Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

I apologise for being late in arriving.

I wish to speak to amendments Nos. 52 to 54, inclusive. Amendment No. 52 provides for a positive definition of consent, which is important. It is very welcome that the Supreme Court last year reaffirmed that sexual activity without consent is rape. However, the Bill presents a key opportunity to address some of the case law going back as far as the 1800s and we should avail of that. I propose that we send a clear message by providing a statutory definition of consent, and I recognise that the Minister has done that on foot of points that were made on Committee Stage.

Amendment No. 52 would put in place a positive definition of consent and clearly define the circumstances in which consent should not be considered as having been given. The amendment would provide for a new Part 8 relating to consent with the first subsection of that stating: "An individual consents if he or she agrees by choice and has the freedom and capacity to make that choice." It is a recognition that for adults it should be very clear not just by stating what consent is not, but also by stating positively what is consent.

In a recent article, the CEO of the Dublin Rape Crisis Centre, Noeline Blackwell, noted that victims will often minimise their assault because they may not recognise the many ways in which rape can take place. Placing a non-exhaustive list on a legislative footing serves to provide clarity on the law.

The Minister has tabled her own amendment, No. 53, and while the substance of her amendment and the Social Democrats amendment is broadly similar, the Minister's amendment addresses coercion in terms of the application of force. I do not believe that is sufficiently wide in terms of defining "coercion". As we know, coercion can take many forms that do not necessarily involve physical force. That is the reason I am proposing the amendment that employs the more general term of "harm", which I believe is more appropriate. When we think of people being put under duress in circumstances like this that can involve rape, it is not just about physical force. There can be threatened harm in other ways apart from physical harm. We can think of endless ways. One way would be threatening to withhold a child or access to a child, for example. Another way would be to threaten to disclose something about the other person, which ultimately would amount to blackmail. There is potential for disclosure of information which is confidential to the victim and that person being put under duress because of threat of that disclosure. Another one we could very easily visualise happening would be a situation where, for example, a landlord put a victim under duress and threatened to harm the victim by changing their lease or evicting them from their home. There are umpteen ways in which threatened harm could put a person in a situation where they were under duress. What is required in terms of coercion is a broader definition. That is the reason I am proposing that we change "physical force" to "harm".

The final point I would make is on amendment No. 54. As the law stands, consideration is given to the intentions of the perpetrator of rape and whether they generally believed the victim was consenting, no matter how unreasonable that belief may have been. The proposed amendment would lower the threshold to a reasonable belief in consent while giving consideration to the intellectual capacity of the perpetrator. With regard to that proposed amendment, in light of the announcement made by the Minister, Deputy Zappone, the other day in terms of referring this matter to the Law Reform Commission and undertaking to produce an early Bill based on the findings of the Law Reform Commission, I am happy to withdraw that amendment.

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