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

We had a long and detailed discussion on this provision on Committee Stage. I did consider it and looked at the section. I will take some time to go into detail on the approach in the Bill and why the various terms are being used. To begin with, the use of the term "protected person" is not related to disability but to the inability to consent to a sexual act. It identifies those persons who, owing to the nature of a particular disability, lack the capacity to consent to a sexual act. It is a very particular group of persons. The UN convention requires us to provide protection on a legislative basis. To provide adequate protection, we have to identify the group. Section 22 identifies the broader category of people which would address the concerns raised by Deputy Clare Daly and which are defined as "relevant persons". I want to go into detail on the approach but wanted to say that to begin with.

A number of amendments have been put forward which primarily seek to address issues regarding the language used in section 21, especially the use of the words "protected persons". The amendments indicate a preference for the words "relevant person". To go into the background, as has been outlined on Committee Stage, the provisions that will replace the status-based approach adopted in section 5 of the Criminal Law (Sexual Offences) Act 1993, are for the protection from exploitation of persons with disability. What is to be introduced by way of section 21 is what I would call a functional-based approach which will focus on the capacity of the person to consent to a sexual act.

Amendment No. 3 tabled by Deputy Jonathan O'Brien and amendment No. 4 tabled by Deputies Brendan Howlin and Jan O'Sullivan follow the approach set out in section 21. We all agree that the language and approach in section 5 of the 1993 Act is outdated. However, section 5 also fails to meet the requirements of the UN Convention on the Rights of Persons with Disabilities. That requires state parties to eliminate all discrimination against persons with disability, facilitating their full participation in society and the realisation of their human rights. In addition, Article 16 of the convention imposes a specific obligation to put effective legislation in place to ensure instances of exploitation, violence and abuse against persons with disability can be identified, investigated and prosecuted.

The UN Committee on the Rights of Persons with Disabilities has made specific reference to the need to provide protection against sexual violence committed against, for example, intellectually disabled women. Also considered in preparing these amendments were the responses to a discussion paper that was prepared by the Department and which included draft proposals on replacing section 5. They were circulated to a wide number of stakeholders, interest groups and academics. We got a wide range of written responses to this and took a lot of time around it. However, no consensus emerged or was identified. The Bill's provisions seek to address the substance of the concerns which were expressed by people about the existing law.

Section 21 creates the offence of a sexual act with a protected person. I will return to the term "protected person" shortly. In order to define the persons who require protection under this provision and to move away from the approach adopted in the 1993 Act, a functional test as to the capacity of a person with a mental or intellectual disability or mental illness has been adopted. Essentially, the offence arises where an individual engages in a sexual act with a person he or she knows lacks capacity to consent to the sexual act by reason of a mental or intellectual disability or mental illness. The offence also arises if the person is reckless as to the capacity of the person to consent to the sexual act. A lack of capacity to consent to a sexual act is defined in section 21(7) and arises where the person is incapable by reason of the disability or illness in question to understand the nature or reasonably foreseeable consequences of the sexual act, to evaluate relevant information for the purposes of deciding whether to engage in the act or to communicate his or her concern about the act.

There is no presumption. I want to be clear on this because some comments make the assumption that a disability or illness of itself gives rise to an incapacity to consent. However, where a disability or illness results in a person being incapable of understanding the act or evaluating relevant information or communicating consent, there will be no capacity to consent. As such, the section provides strong protection for persons who fall within its provisions as there is a presumption in section 21(3) that the accused knew or was reckless as to whether the person against whom the offence was committed was a protected person. This approach is in line with the UN Convention on the Rights of Persons with Disabilities which requires both a respect, which many Deputies have mentioned, for full participation in society by persons with disabilities as well as appropriate protection for those who lack the capacity to consent to such an act owing to the nature of their disability. The amendment will introduce the required provision.

The words "protected person" have been used in recognition of the lack of capacity of that person to consent, not the fact of a person's disability alone. We have also used the term "protected person" to distinguish the persons protected under the section from those to whom section 22 applies. Section 22 provides for an offence by a person in authority who engages in a sexual act with a person with a mental or intellectual disability or mental illness and in respect of whom they, as part of a contract of services, have a responsibility for education, supervision, training, treatment, care or welfare. This offence targets breaches of trust by persons who may take advantage of their positions to engage in a sexual act with someone in their charge. The category of persons is where there is some confusion. The category of persons protected by section 22 is different from that under section 21 as consent is not a defence under section 22. For this reason, the persons protected under section 22 are referred to as "relevant persons". Under section 21, where capacity to consent is an issue, we call them "protected persons". To be very clear sections 21 and 22 relate to two different groups of people. Therefore, to use the same words in both sections would cause confusion. That is why different terms are used.

Amendment No. 3 proposes to remove the reference to "disability" in section 21 and states at subsection (7) that 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. I note to Deputy Jonathan O'Brien that the effect of that amendment would be to make the offence apply to all persons and overlap with aspects of the amendments earlier discussed relating to consent. For example, it would arguably cover unconsciousness or intoxication as well as incapacity by reason of a particular disability. The UN Convention on the Rights of Persons with Disabilities also imposes an obligation on the State to put effective legislation in place to ensure that instances of exploitation and abuse against people with disabilities can be identified and prosecuted. We want to be clear in the legislation about who needs to be protected. That is why we have the two different categories.

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