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

I move amendment No. 2:

In page 6, line 14, to delete “child pornography” and substitute “child sexual abuse material“.

These amendments were also tabled on Committee Stage. As I have already articulated my views on this issue on Committee and Second Stage, I do not intend to be repetitive today. I appreciate that the amendments as drafted technically do not address everything that needs to be addressed, but I am strongly of the view that use of the phrase “child pornography” is abhorrent, and we need to be using it for the term that it is. The word “pornography” in some way implies that there is some consent. In the English dictionary in the mid-nineteenth century, the word was associated with terms such as “taboo” and “secretive,” but it has now become common parlance. For me, the words “child” and “pornography” should never be used together. We are clearly talking about child sexual abuse material relating to children who cannot and would not consent; they are victims of a crime. The child abuse images are documented evidence of a crime in progress, a child being sexually abused.

Similar to the amendments I tabled to the Criminal Law (Rape) (Amendment) Act 1990 in relation to assault, these amendments seek to positively change this legislation. Similar amendments have been accepted. Also, I note that the UK, through an amendment to its Serious Crime Act 2015, has amended its Sexual Offences Act 2003. The term used in the UK for both child prostitution and child pornography is “sexual exploitation of a child.” I want us to name this material for what it is. What I am seeking from the Minister today is a commitment that her Department will seek to rectify this balance.

As I said, I do not propose to reiterate the arguments I put forward on Committee and Second Stages. I believe that in Ireland we should have a system to filter all child abuse material, as happens in the UK and on our mobile phones, as mobile phone providers have signed up to an EU agreement in that regard. We should be automatically doing this work. I commend the work of the Internet Watch Foundation in the UK and hope we could have something similar here. The purpose of these amendments is to name this material for what it is, namely, child sexual abuse material. Interpol and Europol have asked us to call it what it is. They have asked us not to use the term “child pornography,” because it in some way diminishes the act. I ask that the Minister consider my proposals.

I move amendment No. 39:
In page 26, to delete lines 12 to 14 and substitute the following:
“(17)(a) This section and section 19B do not apply where a complainant or witness has expressly waived his or her right to non-disclosure of a relevant record without leave of the court.

(b) No complainant or witness shall be deemed to have expressly waived his or her right to non-disclosure unless he or she has been offered a reasonable opportunity to obtain independent legal advice on the issue of disclosure rights before he or she is asked to sign any document purporting to waive his or her right to non-disclosure of a relevant record without leave of the court.

(18) In addition to the provisions of this section, section 19B shall apply to a relevant record relating to a child.
19B.(1) In this section and in section 19A(18) ‘relevant record relating to a child’ means a relevant record (or part of such record) relating to a sexual offence or sexual offences alleged to have been committed in respect of a person who was, at the time of the offence, under the age of 18.
(2) Without prejudice to the generality of section 19A, the content of a relevant record relating to a child shall not be disclosed to the accused and shall not be admissible as evidence in criminal proceedings save by order of the court and in compliance with the provisions of this section and section 19A.

(3) In determining an application for disclosure of a relevant record relating to a child, subject to the rules of the relevant court and in addition to the criteria set out in section 19A(9), the court shall take the following factors, in particular, into account:
(a) the extent to which the evidence contained in the relevant record relating to a child has substantial probative value;

(b) whether there is other evidence available to the accused that renders it substantially unnecessary to have regard to the relevant record relating to a child; and

(c) whether the public interest in disclosure or the constitutional and other rights of the accused person or both together outweigh the potential harm to the complainant.”.”.

I wish to raise an issue on third-party disclosures and I want to be clear from the outset that I welcome section 34. In June 2013, I tabled amendments to the Courts and Civil Law (Miscellaneous Provisions) Bill concerning the disclosure of third-party records, namely, the counselling and therapy notes of child complainants in sexual offence trials. At that time, I expressed my deep concern regarding the issue of the court ordered disclosure of complainants’ confidential records by medical, psychiatric or therapeutic personnel, be the complainant an adult or a child, in the absence of any legislative guidelines. I am delighted to see the issue being addressed in the Bill and I support the approach taken to provide standards and guidance to the courts in determining whether to grant an order for the disclosure of a record in dispute.

