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Show details for BillsBills
Show details for Business of SeanadBusiness of Seanad
Hide details for Criminal Law (Sexual Offences) Bill 2015Criminal Law (Sexual Offences) Bill 2015
Hide details for Seanad Bill amended by the DáilSeanad Bill amended by the Dáil
14/02/2017 [Bills] This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 118, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideratio...Vol-250 Book-1
14/02/2017 [Bills] Question proposed: "That the Bill be received for final consideration."Vol-250 Book-1
14/02/2017 [Bills] This group of amendments relates to the offences in the Bill addressing the sexual exploitation of children.
Amendment No. 1 to section 10 of the Bill provides for the repeal of sections 3(2)(a) and 3(2)(b) of the Child Trafficking and Pornography Act 1998. Section 3(2)(a) of the 1998 Act...
Vol-250 Book-1
14/02/2017 [Bills] I thank the Minister of State for coming here today and presenting this long-awaited Bill to the House. Fianna Fáil supports the passage of this Bill and it did so through the Dáil and Seanad previously. We are pleased that it has been strengthened by the inclusion of a definition of conse...Vol-250 Book-1
14/02/2017 [Bills] Prostitution is not conducted in the way it used to be. It is now conducted over the Internet and the phone and not on street corners. In 1999, Sweden was the first country to criminalise the purchase of sex. This legislation was framed in terms of prostitution being incompatible with...Vol-250 Book-1
14/02/2017 [Bills] Senator, forgive me for interrupting but we are on group 1. There are 13 groups to go through.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] I was just giving an overview of the Bill.[Clifford-Lee, Lorraine]Vol-250 Book-1
14/02/2017 [Bills] You will get an opportunity in other groupings to come in again, no doubt.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] I appreciate that we are on group 1, but I am a bit mystified as to why the Minister of State at the Department of Housing, Planning, Community and Local Government has been sent in here by the Tánaiste and Minister for Justice and Equality to deal with this matter. The Minister of State in...Vol-250 Book-1
14/02/2017 [Bills] I have given Senator Clifford-Lee some latitude, as I am equally prepared to give you.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] The Minister of State took latitude, nobody interfered with it and he dealt with the broad extent of the Bill. Now suddenly the guillotine is coming down on people who want to respond to what he has said.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] There is no guillotine coming down.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] This Bill is an unusual one in that is has gone from this House to the other House. It was considered by the previous Seanad and is now coming back from the present Dáil. As Senator Wilson pointed out on the previous occasion, 80% of the Members of this House were not Members of the previo...Vol-250 Book-1
14/02/2017 [Bills] I can assure the Senator that the Chair will not stifle him.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] I will be very brief in respect of group 1. This legislation is long overdue, but I commend that there has been some strengthening of it, especially in the area of child pornography within group 1 and also in terms of the strengthening of the offence of withholding information in offences a...Vol-250 Book-1
14/02/2017 [Bills] Anything that will strengthen that, send that mandate and include, as I believe is appropriate, the area of pornography and so on, is a strengthening of the Bill. I am happy to see those amendments and to support them. I will not speak to the general but will come back in at later stages o...Vol-250 Book-1
14/02/2017 [Bills] Aontaímid leis an méid atá ráite cheana féin faoin bpíosa reachtaíochta thar a bheith suntasach seo. Tá an Bille tábhachtach do dhaoine ar bhoinn áirithe difriúla. Léiríonn an díospóireacht seo an méid spéise agus díograise atá ag daoine sa chineál ábhair atá á phlé againn inniu. Like Sen...Vol-250 Book-1
14/02/2017 [Bills] Of course. I thank the Senator and call Senator Ivana Bacik.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] I welcome the Minister of State to the House and express the strong support of the Labour group for this Bill and for the need to secure its passage through the Seanad. I welcome the many groups represented here tonight and the many guests I have here in the Gallery. Many have worked with ...Vol-250 Book-1
14/02/2017 [Bills] I thank the Senator and call the Minister of State to respond to group 1.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] I certainly did not try to take any latitude and will try to keep to the groups the Tánaiste put here. I did not pick the grouping but I tried to stick to it as well as I could.
I understand Members' frustration with the timing of the Bill but as has been referred to, this is a discussion...
Vol-250 Book-1
14/02/2017 [Bills] I certainly have not asked for any procedures to be put in place to prevent such a discussion.Vol-250 Book-1
14/02/2017 [Bills] I ask the Minister of State to deal with the second group of amendments, relating to sexual acts with a protected or relevant person.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] Amendment No. 3 amends section 20 of the Bill, which provides a definition of "sexual act". The meaning of "sexual intercourse" has been added to the existing definition in the Bill. It replicates the definition of "sexual act" under the Criminal Law (Sexual Offences) Act 2006.
Vol-250 Book-1
14/02/2017 [Bills] I agree with the idea that the term used to refer to someone in the protected category of people should be renamed "protected person". I think it is a good idea. I also agree that such people should be protected in a workable way.
A legal adviser to political people who are not here in t...
