Wednesday, March 21, 2007

Criminal Law (Sexual Offences) (Amendment) Bill 2007 - Committee and Remaining Stages - 7th March 2007

Criminal Law (Sexual Offences) (Amendment)
Bill 2007: Committee and Remaining Stages 7th March 2007

Section 1 agreed to.
SECTION 2.
Mr. Ryan: I move amendment No. 1:
In page 3, line 20, to delete “inserted” and
substitute “as substituted”.
I will not spend long on this amendment, as some
of the others are more substantive. I am advised
the word “inserted” should not be used and the
appropriate legal term would be “as substituted”.
While I will not start a big row with as eminent a
lawyer as the Minister, I have great faith in the
people who give me advice.
Ta´ naiste and Minister for Justice, Equality and
Law Reform (Mr. M. McDowell): Either is
acceptable. If a section is inserted in lieu of
another one, it is substituted. The draftsman prefers
“inserted” and the Senator’s colleagues in the
Labour Party prefer “as substituted”. I am indifferent.
Rather than bringing the Bill back to the
Da´ il, I will stick with “inserted”.
Mr. Norris: On a jocular note, I prefer “inserted”.
It is much clearer and thinking back to
some of the other sexual Bills, if the terms are
absolutely substitutable and one is the same as
the other, we could have odd references about
substituting instruments into various people’s
anatomies.
Mr. Ryan: The Minister’s belief in the consistency
of parliamentary draftsmen is touching but
it is not my experience.
Amendment, by leave, withdrawn.
Acting Chairman: Amendments Nos. 2 and 3
are related and may be discussed together by
agreement.
Mr. Ryan: I move amendment No. 2:
In page 4, between lines 3 and 4, to insert
the following:
“(3) A defence available under the Act of
2006 shall be available in respect of an offence
under this Act.”.
As I think the Minister addressed this issue in his
contribution on Second Stage I do not propose to
pursue the amendment.
Mr. Norris: I would like to tease out the
amendment because I cannot remember whether
the Minister had returned or whether his replacement
was dealing with the issue on his behalf. I
did make the point that he spoke about mens rea
and how it was such a fundamental part of the
Constitution and so forth and that it was implied
that it would be taken so by the courts and so on
and then that we had the possibility of removing
it again. It appeared to me there was a certain
conflict which leaves me slightly confused. In
cases where people are close in age, say, 16 years
and ten months, it can be confusing. People are
very different now. I am nearly 63 years old.
When I was young, children were children. They
looked like children. They were the size of children.
By and large they behaved in a way that
was regarded as appropriate for children.
However, there has been a substantial change
in the 50 to 60 years since I was a child. In view of
diet, for example, children are now considerably
bigger. They have matured at a much earlier age.
889 Criminal Law (Sexual Offences) (Amendment) 7 March 2007. Bill 2007: Committee and Remaining Stages 890
They express themselves sexually at a much
younger age. It may be regrettable — I believe it
is — but there is no question that young girls are
being sexualised at very young ages. One has only
to look at the clothing shops and the kind of merchandise
that is being promoted as well as the
magazines.
It is possible that a person would be at the
borderline age and might well give the
impression, having the appearance, behaviour,
mannerisms and so on, of somebody who was of
an appropriate age and was sexually experienced.
In view of this there is a case that this defence
should survive. In those case it should be available
for a judge to decide upon whether it is correct.
Perhaps it will in some way. I understood
the Minister to say that it is in force at present
because of the mens rea provision but we might
be getting rid of it in the referendum about
children.
Mr. M. McDowell: I was called to the Bar in
1974 and practised in most courts, including the
criminal courts and I knew my criminal law at
the time. It was accepted among all barristers, all
solicitors and all judges that the general rule was
that mens rea was required, that is, that one had
to know one was committing an offence.
However, there were a number of exceptions but
one classic exception was in regard to under-age
sex. We proceeded from 1935 to 2006 on that
assumption.
On occasion some people said it was unfair as
a rule but it was generally accepted orthodoxy
among the lawyers and the Judiciary. There was
one judgement of the Court of Criminal Appeal
which stated it was fair because it spared children
being cross-examined. It was not some accident
or whatever, it was understood to be the law. The
only reason I mention it is that was what everybody
thought to be the case until relatively
recently. There is the Constitution, our deep constitutional
values and mens rea, but we always
said this was one exception to it. That was what
we all understood the law to be until last year.