I agree that an adequate balance has been struck between an adult complainant’s right to privacy and the right of the accused person to procedural fairness. However, upon further reflection in this regard, I have tabled an additional amendment – amendment No. 40 – which includes the same changes to sections 34(17)(a) and (b) as proposed in amendment No. 39, whereby the provisions of a new section 19A of the Act of 1992 would not apply where complainants or witnesses expressly waive their right to disclosure of a relevant record without leave of the court. I am sure the Minister fully acknowledges and sympathises with the vulnerability of a complainant or a witness during this time. My concern is that the right of a complainant or witness to advice or representation by the Legal Aid Board only kicks in where a decision has been made to prosecute. However, the point at which a complainant or witness is invited to waive his or her rights concerning disclosure often arises at a Garda station when a formal witness statement has been given. I suspect this happens without any real understanding of the implications should the matter proceed to trial. The amendment provides that any express waiver be made subject to independent legal advice or the offer of such advice. I know that the board, with its ample experience on the ground, is very supportive of the safeguard.
The purpose of the new section 19B is to act as an additional layer of protection for child complainants or witnesses in sexual offence trials who are uniquely vulnerable by virtue of their age and the heinousness of the abuse perpetrated against them. To understand the difficulty thrown up by an increasing number of blanket requests from the Office of the Director of Public Prosecutions for disclosure of details of children’s private and confidential counselling sessions, it is important to understand that the therapeutic process happens in two distinct phases. The first phase is the compilation of an assessment report which records the baseline account – the who, what, where and when – of the abuse the child is alleging. It is clearly material evidence relevant to a criminal investigation in a trial and is rightly subject to disclosure.

The second phase is the therapy. The therapy notes are concerned with documenting the child’s feelings, thoughts, hopes, fears and dreams. If any information arises in the course of the therapy phase which substantively alters the account given in the assessment report, the practitioner will update the assessment report accordingly and make it available to the relevant parties. In effect, any information or material evidence relevant to a criminal investigation or trial for child sexual abuse is often disclosed as a matter of course. The remaining information contained in counselling records and therapeutic notes has no material relevance but it reflects the heart and soul of a damaged child and should not be subject to disclosure. There is a strongly held view on the part of many practitioners who specialise in assessment and therapy services for children who have been sexually abused that therapy notes should be privileged outright on the basis they are neither material evidence nor information relevant to legal proceedings. When one examines the purpose of therapy for children who have been sexually abused, what the therapy involves and, moreover, the arrangements the services have in place to manage the process, the rationale for affording such privilege is very strong. Therapy as a whole is not concerned with making judgments or assessing the veracity of what is shared in sessions. Rather, it is simply a particular type of human engagement where the exploration of a child’s thoughts and feelings at a particular point in time are facilitated. Therapy notes, in turn, are context specific. They derive out of a therapeutic encounter and as such are concerned with documenting feelings, thoughts, hopes, fears and dreams. They are not absolute facts. They are not material evidence.

Ultimately, the aim of therapy is to assist a child in getting back to a life that is not dominated by the sexual abuse he or she experienced and to equip the child to build trusting relationships. In doing so, the therapist will address patterns of behaviour or responses which have become unhelpful, burdensome or troubling in the child’s living experience. Therapy can also draw attention to healthy responses and coping strategies shown by the child in and out of sessions. This can involve the use of fantasy and therapeutic play scenarios, especially for younger children where the child can try out different roles in order to make sense of the abuse experienced. However helpful the process may be to the child, therapists are becoming increasingly concerned about how notes describing such a scene might be interpreted in a legal arena and taken out of context.

Trust in the therapeutic relationship and the creation of a safe space are paramount to the effectiveness and success of the therapeutic process. It is difficult to envisage how this can be achieved if the privacy and confidentiality of these therapy sessions are not sacrosanct. I argue that the effectiveness and success of the therapeutic process is an important part of the public interest consideration in restoring the child’s well-being and ability to function in society. The amendment is an added layer of protection to reflect the unique vulnerability of the child and the nature and type of information which comes through in the therapy process, as distinct from the material facts. Any additional relevant information is added as a matter of course to the assessment report.

