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

I thank Deputies for their responses to these amendments. I have been considering this for a number of months. Deputies in the House raised this issue, as did the Rape Crisis Centre in the person of Ellen O'Malley-Dunlop and Noeline Blackwell, the current chief executive officer. I met with Dr. Susan Leahy, one of the experts on this topic who did her PhD on this subject. She has also met with officials from my Department and we have been liaising very carefully and in detail with the Attorney General. The original view was that we would work on precedent rather than a definition but we have worked it through to the point where I am in a position to bring forward these amendments this evening.

The amendment introduces the definition of consent into the Criminal Law (Rape)(Amendment) Act 1990 as opposed to a stand alone provision in this Act. Section 9 of that Act already provides for a clarification in respect of consent in that it states that failure to offer resistance of itself does not constitute consent.

The provision I am now proposing reflects that proposed by Members of the House and expands greatly on that clarification. Section 1 of the new section 9 of the 1990 Act provides that a person consents to a sexual act if he or she freely and voluntarily consents to engage in the act. Subsection (2) sets out the circumstances which, if proven, would vitiate consent. These include, as Deputies have said, the application of force; if the person is asleep or unconscious; if the person is incapable of consenting because of the effect of alcohol or some other drug; if the person has a physical disability which prevents him or her from communicating his or her agreement to the act; and if there is a mistake as to the identity of a person involved in the act or a mistake as to the nature or purpose or if the consent is given by a third person. All of these circumstances are reflected in the other amendments in this group.

Deputy Shortall's list is an exhaustive list. I would make the point, which is important, that the list I am introducing is non-exhaustive, which is the approach that has been supported by the people who would be very supportive of moving to a definition. The Deputy will see in the definition I have given that other factors can and will be taken into account in the circumstances of a court hearing on the issue.

Subsection (4) clarifies that consent may be withdrawn at any time. Subsection (5) confirms that failure to offer resistance does not of itself constitute consent. Subsection (6) defines what a sexual act is and replicates the definition already contained in the Criminal Law (Sexual Offences) Act of 2006 and in section 20 of this Bill. That includes rape, rape under section 4, sexual assault and aggravated sexual assault.

I believe the amendment I have brought forward reflects the amendments that have been submitted by Deputies in the course of the discussion on this Bill. I note that Deputy Shortall said she will withdraw the other amendment pending the referral. It is a very complex area of law. I have discussed it in detail with the Attorney General. What the Minister, Deputy Zappone, said to Deputy Shortall is correct, namely, that we agreed to refer it to the Law Reform Commission for a full report on it in order to deal with it effectively at a later point.

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