Child Pornography
CHILD TRAFFICKING AND PORNOGRAPHY ACT 1998
REVISED
Updated to 21 May 2020
AN ACT TO PROHIBIT TRAFFICKING IN, OR THE USE OF, CHILDREN FOR THE PURPOSES OF THEIR SEXUAL EXPLOITATION AND THE PRODUCTION, DISSEMINATION, HANDLING OR POSSESSION OF CHILD PORNOGRAPHY, AND TO PROVIDE FOR RELATED MATTERS. [29th June, 1998]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Annotations
Editorial Notes:
E1
A number of Acts refer to offences under this Act as disqualifying or potentially disqualifying offences, or as otherwise meriting certain treatment. They include:
• Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 (4/2016), s. 5 and sch. 1 part 2 para. 17
• Taxi Regulation Act 2013 (37/2013), ss. 10, 30, 31 and sch. part 2 para. 5
• Children First Act 2015 (36/2015), s. 2 and sch. 3 para. 10 (included in definition of sexual abuse which is included in the definition of harm)
• Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 (24/2012), s. 2 and sch. 1 paras. 13 and 15(c)
• Criminal Procedure Act 2010 (27/2010), s. 7 and sch. para. 11 (for purposes of Part 3, included in definition of relevant offence)
• Children Act 2001 (24/2001), ss. 251, 253-257 and sch. 1 para. 9
• Sex Offenders Act 2001 (18/2001), s. 3 and sch. para. 16
• Bail Act 1997 (16/1997), s. 1 and sch. para. 12A (included in definition of serious offence)
• Sexual Offences (Jurisdiction) Act 1996 (38/1996), s. 2 and sch. paras. 9, 10 as inserted
• Civil Legal Aid Act 1995 (32/1995), s. 26 as amended by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 3
• Criminal Evidence Act 1992 (12/1992), s. 2 and Part III
Short title and commencement.
1.—(1) This Act may be cited as the Child Trafficking and Pornography Act, 1998.
(2) This Act shall come into operation one month after the date of its passing.
Interpretation.
2.—(1) In this Act, except where the context otherwise requires—
“audio representation” includes—
(a) any such representation by means of tape, computer disk or other thing from which such a representation can be produced, and
(b) any tape, computer disk or other thing on which any such representation is recorded;
F1[“child” means a person under the age of 18 years;]
“child pornography” means—
F2[(a) any visual representation—
(i) that shows, or in the case of a document relates to, a person who is or is depicted as being a child and who is engaged in or is depicted as being engaged in real or simulated sexually explicit activity,
(ii) that shows, or in the case of a document relates to, a person who is or is depicted as being a child and who is or is depicted as witnessing any such activity by any person or persons, or
(iii) that shows, for a sexual purpose, the genital or anal region of a child or of a person depicted as being a child,]
(b) any audio representation of a person who is or is represented as being a child and who is engaged in or is represented as being engaged in explicit sexual activity,
(c) any visual or audio representation that advocates, encourages or counsels any sexual activity with children which is an offence under any enactment, or
(d) any visual representation or description of, or information relating to, a child that indicates or implies that the child is available to be used for the purpose of sexual exploitation within the meaning of section 3,
irrespective of how or through what medium the representation, description or information has been produced, transmitted or conveyed and, without prejudice to the generality of the foregoing, includes any representation, description or information produced by or from computer-graphics or by any other electronic or mechanical means but does not include—
(I) any book or periodical publication which has been examined by the Censorship of Publications Board and in respect of which a prohibition order under the Censorship of Publications Acts, 1929 to 1967, is not for the time being in force,
(II) any film in respect of which a general certificate or a limited certificate under the Censorship of Films Acts, 1923 to 1992, is in force, or
(III) any video work in respect of which a supply certificate under the Video Recordings Acts, 1989 and 1992, is in force;
“document” includes—
(a) any book, periodical or pamphlet, and
(b) where appropriate, any tape, computer disk or other thing on which data capable of conversion into any such document is stored;
“photographic representation” includes the negative as well as the positive version;
“visual representation” includes—
(a) any photographic, film or video representation, any accompanying sound or any document,
(b) any copy of any such representation or document, and
(c) any tape, computer disk or other thing on which the visual representation and any accompanying sound are recorded.
(2) The reference in paragraph (a) of the definition of child pornography to a person shall be construed as including a reference to a figure resembling a person that has been generated or modified by computer-graphics or otherwise, and in such a case the fact, if it is a fact, that some of the principal characteristics shown are those of an adult shall be disregarded if the predominant impression conveyed is that the figure shown is a child.
(3) In any proceedings for an offence under section 3, 4, 5 or 6 a person shall be deemed, unless the contrary is proved, to be or have been a child, or to be or have been depicted or represented as a child, at any time if the person appears to the court to be or have been a child, or to be or have been so depicted or represented, at that time.
(4) For the purposes of this Act, except where the context otherwise requires—
(a) a reference to a section is to a section of this Act,
(b) a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs,
(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended, whether before or after the passing of this Act, by or under any subsequent enactment.
Annotations
Amendments:
F1
Substituted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 9(a), S.I. No. 112 of 2017.
F2
Substituted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 9(b), S.I. No. 112 of 2017.
Child trafficking and taking, etc., child for sexual exploitation.
3.—F3[(1) A person who trafficks a child for the purposes of the sexual exploitation of the child shall be guilty of an offence and shall be liable upon conviction on indictment—
(a) to imprisonment for life or a lesser term, and
(b) at the discretion of the court, to a fine.
(2) A person who—
(a) sexually exploits a child, or
(b) takes, detains, or restricts the personal liberty of, a child for the purpose of his or her sexual exploitation,
shall be guilty of an offence and shall be liable upon conviction on indictment—
(i) to imprisonment for life or a lesser term, and
(ii) at the discretion of the court, to a fine.]
(2A) F4[…]
(2B) F4[…]
F5[(3) A person who causes another person to commit an offence under subsection (1) or (2) shall be guilty of an offence and shall be liable upon conviction on indictment—
(a) to imprisonment for life or a lesser term, and
(b) at the discretion of the court, to a fine. ]
F6[(4) A person who attempts to commit an offence under subsection (1), (2) or (3) shall be guilty of an offence and shall be liable upon conviction on indictment—
(a) to imprisonment for life or a lesser term, and
(b) at the discretion of the court, to a fine.
