Tuesday, 29 June 1993
Seanad Éireann Debate
Minister for Justice (Mrs. Geoghegan-Quinn): The main purpose of this Bill is to remove criminal sanctions from consensual sexual relations between adults. The Bill also seeks to protect members of the public, particularly women, from the sexual harassment of solicitation in the street and to protect those who feel obliged to become prostitutes from ruthless exploitation by pimps.
I am not introducing this Bill simply because of the requirement of compliance with the judgment to the European Court of Human Rights in the case brought by Senator Norris, although that requirement is certainly there. This Bill stands on its own merits as a fundamental development in human rights which will put an end to unwarranted intrusion over a very long period into the private lives of adults and which is recommended by both the Second Commission on the Status of Women and the Law Reform Commission.
I know that some people feel a genuine and deep sense of unease over the proposed change but I believe an honest and open debate on the issues which lies  behind these fears will go a long way towards reassuring those people who remain doubtful as to the merits of the proposal.
What we are concerned with fundamentally in this Bill is a necessary development of human rights. We are seeking to end that form of discrimination which says that those whose nature it is to express themselves sexually in their personal relationships, as consenting adults, in a way which others disapprove of or feel uneasy about, must suffer the sanctions of the criminal law. We are saying in 1993, over 130 and years since that piece of criminal law was enacted, that it is time we brought this form of limitation of human rights to an end. We are recognising that we are in an era where values are being examined and questioned and that it is no more than our duty as legislators to show that we appreciate what is happening by dismantling a law which reflects the values of another time.
That process of change is not easy and, understandably, many people worry that the traditional values which they hold so dear and many of which are fundamentally sound, are under siege from emerging modern realities. Of course, it is not a matter of laying siege to all the old certainties nor is it a matter of jettisoning sound values simply to run with a current tide of demand which may or may not be a majority demand. It is, rather, a matter of closely looking at values and asking ourselves whether it is necessary, or whether it is right, that they be propped up for the comfort of the majority by applying discriminatory and unnecessary laws to a minority — any minority.
I believe that we as a people have proved our ability to adopt a balanced and mature approach in dealing with complex social issues. In this context I am particularly pleased to note that by and large the public debate which has taken place in relation to the area covered by the Bill has been marked by a lack of stridency and by a respect for the sincerity of the views held by others.
As some of the issues raised by the Bill  are matters on which many people have deeply and sincerly held opposing views, it is perhaps inevitable that in the public debate the reality of what the Bill actually proposes to do can sometimes be lost sight of in the context of wider issues which tend to be raised. For this reason I think it is important to emphasise that the House is not being asked to take a view as to whether sexual behaviour of the kind dealt with in the main sections of the Bill should be regarded as morally or socially acceptable. What is simply at issue instead is whether it is right in this day and age that the full force and sanctions of the criminal law should be available in relation to such forms of sexual behaviour.
Majority values do not require that kind of support and I believe that this is something that each of us knows instinctively. I think we know in ourselves also that values which are truly worth while in themselves are strengthened, not weakened, when we remove forms of support which ignore the rights of others.
In other areas of public concern and debate in this country we have come to appreciate the need to recognise, respect and value difference. This House does not need to be reminded of the tragedy which ensues when difference is deprived of the right of expression and is suppressed.
Returning specifically to the theme of the Bill, does anybody believe that if the laws from the last century which we are now seeking to repeal did not exist, we would now be seriously suggesting that they would be enacted? How can we reconcile criminal sanctions in this area with the fact that there is a whole range of other private, consenting behaviour between adults which may be regarded by many as wrong but in which the criminal law has no part to play?
Some parents, in particular, may be uncomfortable about what is being proposed and I fully understand what gives rise to that discomfort. That is why it is so important that we understand precisely what is being proposed. It is the removal of discrimination in the case of consenting adults in respect of their sexuality,  not the removal of protection in the case of children and other vulnerable members of society. In fact, the Bill seeks to protect the vulnerable where protection did not exist heretofore.
I know, too, that there are parents who will know what it means in practice to have a child whose very nature it is to be homosexual. Very few of them would, I think be likely to regard it as helpful if in later life one of their own child children as an active homosexual was liable to imprisonment — under the present law up to life imprisonment — for giving expression to his sexual orientation.
I do not believe it is any answer to say that in practice these laws are rarely, if ever, implemented and we would be best to leave well enough alone. Such an approach would be dishonest, could bring the law generally into disrepute and, it seems to me, would be grossly and gratuitously offensive to those who happen to be homosexual. Genuine tolerance is not achieved by turning a blind eye. The social acceptability of homosexuality is not something which by our laws we can decree; the hurt homosexuals feel at their treatment as outcasts by some members of the community is not something which we can dispel by the use of some legislative magic wand. What we can do — under the terms of the Bill before this House — is to leave those of homosexual orientation free to come to terms with their own lives and to express themselves in personal relationships without the fear of being branded and punished as criminals.
There is also concern expressed by those who feel that removal of the criminal sanction may, in effect, be seen as a form of encouragement to engage in homosexual activity, that removal will, in practice, have this result and that this, in turn, will lead to the spread of disease. There is nothing to support the proposition that removal of the criminal sanction in the case of consenting adults — and I repeat that we are talking about consenting adults — will lead to an increase in promiscuity. There is no evidence  that it inevitably follows that removal of the criminal sanction will foster the spread of disease.
I have no doubt that the disease issue — specifically the question of AIDS — will be raised in the course of the debate on the Bill. For now, I will confine myself to two comments. First, the right course in dealing with the possible spread of disease through sexual intercourse is to encourage safe sexual practices, not criminalise one form of sexual activity. Secondly, there is no doubt that disease can be, and is, spread by unsafe heterosexual activity but nobody seriously suggests that the right course, therefore, is to criminalise heterosexuality. I am not being dimissive of the AIDS issue — the subject is far too serious for a dismissive approach; what I am saying is that the solution is not a ban on homosexual activity.
I hope that in stating the case in these terms I have been able to go some way towards allaying the concerns of those who feel uneasy about what is being proposed. Our social fabric is not going to be eroded as a result of these measures. People will remain entitled to retain their moral beliefs in relation to homosexual behaviour and to seek to convince others of the correctness of those beliefs. All that will change is that the criminal law will have no part to play in attempting to enforce those beliefs.
There is also the wider European dimension which I have mentioned. Every Senator will be aware of the decision of the European Court of Human Rights in 1988 on the application of Senator Norris to the court. May I at this stage pay a special personal tribute to Senator Norris for his courage and determination in pursuing this issue relentlessly. I am glad I am the Minister for Justice who succeeded in decriminalising homosexuality.
Mrs. Geoghegan-Quinn: The European Court found that our laws on homosexuality are in breach of Senator Norris's right to respect for his private  life under Article 8.1 of the European Convention on Human Rights. Under Article 53 of the Convention, Ireland agrees to abide by the decisions of the court in any case to which Ireland is a party. There is, therefore, a clear obligation on us to legislate for the ruling of the court. Failure to do so would call into question our continued membership of the Council of Europe. It is for the Committee of Ministers of the Council of Europe to supervise the execution of court decisions and to decide, where necessary, on measures to ensure compliance.
The committee relies mainly on persuasive authority but the ultimate sanction of suspension from the Council of Europe is also available. I am outlining the legal position in order to put the judgment in its full context, but there can be no question of relying on legal quibbles as to avoid our clear responsibility to abide by the decision of the court. We have given our word that we will abide by any such decision and we must keep our word. We cannot use the Court when it suits us and ignore it when it is not convenient.
One final legal issue which I must mention, because it is raised so often, is the question of obtaining a derogation from the obligations of the European Convention on Human Rights. Article 15 provides for such derogations, but limits them to time of war or other public emergency threatening the life of the nation. The argument that Ireland could obtain a derogation on homosexuality is clearly untenable.
I would like now to turn to the details of the legislation. Section 2 abolishes the common law offence of buggery and section 3 replaces this with a new offence of buggery with a person under 17 years of age. Section 4 prohibits gross indecency by a male with a male under 17 years of age. This replaces the existing complete prohibition under section 11 of the Criminal Law Amendment Act, 1885. As the age of consent for sexual intercourse is 17, this age will now be the  common age of consent for full sexual relations.
Very careful consideration was given to various age possibilities in preparing this Bill and the Government could find no compelling reason for applying a different age of consent to homosexual and heterosexual acts. If 17 is considered an age of sufficient maturity for consent to heterosexual sex, there are no convincing grounds for arguing that persons of that age who are attracted to members of their own sex are any less mature. This common age of consent is quite high by European standards but I am satisfied that, as regards heterosexual acts and homosexual acts, it is right for Ireland. This view is supported by the Law Reform Commission in their report on child sexual abuse.
Section 5 provides protection from exploitation for persons who are mentally impaired. I have taken the opportunity afforded by this Bill to repeal section 4 of the Criminal Law Amendment Act, 1935. That is the section that protects women who are described in it as “imbeciles, idiots and feeble minded” from being unlawfully carnally known. I regard those words as insulting and unacceptable and they have no place in legislation in this country at the end of the 20th century. Therefore, section 5 of the Bill protects mentally impaired persons against both heterosexual and homosexual intercourse and mentally impaired males against gross indecency by a male.
The penalties for offences under section 5 are the same for both offences. The penalty in section 4 of the 1935 Act is a maximum of two years imprisonment although this is increased to a maximum of five years by section 254 of the Mental Treatment Act, 1945 where the perpetrator has the care or charge of the victim. I regard that penalty of two years as too low and, accordingly, I have taken the opportunity to substantially increase the penalty for having sexual intercourse or attempting to have sexual intercourse with a mentally impaired person.
Mental impairment is sometimes, particularly in a case of mild mental impairment, a difficult concept to quantify  in the context of offences being committed against such persons. A very mildly mentally handicapped person may be able to consent to sexual intercourse and I do not wish in this Bill to do anything that might be seen as unduly restrictive in relation to such persons. The definition of “mentally impaired” contains within it the objective concept of whether a person is capable of living an independent life. Also, as at present, the accused will have a defence; in section 5 (3) the accused will have the opportunity to show that at the time of the alleged commission of an offence he did not know and had no reason to suspect that the person in respect of whom he is charged was mentally impaired. In addition, proceedings against a person charged with an offence against a mentally impaired person shall not be taken except by or with the consent of the Director of Public Prosecutions. This will ensure consistency in prosecuting policy and will obviate inappropriate prosecutions being taken. The proposals in relation to the mentally impaired are generally in line with the recommendations of the Law Reform Commission in their report on Sexual Offences Against the Mentally Handicapped.
Section 6 improves the protection available to young persons and persons who are mentally impaired against being solicited for sexual purposes. It replaces a provision in the Vagrancy Act, 1898 under which it is an offence for a male to solicit in a public place for immoral purposes. That was usually regarded as a provision aimed at criminalising men soliciting other men for sexual purposes. The new provision proposed in section 6 protects boys and girls under 17 years of age and the mentally impaired against being solicited for sexual purposes, and it is immaterial whether the solicitation takes place in public or private or whether the person soliciting is male or female. The type of behaviour we are talking about could well take place in a private residence. We are all aware that child sexual abuse can take place in the home of the abuser or even in the child's own home. The law should not have to  wait until there is a physical attempt at unlawful sex. It should be applicable where there is evidence that a child or a mentally impaired person is being solicited or pressured or threatened or harassed into unlawful sex. That is what section 6 will achieve. It is a modern gender-neutral provision aimed at protecting the young and vulnerable against approaches for sexual purposes.
I would now like to briefly explain the thinking behind the provisions in the Bill on prostitution. Prostitution is not, and never has been, an offence. The criminal law has no role in trying to regulate sexual arrangements made in private between adults, whether or not money is a factor in those arrangements. What the law has in the past sought to regulate are certain public manifestations of prostitution which can cause upset and distress to members of the public, such as soliciting in public or the operation of a brothel. I think it must be acknowledged that these activities can cause genuine problems for the public, and that is a reality of life that we as legislators must deal with.
People's enjoyment of their neighbourhood can be greatly diminished by gatherings of prostitutes on streets; by a constant stream of clients looking for sex; by the noise and sometimes violence generated by pimps, prostitutes and their clients; by the occurrence of sexual acts in cars or down laneways or even in front gardens and by offensive litter left behind such as used condoms.
It is not merely a matter of protecting people's sensitivities, but of permitting people to live their lives free of fear, anxiety and harassment. If I have a criticism to make of the approach of the law up to now, it is not that soliciting in public is an offence, it is that it only applies to prostitutes. To my mind, that is an utterly unfair and unacceptable situation.
Many women listening to this debate will know of the annoyance, the upset and the fear which is caused by men who kerb-crawl or who solicit them in some other way for prostitution. It is wrong that the law should permit women to be menaced by kerb-crawling. To be solicited in such a situation, or indeed at any  time in a public place, is a most upsetting experience, but perhaps the most insidious effect of this intimidatory behaviour is that many women feel obliged to impose on themselves restrictions as to where they will go at night, at times practically amounting to a curfew.
Finally, before outlining for the House the provisions dealing with prostitution, I want to emphasise that if the Bill is to have credibility it has to make it clear that prostitution includes male prostitution. Without that clarification of the law, male prostitution would become legal once homosexual acts are decriminalised, as proposed. However, it would be pointless to introduce measures aimed at protecting the public from soliciting in the context of male prostitution if those measures were inoperable, which would have been the case without sections 7 and 8. Of course, the protection offered to prostitutes in sections 9 and 10 against being exploited includes male as well as female prostitution.
