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  1. Minister Fitzgerald publishes the Criminal Law (Sexual Offences) Bill 2015

Minister Fitzgerald publishes the Criminal Law (Sexual Offences) Bill 2015

 

Bill proposes wide ranging reforms of the law, including stronger sanctions, aimed at protecting children from sexual exploitation; child pornography and online grooming

  • New criminal offences to protect children against grooming
  • New measures to protect children from online predators
  • New & strengthened offences to tackle child abuse material
  • Introduction of new Harassment Order
  • New provisions to be introduced regarding evidence by victims, particularly children
  • Gender anomaly in incest law to be addressed
  • Age of consent to sexual activity to remain at 17 years of age - Two year proximity clause to be introduced
  • The purchase of sexual services criminalised

Frances Fitzgerald TD, Minister for Justice and Equality has this week published the Criminal Law (Sexual Offences) Bill 2015. The Bill has been approved by Government.

Minister Fitzgerald stated: This important new Bill provides for wide ranging reform of our laws, including stronger sanctions, aimed at protecting children from sexual exploitation; child abuse material and online grooming.”

“The Bill provides for a more effective response to sexual offending within our criminal justice system and responds to new and emerging threats such as predatory activity which target children via the internet and social media.”

The Bill will bring Irish law into line with a number of international instruments, including an EU Directive on combating the sexual abuse and sexual exploitation of children and child abuse material (child pornography). It is also a further step toward the ratification of the Council of Europe Convention on the protection of children against sexual exploitation and abuse.

The Bill will also implement the recommendations of two Oireachtas Committees on the protection of children including recommendations strengthening the existing offences of engaging in sexual acts with children under the age of consent.

Combating child sexual exploitation and targeting sexual grooming

Sections 3 to 8 of the Bill introduce a range of offences targeting the sexual exploitation of children. Sexual exploitation is defined to include a range of acts including engaging a child in prostitution, child abuse material (child pornography), the commission of a sexual offence or some other indecent or obscene act.

The new offences relate to:

  • Paying for purpose of sexually exploiting a child;
  • Invitation to sexual touching;
  • Sexual activity in the presence of a child;
  • Causing a child to watch sexual activity; and
  • Making arrangements to meet a child for the purpose of sexually exploiting that child.

Heavy penalties are introduced for these offences with potential prison sentences ranging from 10 to 14 years.

The Minister stated: “These offences are a significant step in combating risks posed to children. Sexual grooming of children can include familiarising children with sexually explicit material, with a view to developing an, ultimately exploitative, relationship with that child.

“These new offences and heavy sanctions reflect the seriousness of these crimes and reaffirm our societal determination to punish those who exploit innocent children.”

New measures to protect children from online predators

The Minister confirmed that the new Bill included two new offences targeting online sexual predators, so as to protect children from exploitation by way of new technologies, including social media.

The first offence criminalises adults who contact children either online or through mobile communications such as text messaging for the purpose of sexually exploiting the child. This offence is targeted at the initial stages of grooming and does not require physical contact or meeting between the adult and child in question. The offence does not necessarily require that the communication contain a sexual advance or include sexual material as these are not generally features of sophisticated grooming but it does require that the communication is to facilitate the sexual exploitation of the child. The penalty of up to 14 years imprisonment reflects the serious nature and intent behind the communication.

Section 8 also includes an offence of sending sexually explicit material to a child. This offence protects children from unwarranted and unwanted advances. There is also recognition that the intention behind this type of activity may be to expose the child to inappropriate material with a view to developing the child’s familiarity with such material or activity.

The Minister stated: “Many Irish children have instantaneous and often unsupervised access to the internet and social media via smartphones and other networked devices. This Bill aims to better protect those children.”

“These proposed new laws will protect children while online and lays down tough sentences for those who seek to prey on innocent children via the internet and social media.”

