Court of Appeal: Sexual exploitation of a child does not require proof that complainant was trafficked

About this case:

• Citation:
  [2021] IEHC 308
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

The question arose following the acquittal of two men accused of sexual exploitation, who had argued that the offence only applied in the context of child trafficking.

It had been argued that the Child Trafficking and Pornography Act 1998 (as amended) was concerned with child trafficking rather than child exploitation and therefore trafficking was a constituent part of the offence. However, the court rejected this assertion, holding that the legislation was “clear and unambiguous”.

Background

The respondents, LS and PS, were tried in Kerry Circuit Court on several counts of child exploitation contrary to the 1998 Act (as amended by the Criminal Law (Human Trafficking Act) 2008). The counts involved allegations of inviting, inducing, or coercing the complainant to participate in various sexual acts.

The complainant had reported that she had been raped by the accused. However, the charges of child sexual exploitation were preferred by the DPP. Section 3(2) stated that a person who 1) sexually exploits a child or 2) detains or restricts the personal liberty of a child for the purpose of sexual exploitation was guilty of an offence.

At trial, the men sought a direction for their acquittal on the basis that sexual exploitation was not a standalone offence under the relevant legislation and required proof that the child had been trafficked. The accused relied on DPP v. NR and RN [2016] IECCC 2 and the obiter comments contained in The Minister for Justice v. Adams [2012] 1 IR 140.

The prosecution submitted that the definition of trafficking was satisfied in the case, on the basis that PS was in loco parentis at the time. However, the judge directed a verdict of not guilty for both men, on the basis that the evidence did not satisfy the criteria for trafficking. The DPP subsequently referred the legal question to the Court of Appeal under section 34 of the Criminal Procedure Act 1967 (as amended).

On appeal, the DPP accepted that the NR and RN case was binding, but stated that the decision was incorrectly decided. It was said that trafficking was not a necessary proof for child sexual exploitation. It was submitted that the plain meaning of section 3(2) made provision for the offence of child sexual exploitation which did not reference trafficking at all.

The DPP also relied on Minister for Justice & Equality v. AM [2016] IEHC 568, where the court commented that sexual exploitation did not include trafficking.

In response, the accused argued that the court could consider the long title and marginal notes of the Act, which referred to “child trafficking and taking, etc., child for sexual exploitation.” It was submitted that terms had to be read in context and the present legislative context was the prohibition of child trafficking.

Court of Appeal

The court initially took the view that section 3(2) was clear in its terms. However, the court was concerned by the comments in Gillespie’s Sexual Exploitation of Children: Law and Punishment, where it was opined that there was a potential loophole in the legislation. The book noted that there had been a difficulty in relying on the offence of assault where no touching took place of a complainant and the Oireachtas sought to close the loophole with section 3(2).

Further, the Dáil debates on the legislation, the Minister for Justice stated that sexual exploitation related only to trafficked children. While the book accepted that this was not clearly reflected in the legislation, it was said that the courts may have to accept the proposition because “the consequence of using it to close the loophole in sexual assault may be to widen criminal liability too far.”

In further submissions, the DPP relied on section 10 of the Criminal Law (Sexual Offences Act) 2017, which inserted a new definition of sexual exploitation. Essentially, the new definition separated the concept of coercing or inducing a child to engage in a sexual act and merely inviting them to do so. As such, the DPP argued that an invitation to commit a sexual act was only criminalised if it amounted to an offence against a child. Accordingly, the new definition avoided a scenario where a 17-year-old would be committing an offence by asking another 17-year-old to have sex.

The court was satisfied that there had been no inadvertent criminalisation of sexual conduct that was previously legal. Having considered the legislation, the court held that it was “clear and unambiguous” that child sexual exploitation was a standalone offence. In particular, any residual doubt had been dispelled by the new definition contained in the 2017 Act.

Conclusion

The court held that the trial judge was incorrect to direct an acquittal on the basis of his interpretation of the statute.