, the Minister is likely to propose amendments on Report Stage.  We very much welcome that. The Senator outlined a very difficult and complex area, particularly when one considers statutory definitions of consent generally. The English Sexual Offences Act 2003 provides in section 74 for a statutory definition of the concept of consent that is very broad. In that, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice. That very broad definition has been criticised for being too broad and allowing too much discretion to judges and jurors in its interpretation. Senator Zappone's provisions are much more detailed and clearly relate specifically to issues around abuse of positions of dependence and trust. In framing any amendments, it is difficult to strike the balance between allowing a definition to be broad enough to encompass the idea of freedom and capacity, which is so central to consent, and yet be detailed enough so that any discretion can be structured rather than too open to subjective interpretation by jurors. I appreciate that it is a difficult task to draft these amendments.

  I will briefly mention another amendment that I know Senator van Turnhout will put forward on Report Stage. It is an amendment to section 33. On the last day we did not get an opportunity to discuss her amendments Nos. 35 and 43 to section 33, which concern third party disclosure. I know we were all hopeful that we would conclude Committee Stage on 11 December last year and at that point Senator van Turnhout did not engage in any detailed discussion of those amendments. I know we have now dealt with them but on her behalf - she is engaged in business before the UN Committee on the Rights of the Child - I notify the House that she will put forward another amendment to section 33 on Report Stage concerning third party disclosure. She has probably contacted the Minister about this already. This will be an amendment to section 19A(17) of the 1992 Act, where the complainant or witness has expressly waived his or her right to non-disclosure of a relevant record without leave of the court. I thank the Acting Chairman for allowing me to raise that matter.

RESPONSE: Minister Deputy Frances Fitzgerald:   I thank Senators Zappone and Bacik for their contributions. It is obvious from their comments that there has been much discussion with the Department on the issue over a protracted period and I thank them and other Senators for putting forward their views. On foot of the responses to the discussion paper mentioned by the Senators, a number of concerns raised are being addressed in the amendments that I will bring forward on Report Stage. Bringing forward these amendments will give us the opportunity to discuss the issue again.

  On the question of consent, I have met Dr. Susan Leahy, who completed her doctorate on the question of consent. It is very detailed work and my officials have been in touch with her as well to discuss the issue. In some jurisdictions there are definitions that are elaborate but we rely on case law. There is quite a debate as to whether we should go down that direction in terms of definition. I am examining this very carefully as I do not want to undo some of the very good work that has already been done with this. At the same time, if a stronger definition is going to strengthen the opportunity to prosecute in cases of crime where it can be notoriously difficult to achieve prosecution, I will bring it about. The matter is being examined very carefully from the legal perspective.

  I cannot accept the Senator's amendments but I should provide some context. The Government and I fully support the repeal of section 5 of the 1993 Act and necessary measures will be brought forward. We are fully committed to addressing the principles behind the Bill, as we have made clear. The fact that the necessary amendments have not been brought forward today - they would have had to have been in by 9 December last year - is entirely a reflection of the complexity of the issue. I have been considering the range of legal issues and we have been getting extensive legal advice on them. They are extremely complex from a criminal law perspective, as the Senator appreciates, notwithstanding the periods involved with our discussions.

  Section 5 of the 1993 Act is a very blunt instrument. It identifies a group of people by reference to mental handicap or mental illness and offers complete protection based on their ability to live an independent life or guard against serious exploitation. In particular, where the section refers to a person being "incapable" of living an independent life, it fails to recognise that a person who may need assistance with certain daily routines or tasks is nonetheless perfectly capable of making decisions about personal and sexual relationships and the wide protection offered by section 5 is, in this respect, unwarranted. I absolutely accept that.

  This is relevant given the Government's policy on supporting people to the greatest extent possible in living ordinary lives in ordinary places. By definition, this includes having relationships with other people, whether that is friendship or more. That duty sits alongside the duty to provide appropriate protection for those at greatest risk of exploitation. There are balances and we are trying to find a legal formulation to deal with that issue. For the first time we are seeking to introduce provisions into our criminal law that will protect only those who are unable to protect themselves while ensuring the rights of everybody to engage in everyday relationships. The challenge is that criminal law cannot be vague and there must be clarity as to the nature of an offence. Where the law purports to offer special protection, those it protects must be identifiable; that is a very obvious statement but it has proven complex in many ways.