This leave us in a position where, if we want to
have a zone of absolute protection, we have to
change the Constitution. The argument which I
think was not dealt with until we were bringing
the emergency legislation through the Da´ il and
Seanad last year was that if one allows a genuine
mistake to creep into these cases inevitably it is
made an issue in very many cases as to how the
victim behaved and what demeanour the victim
had. Once one goes down that road, it is not so
much that it is outrageous that should be a subject
for debate in a court case, it is that victims
will say they do not want to be part of this and
parents will say they do not want their child to be
part of this. They will not wish to proceed on the
basis that they are not putting their child up to
have his or her sexual experience thrown at him
or her, whether he was drinking at the age of 16
or whether she was wearing a mini-skirt at the
age of 15. They will not go down that road and
will make no complaints whatever.
Given this, the unintended consequence of
allowing this to become a litigable issue in these
cases is that, like the frost on a field, the complaints
will disappear. The Director of Public
Prosecutions warned us of this very strongly in
the All-Party Committee on the Constitution as
did the child psychiatrist who gave evidence.
They had no doubt that once we introduced that
as a legitimate defence in these cases, many
parents and children would say it was not worth
the candle and would not make a complaint.
That is the raw practical effect of the CC
judgment. As legislators we have to ask ourselves
and the people will have to ask themselves, as
the ultimate legislators, whether they want to put
things back to the way they were or to continue
on with the system as it is since the CC judgment.
I am not concerned about answering that question
today but the All Party Committee on the
Constitution unanimously came to the view that
it wished to return to the old system. That is set
out in its report. It is not an ill-considered view.
The members of the committee spent months
coming to this conclusion and took expert testimony
on it. They said the whole effect of allowing
this to come back as an issue in these cases is that
there will be far less cases because people will be
nervous of exposing their children in this kind of
cross-examination.
One can imagine a young girl of 15 or 16 years
of age who has false evidence of age, in the form
of her sister’s passport, in her pocket, and is frequenting
a night club, pub or whatever and wearing
lipstick, a short skirt and looking very attractive,
who will be put through the mill by a senior
counsel acting for a man who either did not fall
for it or did not care or, alternatively, did fall for
it in terms of his guilt or innocence. The phrase
used by the Law Reform Commission, which is so
graphic, is that she will be converted from being a
witness to an exhibit in the case. The case will be,
what did she look like? The other question will
be, what did she look like two or three years ago
when the incident happened. People would not
want to proceed in such circumstances and will
not subject themselves to such questioning. This
is an issue.
The same would apply to young men if they
were the subject of this kind of law. It is not a
matter on which there is some blindingly obvious
principle. On the one hand one will say genuine
mistakes should be an issue in every case. On the
other hand, if it is allowed in, one knows what
the effect will be on the protection of children.
Children will be converted from witnesses into
exhibits and will be dissected in court and the
case will be counterproductive. That is an issue
for another day.
However, I make the point that it is not selfevident
to me that the system was so bad until
the CC judgment. I believe our law was better
prior to that judgment than since. Child psy chiatrists and the DPP came before the committee
and said that was their view also. Sometimes
we take our law from the Supreme Court but the
people have to decide where the pendulum
should come to rest. That is the issue.
Ms Terry: I will now always assume the person
who answers the door is the voter because I have
been caught out too many times when I have
been wrong about his or her age. It is very easy
to make a mistake. That is the point. It is so easy
to make a mistake. Therefore, the onus must on
the adult to ensure he or she discovers the age. If
there is any doubt, the adult does not get
involved.
If we water that down, we are definitely making
it difficult for children and putting them at
risk. The zone of absolute protection must be
provided. As the Minister said, we do not want
our young children to be cross-examined in court.
We do not want to put them through that. We
know that parents will not put their children
through that and there will be fewer cases. We
see this with adult women who will not go
through with a court case or even report a rape
because of what they must put themselves
through in court proceedings. Therefore, I certainly
could not support Senator Norris’s amendment.
Perhaps when he thinks again about it, he
might reasonably accept that we must set high
standards and that it is up to adults to ensure they
know the age and, if there is any doubt, they do
not get involved.
Mr. Norris: With the greatest respect, I do not
accept that Senator Terry is the only one with
high standards. I think mine are reasonably high
too. I accept and sympathise with the fact that
one can have horrible cases, particularly in
England, where, because they were wearing mini
skirts, judges held that young adult women were
inviting rape and that there was contributory negligence.
These kind of appalling situations exist.
However, situations arise where a young man or
woman aged 16 and a half years with a history of
sexual experience goes out with a mini skirt and
lipstick, or whatever the male equivalent is, to a
nightclub with the intention of meeting a sexual
partner. They are on the borderline and meet
somebody who is then automatically guilty and
has no defence. This is obviously unfair. The
Minister has indicated that grey areas exist.
