Criminal Law (Sexual Offences) Act 2017

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Criminal Law (Sexual Offences) Act 2017.

(2) This Act shall come into operation on such day or days as the Minister for Justice and Equality may appoint by order or orders whether generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Interpretation

2. In this Act—

“Act of 1908” means the Punishment of Incest Act 1908;

“Act of 1981” means the Criminal Law (Rape) Act 1981;

“Act of 1990” means the Criminal Law (Rape) (Amendment) Act 1990;

“Act of 1992” means the Criminal Evidence Act 1992;

“Act of 1993” means the Criminal Law (Sexual Offences) Act 1993;

“Act of 1995” means the Criminal Law (Incest Proceedings) Act 1995;

“Act of 1998” means the Child Trafficking and Pornography Act 1998;

“Act of 2001” means the Sex Offenders Act 2001;

“Act of 2006” means the Criminal Law (Sexual Offences) Act 2006;

“Act of 2008” means the Criminal Law (Human Trafficking) Act 2008;

“image” means any photographic, film or video representation or any other form of visual representation, and any accompanying sound or any documents;

“sexual activity” means any activity where a reasonable person would consider that—

(a) whatever its circumstances or the purpose of any person in relation to it, the activity is because of its nature sexual, or

(b) because of its nature the activity may be sexual and because of its circumstances or the purposes of any person in relation to it (or both) the activity is sexual;

“sexual exploitation” means, in relation to a child—

(a) inviting, inducing or coercing the child to engage in prostitution or the production of child pornography,

(b) the prostitution of the child or the use of the child for the production of child pornography,

(c) the commission of an offence specified in the Schedule to the Act of 2001 against the child, causing another person to commit such an offence against the child, or inviting, inducing or coercing the child to commit such an offence against another person,

(d) inducing or coercing the child to engage or participate in any sexual, indecent or obscene act,

(e) inviting the child to engage or participate in any sexual, indecent or obscene act which, if done, would involve the commission of an offence against the child, or

(f) inviting, inducing or coercing the child to observe any sexual, indecent or obscene act, for the purpose of corrupting or depraving the child.

PART 2 Sexual Exploitation of Children

3. Obtaining, providing etc. a child for purpose of sexual exploitation

3. (1) A person who for the purposes of the sexual exploitation of a child—

(a) pays, gives, offers or promises to pay or give a child or another person money or any other form of remuneration or consideration,

(b) provides or offers or offers or promises to provide, a child to another person, or

(c) obtains a child for himself or herself or for another person,

shall be guilty of an offence.

(2) A person (other than the child) who accepts or agrees to accept money or any other form of remuneration or consideration in the circumstances referred to in subsection (1)(a) or accepts or agrees to accept a child in the circumstances referred to in subsection (1)(b) or (1)(c) shall be guilty of an offence.

(3) A person who causes an offence under subsection (1) or (2) to be committed shall be guilty of an offence.

(4) A person who attempts to commit an offence under subsection (1), (2) or (3) shall be guilty of an offence.

(5) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a class A fine, or imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 10 years, or both.

(6) In this section “child” means a person under the age of 18 years.

4. Invitation etc. to sexual touching

4. (1) A person who, for sexual purposes, invites, induces, counsels or incites a child to touch, with a part of the body or with an object, the body of any person, including the body of the person who so invites, induces, counsels or incites and the body of the child, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.

(2) In this section “child” means a person under the age of 15 years.

5. Sexual activity in presence of child

5. (1) A person who, for the purpose of obtaining sexual gratification from the presence of a child or corrupting or depraving a child, intentionally engages in sexual activity whether or not with another person—

(a) when the child is present or in a place from which the person can be observed by the child, and

(b) knowing or believing that the child is aware, or intending that the child should be aware, that the person is engaging in sexual activity,

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.

(2) In this section “child” means a person under the age of 17 years.

6. Causing child to watch sexual activity

6. (1) A person who, for the purpose of obtaining sexual gratification or corrupting or depraving a child, intentionally causes a child—

(a) to watch another person engaging in sexual activity, or

(b) to look at an image of that person or another person engaging in sexual activity,

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.

