Clare Daly (Dublin Fingal, Independent) | Oireachtas source

Our amendments in this group are amendments Nos. 5 and 8. I also am sorry that the Minister has not taken on board the points made on Committee Stage and inserted the disability-neutral language that has been very much sought after by disability advocacy groups, while removing the reference to protected persons. Our amendments look to do two things. The first is a new section with neutral language but which does not lessen any of the protections. The second expands the current narrow definition of a relevant person from a person with a mental or intellectual disability to a broader one that does not single out one group of people.

The legislation is a step forward on the 1993 legislation but it could go further by properly adopting disability-neutral language, as recommended by all the UN bodies. Human rights should be for all without distinction. The category of a protected person includes a requirement of disability and that is a distinction and, therefore, in contravention of UN human rights. It implies that people with disabilities should be treated differently in issues such as consent and sexual activity and in this sense it constitutes a form of disability-based discrimination that is prohibited under the Convention onf the Rights of Persons with Disabilities.

The Minister needs to understand that there are very legitimate concerns about language, status, labelling and so on and the protected approach can impact on the freedoms of a person as well as interfere too much with their ability to make decisions freely, because it presumes they do not have capacity. It thus takes a patriarchal approach, in contrast to the aims of the Convention on the Rights of Persons with Disabilities.

A lot of the organisations made submissions to the Minister and their views were not taken on board. They strenuously argued that a separate category in law, identifying those with intellectual disabilities, was not good. As Deputy Jonathan O'Brien said, the Law Reform Commission report on sexual offences and the capacity to consent proposed the term "relevant person". The Assisted Decision-Making Act proposes references to a relevant person. Legal advice given to Inclusion Ireland states it is not necessary to have such a category in a prosecution case and it advised against using it on the grounds that it was discriminatory and amounted to offensive terminology. If somebody is opening a case for the Director of Public Prosecutions and uses the term "protected person" they are prejudging something. The terminology requires a jury to make a judgment about a person before it has heard any evidence.

On Committee Stage, the Minister cited the word "protected" from the UN regulation, but failed to put that in the context in which it was intended at the time. That was clearly in the context of protecting rights and not creating a legal category called a protected person. Article 5, under the heading of "Equality and non-discrimination", calls on state parties to recognise that all persons are equal before and under the law, and are entitled without any discrimination to the equal protection and equal benefit of law. Furthermore, Article 12, under the heading "Equal recognition before the law", requires state parties to reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. It recognises that persons with disabilities enjoy legal capacity on an equal basis with all aspects of life.

Our amendment is changing the wording of the current section to offer the exact same level of legal protection and sanction against the perpetrator of an attack or crime against a relevant person, but it uses neutral language. It does not necessitate a separate category in the eyes of the law and therefore we are trying to give that person a right to equal treatment. We have given consideration to what is required in terms of providing necessary protection against abuse but without unduly overstepping the mark and interfering with a person's other rights. From a prosecution point of view there is no reason the absence of a protected person category would prevent a legal representative from doing their job effectively. It would not, so I do not see any justification or reason we need to compromise a person's right to equality or to differentiate his or her status. It is a hugely upsetting issue for activists in the disability sector.

I will come back briefly to the other amendment which is to broaden the definition of a relevant person as currently contained in section 22(8). It would allow a wider interpretation in order that one is not singling out people with an intellectual disability, but recognising that there could be any number of reasons a person could be reliant on a person in authority where such a person could exploit him or her and behave in a criminal manner. He or she could be in an incapacitating accident, have a drug or alcohol dependency, be in a period of recovery from surgery, have a temporary physical impairment or any other reason. The definition we have now is too narrow and makes an assumption about the capacity and status of the persons cited in the category of a person who has a mental or intellectual disability or a mental illness. At a minimum, the definition of "relevant person" must be expanded to include other adults who do not have a mental or intellectual disability or mental illness but who nonetheless might be sexually exploited by somebody in a position of authority.

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