There have been recent cases where young
people have very honestly admitted that this is
the situation. We should be caring and protective
in so far as is necessary, but we also need to be
realistic about what is happening. I will not go on
because there are other amendments. I think the
Minister is quite right in that we will definitely
need to return to this because it is an area where,
one way or another, the Minister has acknowledged
that people may be unfairly convicted
because of the lack of this defence. The balancing
part of it is that one could have young people
exposed to a brutal interrogation. This is a comment
on the practice of law and the adversarial
grilling that is practised.
In most circumstances where a young person is
really assaulted, raped or inveigled into a
situation, this is quite clear. However, a minority
of cases involve Lolitas of both sexes aged 16 and
a half years who are out to extend the range of
their pleasurable experience and who can be
quite callous about the fate that befalls their partner.
I know it is unpopular and one could get into
trouble. Senator O’Rourke previously indicated
how one can be excoriated for raising honest
points. This has also happened to me and it is a
most horrible and disgusting experience. I refuse
to be intimidated by the gutter press and cookery
experts writing about sexual matters.
Mr. J. Walsh: I concur fully with what the Minister
has said and believe he has dealt with the
matter comprehensively. I also agree with
Senator Terry. In respect of Senator Norris’s
comments, great consideration and weight was
given to the issue of mens rea at the meetings of
the Oireachtas Joint Committee on Child Protection.
The committee heard from legal people who
made the point from a legal perspective. Having
weighed the matter up, there are other issues one
must consider relating to child protection. A very
compelling piece of information that was put
before us was that since the “CC” case, the
number of cases being pursued had dropped significantly.
It was felt that if people were able to
use this defence, which obviously would not be
used only by the person who genuinely made a
mistake but also by most defendants to extricate
themselves from the charges, it would probably
make lead to a negligible number of cases being
taken. This would be a serious miscarriage of
justice.
The second thing the committee did, which
might be of interest to Senator Norris and is
related to the weight given to mens rea, was to
recommend that honest mistake should be linked
with a new age of consent of 16 to tie it all
together so it is clear. We were effectively saying
that anybody who had sex with a person under 16
has an absolute responsibility to satisfy themselves
as to the young person’s age. This related
to peer sex, while other issues related to people
in authority. The Minister made a very sensible
suggestion to the committee that an age differen
tial might be introduced as part of that definition,
but that is another argument.
Mr. Norris: May I make a quick point?
Acting Chairman: Senator Norris has already
spoken a few times.
Mr. Norris: I commend the committee and the
Minister on the suggestion about the age of consent
of 16. This was a forward-looking, realistic
and courageous thing to do. I despise the Opposition
for the ignorant, disgusting and hypocritical
way it behaved. I wish to serve notice on it that
if it tries these kind of prurient and hypocritical
tactics again, it will get the same dose it got when
it tried the same tactics when the law decriminalising
homosexuality was introduced by a
decent Minister from the Fianna Fa´ il Party, Ma´ ire
Geoghegan-Quinn.
Acting Chairman: Time is limited.
Mr. Norris: For electoral advantage, the Opposition
tried to introduce a discriminatory age of
consent. Let us have none of this election politics
about this serious issue.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
Section 2 agreed to.
Sections 3 and 4 agreed to.
SECTION 5.
Acting Chairman: Amendment No. 4 is in the
name of Senators Tuffy, Ryan, O’Meara, Derek
McDowell and McCarthy.
Mr. Ryan: I move amendment No. 4:
In page 5, between lines 32 and 33, to insert
the following subsection:
“(3) The Schedule to the Act of 2006 is
amended, in the row relating to the Criminal
Law (Sexual Offences) Act 1993, in the third
column of that row, by the deletion of “Sections
3 and 4” and the substitution therefor of
“Section 3”.”.
The Acting Chairman need only read out my
name for the next amendments. I am quite happy
to take the place of the other four Senators.
Mr. Norris: We know that. If he could, he
would take their seats as well.
Acting Chairman: Senator Ryan without interruption,
please.
Mr. Ryan: Not at all. This amendment concerns
the offence of gross indecency, which is a matter
of controversy between my party and the Minister.
The amendment attempts to restore an
offence which has been deleted either by accident
or design. That is the nub of the issue.
Mr. M. McDowell: This issue is of some significance.
The effect of accepting this amendment
would be that the offence of gross indecency
would be restored in respect of a young male over
the age of 15. Effectively, a young gay man aged
16 who engaged in some act which was not an
offence under the 2006 Act, for example, heavy
petting — I do not want to get too detailed in this
regard — would commit an offence. An 18 year
old gay man who had a heavy petting session with
a 16 year old gay boy would commit an offence,
whereas an 18 year old heterosexual committing
more or less the same actions with a girl would
not. If I were to accept this amendment, it would
introduce a new discrimination against males. We
tried to make the legislation gender neutral and
say that if a girl did something, a boy should be
able to do something and we should not look at
the nature of the act by reference to gender.
