Katherine Zappone (Independent) | Oireachtas source

I move amendment No. 48:

In page 32, after line 4, to insert the following:

“PART 8

Abuse of a position of dependence and trust

46. The Criminal Law (Sexual Offences) Act 1993 is amended by substituting the following for section 5:

“Offence of abuse of position of dependence and trust

5. (1) Any person who being in a position of dependence and trust—

(a) takes advantage of his or her position, or

(b) aids, abets, counsels or procures another person to take advantage of his or her position,

and—

(i) induces or seduces a person to have sexual intercourse with him or her, or

(ii) commits any other sexual offence involving a person,

shall be guilty of an offence of abuse of position of trust and shall be liable upon conviction on indictment to imprisonment for a term of not less than ten years.

(2) Where a person charged with an offence under this section can establish that, in respect of the sexual act which had been engaged in, no offence would have been committed had the consent of the victim been granted prior to the act, it shall in those circumstances be a defence for a person who is charged with an offence under this section to prove that—

(a) the victim consented to the sexual act which had been engaged in,

and

(b) that such consent was granted freely and in the absence of duress or coercion.

(3) In this section—

(a) ‘position of dependence and trust’ includes, but is not limited to, a

person who—

(i) provides care,

(ii) is responsible for welfare,

(iii) occupies a position of authority,

(iv) provides education, or

(v) provides support services including therapy or counselling, to the victim;

(b)‘sexual offence’ includes—

(i) a sexual offence within the meaning of section 3 of the Sex Offenders Act 2001,

(ii) an offence under section 2, 3 or 4 of the Criminal Law (Rape) (Amendment) Act 1990,

(iii) an offence under section 6 or 7 of the Criminal Law (Sexual Offences) Act 1993,

(iv) an offence under section 4 or 5 of the Criminal Law (Human Trafficking) Act 2008, or

(v) any other offence of a sexual nature contained in any other enactment and which has been so prescribed in regulations made by the Minister for Justice and Equality under this section.

Consent

5A. (1) It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of that person, the existence of consent in respect of that act shall be determined in accordance with this section.

(2) In determining the existence of consent, an agreement between the parties to engage in the specific act must be established.

(3) In determining the existence of an agreement between the parties to engage in the specific act—

(a) an examination of the communication between the parties immediately prior to the act shall be conducted, and

(b) each person must be shown at that time to have understood the nature of the act.

(4) An understanding of the nature of the act shall only require the person to understand the physical nature of the act and shall not require the person to understand possible physiological consequences of the act.

(5) (a) In determining whether a person has consented to engage in a sexual act, no higher standard of understanding shall apply to persons with disabilities than that which applies to persons without disabilities.

(b) In determining whether a person understood the nature of the act, the presence of a mental impairment shall not be a determinative factor.”.”.

This amendment proposes a new section in an effort to offer a repeal of section 5 of the 1993 Act and to replace it, effectively, with a Bill I put forward a year and a half ago. It is my understanding that the Government is going to bring forward its own amendment in order to repeal and replace it but we do not have that amendment yet. I understand it will be tabled on Report Stage but this is my effort to influence that amendment.

In terms of the Bill I put forward, the Department's response was to publish a discussion paper and invite submissions. It then developed the scheme of a Bill and so forth. I wish to respond to a number of proposals contained in the Department's paper by way of offering a rationale for my amendment. I am doing this in order to be as helpful as possible and to try to influence the Minister's thinking in terms of the amendment she will bringing forward on Report Stage.

Back in June 2014 the Minister spoke during the Second Stage debate on my Private Member's Bill. The amendment before us now is effectively that Bill. When the Minister responded to that Bill, she accepted that we need to repeal section 5 of the Criminal Law (Sexual Offences) Act 1993 and she stated that she had no difficulty with incorporating a number of the concepts in my Bill into her proposals to reform this aspect of law. As I have just said, following on from that commitment, the Minister's Department published a discussion paper in July 2014. That paper proposed the abolition of section 5 of the 1993 Act and its replacement with two new sexual offences. The first of these is a general offence of engaging in a sexual act with a vulnerable person and the second, a specific offence of abuse of a position of trust or authority in respect of a vulnerable person.The paper defined a vulnerable person as someone who "is suffering from a disorder of the mind, or (ii) has a disability which is of such a nature or degree as it (a) may cause the person to lack the necessary understanding to consent to sexual acts [in certain circumstances] or (b) may severely restrict the capacity of the person to guard himself or herself against serious exploitation by another person". That definition is very similar to that of a mentally impaired person which appears in the 1993 Act. Vulnerability is defined only in terms of the person's disability, which means that the individuals the proposed provisions seek to protect are almost identical to those covered by existing legislation. That poses a problem from a human rights perspective because it defines the vulnerability of victims in a way which discriminates against people with disabilities. That is one of my prime concerns and a key issue.

