New legislation that strengthens the law around sexual offences and improves protections for victims of sexual offences has commenced, beginning from on 31st August last.
- Wide-ranging Act delivers on key reforms in the strategy ‘Supporting a Victim’s Journey’ to improve the criminal justice system for victims of sexual offences.
- Character references must now be given on oath or via affidavit in sexual offence trials.
- An Garda Síochána and civilian courts will investigate alleged sexual offences in Defence Forces.
- Preparations underway for the new National Referral Mechanism (NRM) for victims of human trafficking .
Parts 1, 2, 4 and 5 of the Criminal Law (Sexual Offences and Human Trafficking) Act 2024 have commenced which:
- Ensures anonymity for victims in all trials for sexual offences.
- Extends the right to separate legal representation to victims of sexual assault if they are being questioned about their previous sexual history.
- Ensures character evidence at a sentencing hearing for a person convicted of a sexual offence must be made on oath or via affidavit.
- Ensures people subject to military law who commit sexual offences in this jurisdiction will be dealt with by An Garda Síochána and the civilian courts rather than by courts-martial.
- Clears the final obstacles to ratification of the Second Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.
This legislation delivers on key recommendations in the Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences which underpins the Government’s strategy – ‘Supporting a Victim’s Journey’ – to improve the criminal justice system for victims of sexual violence, predominantly women and children while fulfilling commitments to a ‘Zero Tolerance’ Strategy to tackle domestic, sexual and gender-based violence (DSGBV).
This new legislation protects the privacy of victims in court. It strengthens measures that protect victims from re-traumatisation and re-victimisation, as they engage with the justice system during the investigation and prosecution of sexual offences.
The legislation ensures anonymity for victims in all sexual offences trials. It also provides for the anonymity of an accused person, unless and until he or she is convicted of a sexual offence.
The public will be excluded from the courtroom for sexual offence trials and the definitions of “broadcast” and “publication” is revised, so that publication on social media is covered in order to protect the victim’s identity.
The victim’s right to separate legal representation, if there is an application to question them over their previous sexual experience, is now extended to include trials for sexual assault, which had not previously been covered under the legislation. The barrister who is assigned to represent the victim at the application is allowed to continue to represent the victim at the questioning, if the application is granted.
The new legislation also implements recommendations by the Defence Forces Independent Review Group (IRG). The IRG recommended amendments to the Defence Act 1954 to ensure that persons subject to military law who commit sexual offences in this jurisdiction will be dealt with by An Garda Síochána and the civilian courts – rather than by courts-martial.
Second Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.
A number of significant pieces of legislation had to be passed to ensure that Ireland is in compliance with the obligations of the Second Optional Protocol to the UN Convention on the Rights of the Child. The enactment of the Criminal Law (Sexual Offences) Act 2017 and the Criminal Justice (Victims of Crime) Act 2017 constituted key steps on the pathway to the ratification of the Optional Protocol.
The Office of the Attorney General advised that in order to overcome one of the last obstacles to ratification, section 3 of the Criminal Law (Sexual Offences) Act 2017 needs to be inserted into the Schedule to the Sexual Offences (Jurisdiction) Act 1996, to provide for extraterritoriality. Section 3 of the 2017 Act creates an offence of obtaining or providing a child for the purposes of sexual exploitation and its addition to the Schedule of the 1996 Act will allow it to be prosecuted where some or all of the offence is committed outside the State. In addition, the Protocol is being added to the list of international agreements to which the Criminal Justice (Mutual Assistance) Act 2008 applies, so that mutual assistance can be provided to Convention states in accordance with the Protocol. The Criminal Law (Sexual Offences and Human Trafficking) Act 2024 provides for these amendments thus removing the remaining obstacles to Ireland’s ratification of the Protocol.
Ratification of the Second Optional Protocol will be a matter for the Minister for Children, Equality, Disability, Integration and Youth.
The legislation will also clear the path for Ireland’s ratification of the Second Optional Protocol to the UN Convention on the Rights of the Child.
Human Trafficking.
In addition, Part 3 of the Criminal Law (Sexual Offences and Human Trafficking) Act 2024 provides the legislative basis for a new National Referral Mechanism (NRM) for victims of human trafficking. An NRM, (as defined by the European Commission and OSCE), is a framework through which States fulfil their obligations to protect and promote the human rights of trafficking victims, working in partnership with civil society.
Ireland’s new NRM will make it easier for victims of trafficking to come forward, be identified and access advice, accommodation, and support.
Given the importance of this section of the Act, the preparatory work for the commencement of Part 3 is continuing, as a priority, and is expected to be completed by the end of this year.
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