Section 7, for the first time, will extend the offence of soliciting in public to clients of prostitutes and third parties such as touts. This proposal is supported by the Second Commission on the Status of Women. Section 8 introduces a new power for the Garda who will now be able to move on a person suspected of loitering in order to solicit in public for the purposes of prostitution. Kerb-crawling would be an example of this. Of course, a kerb-crawler who actually solicits another person would be guilty of an offence under section 7, but there may be circumstances where an act of solicitation cannot be proved or simply has not yet occurred. In those cases a garda will be able to use his or her powers to move on the suspected kerb-crawler, and it will be an offence to fail to comply with such a direction without reasonable cause. This proposal is broadly supported by the report of the Law Reform Commission on vagrancy and related offences.
During the debate on this issue in the Dáil, I accepted the concern which some Deputies expressed over the penalties  applicable to these offences and I amended the provision so that short term imprisonment will only be available as a last resort. Any consideration of the penalties available to the courts for soliciting must recognise that it is not just prostitutes who can be charged, but also clients, including kerb-crawlers and touts. The actual nuisance the provision deals with can be caused equally by the prostitute, client or tout, so it would be illogical to introduce different penalty structures for each.
There is one provision relating to prostitution which carries a heavy penalty and where I will not be proposing any reduction in punishment. I refer to section 9 which deals with the organisation of prostitution, and I make no apology for saying that persons who exploit prostitutes out of greed by organising their services, and very often compelling or coercing them into providing sex to others, deserve heavy penalties. These are new offences which, for the first time, will attempt to tackle, in so far as the criminal law can, the often vicious exploitation of women who do not in any real sense freely choose to be prostitutes and who suffer from low self-esteem and, as often as not, physical abuse.
Section 10, living on the earnings of prostitution, is aimed at the person who lives parasitically on a prostitute's earnings. However, so that children or other dependent relatives will not be liable under this provision, an offence will only be committed where the person living on the earnings of prostitution also aids and abets that prostitution. That is essentially a revised version of an offence under the Vagrancy Act, 1898, in a gender-neutral context.
Inevitably, much of the attention given to this Bill has been focused on the issue of homosexuality. I believe the provisions of the Bill in this respect will stand up to any amount of fair scrutiny but I am also pleased to introduce much needed protection for members of the public from the nuisance and annoyance of prostitutes in their steets and, for the first time to penalise clients of prostitutes, whether they are soliciting from cars.  In addition, I am very glad to prove further protection against exploitation of people who feel they have no choice but to prostitute themselves. This is one step in a process of helping this disadvantaged group and I very much hope that, outside of the criminal law, the recommendations of ths Second Commission on the Status of Women on prostitution will point the way forward.
A Leas-Chathaoirligh, this is a Bill which deals with human rights; the rights of homosexuals; the rights of the young, the rights of the mentally impaired; the rights of members of the public; and the rights of prostitutes. I am pleased to commend it to the House.
Mr. Neville: I welcome the Minister to the House and welcome the Bill. I also wish to congratulate Senator Norris on the work he has done in this area and his campaigning to have this human rights issue addressed. The Bill before us proposes to amend the law in relation to sexual offences. It amends the Offences against the Person Act, 1861 and the Criminal Law (Amendment) Acts, 1885 to 1935. It also repeals the Vagrancy Act, 1899. The primary objective is to decriminalise buggery between adults. It introduces new provisions prohibiting buggery with mentally impaired persons and with persons under the age of 17 years.
The UK passed similar legislation 26 years ago. As was the case with the decriminalising of suicide, Irish society has had to wait a quarter of a century after the UK to have this human rights issue addresed. However, the British law decriminalised homosexual acts of a consensual nature committed in private between adults over the age of 21 years. It has been necessary for gay activists, both north and south of the Border, to take cases to the European Court of Human Rights to force both states to address this issue.
I wish again to congratulate Senator Norris for bringing the issue before the Supreme Court and the European Court of Human Rights, which found that our law was inconsistent with Article 8 of the  European Convention on Human Rights. It is regrettable that Europe has to force us to address the question. The State has no choice but to do so, as the Minister pointed out. The consequences of not addressing the issue would see the State's continued membership of the Council of Europe called into question.
The Government could approach the issue in two ways, one of which would be to enact legislation broadly similar to the European model. The second choice was to seek to approximate the legal treatment of homosexual and heterosexual acts. The Law Reform Commission firmly recommended that legislation rendering criminal acts of buggery and gross indecency between male persons should be repealed, and that there should be the same protection against homosexual and heterosexual exploitation. It effectively recommends that 17 years will be the age of consent in respect of homosexual and heterosexual activities. With regard to heterosexual intercourse, the Law Reform Commission has recommended that intercourse should be lawful for persons between the ages of 15 and 17 years except where the male is more than five years older than the female or is in a position of authority over that person. The Law Reform Commission has not recommended a similar reduction in age in respect of homosexual offences. Fine Gael supports the sections of the Bill dealing with this. However, it is the party's view that the age of consent at 17 years as proposed in the Bill should be increased to 18 years which is the age of majority. The party believes that there must be a correct balance in the law between removing unnecessary criminal taboos and protecting young vulnerable people. Hence, designating 18 years as the age of consent is the correct approach.
A case can be made for making the age of homosexual offences equal to that of heterosexual offences. Fine Gael believes a case has already been made by the Law Reform Commission for a differentiation in certain circumstances and that such a differentiation is appropriate in this instance. Such differentiation  is not a reflection on the sexuality of anybody, homosexual or heterosexual.
Mr. Neville: I echo the Minister's statement that the House is not being asked to take the view that the sexual behaviour dealt with in the main sections of the Bill should be regarded as morally or socially acceptable. She is right when she says that what is at issue is whether it is right to apply the sanctions of criminal law to such forms of sexual behaviour.
Sections 6 to 11, inclusive, deal with prostitution. These sections are reactionary and, if passed, will make the lives of prostitutes more difficult while doing nothing to deal with the problem of prostitution. There is nothing in the Bill to encourage prostitutes, male or female, to abandon their activities. We must ensure that this legislation does not drive the problem further underground which will result in the wider spread of disease and will make prostitutes more vulnerable than they are at present. We must ensure that our prisons are not filled with sexual offenders while those who commit serious crimes go free. The Minister has partially accepted this by accepting amendments to the Bill in the Dáil. It is more important that our prisons are used to deal with criminal offenders than with sexual offenders.
The Bill fails to protect prostitutes' health. It also fails to understand the problems of prostitutes. Reports suggest that 75 per cent of prostitutes were victims of child abuse. The Bill in its present form is reactionary and lacks any semblance of compassion for or understanding of the plight of prostitutes. However, Fine Gael broadly accepts the thrust of the Bill and will put down amendments on Committee Stage.
Mr. Crowley: I welcome the Minister to the House. I also welcome the introduction of this legislation. I was encouraged to hear her say she wanted to introduce this legislation on her own  initiative and not merely as a consequence of the decision of the European Court of Human Rights. I also congratulate Senator Norris on achieving recognition and legislative change on this issue after a long and hard battle.
History is littered with examples of discrimination against minorities, often in the most horrible manner. There is a special onus on all democratic societies to redress discrimination and this Bill is part of that redress. Democracy is about tolerating the right of minorities to coexist in the broader society, even if this right of co-existence causes unease among other strands of society. While I might not be comfortable with the notion of a homosexual lifestyle, I accept the right of this minority to a non-discriminatory existence in Irish society. That is democracy.
Other strands in Irish society have expressed unease about this Bill. I appreciate their unease. Ireland is in a process of change and in order to negotiate this change dialogue is essential. It is important that no element of Irish life feels disenfranchised or alienated. Therefore, I urge tolerance. I do not think it is useful to automatically reject views because they are labelled old fashioned or conservative. We must be willing to listen to each other and thereby learn. We should not replace one set of prejudices and preconceived notions with another.
One of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasions, to depression and the serious consequences which can follow from that unfortunate disease.
As we know, that case failed in the High Court and Supreme Court and went to the European Court of Human Rights which, by eight votes to six, found in  favour of Senator Norris. One of the final comments of that court was:
Such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation like the applicant. Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved.
The Bill also deals with prostitution and I welcome the new legislative provisions. Prostitution is a sad and dangerous profession. Prostitutes do not merit our condemnation or our scorn. That should be reserved for the men who use them and prey on them: the customers and the pimps. Pimping is a parasitic and cruel crime. Pimps do not deserve an iota of our concern. Instead they deserve the full sanction of the law. These men exploit women in a brutish and degrading manner, often using violence and the threat of mutilation as a means to enforce their control. While this Bill goes some way towards tackling the problem of pimping, due consideration should be given to introducing even stronger sanctions and stronger penalties.
The customers, or “punters” as they are known, keep the business of prostitution alive. One has only to see the extent of kerb crawling on the streets of Dublin or Cork at night — streets that carry the veneer of white collar respectability during the day — to recognise the conspicuous presence of the men who use prostitutes. For too long these men have evaded the weight of the law. I am glad this Bill tackles the problem of kerb crawling in a more effective manner. I look forward to a time when the men who thus use women will suffer the sanctions, prosecution and jailing they deserve for it is they who truly perpetuate this most tragic trade.
 The section dealing with the protection of mentally impaired persons is also welcome. It shows the increasing recognition by the Government and society in general that there are sections of our community who need extra protection. I would go so far as to suggest that, for the future, the Minister may make the sexual interference of a mentally impaired person a crime of strict liability instead of letting the accused go free by claiming he was not aware the victim was mentally impaired.
I would like to conclude with one short quote from the late Robert F. Kennedy: “Justice delayed is democracy denied.” That should be the catchphrase for this and future legislation the Minister will be introducing.
This is for me a happy day for my fellow legislators have chosen, as the law makers of a free and independent republic, to liberate the gay community from an oppressive, corrupt and deeply damaging law, whose origins are shrouded in the mists of ancient religious prejudice. Although I regret that this Bill did not originate in the Upper House, as it had been at first intended, I cannot do other than commend today the courage and clarity of the Minister's handling of the passage of the Bill through the Lower House and the humanity she demonstrated, not only in her opening words introducing the legislation but most particularly in her final reply before midnight on that historic day when she dealt effectively, and with dignity, with a number of contentious speeches from the back benches. Such reform had been made part of the Programme for Government by the Progressive Democrats some years ago but this was never acted upon. I would also like to thank the Labour Party and in particular the Minister for Equality and Law Reform Deputy Taylor, for ensuring that on this occasion the Government's nerve did not falter.
 I have already stated in public my disappointment at the fact that, at a late stage, the Fine Gael Party, acting against the advice of its own Front Bench, sought through a series of mean minded and unfortunately motivated amendments, to introduce some measure of marginal discrimination. I am thoroughly disgusted that Fine Gael has sought to continue this lamentable performance in this House; it is a disgrace to that party. However, I would like also to place on the record my gratitude to those humane and civilised members of that party who, by the technique of filibuster, managed to prevent these regrettable amendments from their own party being reached and voted upon. I expect no less of any decent Fine Gael Senators. It took courage, tenacity and humour to achieve this.
By effectively wiping the lingering shame of a British imperial statute from the record of Irish law, our colleagues in the Dáil have done a good day's work. I confidently anticipate that we in this House will complete that work honourably. I have always said, in defiance of comments from abroad, that the Irish people were generous, tolerant, decent and compassionate and that this would one day be reflected even in that sensitive area of the law governing human sexuality.
By enacting such a law in what is admittedly a delicate area, we are extending the human freedoms of all citizens in this State. As the great apostle of Catholic emancipation Daniel O'Connell said, in pleading his case at the bar of British public opinion, human dignity and freedom are not finite resources. By extending these freedoms to others, one's own freedom is itself enhanced and not diminished. This is the kind of Irish solution to an Irish problem of which we, as Irish men and women can feel justly proud.
Surely it would have been odd had it been otherwise. In granting equality under the criminal law to gay citizens the Minister, in the legislation she is recommending to this House, is not bowing to the ridiculous demands of some eccentric pressure group. She is, on the contrary,  following the clear dispassionate advice of our own expert Law Reform Commission in their reports on vagrancy, rape, sexual offences against the mentally handicapped and the problem of child sex abuse.
Moreover, full decriminalisation, with an equal age of consent, has been urgently called for by the World Health Organisation as a health measure against the spread of venereal infection. In addition, just such proposals have either been welcomed or called for by the Irish Congress of Trade Unions, the Church of Ireland, the Council for the Status of Women, the National Youth Council of Ireland, as well as by many of the political parties represented in the House today.
We already have in place certain articles which clearly indicate that the feeling of the Irish Parliament and people is set against the discriminatory practices of previous ages. For example, since the late 1970s when I succeeded in persuading my union, the Irish Federation of University Teachers, to send forward resolutions on the matter to the annual conference of the ICTU, the trades union movement in this country has solidly backed the struggle for equal treatment. In 1988, in a highly significant move, the then Minister for Finance, Ray MacSharry, introduced a binding code throughout the Civil Service outlawing discrimination on the basis of HIV status, full blown AIDS, as long as the capacity to work remained, and sexual orientation. This House saw the first successful battle to introduce sexual orientation clauses into Irish legislation in both the Video and the Incitement to Hatred Bills. This is not a revolution, but rather the culmination of a growing awareness of injustice and discrimination in our society.