(5) In this section—
“child” means a person under the age of 18 years;
F7[“sexual exploitation” means, in relation to a child—
(a) inviting, inducing or coercing the child to engage in prostitution or the production of child pornography,
(b) the prostitution of the child or the use of the child for the production of child pornography,
(c) the commission of an offence specified in the Schedule to the Sex Offenders Act 2001 against the child, causing another person to commit such an offence against the child, or inviting, inducing or coercing the child to commit such an offence against another person,
(d) inducing or coercing the child to engage or participate in any sexual, indecent or obscene act,
(e) inviting the child to engage or participate in any sexual, indecent or obscene act which, if done, would involve the commission of an offence against the child, or
(f) inviting, inducing or coercing the child to observe any sexual, indecent or obscene act, for the purpose of corrupting or depraving the child,
and “sexually exploits” shall be construed accordingly;]
“trafficks” means, in relation to a child—
(a) procures, recruits, transports or harbours the child, or—
(i) transfers the child to,
(ii) places the child in the custody, care or charge, or under the control, of, or
(iii) otherwise delivers the child to,
another person,
(b) causes the child to enter or leave the State or to travel within the State,
(c) takes custody of the child or takes the child—
(i) into one’s care or charge, or
(ii) under one’s control,
or
(d) provides the child with accommodation or employment.]
Annotations
Amendments:
F3
Substituted (7.06.2008) by Criminal Law (Human Trafficking) Act 2008 (8/2008), s. 3(a), commenced as per s. 15(2).
F4
Repealed (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 10(a) S.I. No. 112 of 2017.
F5
Substituted (7.06.2008) by Criminal Law (Human Trafficking) Act 2008 (8/2008), s. 3(b), commenced as per s. 15(2).
F6
Inserted (7.06.2008) by Criminal Law (Human Trafficking) Act 2008 (8/2008), s. 3(b), commenced as per s. 15(2).
F7
Substituted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 10(b) S.I. No. 112 of 2017.
Modifications (not altering text):
C1
Application of section extended (7.06.2008) by Criminal Law (Human Trafficking) Act 2008 (8/2008), s. 7, commenced on as per s. 15(2).
Jurisdiction.
7.— (1) Where a person who is an Irish citizen or ordinarily resident in the State does an act in a place other than the State that, if done in the State, would constitute an offence under section 2 or 4, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.
(2) Where a person does an act in relation to an Irish citizen in a place other than the State that, if done in the State, would constitute an offence under section 2 or 4, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.
(3) Where a person conspires with, or incites, in the State, another person to do an act in a place other than the State that, if done in the State, would constitute an offence under section 2 or 4, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.
(4) Where a person who is an Irish citizen or ordinarily resident in the State conspires with, or incites, in a place other than the State, another person to do an act in a place other than the State that, if done in the State, would constitute an offence under section 2 or 4, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.
(5) Where a person conspires with, or incites, in the State or in a place other than the State, another person to do an act in relation to an Irish citizen in a place other than the State that, if done in the State, would constitute an offence under section 2 or 4, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.
(6) Where a person conspires with, or incites, in a place other than the State, a person who is an Irish citizen or ordinarily resident in the State to do an act in a place other than the State that, if done in the State, would constitute an offence under section 2 or 4, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.
(7) Where a person attempts to commit an offence under subsection (1), (2), (3), (4), (5) or (6), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.
(8) For the purposes of this section a person shall be deemed to be ordinarily resident in the State if—
(a) he or she has had his or her principal residence in the State for the period of 12 months immediately preceding the alleged commission of the offence,
(b) it is a company registered under the Companies Acts, or
(c) in the case of any other body corporate, it is established under the law of the State.
Editorial Notes:
E2
Previous affecting provision: subss. (2A) and (2B) inserted (7.03.2007) by Criminal Law (Sexual Offences) (Amendment) Act 2007 (6/2007), s. 6(a), commenced on enactment; repealed as per F-note above.
E3
Previous affecting provision: subs. (3) substituted (7.03.2007) by Criminal Law (Sexual Offences) (Amendment) Act 2007 (6/2007), s. 6(b), commenced on enactment; substituted as per F-note above.
F8[
Aggravating factor: certain offences under section 3 committed by public official during performance of duties.
3A.— (1) Where a court is determining the sentence to be imposed on a person for an offence under section 3 (other than an offence under subsection (2A) or (2B) of that section), the fact that the offence was committed by a public official during the performance of his or her duties as such public official shall be treated for the purpose of determining the sentence as an aggravating factor.
(2) Accordingly, the court shall (except where the sentence for the offence is one of imprisonment for life or where the court considers that there are exceptional circumstances justifying its not doing so) impose a sentence that is greater than that which would have been imposed in the absence of such factor.
(3) The sentence imposed shall not be greater than the maximum sentence permissible for the offence.
(4) In this section—
“public body” shall be construed in accordance with the Ethics in Public Office Act 1995;
“public official” means an officer or employee of a public body.]
Annotations
Amendments:
F8
Inserted (9.08.2013) by Criminal Law (Human Trafficking) (Amendment) Act 2013 (24/2013), s. 3, commenced as per s. 5(2).
Allowing child to be used for child pornography.
4.—(1) Without prejudice to section 3, any person who, having the custody, charge or care of a child, allows the child to be used for the production of child pornography shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £25,000 or to imprisonment for a term not exceeding 14 years or both.
(2) For the purposes of this section—
(a) any person who is the parent or guardian of a child or who is liable to maintain a child shall be presumed to have the custody of the child and, as between parents, one parent shall not be deemed to have ceased to have the custody of the child by reason only that he or she has deserted, or does not reside with, the other parent and child,
(b) any person to whose charge a child is committed by any person who has the custody of the child shall be presumed to have charge of the child, and
(c) any person exercising authority over or having actual control of a child shall be presumed to have care of the child.
F9[
Organising etc. child prostitution or production of child pornography
4A. (1) A person who—
(a) controls or directs the activities of a child for the purposes of the prostitution of the child or the use of the child for the production of child pornography,
(b) organises the prostitution of children or the production of child pornography by controlling or directing the activities of more than one child for those purposes,
(c) compels, coerces or recruits a child to engage or participate in child prostitution or the production of child pornography,
(d) knowingly gains from the prostitution of a child or the production of child pornography, or
(e) incites or causes a child to become involved in child prostitution or production of child pornography,
shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 14 years or both.]