Vol-250 Book-1
14/02/2017 [Bills] Recommittal has to be proposed before we enter into the debate. We have already entered into the debate. Therefore, it is too late.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] On that basis, could I say everything I have to say in relation to the matter?[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] Certainly.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] It seems to me that the introduction of a presumption in criminal law of guilty knowledge against an accused person is a very far-reaching and most unusual provision of criminal law. The mental capacity of the person alleged to be a protected person is a matter to be proven one way or the o...Vol-250 Book-1
14/02/2017 [Bills] The real issue is that the accused person will be presumed to have been reckless or to have known that that person's disability was such as to bring them over the line. I wonder about the propriety of that.Vol-250 Book-1
14/02/2017 [Bills] To clarify, we may have given incorrect information. The Clerk advised me but he has now re-advised me, that Senator McDowell may move to recommit the section before it is finished. My sincere apologies for that. He is free to move to recommit.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] I move: "That the Bill be recommitted in respect of section 21."
I would prefer to have a conversation on this rather than simply firing one salvo myself.[McDowell, Michael]
Vol-250 Book-1
14/02/2017 [Bills] On Report Stage we cannot go over and back. Can the Senator clarify which section he wishes to move for recommittal?[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] Section 21 of the Bill, as amended.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] Is that in the Bill as passed by the Dáil?[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] This was done in the Seanad.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] I believe Senator McDowell is under a misapprehension that section 21(3) was amended in the Dáil. It was not. I have the Bill as passed by the Seanad in front of me. We had a full debate on this section and section 21(3) was unamended.[Bacik, Ivana]Vol-250 Book-1
14/02/2017 [Bills] The House is discussing the Bill as passed by the Dáil at the moment.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] I would just like to provide some clarity. This is an issue on which we took a lot of legal advice from the Attorney General. We are very clear on the legal advice. It did change in the Seanad. The Minister addressed it and spoke to the Dáil on it, as well as on Committee Stage, but the ...Vol-250 Book-1
14/02/2017 [Bills] I did want to say a little more on that.[Bacik, Ivana]Vol-250 Book-1
14/02/2017 [Bills] I will let Senator Bacik back in momentarily. Could Senator McDowell please clarify which section he wished to move for recommittal? It must be a section from the Bill as passed by the Dáil.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] The Bill as amended by the Dáil? I just want to be absolutely clear.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] As passed by the Dáil.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] As passed by the Dáil or as amended by the Dáil?[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] As passed.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] I am dealing with section 21 on page 17.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] That section was unchanged in the Dáil. That is the point.[Bacik, Ivana]Vol-250 Book-1
14/02/2017 [Bills] We are on Report Stage so he is still entitled to move for recommittal, whether or not it was amended. That question is for agreement by the House. Does the House agree to move for recommittal?[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] Can I just say one more point in respect of the point that the Senator has raised? The Minister has answered him. The presumption is simply of an evidential burden. It certainly does not require that the accused would give evidence. Absolutely not. I remind the Senator that we have many...Vol-250 Book-1
14/02/2017 [Bills] Before Senator Bacik deals with this, can we decide whether we are in committee or whether we are on Report Stage?[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] We are on Report Stage.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] We are on Committee Stage. It is recommitted.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] It is not yet. It has to be agreed by the House.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] I am arguing-----[Bacik, Ivana]Vol-250 Book-1
14/02/2017 [Bills] Apologies, could the Senator give me the floor for a moment? There is a proposal that the Bill be recommitted in respect of section 21, page 17. Is that agreed?[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] No. I am objecting to the proposal to recommit. That is the point. I am explaining why I am objecting.[Bacik, Ivana]Vol-250 Book-1
14/02/2017 [Bills] The Senator may speak briefly on her objection.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] I am objecting to the proposal to recommit, and I believe the Minister has also objected, on the basis that this was something that we had already debated in the Seanad and which was not changed any further in the Dáil. We have other examples of this sort of presumption, which does not oper...Vol-250 Book-1
14/02/2017 [Bills] Are there any other Senators wishing to oppose? Otherwise I need to put the question.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] Put the question.[Conway, Martin]Vol-250 Book-1
14/02/2017 [Bills] The question is, "That the Bill be recommitted in respect of section 21." Is that agreed?[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] No.[Conway, Martin]Vol-250 Book-1
14/02/2017 [Bills] Can I indicate, before I divide the House, that the Leader said I would be in a position to move recommittals? All I am trying to do is-----[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] I cannot speak for the Leader but I would imagine that he was talking about amendments on Report Stage.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] -----to discuss a section that I have never had an opportunity to discuss before in any shape or form.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] It is a matter for the House.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] I was elected to this House by-----[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] As were the rest of us.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] -----a considerable number of people, more than some Deputies got in terms of first preferences and in those circumstances, I think I am entitled to have a say on this.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] I am allowing the Senator to put that question. That is the best that I can do under the rules.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] Given the fact that I am not aware of what the Leader did or did not say, perhaps we could adjourn for a few minutes so that I can clarify with him.[Conway, Martin]Vol-250 Book-1
14/02/2017 [Bills] Question put and declared lost.Vol-250 Book-1
14/02/2017 [Bills] In order not to waste the time of the House I did not press it to a vote but if there are any further motions of mine to recommit there will be a vote on them. I wish to make that clear now.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] That is noted, Senator. We will continue discussion on group 2 on Report Stage if any other Senators wish to speak.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] I agree with the premise from which the Senator is coming in the sense-----[Conway, Martin]Vol-250 Book-1
14/02/2017 [Bills] The question has been decided, Senator.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] I will make a quick point if that is okay. In terms of natural justice, and the fact that the Senator has a mandate and did not have an opportunity to discuss this-----[Conway, Martin]Vol-250 Book-1
14/02/2017 [Bills] It has been decided Senator.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] -----in the previous Senate, I agree with the principle from which the Senator is coming on it.[Conway, Martin]Vol-250 Book-1
14/02/2017 [Bills] I thank the Senator.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] Tá mé ag iarraidh cúpla focal a rá maidir le cúpla de na rudaí a phléigh muid cheanna. In respect of some of the things that have been discussed or touched upon, the 1983 Act has long been recognised as inadequate when it comes to persons with disabilities. We particularly note the broad w...Vol-250 Book-1
14/02/2017 [Bills] For there to be no discrimination, we must have a rebuttal presumption of capacity to consent for all persons. Otherwise, the new law will continue to discriminate. It would have been appropriate to insert a new section to provide for presumed consent.