It would be tedious and wrong of me to inflict an academic lecture on the House on this occasion. Nevertheless, some glance at the source of this legislation is I think relevant. Those who believe that there is an innate horror of homosexuality occurring generally throughout mankind in history are wrong. Some kind but anonymous correspondent sent me an article from a  Jewish newspaper yesterday morning. entitled “Judaism and Gays: A Faith Divided”. In this, the American lecturer Denis Prager examines from a hostile point of view, the question of homosexuality. Although I do not agree with his opinions, they are founded upon an accurate historical assessment and I quote from the article:
Prager begins by noting that Judaism alone among religions of the ancient world opposed homosexuality. In Greece and Rome, among the Phoenicians and the Canaanites, a man's preference for other men was of no more consequence than another's choice of beef over mutton.
This is indeed a fact, although one might well have included other civilisations such as the Egyptians who also celebrated homosexuality officially to such an extent that not only ordinary mortals but even their gods engaged joyfully in homosexual relations. It was for this practical reason that the Old Testament Children of Israel sought to define themselves against the stronger surrounding cultures by outlawing and condemning as blasphemy something that was widely regarded in the ancient world as an integral part of the culture of the main civilisations.
The proscription on sexual activity of a non-reproductive kind also had the incidental advantage of increasing a small and vulnerable group. This, naturally enough, is reflected in the commands of Jahweh to the ancient people recorded in Genesis: “Go forth and multiply”. Whatever relevance this command may have had to a threatened tribe 4,000 or 5,000 years ago attempting to survive in the desert in hostile circumstances, that relevance must surely be questioned today with the world population set to double in the next 25 years. I cannot but admire the gusto and lack of restraint with which my heterosexual colleagues have carried out the commands of God in this instance, although not in many other.
For amateur theologians, it is worth recalling that the principal attack upon homosexual practice is contained in the  Book of Leviticus in a section which deals mainly with dietary codes. It is remarkable that the same harsh penalties as for homosexual behaviour are also held to exist for the eating of shellfish or the wearing of worsted cloth. I have yet to hear of a campaign by An Bord Iascaigh Mhara or the Textile Board for full implementation of the Code of Leviticus in Irish law. In other words, we have sensibly understood the concept of historicity, the fact that even sacred texts must be seen in their social, cultural and historical context and not uprooted and transplanted unexamined into modern life.
It is clear from what I have said that the source of the taboo for homosexual behaviour can be found in ancient religious codes. This is reflected even in the language of the legislation which we are setting about to dismantle this afternoon. Even the terms ‘sodomy” and “buggery” have roots in the religious power struggle. Sodomy comes from the tales of the cities of the plains, Sodom and Gomorrah, a tale in the Old Testament whose development is complex and difficult to interpret. Anyone who seeks enlightment on this point could do no better than to consult The Church and the Homosexual, by the distinguished Jesuit biblical scholar, Fr. John McNeale, S.J. Buggery comes from the middle French boulgre, meaning Bulgarian, because of the attempts by the Vatican to smear the adherents of the Albigensian heresy, seen as Cathars or Bulgars, with a reputation for unorthodox sexual practices.
It is also worth nothing that the behaviour which is this afternoon in the process of being discriminalised was, until the 16th century, a matter for the ecclesiastical rather than the civil courts, a question of sin rather than crime. It was only when King Henry VIII incidentally took control of the ecclesiastical courts that this behaviour made the transition from sin to crime for the first time, in an Act of Henry VIII of 1533. Under this law, the possible penalties included death and forfeiture of property. The first recorded conviction was that of a clergyman, Reverend Nicholas Udall, headmaster of  Eton and author of the first English comedy “Ralph Roister Doister”. It is instructive to note that the first Irish victim of this law whose conviction and execution came a century later was also a clergyman, Bishop John Atherton. There is a grisly appropriateness about his end since he was the very cleric who, having noticed the failure of this law to extend to Ireland, mounted a “save Ireland from sodomy” campaign. This campaign was so successful that he paid for its introduction with his own life, hoist, one might say, with his own ecclesiastical petard — let bishops beware.
This law survived with its provision for capital punishment until 1861 when in the Offence Against the Person Act of that year, which now seems a harsh and unsustainable enactment, the penalty was reduced from death by hanging to a possible term of life imprisonment. The last execution took place in Scotland in 1830. I need hardly say that to the modern imagination the judicial murder by the State of two of its citizens for consensual erotic activity is morally repugnant.
The other law which mercifully will vanish from our Statute Book as a result of our deliberations is the so called La Bouchere Amendment of 1885. This was introduced late at night in the British Parliament as an adjunct to a Bill to which it had no connection and criminalises what it describes as “acts of gross indecency between males.” Because there is no definition of precisely what constitutes gross indecency this remained to be determined by case law.
It will I am sure surprise and horrify the House to learn that in the 1950s two airmen in Britain were sentenced under this Act for the crime of having looked lasciviously at each other. This gross invasion of human relationships would threaten all of us if it were allowed to remain in force. However, the Garda and the Irish courts have shown a great deal more common sense than their British counterparts. The 1885 Act has been aptly described as a blackmailers charter.
The modern gay liberation movement effectively started in the late 1960s in the  United Sates of America by analogy with the struggle for black and women's civil rights. By the early 1970s these ideas had spread to Ireland. I and many other people were involved in those early movements and among the tasks which confronted us was that of dealing with a considerable number of men who were arrested in what appeared to be compromising circumstances.
It has been said that there have been no prosecutions for over 40 years, but this is not the case. In the 1970s when gay people were arrested, we defended them so successfully that with within a few years the number of arrests by young police officiers anxious to accumulate a high score of convictions had dropped to virtually nil. But I do remember very clearly the humiliation caused to those accused even when we secured their acquittal. In particular I recall one occasion when a young man was forced in the Dublin District Court to describe in detail and repeatedly an act of fellatio or oral intercourse in which he had engaged with another man in the Phoenix Park. The judge amused himself by making comic remarks about this particular practice to the huge enjoyment of those in the body of the court and to the understandable human distress of the accused. I should also point out that within the last couple of years the 1861 Act has been invoked by a judge in a case involving the accusation of rape by a man upon his wife which was successfully defended through a plea of consent, whereupon the judge relied upon the provisions of the 1861 Act which held that regardless of consent an act of buggery even between husband an wife was a criminal matter and sentenced the man involved to a term of imprisonment. This was a spectacularly unsavoury case but it does highlight the fact that one can never presume the total inertia of the law.
By 1974, partly as a result of our experience in the courts and partly because many of us with our new found dignity as members of the gay community found the notion of being labelled criminal offensive, we decided to go on the offensive and to sue the State of Ireland  in the High Court in order to demonstrate that the existing provisions of the law conflicted with the notion of civil and human rights in Ireland and were, therefore, unconstitutional. We mounted a powerful case involving international expert witnesses. Our intention was to end the conspiracy of silence that has for so long surrounded the subject of homosexualaity from the days in which it was described as the peccatum, illud horribile, inter christiani non nomindaum, that crime which is so horrible that it must not be mentioned among Christians.
In his judgment, Mr. Justice McWilliam found that he was persuaded by our evidence that there was a large minority of people in the State who were homosexual, that they were not mentally retarded, that they were not emotionally sick, that they were not child molesters and the list went on until we were convinced that we had won. However, at the last minute there was a swerve in the judgment and the learned judge found that he could not determine in our favour because of the Christian and democratic nature of the State. The case has been built around my own experience as a gay man. Although the ideal would have been to get one of our clients, as a victim of the law, to challenge its constitutionality, understandably no one was prepared to do so.
One of the principal elements of my case was the fact that in the late 1960s I had collapsed in a Dublin restaurant and was rushed to Baggot Street Hospital with a suspected heart attack. After examination it emerged that what had occurred was an anxiety or panic attack rather than a heart attack. Having been referred for counselling the sources of this anxiety emerged as the recent death of my mother, the emigration of a close friend and the fact that subconsciously I had apparently felt deeply threatened by the existence of the criminal law. I was referred to a psychiatrist whose advice to me was to leave this country forever and find refuge in a jurisdiction where a more tolerant attitude towards homosexual men prevailed, specifically the south of  France. This well-meant advice I found deeply offensive. I ask this House to consider how any Member would feel if they were professionally advised to leave their country merely on account of something over which they had as little control as the colour of their hair. This outraged me and propelled me into the moves that led to the foundation of the Irish gay rights movement. It also proved useful in putting together a legal case.
When we appealed to the Supreme Court we got another moral and intellectual victory but a divided judgment. On the one hand the Chief Justice argued that the criminal provisions of the law were necessary in order to induce homosexual men into marriage. This struck me as a peculiar view of that sacred institution. I was not however surprised when within a couple of years, one of those judges who had collaborated in this opinion, unburdened himself in a case involving nullity of the view that if a gay man contracted a marriage it was not by virtue of his orientation, a valid marriage in any case. This was what one might reasonably describe as a no-win situation. Gay men were to be terrorised into marriage by the full vigour of the criminal law, but once inside that institution it turned out to be a mirage rather than a marriage as a result of their sexual orientation. It defeats me how the family can be thought to be supported as an institution by these irrational views.
Moreover, anyone who thinks that the criminal law has remained a dead letter would do well to read the transcript of my case in the European Court of Human Rights which was ultimately successful thanks to the brilliant legal work of my then counsel, now President Mary Robinson. She unearthed a series of cases in the matrimonial court in which the learned judge had stopped evidence being given by one of the spouses in a marriage to the effect that he was and continued to live as a homosexual after the marriage. This stopping of the evidence was done on the basis that if it continued the judge would feel required to refer the book of evidence to the Director of Public Prosecutions and a  criminal prosecution might well have followed. In other words, what I am saying this afternoon is that despite appearances to the contrary, the provisions of the criminal law continued and will continue until they are extinguished by our acts to exert a malign social and legal influence upon the population of Ireland.
It has been argued, however, on abstract grounds that this change in the law is a retrograde step because homosexuality is an unnatural practice. It may be useful to inquire the way in which this word “natural” is used. The American researchers and sociologists Margaret Meade, and Forde and Beech found in their surveys of primitive societies that in 67 per cent of these societies, man in his and woman in her natural environment, homosexuality was accepted and to some extent institutionalised.
Turning to the animal kingdom, the distinguished scientist Wainright Churchill has established that homosexual behaviour occurs throughout the mammalian order in nature, increasing in frequency and complexity when one ascends the phylognenetic scale, and the most wonderful intelligent and endearing of marine mammals, the dolphin, is among those non-human creatures that have been known to establish life long monogamous homosexual relationships.
One must, therefore, question the sense in which the word “natural” is employed. It is clearly a theological derivative of the Roman Catholic notion of natural law, but even here one can raise a question mark. The great theologian St. Thomas Aquinas actually instanced the existence of homosexuality as an example of his proposition that what is natural for the individual may be unnatural for the species and vice versa. In other words, to force a homosexual man to behave heterosexually is just as much a violation to his nature as it would be to force a heterosexual man to behave homosexually.
This leaves us with the problem of what God intended, if one is a religious person and I am. I have heard repeated again the hoary old joke God made Adam and  Eve, not Adam and Steve. This is an unnecesarily narrow view of God's intellectual horizons. I have no reason to doubt that God created both Adam and Eve, and Adam and Steve. If God did not create Adam and Steve, then who did? It is also simplistically argued that the same God designed the various organs of the human body for specific purposes. This is an argument persistently engaged in by those right wing pressure groups whose minds are firmly stuck in the human plumbing. I do not intend to venture too far into this distasteful area of controversy but I may point out that when the late Member of this House and Nobel Prize winning poet, William Butler Yeats, wrote in “Crazy Jane talks to the Bishop” that
he was speaking of heterosexual and not homosexual love. I wonder if my friends in the misnamed organisation Family Solidarity would seriously suggest that because the penis is used for the purposes of bodily elimination it should be restricted to this function and not employed in sexual relations.
I only make this point because Members of both Houses have been inundated by these groups with squalid pamplets purporting to describe in lurid detail the grosser aspects of what they imagine to be common sexual practices in the gay community. The apparent source of this material is something described as the Canadian Intelligence Service which seems to me in this case to be a contradiction in terms.
Disease has also disreputably been invoked as an argument by these same groups. I am very glad of the Minister's wise words in this area. They have used the tragic situation with regards to AIDS as a stick with which to beat the gay community. This is, to my mind an unspeakably sad and disreputable thing to do. May I place on the record the fact that according to the World Health Organisation statistics the mechanism of transmission of the AIDS virus in 70 per cent of the cases reported on a global  basis is straightforward heterosexual intercourse. The remaining 30 per cent is divided between intravenous drug users sharing needles, mother to infant transmission, use of untreated blood products for haemophiliacs and homosexual relations. It would be grotesque if I were to call for the banning of heterosexual relationship as a result of this information. Moreover, even were this disease confined entirely to the gay community, that would scarcely be an argument for legal repression.
There are certain diseases that are apparently confined to specific groups. If I may give one instance, sickle cell anaemia occurs only in the black population. It would rightly be regarded as abhorrent if these medical facts were used as the basis for a theory of racial inferiority. This is the direction in which, if one takes up this kind of argument, one will inevitably travel.
Let us remember it is but 50 years ago that gay people were systematically victimised with the complicity of Church and state in Germany under the Nazi tyranny when they were made to wear the pink triangle in the concentration camps as a badge of infamy. They were the first group to be incarcerated in the concentration camps, to be tortured, to be medically experimented upon and finally to be exterminated. The gay movement, of which I am proud to be a member, has adopted this pink triangle as its international symbol and turned a badge of infamy and shame into a badge of pride and humanity.