Some people would remark on how awful it
would be for a 40 or 50 year old man to grope a
16 year old boy. Many people would be turned
off on hearing that but, equally, people would
consider it wrong for a 50 year old man to grope
a 16 year old girl. I do not intend putting back
the clock and saying that a 16 year old boy is in
a different position to a 16 year old girl. We
should have a law which is gender neutral on ages
of consent. If I were to accept this amendment, I
would be bringing back an offence of gross
indecency with a young man in circumstances
where a girl was perfectly entitled to consent to
exactly the same behaviour.
Amendment, by leave, withdrawn.
Section 5 agreed to.
SECTION 6.
Mr. Ryan: I move amendment No. 5:
In page 5, paragraph (a), between lines 35
and 36, to insert the following:
“(1A) (a) A person commits an offence
if—
(i) he or she intentionally arranges or
facilitates something that he intends to do,
intends another person to do, or believes
that another person will do, in any part of
the world, and
(ii) doing it will involve the commission
of an offence under the Criminal Law
(Sexual Offences) Act 2006.
(b) A person guilty of an offence under
this subsection is liable—
(i) on summary conviction, to imprisonment
for a term not exceeding 12 months
or a fine not exceeding \5000 or both,
895 Criminal Law (Sexual Offences) (Amendment) 7 March 2007. Bill 2007: Committee and Remaining Stages 896
[Mr. Ryan.]
(ii) on conviction on indictment, to
imprisonment for a term not exceeding 14
years.”.
I again apologise to the Minister. I am doing my
best in somewhat constrained circumstances. A
valid point is raised in the amendment about the
offence of grooming, per se. The consequences of
grooming are being dealt with here, but the
offence of grooming is not. The amendment seeks
to establish that if somebody arranges or facilitates
something that he intends to do, or believes
another person will do, in any part of the world,
that will involve the commission of an offence.
That is what constitutes grooming. It is not the
follow-up or meeting; it is creating the conditions
out of which the meeting arises. That is what our
amendment endeavours to deal with in this case.
I will listen carefully to what the Minister says
on this matter. I understand it is similar to legislation
in a nearby jurisdiction. That is not to say
it is any reason to believe it is correct because
they are developing peculiar laws over there at
present. Nevertheless, the issue is whether
grooming is covered without it being an offence
to arrange, as distinct from to carry out, an action.
Mr. M. McDowell: The particular section with
which we are dealing was tendered as an amendment
by the Labour Party in the Da´ il yesterday.
It is modelled on section 14 of the UK Sexual
Offences Act of 2003. Fine Gael’s Private
Members’ Bill incorporated into Irish law section
15 of that Act, but section 14 of the UK Act is
the one with which we are dealing.
I have to reject it for a number of reasons
which are technical in nature. The wording, “if he
or she intentionally arranges or facilitates something
that he intends to do, intends another person
to do, or believes that another person will
do, in any part of the world”, constitutes an extra
territorial offence, while the wording “and doing
it will involve the commission of an offence under
the Criminal Law (Sexual Offences) Act 2006”,
constitutes a domestic offence. The amendment
does not hang together. One commits an offence
under the 2006 Act only if one does something in
Ireland. This is one occasion when the very
skilled Labour Party draftsman got it slightly
wrong.
Mr. Ryan: From what I hear, he is better than
the Government’s draftsman.
Mr. M. McDowell: Nobody is perfect in all of
this but I do not think he is correct on this one.
In regard to the Child Trafficking and Pornography
Act and the Sex Offenders Act, there is provision
for extra-territorial offences to be committed.
A person in Ireland who aids and abets the
commission of an offence under those Acts commits
an offence in this country. I cannot accept
the amendment because of the way this is
phrased. It is not drafted in a technically correct
way. It is clear that subsection (1A)(a)(i) deals
with extra territorial activity and subsection
(1A)(a)(ii) requires it to be an offence under
domestic law. The same Act cannot in my view
be comprehended by both paragraphs. The existing
law of aiding and abetting the commission of
a child sex offence abroad is sufficient to cover
that particular issue. I cannot accept the
amendment.
Mr. Ryan: How does the Minister believe the
offence of grooming, as distinct from the consequences
of grooming, is illegal? That is what I
do not understand. We do not have any dispute
with all the other issues. The offence of grooming
is the process of making contact maliciously with
the intent of doing something else.
Mr. M. McDowell: This was a point that came
up in the Dail yesterday. The Fine Gael Private
Members’ Bill was a very narrow Bill which was
composed of two elements. It was obvious that
the UK legislation was examined and one section
was chosen as having potential for use in Ireland.