I also object to some of the termin...
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14/02/2017 [Bills] I welcome this group of amendments. The thrust of the Bill is to protect vulnerable people, whether they are individuals who have been trafficked, children or people with intellectual or learning disabilities. Many advocacy groups and Fianna Fáil have welcomed this legislation which will p...Vol-250 Book-1
14/02/2017 [Bills] I spoke briefly about the last group of amendments, but since it has been referred to by many other Members, I want to raise the question of the timing and conduct of this debate. We have had a long journey with this legislation which has been debated in the public sphere for five years, wi...Vol-250 Book-1
14/02/2017 [Bills] There are some concerns about the language used. It is in line with the UN Convention on the Rights of Persons with Disabilities. It involves full participation in society by persons with disabilities, as well as appropriate protection for those who lack the capacity to consent to such an ...Vol-250 Book-1
14/02/2017 [Bills] Before we move to group 3, Seanad Report Stage amendment No. 1 in the names of Senators Colette Kelleher and Lynn Ruane is related to this group. The Senators will be called on to move the amendment when all of the groups of amendments made by the Dáil have been disposed of. However, if th...Vol-250 Book-1
14/02/2017 [Bills] The amendments in group 4 are intended to fully ensure the necessary protection from exploitation by persons responsible for the welfare, care and supervision of certain persons with disabilities. They create an offence of engaging in a sexual act with a relevant person. For this purpose, ...Vol-250 Book-1
14/02/2017 [Bills] I move: "That the Bill be recommitted in respect of section 22."
This effort to choke and prevent me from even asking some questions about a section about which I have never had the opportunity to speak is very undemocratic. The Leader told me he would not oppose recommital. I am not her...
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14/02/2017 [Bills] On a point of order, is the Senator entitled to ask questions without recommitting the Bill?[Conway, Martin]Vol-250 Book-1
14/02/2017 [Bills] The Senator is allowed one contribution on each group of amendments. Those are the rules of the House.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] I am moving that the section be recommitted so that I can ask some questions about it. If Senator Bacik-----[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] As Chair-----[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] -----wants to behave like this, there will be other days.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] I object to being singled out like that.[Bacik, Ivana]Vol-250 Book-1
14/02/2017 [Bills] May I just say-----[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] It was a general opposition to the Senator's motion.[Bacik, Ivana]Vol-250 Book-1
14/02/2017 [Bills] Excuse me. I am the Chair and I wish to speak. As Chair, I have no option. Senator McDowell has put a proposal to the House and I am obliged to seek the decision of the House. I am completely tied.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] Bill recommitted in respect of section 22.Vol-250 Book-1
14/02/2017 [Bills] Question proposed: "That section 22 stand part of the Bill."Vol-250 Book-1
14/02/2017 [Bills] We are now effectively having a committee-style debate on section 22. I call on the Minister of State to introduce section 22 if he wants to speak.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] I have already spoken.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] I call Senator McDowell.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] I thank the Fine Gael Members for allowing me to ask some questions on this section. In respect of this evening's proceedings, I only now realise that a guillotine was proposed on the Order of Business. I was about half a minute late and did not hear that being proposed.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] On a point of information, a Leas-Chathaoirligh------[Buttimer, Jerry]Vol-250 Book-1
14/02/2017 [Bills] Hold on a second. I was going to apologise.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] There is no such thing as a point of information. Senator McDowell has the floor.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] I did not hear that happening and that may explain why my amendment to adjourn at 7 p.m. sounded a bit strange given that the Leader had sought permission to have a guillotine at 9 p.m.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] On a point of information, there is no guillotine. We will conclude at 9 p.m. It was agreed that we would finish at 9 p.m.[Buttimer, Jerry]Vol-250 Book-1
14/02/2017 [Bills] That was already agreed on the Order of Business. Senator McDowell, without interruption, on section 22.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] The discussion will conclude at 9 p.m., but the question is whether all sections will be deemed to be passed at 9 p.m.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] There are four hours of debate.[Buttimer, Jerry]Vol-250 Book-1
14/02/2017 [Bills] I am sorry but that is just a guillotine.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] To be fair-----[Buttimer, Jerry]Vol-250 Book-1
14/02/2017 [Bills] I do not care how the Leader describes it, it is a guillotine.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] That is the order of the day. It was agreed on the Order of Business.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] That is altering the fact.[Mullen, Rónán]Vol-250 Book-1
14/02/2017 [Bills] In fairness, the Senator is pretty good at alternative facts-----[Buttimer, Jerry]Vol-250 Book-1
14/02/2017 [Bills] Order. Senator McDowell, without interruption.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] -----going back to the referendum campaign.[Buttimer, Jerry]Vol-250 Book-1
14/02/2017 [Bills] Senator Buttimer, please.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] If all matters are dealt with in the form of a single question at 9 p.m., that is my definition of a guillotine. I am not going to get involved in semantics.