There is one other argument I would like to address. I heard in the Lower House one Member say that if this law were passed it would be the thin end of the wedge and he might have to witness the horrible spectre of two men holding hands at a bus queue. May I say that if his mind were to be genuinely disturbed by such a prospect then this mental balance is precarious indeed. From the cradle I have been brainwashed with heterosexuality. I have frequently witnessed the spectacle of young heterosexual couples holding hands and enthusiastically kissing at those very same bus  stops and I merely wished them well and passed on my way. May I reassure the House that should two young men or two young women hold hands at a bus stop in Dublin, the island will not be overwhelmed by earthquakes and turbulence nor will the world come to an unexpected and sudden end.
It is, therefore, with pride that I welcome this Bill to the House in its provisions dealing with homosexuality. Young people will no longer have to grow up in the shadow of the taint of criminality which has blighted the vulnerable youth of so many of our citizens with terror and shame. The talent that has been destroyed and repressed in so many people will now be freely and generously available of the wider community and much of what has been unnecessarily squandered in the past will be added to the richness of Irish life. This, therefore, is in that sense a happy day.
Nevertheless, I cannot in conscience vote for this Bill in its present form. This is because of the provisions regarding the matter of prostitution. It would go hard with me to accept my liberation without a murmur at the expense of the victimisation of another vulnerable group. It is for this reason that I have put down a series of amendments opposing sections 6 to 13 of the Bill which seeks to criminalise prostitution. I believe that this is both unwise and ungenerous, although I perhaps understand the tactical reasons for which it was done, which were very successful, may I say. I shall argue the case against such provisions and in favour of the unlinking of the two issues of prostitution and homosexuality so that the matter of prostitution may be calmly and rationally considered at another date. I shall speak further on these issues when we come to deal with the particular sections in the Bill.
I wish to say how extraordinarily heartened and proud I was to be in the Dáil when this Bill was debated. I listened to the vast majority of speeches, in particular the speech of the Minister, Deputy Taylor, and, from the backbenches of Fianna Fáil, the speech of Deputy Power who really encapsulated the whole ethos  of this discussion when he spoke of attending discos and dances and enjoying the delights of female company. He said he did not quite understand gay people but that everyone wants to love and be loved. That is the bottom line. I was also immensely heartened to hear the words of Senator Crowley who spoke with his usual eloquence and passion. I was very pleased, indeed, that he was able to do so.
May I put on the record my profound debt to the Irish Gay Rights Movement, the National Gay and Lesbian Federation, the Gay and Lesbian Equality Network and various other organisations. In particular, may I salute the presence here today of two of the co-chairpersons of GLEN, Susie Byrne and Kiernan Rose, who did very remarkable work. They are among the few who can be named.
The Minister is aware of the fact that some months ago President Robinson very movingly, invited leaders of the gay community to Áras an Uachtarán. This was a very important symbol and message sent to the Irish people that young gay men and women are part of the Irish family from which they have been excluded for so very long. I had breakfast with those who met the President in a little hotel at the foot of the hill near the Phoenix Park. There were about 30 or 40 of us. Somebody asked how many were prepared to have their photograph taken with the President. Only about half of these people, who are leaders of the gay community, who are “out”, were able to place themselves in that position. I remember with great pride one young woman from the west of Ireland who said she was delighted to be there despite the fact that her parents had told her that if she presented herself at Áras an Uachtarán and had a photograph taken with the President of Ireland she need not come home for Christmas. Many people have spoken of my courage but I had nothing like the courage of that young woman who took the decision to voluntarily exclude herself from a happy family celebration at Christmas so that  she could make her presence visible in the company of the President of Ireland.
May I say on this question of my alleged courage in the lonely battle I had, I did not have any courage and it was not a lonely battle. It was enormous fun but there was agony, misery and shame before that. Before we founded the gay movement I knew very well what it was to wake up in the morning and wonder if I was indeed the monster that had been portrayed on television, in the newspapers and so on.
The establishment of the gay movement resulted in solidarity, the gay movement and community is one of which I am immensely proud, not only in their struggle for legal freedom but also in the magnificent way they have responded to the AIDS crisis. Once I made that connection I no longer felt in the slightest way isolated.
May I end on a slightly chirpy note which I think is appropriate to this happy day. On 1 April this year my engagement was announced to a charming young woman called Colleen O'Donoghue, and I deliberately chose the initials COD to indicate to the wise and particularly to the Joycean acrostic specialists that this was in fact an April fool's hoax. It got wide currency. I received an enormous mailbag and many telephone calls; not one of them was unpleasant or negative, they were all congratulatory, warm and human. Two of them, however, did cause me some worry because they said they were glad I had found happiness at last. I hope this Bill will be passed by this House despite the hesitation of Fine Gael. With that assistance I shall try to be happier in future.
I thank the Minister for her humanity, generosity and extraordinary political skill. As a political observer I recognise the clear risk she has taken in not taking the mean option taken by the British. They introduced parsimonious, badly drafted, ungenerous legislation. I thank the Minister in the names of the many thousands of gay people in Ireland.
Ms Gallagher: I am grateful for this  opportunity to contribute to the debate on this Bill. It is difficult to follow the contribution of Senator Norris as he is the renowned expert in this matter. I congratulate him on his contribution and on what he has achieved in this area of law.
The Bill brings into effect the decisions and recommendations of many institutions and meets the requirements of the European Court of Human Rights. Senator Norris pursued this matter to that court with consistent vigour and won his case almost five years ago. The decision of the court placed an onus on the Government to decriminalise homosexual acts. This is significant because Ireland has a good record of participation in international and regional human rights mechanisms.
We ratified the European Convention on Human Rights after it was drafted in 1949. Article 8 of that convention provides for a right to a private life. Therefore our legislation, including the Offences Against the Person Act, 1861, needed a re-examination. Such legislation was obviously out of date, not simply by virtue of time but because of changes in our society. I am not one of these who seek change for its own sake but at times we must face reality. Some people have an innate disposition towards those of their own sex. For whatever reason, homosexuality exists: it has been and always will be with us. Therefore, it should not be swept under the carpet.
It has been argued our code of morality and social fabric is endangered by legislation such as this. I grew up in a conventional family where religion and morality played important roles. I was in a country society free of fear and I was happy. I would like to think future generations could enjoy the same benefits from a society which cherishes individuals and maintains moral values. However, I do not believe Victorian legislation criminalising buggery adds to society in any shape or form. The law refused to deal with the reality of homosexuality. It was an attempt to force a standard and code of behaviour on those  who could not or chose not to fit into that category but laws, however well intentioned, cannot succeed in changing the essential nature of a person. What two adults do in a private place does not harm anyone else and should not be placed under the hostile scrutiny of the law. The idea that law should have such power is impractical at best.
We often hear reference to the “good old days”. The law we are repealing was enacted in the last century when most people had no vote, when children were forced into hard labour and women had no individual rights. Let us not forget sexual abuse took place at these times, for human nature does not change. I hope and believe our society has improved in many ways. This legislation now addresses the defects in some of our existing laws.
Those who may object to the changes should remember morality is an individual's responsibility. One has the freedom to behave according to one's religious and moral beliefs. The law should not be used as a prop for people's responsibility. The onus is on every citizen not to injure others intentionally. This is a wider issue and cannot be dealt with by law alone as it requires the support of individuals. Therefore, this legislation does not damage the fabric of our society. Rather it recognises reality and provides many measures to regulate practices, protect individuals and punish those who until now have escaped the full rigours of our law. This Bill complies with the decision of the European Court of Human Rights in Norris v. Ireland. It upholds the individual's right to a private life.
The new Department of Equality and Law Reform headed by the Minister, Deputy Taylor, is an acknowledgment by the Government that work is needed on many equality issues. Its existence has heightened our awareness of the needs of all citizens in all walks of life. The special needs of women in the home are now recognised and legislation has recently been introduced to give joint ownership of the family home. We have recognised and provided for the needs of  disabled persons and those more physically and mentally challenged.
This Bill primarily recognises the rights of homosexuals to pursue relationships as equal citizens. Some people may find the concept and reality of homosexuality difficult to grasp, understand or accept but given its existence it is as well to allow two consenting adults pursue a sexual relationship in the privacy of their own surroundings. Therefore, I welcome the legislation in this area.
When our laws fail to recognise reality, many people suffer. Now that this Bill recognises the rights of homosexuals, it goes on to provide protection for those who do not actively seek to participate in such sexual acts; I refer to minors and those with an intellectual disability who, until now, were not adequately protected by the law. As the Minister has said, section 4 of the 1935 Act refers to “idiots”, “imbeciles” and the “feebleminded”, terms which are clearly offensive today.
Section 5 of this Bill will protect mentally impaired women and men from sexual intercourse, buggery and other sexual offences by making such acts a specific offence. Prior to this such people did not receive adequate protection. Newspapers have reported rapes and physical abuse of mentally handicapped women. In essence, the law treated the woman involved as a fully able person and did not take her disability into account.
The Bill also deals practically with prostitution. I am saddened that any woman believes it necessary to offer sexual favours for payment. It strips a person of all dignity and gives vent to male dominance, power and, therefore, abuse. I welcome the proposal in this legislation to make it an offence to solicit or importune another person for the purpose of prostitution.
The existing laws were completely outdated. Evidence of annoyance from a passer-by was necessary before the law could be enforced. It required that others be offended by what they saw on the streets. That suited Victorian times but  does not assist us today. That provision was rendered inoperable by the courts. The Bill changes that and it is about time.
The Bill takes into account the recommendations of the Second Commission for the Status of Women in relation to prostitution. The report suggested an obvious change, that clients of prostitutes also be held responsible. There is more than one person involved. This section of the Bill is most important. Not only will the new law penalise such people for their abuse of the appalling situation which creates prostitution, it will also protect women from the constant fear of kerbcrawlers. This happens to women all too often and I have had personal experience of this when walking down a street in Dublin. I strongly object to this because I should be able to walk on any street without being presumed to have an ulterior motive and I should be allowed to be free from fear. It is time the law came to a woman's protection in this way.
In regard to the question of the age of consent, as 17 years is the age of consent for heterosexuals, it must also be the age of consent for homosexuals, although this will give rise to an anomaly in that child care legislation states a child to be a minor until the age of 18. Perhaps this needs to be looked at. If we are to be serious about equality, then our age of consent must be the same for homosexuals and heterosexuals in our community.
The Bill brings into effect the 1990 Law Reform Commission's recommendation which provided a solid basis for the review of this area of law. The commission's final report reiterated its recommendations from an earlier stage when it stated that the same legal regime should obtain for consensual homosexual activity as for heterosexual, and that in particular no case has been established for providing that the age of consent, 17 years, should be different.
I welcome this Bill as a recognition of reality. The shadow of criminality must be removed from actions between consenting adults. I welcome the protection of minors and the mentally impaired, and the new offences relating to prostitution.  I congratulate the Minister for Justice and the Minister for Equality and Law Reform on this legislation both of whom have worked to bring this Bill forward.
Dr. Henry: I also congratulate the Minister on this Bill, and welcome her to the House. I also congratulate my colleague, Senator Norris, on his persistence to have this legislation introduced. I once received an anonymous letter which told me it would do me nothing but harm to go around with Senator Norris, and it was signed “Decency”. I have never been more grateful to have disregarded a letter because I am proud to be associated with Senator Norris.
The Minister is to be congratulated on the fact that she took the advice of the Law Reform Commission rather than looking at legislation particularly in England, which we too frequently do and due to lack of imagination bring in our own version of their legislation which often is not very good. The legislation to which Senator Neville referred was introduced 25 years ago. I am glad we waited until this Minister brought in this legislation rather than bringing in legislation which was introduced 25 years ago in England and which is demonstrably flawed. The removal of the section on gross indecency is probably even more important than the decriminalisation of homosexuality itself.
We had legislation in this House last week on condoms, this week we have the decriminalisation of homosexuality, and there is the possibility of legislation regarding divorce in the next session. I know some Senators who are conservative members of society with an interest in maintaining its stability see this as a serious threat to our social structure. I cannot share those views.
Our 1937 Constitution sees the family as the basic unit of social structure, and this appears to have been so before the 1937 Constitution. However, the concept of the family was totally different in times past. For example, under the Brehon Laws the family was not the nuclear family of parents and offspring but a much larger group. Under Brehon Law, the family was those who were related in  the male line to the fifth generation, which would include a very large number. This view of the extended family is far more acceptable than the view which concentrates on the nuclear family which appears to have become popular nowadays.
If we go back to the Gospels, one is supposed to love thy neighbour as thyself. We were not told that there was a corollary whereby we could love our neighbour if we liked the look of him or her, or if we agreed with his or her opinion. There was a very definite responsibility for us to look after those close to us. I feel sure there were homosexual men and lesbian women in Brehon times, and I do not think it was considered necessary to call them criminals. I do not know whether contraception was available then, but I know there was divorce legislation. I found one of my primers on Brehon Law, and the grounds for divorce listed would be considered shocking if the Minister tried to introduce them now.
According to the Brehon Law, if a man goes with another women his wife may leave him. The woman seemed to be the one who always had to leave. She had the right to stay on in the house, however, if she wished. She could go if her husband failed to support her, if he spread a false story about her, if he circulated a satire about her or if he had tricked her into marriage by sorcery. She could also leave if her husband struck her so as to cause a blemish. She could divorce him if he was impotent or if he became so fat that he was incapable of intercourse. I will not continue but many reasons for divorce are listed here. To try to introduce divorce legislation on these grounds would be considered extraordinary today, but these were good grounds for a divorce in Ireland for 700 or 800 years.