I am acutely aware of the need to strike the proper and appropriate balance between the right of the accused to procedural fairness in a child sexual abuse case, the right of a child witness to privacy, as well as the right not to be revictimised or unduly traumatised by the criminal justice system, and the public interest. The amendment is wholly compatible with Irish constitutional law, Ireland’s obligations under the European Convention on Human Rights and the best interests of the child in the context of providing in law that the disclosure of sexual assault counselling communications of children will only be granted by a trial court where the evidence sought has substantive probative value, where there is no other evidence which could prove the disputed facts and where the public interest in disclosure outweighs the potential harm to the child.As I stated, I would prefer to make these notes privileged and sacrosanct, but what I have done in the amendment in strive to strike the balance that needs to be there in law. I hope the Minister would look favourably on these amendments.

Full debate https://www.kildarestreet.com/sendebates/?id=2016-01-21a.178&s=jillian+van+turnhout#g190

Directive of European Parliament on Sexual Abuse and Exploitation of Children: Statements

Thursday, 19th September 2013

I too welcome the Minister to the House and thank him for his comprehensive presentation on the EU directive. I could say a lot on issues related to the directive, but I intend to focus on article 25 which relates to child abuse material online. I welcome the commitments the Minister has given this morning. Among the wide-ranging provisions relating to criminal offences and sanctions in the area of sexual abuse and exploitation of children, the directive requires all member states to take the necessary measures to ensure the prompt removal of any web pages containing or disseminating child abuse material hosted on servers within their jurisdiction. It also asks member states to make appropriate safeguards to block access for Internet users within their territory of web pages containing or disseminating child abuse material hosted on servers outside of their jurisdiction.

I do not know whether the Minister’s comprehensive presentation is a sign of things to come, but I feel the Seanad’s role has been airbrushed out of it. In February 2012 we had an Independent group motion on the EU directive and the need for Ireland to block sites. At the time, I was delighted my colleagues, among them Senators Mary Ann O’Brien, Fiach Mac Conghail, Katherine Zappone, Marie-Louise O’Donnell and probably every Senator in the House, supported the motion calling for a blocking of sites. We took the Minister’s word that he would consider that, even though we knew at the time the ISPs and some officials did not agree with us on the need to block them. I welcome the moves being made now, but I wish to acknowledge the role of the Seanad in calling for this.

I have produced a report on effective strategies to tackle online child abuse material which is published today and I will be happy to present the Minister with a copy of it. Often we are told that blocking does not really work, that we will not get rid of it all and that we should not be naive. Would the Minister say the same to drug traffickers or suggest that we should just remove customs and borders because drugs get into the country anyway? We must put a deterrent in place to block this material. I am not living in some naive world where I believe that implementing the directive will solve the issue, but implementing it will act as a deterrent and will ensure that average citizens will not come across such material accidentally, as they do currently.

I welcome the commitment given, but I would like to see greater urgency attached to it. I was disappointed to see in the legislative programme that the criminal law (sexual offences) Bill is still under section C, which means that publication is not expected until 2014. The Minister for Justice and Equality will know that I have a long list of issues he has promised the Bill will cover and other colleagues have other issues. However, there is a problem with regard to the proliferation of child abuse material on the Internet and this is a stain on our moral conscience. I am very concerned by this and that is the reason I commissioned the report I did, in which I go through the options for Ireland and what needs to be done.

We need to think about the victim profile. Many Members attended an extraordinary briefing we received in 2012, before we moved our group motion in the Seanad. Pat McKenna of ChildWatch and Michael Moran, assistant director of Interpol’s directorate dealing with trafficking of human beings briefed us at that meeting and provided us with startling figures. When they examined some of the images in question, some 74% of the victims appeared to be ten years of age or younger. We heard of images of children with their umbilical cord still attached. The prevalence is moving towards children who cannot yet speak, because they cannot articulate what is happening to them. The images and pictures we are talking about are horrendous. They are a crime scene.

Another problem is the offender profile. Some 70% of the offenders are aged between 21 and 50. Some 59% are likely to be married, 41% are likely to have children and 33% are physically abusive in other aspects of their lives. What we were told at the briefing stays with me. We were told that the average person who comes across this trade accidentally is horrified and walks away from the computer. However, within a week, many will go back to the computer and start looking for more images. These images are not traded in money, but in images, so what will one do when one wants to be king of the pack but create one’s own images. We must introduce a blocking system. This problem affects Irish children and children worldwide.