Annotations
Amendments:
F9
Inserted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s.11, S.I. No. 112 of 2017.
Modifications (not altering text):
C2
Application of section extended (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 42, S.I. No. 112 of 2017.
Jurisdiction
42. (1) Where a person who is an Irish citizen or ordinarily resident in the State does an act against a child in a place other than the State that, if done in the State, would constitute rape, sexual assault, an offence under section 4A, 5(1)(a) or 5A(1) of the Act of 1998, or an offence under section 2, 3 or 3A of the Act of 2006, he or she shall be guilty of that offence.
(2) Where a person conspires with, or incites, in the State, another person to do an act against a child in a place other than the State that, if done in the State, would constitute rape, sexual assault, an offence under section 4A, 5(1)(a) or 5A(1) of the Act of 1998, or an offence under section 2, 3 or 3A of the Act of 2006, he or she shall be guilty of an offence.
(3) Where a person who is an Irish citizen or ordinarily resident in the State conspires with, or incites, in a place other than the State, another person to do an act against a child in a place other than the State that, if done in the State, would constitute rape, sexual assault, an offence under section 4A, 5(1)(a) or 5A(1) of the Act of 1998, or an offence under section 2, 3 or 3A of the Act of 2006, he or she shall be guilty of an offence.
(4) Where a person attempts to commit an offence under subsection (2) or (3), he or she shall be guilty of an offence.
(5) A person found guilty of an offence under this section shall be liable on conviction to the penalty to which he or she would have been liable had the act that constituted the offence been done in the State.
(6) For the purposes of this section a person shall be deemed to be ordinarily resident in the State if—
(a) he or she has had his or her principal residence in the State for the period of 12 months immediately preceding the alleged commission of the offence,
(b) it is a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act, or
(c) in the case of any other body corporate, it is established under the law of the State.
Producing, distributing, etc., child pornography.
F10[5. (1) Subject to subsections (3) and (4) of section 6, a person who—
(a) knowingly produces any child pornography,
(b) knowingly distributes, transmits, disseminates, prints or publishes any child pornography,
(c) knowingly imports, exports, sells or shows any child pornography,
(d) knowingly supplies or makes available any child pornography to another person,
(e) knowingly publishes, distributes, transmits or disseminates any advertisement likely to be understood as conveying that the advertiser or any other person produces, distributes, transmits, disseminates, prints, publishes, imports, exports, sells, shows, supplies or makes available any child pornography,
(f) encourages, knowingly causes or facilitates any activity mentioned in paragraphs (a) to (e), or
(g) knowingly possesses any child pornography for the purpose of distributing, transmitting, disseminating, publishing, exporting, selling or showing it,
shall be guilty of an offence and shall be liable—
(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(ii) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years or both.
(2) A person who attempts to commit an offence under subsection (1) shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years or both.
(3) In this section “distributes”, “transmits“ or “disseminates”, in relation to child pornography, includes parting with possession of it to, or exposing or offering it for acquisition by, another person, and the references to “distributing”, “transmitting” and “disseminating” in that context shall be construed accordingly.]
Annotations
Amendments:
F10
Substituted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 12, S.I. No. 112 of 2017.
Modifications (not altering text):
C3
Application of subs. (1)(a) extended (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 42, S.I. No. 112 of 2017.
Jurisdiction
42. (1) Where a person who is an Irish citizen or ordinarily resident in the State does an act against a child in a place other than the State that, if done in the State, would constitute rape, sexual assault, an offence under section 4A, 5(1)(a) or 5A(1) of the Act of 1998, or an offence under section 2, 3 or 3A of the Act of 2006, he or she shall be guilty of that offence.
(2) Where a person conspires with, or incites, in the State, another person to do an act against a child in a place other than the State that, if done in the State, would constitute rape, sexual assault, an offence under section 4A, 5(1)(a) or 5A(1) of the Act of 1998, or an offence under section 2, 3 or 3A of the Act of 2006, he or she shall be guilty of an offence.
(3) Where a person who is an Irish citizen or ordinarily resident in the State conspires with, or incites, in a place other than the State, another person to do an act against a child in a place other than the State that, if done in the State, would constitute rape, sexual assault, an offence under section 4A, 5(1)(a) or 5A(1) of the Act of 1998, or an offence under section 2, 3 or 3A of the Act of 2006, he or she shall be guilty of an offence.
(4) Where a person attempts to commit an offence under subsection (2) or (3), he or she shall be guilty of an offence.
(5) A person found guilty of an offence under this section shall be liable on conviction to the penalty to which he or she would have been liable had the act that constituted the offence been done in the State.
(6) For the purposes of this section a person shall be deemed to be ordinarily resident in the State if—
(a) he or she has had his or her principal residence in the State for the period of 12 months immediately preceding the alleged commission of the offence,
(b) it is a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act, or
(c) in the case of any other body corporate, it is established under the law of the State.
F11[
Participation of child in pornographic performance
5A. (1) A person who—
(a) causes, incites, compels or coerces, or
(b) recruits, invites or induces,
a child to participate in a pornographic performance, or gains from such participation, shall be guilty of an offence.
(2) A person who attempts to commit an offence under subsection (1) shall be guilty of an offence.
(3) A person guilty of an offence under subsection (1) or (2) shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.
(4) A person who knowingly attends a pornographic performance shall be guilty of an offence.
(5) A person guilty of an offence under subsection (4) shall be liable—
(a) on summary conviction, to a class A fine, or imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 10 years, or both.
(6) In this section—
“attends a pornographic performance” includes viewing the performance by means of information and communication technology,
“pornographic performance” means a live exhibition aimed at an audience, including by means of information and communication technology, of—
(a) a child engaged in real or simulated sexually explicit activity, or
(b) the sexual organs of a child for primarily sexual purposes.]
Annotations
Amendments:
F11
Inserted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 13, S.I. No. 112 of 2017.
Modifications (not altering text):
C4
Application of subs. (1) extended (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 42, S.I. No. 112 of 2017.