On Sunday, while welcoming Ambassador Kennedy-Smith to New Ross, Bishop Comiskey said that when she and her brother, the late President, had visited New Ross 30 years ago we were a more innocent society. I am not so sure that we were. It may have been that we were more closed at that time  and now we are more honest and caring. In the ten years preceding President Kennedy's visit to New Ross half a million people left Ireland — one in seven of the population. While many of them left for economic reasons, I wonder how many left for social reasons. How many homosexual men or lesbian women left? I did not know that Senator Norris was advised in the 1960s to go to the south of France where he would find the situation more congenial rather than staying in this country. I have a strong suspicion that a large number of people left this island because of the lack of concern of the nuclear family rather than our great concern for their good. I believe our attitude has improved a lot since then.
When I was young, it was common in families to expel a young daughter from the family home if she became pregnant. I was brought up near Bessborough, a large convent in Blackrock, Cork, where girls who had been thrown out of the family home stayed. An elderly nun once told me that the worst part of her work was when a girl was dumped on the doorstep and the father would tell the daughter that she would not be hearing from her family again. We have come a long way since then. Many of these girls fled to England, which was a repository for all our social problems. This does not happen as much now. Although we have a very high number of children who are born to single mothers, about 80 per cent of these women have the support of partners or of parents, which was not the case years ago.
The availability of contraception in this country has not caused a moral decline and it has been extremely important for the lives of some women. I wrote a paper in 1975, to which I alluded last week, on maternal mortality and pulmonary embolism, which was published in the journal of the Irish Medical Association. A very large number of the women who died of this condition associated with childbirth in the late 1960s and early 1970s had given birth to six or more children and were over 35, and a substantial number had given birth to ten or more  children. Situations like that no longer arise.
I welcome the section of the Bill which decriminalises homosexuality. We have many phobias — maybe no more than anywhere else — concerning social issues and the best way to deal with phobias is to confront them. I am sorry Senator Maloney is not here to give me the benefit of his professional knowledge on this subject, but I think the confrontation of phobias is still considered the best treatment.
The Minister pointed out to Senators who objected to this Bill that they have sons or daughters who might tell them they were homosexual. No father or mother ever welcomes a child saying that because, even if homosexuality is decriminalised, the social pressures will be the same. It is easier to belong to the majority who are heterosexual. The norm will always be Noah and Mrs. Noah entering the Ark together with the animals two by two. The social pressures on homosexuals will still be hard. However as Senator Norris said, there was a spring in his step today so this Bill has made a difference. The decriminisation of homosexuality means there will be less pressure on homosexuals to enter into marriages which can only cause grief for themselves and for their spouses.
I am glad the Minister resisted raising the age of consent. In view of the Fine Gael Party's interest in this topic, it is interesting to note that none of its Members is in the House to discuss it. Indeed, there was only one Fine Gael speaker on the Bill dealing with the availability of condoms last week.
Dr. Henry: The Minister was right to resist the pressure to raise the age of consent. Last week at a dinner party I sat beside a man who wanted the age raised to 25 years. I would not like to see the Minister telling the men of Galway that, whereas women have their wits about them at 17, men do not until they are 25 years old. It was wise of the Minister to resist such sexism.
Dr. Henry: I am also glad the Minister has made such an effort to protect people who are mentally impaired. While none of us wants to limit the expression of sexuality of those who are mentally impaired, they are in danger of exploitation as evidenced by a recent horrible case in a Grafton Street restaurant. The Minister has stressed her concern about exploitation without threatening peoples' sexuality.
I am worried about the sections which deal with prostitution. I listened to the debate in the Dáil and I was pleased to hear that these were the sections of most concern to Members. It was obvious that the sympathies of the Members of both Houses are with the women involved in prostitution and we would like to find the best way to protect them. Living in Dublin 4 I am aware that kerb-crawling is a nuisance; as Deputy Ryan said we appear to have a monopoly on this and that is why there are no collectives to represent call girls or prostitutes.
I do not know any high class call girls who go to hotels; all I know are the women who work the streets in my area. I had no difficulty doing my own one woman survey last night and I continued this morning with those who work in the Outreach programme. People working with these girls, and the girls themselves, are very worried by specific sections of this Bill.
They are anxious that the Bill will not be applied justly. The Minister is the Minister for Justice, not the Minister for law, and the law is not always applied in a just manner. Men charged with soliciting or kerb-crawling will be in a much more powerful position than the women working the streets. I fear that a different set of rules will be applied to one group rather than the other. The girls involved are usually poor and many have been sexually abused as children. They have no other means of support for themselves and their children.
These women are very worried that they are the most likely to be brought to  court and to have their names disclosed. This will seriously affect not only them but also their children — and the majority have children who do not realise how their mothers support their families. They also fear for their childrens' future. One woman asked if her being convicted would have an adverse effect if her child applied to become a member of the Garda, or for a visa to go to the United States.
These women are extremely tactful. I have never heard them disclose the names of clients, although they must have a good idea of who many of them are, given the frequency with which I see the same cars. Their clients are not sailors; they are ordinary voters, members of regular society. I agree with the Minister who does not want to see Members of the Oireachtas coming out of brothels, legal or illegal, yet, it is astonishing the cross-section of society one sees trawling the streets.
I will put down amendments on Committee Stage on the way this legislation will be applied because I fear it will be used mainly against the women. They are also very worried that they will be less free to report attacks, such as rape, with the threat of heavy fines hanging over them.
In general, the women have a good relationship with the Garda who have dealt with serious cases of rape. There was an appalling rape of a prostitute in the Phoenix Park last year by a man who thought he could get away with it because the woman worked on the streets. The police apprehended him and eventually he was convicted and sentenced to 14 years for his violent crime. The women are worried about protection rackets starting and the fact that they will be fined.
Another point they made which I had not thought of was that they have a choice when it comes to their clients when they are on the streets. If they do not like the look of a person in a car they can refuse to get in whereas if they work in a massage parlour — and there are a considerable number of them in the city — once the men pay their money at the door the  women must accept the clients sent to them.
The most serious problem I see for the call girls is the fines. I know the Minister has lowered the fines, but a fine of £250 is almost equivalent to sending one of these women to jail. One of them said to me that in the Garden of Eden with Adam and Eve the apple was free, but now the apple costs £25.” A woman will need ten or 12 customers to pay a fine of £250 and it would be virtually impossible to pay £500. In these cases, a prison sentence might be the only option for these women.
I would like to cite the Whitaker report, 1985, which urged the disassociation of fines and non-payment of fines from the imposition of prison sentences. The recent Law Reform Commission Report on sentencing also recommended that we should be able to use other sanctions in such cases. I believe it should not be beyond the Department of Justice to allow this. For example, the Minister could change section 7 of the Bill to provide for four weeks imprisonment in the event of non-payment of a fine but only if considered necessary. The Whitaker report urges that women not be sent to prison unless it was absolutely necessary.
Who will mind these women's children if they are sent to prison? I spoke with a woman last night who has four children under ten years of age. How will the Minister cope with most of these women who do not have families to help them? This must be considered carefully. Perhaps the Minister would consider adding the words “or some sanction that the court deems fit”. Various sanctions have been suggested, such as community service orders, restraints of liberty, for example voluntary curfews at night or attendance at courses at technical courses.
I am confident that courts could suggest better sanctions than imprisonment and I urge the Minister not to proceed on this basis. The money will not be paid because it is not there. This effectively means imprisonment, and these girls  believe that the Minister does not want them to end up in prison. Of the number of people in prison at present, I understand that approximately one third are there for non-payment of fines. This is an expensive way of dealing with those who do not pay fines.
The nuns and social workers have requested a meeting with the Minister to discuss this problem. I believe the Members of the Oireachtas, including the Minister, want to do what is best for these girls. Perhaps the Minister would meet some of people who work on the streets and those who work with them, for example, the nuns in the convent in Dublin 1, those involved in the programmes organised in Dublin 4 and social workers in other areas.
I am not supplying more detailed addresses not because these people object but because they have a better sense of contact with the girls they are trying to help if their addresses are anonymous. There was an article in the paper at the weekend with a photograph showing the door of one of the clinics which give service and help to women who work in prostitution. This kind of exposure is counter-productive in dealing with the health and safety of women working in this area.
Miss Ormonde: I am pleased to have the opportunity to speak on this important Bill. I congratulate the Minister for having the courage and determination to face up to this sensitive and understandably divisive issue. The Minister has rightly been praised, inside and outside the House, for her compassionate and sensitive handling of this issue. I add my voice to that praise.
The need to bring this legislation into force, apart from extending human rights to a group of people who have argued that they have been denied them, arises from the decision of the European Court of Human Rights in October 1988 which indicated that Ireland was in breach of the European Convention of Human Rights.
The Court found that the appellant, Senator David Norris, had his right to  respect for his private life, by virtue of the Offences Against the Person Act, 1861, interfered with under Article 8.1 of the European Convention. I congratulate Senator Norris for the campaign he fought. The Senator said he fronted the campaign but he would have been able to fight such a campaign in his own right.
The question has been asked why did we not seek a derogation from this Convention, or why are we bound by a judgment of European Court which, after all, does not even operate within the aegis of the European Community? To answer these questions and place the judgment in its proper historical, social and institutional context, we need to go back a little in history. The Council of Europe, which was created shortly after the ending of World War II in 1949, was the first European political organisation to be established. Drawn up within the Council was the European Convention on Human Rights which came into force in September 1953. Ireland, I am glad to say, was one of the original signatories to the convention. At present there are 29 member states of the Council of Europe, and eight other countries have applied for membership. Membership applications normally indicate that a country is prepared to adopt normal democratic procedures and to extend human rights to all its citizens.
Turning to the Convention on Human Rights itself, this represents a collective guarantee at a European level of a number of principles set out in the Universal Declaration of Human Rights. The institutions created by the Convention are the European Commission and Court of Human Rights. The Court is competent to take a judicial decision which is binding on the parties to an action on whether in a given case the convention has or has not been violated by a contracting state. To that end, Article 53 of the convention provides that “the High Contracting Parties undertake to abide by the decisions of the Court in any case to which they are parties”. The Council does not have power to force states into compliance, but it does have strong persuasive powers, including a penalty of last resort,  the power of suspension from the Council of Europe.
Ireland's role in the Council has always been exemplary going back 40 years when we were one of the original signatories. The question now arises, do we continue to ignore the judgment in the Norris case and thereby put our continued membership of the Council in jeopardy, or do we square up to our responsibilities and enact this legislation as a mature, responsible and caring democracy within the family of nations of Europe? The right thing to do is plain and simple, and it must be done irrespective of personal and deeply held views. We cannot be part-time members of the Council and choose issues as they suit us.
Clearly there are compelling reasons for this legislation when one examines it in the context of the judgment of the European Court. There are other reasons for it also. The legislation to be repealed by this Bill is 130 years old and contains wording which, by today's standards, could only be described as offensive. In addition, it provides by way of penalty, penal servitude for life. The Bill today is concerned with extending to a group of people a human right which they have been denied. As the Minister indicated in the other House, we are dismantling a law which reflects the value of another time.
I am aware that there is unease among some regarding this legislation. They feel that we, as legislators, are throwing aside many of the traditional values which we as a nation cherish deeply. A great many people are worried that modern trends, which do not find favour with them, are leading to a situation where fundamentally sound values are now being questioned and cast aside because they have the tag old fashioned.
As a democrat, I accept the right of people to hold and express these deeply and sincerely held views. I would say, by way of reassurance to the many people who have worries in this regard, that we, as legislators, are removing discrimination in the case of consenting adults in respect of their sexuality. We  are not — and I emphasise “not”— removing the protections that exist for children, the handicapped and other vulnerable members of the community.
The legislation will not lead to an increase in promiscuity. The criminal law is not used to contol heterosexual activity and I am sure nobody would expect it to do so, why should it be any different for consenting adults engaged in homosexual activity? We are not legislation to water down the moral standards which are observed by the vast majority. All we are doing is decriminalising acts in private among adults. This cannot lead to the erosion of the social fabric of our country and members of the community will continue to hold and profess their moral beliefs. What will change, however, is that the criminal law wil not be used as a sanction against those with whose moral beliefs we disagree.
The Bill deals with prostitution, soliciting, kerb-crawling and brothel-keeping; I am glad the Minister has managed to increase the penalty in these cases. On section 5, the Minister is aware of my concerns in relation to the mentally handicapped or impaired. From my own experience in dealing with young handicapped people, I know that young people of 15 or 16 with a mental age of six or seven, would be very vulnerable. I am also aware that those who play truant from school are referred to other areas where they would be vulnerable and perhaps exploited. The Minister has taken note of my points already and I know she is aware that I am anxious about this matter.
In relation to the section on prostitution, I am glad the Minister has taken action to deal with the nuisance of kerb-crawling. Women often find themselves in a no-go area because of what goes on there. The changes being introduced by the Minister are in line with the recommendations of the Second Commission on the Status of Women and of the Law Reform Commission's report on vagrancy.
Something that has struck me about this debate, and the debate in the other  House, is the lack of bitterness which, unfortunately, has often characterised the passage of social reform in the Oireachtas. Do I detect a new maturity on our part? Is there a desire to respect the other person's view and sexuality however much we might disagree with it? This is a development which we must all welcome. In fairness, a great deal of the credit must go to the Minister for Justice for her humane, astute and sensitive handling of this issue, and it is only proper that this be acknowledged publicly.