I assure Senator Bacik that I am genuinely inquisitive as to why it is the case that in section 22 a relevant person is defined as....
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14/02/2017 [Bills] For good reason.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] In this instance, what is and what is not a defence is stated. The fact that consent was apparently given is not acceptable in cases where the relevant person is defined as being an individual who has a mental or intellectual disability or a mental illness which is of such a nature as to se...Vol-250 Book-1
14/02/2017 [Bills] The nub of the matter relates to the difference in the relationship. That is what we are trying to reflect. Section 21 reverses the burden of proof on to the defendant and, therefore, a reasonable doubt is sufficient to remove that burden. Under that section, it is only necessary to estab...Vol-250 Book-1
14/02/2017 [Bills] I fully take the Minister of State's point that this particular offence under section 22 is concerned with people in authority. One might consider that a person in authority is under a higher duty when it comes to protecting an individual suffering from mental disability and under his or he...Vol-250 Book-1
14/02/2017 [Bills] Members spoke earlier about section 21 of the Bill as passed by Seanad Éireann on a sexual act with a protected person. It states "In proceedings for an offence under this section, it shall be presumed, unless the contrary is shown, that the defendant knew or was reckless as to whether the ...Vol-250 Book-1
14/02/2017 [Bills] I never said it was. I was speaking about a different section.[Bacik, Ivana]Vol-250 Book-1
14/02/2017 [Bills] I know. The Senator was dealing with a different section. However, in one case, namely, murder, if at the end of the prosecution case the jury has a reasonable doubt, not withstanding the presumption present, one is entitled to be acquitted. Here we are dealing with a different standard o...Vol-250 Book-1
14/02/2017 [Bills] I did not. My argument is being misrepresented by Senator McDowell. I never entered the debate on section 22. My point about section 21 absolutely stands. That presumption is very much similar.[Bacik, Ivana]Vol-250 Book-1
14/02/2017 [Bills] Senator McDowell has the floor. I will call Senator Bacik once-----[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] I wish to correct the record. Senator McDowell is suggesting I made an argument I did not make. I entirely agree with him that section 22 is very different. Its phrasing is different. Section 22 was added in the Dáil, and we did not debate it in the Seanad, so it is entirely different to...Vol-250 Book-1
14/02/2017 [Bills] Senator Bacik will have an opportunity to contribute further and more fully if she wishes.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] Regardless of where the section came from, it has been recommitted and we are discussing it now, despite the efforts to stop me recommitting it. I am just making the point that it is strange that the standard of proof and the defence in the case of a person in authority sexually exploiting ...Vol-250 Book-1
14/02/2017 [Bills] It is a more serious offence.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] Considering these two sections side by side, a person in authority is entitled to a better defence than a person who is not in authority under section 21. This is a strange thing to happen. If we did not face a guillotine and if we had the right to propose substantial amendments to the Bil...Vol-250 Book-1
14/02/2017 [Bills] I take the point the Senator makes and I have addressed it. I probably failed to make the point that the standard is different because a more serious offence is in question. That is what it is about. Furthermore, this is in line with provisions in the Criminal Law (Sexual Offences) Act 20...Vol-250 Book-1
14/02/2017 [Bills] A more serious offence is harder to prove.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] The Minister of State has the floor.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] It is a more serious offence; it is not necessarily harder to prove. The reason is the serious nature of the crime due to the high level of responsibility. This is in line with another very serious Bill concerning underage people from which the provision was carried over.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] I did not make any argument earlier about section 22. The point I was making was about section 21. I entirely agree with Senator McDowell that these are entirely different provisions. They are entirely different offences and the format of section 22 is very different. However, I take iss...Vol-250 Book-1
14/02/2017 [Bills] If no other Senators wish-----[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] The definition of a protected person in section 21 is "a person [who] lacks the capacity to consent to a sexual act [because] he or she is, by reason of a mental or intellectual disability or a mental illness, incapable of - (a) understanding the nature, or the reasonably foreseeable consequ...Vol-250 Book-1
14/02/2017 [Bills] Senator McDowell has raised a very important point and I commend him on his tenacity in insisting on raising these issues. I would appreciate further clarification. What Senators McDowell and Bacik have had to say is very interesting. Am I right in thinking that the questions of the stand...Vol-250 Book-1
14/02/2017 [Bills] The capacity to consent in section 22 is not the relevant part. It is about the relationship. Again, it pertains to offences concerned with a breach of trust and a risk of exploitation. The person was in a position of responsibility, under a contract of service. What we are trying to pro...Vol-250 Book-1
14/02/2017 [Bills] I would be grateful if the Minister of State could further address the question of the level of proof that the defendant, under a section 21 offence, must reach. How is it less than the burden placed on the person in authority under section 22?[Mullen, Rónán]Vol-250 Book-1
