Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I thank all the Deputies who proposed these amendments. It is an issue I have been considering and about which I have been concerned. I have heard the voices of people who believe such a provision should be in the Bill. I agree in principle with what Deputies Coppinger and O'Callaghan and others suggest, that is, that we should provide in statute for a definition of consent and clarify in a non-exhaustive list the circumstances under which consent to a sexual act cannot be or is not obtained. It is a complex issue, and I think people recognise that. There are strong arguments to rely on precedent in considering what to include in the Bill. Some of the original advice I received was that the precedents were strong in this regard and would suffice rather than a definition. There are issues with the definition and quite how it is done which must be very carefully considered. We want to make sure that there are no unintended consequences and that we improve the situation and help the victim rather than make matters more complicated. Having said that, it is absolutely my intention to table an amendment to this effect on Report Stage.

That will largely reflect what is contained in amendments Nos. 88 and 89. I have gone to external legal experts on this to get further advice and I am also engaged in further consultation with the relevant stakeholders. Once that is complete, I will introduce a definition of "consent" along the lines set out in this group of amendments as well as setting out the list of circumstances, which, if proven, would vitiate consent. These will include, but not be limited to, the use or threat of force, unlawful detention, unconsciousness, including being asleep, intoxication, mistake and deceit. It will be a non-exhaustive list because that is also important. It will be necessary in the definition to set out clearly the sexual acts to which it will apply. These will be offences under the Criminal Law (Rape) Acts of 1981 and 1990, which are rape, aggravated sexual assault and sexual assault. It may be that the amendment should be inserted in those Acts using this legislation rather than as a stand-alone provision in this legislation. I ask Deputies, on the understanding that we are doing detailed work to arrive at the best definition and to consider all the unintended consequences, to wait until Report Stage before taking a decision on how they will handle this, at which point I will table an amendment.