Caroline Counihan BL is Legal Policy Director with Rape Crisis Network Ireland (RCNI). RCNI is the representative, umbrella body for Rape Crisis Centres across Ireland. It is a specialist information and resource centre on rape and all forms of sexual violence.
RCNI broadly welcomes the Criminal Law (Sexual Offences) Bill, which is an ambitious and extensive piece of legislation covering a wide range of topics discussed for years by the Oireachtas, among State agencies, NGO support organisations, the judiciary, and not least, by survivors of sexual violence. The General Scheme, published in November 2014, sets out the Heads of Bill which puts a legal form on submissions made by RCNI to Government over several years; many of these and others reflect recommendations and findings by Oireachtas Committees, specialist NGOs, relevant criminal justice agencies, and other experts. The Heads also reflect State commitments, both internal, such as the goal of revising the updated law on sexual offences in the National Strategy on Domestic, Sexual and Gender-Based Violence, and external, such as the transposition of the EU Directive combating sexual abuse and exploitation of children and child pornography.
The Heads in this General Scheme are divided as follows: Part 1 (Preliminary), Part 2 (Sexual Exploitation of Children, etc), Part 3 (Amendment of Sex Offenders Act 2001), Part 4 (Amendment of Punishment of Incest Act 1908), Part 5 (Criminal Evidence), Part 6 (Jurisdiction), Part 7 (Miscellaneous).
Part 1: Head 2: Definitions
Note that in this Scheme, “child” means a person under 18, unless otherwise indicated, and that “sexual exploitation” has a new meaning, broader than the present one: for instance, it would now include “causing another person to commit an offence against the child or vulnerable person, inviting, inducing or coercing...child or vulnerable person to commit such an offence against another person..and, “inviting, inducing or coercing the child or vulnerable person to engage or participate in OR observe, any sexual, indecent or obscene act....” (emphasis added).
Part 2: This lengthy Part is subdivided into several sections, not all relating to offences against children. (i) Sections 3 to 8 broaden the reach of several existing child exploitation offences, provide for a specific offence of grooming through information and communication technology, and include a new specific offence of inviting (etc) a child to touch a body part of any person, for a sexual purpose. (ii) Sections 9 to 12 amend the Criminal Law (Sexual Offences) Act 1993: there is an offence of soliciting or paying purpose of the sexual exploitation of a vulnerable person, a new offence of purchasing sexual services, a revised offence of knowingly purchasing sexual services from a trafficked person and finally, Head 12 which will create new sexual offences against vulnerable persons, has not yet been finalised. (iii) Head 13 to 17 amend the Child Trafficking and Pornography Act 1998 (as amended already), to redefine “child” as a person under 18 instead of 17, to criminalise the organisation of child prostitution/production of child pornography, to criminalise causing, inciting, compelling, recruiting, inviting or inducing, the participation of a child in a pornographic performance, and also attending such performance (Head 15). Section 5 of the Act of 1998 is substituted with an extensive list of offences related to child pornography. Note that the new offences do not mention the word “knowingly”; finally, the acquisition or possession of child pornography is criminalised. (iv) Heads 18 to 22: amend the Criminal Law (Sexual Offences) Act 2006, to redefine a person in authority, and introduce a more objective wording into the various defilement offences.
Part 3: This extensive revision of the Sex Offenders Act 2001 tightens notification requirements, provides for risk assessment of sex offenders and controlled disclosure of information about them, makes it easier to apply for a sex offender order, defines ‘post-release supervision’, gives the court power to amend Post Release Supervision Order conditions or add new ones, and provides for electronic monitoring and for orders prohibiting sex offenders from working with children/vulnerable persons.
Part 4: This provides for equal penalties for both sexes and for the exclusion of the public from hearings and for anonymity for those charged with incest offences.
Part 5: This deals mainly with special measures to protect child victims, including screens, removal of robes, protection against cross-examination by accused, video recording as evidence at trial. However, Head 52 on disclosure of counselling records extends to adult as well as child victims.
Part 6 : Revises the law on extra-territorial offending.
Part 7: This part introduces new harassment orders, which can be made at sentencing or afterwards, to prohibit offenders from doing anything which would cause the victim or other person “fear, distress or alarm, or amount to intimidation”.
Omissions: What would RCNI also include?
RCNI would like to see this legislation include a positive definition of consent to sexual activity, supported by a list of situations in which there is no consent, which should include voluntary intoxication of the complainant; and also, a revision of existing law and procedure on the admissibility of evidence of ‘other sexual experience’.