Ms Honan: I welcome the Minister to the House. I am pleased to have an opportunity to discuss this important Bill. I warmly welcome its provisions on homosexuality which, as the Minister has said, deal fundamentally with the development of human rights. I commend the Minister for her courage and determination in dealing with this matter. Too often, when politicians take courageous measures, Opposition parties do not give them full credit. However, I pay tribute to the Minister and I appreciate what she is doing. The coverage she has received in the press recognises how courageous she has been. I hope she will continue in this vein and I urge her to do so because many matters that come under the aegis of her Department require reform. It is interesting that this measure is being introduced by a woman Minister for Justice; women are practical and are not afraid to take on issues that for years have been put on the back burner in the mistaken belief that the sky may fall in if they are tackled.
I also want to pay tribute to my colleague, Senator Norris. I believe this legislation would not be before us if he had not been a Member of the Oireachtas and had not taken his case to Europe. The gay community has been fortunate in having such an articulate, determined and enlightened person to act as their champion. Many people, as Senator Norris stated, have not been in the fortunate position he is in; nonetheless, he has been courageous and determined in dealing with an issue that he was not  prepared to drop. He has been a thorn in the side of many Governments, urging them to bring forward such legislation.
I welcome this Bill because it is about freedom, about tolerating differences and about respecting the human rights of other people who, though they may be different from us, have to be respected and have their lives and rights considered. This Bill concerns private morality and does not in any way affect how people behave. Recently, we saw another reforming measure before this House which decriminalised suicide, and I do not think anybody would suggest that will lead to an increase in the incidence of suicide. By behaving in a humane fashion on this matter we have done a good job.
Senator Norris and others spoke about homosexuals; I would like to talk for a moment about lesbian women. I was a member of the Commission on the Status of Women which received submissions from lesbian groups. It is widely accepted by social researchers that approximately 10 per cent of the population has a homosexual orientation, a substantial minority which, for the most part, up to now has been an underground minority. Even though in the past ten or 12 years we have seen the development of an articulate gay rights movement, it is still rare to find a gay man in Irish society who has openly declared his status, and rarer still to find a lesbian woman who has taken similar action. This matter raises complex issues of personal privacy. There is no doubt that a personal taboo was in operation, as well as the fear that an open acknowledgement could be damaging both personally and in career terms.
There are no laws against lesbianism in Ireland. This does not mean that we live in a lesbian utopia. The taboo status of lesbianism functions as a unwritten law suppressing not only the practice of lesbian sexuality but the awarness of its very existence.
 If we look at the evidence in this country, lesbians and gay men were right to be cautious. I welcome the legislation because through it we are making a statement and sending out a signal that needed to be sent to these people.
In submissions to the Commission on the Status of Women dealing with attitudes to lesbians, the point was made that there was not a single open or “out” lesbian woman in any position of power or public office in Ireland, and only rarely have individual lesbians spoken out in the media. The vast majority of the population rarely hears anything factual or postive about lesbians. The point was also made to the commission that lesbians are dismissed from jobs, lose custody of children, are evicted from housing, are rejected by their families, are beaten up and harassed, are ejected from political, religious or other social groups, and are barred from public places in Ireland, all for revealing their sexual orientation or having been identified as being lesbian.
It is the fear of some or all of these things happening, rather than their actual occurrence, that causes oppression in the lives of lesbian woman. While this measure does not mention lesbians, the fact that we are decriminalising homosexual acts makes a welcome statement to all of these women. The fear of oppression results in enforced and continuous secrecy, restriction on social activity and isolation, as well as guilt and ignorance about individual sexuality. Lesbian teenagers have no positive Irish role models.
I welcome the recent development of including sexual orientation as a category for protection under the unlawful discrimination of the Unfair Dismissals Act. The Criminal Law (Sexual Offences) Bill makes a further statement on this. The Commission on the Status of Women made four recommendations regarding lesbians, and two of those are now being fulfilled.
The Second Commission on the Status of Women also made recommendations in relation to education, namely, that we should have a module on homophobia, that is prejudice and hatred of lesbians  and gay men, in the proposed sex and relationship education course in second level schools because there is much bigotry in this country. Young people need to be educated. They need to be told about these things and be able to talk about them in a normal setting.
The other recommendation the commission made was in relation to lesbian groups, that they should be eligible for consideration for funding from the Department of Social Welfare scheme. I ask the Minister to examine this again. I may be digressing but it is very important to make a statement about lesbians as well as gay men. As I am sure the Minister gathers, I am very supportive of her legislation and I compliment her for bringing it forward.
Another area I wish to turn to is prostitution and the measures in this Bill in that regard. I was surprised the Minister introduced measures to deal with prostitution while this measure was being dealt with; I did not expect it. It is also an area the Second Commission on the Status of Women examined and the Minister said that she feels her recommendations are in line with its recommendations. I think that is certainly the case where she recommends that the same sanctions should be applied to persons soliciting and to their clients, regardless of sex.
Like Senator Henry, I believe that prostitution in this country is mainly conducted on the streets by women who are poor, these are the women about whom I am concerned. The lives of these women are characterised by a sense of powerlessness. They have very few opportunities and they do not have a voice in this society. They have very little choice in the lives that they lead and they have very little hope. I would not like such women to be put in prison or subject to heavy fines. I would like something along the lines of what the commission recommended, that we have to take an all-embracing approach and this matter should be examined by the Departments of Justice, Health and Education.
We must examine ways to improve the  very difficult lives these women have to lead. We must examine why they get into prostitution in the first place. As has been stated, many of them come from very poor sections of the community, sectors which are totally disadvantaged. Many of them are involved in drugs and have been abused physically and mentally all their lives. I would not like a situation where they are criminalised and put in jail.
The Minister amended some of the provisions of her original Bill in the other House and I welcome that. I think she has a very caring attitude, and that reflects the attitude of all the Members in the other House and in this House. I would like all of these women treated with the same care. Most people seem to think that there are two groups of women, the poorer and disadvantaged women and a higher class of prostitutes who operate from brothels and hotels in the city. Like Senator Henry, I feel that these women, and the men who are involved, are well able to look after themselves and if the sanctions of the law are brought to bear on them they will be in a much better situation than the women on the streets.
There was a major debate in the Second Commission on the Status of Women in relation to whether prostitution should be legalised and ultimately we decided against it. I think prostitution is an abuse of all women. I would not like us as a society to state that it is acceptable for women to sell their bodies. That is the wrong signal to give to women, and particularly to this disadvantaged group of women. I know the Minister's approach is caring but I would like the establishment of a task force to examine this area, as some of the Members of the other House recommended, that would ask the women themselves and the groups caring for and dealing with them what measures should be introduced.
Mrs. McGennis: I join Members in  congratulating Senator Norris but, more particularly, I wish to congratulate Minister, Deputy Geoghegan-Quinn. I regret that Senator Neville said that legislation was forced on us by Europe. It would have been a credit to him if he had acknowledged the fact, as the Minister's speech clearly stated, that the Bill stands on its own merits as a fundamental development of human rights which——
Mrs. McGennis: ——and which is recommended by the Second Commission on the Status of Women and the Law Reform Commission. In my opinion the legislation was not forced on us by the decision in Europe. I am glad it has been introduced by a woman Minister, particularly a Fianna Fáil woman Minister. I wonder if it had not been a woman Minister for Justice whether this legislation would have been implemented so speedily.
Senator Henry referred to the legislation we discussed last week in this House in relation to condoms. I said then that these issues are very sensitive and, understandably, people feel threatened by change. I share the Minister's view, and I am glad that she specifically stated it in her speech, that is not a matter of laying siege to the old certainties nor is it a matter of jettisoning sound values simply to run with the current tide of demands. I know that is not what the Minister is doing and that she believes passionately in the legislation she is bring before both Houses.
My view is that there is no great merit in not doing something simply because  one is prohibited from doing so. It is always better that people decide for themselves that they do not particular want to do something rather than having a decision forced upon them. The Minister's speech appeared to support that viewpoint because she stated that majority values do not require the kind of support that is mentioned in the legislation as it existed. The Minister also said that she thinks we know in ourselves that values which are truly worth while in themselves are strengthened, not weakened, when we remove forms of support which ignore the rights of others. I fully concur with that.
The criminalisation of homosexual acts remaining on the Statute Book gave tacit approval to a minority who engaged in what is described as “queer bashing”. I do not think Senator Norris referred to this but perhaps he did. He referred to what he termed “the inertia of the law” and perhaps that fuels the “justification” of the people who take the law into their own hands. There have been numerous cases of homosexuals being beaten up; the incident in Fairview Park particularly stands out in my mind. While this kind of prohibition on the Statute Book may not have encouraged such behaviour, it did not discourage it and I am glad it has been removed.
I also welcome the fact that the Minister has brought the age of consent into line with that for heterosexual activity. It is petty that Fine Gael has stated that it intends to introduce amendments in that regard. It expressed that intention in the Dáil as well, but I do not think it amounted to that. I know there was not a vote on the day because I watched the proceedings.
Mrs. McGennis: I am very pleased the  Minister has removed what I consider extremely objectionable language from the Statute Book and that was the reference to imbeciles, idiots and the feebleminded. I am very pleased she has replaced those terms with “mentally impaired” and has told us how she intends to deal with that. I will not misconstrue Senator Neville's comment about prison being filled with sexual offenders. Perhaps that comment applied to the section which deals with prostitution. The Minister stated that she regarded the penalty of two years as too low for people in charge of a victim who perpetrates such a crime and I concur with her. Debates were held in this House in relation to the Kilkenny case and amendments were put down by Fine Gael which not only supported heavier sentences but suggested that a barring order should be imposed on sexual offenders when released from prison. It is certainly a turn-about for the books for Senator Neville to suggest that he does not support having our prisons filled with sexual offenders. I do not think that is what the Minister has in mind.
My understanding of the section which deals with prostitution is that it does not criminalise prostitution and I will be interested to hear Senator Neville's justification for saying that his party believes that this is reactionary. I commend him for being here. He stated several times during his speech the Fine Gael position on this and I think it is the first time in this House that I have heard any Member give a party line on this matter. Even in the Senator's previous contributions he referred to his own personal beliefs; he is now, willingly or unwillingly, stating the party line and comment has been made. I commend him for being here because most of his colleagues are absent; it will be interesting to see if they support his amendments.
I do not know why it is believed that the section dealing with prostitution is reactionary. I urge Senator Norris to reconsider his decision on, what he termed, the criminalisation of prostitution  because I have read those sections of the Bill and I have listened to the Minister's speech and I do not see that in it. The Minister has put a similar blame — if blame there be — on those who seek to use prostitutes and those who exploit prostitutes — their pimps and those groups who are described as kerb-crawlers — who, as Senator Gallager stated, are the absolute bane of the life of any man or woman who is accosted by them. The Minister stated quite clearly that she was amending this legislation to make it gender-neutral and to make those who use the services of prostitutes as accountable as the prostitutes themselves.
I do not have as much experience in this matter as Senator Henry has because of her work with prostitutes; she mentioned they live in her area. I lived and grew up in the inner city and what I saw when I lived there was far from the image portrayed by Julia Roberts in the movie “Pretty Woman.” It was degrading, seedy and exploitative. I remember as a curious teenager walking down the quays to see what was going on and it was anything but pretty. It was anything but enjoyable for the people who lived in the area and had to see these cars driving up and down and the pimps who came out regularly and were not averse to violent acts on the girls they exploited. I recall specifically a young girl, a teenager of 14 or 15 years of age, who became a prostitute and I remember seeing her coming up the street with comics and chips in her hand. The glitzy image of prostitution — if ever there was one — was very forcibly put out of sight as far as I was concerned. I also remember a case — I think in Queen Street — where a pimp set fire to a house and killed a prostitute inside. It is not a very pleasant profession. The Minister can correct me if I am wrong but I do not think she is attempting to criminalise something which, as I have stated already, is degrading and exploitative of the men or women who are offering their services. The Minister has tried to tidy up the streets, if nothing else.
The Minister mentioned previously  that she intended introducing legislation dealing with loitering, the young children and gangs who are causing nuisance. This is a nuisance and the Minister, in my opinion, is not criminalising it but she is dealing with the nuisance which prositutes, kerb-crawlers and pimps cause for the communities in which they operate. Senator Henry mentioned the kind of problems they have in their area. I have no problem with that being expanded to include those who live on the earnings of prostitutes, and giving the Garda powers to move them on. This is sensible legislation. I am open to correction of my reading of the Bill and if I am wrong, I am willing to state so.
I have quoted parts of the Minister's speech because it is an excellent speech and the Bill is an excellent piece of humanitarian legislation. It is a comprehensive Bill which deals with human rights, the rights of homosexuals, the rights of the young, the rights of the mentally impaired and the rights of the members of the public. I commend the legislation to the House and I congratulate the Minister.
Mr. Roche: I have listened to the contributions in this House with great pride today because this is a Bill which could have engendered the most base form of public debate and quite the opposite has been the case. The debate here has been meaningful, humanitarian and humane. It is interesting that in the past two weeks, when this country could have been sundered by very negative forces, excluding one contribution in the other House where there was what I would only regard as a homophobic comment made by an Independent Member of that House, the contributions have generally been positive and thoughtful. The only negative feeling I have about the debate that has taken place is that it has not been wideranging enough because at this stage we are debating the very nature of Irish society. It should be a hallmark of a Christian society and a civilised society that it can be tolerant, that it can look at difference and tolerate difference.