  As I have stated, we found the consultation process useful in hearing a wide range of views and proposals. There was not a clear consensus on the way forward. The time it has taken to bring forward these proposals reflects the consideration they have received. They are very close to finalisation. I have looked at them in detail. The final proposals will represent the very best solution available in criminal law for this issue.

  With regard to the amendments put forward today, the proposed new section substitutes a new offence of abuse of position of dependence and trust. The offence arises where a person, being in a position of dependence and trust, takes advantage of his or her position and induces or seduces a person to have sexual intercourse with him or her or commit any other sexual offence involving a person. The proposals do not deal with situations outside this category of offence of abuse of position of dependence and trust. For example, a person who may be vulnerable to exploitation and who is so exploited by a neighbour, for example, may not be afforded the protection of this provision. In other respects, the provision is quite wide, as it does not include any limitations on persons who may fall within the category of a victim of this offence.

  In terms of the defence of consent in subsection (2) of the proposal, consent must be granted freely and in the absence of duress or coercion. There is some concern as to whether this defence could be successfully relied upon where a person in a position of dependence and trust taking advantage of that position would effectively groom a victim for the purpose of having sexual relations. Depending on the form of act or activity involved, it may not amount to duress or coercion. There is a continuum with which it is difficult to deal.

  In its report on sexual offences and the capacity to consent, the Law Reform Commission frames an offence on the basis of capacity to consent. The proposals being developed within the Department also contemplate the approach of capacity to consent.  I share, as does my Department, the Senator's commitment to uphold and promote the integrity and rights of all persons. I have made it clear that we are obviously not satisfied with section 5. We are preparing an amendment that addresses what she has outlined in the best possible way. It is very complex. The ongoing work is equally focused on that goal. Where persons are at a greater risk of exploitation or abuse, the law must offer appropriate protection as, I am sure, the Senator would agree.

  We are looking at several issues and finalising the amendments, including the definition of "vulnerable person" and the issues around consent. I am not in a position to accept the amendments today. We are working very closely with the OPC on the final drafting and I hope we will make good progress in the coming days.

CONT’D

Acting Chairman (Senator Paschal Mooney):   When is it proposed to take Report Stage?

Senator Ivana Bacik:   Next Tuesday.

  Report Stage ordered for Tuesday, 19 January 2016.

Acting Chairman (Senator Paschal Mooney):   When is it proposed to sit again?

Senator Ivana Bacik:   Next Tuesday at 2.30 p.m.

  The Seanad adjourned at 2.30 p.m. until 2.30 p.m. on Tuesday, 19 January 2016.

Committee: 11/12/2015

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Friday, 11 December 2015

Criminal Law (Sexual Offences) Bill 2015: Committee Stage

Senator van Turnhout has spoken on this issue previously in the Seanad. There is a great deal of sense in her point about the terminology used. It may not be possible to do it in this Bill and I accept there are issues particularly around the international language used and particularly as the Bill is explicitly required to give effect to a directive on combatting sexual abuse and sexual exploitation of children and child pornography. As the Senator said, there is an issue about the language used in EU and international treaties. We might look towards changing that culture where that language is used and rename it. I accept that would require a great deal of work in terms of education and so on but it would be a good idea to rename it to reflect more accurately exactly what we are talking about here.

Cont’d

An Cathaoirleach:   That is Committee and Remaining Stages.

Senator David Norris:   That means a guillotine.

Senator Ivana Bacik:   No, that was the Courts Bill. It is Committee Stage only of this Bill, which was to commence on conclusion of the Committee and Report Stages of the Courts Bill, which is being taken. We have concluded all Stages of the Courts Bill.

An Cathaoirleach:   Sorry, Senator. This is Committee Stage of the Criminal Law (Sexual Offences) Bill 2015. The proceedings and Committee Stage shall be taken on conclusion-----

Senator Ivana Bacik:   On Committee Stage.

An Cathaoirleach:   -----of the debate on Committee and Remaining Stages of the Court Bill.

Senator Ivana Bacik:   Yes, the Committee Stage of this Bill.

Senator David Norris:   The Committee and Remaining Stages of the Court Bill.

Senator Ivana Bacik:   Yes, it is Committee Stage only of this Bill-----

Senator David Norris:   Yes.

Senator Ivana Bacik:   -----which is to adjourn at 5.30 p.m.

Senator David Norris:   The Courts Bill is a different Bill.

An Cathaoirleach:   Yes, sorry. Is section 3 agreed?

