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

The Lancet

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