Results 3,981-4,000 of 18,728 for speaker:Michael McDowell

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: I fully take the Minister of State's point that this particular offence under section 22 is concerned with people in authority. One might consider that a person in authority is under a higher duty when it comes to protecting an individual suffering from mental disability and under his or her authority from engaging in sexual activity with him or her. The point I am making, is that it is the...

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: I know. The Senator was dealing with a different section. However, in one case, namely, murder, if at the end of the prosecution case the jury has a reasonable doubt, not withstanding the presumption present, one is entitled to be acquitted. Here we are dealing with a different standard of proof, not reasonable doubt; here we are dealing with balance of probabilities. One must establish...

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: Regardless of where the section came from, it has been recommitted and we are discussing it now, despite the efforts to stop me recommitting it. I am just making the point that it is strange that the standard of proof and the defence in the case of a person in authority sexually exploiting a person with a mental disability or illness seem to be lower, and there seems to be a lower procedural...

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: Considering these two sections side by side, a person in authority is entitled to a better defence than a person who is not in authority under section 21. This is a strange thing to happen. If we did not face a guillotine and if we had the right to propose substantial amendments to the Bill and bring some rationality to it, surely we should provide that a person in authority faces a stiffer...

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: A more serious offence is harder to prove.

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: The definition of a protected person in section 21 is "a person [who] lacks the capacity to consent to a sexual act [because] he or she is, by reason of a mental or intellectual disability or a mental illness, incapable of - (a) understanding the nature, or the reasonably foreseeable consequences, of that act, (b) evaluating relevant information for the purposes of deciding whether or not to...

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: I do not want to waste any further time on it because I can see that a different standard of proof has been applied for the two situations. Curiously, when one looks to the definition of the people who are to be protected from these crimes there is a further difference. A person could be in one category and not in the other. To be incapable of understanding the nature of reasonably...

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: I am of the view that this is a lawyer's charter. It is an extraordinary item of legislation, and if these two sections sit side by side, articles will be written and judges will struggle to explain to juries the difference between one offence and the other and the requisite elements before they can convict for one offence or the other.

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: In section 22 the crucial point in the definition of a relevant person, who is the victim of this crime, is that he or she suffers from a mental or intellectual disability or a mental illness which is of such a nature or degree as to severely restrict the ability of the person to guard himself or herself against serious exploitation. I think consent is relevant to that notion because...

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: That is for the person in authority. What we are talking about here are male orderlies in a nursing home or something like that. They would fall into the person in authority category here because they are under a contract of services with a person under their care.The significance of this is that the relevant person must have:(a) a mental or intellectual disability, or (b) a mental...

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: As I read it, section 21(5) provides for a 14-year penalty. In other words, where the sexual act consists of an act which would constitute a sexual assault it shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years. However, the penalty seems to be ten years for a person in authority under section 21(6). Why does the less serious offence carry the more...

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: It may be by design, but I ask the Minister of State to justify it.

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: I would love to wrap up the debate on this, but let us be clear about this. Section 22(6) which we are discussing now states: " 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 a term not exceeding 10...

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: With a ten-year penalty.

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: I will finish it at this stage. I find it inexplicable that if I am a person in authority and I bugger a person under my care, I am liable to a lesser penalty than a person who casually meets somebody suffering from, for example, a mental disorder.

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: The Minister of State can see the logic; I cannot.

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: The contractual relationship is not with the patient; it is with the health authority or the nursing home. The Minister of State seems to be suggesting there is a contractual relationship with the person under care. That is not the case.

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: We are talking about, for example, male orderlies in a psychiatric home. The Minister of State is saying that if they bugger somebody, they are liable to a ten-year sentence, whereas if somebody takes advantage of somebody who is suffering from a mental illness in the street, they are liable for up to 14 years' imprisonment. I am saying there is no logic to that and it shows that although...

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: If consent were open, it would be very strange, given that section 21(7)(c) is there, that the person's mental or intellectual incapacity or mental illness rendered them incapable of communicating consent by speech, sign language or otherwise, if consent were not a relevant issue in those circumstances.

Seanad: Criminal Law (Sexual Offences) Bill 2015: [Seanad Bill amended by the Dáil] Report and Final Stages (14 Feb 2017)

Michael McDowell: Before the Acting Chairman does that, I want to point out that not merely is there a difference between ten and 14 years, but looking at section 21(4), which I was not looking at, the offence of buggery actually carries a life imprisonment sentence for people who are not-----