Section 14, on which this amendment is based, is
problematic. I wish to produce a proper grooming
offence which is well thought out and properly
thought through. One of the ingredients which
will probably be necessary to deal with this issue
is to tie down the grooming offence to something
which is provable in court.
The fact that an elderly man befriends somebody
in a chatroom and sends them chocolates is
not of itself a criminal offence, but if one can
prove it was for a sexual purpose, then one is into
different territory altogether. The real difficulty
is to define grooming in a way which allows a
perfectly innocent act of generosity on the one
hand and, on the other, which prohibits something
which is part of the preparation of a child
for sexual exploitation. It is a complex issue and
requires a tricky drafting balance.
I am dealing with a mess myself so I am not in
a position to criticise draftsmen in other countries
too much. With the greatest respect to the UK
draftsman, I am uncomfortable with a number of
the provisions of the UK legislation. We can do
a better job ourselves if we take some time. The
section in my Department dealing with this issue
is working on an Irish version of a sexual grooming
offence. It will have to be sufficiently definite
to pass constitutional muster. It would also have
to be sufficiently broad to be effective. It is a most
tricky drafting process. I am not happy with this
amendment. Fine Gael was correct to avoid
section 14 of the UK legislation and to concentrate
on section 15. We have to come back to this
issue on a more comprehensive basis and introduce
a grooming offence.
Senator Jim Walsh inquired earlier about why
two incidents of communication are required.
This was done in Britain. The reason it was done
is because this issue is on a vague cusp of two
different patterns of behaviour and the intention
897 Criminal Law (Sexual Offences) (Amendment) 7 March 2007. Bill 2007: Committee and Remaining Stages 898
is to make it necessary for the prosecution to
show a pattern of behaviour before somebody
could be convicted of grooming, that is was not
just a case of one conversation or one chatroom
event. The idea of grooming is that over a period,
one puts a great deal of effort into subverting a
child’s self-defence mechanisms so that he or she
will trust one. The pattern idea is implicit in this
approach.
Ms O’Rourke: It was agreed on the Order of
Business this morning to conclude the Bill at 1.30
p.m. I commend the Minister for his generosity in
saying he did not want to truncate the debate and
that he would be available to stay on for longer.
I propose an amendment to the Order of Business,
to extend the debate until 1.45 p.m., which
is 15 minutes more.
Acting Chairman: Is it agreed to amend the
Order of Business and to extend the debate by 15
minutes? Agreed.
Mr. Ryan: At the risk of being beaten up by
Labour Party lawyers, the Minister has a point in
his argument about the amendment as it is
drafted. I will deal with the consequences of this,
I am well able for it. The Minister is conceding
that grooming is not, per se, illegal in this country.
That is a matter of concern. In party political nonsense
I could beat the Minister over the head with
this but it ought to be a matter of concern. The
Internet is facilitating this new area and we are
slow to deal with it. We should avoid being five
years behind technology.
Mr. M. McDowell: Last July the Government
approved the scheme of a Bill that involves a
general offence of grooming. The Department is
working on it, in conjunction with the Office of
the Attorney General. I had hoped it would be
published by now but other matters have held it
back. I commend Fine Gael on not taking all of
the UK legislation and using it in its Private
Members’ Bill because some of it is problematic.
The party used discriminatory judgment to
include some aspects and omit others.
Senator Ryan has a point in that grooming is
not totally criminalised by the provisions of the
Fine Gael Private Members’ Bill that I have
included. I cannot provide the House with a satisfactory
formula and, given that we are legislating
in a hurry, I do not wish to slap down any old
thing and then find the Bill challenged in the
Supreme Court under Article 26 because I have
gone too far. This must be a workable law and
the State must be able to prosecute people under
it. Fine Gael avoided the mishmash that would
follow from copying UK legislation into an Irish
Bill. This could cause immense difficulty. I ask
people to give us a few months to get this right
rather than attempting something dubious.
Mr. Norris: We should not think that grooming
is exclusively confined to the Internet. Grooming
over a period of years was part of the process of
clerical abuse and that was not reliant on technical
advances such as the Internet.
Amendment, by leave, withdrawn.
Mr. Ryan: I move amendment No. 6:
In page 5, lines 38 to 40, to delete all words
from and including “, having” in line 38 down
to and including “occasions” in line 40.
The Minister made a valid case in respect of a
pattern of behaviour. The Labour Party was concerned
about the person having to meet the child
more than once.
Amendment, by leave, withdrawn.
Mr. Ryan: I move amendment No. 7:
In page 6, line 31, before “inviting” to insert
the following:
“in the case of a child who is more than 5
years younger than the person concerned,”.