Jurisdiction
42. (1) Where a person who is an Irish citizen or ordinarily resident in the State does an act against a child in a place other than the State that, if done in the State, would constitute rape, sexual assault, an offence under section 4A, 5(1)(a) or 5A(1) of the Act of 1998, or an offence under section 2, 3 or 3A of the Act of 2006, he or she shall be guilty of that offence.
(2) Where a person conspires with, or incites, in the State, another person to do an act against a child in a place other than the State that, if done in the State, would constitute rape, sexual assault, an offence under section 4A, 5(1)(a) or 5A(1) of the Act of 1998, or an offence under section 2, 3 or 3A of the Act of 2006, he or she shall be guilty of an offence.
(3) Where a person who is an Irish citizen or ordinarily resident in the State conspires with, or incites, in a place other than the State, another person to do an act against a child in a place other than the State that, if done in the State, would constitute rape, sexual assault, an offence under section 4A, 5(1)(a) or 5A(1) of the Act of 1998, or an offence under section 2, 3 or 3A of the Act of 2006, he or she shall be guilty of an offence.
(4) Where a person attempts to commit an offence under subsection (2) or (3), he or she shall be guilty of an offence.
(5) A person found guilty of an offence under this section shall be liable on conviction to the penalty to which he or she would have been liable had the act that constituted the offence been done in the State.
(6) For the purposes of this section a person shall be deemed to be ordinarily resident in the State if—
(a) he or she has had his or her principal residence in the State for the period of 12 months immediately preceding the alleged commission of the offence,
(b) it is a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act, or
(c) in the case of any other body corporate, it is established under the law of the State.
Possession of child pornography.
F12[6. (1) Without prejudice to section 5(1)(g) and subject to subsections (3) and (4), any person who—
(a) knowingly acquires or possesses child pornography, or
(b) knowingly obtains access to child pornography by means of information and communication technology,
shall be guilty of an offence and shall be liable—
(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(ii) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.
(2) Any person who attempts to commit an offence under subsection (1) shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.
(3) Subsections (1) and (2) of section 5 and subsections (1) and (2) shall not apply to a person who possesses or obtains access to child pornography—
(a) in the exercise of functions under the Censorship of Films Acts 1923 to 1992, the Censorship of Publications Acts 1929 to 1967, or the Video Recordings Acts 1989 and 1992, or
(b) for the purpose of the prevention, investigation or prosecution of offences under this Act.
(4) Without prejudice to subsection (3), it shall be a defence in a prosecution for an offence under section 5(1) or (2) or this section for the accused to prove that he or she possessed or obtained access to the child pornography concerned for the purposes of bona fide research.]
Annotations
Amendments:
F12
Substituted (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (2/2017), s. 14, S.I. No. 112 of 2017.
Entry, search and seizure.
7.—(1) Where, on the sworn information of a member of the Garda Síochána not below the rank of sergeant, a judge of the District Court is satisfied that there are reasonable grounds for suspecting that evidence of or relating to an offence under section 3, 4, 5 or 6 is to be found at a place specified in the information, the judge may issue a warrant for the search of that place and any persons found at that place.
(2) A warrant issued under this section shall authorise a named member of the Garda Síochána, alone or accompanied by such other members of the Garda Síochána and such other persons as may be necessary—
(a) to enter, within 7 days from the date of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,
(b) to search it and any persons found there, and
(c) to seize anything found there, or anything found in the possession of a person present there at the time of the search, which that member reasonably believes to be evidence of or relating to an offence under section 3, 4, 5 or 6.
(3) A member of the Garda Síochána acting in accordance with a warrant issued under this section may require any person found at the place where the search is carried out to give the member his or her name and address.
(4) Any person who—
(a) obstructs or attempts to obstruct any member of the Garda Síochána acting in accordance with a warrant issued under subsection (1),
(b) fails or refuses to comply with a requirement under this section, or
(c) gives a name or address which is false or misleading,
shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or both.
(5) A member of the Garda Síochána may arrest without warrant any person whom the member suspects of having committed an offence under subsection (4).
(6) In this section “place” includes any dwelling, any building or part of a building and any vehicle, vessel or structure.
Forfeiture.
8.—(1) The court by or before which a person is convicted of an offence under section 3, 4, 5 or 6 may order—
(a) anything seized pursuant to section 7, or
(b) anything shown to the satisfaction of the court to relate to the offence,
to be forfeited and either destroyed or otherwise disposed of in such manner as the court may determine.
(2) A court shall not order anything to be forfeited under this section if a person claiming to be the owner of it or otherwise interested in it applies to be heard by the court, unless the opportunity has been given to him or her to show cause why the order should not be made.
(3) An order under this section shall not take effect until the ordinary time for instituting an appeal against the conviction or order concerned has expired or, where such an appeal is instituted, until it or any further appeal is finally decided or abandoned or the ordinary time for instituting any further appeal has expired.
Offences by bodies corporate.
9.—(1) Where an offence under section 3, 4, 5 or 6 is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person, being a director, manager, secretary or other similar officer of such body or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member of that body in connection with the member’s functions of management as if he or she were a director or manager of it.
Amendment of Criminal Evidence Act, 1992.
10.—The Criminal Evidence Act, 1992, is hereby amended in section 12—
(a) by the deletion of “or” in paragraph (b) where it last occurs and by the substitution of “paragraph (a) or (b), or” for “paragraph (a) or (b).” in paragraph (c), and
(b) by the insertion of the following paragraph after paragraph (c):
“(d) an offence under section 3, 4, 5 or 6 of the Child Trafficking and Pornography Act, 1998.”.
Amendment of Sexual Offences (Jurisdiction) Act, 1996.
11.—The Sexual Offences (Jurisdiction) Act, 1996, is hereby amended in the Schedule thereto by the insertion of the following paragraphs after paragraph 9:
“10. Section 3 of the Child Trafficking and Pornography Act, 1998.
11. Section 4 of the Child Trafficking and Pornography Act, 1998.”.
Amendment of Bail Act, 1997.
12.—The Bail Act, 1997, is hereby amended in the Schedule thereto by the insertion of the following paragraph after paragraph 12:
“12A. Any offence under the following provisions of the Child Trafficking and Pornography Act, 1998—
(a) section 3 (child trafficking and taking, etc., child for sexual exploitation);
(b) section 5 (producing, distributing, etc., child pornography).”.