14/02/2017 [Bills] It is beyond reasonable doubt.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] In section 22 the Oireachtas is clearly displacing the normal statutory interpretation rule by providing explicitly that a civil standard of proof must be adhered to by the defendant there. Reading it again it is correct to say that section 22 imposes a heavier burden and obligation on the....Vol-250 Book-1
14/02/2017 [Bills] Senator Mullen may not have been present earlier when we dealt with that section, so if he would like clarity I can explain section 21 again. The proposed section 21(3) states, "In proceedings for an offence under this section, it shall be presumed, unless the contrary is shown, that the de...Vol-250 Book-1
14/02/2017 [Bills] I do not want to waste any further time on it because I can see that a different standard of proof has been applied for the two situations. Curiously, when one looks to the definition of the people who are to be protected from these crimes there is a further difference. A person could be i...Vol-250 Book-1
14/02/2017 [Bills] I was right about section 22, was I not?[Bacik, Ivana]Vol-250 Book-1
14/02/2017 [Bills] I am of the view that this is a lawyer's charter. It is an extraordinary item of legislation, and if these two sections sit side by side, articles will be written and judges will struggle to explain to juries the difference between one offence and the other and the requisite elements before...Vol-250 Book-1
14/02/2017 [Bills] I will repeat it again. The capacity to consent is not relevant here. The breach of trust is the key part here, and that is what the focus is on. That is the difference. Sections 21 and 22 are different. It is the breach of trust we are trying to focus in on here.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] In section 22 the crucial point in the definition of a relevant person, who is the victim of this crime, is that he or she suffers from a mental or intellectual disability or a mental illness which is of such a nature or degree as to severely restrict the ability of the person to guard himse...Vol-250 Book-1
14/02/2017 [Bills] This concerns contracted service.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] That is for the person in authority. What we are talking about here are male orderlies in a nursing home or something like that. They would fall into the person in authority category here because they are under a contract of services with a person under their care.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] The significance of this is that the relevant person must have:
(a) a mental or intellectual disability, or
(b) a mental illness,
which is of such a nature or degree as to severely restrict the ability of the person to guard himself or herself against serious exploitation.
That is a very dif...
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14/02/2017 [Bills] We could have this debate all night. I want to make one very simple point. These are two separate offences, which are separately drafted. I have already pointed out to Senator McDowell that in section 22 the burden is heavier on the person in authority to raise a defence - I am right abou...Vol-250 Book-1
14/02/2017 [Bills] With respect to Senator Bacik, it is not appropriate to be talking about wrapping up the debate until the issues are sufficiently clear. Some very important points are being ventilated here. The nub of this appears to be that there is a category of vulnerable people in respect of whom it w...Vol-250 Book-1
14/02/2017 [Bills] As I read it, section 21(5) provides for a 14-year penalty. In other words, where the sexual act consists of an act which would constitute a sexual assault it shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years. However, the penalty seems to be ten...Vol-250 Book-1
14/02/2017 [Bills] That is what it is at. It is not an error.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] It may be by design, but I ask the Minister of State to justify it.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] Design good.[Mullen, Rónán]Vol-250 Book-1
14/02/2017 [Bills] The Senator is making the point that it is an error. I spoke earlier on both of these. To put Senator Mullen at ease, legal advice was taken on both definitions from the Attorney General. We also had a serious debate on section 21 earlier. We are very clear on this. It is a very serious...Vol-250 Book-1
14/02/2017 [Bills] I would love to wrap up the debate on this, but let us be clear about this. Section 22(6) which we are discussing now states: " A person guilty of an offence under subsection (1) where the sexual act consisted of sexual intercourse, buggery or an act described in section 3(1) or 4(1) of the...Vol-250 Book-1
14/02/2017 [Bills] I will try to explain as best I can. We are trying to introduce protection because a person is under the care of a contracted person with responsibility.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] With a ten-year penalty.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] It is fair to say that in some situations there could possibly be consent and that is recognised. We are trying to do all we can to protect them. That is why it is a slightly lower offence. The Senator has practised criminal law. It is possible that there was consent. We have to try to ...Vol-250 Book-1
14/02/2017 [Bills] I will finish it at this stage. I find it inexplicable that if I am a person in authority and I bugger a person under my care, I am liable to a lesser penalty than a person who casually meets somebody suffering from, for example, a mental disorder.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] It reflects the relationship that was there. We are trying to protect the person in authority. We recognise there is potential for consent because there could be a long-term relationship there, although it is with someone in authority. We have to allow for that.
If there was a lack of c...