Tackling child abuse material (child pornography)

Provisions are included which strengthen the existing laws to tackle child abuse material. In the Bill ‘child abuse material’ is defined as ‘child pornography’ in line with the Council of Europe Convention known as the ‘Lanzarote Convention’.

The Bill sets out the very wide range of acts, activities and behaviours related to child pornography which will constitute a criminal offence and which will attract serious penalties.

Building on existing offences, there are new offences of

  • Recruitment of a child or arranging for a child to participate in a pornographic performance;
  • Attending a pornographic performance involving a child;
  • Organising child prostitution or child pornography.

In addition, offences relating to the possession and distribution of child pornography are strengthened.

The Minister stated: “The organization and distribution of child sex abuse material is a heinous crime which is a global problem. Every possible step must be taken to combat child sex abuse material This new Bill ensures that there are tough offences in our laws for those who seek to exploit children through either producing, distributing or even viewing child sex abuse material.”

Harassment orders

The Bill introduces an additional protection for victims of sexual offences who are at risk of continuing to be the target of their attacker. Persons convicted of sexual offences and who are to serve a sentence of imprisonment may be prohibited, by court order, from making contact with their victim.

Age of consent

Minister Fitzgerald has confirmed that the age of consent will remain at 17 years of age. However a proximity of age defence will be introduced which can be relied on where the sexual act is a non-exploitative, consensual act and the parties are aged within two years of each other.

The Minster stated: “This simply recognises the reality that young persons can engage in consensual sexual acts.”

Giving evidence in sexual offence trials

Minster Fitzgerald outlined that the Bill contains a number of amendments to the Criminal Evidence Act 1992.

The Minster stated:“These changes are intended to protect child victims of sexual offences from any additional trauma which may arise as a result of giving evidence during a criminal trial such as extending the use of video recorded evidence and limiting the circumstances in which an accused can personally cross examine a child witness.”

Significantly, the Bill also contains a new provision regulating the use of a victim’s counselling or therapy records as evidence in a criminal trial. The appropriateness of disclosing such records will be the subject of a pre-trial hearing and any disclosure will, while respecting the rights of an accused to a fair trial, take account of the right of a victim of a sexual offence to privacy. The disclosure of material contained in such records will only be to the extent necessary for the accused to defend the charges against him or her.

New provisions to address gender anomaly in incest laws

Provisions are included in the Bill which will increase the penalty for incest by a female to up to life imprisonment. This is in line with the existing penalty for incest by a male.

Modernising the law on indecent exposure

The Bill introduces a new offence of exposure and offensive conduct of a sexual nature replacing the existing offence of public indecency which has been struck down by the courts. The new offence sets out more precisely those acts, which if committed in a public place or with the intention of causing fear, distress or alarm, would amount to offensive conduct of a sexual nature.

Criminalising the purchase of sexual services

Minister Fitzgerald confirmed that two new offences are to be introduced which criminalise paying for sexual activity with a prostitute. These offences specifically target the demand for prostitution. The first is a general offence of paying to engage in sexual activity with a prostitute and the second is the more serious offence of paying to engage in such sexual activity with a person who has been trafficked. In both cases, the person providing the sexual service does not commit an offence.

The Minister stated: I am committed to addressing the very real and tragic crimes of trafficking and exploitation associated with prostitution. I am convinced that targeting the demand for such services is the way forward.

The Minister added that: “the proposal I am announcing today mirrors the approach adopted in Northern Ireland and other jurisdictions which have seen a reduction in demand and notably, over time, an increase in support for similar laws. This Bill reflects an All-Island consensus to targeting the predominantly exploitative nature of prostitution.”

Minister Fitzgerald also today confirmed that she is examining the possibility of introducing proposals which would decriminalise a person offering sexual services from the existing offences of soliciting and loitering for the purposes of prostitution under the Criminal Law (Sexual Offences) Act 1993. Any proposals brought forward in this area will need to ensure that appropriate tools remain to address any public nuisance concerns which may arise.