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

I thank Senator Zappone for introducing this important legislation and Senator Bacik for seconding it. I was glad to avail of the opportunity to meet with Senator Zappone, along with my departmental officials, to discuss the details of the Bill. I congratulate her on drafting this legislation and pay tribute to the advocates she mentioned who work in this area and supported her in this, some of whom join us here today.

Section 5 of the Criminal Law (Sexual Offences) Act 1993 is of its time - although as was noted earlier, it is not very old as we often discuss much older legislation - and I accept it should be repealed. It does not reflect current thinking or international developments concerning the rights of persons with disabilities. In particular, the 2006 UN Convention on the Rights of Persons with Disabilities aims to facilitate the full participation in society of disabled persons and the full realisation of their human rights. From its adoption, the convention set out a blueprint as to what was needed to promote equality, in practice, for persons with disabilities. The impetus driving the convention was well put in the statement of Don McKay, chairman of the committee that negotiated the treaty: "What the convention endeavours to do is elaborate in detail the rights of persons with disabilities and set out a code of implementation".

Article 12 of the convention views equal recognition before the law as a fundamental right of persons with disabilities. The article imposes several obligations on signatory states, namely to reaffirm that people with disabilities have equal right to recognition before the law; to recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life; to take appropriate steps to support persons with disabilities to exercise their legal capacity; and to provide appropriate safeguards against abuse.

The Assisted Decision-Making Capacity Bill 2013, currently before the Oireachtas, will comprehensively reform the long outdated civil law on mental capacity. It will greatly assist vulnerable persons to better manage their personal, property and financial affairs. To mirror these developments, both I and the Government are committed to amending the criminal law on sexual offences to acknowledge, as far as possible, the right of vulnerable persons to sexual autonomy.

The challenge in mental capacity legislation is to develop legal solutions that are appropriate to diverse decision-making needs, yet are effective within the existing legal system. The challenge in criminal law is not dissimilar. The criminal law should only be used to punish the clear sexual abuse or exploitation of vulnerable persons, not to deprive them of intimate sexual relationships where that is possible. In this context too, there are diverse decision-making needs and the criminal law must take this into account.

As well as recognising the rights of persons with disabilities, the UN convention also imposes a specific obligation to put effective legislation in place to ensure that instances of exploitation, violence and abuse can be identified, investigated and prosecuted.

There is a requirement, therefore, to strike an appropriate balance between sexual autonomy for vulnerable persons who have the capacity to consent and some level of special protection so abuse and exploitation of vulnerable persons can effectively be prosecuted. The purpose of Senator Zappone's Bill, as stated in the explanatory memorandum, is to reform the sexual offences law to eliminate discrimination against people with disabilities and to ensure they have the same freedom to consent to sexual activity as people without disabilities. It also aims to reform the law to ensure respect for the sexual agency of people with mental impairment while also providing protection from sexual abuse. It is clear, therefore, that we share the same principal objectives. I have no difficulty incorporating a number of the concepts in Senator Zappone's Bill into the sexual offences Bill currently being drafted, and I intend to do that. The Bill is priority legislation and work is under way on it.

Modern provisions to substitute section 5 of the 1993 Act will be included in the sexual offences Bill, will be consistent with the Assisted Decision-Making (Capacity) Bill and will acknowledge the right of vulnerable persons to sexual autonomy. I also want to ensure sexual abuse and exploitation of vulnerable persons can be effectively prosecuted. Linked to that is the clear need to avoid subjecting vulnerable persons to potentially traumatic court proceedings, including cross-examination. These are very real, practical concerns that must be considered, as Senator Zappone would acknowledge.

Despite its very obvious drawbacks, given the developments in current thinking and discourse I mentioned, the current offence in the 1993 Act facilitates prosecution of those who would exploit the vulnerable because there is no need to prove lack of consent. This means the offence under section 5 is an offence regardless of consent. In addition, the Director of Public Prosecutions, DPP, has the discretion not to prosecute non-exploitative incidents. The sexual offences Bill will create a number of new offences to enhance the protection of children from sexual exploitation and abuse, and these will be applied to vulnerable persons. All these provisions combined will significantly extend the protections available to vulnerable persons in the criminal law on sexual offences.

Discussions are ongoing with the Office of the Attorney General and the Office of the Director of Public Prosecutions to complete work on the provisions to substitute section 5 of the 1993 Act, which is the section under discussion here today. Although I am a little constrained on what I can say about this head in the general scheme of the Bill, as soon as this work is completed I intend to engage in consultations with the disability sector. I will be very happy to continue discussions with Senator Zappone and other interested parties. Like the Senator, I am concerned to avoid labelling vulnerable persons. I want to avoid making provisions which make blanket assumptions about the decision-making powers of persons with intellectual or learning disabilities or those with mental health issues or cognitive disabilities.

The law on sexual offences frames criminal offences. Criminal offences are perpetrated by perpetrators, not victims, and perpetrators should be the focus of criminal law. Another requirement of criminal law is certainty. These factors are central to our approach, without making inappropriate assumptions about the capacity of vulnerable persons, as a number of Senators said. I thank Senator Zappone for bringing forward this Private Members' Bill on a complex but very important issue. The Senator's work has a fit with the work the Department of Justice and Equality is doing in this area. There is no monopoly of wisdom in how to progress this. I look forward to contributions from and working with everybody involved in today's debate and I will listen to the contributions in today's debate and consider them in the context of the development of the relevant provisions in the sexual offences Bill. I will not oppose the Bill today.