I compliment the Minister on this legislation.  She has handled it in a forthright, honourable and intelligent manner. One of the reasons I say that it would have been better if there had been a wider public debate is that the logic of the Minister's case could have been put better. I listened within the confines on my own party rooms to the compelling way in which the Minister argued the case for the legislation. It was a compliment to the Minister. Perhaps I transgress slightly as we are not supposed to discuss what happens in party rooms, but the reality of it was that the Minister's arguments contained logic and compassion in equal measure and they would have done justice to any public debate.
The Bill before us is an important one because it deals with an ancient prejudice. It is a mistake to try and legislate against the human condition and homosexuality happens to be a human condition. The Minister has approached what has been an area of entrenched and traditional prejudice in a logical, constrained and compassionate manner. There are many people in Irish society who have a range of sincere feelings on this issue and there are many concerns and worries. Our role as legislators must be to convey to the public that the law we are enacting is a just law, a Christian law, and a law which does not threaten the life of the nation; it does quite the opposite. I commend the Minister because, in full measure, she has fulfilled what for me are very important hallmarks of legislation.
I want to refer in the main to the second element in the Bill because a great deal has been said about the first element, and this is the arrangements the Minister is introducing to deal with prostitution and a range of associated activities. I disagree with Members of this House and the other House who have argued the case for the legalisation of prostitution. I disagree not because of any entrenched conservatism or traditionalism; I disagree because I view prostitution as a form of slavery. The women and men, but primarily women, who are involved in that activity are selling all they have,  themselves, and a society that cares has to deal with that problem.
I accept the arguments about the possibly negative consequences of the heavy fines being introduced but the Minister showed common sense and compassion in her response to this in the debate in the Dáil, and I would suggest that she has made sufficient concessions. I believe that prostitution is an unparalleled evil because it steals from the person all human dignity. I do not believe that anybody would enter that trade without being in extremis. The related measures which the Minister has introduced, on kerb-crawling, living from immoral earnings and so on, are welcome. There has been a lacuna in the law and it is right that the full measure of the law should be visited upon those who live off this trade. Prostitution is a form of human slavery and we should take measures to penalise in the most severe way those who are active on the periphery of that activity and who live off the unfortunate girls who are driven into that activity.
This Bill and the other measures are no threat to the type of life and society we believe we have in Ireland. Every society should look at itself in the mirror and see where it it going. In common with most male heterosexuals, I have all the prejudices with which I was born; they are latent in us all. I think it is right that we should examine ourselves occasionally and say what form of society we want. We are not heading towards a libertarian society because we are taking these steps. I believe we are taking a step to a more humane and understanding society, which has more in common with Christian and traditional Irish principles that was entered into our law by our enactment of foreign, predominantly Victorian statutes.
The purpose of my short contribution was to commend the Minister on a common sense piece of legislation which seems to grasp a series of nettles in a courageous way. I have only one other negative thing to say. I would have to chastise some of our lady Members for  some of their language. I would suggest that they look at the Official Record of this House and examine it carefully because if some of the recent contributions had been made by male Senators, we would rightly be chastised for sexism. Sexism and sexual stereotyping cuts both ways. In addition to the male Members of both Houses minding their tongues on the issue of sexism, perhaps lady Senators would do likewise.
This Bill makes a fundamental change in legislation. Regrettably, it is being rushed through the Oireachtas by both Government parties to establish their liberal credentials. I believe insufficient serious thought has been given to the consequences of this Bill, and far too little time has been allowed for a proper debate. By reducing the age of consent for homosexual acts to 17 years, we now have one of the most liberal regimes in Europe.
Mr. Enright: With the passing of this Bill into law, homosexual laws in Ireland will now become far more liberal than the laws in the United Kingdom. There has been no investigation of what this means for the least protected members of our society. The Minister has greater access to expert knowledge and information in regard to these matters than I do. However, from conversation with a number of members of the Garda Siochána, people involved in social matters in Dublin and members of the legal profession, I understand that there appears to be an increase in male prostitution in Ireland, particularly in Dublin.
Setting the age of consent at 17 years means that there is a real danger of a major increase in homosexual prostitution in underprivileged areas and in areas of high unemployment. The Minister has correctly imposed heavy penalties in this Bill for the organisers of such  offences, or for people who, out of greed, exploit either men or women. However, setting the age of consent at 17 years will make it difficult, if not impossible, for the Garda Síochána to monitor the situation to discover whether money has changed hands. At a time of high unemployment, this could prove to be a serious matter.
I accept and support the rights of minorities. However, the majority also have rights and are opposed to the enactment of such liberal laws. Since the dawn of civilisation, homosexual acts have been regarded as unacceptable. Around the world, but particularly in the West, we are witnessing a breakdown in family values and standards. The economic cost of this breakdown is enormous. However, the long term social consequences cannot be foreseen at present but serious thought is required to provide remedies for potential problems which lie ahead. A survey conducted in the United States showed that 58 per cent of people were in two parent families. This shows the problems which exist.
I would like to ask the Minister a number of questions. In regard to section 2, does the Minister intend to leave the word “persons” or would it be better to substitute the word “male?”. Perhaps she has a reason for leaving the word “persons”. I would ask her to examine that. Definitions may not be needed in this area, but I think it might have been desirable to have further definitions.
Section 3, which deals with the buggery of persons under 17 years of age, has an exemption clause which states: “other than a person to whom he is married or to whom he believes with reasonable cause he is married”. Rape within marriage is an offence. I would like the Minister to clarify buggery in marriage. I would like to know if this is covered in other legislation. I am concerned that a dominant man could make life difficult for his partner by abusing her in this way.
Finally, I note the Bill imposes heavy penalties on people involved in the commissioning of offences and that is a good provision. It is reported in the national newspapers that the Minister does not  consider it appropriate at present to ban the advertising of brothels, massage parlours or other such establishment. In the Dáil attention was drawn to In Dublin magazine which carries three or four pages of such advertisements. Would the Minister, even now, consider banning the advertising of these services? Young people, on seeing such advertisements, may be led to believe that those services are desirable or that it would be easy to earn money through providing such services.
Opinions on this legislation differ widely. Society has changed and young people face greater difficulties that those encountered by my generation. Society was different then. Nowadays peer pressure has a great impact on young people. Take, for example, the situation in which four young men of 18 years go out for a night's entertainment. Perhaps three of the young men drink and the fourth is teetotal. If they regularly go out as a group over a period of time it is very likely that the fourth young man will also start drinking. There are other similar examples of peer pressure.
The law should protect young people and designating 17 years as the age of consent means it cannot protect many boys. Although our laws must be fair and liberal but we must also use our common sense. Common sense is a great yardstick. Peer pressure causes many problems for young people and it is our duty as legislators to protect vulnerable and impressionable young people. The Bill is too liberal in that context. Society has lived by many principles that have been held for generations. They are good principles and we should not abandon them so quickly.
Mr. Magner: I respect the opinions of others and their right to hold opinions that are different from mine. There are, as Senator Enright said, many good qualities in our society but there are also many people who have suffered severely as a result of our society's attitude to them. I am glad the Irish community in New York will not have to depend on the Jewish former Mayor of New York, Ed  Koch, to defend their right to march as Irish citizens who are gay or lesbian. This is a great day for the Irish. The rights contained in this Bill should have always been recognised. When one vindicates the rights of minorities, as this Bill does, everyone is enriched.
I applauded the appointment of Deputy Geoghegan-Quinn as Minister for Justice. The appointment of a woman to that Department was a clever and brave action by the Government. My plaudits of the Minister have been more than justified by her subsequent actions which were brave and carried out with sensitivity and common sense. I am not one of those who claim that women are the reservoir of all common sense.
Mr. Magner: Only a proportion of people, regardless of gender, use their common sense. The Minister holds a very difficult office. She faces many difficulties not only in the reform of legislation but also is simply running what can sometimes be a mysterious Department.
Mr. Magner: I wish to put on record the Labour Party's appreciation of the Minister's approach in this legislation and the fact that the social agenda of this Government is being implemented. At the Labour Party conference in the National Concert Hall, which was convened to seek the party's approval for the Programme for a Partnership Government, a lesbian member of the party told the party leader and I that she would eat her hat if we succeeded in passing legislation to decriminalise homosexuality. I am at present seeking an edible hat which I intend to watch her eat. I am sure she will be glad to do so.
The Bill is a reality due to the hard work of a large number of people, and particularly due to the campaigning of my colleague, Senator Norris. Earlier he  decried plaudits of bravery and courage that were accorded to him. I believe he has been extremely courageous not just in putting forward his views on this matter, both in and outside the Seanad, but also throughout the lonely, hard road he has travelled. While I accept his modesty, the gay population has been singularly fortunate in having such an advocate.
Mr. Magner: Senator Norris said that the campaign was fun. It was, however, his sense of fun which contributed to his success in influencing those who had opposing or no views on this matter. He was clever enough not to threaten them and eventually they supported him. He convinced them with his argument and with his wit in making that argument. I congratulate him.
It is a tribute to this House that one of its Members, Senator Norris, is responsible for the introduction of this legislation and another Member, Senator Neville, was responsible for the introduction of legislation decriminalising suicide. I took Senator Norris to task for celebrating this Bill being passed by the Dáil because previously he had complained that the Seanad is ignored and does not have sufficient importance in the Irish Legislature. I maintained that he should have delayed the celebrations until the important House passed the Bill.
As I told the Minister in the course of a debate on another issue, I spent some of my formative years at sea in the merchant navy. Sailors have a somewhat colourful reputation yet those I sailed with were among the most moral people I have met. There was more fornication taking place in some parts of Cork where people may never have seen the sea, let alone sailed  on it. Sailors can be not only the salt of the earth but also pillars of morality.
I ran away to sea when I was 14 years. The merchant navy always had a high proportion of practicising homosexuals. but I can honestly say that I was never threatened by them when I was on ship — indeed, the opposite was the case. In many ways, they ensured the protection of young sailors and were extremely considerate to me. It also disturbs me when sexual harassment of children and related matters are discussed in relation to the gay community because all of the cases recently referred to, such as the Kilkenny incest case, deal with heterosexuals, and in many cases sexual interference of children — mainly girls — is predominantly committed by heterosexuals. We should not associate the decriminalisation of homosexuality with sexual assaults on children, whether boys or girls.
The view of the Labour Party was ably put by our spokesperson on justice, Senator Gallagher, today I simply wanted to stand up and be counted on this issue. It is a great day for homosexuals because now, they do not have to fear exposure by blackmailers, which was a feature of gay life in Ireland. In the past, many rural homosexuals had to migrate to Dublin to become anonymous while more prominent people had to go to London. I am delighted that day has gone.
Like much of the legislation that has been passed recently, we will wonder in two years time what all the fuss was about. That also occurred with condoms, now one would be laughed at if they said one needed a doctor's prescription to buy condoms. Another Senator asked if we are becoming more mature — of course we are. There is a new maturity from both the Government and the Opposition sides and no one wishes to raise the old bogeys just for the sake of it. It might be strange coming from me, but I also commend the Church in this debate. The bashing from the pulpit and the creating of fear has become a thing of the past and the Church has come to terms with modern Ireland. They are entitled to preach their version of morality, I have  no objection to it, not only on this issue, but also on divorce and contraception. I respect their right to do so. The strident lashing of the flock seems to be a thing of the past and I welcome that.
I welcome the Bill. It is a great day, not only for the Irish gay community, but for all our people. Although the Minister has many other measures to introduce, she has been widely praised for her courage on this case. It is rare for all interests to come together and lavish praise on a Minister — I would advise her to watch them, but be grateful for it in the meantime.
Mr. Dardis: I rise rather reluctantly at this stage of the debate because I understood there were Senators on the opposite side who were offering to speak and the House would have been glad to give them an opportunity to rebut some of the arguments put forward. However, in their absence and to ensure the debate does not collapse, I will speak at this juncture.
I regard this day as highly significant and historic, when we look back at today we can say with some satisfaction that a good days' work was done. The Minister has been commended by many for the way she has taken this legislation through both Houses and the way the debate has been conducted and I endorse those sentiments wholeheartedly. I do not wish to be condescending to the Minister — it would not be fair to her — but in her opening statement on Second Stage, she said.
It is rather a matter of closely looking at values and asking ourselves whether it is necessary or whether it is right that they be propped up for the comfort of the majority by applying discriminatory and unnecessary laws to any minority.
Since I came to this House in 1989, I have waited to hear a Minister say something of that nature. It marks a significant advance in our society and in how we look at ourselves and act towards those we have grossly mistreated in the past.
I neither condone nor condemn homo-sexuality.  I am a Christian, I am a practising Catholic, and within the ambit of the religion I profess and practice I do not see homosexuality as part of my own lifestyle. Equally, I do not think anyone has the right to condemn a person who is either a lesbian or a practising homosexual to a life of misery. I endorse the comments made by the Minister on this and also congratulate Senator Norris — he has been widely congratulated and it is deserved — because if it were not for his tenacity and determination we would not have reached this significant point today.
I have listened with care to some of the comments made on this matter, when it was debated among the general public on the radio over the past few weeks. One of the views stated was that this legislation should not be introduced because opinion polls suggested that a majority were opposed to a liberalisation of the law. That sort of thinking should be rejected by all Members of the Oireachtas because our function is not to reflect at all times the particular perspective of our society but to lead it to what we believe is a better situation. This legislation does that.
This is an aside and I hope the Acting Chairman will bear with me, but I asked the Danish Ambassador why the political establishment in Denmark, almost without exception, supported the ratification of the Maastricht Treaty when it was evident that a large section of that community thought otherwise? He said to me: “Politicians have a responsibility to lead”. It was a good answer and it equally applies to this debate.