The wording of section 6(b)(e), concerning the
definition of sexual exploitation, is peculiar. The
Minister stated that no court would entertain a
charge but the Bill concerns the consequences of
grooming. The section refers to intentionally
meeting or travelling for the purpose of doing
anything that constitutes sexual exploitation. The
definition of sexual exploitation refers to a child,
anyone under 17. Section 6(b)(e) refers to “inviting,
inducing or coercing the child to participate
in or observe any activity of a sexual or indecent
nature”. This does not refer to anything illegal.
We all wish that people would delay all forms of
sexual activity until they are old enough to manage
it, in which case none of us would ever start.
None of us is immune to the pressures of it, unless
there are saintly people on the other side of the
House. From what I know of human beings, the
most extraordinary mistakes are made in pursuit
of sexual passion. I am concerned that teenage
activities that are a part of growing up are being
unintentionally defined as sexual exploitation. I
support educating young people to make them
aware of the joys and pitfalls of sexual activity
and the potential human damage. The definition
in the Bill includes inviting the child to participate
in any activity of a sexual nature. Do we not mean
any activity of a sexual or indecent nature that
is illegal? I will not go into graphic detail of the
intermediate stages between what is illegal and
what is legal. The Catholic Church, and many of
its adherents, spent 20 years of my childhood
defining the phrase “How far can you go?”. Many
American Catholic journals advised teenagers
about this.
Ms O’Rourke: Senator Ryan is bringing back
memories.
Mr. Ryan: The Bill suggests any activity of a
sexual nature is a form of exploitation. I will not
engage in autobiography because it could be a
banned book. It could be a case similar to the The
Tailor and Ansty, with a large chunk of the
Official Report being deleted because we do not
want the nation to be corrupted.
Mr. Norris: Senator Ryan has identified a weak
clause. I invoked the reference in The Tailor and
Ansty to taking the nephew out to watch the bull
covering the cow. The section refers to “inviting,
inducing or coercing the child to participate in or
observe any activity of a sexual or indecent nature”.
This could involve inviting a child of 16
years and 11 months to a film. Many films have
explicit sexual material. This section makes such
a situation an offence, which is daft.
Mr. M. McDowell: The Long Title of the Child
Trafficking and Pornography Act states: “AN
ACT TO PROHIBIT TRAFFICKING IN, OR
THE USE OF, CHILDREN FOR THE PURPOSES
OF THEIR SEXUAL EXPLOITATION
AND THE PRODUCTION, DISSEMINATION,
HANDLING OR
POSSESSION OF CHILD PORNOGRAPHY,
AND TO PROVIDE FOR RELATED
MATTERS.” The overall purpose of the Act, as
stated in the Long Title, must be considered when
one examines the detail. It is to protect children
from sexual exploitation. For a child to see a bull
covering a cow or a stallion covering a mare does
not constitute sexual exploitation. The Director
of Public Prosecutions would not get away with
that and no reasonable court would interpret the
law in that way. We are dealing with a dirty old
man, having communicated with the child, who
gets the child to come to his house and shows the
child blue movies or allows the child to see two
friends engage in sexual intercourse on a bed.
Sexual in this context would undoubtedly mean
human sexual activity and not budgerigars mating
in a cage or the like. That allowed, I do not know
how one would criminalise a dirty old man who
communicates with a child on a number of
occasions on the Internet, gets that child to come
to a place, for example, a hotel bedroom, and has
the child witness a couple having intercourse or
some act of sexual fetishism.
This is the difficulty of the grooming offence.
One knows one wishes to criminalise that activity
and that it is outrageous for a dirty old man to do
that to a child. However, to say, as was put to me
last night, that a babysitter who kissed his girlfriend
in the presence of a child, having gone to the
house to look after the child, would commit this
offence is fanciful. I was thinking overnight about
how to differentiate between the two scenarios I
have outlined. There is nothing illegal about a
couple having sex in a hotel bedroom and there
is nothing theoretically illegal about a child seeing
it. However, there is something very wrong about
somebody arranging for that to happen. That is
the problem we are dealing with.
I cannot decide not to go down that road
because it is difficult. Fine Gael could have
decided not to do anything about it in its Private
Members’ Bill since there is nothing wrong with
it in principle, but there is something deeply
wrong with it. I ask the House to take the view
that a court looking at the legislation would see
it as a Bill to prevent the sexual exploitation of
children. It is not exploitative of a child to bring
that child to a farmyard when a stallion is covering
a mare; there is nothing exploitative about a
child seeing a babysitter give his girlfriend a kiss.
These are extreme examples which have no basis
in reason or common sense. No court would
entertain a case of that type and the Director of
Public Prosecutions would not prosecute such a
case. However, we must criminalise a dirty old
man who, for the purpose of grooming a child,
inveigles that child to go to a hotel room to witness
a couple having intercourse.
Mr. Norris: With regard to the campaign
against AIDS among gay males, the most effective
method of inhibiting the spread of the disease
has involved the use of fairly explicit material.