Cont’d

Senator Ivana Bacik:   I welcome amendment No. 26, which the Minister had flagged on Second Stage and which was requested by the Committee on Justice, Defence and Equality. I also welcome those in the Gallery who have been involved in moving forward this law reform, particularly the Immigrant Council of Ireland, Ruhama and the Turn Off the Red Light campaign. We debated the policy behind the provisions of sections 20 and 21 on Second Stage and they are very welcome to target demand and to criminalise the purchase but not the sale of sexual services. I see amendment No. 26 as very important in confirming that policy because, as the Minister of State has said, it will decriminalise services as a prostitute by making that amendment to section 1 of the 1993 Act. That is very important. As the Minister has said, it will bring this jurisdiction into line with the law in Northern Ireland and in Sweden and other Nordic countries that have taken a similar approach to tackling demand. To stress that again, the women and men engaged in prostitution and the sale of sexual services will be themselves decriminalised. Sometimes those who criticise the Nordic approach have suggested this is all about criminalising clients. Offences around the purchase of sex are already criminalised.

Senator David Norris:   They should be decriminalised.

Senator Ivana Bacik:   This approach decriminalises those engaged in prostitution, recognising the exploitation involved. In this regard, I understand why amendment No. 30 has been included. I have some concern that it may lead to harassment on the street of those engaged in selling sexual services, those women and men engaged in prostitution. While I understand that, as the Minister of State said, it does not criminalise prostitution, which is now decriminalised, it does provide for the offence of failure to move on when directed to do so and specifically with reference to somebody who is loitering for the purpose of prostitution. I would ask that some regard might be paid to this if we are going to put that amendment through. I understand the public order issue, but we might look at guidelines for An Garda Síochána as to how it operates that provision. Those of us from the Committee on Justice, Defence and Equality who travelled to Sweden and heard about how the law there is implemented were very impressed by the multi-agency approach and by the exit strategies the police and social services were all engaged with. It was not just criminal justice.

Senator David Norris:   It should be ensured there is a sympathetic voice in those social services.

Senator Ivana Bacik:   It is, therefore, very important there is joined-up thinking and that the Garda is not, on the one hand, being given a directive that it should be moving on women or men involved in selling sex on the street and, on the other hand, trying to work with them to ensure the criminalisation of clients and pimps. We need to be careful about that. I very much welcome amendment No. 26. It is welcome and very much in line with the Committee on Justice, Defence and Equality request. Perhaps the Minister of State might consider putting forward an amendment to section 13 of the 1993 Act on Report Stage in line with the overall policy objective of section 20. That would be to extend to section 7A, the new offence that is inserted by section 20 of this Bill, the power of arrest already present for section 7 offences. It is a power of arrest contingent on the new offence in section 7A-----

An Cathaoirleach:   The Senator is speaking on the section now.

Senator Ivana Bacik:   I can come back to that. I just wanted to save time by referring to that now.

Senator David Norris:   I welcome the people from Turn Off the Red Light. I completely oppose their position and suspect their motivation. The information supply has been disastrous. Senator Bacik spoke about social workers in Sweden. Attempts were made to silence a considerable number of social workers in Sweden who have spoken out and given statements contradicting the position of Turn Off the Red Light. There is something incredibly patronising about people defining somebody as a victim despite that they do not feel they are a victim. They have no right to say they are not a victim. I welcome the Cathaoirleach's guidance on the matter. I am opposing the section, so I presume I do not speak until the section comes up for discussion.

An Cathaoirleach:   We will give the Senator the right to do that when we get to the section.

Cont’d

Senator David Norris:   Radical feminists and ex-nuns.

Senator Ivana Bacik:   Senator White might be interested to know that the justice committee received unanimous support for the proposal to adopt the policy approach of decriminalising the sale and criminalising the purchase of sexual services.

Senator David Norris:   Is this an interruption?

Senator Ivana Bacik:   No. It is my contribution on Senator White's amendment.

Senator Fidelma Healy Eames:   It is not a point of information.

Senator Ivana Bacik:   No. I asked to contribute in the same way any other colleague would.

Senator Mary M. White:   Senator Bacik is the key driver of it.

Senator Ivana Bacik:   In fact, a number of members of the justice committee, from all parties and none, drove this. Senator White's Fianna Fáil colleagues fully endorsed the proposal.

Senator Mary M. White:   On a point of order, I know people in the Chamber who agree with me but do not want to stand up and speak in public.

Senator David Norris:   Exactly.

