Dara Calleary (Mayo, Fianna Fail)

I welcome the opportunity to discuss the important matter raised by the Senator which I will take on behalf of my colleague, the Minister for Justice and Law Reform, Deputy Dermot Ahern.

As the Senator will be aware, I am not in a position to discuss individual cases. However, it is important to outline the criminal law measures in place to protect the intellectually disabled from sexual abuse. These include general criminal law measures and measures directed specifically at the intellectually disabled.

Rape, under section 4 of the Criminal Law (Rape) (Amendment) Act 1990, includes oral rape and a person found guilty of section 4 rape is liable, on conviction on indictment, to life imprisonment. The offence is committed in the absence of consent and can be committed against any person, including a person who is intellectually disabled.

Section 5 of the Criminal Law (Sexual Offences) Act 1993 deals specifically with offences against persons who are "mentally impaired". Under this provision, it is an offence for any person to commit or attempt to commit specific sexual acts - sexual intercourse or buggery - with a person who is mentally impaired, whether consent is given. Section 5 was the main legislative vehicle for implementation of the recommendations in the Law Reform Commission's 1990 report on sexual offences against the mentally handicapped.

The law governing sexual offences needs to strike a careful balance between the need to protect persons with intellectual disabilities from sexual abuse and sexual exploitation, while not intruding on their right, in appropriate circumstances, to engage in consensual sexual activity. The basic right of people with disabilities to enjoy the same degree of fulfilment through relationships as anyone else must always be taken into account. This area of the law is again being examined by the Law Reform Commission and, if necessary, the Minister will bring forward legislative proposals to implement the commission's recommendations. A key concern in this context is that the criminal law should only be used to punish clear sexual exploitation of persons who are intellectually disabled but not to deprive them of intimate relations where that is possible in a non-exploitative manner.

The law on sexual offences is kept under continuous review and amended, as required, to keep the law up to date. Work is well advanced on various legislative proposals in this area. The Minister of State with responsibility for children will bring a draft general scheme to the Government in the near future to address recommendations made in the second interim report of the Joint Committee on the Constitutional Amendment on Children. The scheme of a second sexual offences Bill to protect vulnerable persons generally from sexual abuse and sexual exploitation is also being prepared.

I am sure the Senator will appreciate the sensitivities involved in framing legislation to protect the intellectually disabled. Protection from predatory and exploitative actions is paramount. However, we must be extremely careful not to criminalise sexual activity which could not be deemed exploitative and might deprive the intellectually disabled of intimate relationships. This is a major concern of campaigners, service providers and others who promote the rights of the intellectually disabled. I look forward to the Law Reform Commission's report and the Government will not be found wanting in addressing its recommendations.