Will the Minister reassure me that this will be
protected? It is an important health issue.
However, I agree with the Minister’s example of
dirty old men showing blue movies to children to
get them excited and have their way with them.
That is not acceptable and should be criminalised.
Acting Chairman: Does Senator Ryan wish to
withdraw the amendment?
Mr. Ryan: Not yet, although it will be withdrawn
due to time.
Ms O’Rourke: We can take five minutes more.
Mr. Ryan: Nobody argues with what the Minister
says. However, I am thinking of the irate
father who comes home to find his 16 and a half
year old daughter, slightly dishevelled, with her
17 and a half year old boyfriend. The father is
angry and knows the local Garda sergeant. I
believe it would be possible to prosecute the 17
and a half year old for this if it were the couple’s
second or third date. We must be careful. I do
not envisage a huge number of the type of people
Senator O’Rourke mentioned earlier——
Ms O’Rourke: They did come to me.
Mr. Ryan: ——demanding that 17 year olds be
prosecuted, but we ought to be clear about what
the legislation means. I believe it means that
teenagers, where one is over age and the other is
under age or where both are under age, could be
prosecuted for things which, to put it bluntly,
most of us did.
901 Criminal Law (Sexual Offences) (Amendment) 7 March 2007. Bill 2007: Committee and Remaining Stages 902
Ms O’Rourke: I suggest that we continue for
another five minutes and then conclude.
Acting Chairman: Is it agreed that we conclude
at 1.50 p.m.? Agreed.
Mr. M. McDowell: If we wish to stop a dirty
old man bringing a child to a room and putting
on a blue movie or bringing a child to a room to
show a couple engaged in sexual intercourse, we
must have a law to do so. It is not easy. I genuinely
believe that no court would consider that
an offence of sexual exploitation was committed
in the circumstances described by Senator Ryan.
For this section 2A offence to be committed, one
intentionally meets the child for the purpose of
doing anything that would constitute sexual
exploitation. I believe a court would take the
view that this legislation is in place to stop sexual
exploitation of children, not to prevent a grope
by two teenagers. That is not what it is about. I
do not know how one differentiates between the
two but the age difference is not the crucial item.
Mr. Ryan: No.
Mr. M. McDowell: It is deeper than that. Perhaps
in the fullness of time we will return with a
better definition but the Fine Gael Party’s Private
Members’ Bill, which is based on the United
Kingdom legislation, is good legislation. I am not
aware that a better formulation is available. I rely
on the common sense of the Judiciary and the
Director of Public Prosecutions not to conjure up
entirely fanciful sexual exploitation prosecutions.
Acting Chairman: Does the Senator wish to
withdraw the amendment?
Mr. Ryan: I will when I am ready. I will not
hold up the House. I know what the Minister is
trying to do but I also know that it means something
different. I was a Member of this House
when the first pro-life amendment was passed.
We were going to defend this nation against abortion.
However, that section of the Constitution
ultimately resulted in the legalisation of abortion.
One cannot have such faith in how the courts will
interpret something.
Judges are sensible and if somebody was
charged with this, they would probably send them
home with a slap on the hand. However, the
Minister cannot convincingly say that situations
in which teenagers could be found are not illegal
under this section. That is what bothers me. It is
not the biggest issue in the world, but to a degree,
it reflects our age and the peculiar way we have
of looking at teenagers.
Acting Chairman: Does the Senator wish to
withdraw the amendment?
Mr. Ryan: The Chair is very keen for me to
withdraw it. Is there some reason for that?
Acting Chairman: I am keen to get the legislation
dealt with and another Member has indicated
that he wishes to speak on the section.
Amendment, by leave, withdrawn.
Question proposed: “That section 6 stand part
of the Bill.”
Mr. Quinn: I had a query on Second Stage with
regard to a citizen who has not been in Ireland
for 20 or 30 years and is found to have committed
a crime under this legislation in another part of
the world. I am not sure how he could be prosecuted.
Perhaps the Minister will put my mind at
rest on this.
Mr. M. McDowell: This section applies to a citizen
of Ireland or a person who is ordinarily resident
in Ireland. If we are to assert extra-territorial
jurisdiction, under the Constitution we are
obliged to so in accordance with ordinary principles
of international law. One of them is that
there must be some link to the State. A citizen
owes a duty of loyalty to the State under Article
9 of the Constitution. A person who is ordinarily
resident in this country owes a different set of
duties. That is a tangible link.