I have been very affected by some of the stories of children who have been abused. I cannot understand the reason behind many crimes, but I can nearly understand murder, although I do not condone it. However, I cannot understand child abuse. I cannot get my head around why people would do it. In the case of this kind of child abuse we have victims who find out that their images are proliferated across the world and that their own country will not block these images. We must ensure we have a blocking system in place.

The Minister mentioned a hotline. I call it the lesser known hotline. It is great to have it, but it is not much use if it is not publicised and people do not know about it. To be honest, I believe the existence of the hotline can be used as a cover or excuse by the ISPs who can point to its existence. This is a bit like the issue of drink awareness, where people can point to MEAS and drinkaware.ie. We need a much more independent system.

The countries that already have filtering in place are Canada, Norway, Sweden, Denmark, Switzerland, Italy, Netherlands, Finland, New Zealand, France, Malta, Australia and the UK, including Northern Ireland. All our mobile telephone providers across Europe have it. Therefore, I do not accept any arguments we hear about why we cannot do it.

I commend the Garda Síochána, Europol and Interpol, who are doing amazing work and I feel strongly that we need to support them.

Why is there not a greater urgency to transpose the directive? We should be doing so without delay. It is great that we have the EU directive. Let us put filtering in place. Self-regulation is not working. The Internet service providers, ISPs, are being dragged to the table.

A child abuse image is a crime scene. It is a digital record of some of the most monstrous crimes against children.

This is a question of protecting children from abuse. We must take action. I plead for greater urgency. We can undertake it discreetly and efficiently, a suggestion that I examined in my report.

Order of Business, 19 September 2013

Thursday, 19th September 2013

I support Senator O’Brien in his call for No. 2 to be discussed. It is something we should do to ensure any inquiry is as we intend it and as we would expect. Perhaps it cannot be facilitated today but if there were a commitment, I would be supportive of it.

I commend the French Senate, which yesterday banned beauty pageants for children under 16 years. In fact, it will impose prison sentences. This is about protecting childhood. Beauty pageants prematurely force children into roles of seduction that seriously harm their development. I am most disappointed to note that this weekend for the first time in Ireland there will be such a beauty pageant. It is not a welcome development. I wish to send a clear message that it should be cancelled and that we should not be having these types of beauty pageants in our country. We should be protecting childhood.

I thank the Leader for putting on the agenda for discussion today the EU directive on combatting the sexual abuse and exploitation of children and child pornography. As colleagues are aware, in February 2012 the Independent group put forward a comprehensive motion that dealt with the directive, but nothing has happened since. I welcome that it is on the agenda today. I have published in advance a report on effective strategies to tackle online child abuse material. We should remember that a child abuse image is a crime scene. It is a digital record of some of the most heinous crimes against children. This is about protecting real children from real abuse in the real world. I have copies of the report if colleagues would like to see it in advance of our discussion at 11.45 a.m. We should send a clear message to the Government that we need to ensure we have filtering in place to block online child abuse material. I thank the Leader for placing this matter on the agenda. However, we must do more than just discuss it.

Column: Blocking child porn isn’t about censorship. It keeps children safe.

21st March 2012

Column: Blocking child porn isn’t about censorship. It keeps children safe.
The rights of children must come first – and it’s time to block images of the worst sexual abuse, write Senators Deirdre Clune and Jillian van Turnhout.

CHILD ABUSE MATERIAL is often spoken about as “child pornography” but it is far more serious an offence than can be encompassed by any single definition. A child abuse image is a crime scene, a digital recording of rape, incest, assault, sadism and bestiality being perpetrated against a child.

The sheer horror of such images is closer in content to depictions of the atrocities of war by those who perpetrate them. It is imperative that Irish internet service providers move to block child abuse material to prevent the proliferation of these images.

