Aodhán Ó Ríordáin (Dublin North Central, Labour) | Oireachtas source

I thank the Senator for bringing forward these amendments. This question of introducing a statutory definition of consent has been raised by a number of groups, in particular those who work with and support the victims of sexual offences and also by the Oireachtas Joint Committee on Justice, Defence and Equality in terms of domestic and sexual violence.

Moreover, this is an issue which does not appear to have received any significant consideration since Law Reform Commission's proposals in 1988. I know that the Minister is of the view that the question of providing a statutory definition of consent is overdue for review and that she has directed officials within her Department to undertake that work.

There is a clear understanding of the arguments favouring a statutory definition, including the clarity and understanding it will bring, as well as the assistance it could offer jurors, particularly in cases that may be difficult to adjudicate. However, there are also concerns that a statutory definition of consent may mean the flexibility of the common law system would be lost.

Aside from whether there should be a statutory definition of consent and if the answer is "Yes", what that definition should be, there are also a number of other questions which must be considered. Other common law jurisdictions have adopted different approaches to what is or is not consent. For instance, in the UK consent is defined with the addition of listing both evidential and conclusive presumptions about consent. While not defining consent itself, the New Zealand approach is to list the circumstances under which allowing sexual activity does not amount to consent. The Canadian model defines consent as well as setting out those circumstances where no consent is obtained and those circumstances under which a defendant's belief that consent was given would not be a defence.

While other jurisdictions share a number of similarities in their approach to the question of consent to a sexual act, there are differences, and Ireland should adopt a model appropriate to this jurisdiction. That is a complex matter which warrants a comprehensive review and appropriate consultation with those involved in the investigation and prosecution of sexual offences. While that process is ongoing, the Minister is currently unable to accommodate Senator O'Donovan's amendments today but, again, I thank him. The approach adopted in these amendments will also form part of the further consideration of this issue.