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14/02/2017 [Bills] The Minister of State can see the logic; I cannot.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] I am only telling the Senator the facts of it. He has been involved in prosecuting cases on all sides and I think he understands this is a very complicated situation with the contracted relationship, certainly when it is one of a great length of service.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] The contractual relationship is not with the patient; it is with the health authority or the nursing home. The Minister of State seems to be suggesting there is a contractual relationship with the person under care. That is not the case.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] That is not what I said.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] We are talking about, for example, male orderlies in a psychiatric home. The Minister of State is saying that if they bugger somebody, they are liable to a ten-year sentence, whereas if somebody takes advantage of somebody who is suffering from a mental illness in the street, they are liabl...Vol-250 Book-1
14/02/2017 [Bills] It is very hard to argue with the logic which Senator McDowell is applying to this. The Minister of State has pointed out, and it was debated ad nauseam in the House during the previous term, that there may be situations of consent. There is the matter, where people may have mental health....Vol-250 Book-1
14/02/2017 [Bills] It is not bad law, and neither is it ill thought out. It is very well thought out. It recognises that in some situations there is the potential for consent. We recognise that, whereas the Senator describes a situation of a stranger coming along the street. That is a very different scenar...Vol-250 Book-1
14/02/2017 [Bills] If consent were open, it would be very strange, given that section 21(7)(c) is there, that the person's mental or intellectual incapacity or mental illness rendered them incapable of communicating consent by speech, sign language or otherwise, if consent were not a relevant issue in those......Vol-250 Book-1
14/02/2017 [Bills] I fail to see how the Minister of State's argument that some cases might involve consent proves the case that the maximum sentence should be ten years as opposed to 14 years. We are not talking about mandatory sentencing here. We are talking about a range of options that are open to the co...Vol-250 Book-1
14/02/2017 [Bills] I will speak very briefly because I recognise that there are already three lawyers at work, engaging in detailed discussion of the potential and likely processes through the courts of these various offences.
I want to highlight one point which is important from my perspective. We are on s...
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14/02/2017 [Bills] We are on Committee Stage now. We will go back to group 3 when we conclude this. I will put the question on the section and we will go back to group 3 again for anyone-----[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] Before the Acting Chairman does that, I want to point out that not merely is there a difference between ten and 14 years, but looking at section 21(4), which I was not looking at, the offence of buggery actually carries a life imprisonment sentence for people who are not-----[McDowell, Micha...Vol-250 Book-1
14/02/2017 [Bills] Senator Higgins should be allowed to finish. I thank the Senator for the clarification on it. Senator Higgins has the floor. I will allow Senator McDowell in again.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] I am sorry. I thought the Senator had finished.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] We will have comments through the Chair, please.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] I am pointing to the fact we did not previously have adequate or appropriate legislation to address the particular breach of trust of a person in authority. The contractual relationship with a person in authority was referred to. There is a relationship of trust and it is a damaging thing ...Vol-250 Book-1
14/02/2017 [Bills] Question put and agreed to.Vol-250 Book-1
14/02/2017 [Bills] Bill reported without amendment.Vol-250 Book-1
14/02/2017 [Bills] We move back to group 3. Would any further Senators like to speak on group 3? Otherwise I will call the Minister of State to respond to group 3.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] Our amendments are finished but another amendment is being put forward.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] That amendment will be moved later. I will give Senator Kelleher the opportunity to speak on it if she wishes at this stage, because it is related, but there is no onus on her to speak at this stage.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] Can I still speak when it is being moved?[Kelleher, Colette]Vol-250 Book-1
14/02/2017 [Bills] Yes. It is only because it is related to this group of amendments that we are affording the opportunity at this stage. I will ask the Minister of State to respond to group 3 amendments if he has anything further to say.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] No. I am okay.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] I will move on to group 4. Report Stage amendments Nos. 2 to 4, inclusive, which have been tabled by Senator McDowell, are related to this group. The Senator will be called on to move and debate his amendments when all the groups of amendments made by the Dáil have been disposed of. Howev...Vol-250 Book-1
14/02/2017 [Bills] I move: "That the Bill be recommitted in respect of section 25."
This deals with the purchase of sexual services.[McDowell, Michael]
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14/02/2017 [Bills] Is Senator Kelleher opposing the recommittal?[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] No, I am still back at group 3 because amendment No. 1 in my name relates to the same issue.[Kelleher, Colette]Vol-250 Book-1
14/02/2017 [Bills] I allowed the Senator to speak on that amendment when we were on group 3. Equally, she will be allowed to speak on it when it is presented to the House.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] I thought it was being presented.[Kelleher, Colette]Vol-250 Book-1
14/02/2017 [Bills] It will be reached later. The Senator cannot move it at this point.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] Okay.[Kelleher, Colette]Vol-250 Book-1
14/02/2017 [Bills] Bill recommitted in respect of section 25.Vol-250 Book-1
14/02/2017 [Bills] Question proposed: "That section 25 stand part of the Bill."Vol-250 Book-1
14/02/2017 [Bills] If the Minister of State does not wish to speak on section 25 at this point, I will call Senator McDowell.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] That is fine.[English, Damien]Vol-250 Book-1
14/02/2017 [Bills] I have the greatest of difficulties with the provisions of this section of the Bill. I know it has had a long history. I know it has been considered at great length in a number of forums. I know it has a vocal support group among the community.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] I have come to the conclusion that it defies common sense and is a seriously flawed proposal.
The effect of the section is to amend the Act of 1993. That Act was passed by Dáil Éireann when I was a member of the Opposition in that House. It decriminalised homosexual behaviour and dealt w...
