Feargal Quinn (Independent) | Oireachtas source

The Minister of State, Deputy Perry, who has just arrived, is very welcome. I commend Senator Zappone on introducing the Bill. This is very much a human rights issue but it also shows how we must examine legislation which might no longer be fit for purpose. I was in the House in 1993 when the legislation was introduced and at the time I thought it was an excellent Bill. As far as I was concerned the purpose of the legislation was to protect people. My eyes were opened when I attended the session in the Merrion Hotel today organised by Senator Zappone. I understood for the first time the need for the Bill. Perhaps the Seanad could do even more in the area, such as examining legislation to see whether we can improve it or get rid of it in some cases.

As the explanatory memorandum, which is very good, notes, the current Criminal Law (Sexual Offences) Act states it is a criminal offence to engage or attempt to engage in sexual intercourse or an act of buggery with a person with a mental impairment and consent is not an defence. However, as it stands, if the people are married, or if the victim is proven to be capable of living independently, no criminal offence is committed. I did not understand this when the Bill passed 20 years ago. Obviously the current law discriminates as its criminalises the sexual activity of people with mental impairments before marriage. People with mental impairments also have to prove their ability to live independently and protect themselves from abuse before engaging in sexual activity. This is something which people without mental impairments do not have to do, which is an obvious form of discrimination.
The Bill is very progressive, reflecting human beings’ ability to choose and communicate preferences in order that they do not need to do more than a person without disabilities before engaging in sexual activity. There are also other various problems with the law, including the fact the law has not been used successfully very often – I do not know whether it has been used successfully at all - to prosecute relevant cases and is seen as inadequate in protecting people with disabilities from various forms of sexual abuse, which was the main objective of what we discussed 20 years ago.
I note the submission of the Connect People Network who describe themselves as a group of people in Ireland who believe that people with extra support needs have the right to have romantic and sexual relationships, just like everyone else. They made a smashing case today and those of us who attended their presentation without our eyes wide open beforehand had them opened. In its submission to the Law Reform Commission, it stated:

We can have sex like everybody else ... We should be allowed do all the sexual things we want to do. It's not up to other people: it's up to you. Everybody decides what they like and what they don't like. It is nobody's business what I do in my spare time. Other people don't get questioned, why should we get our private life questioned?

I agree we should not have different standards in our legislation. This is one of the reasons Senator Zappone's Bill is very welcome. People's mental capacity should not have to be tested. It is a concrete form of discrimination. If one can think of any form of discrimination, this certainly is. We must move towards recognising the capacity of all citizens to make adult decisions. With regard to specific questions, it would be interesting to consider the original intention of the 1993 legislation. It was partly influenced by the fact people with disabilities are more vulnerable to crime and specifically to sexual offences, and international research backs up this fact. I wonder whether we have figures or percentages on how much more vulnerable to crime a person with a disability is in this country. Recently in the Seanad we discussed the need for the Garda to record hate crimes which have an ethnic motive. There is a need for the Garda to record crimes against people with disabilities. With this information legislators would be much better equipped to tackle the problem. Senator Rónán Mullen will bring forward a Bill shortly on older people being attacked and seeking mandatory sentences. How many people with disabilities report sexual crimes against them? A major issue which goes along with the legislation is giving people the avenues and support to come forward. A local Garda station may be extremely intimidating.
The Bill proposes that section 5 of the 1993 Act be replaced with a new section which covers the offence of abuse by a person in a position of dependence and trust. The new section states it will be an offence if somebody aids, abets, counsels or procures another person to take advantage of his or her position or induces or seduces a person to have sexual intercourse with him or her. Should we expand this to include the fact a perpetrator could try to get the person with a disability to have sexual activity with a third party? Should we make this very clear in the Bill? I would be interested to hear a comment on the possible expansion of the offence.
With regard to the abuse of trust, the Bill states it will be an offence if a person commits any other sexual offence involving a person. Do we need to be more specific in the Bill? The offender could engage in sexual activity in front of the person with mental disabilities or they could force a person with disabilities to watch a sexual act, be it in person or images. I am very unsure whether this is already adequately covered in the legislation but this is what Committee Stage is for.
Should we explicitly include a reference to the fact that a person with a mental disability could be threatened or deceived into engaging in sexual activity? The UK's Sexual Offences Act 2003 uses this particular phrasing and it would be useful to consider whether we should do something similar with this legislation, with the end goal of providing as much protection as possible to the person with the disability. I would like to get a comment on this if possible. The Bill rightly considers people with disabilities as sexual beings and they should be treated like everyone else. Originally when I saw the Bill I did not understand it. I am sure we are all to a certain extent reticent about getting involved in this topic. I congratulate Senator Zappone on introducing it and identifying the issue. I congratulate all of those involved in bringing forward this topic because it needs to be discussed and the Bill will solve the problem. It may be possible to change and improve it but I hope the Government continues the support it has already shown for it.