We cannot have a law in Ireland that allows us
to prosecute an Australian for something they did
in Thailand because it comes to our attention
from a newspaper report. Normally, the citizen
would have to be arrested in Ireland. There could
be an extradition of an Irish citizen in certain circumstances
where they were unlikely to be prosecuted
abroad, but that is most unlikely. The
truth is that this is most likely to arise in a sex
tourism situation. The Attorney General’s advice
is that there must be a legal connection between
the offence and this State before we can assume
extra-territorial jurisdiction. That means the perpetrator
in cases of sex tourism must have some
linkage to the State. Ordinary residence or
citizenship is sufficient. We cannot think of some
other basis on which Ireland would purport to
exercise extra territorial jurisdiction.
Question put and agreed to.
Section 7 agreed to.
Title agreed to.
Bill reported without amendment and received
for final consideration.
Question proposed: “That the Bill do now
pass.”
Mr. Ryan: While I fight with the Minister on
everything and disagree with him about most
matters, he is one of the more forthcoming
members of the Government. It is worthwhile to
engage with him on Committee Stage. I believe
the Bill will present problems in criminalising
903 Criminal Law (Sexual Offences) (Amendment) 7 March 2007. Bill 2007: Motion for Earlier Signature 904
[Mr. Ryan.]
matters that are not intended to be. The sooner
proper codified sexual offences legislation is
introduced the better because we are finding ourselves
in an enormous mess.
Mr. J. Walsh: I commend the Minister in the
expeditious manner in which he dealt with this
legislation after it was brought to his attention.
Senator Norris and others have commented on
the magnanimous manner in which he gave due
credit to the leader of the Labour Party and the
Fine Gael Party for the initiatives they had taken.
Legislation on grooming is a recommendation
of the child protection committee and I would
like it classed as a serious offence. The approach
being taken is prudent because care must be exercised
in this area. I have encountered teachers
and youth coaches who are nearly afraid to pat a
child on the head or put an arm around a child
reassuringly because we have gone to the other
extreme. While nolle me tangere may operate
within various religious orders, it would be a pity
if it became a practice in general society. It is an
area that needs to be teased out with great sensitivity
to ensure we are not creating a society that
we do not aspire to.
I commend the Minister in the manner in which
he is amenable to amendments from the other
side of the House.
Ms Terry: I wish to be associated with the
remarks thanking the Minister and his officials in
dealing with this matter, particularly in taking on
board suggestions from the Fine Gael and Labour
parties. That is the way I like to do business and
would like to see more of it done this way. Keeping
in mind the impending general election, the
Minister took the matters on board in a goodspirited
way. This matter concerns the sexual
exploitation of children. We will depend on the
common sense of the Judiciary in how its interprets
the law, no matter how watertight it is. It is
dealing with a small percentage of people who
exploit children and we will depend on the
Judiciary to interpret the intention of the
Oireachtas.
Mr. Norris: I thank the Minister for taking a
direct and personal interest in the matter and
ensuring he was available for the debate. I also
thank him for dealing with it in his usual vigorous
and informative manner. I am glad he has indicated
a fuller sexual offences legislation will be
introduced. Whatever the make-up of the next
Government, it will be charged with that
responsibility. I am glad there is a commitment
that this matter will be properly addressed.
Ms O’Rourke: I found this morning’s business
a refreshing treatment of the Seanad.
Mr. Quinn: I appreciate the Minister gave his
full attention to the legislation and thank him and
his officials for their work on it. I congratulate the
Minister for attending to this matter as quickly as
he did. It is a good example of how the Seanad
works in how the legislation was teased out.
Ta´ naiste and Minister for Justice, Equality and
Law Reform (Mr. M. McDowell): I thank the
House for the spirit in which it took today’s
debate. I also thank all parties in both Houses in
their approach to this issue. No party or Member
is more or less concerned than any other on protecting
our children. This is not a perfect set of
circumstances and I wish I did not have to come
before the Houses to introduce this legislation.
However, I believe we have done some useful
work.
I thank my officials for whom the past 108
hours have been a nightmare and for their hard
work. I thank the Parliamentary Counsel and the
Attorney General for their assistance.
All laws must be interpreted in a manner which
is consistent with the Constitution. The Constitution
empowers and directs the Judiciary to
interpret our law in accordance with the rules of
common sense. There is no mandate in the Constitution
for trying people against common sense.
There is no mandate in the Constitution for putting
people on trial for events which are mainifestingly
devoid of criminal content. A constitutional
construction must always be put on
legislation. I am in no doubt the DPP and the
courts will never interpret this legislation in a way
that flew in the face of common sense or would
be unfair to ordinary individuals. This is about
protecting children from sexual exploitation. I
have no doubt that the Long Title, the Constitution
and common sense will direct the prosecuting
authorities and the Judiciary to interpret this
legislation in a manner which is consistent with
the Constitution and not in a manner which
would be an abuse of our Constitution.
Question put and agreed to.

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