F13[Houses of the Oireachtas.
13.—Nothing in this Act prevents—
(a) the giving of or compliance with a direction under F14[section 67 or 83 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013], or
(b) the possession, distribution, printing, publication or showing by either House of the Oireachtas, a committee (within the meaning of that Act) or any person of child pornography for the purposes of, or in connection with, the performance of any function conferred by the Constitution or by law on those Houses or conferred by a resolution of either of those Houses or resolutions of both of them on such a committee.]
Annotations
Amendments:
F13
Inserted (2.06.2004) by Child Trafficking and Pornography (Amendment) Act 2004 (17/2004), s. 1, commenced on enactment.
F14
Substituted (25.09.2013) by Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 (33/2013), s. 131, S.I. No. 362 of 2013.
Editorial Notes:
E4
The section heading is taken from the contents of the section in the absence of one included in the amendment.
CHILD TRAFFICKING AND PORNOGRAPHY (AMENDMENT) ACT 2004
AN ACT TO AMEND THE CHILD TRAFFICKING AND PORNOGRAPHY ACT 1998 AND TO PROVIDE FOR RELATED MATTERS.
[2nd June, 2004]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Amendment of Child Trafficking and Pornography Act 1998.
1.—The Child Trafficking and Pornography Act 1998 is amended by inserting the following section after section 12:
“13.—Nothing in this Act prevents—
(a) the giving of or compliance with a direction under section 3 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 , or
(b) the possession, distribution, printing, publication or showing by either House of the Oireachtas, a committee (within the meaning of that Act) or any person of child pornography for the purposes of, or in connection with, the performance of any function conferred by the Constitution or by law on those Houses or conferred by a resolution of either of those Houses or resolutions of both of them on such a committee.”.
Short title and collective citation.
2.—(1) This Act may be cited as the Child Trafficking and Pornography (Amendment) Act 2004.
(2) The Child Trafficking and Pornography Act 1998 and this Act may be cited as the Child Trafficking and Pornography Acts 1998 to 2004.
CRIMINAL LAW (SEXUAL OFFENCES) ACT 2017
REVISED
Updated to 3 May 2023
An Act to give effect to Directive No. 2011/93/EU of the European Parliament and of the Council of 13 December 20111 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA, for that purpose to amend certain enactments; to amend the Punishment of Incest Act 1908; to amend the Criminal Evidence Act 1992; to repeal certain provisions of the Criminal Law (Sexual Offences) Act 1993; to repeal the Criminal Law (Incest Proceedings) Act 1995; to amend the Criminal Law (Sexual Offences) Act 2006; to provide for offences relating to sexual acts with protected persons and relating to payment for sexual activity with prostitutes, offensive conduct of a sexual nature and harassment of victims of sexual offences; and to provide for related matters.
[22nd February, 2017]
Be it enacted by the Oireachtas as follows:
PART 1
Preliminary and General
Short title and commencement
1. (1) This Act may be cited as the Criminal Law (Sexual Offences) Act 2017.
(2) This Act shall come into operation on such day or days as the Minister for Justice and Equality may appoint by order or orders whether generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
Annotations
Editorial Notes:
E1
Power pursuant to section exercised (2.09.2019) by Criminal Law (Sexual Offences) Act 2017 (Part 5) (Commencement) Order 2019 (S.I. No. 434 of 2019). Part 5 contains ss. 28-32.
2. The 2nd day of September 2019 is appointed as the day on which Part 5 of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017) shall come into operation.
E2
Power pursuant to subs. (2) exercised (30.05.2018) by Criminal Law (Sexual Offences) Act 2017 (Commencement) (No. 2) Order 2018 (S.I. No. 172 of 2018).
2. The 30th day of May 2018 is appointed as the day on which the following provisions of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017) shall come into operation:
(a) section 33;
(b) section 34;
(c) section 35;
(d) section 36 insofar as it inserts section 14C in the Criminal Evidence Act 1992 (no. 12 of 1992);
(e) section 37;
(f) section 39;
(g) section 40.
E3
Power pursuant to subs. (2) exercised (26.02.2018) by Criminal Law (Sexual Offences) Act 2017 (Commencement) Order 2018 (S.I. No. 45 of 2018).
2. The 26th day of February 2018 is appointed as the day on which sections 46, 47, and 51(b) of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017) shall come into operation.
E4
Power pursuant to subs. (2) exercised (27.03.2017) by Criminal Law (Sexual Offences) Act 2017 (Commencement) Order 2017 (S.I. No. 112 of 2017).
2. The 27th day of March 2017 is appointed as the day on which Parts 1, 2, 3, 4, 7 and 8 (other than sections 46, 47, 51(b) and 52) of the Criminal Law (Sexual Offences) Act 2017 (No. 2 of 2017) shall come into operation.
Interpretation
2. In this Act—
“Act of 1908” means the Punishment of Incest Act 1908;
“Act of 1981” means the Criminal Law (Rape) Act 1981;
“Act of 1990” means the Criminal Law (Rape) (Amendment) Act 1990;
“Act of 1992” means the Criminal Evidence Act 1992;
“Act of 1993” means the Criminal Law (Sexual Offences) Act 1993;
“Act of 1995” means the Criminal Law (Incest Proceedings) Act 1995;
“Act of 1998” means the Child Trafficking and Pornography Act 1998;
“Act of 2001” means the Sex Offenders Act 2001;
“Act of 2006” means the Criminal Law (Sexual Offences) Act 2006;
“Act of 2008” means the Criminal Law (Human Trafficking) Act 2008;
“image” means any photographic, film or video representation or any other form of visual representation, and any accompanying sound or any documents;
“sexual activity” means any activity where a reasonable person would consider that—
(a) whatever its circumstances or the purpose of any person in relation to it, the activity is because of its nature sexual, or
(b) because of its nature the activity may be sexual and because of its circumstances or the purposes of any person in relation to it (or both) the activity is sexual;
“sexual exploitation” means, in relation to a child—
(a) inviting, inducing or coercing the child to engage in prostitution or the production of child pornography,
(b) the prostitution of the child or the use of the child for the production of child pornography,
(c) the commission of an offence specified in the Schedule to the Act of 2001 against the child, causing another person to commit such an offence against the child, or inviting, inducing or coercing the child to commit such an offence against another person,
(d) inducing or coercing the child to engage or participate in any sexual, indecent or obscene act,
(e) inviting the child to engage or participate in any sexual, indecent or obscene act which, if done, would involve the commission of an offence against the child, or
(f) inviting, inducing or coercing the child to observe any sexual, indecent or obscene act, for the purpose of corrupting or depraving the child.