An Cathaoirleach:   Senator Bacik is entitled to make her point.

Senator Ivana Bacik:   Senator O'Donovan, Senator White's colleague in Fianna Fáil, travelled with us as part of the justice committee delegation. We received unanimous, cross-party support on the justice committee for the recommendation, which was subsequently developed by the Minister for Justice and Equality, Deputy Fitzgerald, and the Minister of State, Deputy Ó Ríordáin. It certainly is not a coalition of different views, as Senator White suggested.

Senator Mary M. White:   It is right-wing.

Senator Ivana Bacik:   It represents an evidence-based approach to tackling a serious issue of exploitation.

Senator Mary M. White:   There is no evidence.

Senator Ivana Bacik:   If Senator White disagrees, I invite her to read the report of the justice committee, which received cross-party support from people of all parties and none.

An Cathaoirleach:   I call the Minister.

Senator David Norris:   I beg your pardon.

An Cathaoirleach:   I am sorry, Senator Norris.

Senator David Norris:   The Cathaoirleach noticed me.

An Cathaoirleach:   I could not but notice you.

Senator David Norris:   The justice committee turned its face against considerable evidence. The document Research into Prostitution in Northern Ireland, prepared at the request of the Northern Ireland Department of Justice, is unequivocal, and our justice committee did not mention it. The objective, scientific realities were completely ignored. The Chairman of the justice committee, Deputy Stanton, put a notice on his website fully endorsing the Swedish model before the committee had heard any evidence. This shows how open-minded he was. Senator Bacik is right that the committee does not represent a diverse group of opinion. This is the problem with it. All the members are singing from the same hymn sheet.

Senator Ivana Bacik:   The committee members are from Fianna Fáil, Sinn Féin and the Labour Party.

Senator David Norris:   I am very happy to be interrupted by the Senator who says she never interrupts.

Senator Ivana Bacik:   Senator Norris would know all about interrupting.

Senator David Norris:   I do. I practice it. It is a parliamentary skill in which Senator Bacik is very well versed. I have much to say about the committee. The members neglected to involve themselves with a series of people who proposed to talk to them. They omitted matters from the report.

An Cathaoirleach:   We are not discussing the report.

Senator David Norris:   We are.

An Cathaoirleach:   We are discussing the amendment.

Cont’d

Senator Mary M. White:   I do not understand it. We have a professor of law who does not want a review of these matters. I regard Senator Bacik highly but-----

Senator Ivana Bacik:   I did not say that. I stated my opposition to Senator White's point that those in favour of section 20-----

An Cathaoirleach:   The record of the House will speak for itself. Senator White, without interruption.

Senator Mary M. White:   Amendment No. 29 is about having a review in two years' time.

Senator Ivana Bacik:   I did not express a view on the Senator's amendment.

Senator Mary M. White:   Is Senator Bacik happy to have a review?

Cont’d

Senator David Norris:   That is fine as long as I can continue. I just have a few more points to make.

Senator Ivana Bacik:   We can continue if the Senator has just a few more points. I am conscious of the need of the Minister of State for a break.

Senator David Norris:   It will take perhaps up to five minutes.

Senator Ivana Bacik:   That is fine. I just wanted to advise the Cathaoirleach that we need to take a break shortly.

Cont’d

Senator David Norris:   Some.

Senator Fidelma Healy Eames:   I just want to finish. Is their evidence built into the recommendation?

Senator Ivana Bacik:   Yes.

Senator Fidelma Healy Eames:   I am very pleased to hear that, because we do need to hear the diversity of voices.

  We have had so much talk that I am not sure if there is a review built into this legislation. Can the Minister of State confirm that?

Senator David Norris:   No. The Minister of State said "No."

Senator Ivana Bacik:   We are on section 20.

Senator David Norris:   The Minister of State can speak for himself.

Cont’d

Senator Ivana Bacik:   I thank the Minister of State for his response. I was one of the Senators who contacted the Minister for Justice and Equality about various points concerning section 33 and on ways in which the disclosure regime could be strengthened, as well as the rights of victims protected. I look forward to the Report Stage debate on this.

Senator David Norris:   These are quite important amendments and I appreciate the Minister of State has addressed them. I note, for example, that amendment No. 36 is in the names of Senator O’Donovan and the Sinn Féin Senators. I presume this is as a result of extensive lobbying by groups interested in this area.

