Ivana Bacik (Independent) | Oireachtas source

I welcome the Minister, Deputy Fitzgerald, back to the House as Minister for Justice and Equality. I think that I have already welcomed her in that capacity, but she is welcome, too, on this important legislation. I commend Senator Zappone on bringing forward this legislation and I am delighted and honoured that she asked me to second it.

The legislation recognises a lacuna and flaw in our current legislation on sexual offences which has been recognised and identified by many people, but Senator Zappone is the first to have put the work in and given the commitment to look at how best to deal with and resolve the issue. I thank her also for the excellent briefing which she offered us in the Merrion Hotel earlier today, which I was delighted to attend. It was chaired by Suzy Byrne, the disability rights campaigner, and a clip from the documentary "Somebody To Love" by Anna Rodgers was introduced by Zlata Filipovic. It is a moving and powerful film concerning the right to sexual autonomy of people with disabilities. I am sorry that I had to leave before the end, but a panel of self-advocates was also there. I know that many of the people there, whom we also welcome here today, would have been instrumental in seeking legislation such as this.

As Senator Zappone said, she created the Bill in response to a call to action by the self-advocates and disabled people's organisations. She also acknowledged, as was acknowledged at the meeting earlier, the role of the Centre for Disability Law and Policy at NUI Galway in the formulation of the Bill, in particular that of Dr. Eilionóir Flynn and Anna Arstein- Kerslake. I should acknowledge also the role of my friend, Professor Gerard Quinn, who has done a huge amount to put law on disability rights to the fore in Ireland. There has been a long genesis to the Bill and I commend Senator Zappone on putting it together.

The fact that the existing legislation is outdated has been recognised. The current legislation is the Criminal Law (Sexual Offences) Act 1993, section 5 of which creates an offence for a person who has or attempts to have sexual intercourse, or commits or attempts to commit buggery, with a person who is mentally impaired. It is a crude provision which is problematic in two aspects, as Senator Zappone has outlined. First, it purports to criminalise particular forms of sexual activity with persons who are mentally impaired irrespective of consent, the only proviso being otherwise than a person to whom they are married. Marriage provides the defence, but there is no provision for consent as a defence. Secondly, the Act provides insufficient protection against abuse for persons who are vulnerable. As the explanatory memorandum points out, that was demonstrated in a case in the Central Criminal Court in November 2010, where it was pointed out that particular sexual acts are not covered by section 5. The provision is therefore crude and inadequate in some respects, but it is also overly paternalistic in others and fits in with a very outdated view of intellectual disability which happily has changed even in the relatively short period since 1993. We are not talking about very old legislation - that is the irony - but I wanted to address the context for this. If one looks at our sexual offence laws generally - I did some work on them in practice, acting for the State in some cases defending aspects of sexual offences legislation - one sees that a real problem, particularly when one is in that position of defending legislation before the courts, is that there has been so much piecemeal reform over the years. So much of it has become dated quickly as our understanding of certain offences, for example, those against children, has changed.

We have seen our sentencing regime for sexual offences against children change dramatically within a relatively short space of time as people become more aware.

Senator Zappone has proposed a Bill that seeks to amend section 5 of the Criminal Law (Sexual Offences) Act 1993, which did quite a number of things but did not purport to set out any sort of proper code on sex offences. That had been attempted in the Criminal Law (Rape) (Amendment) Act 1990, which is now seen as somewhat problematic as it creates a somewhat clumsy series of tiered serious offences, including the rather anomalous offence of "rape under section 4", which covers forms of rape other than common law rape as covered in the Criminal Law (Rape) Act 1981. Even though we have all of these different variants of sexual offences, we have gaps where certain adequate protections are not offered. As a result of the 2006 decision in the CC case, which called into question the whole practice and policy of charging in sexual offences case, we saw some hasty law-making to try to fill another gap concerning the protection of children against sex offences. Again, that legislation subsequently needed to be amended.

This Government has committed to an overhaul of sex offence laws. On 17 December 2013, it approved the drafting of a wide-ranging sexual offences Bill. I know it is currently being drafted as priority legislation. Private Members' legislation like the Bill before the House has an important role to play in seeking to highlight to the drafters of Government legislation what can be done to try to address problems that have been identified with existing legislation. Now that we are finally looking at a comprehensive overhaul and codification of sexual offences laws, we have an opportunity to ensure up-to-date and adequate provisions are in place. The Government has to ensure the new legislation is consistent with the Assisted Decision-Making (Capacity) Bill 2013, which the Joint Committee on Justice, Defence and Equality has been debating. At our hearings on that Bill, we have considered similar issues relating to personal autonomy and the capacity to make choices. We heard about some of the same issues at this morning's briefing. They were evident in the documentary.

Senator Zappone has proffered a resolution of the difficulties with section 5 of the 1993 Act, which we have identified. It is a much more elegant structure. As the Senator said, it offers a disability-neutral approach. Rather than providing specific protection for people with intellectual disabilities, it breaks down what section 5 sought to do into two things. First, it provides for a new offence of "abuse of position of dependence and trust". This new offence would apply to anyone who takes advantage of such a position by sexually exploiting another person, or committing a sexual offence involving him or her. That is disability-neutral. It does not offer specific protections to people with disabilities. Instead, it rather elegantly shifts the focus to the perpetrator of the offence of "abuse of position of dependence and trust". There are specific criteria for what constitutes a position of dependence and trust. It covers a person who provides care to another. That would clearly cover many instances of carers of people with disabilities. It is not limited to that, however. It seeks to resolve an issue that relates not only to people with disabilities but also to people who are vulnerable in other ways and may be in dependent positions.

The second thing the new legislation seeks to do is provide for a definition of consent. This goes well beyond any issues around specific offences concerning people with disabilities. It seeks to offer a new definition of consent that again focuses on the issue of agreement and on the positive aspect of consent. This is something feminist critics of rape laws have often called for. We do not yet have it in an Irish context. The explanatory memorandum rightly points out that section 9 of the Criminal Law (Rape) (Amendment) Act 1990 sought to assist juries in defining absence of consent by providing that "any failure or omission by [a] person to offer resistance ... does not of itself constitute consent". Again, that is a very inadequate provision. By simply stating that submission is not consent, it addressed an old rape myth that needed to be addressed but did not go any further than that. It certainly did not provide the sort of positive affirmation of the need to ensure agreement and consent in sexual activity that we now recognise as imperative.

I am out of time but I will conclude by commending Senator Zappone again. The legislation the Government will bring forward should take account of many of the issues and principles that have been addressed by the Senator in this Bill. Section 5 of the 1993 Act has not given rise to many prosecutions - almost none, as it is very rarely used - but it has undoubtedly had a chilling effect on the lives of people with disabilities. It is a discriminatory provision that requires amending. I hope the new legislation that the Government intends to introduce will incorporate respect for the sexual agency of all.