PART 2
Sexual Exploitation of Children
Obtaining, providing etc. a child for purpose of sexual exploitation
3. (1) A person who for the purposes of the sexual exploitation of a child—
(a) pays, gives, offers or promises to pay or give a child or another person money or any other form of remuneration or consideration,
(b) provides or offers or offers or promises to provide, a child to another person, or
(c) obtains a child for himself or herself or for another person,
shall be guilty of an offence.
(2) A person (other than the child) who accepts or agrees to accept money or any other form of remuneration or consideration in the circumstances referred to in subsection (1)(a) or accepts or agrees to accept a child in the circumstances referred to in subsection (1)(b) or (1)(c) shall be guilty of an offence.
(3) A person who causes an offence under subsection (1) or (2) to be committed shall be guilty of an offence.
(4) A person who attempts to commit an offence under subsection (1), (2) or (3) shall be guilty of an offence.
(5) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a class A fine, or imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 10 years, or both.
(6) In this section “child” means a person under the age of 18 years.
Annotations:
Modifications (not altering text):
C1
A class A fine means a fine not greater than €5,000 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 4(1), S.I. No. 662 of 2010.
Invitation etc. to sexual touching
4. (1) A person who, for sexual purposes, invites, induces, counsels or incites a child to touch, with a part of the body or with an object, the body of any person, including the body of the person who so invites, induces, counsels or incites and the body of the child, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.
(2) In this section “child” means a person under the age of 15 years.
Sexual activity in presence of child
5. (1) A person who, for the purpose of obtaining sexual gratification from the presence of a child or corrupting or depraving a child, intentionally engages in sexual activity whether or not with another person—
(a) when the child is present or in a place from which the person can be observed by the child, and
(b) knowing or believing that the child is aware, or intending that the child should be aware, that the person is engaging in sexual activity,
shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.
(2) In this section “child” means a person under the age of 17 years.
Causing child to watch sexual activity
6. (1) A person who, for the purpose of obtaining sexual gratification or corrupting or depraving a child, intentionally causes a child—
(a) to watch another person engaging in sexual activity, or
(b) to look at an image of that person or another person engaging in sexual activity,
shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.
(2) In this section “child” means a person under the age of 17 years.
Meeting child for purpose of sexual exploitation
7. (1) A person who—
(a) intentionally meets, or travels with the intention of meeting a child or makes arrangements with the intention of meeting a child or for a child to travel, whether or not from within the State, having communicated by any means with that child on at least one previous occasion, and
(b) does so for the purpose of doing anything that would constitute sexual exploitation of the child,
shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.
(3) In this section “child” means a person under the age of 17 years.
Use of information and communication technology to facilitate sexual exploitation of child
8. (1) A person who by means of information and communication technology communicates with another person (including a child) for the purpose of facilitating the sexual exploitation of a child by that person or any other person shall be guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding 14 years.
(2) A person who by means of information and communication technology sends sexually explicit material to a child shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.
(3) No proceedings for an offence under this section against a child under the age of 17 years shall be brought except by, or with the consent of, the Director of Public Prosecutions.
(4) In this section “sexually explicit material” means any indecent or obscene images or words.
(5) In this section “child” means a person under the age of 17 years.
Annotations:
Modifications (not altering text):
C2
A class A fine means a fine not greater than €5,000 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 4(1), S.I. No. 662 of 2010.
Amendment of section 2 of Act of 1998
9. Section 2(1) of the Act of 1998 is amended—
(a) by the substitution of the following definition for the definition of “child”:
“ ‘child’ means a person under the age of 18 years;”,
and
(b) by the substitution of the following paragraph for paragraph (a) of the definition of “child pornography”:
“(a) any visual representation—
(i) that shows, or in the case of a document relates to, a person who is or is depicted as being a child and who is engaged in or is depicted as being engaged in real or simulated sexually explicit activity,
(ii) that shows, or in the case of a document relates to, a person who is or is depicted as being a child and who is or is depicted as witnessing any such activity by any person or persons, or
(iii) that shows, for a sexual purpose, the genital or anal region of a child or of a person depicted as being a child,”.
Amendment of section 3 of Act of 1998
10. Section 3 of the Act of 1998 is amended—
(a) by the repeal of subsections (2A) and (2B), and
(b) in subsection (5), by the substitution of the following definition for the definition of “sexual exploitation”:
“ ‘sexual exploitation’ means, in relation to a child—
(a) inviting, inducing or coercing the child to engage in prostitution or the production of child pornography,
(b) the prostitution of the child or the use of the child for the production of child pornography,
(c) the commission of an offence specified in the Schedule to the Sex Offenders Act 2001 against the child, causing another person to commit such an offence against the child, or inviting, inducing or coercing the child to commit such an offence against another person,
(d) inducing or coercing the child to engage or participate in any sexual, indecent or obscene act,
(e) inviting the child to engage or participate in any sexual, indecent or obscene act which, if done, would involve the commission of an offence against the child, or
(f) inviting, inducing or coercing the child to observe any sexual, indecent or obscene act, for the purpose of corrupting or depraving the child,
and ‘sexually exploits’ shall be construed accordingly;”.
Organising etc. child prostitution or production of child pornography
11. The Act of 1998 is amended by the insertion of the following section after section 4:
“4A. (1) A person who—
(a) controls or directs the activities of a child for the purposes of the prostitution of the child or the use of the child for the production of child pornography,
(b) organises the prostitution of children or the production of child pornography by controlling or directing the activities of more than one child for those purposes,
(c) compels, coerces or recruits a child to engage or participate in child prostitution or the production of child pornography,
(d) knowingly gains from the prostitution of a child or the production of child pornography, or
(e) incites or causes a child to become involved in child prostitution or production of child pornography,
shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 14 years or both.”.