  One does not want records disclosed all over the place willy-nilly. The amendment certainly seems to have merit in that it should be a “record that has some probative or evidential value to the alleged sexual offences that is or are the subject of the criminal proceedings.” We all know the ways of lawyers, pace Senator Professor Dr. Bacik.

Senator Ivana Bacik:   Excuse me.

Senator David Norris:   Sorry, the Senator was blowing her nose.

An Cathaoirleach:   Senators, through the Chair.

Senator David Norris:   I said we all know the ways of lawyers, pace Senator Dr. Professor Bacik. I am excusing her from the practice of lawyers.

Senator Ivana Bacik:   Sorry, I could not hear the Senator.

Cont’d

An Cathaoirleach:   Senator Bacik just indicated to the Chair, Senator.

Senator David Norris:   I thought Senator Bacik wanted me to stop.

Senator Ivana Bacik:   No, I indicated that I wanted to speak next.

An Cathaoirleach:   Yes.

Second Stage: 07/10/2015

http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/seanad2015100600002?opendocument#O00100

Tuesday, 6 October 2015

Criminal Law (Sexual Offences) Bill 2015: Order for Second Stage

  Bill entitled an Act to give effect to Directive No. 2011/93EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA, for that purpose to amend certain enactments; to amend the Punishment of Incest Act 1908; to amend the Criminal Evidence Act 1992; to repeal the Criminal Law (Incest Proceedings) Act 1995; to amend the Criminal Law (Sexual Offences) Act 2006; to provide for offences relating to payment for sexual activity with prostitutes, offensive conduct of a sexual nature and harassment of victims of sexual offences and to provide for related matters.

Senator Ivana Bacik:   I move: "That the Second Stage be taken now."

  Question put and agreed to.

Criminal Law (Sexual Offences) Bill 2015: Second Stage

  Question proposed: "That the Bill be now read a Second Time."

 

Senator David Norris:   Without adequate consultation-----

Senator Ivana Bacik:   There were 800 submissions.

Senator Ivana Bacik:   I welcome the Minister and her officials to the House and welcome all those in the Gallery who have played such a strong role in helping to form the shape of and influence this Bill for the good, namely, the Immigrant Council of Ireland, Ruhama, ICTU, the INMO and the Dublin Rape Crisis Centre in particular. As the Minister said, it is a genuinely reforming Bill which brings in substantive and significant changes to our law on sexual offences. If there is one overarching theme, it is that it is a Bill which addresses sexual exploitation, in particular of children and those engaged in prostitution. I am particularly proud of the role the Joint Committee on Justice, Defence and Equality has played, to which the Minister paid tribute, in formulating some of the policy basis for the changes proposed in the Bill. I take strong issue with some of the comments by Senator Mary White on the changes in Part 3 of the Bill relating to prostitution and I will speak on those in a moment. I absolutely agree with all Senator Zappone said on Part 3 of the Bill, in particular relating to sections 20 and 21 on the changes in prostitution law.

  Two aspects of the Bill are particularly welcome. Part 2 deals with sexual exploitation of children, which Senator Noone has dealt with in detail. I wholeheartedly welcome the changes here, particularly those in sections 16 and 17 that change the 2006 Act in respect of the defence of mistake and in respect of consensual underage peer relationships. These are sensible changes that will greatly enhance protections in our law for children.

  Part 5 of the Bill deals with provisions for criminal evidence. I welcome a couple of changes there, in particular section 33 which deals with disclosure of third party records in sex offence trials. The Dublin Rape Crisis Centre has worked very hard on this. Senator van Turnhout introduced amendments on this issue in 2013 which I supported and the Minister deserves our thanks for bringing in these careful provisions. I know from colleagues in practice what a huge issue the disclosure of records, particularly counselling records, has been in sex offence trials. It will be helpful for practitioners, judges and, most of all, complainants to see the clear criteria set out for decision making on the question of disclosure.

  I also welcome section 30, a provision granting protection against personal cross-examination by the accused in sex offence trials where a witness is under 18 and under 14, for which there are different provisions. We are carrying out research in Trinity College on the real trauma that can be caused to complainants where a defendant chooses to cross-examine in person and currently there is no restriction on that in Irish law but this Bill will change that. It has been a huge and high profile issue in other jurisdictions and I am glad to see we are taking pre-emptive action. I suggest we consider extending this, perhaps in a more limited form, to adult complainants. This has been done in other jurisdictions to some positive effect.