(2) In this section “child” means a person under the age of 17 years.

7. Meeting child for purpose of sexual exploitation

7. (1) A person who—

(a) intentionally meets, or travels with the intention of meeting a child or makes arrangements with the intention of meeting a child or for a child to travel, whether or not from within the State, having communicated by any means with that child on at least one previous occasion, and

(b) does so for the purpose of doing anything that would constitute sexual exploitation of the child,

shall be guilty of an offence.

(2) A person guilty of an offence under this section shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.

(3) In this section “child” means a person under the age of 17 years.

8. Use of information and communication technology to facilitate sexual exploitation of child

8. (1) A person who by means of information and communication technology communicates with another person (including a child) for the purpose of facilitating the sexual exploitation of a child by that person or any other person shall be guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding 14 years.

(2) A person who by means of information and communication technology sends sexually explicit material to a child shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

(3) No proceedings for an offence under this section against a child under the age of 17 years shall be brought except by, or with the consent of, the Director of Public Prosecutions.

(4) In this section “sexually explicit material” means any indecent or obscene images or words.

(5) In this section “child” means a person under the age of 17 years.

9. Amendment of section 2 of Act of 1998

9. Section 2(1) of the Act of 1998 is amended—

(a) by the substitution of the following definition for the definition of “child”:

“ ‘child’ means a person under the age of 18 years;”,

and

(b) by the substitution of the following paragraph for paragraph (a) of the definition of “child pornography”:

“(a) any visual representation—

(i) that shows, or in the case of a document relates to, a person who is or is depicted as being a child and who is engaged in or is depicted as being engaged in real or simulated sexually explicit activity,

(ii) that shows, or in the case of a document relates to, a person who is or is depicted as being a child and who is or is depicted as witnessing any such activity by any person or persons, or

(iii) that shows, for a sexual purpose, the genital or anal region of a child or of a person depicted as being a child,”.

10. Amendment of section 3 of Act of 1998

10. Section 3 of the Act of 1998 is amended—

(a) by the repeal of subsections (2A) and (2B), and

(b) in subsection (5), by the substitution of the following definition for the definition of “sexual exploitation”:

“ ‘sexual exploitation’ means, in relation to a child—

(a) inviting, inducing or coercing the child to engage in prostitution or the production of child pornography,

(b) the prostitution of the child or the use of the child for the production of child pornography,

(c) the commission of an offence specified in the Schedule to the Sex Offenders Act 2001 against the child, causing another person to commit such an offence against the child, or inviting, inducing or coercing the child to commit such an offence against another person,

(d) inducing or coercing the child to engage or participate in any sexual, indecent or obscene act,

(e) inviting the child to engage or participate in any sexual, indecent or obscene act which, if done, would involve the commission of an offence against the child, or

(f) inviting, inducing or coercing the child to observe any sexual, indecent or obscene act, for the purpose of corrupting or depraving the child,

and ‘sexually exploits’ shall be construed accordingly;”.

11. Organising etc. child prostitution or production of child pornography

11. The Act of 1998 is amended by the insertion of the following section after section 4:

“4A. (1) A person who—

(a) controls or directs the activities of a child for the purposes of the prostitution of the child or the use of the child for the production of child pornography,

(b) organises the prostitution of children or the production of child pornography by controlling or directing the activities of more than one child for those purposes,

(c) compels, coerces or recruits a child to engage or participate in child prostitution or the production of child pornography,

(d) knowingly gains from the prostitution of a child or the production of child pornography, or

(e) incites or causes a child to become involved in child prostitution or production of child pornography,

shall be guilty of an offence.

(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 14 years or both.”.

12. Producing, distributing, etc. child pornography

12. The Act of 1998 is amended by the substitution of the following section for section 5:

“5. (1) Subject to subsections (3) and (4) of section 6, a person who—

(a) knowingly produces any child pornography,

(b) knowingly distributes, transmits, disseminates, prints or publishes any child pornography,

(c) knowingly imports, exports, sells or shows any child pornography,

(d) knowingly supplies or makes available any child pornography to another person,

(e) knowingly publishes, distributes, transmits or disseminates any advertisement likely to be understood as conveying that the advertiser or any other person produces, distributes, transmits, disseminates, prints, publishes, imports, exports, sells, shows, supplies or makes available any child pornography,

(f) encourages, knowingly causes or facilitates any activity mentioned in paragraphs (a) to (e), or

(g) knowingly possesses any child pornography for the purpose of distributing, transmitting, disseminating, publishing, exporting, selling or showing it,

shall be guilty of an offence and shall be liable—

(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(ii) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years or both.

