Jonathan O'Brien (Cork North Central, Sinn Fein) | Oireachtas source

I move amendment No. 3:

In page 17, to delete lines 7 to 34 and substitute the following:

“Sexual act with a relevant person21. (1) A person who engages in a sexual act with a relevant person knowing that that person is a relevant person or being reckless as to whether that person is a relevant person shall be guilty of an offence.

(2) A person who invites, induces, counsels or incites a relevant person to engage in a sexual act knowing that that person is a relevant person or being reckless as to whether that person is a relevant person shall be guilty of an offence.

(3) In proceedings for an offence under this section, it shall be presumed, unless the contrary is shown, that the defendant knew or was reckless as to whether the person against whom the offence is alleged to have been committed was a relevant person.

(4) A person guilty of an offence under subsection (1) where the sexual act consisted of sexual intercourse, buggery or an act described in section 3(1) or 4(1) of the Act of 1990 shall be liable on conviction on indictment to imprisonment for life or a lesser term of imprisonment.

(5) A person guilty of an offence under subsection (1) where the sexual act consisted of an act which if done without consent would constitute a sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.

(6) A person guilty of an offence under subsection (2) shall be liable, on conviction on indictment, to imprisonment for a term not exceeding 10 years.

(7) For the purposes of this section, a person lacks the capacity to consent to a sexual act if he or she is not able to understand, at the time that the sexual act occurred, the nature and consequences of the sexual act and the available choices at that time.”.

The use of language was another area on which there was a lot of discussion on Committee Stage. The use of the term "protected person" contravenes all the other legislation with which we have been dealing with recently. In its own report on sexual offences and the capacity to consent, the Law Reform Commission proposed that the term "relevant person" be used as opposed to "protected person". The term "relevant person" is also the term used in the Assisted Decision-Making Act. It is more respectful and has no material effect on the legislation. The Minister gave a commitment on Committee Stage to look at this and it is unfortunate that she has not been able to come back with a definition.

Amendment No. 7 states, "It shall be presumed that a relevant person has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act." Some people with intellectual disabilities have reported that their rights to consensual sexual relationships have been impinged upon by the shadow of the Criminal Law (Sexual Offences) Act 1993. The proposed Bill will still create a focus on the rights of persons with disabilities as being people with questionable capacity to consent and it is important that a rebuttal presumption of capacity is included so that persons with intellectual disabilities are free to enjoy consenting sexual relationships, free from interference, and so that people providing support, education and training have clarity on the legality of their own activities in providing that support or education. This amendment will provide that presumption of capacity. It should be noted that it only states a relevant person has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Bill. All the other issues around consent will still be included.

See this speech in context