  Part 3 has been addressed in detail by others but I agree with and strongly support the new provisions in sections 20 and 21 concerning purchase of sexual services. Those who have commented on this should know that these changes are supported by a wide range of organisations, including the Immigrant Council of Ireland, the National Women's Council, Ruhama and the Turn Off the Red Light campaign.  The change is only being introduced, as Senator Katherine Zappone said, following careful consultations and, in particular-----

Senator David Norris:   It is the argument of one side.

Senator Ivana Bacik:   -----the long consultations carried out at the Joint Committee on Justice, Defence and Equality. Like Senator Katherine Zappone, I was proud to be part of that and part of the small group which travelled to Sweden and heard direct evidence from those engaged in front-line implementation of the Swedish approach there. Our committee received 800 written submissions. We heard from 26 individuals and representatives of groups through public hearings. Senators may be interested to know that, through hearings, we heard from those for and against the Swedish approach. We heard from those engaged in prostitution both for and against the Swedish approach. I ask colleagues to look at the evidence basis of our recommendations and our report which is careful and well-worded and sets out how persuasive we found the evidence on the reduction of demand for prostitution in Sweden since the introduction of the prohibition on buying sex there in 1999. We noted that 80% of the submissions to us favoured the Swedish approach, that these were drawn from a broad cross-section of civil society, including, trade unions, frontline medical workers, service providers and those working with migrants, in particular.

  We also found, again on evidence we heard, that prostitution is widely available across Ireland. It is highly organised, highly profitable, highly exploitative and largely controlled by organised crime interests. We heard that women enter prostitution in Ireland at a young age, many under 18, many are trafficked into prostitution and the vast majority are subject to control by a third party or pimped.

  Even those witnesses who told us that they had entered prostitution freely and who argued against the Swedish approach said they represented, at most, 15% to 20% of those engaged in prostitution. Clearly, there is a huge level of coercion and exploitation taking place on a daily basis across Ireland in the actual reality of prostitution and yet I know, as a former practising lawyer, how flawed our current Irish model for regulating prostitution is based on public order and on prohibiting the visible manifestation of prostitution through criminalising loitering and soliciting.

  I welcome the Minister's undertaking that she will bring forward amendments in this House to further decriminalise those women and men involved in selling sex and prostitution by removing those who offer sexual services from the existing offences of solicitation and loitering. We did not address this directly in the Joint Committee on Justice, Defence and Equality report but we asked the Minister to make those amendments to the legislation. We found ultimately that the focus of our current law on regulating supply and on targeting those engaged in selling sex, because those convicted of prostitution-related offences are overwhelmingly women and overwhelmingly those selling sex, was flawed and ineffective and we argued instead that we should adopt, as we are going to do in this legislation, a different approach which targets demand and criminalises only the purchase and not the sale of sex, similar to that introduced not only in Sweden but in other jurisdictions, including Norway, Iceland, Canada and, very recently, our neighbouring jurisdiction of Northern Ireland. There are real and valid concerns that if we do not adopt a similar law, we may become a safe haven for traffickers moving women South. We know the immense levels of exploitation here in the sex industry and we know who extensive it is.

  The approach we are seeking to adopt in sections 20 and 21 is a sensible alternative one. We also found from our studies in Sweden and in our research that the Swedish law is part of a multi-policy initiative; it is not just a penal law approach. The Swedish authorities have also introduced harm reduction measures, initiatives to support those exiting from prostitution and, generally, they have adopted a holistic approach to tackling prostitution.

Senator David Norris:   They have not. They do not distribute condoms.

Senator Ivana Bacik:   That is what we recommended in our report should be undertaken here.

  I strongly welcome this initiative. May I quote Monica O'Connor, who gave an excellent briefing, along with Nusha Yonkova, earlier to colleagues on the changes? The idea of free choice in prostitution is a misnomer. For anyone who has investigated and looked at the evidence, we know that prostitution in Ireland, as elsewhere, is about exploitation and commodification, in particular, of women but of those selling sex generally. We know the approach adopted in Sweden has had a strongly positive normative effect on social attitudes to sexuality and to equality. We seek to introduce a meritorious set of amendments.

  I strongly support the Bill and look forward to raising issues, in particular issues around section 39 and around the definition of "consent" which I have raised previously with the Minister's officials. I hope the Minister might consider accepting amendments on section 39, in terms of vagueness of language on the indecency offence, and the definition of "consent" in sex offences, which has been raised with her by the Rape Crisis Centre and the Rape Crisis Network.