(2) A person who attempts to commit an offence under subsection (1) shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years or both.

(3) In this section ‘distributes’, ‘transmits’ or ‘disseminates’, in relation to child pornography, includes parting with possession of it to, or exposing or offering it for acquisition by, another person, and the references to ‘distributing’, ‘transmitting’ and ‘disseminating’ in that context shall be construed accordingly.”.

13. Participation of child in pornographic performance

13. The Act of 1998 is amended by the insertion of the following section after section 5:

“5A. (1) A person who—

(a) causes, incites, compels or coerces, or

(b) recruits, invites or induces,

a child to participate in a pornographic performance, or gains from such participation, shall be guilty of an offence.

(2) A person who attempts to commit an offence under subsection (1) shall be guilty of an offence.

(3) A person guilty of an offence under subsection (1) or (2) shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.

(4) A person who knowingly attends a pornographic performance shall be guilty of an offence.

(5) A person guilty of an offence under subsection (4) shall be liable—

(a) on summary conviction, to a class A fine, or imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 10 years, or both.

(6) In this section—

‘attends a pornographic performance’ includes viewing the performance by means of information and communication technology,

‘pornographic performance’ means a live exhibition aimed at an audience, including by means of information and communication technology, of—

(a) a child engaged in real or simulated sexually explicit activity, or

(b) the sexual organs of a child for primarily sexual purposes.”.

14. Possession of child pornography

14. The Act of 1998 is amended by the substitution of the following for section 6:

“6. (1) Without prejudice to section 5(1)(g) and subject to subsections (3) and (4), any person who—

(a) knowingly acquires or possesses child pornography, or

(b) knowingly obtains access to child pornography by means of information and communication technology,

shall be guilty of an offence and shall be liable—

(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(ii) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.

(2) Any person who attempts to commit an offence under subsection (1) shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.

(3) Subsections (1) and (2) of section 5 and subsections (1) and (2) shall not apply to a person who possesses or obtains access to child pornography—

(a) in the exercise of functions under the Censorship of Films Acts 1923 to 1992, the Censorship of Publications Acts 1929 to 1967, or the Video Recordings Acts 1989 and 1992, or

(b) for the purpose of the prevention, investigation or prosecution of offences under this Act.

(4) Without prejudice to subsection (3), it shall be a defence in a prosecution for an offence under section 5(1) or (2) or this section for the accused to prove that he or she possessed or obtained access to the child pornography concerned for the purposes of bona fide research.”.

15. Amendment of section 1 of Act of 2006

15. Section 1 of the Act of 2006 is amended—

(a) by the substitution of the following definition for the definition of “person in authority”:

“ ‘person in authority’, in relation to a child against whom an offence is alleged to have been committed, means—

(a) a parent, grandparent, uncle or aunt whether of the whole blood, of the half blood or by affinity of the child,

(b) a current or former guardian or foster parent of the child,

(c) a current or former step-parent of the child,

(d) a current or former partner of a parent of the child who lives or has lived in an enduring family relationship with the parent,

(e) any person who is for the time being, or has been, in loco parentis to the child, or

(f) any other person who is or has been responsible for the education, supervision, training, care or welfare of the child;”,

and

(b) by the insertion of the following definition:

“ ‘foster parent’ means a person other than a relative of a child who is caring for the child on behalf of the Child and Family Agency in accordance with regulations made under the Child Care Act 1991;”.

16. Sexual act with child under 15 years of age

16. The Act of 2006 is amended by the substitution of the following section for section 2:

“2. (1) A person who engages in a sexual act with a child who is under the age of 15 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.

(2) A person who attempts to engage in a sexual act with a child who is under the age of 15 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.

(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 15 years.