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14/02/2017 [Bills] I am not talking about the poor fellow who will be solicited, without criminal offence, by a prostitute on the street and agrees to go into a hotel on Gardiner Street or somewhere like that and have it off with her. I am not talking about somebody like that who is that guileless and patheti...Vol-250 Book-1
14/02/2017 [Bills] As I wrote in the The Sunday Business Post recently, we have created a grotesque alternative universe where the law says it is perfectly okay to offer oneself for sex for money but it is criminal if anybody, no matter how vulnerable, takes up that offer. What purpose is served by such a cha...Vol-250 Book-1
14/02/2017 [Bills] If Senator McDowell would let me speak-----[Ó Donnghaile, Niall]Vol-250 Book-1
14/02/2017 [Bills] The Senator will be able to speak soon. Nobody has been prosecuted in Northern Ireland for this offence yet. The only good it has achieved anywhere is to render the customer liable to criminal prosecution. If members think that is a good thing, they must remember that it carries with it,....Vol-250 Book-1
14/02/2017 [Bills] It is not my report.[Bacik, Ivana]Vol-250 Book-1
14/02/2017 [Bills] Okay, her committee's report. She was the chief spokesperson for it and should not be so modest. I know there are people who passionately believe that the solution to the problem is stopping the demand for prostitution and hitting the purchaser rather than the supplier of sex for money. I...Vol-250 Book-1
14/02/2017 [Bills] Why should a male escort not be paid by a woman for sexual services? It is their private business. What right has the State to suddenly say that if we discover that a man or woman has done this, we will drag him or her before our courts, ruin him or her socially and punish him or her in th...Vol-250 Book-1
14/02/2017 [Bills] I never thought I would spend St. Valentine's night listening to what Senator McDowell's fetishes may be. It has been a strange experience. I started out being hopeful about this Bill, although I disagree with section 4 because it deals with how much danger women are subjected to. I shall...Vol-250 Book-1
14/02/2017 [Bills] I agree.[Ó Donnghaile, Niall]Vol-250 Book-1
14/02/2017 [Bills] I am raging that I have had to follow him in this debate. We listened to him talk about seasoned prostitutes but sympathise with the plight of a poor 18-year old lad. We know who the Senator supports on foot of his comments. His contribution did not assist the campaign by some advocacy gr...Vol-250 Book-1
14/02/2017 [Bills] Hear, hear.[Kelleher, Colette]Vol-250 Book-1
14/02/2017 [Bills] I am quite disappointed with Senator McDowell. I agree with him that section 4 should have been dealt with in another Bill.
In my previous career, I supported many people who were exploited through prostitution because they were addicts, homeless or lived in poverty. In the past few year...
Vol-250 Book-1
14/02/2017 [Bills] However, there was much advocacy for a review of the legislation after either 12 months or two years. As there is much evidence, as was suggested, that this model is likely to have a poor impact on the human rights of workers and interfere with their ability to protect themselves, there is ...Vol-250 Book-1
14/02/2017 [Bills] I wish to repeat how strongly I support this section and section 25, which we extensively debated on previous occasions in the Seanad. I am listening carefully to what colleagues say, particularly those who did not have an opportunity to speak in the previous Seanad. I hope those who have....Vol-250 Book-1
14/02/2017 [Bills] Is the Senator suggesting it should be available?[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] I did not interrupt Senator McDowell.[Bacik, Ivana]Vol-250 Book-1
14/02/2017 [Bills] Senator McDowell suggested that, in some way, the sellers of sexual services who are not currently criminalised would become criminalised under this legislation but that is not the case. In fact, the seller will be decriminalised.
In respect of his argument on aiding and abetting, Senator...
Vol-250 Book-1
14/02/2017 [Bills] I agree with Senator Bacik on that.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] I am glad Senator McDowell agrees because it is indefensible. The current law on prostitution is indefensible. The vast majority of those appearing before the courts are people who are selling sex, usually women, who are the most visible and the most easily targeted by gardaí. They are, o...Vol-250 Book-1
14/02/2017 [Bills] I agree with much of what Senator Bacik said. I, too, was quite disturbed by some of the comments that have been made. Many of them had classist undertones. I refer to remarks about robbing pieces of silver on the way out the door, about people having nice houses and involving stereotypic...Vol-250 Book-1
14/02/2017 [Bills] Where does one start? I will tell the House who I feel sorry for in this instance. It is Senator Conway. The Fine Gael team voted to allow that drivel we just heard and then ran away and left the poor Senator and the rest of us to sit here and endure it.[Ó Donnghaile, Niall]Vol-250 Book-1
14/02/2017 [Bills] It is not as disrespectful, however, as what we heard in the first contribution.Vol-250 Book-1
14/02/2017 [Bills] On a point of order. It is an argument which the Senator might not agree with but he should get on with his own.[O'Donnell, Marie-Louise]Vol-250 Book-1
14/02/2017 [Bills] That is certainly not a point of order.[Ó Donnghaile, Niall]Vol-250 Book-1
14/02/2017 [Bills] Get on with your own.[O'Donnell, Marie-Louise]Vol-250 Book-1
14/02/2017 [Bills] I will tell you what-----[Ó Donnghaile, Niall]Vol-250 Book-1
14/02/2017 [Bills] The Senator should speak through the Chair.[O'Mahony, John]Vol-250 Book-1
