Clare Daly (Dublin Fingal, Independent) | Oireachtas source

I am very glad that we are having this discussion. It is one that society has engaged in. In some ways we have moved on, and in some ways we have not. While "No" meaning "No" is the general guideline, this amendment seeks to address those grey areas where "No" might not have been expressed or there has been some reinterpretation.

As a society, we have advanced. We have moved from the position whereby, in the relatively recent past, for example, marital rape was considered acceptable. In those cases "No" meaning "No" was irrelevant. In the old days, masters could rape their servants, and in other parts of the world that still goes on. Ireland has moved on in that sense. However, there is a grey area where somebody might not have been fully able to articulate and express their consent. In that sense, I welcome some of the clauses in the amendment. I would prefer the amendment tabled by Deputies Róisín Shortall and Catherine Murphy. Of the three amendments, it is the most balanced and uses the clearest and most concise language, and it would be my preference.

While we need to spell out circumstances where somebody can go to bed with somebody else, engage in a sexual activity at the start of the night and decide not to continue or reactivate that later on in the night, we know of instances where somebody is incapacitated and wakes up to find somebody engaged in a sexual act. That is obviously not acceptable. However, there are issues. I am glad amendment No. 1 is to be withdrawn because I was concerned over references to somebody being mistaken as to the quality of the activity and that they did not give their consent to that, which leaves open a laughable scenario in which people could come back claiming they did not consent because they did not have an orgasm or whatever.

I am concerned about the issue of being mistaken as to identity of a person and I ask the Minister to explain it. There are a few scenarios. For example, this could mean that if somebody agrees to a sexual engagement with a person who may be a transgender person - he or she did not realise that the person had been born a previous gender, but he or she had liked that person and met him or her in their present gender - decided to have sex with the person and then realised later on that the person was born a man or a woman, he or she could then say, "I've been deceived here, I didn't give my consent to that." I do not think that constitutes rape or sexual abuse in those circumstances.

There are obviously issues relating to trust in a relationship. However, by us specifying it, where does that fit in? I have seen the television programmes featuring somebody masquerading as somebody in a position of influence. For example, in one television programme a janitor posed as a college professor, offering to sleep with women in return for their children getting into college. The women had agreed to do it and then found out that it was not actually a professor with influence, but the janitor in the college. The issue was that they were mistaken as to the person's identity because they thought they were sleeping with Professor Bloggs who decided on the admissions to the college and did not realise it was the janitor. I think that is a bit of a stretch. The behaviour of the individual is reprehensible, deceitful and appalling, but does that constitute rape? I am not sure.

We need to debate some of these issues in detail. When we define circumstances in black and white, we have to be very conscious that we are dealing with areas that are not black and white. Judges clearly need guidance because some of them have given the most appalling judgments, accompanied by really ignorant commentary. It is equally important that, as a society, we educate not just our judges, but also our young people, on sexual activity and on consent. Young people should be able to freely enjoy sex with other people who want to freely enjoy it with them. We need to get across an understanding that sex is best had when it is also enjoyed by the other person - or the other people or whatever one is having oneself. As long as the person agrees to that and gets pleasure from it, it is fine.

I have certain concerns. I am glad amendment No. 1 has been withdrawn. Given some of those complexities and the way things could be interpreted, the amendment tabled by Deputies Róisín Shortall and Catherine Murphy is by far in a way the clearest and gives the greatest protection to all concerned.

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