I have three children and I would be unhappy if any of them was a homosexual or a lesbian but I would be more unhappy if they were condemned to a life of misery as a result of being discriminated against because of their sexual orientation. Many people have committed suicide because of the pressure put on them by a so-called caring Christian community. I have difficulty with squaring how we can profess to have caring beliefs while we can be so uncharitable in exercising them. Indeed,  there was a great lack of charity shown towards such cases in the past.
Senator Enright made a statement I would contest. I respect the views of the Senator, but he said that homosexual acts have been unacceptable since the dawn of civilisation. That could be disputed because there are plenty of examples of civilisations where homosexual acts were condoned. We have only to look at the history of our artists, of our literature, to appreciate the talent of these people. Oscar Wilde must be spinning in his grave today.
The Minister asked if we would introduce legislation similar to the that derived from the Victorian ethos. The answer is no. How many talented and creative people have been ignored over the years because of the prejudices in society and the effort they had to make to bring forward the art in them? Perhaps it is part of the artistic process that people must struggle, I do not know. Nevertheless, it must be to our advantage as a society even from that perspective, that this legislation is passed. I am encouraged by legislation and the Minister's speech and it is the mark of a Christian and caring society that it allows legislation of this nature to be enacted.
I subscribe to remarks by several speakers in relation to prostitution and pimping. The heavier penalty must be impossed on the pimp rather than the prostitute. Prostitution degrades women and must be prevented by legislation and policing. A prostitute speaking on radio made a valid point. Under this legislation a £500 penalty and an imprisonment term not exceeding four weeks may be imposed. It would be impossible for many prostitutes to get £500 because pimps have access to this money and the only alternative would be imprisonment. We could talk about the revolving door in prisons but we will not get into that row. However, it would be unfortunate if these people were imprisoned. The Minister improved this legislation significantly in the Dáil, but we might reconsider this issue on the Committee Stage.
I do not know what our society is coming to. Last week the Seanad debated a Bill dealing with condoms and, at the same time, the Dáil was debating a Bill on homosexuality. Some of our founding fathers would find this difficult to come to terms with.
Several Members referred to the quality of young people and said they would be corrupted by these measures. As a parent — and I have said this in other debates relating to moral issues — the young people I meet, including my children and their friends, are more moral, caring and enlightened than we were at their age. We must support the youth. Not all of them are depraved and constantly drinking. Sometimes you would think we were rabbits. There seems to be a presumption in these debates that all people do all day is “bonk”. I apologise to the Chair for using such an offensive word. The majority of our young people are good, but those who are bad were not corrupted by homosexuals or prostitutes. They have been corrupted by other aspects of society.
If one picks up a newspaper, one may read about extremely violent cases relating to heterosexual activity, where men have been violent towards women. In recent weeks, some appalling cases have been reported in the newspapers. However, I have not read one case relating to homosexual activity. We must eliminate these myths that are being trotted out because there is a danger that such myths may be accepted as part of what is happening in society.
Senator Norris and those associated with him must be congratulated for their tenacity in bringing this case to the courts. For many weeks on the Order of Business Senator Norris reminded us of the need to introduce legislation to conform  with the judgment of the European Court of Human Rights. Senator Norris' actions have resulted in this legislation being introduced sooner than expected and he deserves our thanks.
Among the rights which society has is the right to impose what it believes is best for society. As a Christian and a practising Catholic it would be wrong for me to impose a confessional prespective on legislation. I must divorce the confessional aspect from my duties as a legislator and this is something we do not mind often enough when we legislate. We may have to confront more extreme and difficult demands in future. People have a right to happiness and homosexuals and lesbians have the same right to happiness as heterosexuals and they must not be discriminated against.
Senator Henry has given me a treatise entitled New Problems in Medical Ethics, written by Dom Peter Flood in 1953. The book contains an article on masturbation by Professeur J. G. Prick from the Clinque neuro-psychiatrique de Nimégue. I planned to elaborate on the contents of the article but knowing the sensitivity of Members I will refrain from doing so.
Minister for Justice (Mrs. Geoghegan-Quinn): Ba mhaith liom mo bhuíochas a ghlacadh leis na Seanadóirí a ghlac páirt sa díospóireacht as ucht na tacaíochta a thug siad dom féin go pearsanta agus don Bhille. Creidim gur lá tábhachtach é an lá inniú, agus b'fhéidir gur lá níos tábhachtaí é an lá ámarach, dóibh síud ar fad atá ag brath orainn mar Theachtaí Dála agus mar Sheanadóirí chun an rud ceart a dhéanamh thar a gceann.
I thank Senators who contributed to the debate and I am heartened to hear the considerable support for the proposals in the Bill. There has been a sincere desire by those who spoke, to extend a human right to people who have been the subject of unjustifiable limitation.
However, I was amused listening to Senator Enright chiding me for deliberately arranging to reduce the time for  debate on this Bill. I would remind Senator Enright that I was informed by the Leader of the House that we had from 2.30 p.m. until 8 p.m. to debate Second Stage. It is now only 5.50 p.m. While I do not wish to cast aspersions, only two Members of the Senator's party contributed to this debate. Senator Enright cannot blame me for curtailing the debate.
I regret that Senator Norris will not support the Bill on its Second Stage reading. As everybody has stated in this debate, and as I myself have stated, he has campaigned for a long time, through the Irish courts, through the European Court of Human Rights and in politics generally, to have homosexual acts decriminalised. I regret that because of the measures being taken to deal with prostitution he has taken this approach. I want to assure him that the measures to which he has taken exception were not introduced by me as part of any kind of tactical approach. They are there because, just as I believe that homosexual acts between men should not be subject to criminal sanctions, I believe as I said in my speech introducing the Bill this afternoon, that the criminal law must do what it can to protect prostitutes and people whose lives are affected by prostitution. The changes in the law in this area were recommended by the Law Reform Commission as were changes which directly affect Senator Norris.
I wish to turn to the Fine Gael amendment put down by Senator Neville and Senator Enright on the age of consent. I reiterate what I said in the Dáil on this and which I have taken the opportunity of saying publicly outside this House on the airwaves and elsewhere in the last week. When this issue went to Government I proposed that the age of consent should be a common age of consent. We must decide at what age a person can be said to possess the capacity to form a valid consent to have sexual relations with another person. The age settled upon, as we all know, in the case of heterosexual activity is 17. I do not think there is any logical reason for assuming  that, while persons aged 17 are capable of giving valid consent to heterosexual activity, persons of homosexual orientation do not acquire such capacity until they are older. Underlying any such proposition would be the idea that homosexual orientation carries with it the burdens of lack of maturity or lower intellect. There is no basis for any such assumptions. Not all individuals aged 17, as we all agree, are mature or capable of forming valid consent but this applies equally to homosexuals and heterosexuals. In either case the presumption of valid consent can be rebutted by references to the circumstances of the case.
I regret very much, and I said this in the Dáil, that Fine Gael would seek to end one form of inequality by introducing another form of inequality. There is nothing revolutionary in having a common age of consent. We should raise our sights for a moment — it is a pity we do not do it on a more regular basis — beyond our nearest neighbour in relation to legislation in this area. If we look at the common age of consent on the European mainland and, in particular, countries which have a very similar religious heritage to our own, we will see that in Italy it is 14, in France, Spain and Poland it is 15, in Portugal and Belgium it is 16; other countries with a common age of consent which is lower than 17 are Greece, the Netherlands and Denmark. I quote these countries because I want to prove and highlight the tolerant attitudes that have been adopted in other countries, apart from our nearest neighbour. It is important to point out that when the UK decriminalised homosexuality the age of majority was 21, and I suspect that is the reason the age of 21 was chosen as the age of consent.
The purpose of this Bill — many Senators have reiterated what I said in my opening remarks — is not the dismantling of our social fabric or, indeed, the promulgation of a new morality. We are seeking the removal of an unwarranted restriction on the basic rights of consenting adults in our community. They are now discriminated against by  virtue of the fact that their private sexual activities are criminalised.
I have been told, not in this House today but certainly in the other House last week and by letter, personal intervention and telephone calls to my home and my office in the past week, that in this legislation I am in some way giving a clear message, or a signal, that a practising homosexual lifestyle is “all right”. If one analyses this proposition it becomes very clear that it lacks substance because what it suggests to me and, I am sure, to any reasonable, caring person is that people who might have chosen either a life of chastity or a life of heterosexual union with another person will be swayed towards homosexuality simply because it has suddenly come to their notice that the age of consent for sexual relations is the same for both heterosexual and homosexual relations, or, to put it another way, that they would be less likely to become active homosexuals having established that the age of consent was a year or two or three years higher.
That idea is underpinned by what is no doubt a genuine lack of understanding of human nature because homosexuality does not become more or less attractive as an option simply because the age of consent for heterosexual relations is the same. No credibility attracts to the process of hinting vaguely about messages that might be sent to the public at large by virtue of the age coincidence of homosexual and heterosexual activity. What we need to do is to ask ourselves whether these notions have any basis in reality and in my view the answer is no.
Senator Ormonde referred to our obligations as a member of the Council of Europe. She was right when she said we cannot be a la carte members of the Council. We have to abide by the decision of the European Court of Human Rights. I welcome her support for the decriminalisation of adult homosexual acts on its own merits, as I proposed at the beginning.
Many Senators spoke of the concerns they had about the protection of those with mental impairment. This was certainly at the forefront of my thinking  during the discussion before this Bill was brought forward.
This Bill is about human rights. The sections dealing with prostitution are about the rights of women to be free from the harassment and fear of kerb crawling, to feel safe from being solicited and to know that not alone are they safe but that the law will respect their rights. Many Senators, particularly the women Senators, spoke very forcefully about these rights. In dealing with prostitution in this Bill I am concerned only with updating and strengthening certain aspects of the present laws. It was not my intention, as I said last week, to review in any comprehensive way all the offences relating to prostitution. The recent and very comprehensive report of the Second Commission on the Status of Women, which was referred to by a number of Senators, addresses among other things the situation of women involved in prostitution and recommends, as Senator Honan who was a member of the second commission pointed out, the adoption of an integrated approach involving the Departments of Health, Education and Justice. I have no difficulty with that recommendation. The Government, as the Senator knows, has already accepted the report in full and we are following up as part of the implementation of the report this specific recommendation.
However, I remind Senators that the commission did not, as it clearly could have, recommended the setting up of special committee or task force. It is not a matter for my Department alone, the issues referred to by Senator Honan and others are of concern primarily to the Department of Health. I am not persuaded, nor was I last week, by the arguments put forward that we should set up a special task force. The recommendations of the commission relating spefically to this area can be met by developing an integrated approach at an inter-departmental level.
I do not see any case for postponing the law reform measures proposed in the Bill. It is unlikely that any committee or task force on prostitution would recommend  that we sanction the activities of pimps, kerb crawlers and brothel keepers or dismantle the penalty structures proposed in the Bill. I have already accepted amendmends in the other House that provide a totally new penalty structure. That was based on strong cogent arguments by a number of Deputies last week, on the points made by Senator Henry and others, that women almost always become involved in prostitution through no fault of their own; that they have young families and need not just the protection of the law but a programme devised by the three Departments concerned to ensure they are adequately helped.
I can assure Senator Norris the provisions on prostitution are most definitely not included as a mere sop. Changes to the law are essential to deal with male prostitution, and with the clients of prostitutes and kerb crawlers. To describe this as an attack on vulnerable people is unfair. Most law-abiding people, for example, Senator Gallagher, and law-abiding women who has been accosted by kerb crawlers, would agree. It also protects prostitutes from exploitation by, for the first time, criminalising the activities of those who organise prostitution or compel or coerce vulnerable women to become prositutes. The prosecution provisions are in the Bill because they are needed, it is not because I am trying to provide a safe haven for myself, having proposed the ending of discrimination against homosexuality.
I had a very interesting weekend. In the Dáil last week I said Irish society had become more compassionate and tolerant in its attitudes and much more prepared to accept and respect difference. I have received many personal calls, telephone calls and many letters at my home and office at the weekend from those on both sides of the argument and the vast majority have been as described by Senator Norris, “generous, tolerant and compassionate”.
Yesterday between 10 p.m. and 11.30 p.m. I took my life in my hands and went on a programme on my local radio co-hosted  by two clergymen. We discussed social matters such as decriminalisation of homosexuality and many of the issues they might consider to be on a liberal agenda. One of the people was someone I have quoted at great length over the past five months, Father Colm Kilcoyne. He wrote a most compelling article in a Sunday newspaper some time ago on the area of homosexuality. I am not sure he was too impressed I was quoting him publicly but his article has an enormous effect on me in my early period as Minister for Justice when I was deciding the Department's priorities for legislation.
I am grateful to the various representative groups who came to see me since I became Minister for Justice. They put their case in a forthright and calm manner and I was impressed by all of them. Some were present in the Dáil last week and some are here again today. I saw not just members of the gay and lesbian community but also their parents, their families and friends. If, as I hope, the Seanad agrees to give this Bill a Second Reading it will have taken a postive step in moving social legislation in this State closer to the social realities of our age.
Mr. O'Kennedy: I appreciate the Bill has concluded Second Stage. The understanding was that the debate would continue until 8 p.m. I was informed of that yesterday when I inquired. I have just come from an Anglo-Irish inter-parliamentary meeting.
Mr. O'Kennedy: I am inquiring about the procedure. If there were not sufficient speakers offering on this important social legislation it speaks volumes about the awareness of the Seanad of such social issues.
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