Producing, distributing, etc. child pornography
12. The Act of 1998 is amended by the substitution of the following section for section 5:
“5. (1) Subject to subsections (3) and (4) of section 6, a person who—
(a) knowingly produces any child pornography,
(b) knowingly distributes, transmits, disseminates, prints or publishes any child pornography,
(c) knowingly imports, exports, sells or shows any child pornography,
(d) knowingly supplies or makes available any child pornography to another person,
(e) knowingly publishes, distributes, transmits or disseminates any advertisement likely to be understood as conveying that the advertiser or any other person produces, distributes, transmits, disseminates, prints, publishes, imports, exports, sells, shows, supplies or makes available any child pornography,
(f) encourages, knowingly causes or facilitates any activity mentioned in paragraphs (a) to (e), or
(g) knowingly possesses any child pornography for the purpose of distributing, transmitting, disseminating, publishing, exporting, selling or showing it,
shall be guilty of an offence and shall be liable—
(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(ii) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years or both.
(2) A person who attempts to commit an offence under subsection (1) shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 14 years or both.
(3) In this section ‘distributes’, ‘transmits’ or ‘disseminates’, in relation to child pornography, includes parting with possession of it to, or exposing or offering it for acquisition by, another person, and the references to ‘distributing’, ‘transmitting’ and ‘disseminating’ in that context shall be construed accordingly.”.
Participation of child in pornographic performance
13. The Act of 1998 is amended by the insertion of the following section after section 5:
“5A. (1) A person who—
(a) causes, incites, compels or coerces, or
(b) recruits, invites or induces,
a child to participate in a pornographic performance, or gains from such participation, shall be guilty of an offence.
(2) A person who attempts to commit an offence under subsection (1) shall be guilty of an offence.
(3) A person guilty of an offence under subsection (1) or (2) shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.
(4) A person who knowingly attends a pornographic performance shall be guilty of an offence.
(5) A person guilty of an offence under subsection (4) shall be liable—
(a) on summary conviction, to a class A fine, or imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 10 years, or both.
(6) In this section—
‘attends a pornographic performance’ includes viewing the performance by means of information and communication technology,
‘pornographic performance’ means a live exhibition aimed at an audience, including by means of information and communication technology, of—
(a) a child engaged in real or simulated sexually explicit activity, or
(b) the sexual organs of a child for primarily sexual purposes.”.
Possession of child pornography
14. The Act of 1998 is amended by the substitution of the following for section 6:
“6. (1) Without prejudice to section 5(1)(g) and subject to subsections (3) and (4), any person who—
(a) knowingly acquires or possesses child pornography, or
(b) knowingly obtains access to child pornography by means of information and communication technology,
shall be guilty of an offence and shall be liable—
(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(ii) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.
(2) Any person who attempts to commit an offence under subsection (1) shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.
(3) Subsections (1) and (2) of section 5 and subsections (1) and (2) shall not apply to a person who possesses or obtains access to child pornography—
(a) in the exercise of functions under the Censorship of Films Acts 1923 to 1992, the Censorship of Publications Acts 1929 to 1967, or the Video Recordings Acts 1989 and 1992, or
(b) for the purpose of the prevention, investigation or prosecution of offences under this Act.
(4) Without prejudice to subsection (3), it shall be a defence in a prosecution for an offence under section 5(1) or (2) or this section for the accused to prove that he or she possessed or obtained access to the child pornography concerned for the purposes of bona fide research.”.
Amendment of section 1 of Act of 2006
15. Section 1 of the Act of 2006 is amended—
(a) by the substitution of the following definition for the definition of “person in authority”:
“ ‘person in authority’, in relation to a child against whom an offence is alleged to have been committed, means—
(a) a parent, grandparent, uncle or aunt whether of the whole blood, of the half blood or by affinity of the child,
(b) a current or former guardian or foster parent of the child,
(c) a current or former step-parent of the child,
(d) a current or former partner of a parent of the child who lives or has lived in an enduring family relationship with the parent,
(e) any person who is for the time being, or has been, in loco parentis to the child, or
(f) any other person who is or has been responsible for the education, supervision, training, care or welfare of the child;”,
and
(b) by the insertion of the following definition:
“ ‘foster parent’ means a person other than a relative of a child who is caring for the child on behalf of the Child and Family Agency in accordance with regulations made under the Child Care Act 1991;”.
Sexual act with child under 15 years of age
16. The Act of 2006 is amended by the substitution of the following section for section 2:
“2. (1) A person who engages in a sexual act with a child who is under the age of 15 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.
(2) A person who attempts to engage in a sexual act with a child who is under the age of 15 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.
(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 15 years.
(4) Where, in proceedings for an offence under this section, it falls to the court to consider whether the defendant was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 15 years, the court shall consider whether, in all the circumstances of the case, a reasonable person would have concluded that the child had attained the said age.
(5) The standard of proof required to prove that the defendant was reasonably mistaken that the child had attained the age of 15 years shall be that applicable to civil proceedings.
(6) It shall not be a defence to proceedings for an offence under this section for the defendant to prove that the child against whom the offence is alleged to have been committed consented to the sexual act of which the offence consisted.”.
Sexual act with child under 17 years of age
17. The Act of 2006 is amended by the substitution of the following section for section 3:
“3. (1) A person who engages in a sexual act with a child who is under the age of 17 years shall be guilty of an offence and shall be liable on conviction on indictment—
(a) to imprisonment for a term not exceeding 7 years, or
(b) if he or she is a person in authority, to imprisonment for a term not exceeding 15 years.
(2) A person who attempts to engage in a sexual act with a child who is under the age of 17 years shall be guilty of an offence and shall be liable on conviction on indictment—
(a) to imprisonment for a term not exceeding 7 years, or
(b) if he or she is a person in authority, to imprisonment for a term not exceeding 15 years.
(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years.
(4) Where, in proceedings for an offence under this section, it falls to the court to consider whether the defendant was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years, the court shall consider whether, in all the circumstances of the case, a reasonable person would have concluded that the child had attained the said age.
(5) The standard of proof required to prove that the defendant was reasonably mistaken that the child had attained the age of 17 years shall be that applicable to civil proceedings.
(6) Subject to subsection (8), it shall not be a defence to proceedings for an offence under this section for the defendant to prove that the child against whom the offence is alleged to have been committed consented to the sexual act of which the offence consisted.
