Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Deputy Daly's amendment, among others, raises a point about language. Lest there be any doubt, our approach uses the language contained in the UN Convention on the Rights of Persons with Disabilities. The convention reads: "States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities," etc. That is the language used throughout the convention.

I will address each amendment in detail. Amendment No. 6 largely replicates the existing provision contained in section 21, although it differs in two respects. It substitutes the term "relevant person" for "protected person", which is also the wording used in some of the other amendments. I will clarify why "protected person" is being used in section 21. The group of persons whom this section is designed to protect are those who, by reason of a disability as described in subsection (7), lack the capacity to understand the nature or reasonably foreseeable consequences of the sexual act in question, cannot evaluate relevant information or cannot communicate his or her consent. As a consequence, the person lacks capacity to consent to the act. It is this lack of capacity and not the fact of the disability that gives the person in question the status of a protected person.

Amendment No. 10, which I will table, will introduce a further offence that refers to a "relevant person". "Protected person" should be retained in section 21 in order to avoid conflating the two provisions.

This gets technical, but I will go through the amendments to explain the approach we will take. The second difference between what is proposed in amendment No. 6 and the provision in section 21 is that amendment No. 6 would remove section 21(3). The offence under section 21 arises where the defendant knew or was reckless, and people will understand what we mean by this, as to whether the person was a protected person. Subsection (3), which would be removed by the amendment, is a safeguard which provides that, in proceedings for an offence under the section, it shall be presumed the defendant knew or was reckless that the person was protected under the section. The defendant can rebut the presumption by raising a reasonable doubt as to his or her knowledge or recklessness, but the closer the relationship between the two parties, the more difficult it will be to rebut the presumption. This is an important safeguard in the protection of persons who lack the capacity to consent.

Amendment No. 7 is similar to amendment No. 6 and the existing section 21 of the Bill. It removes reference to disability in section 21. The effect of the amendment would be that the offence would apply to all persons. It overlaps with aspects of the amendments we discussed earlier relating to consent. It would arguably cover unconsciousness or intoxication as well as incapacity by reason of a particular disability. I am concerned a provision referring to a lack of capacity without clarifying what may give rise to that lack of capacity could be very broad and might lead us into the area of legal challenge. I ask Deputy O'Brien to consider this aspect. The UN Convention on the Rights of Persons with Disabilities imposes an obligation to put in place effective legislation to ensure instances of exploitation and abuse against persons with disabilities can be identified and prosecuted. It would be preferable to make this clear. What Deputy O'Brien has put in the amendment is perhaps overtly broad.

Amendment No. 8 from Deputy Daly seeks to replace section 5 of the Criminal Law (Sexual Offences) Act 1993, which is the existing provision on the protection of impaired persons, which Part 3 will replace and repeal. Amendment No. 8 would do so by seeking to replace section 21 of the Bill. Amendment No. 104 replicates amendment No. 8, but rather than replace section 21 it would insert a new offence in the Bill in a new section 51. In both amendments, an offence would occur where a person in a position of dependence and trust takes advantage of his or her position and induces or seduces a person to have sexual intercourse with him or her or commit any other sexual offence involving the person. The proposals do not deal with situations outside the category of an offence arising from abuse by a person in a position of dependence and trust. A person vulnerable to exploitation but who is being exploited by a neighbour should be afforded the protection of the provision. To narrow it down in this way would withdraw potential protection from exploitation by other people. The provision is quite wide and does not include any restrictions on a person who may fall within the category of a victim of this offence.

With regard to the defence of consent in subsection (2) of the amendment, consent must be granted freely and in the absence of duress or coercion. There is concern as to whether this defence could be successfully relied on in a situation where a person in a position of dependence and trust and taking advantage of this position effectively grooms a victim for the purpose of having sexual relations. Depending on the form of act or activity involved, it may not amount to duress or coercion. The Law Reform Commission, in its report on sexual offences and capacity to consent, frames an offence on the basis of capacity to consent. The proposals in section 21 also adopt the approach of capacity to consent. We consider that section 21, together with amendment No. 10, will provide the necessary protection to those who are vulnerable to abuse or exploitation. I am concerned if we accept the approach set out in amendments Nos. 8 or 104 we would fail to fulfil the obligations under the UN convention, which I previously mentioned.

To fully ensure the necessary protection from exploitation by persons with responsibility for the welfare, care or supervision of certain persons with a disability, amendment No. 10 will introduce a provision to create an offence of engaging in a sexual act with a relevant person. For this purpose, a relevant person is a person who has disability which is of such a nature or degree as to severely restrict the ability of the person to guard against serious exploitation. It is a functional test but not related to capacity to consent at a particular time or a particular act. The aim of the offence is to ensure those persons with responsibility for the care and well-being of another do not take advantage of that person's ability to protect himself or herself from serious exploitation. The intention is to avoid a breach of trust by those responsible for another person's care or welfare. The relationship between a person in a position of authority and a person under his or her care may be such as to be open to exploitation. This provision does not undermine the capacity of a person who may be defined as a relevant person from consenting to a sexual act but it simply puts responsibility on those in authority to maintain an appropriate relationship. It deals with some of the issues that have been raised.