14/02/2017 [Bills] I will make this point through the Chair. I note I have been asked to speak through the Chair while others have not.[Ó Donnghaile, Niall]Vol-250 Book-1
14/02/2017 [Bills] Argue the argument.[O'Donnell, Marie-Louise]Vol-250 Book-1
14/02/2017 [Bills] I will afford the Acting Chairman that courtesy while I am being shouted at from a number of positions.[Ó Donnghaile, Niall]Vol-250 Book-1
14/02/2017 [Bills] Senator Ó Donnghaile, without interruption.[O'Mahony, John]Vol-250 Book-1
14/02/2017 [Bills] It takes a lot for me to be flabbergasted. As other colleagues alluded to, some of what we heard during the first contribution really did that, if not go beyond that. It was supreme in not just its ignorance of many of the issues pertinent to this question but in its nuanced divergence fro...Vol-250 Book-1
14/02/2017 [Bills] I was not one bit disturbed by Senator McDowell’s comments. I commend him for making his case with passion and to the best of his considerable abilities. I listened carefully to what he said and read his article in The Sunday Business Post. In fact, he made his case so well, he almost con...Vol-250 Book-1
14/02/2017 [Bills] There was a very unpleasant tone of that in this Chamber tonight. New Senators who were elected or appointed to this House for the first time last year should consider that without Senator McDowell's initiative, they would have not had a chance to comment at such length on this important...Vol-250 Book-1
14/02/2017 [Bills] It would be more dignified.[O'Donnell, Marie-Louise]Vol-250 Book-1
14/02/2017 [Bills] Roughly speaking, we can talk about three categories of people who will be affected by this legislation, the first of which comprises those who avail of so-called sexual services by purchasing them. Those who provide such services fall into the other two categories. Everybody agrees that p...Vol-250 Book-1
14/02/2017 [Bills] Hear, hear.[O'Donnell, Marie-Louise]Vol-250 Book-1
14/02/2017 [Bills] The idea of human dignity can unite people coming from disparate backgrounds, including people who come from a strongly feminist persuasion who approach this issue through that philosophical or ideological lens. As everybody here probably knows, the origins of Ruhama are rooted in the good ...Vol-250 Book-1
14/02/2017 [Bills] It was desperate.[Noone, Catherine]Vol-250 Book-1
14/02/2017 [Bills] It was crude.[O'Donnell, Marie-Louise]Vol-250 Book-1
14/02/2017 [Bills] Nonetheless, it got people tweeting quite a lot. I mention this because it is closely related to the point I am making in so far as it shows how quickly a tipping point can be reached that results in the exploitation of others. The exploitation of others - and it is mainly women who get ex...Vol-250 Book-1
14/02/2017 [Bills] Are other Senators indicating, because it will affect how long I will speak for?[Higgins, Alice-Mary]Vol-250 Book-1
14/02/2017 [Bills] There is one more after the Senator, Senator Martin Conway.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] I will try not to take too much time. I would like to speak on one or two of the specific concerns raised by Senator McDowell and by my colleague, Senator Ruane, and then I will come to why I have reached the position of supporting the criminalisation of the purchase of sex. I want first t...Vol-250 Book-1
14/02/2017 [Bills] It was not an offence for the woman to take money in the past.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] I was speaking in terms of solicitation. I will keep going as I am very limited in my time. I have much less time than Senator McDowell.[Higgins, Alice-Mary]Vol-250 Book-1
14/02/2017 [Bills] I am sorry for interrupting.[McDowell, Michael]Vol-250 Book-1
14/02/2017 [Bills] I also wanted to speak on the question, which the Senator raised, of the fetish. It is not something that someone suffers with. People have fetishes and that is all very well and fine, but it is very important in areas such as sadomasochism that there is mutual desire and very clear lines ...Vol-250 Book-1
14/02/2017 [Bills] He has a minute or two left.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] I have many other points that I would like to make but I will put them aside.[Higgins, Alice-Mary]Vol-250 Book-1
14/02/2017 [Bills] Will there be a time extension?[Mullen, Rónán]Vol-250 Book-1
14/02/2017 [Bills] No. Unfortunately, the order of the day stands.[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] As somebody who was, with Senator Bacik and others, a member for five years of the Joint Committee on Justice and Equality, I worked extensively on the report. I came down very much on the side of what is being proposed. That was after many hours of consideration. I respect Senator McDowe...Vol-250 Book-1
14/02/2017 [Bills] It is new in Northern Ireland, but it is working in other countries. The arrangements in those countries are not perfect, but they are a damn sight better than what we have here.Vol-250 Book-1
14/02/2017 [Bills] As it is now 9 p.m., I am required to put the following question in accordance with the order of the Seanad of this day: "That section 25 is hereby agreed to on recommittal, the Bill is hereby received for final consideration and the Bill is hereby passed."[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] It is customary to welcome the passing of a Bill. I would like to take this opportunity to acknowledge the role played by our former colleague, Máiría Cahill, who is in the Gallery, on this Bill when she was a Member of this House.[Conway, Martin]Vol-250 Book-1
14/02/2017 [Bills] Question put and agreed to.Vol-250 Book-1
14/02/2017 [Bills] When is it proposed to sit again?[An Leas-Chathaoirleach]Vol-250 Book-1
14/02/2017 [Bills] At 10.30 a.m. tomorrow.[Conway, Martin]Vol-250 Book-1
14/02/2017 [Bills] The Seanad adjourned at 9 p.m. until 10.30 a.m. on Wednesday, 15 February 2017.Vol-250 Book-1
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