(7) No proceedings for an offence under this section against a child under the age of 17 years shall be brought except by, or with the consent of, the Director of Public Prosecutions.
(8) Where, in proceedings for an offence under this section against a child who at the time of the alleged commission of the offence had attained the age of 15 years but was under the age of 17 years, it shall be a defence that the child consented to the sexual act of which the offence consisted where the defendant—
(a) is younger or less than 2 years older than the child,
(b) was not, at the time of the alleged commission of the offence, a person in authority in respect of the child, and
(c) was not, at the time of the alleged commission of the offence, in a relationship with the child that was intimidatory or exploitative of the child.”.
Offence by person in authority
18. The Act of 2006 is amended by the insertion of the following section after section 3:
“3A. (1) A person in authority who engages in a sexual act with a child who has attained the age of 17 years but is under the age of 18 years shall be guilty of an offence.
(2) A person who attempts to commit an offence under subsection (1) shall be guilty of an offence.
(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 18 years.
(4) Where, in proceedings for an offence under this section, it falls to the court to consider whether the defendant was reasonably mistaken that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 18 years, the court shall consider whether, in all the circumstances of the case, a reasonable person would have concluded that the child had attained that age.
(5) The standard of proof required to prove that the defendant was reasonably mistaken that the child had attained the age of 18 years shall be that applicable to civil proceedings.
(6) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she has reasonable grounds for believing that he or she was not a person in authority in relation to the child against whom the offence is alleged to have been committed.
(7) It shall not be a defence to proceedings for an offence under this section for the defendant to prove that the child against whom the offence is alleged to have been committed consented to the sexual act of which the offence consisted.
(8) A person guilty of an offence under this section shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.”.
Amendment of section 8 of Act of 1990
19. Section 8 of the Act of 1990 is amended—
(a) in subsection (2), by—
(i) the substitution of “section 2, 3 or 3A of the Criminal Law (Sexual Offences) Act 2006” for “section 2 or 3 of the Criminal Law (Sexual Offences) Act 2006”, and
(ii) the substitution of “the said section 3 or section 2, 3 or 3A of the Criminal Law (Sexual Offences) Act 2006” for the “the said section 1, 2 or 3”,
and
(b) in subsection (5), by—
(i) the substitution of “section 3 or 3A of the Criminal Law (Sexual Offences) Act 2006” for “section 3 of the Criminal Law (Sexual Offences) Act 2006”, and
(ii) the substitution of “the said section 3 or section 3 or 3A of the Criminal Law (Sexual Offences) Act 2006,” for “the said section 3 or section 3 of the Criminal Law (Sexual Offences) Act 2006,”.
PART 3
Sexual Act with Protected Persons
Definitions
20. In this Part—
“sexual act” means—
(a) an act consisting of—
(i) sexual intercourse, or
(ii) buggery,
(b) an act described in section 3(1) or 4(1) of the Act of 1990, or
(c) an act which if done without consent would constitute a sexual assault;
“sexual intercourse” shall be construed in accordance with section 1(2) of the Act of 1981.
Sexual act with protected person
21. (1) A person who engages in a sexual act with a protected person knowing that that person is a protected person or being reckless as to whether that person is a protected person shall be guilty of an offence.
(2) A person who invites, induces, counsels or incites a protected person to engage in a sexual act knowing that that person is a protected person or being reckless as to whether that person is a protected person shall be guilty of an offence.
(3) In proceedings for an offence under this section, it shall be presumed, unless the contrary is shown, that the defendant knew or was reckless as to whether the person against whom the offence is alleged to have been committed was a protected person.
(4) A person guilty of an offence under subsection (1) where the sexual act consisted of sexual intercourse, buggery or an act described in section 3(1) or 4(1) of the Act of 1990 shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.
(5) A person guilty of an offence under subsection (1) where the sexual act consisted of an act which if done without consent would constitute a sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.
(6) A person guilty of an offence under subsection (2) shall be liable, on conviction on indictment, to imprisonment for a term not exceeding 10 years.
(7) For the purposes of this section, a person lacks the capacity to consent to a sexual act if he or she is, by reason of a mental or intellectual disability or a mental illness, incapable of—
(a) understanding the nature, or the reasonably foreseeable consequences, of that act,
(b) evaluating relevant information for the purposes of deciding whether or not to engage in that act, or
(c) communicating his or her consent to that act by speech, sign language or otherwise,
and, in this section, such a person is referred to as a “protected person”.
Offence against relevant person by person in authority
22. (1) A person in authority who engages in a sexual act with a relevant person shall be guilty of an offence.
(2) A person in authority who invites, induces, counsels or incites a relevant person to engage in a sexual act shall be guilty of an offence.
(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she was reasonably mistaken that, at the time of the alleged commission of the offence, the person against whom the offence is alleged to have been committed was not a relevant person.
(4) It shall not be a defence to proceedings for an offence under this section for the defendant to prove that the person against whom the offence is alleged to have been committed consented to the sexual act of which the offence consisted.
(5) The standard of proof required to prove that the defendant was reasonably mistaken that the person against whom the offence is alleged to have been committed was not a relevant person shall be that applicable to civil proceedings.
(6) A person guilty of an offence under subsection (1) where the sexual act consisted of sexual intercourse, buggery or an act described in section 3(1) or 4(1) of the Act of 1990 shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years.
(7) A person guilty of an offence under subsection (1) where the sexual act consisted of an act which if done without consent would constitute a sexual assault, or an offence under subsection (2) shall be liable on conviction on indictment to imprisonment for a term not exceeding 5 years.
(8) In this section—
“person in authority”, in relation to a relevant person against whom an offence is alleged to have been committed, means any person who as part of a contract of service or a contract for services is, for the time being, responsible for the education, supervision, training, treatment, care or welfare of the relevant person;
“relevant person” means a person who has—
(a) a mental or intellectual disability, or
(b) a mental illness,
which is of such a nature or degree as to severely restrict the ability of the person to guard himself or herself against serious exploitation.
Prosecutions
23. No proceedings for an offence under this Part shall be brought except by, or with the consent of, the Director of Public Prosecutions.
Repeals
24. Sections 5 and 6(2) of the Act of 1993 are repealed.