Think for a moment about the most humiliating and degrading moment you have ever experienced. Think of the desperate helplessness you felt. Now imagine that someone had managed to capture that moment. That image was then spread across the globe so that no matter how far you ran you could never be sure that those you meet did not see it. Now imagine the scenario for a victim of child sexual abuse whose trauma has been recorded and disseminated for the sexual gratification of others. Try to comprehend the on-going harm that victim suffers as long as the image remains available for others to view, their sense of being re-abused again and again and being defined by defilement for ever.

Blocking child abuse material on the internet is not going to stop those who are determined to view it. Traders will share their collections via peer-to-peer, email and other services. The blocking measure is aimed at those who stumble across one image inadvertently and whose curiosity sparks a dangerous spiral, which leads them to seek out more. Interpol describes these individuals as ‘simple viewers,’ and their statistics show that one in three simple viewers go on to abuse a child themselves.

We live in the information age. A photo taken in one part of the world can reach into millions of homes within seconds of being uploaded. It can seem inconceivable that images of child abuse are being sought online. However, a huge volume of requests are made to access child abuse material, intentionally or accidentally, through standard webpages throughout the world. For example, 4.5 million requests are blocked in Norway each year; 13.5 million requests were blocked in New Zealand between February 2010 and November 2011; and BT alone blocks 40,000 requests each day in the UK.

’750,000 people are using websites displaying images of child sexual abuse at any one time’

In 2009,the UN-Special Rapporteur on the sale of children, child prostitution and child pornography, Najat M’jid Maalla, stated that 750,000 people are using websites displaying images of child sexual abuse at any one time. Attempting to eliminate child abuse material on the internet is a difficult task. As soon an image is removed it can spring up again in another location. Google and Facebook have their own systems in place to block such images. Mobile operators in Ireland also block this material under the Alliance Against Child Sexual Abuse Content.

While Irish ISPs do secure the removal of child abuse material on domestic servers, they are yet to follow the likes of Australia, Denmark, Finland, Italy, Malta, New Zealand, Sweden and the UK by blocking the same material hosted overseas, where removal proves difficult or takes an unreasonable length of time.

There are those who will argue that any form of blocking content online is an infringement on their civil liberties. The only images which are being targeted are those which fall into Interpol’s list of the three most severe forms of child sexual abuse: assault, gross assault and sadism/bestiality. Even the most ardent opponent of internet censorship cannot argue that failing to block the spread of these images of child sexual abuse maintains virtual freedom.

Having robustly debated this issue in the Seanad recently as part of a private members motion proposed by the Independent Group of Senators (Taoiseach’s Nominees) we are even more committed to tackling this issue through the introduction of a blocking system. In response to the motion Minister for Justice Alan Shatter assured the Senate that the Government abhors the evil trade in illegal images of children being sexually abused and pledged his commitment to fully consider blocking internet child abuse material in the development of the planned Sexual Offences Bill.

Deirdre Clune is a Fine Gael senator, and Jillian van Turnhout is an independent senator.

Article link: http://www.thejournal.ie/readme/column-blocking-child-porn-isn%e2%80%99t-about-censorship-it-keeps-children-safe-390656-Mar2012/

Order of Business, 7 February 2012

7th February 2012

I would like to begin by wishing the very best to my colleague, Senator Eamonn Coghlan, with his endeavours in his new career with Fine Gael. I look forward to continuing to work with him and all my colleagues in this House.

It is a great shame that the Internet service providers of Ireland have chosen today – Safer Internet Day – to criticise the decision of their UK counterparts to require their customers to opt in before accessing adult material. The Internet service providers of Ireland are more than willing to block access to sites that infringe copyright, but they consider it to be nothing less than censorship to try to prevent a child from accessing potentially harmful material. They took a similar view when they were asked to block child abuse material. This is already being done in many European countries, including Norway, Sweden and Italy. The US National Centre for Missing and Exploited Children has estimated that 20% of all pornography on the Internet depicts the abuse and exploitation of children. However, Irish Internet providers are more concerned with preventing people from downloading songs and other things from the entertainment industry than with blocking terrible images of children being abused. I ask the Leader to invite the Minister for Communications, Energy and Natural Resources to the House to outline what Ireland is doing to join its EU counterparts in blocking child abuse material on the Internet.

The Lancet

In July 2021, Jillian co-authored an article in the world-renowned medical journal “The Lancet”