To return to the proposals made in the paper, the general offence of engaging in a sexual act with a vulnerable person, set out in the paper, covers all sexual activity and includes an offence of inducing a vulnerable person to engage in a sexual act. From conversations with departmental officials, it appears that this is targeted at defendants without disabilities who engage in sexual activity with persons with disabilities. The presence of consent or a reasonable belief that there is consent is proposed here as a defence, as is a reasonable mistake on the part of the defendant as to whether the complainant was a vulnerable person. If the defendant raises the latter defence, the court will consider whether, in all the circumstances of the case, a reasonable person would have concluded that the person was not vulnerable. That is the first proposal put forward in the Department's paper.

The second offence provided for in the paper is the abuse of a position of trust or authority in the case of a vulnerable person. This offence only applies to sexual acts which constitute rape or aggravated sexual assault and the defendant is defined as a person "who as part of their employment or as part of a contract for service supervises or provides treatment to a vulnerable person and that supervision or treatment directly relates to that person's vulnerabilities". In this case, the presence of consent is not a defence. However, a reasonable mistake as to whether the complainant was a vulnerable person is a defence. While this provision might, on the face of it, look similar to my proposed amendment, it is different in three important respects. First, it only covers rape and aggravated sexual assault, whereas my proposed amendment would cover all sexual offences. Second, the victim must meet the definition of a vulnerable person which is explicitly based on disability and, therefore, discriminatory and not inclusive. As I argued when I introduced my Bill, many people can be vulnerable to sexual violence, regardless of whether they happen to have disabilities. The presence of consent is not a defence to this offence, whereas it is to the offence I propose to introduce in the amendment. For these reasons, the amendment is preferable to the proposals the Minister has brought forward in the discussion paper. My approach is more inclusive and less stigmatising of people with disabilities.

It is clear that the Department's approach was aimed at avoiding any situation in which a complainant would feel compelled to consent because of fear of an authority figure or a fear that the support provided by the defendant might be withdrawn if she were to refuse. However, if that is the case, a definition of consent which emphasised the importance of consent being freely and voluntarily given without threat or inducement would better address this particular concern. I provide such a definition of consent in the proposed amendment.

The critiques I offer to the proposals which form the basis of my proposed amendment were presented to the Department of Justice and Equality by the Centre for Disability Law and Policy, the Connect People Network, the Inclusive Research Network and other organisations that involve self-advocates and people with disabilities. When the Department published the scheme of the Bill in 2014, it did not include a provision to replace section 5, a matter I understand the Minister will address on Report Stage. The scheme provided a definition of a vulnerable person for the purposes of providing for a new offence. The scheme states a vulnerable person is a person "who (i) is suffering from a disorder of the mind, whether as a result of mental illness or dementia, or (ii) has an intellectual disability, which is of such a nature or degree as to severely restrict the capacity of the person to guard himself or herself against serious exploitation or abuse." This definition equates vulnerability with specific disabilities and retains the approach that there should be a separate sexual offence where the complainant has one of these disabilities. I strongly urge the Minister to reconsider that approach in the light of submissions made by disabled people's organisations and their allies. We do not need or want separate legislation to address the issue of sexual violence against people with disabilities but want to ensure the general law on rape and sexual offences is applied equally to those who abuse and exploit people with disabilities.

I will mention a few words from self-advocates from the Connect People Network on the issue about which I am speaking. It is critical that these changes are introduced before the end of term of the Government. They say: "We think the current law is unfair for many reasons ... The current law is ignorant and old fashioned. It is from a time when people didn't know better ... We can have sex like everybody else ... We should be allowed to do all the sexual things we want to do ... The law is taking our power away ... It is just not fair ... It is nobody's business what I do in my spare time ... Other people don't get questioned so why should we get our private life questioned." They continue in that fashion. I bring some of their words into this debate because if it does not change in the next few weeks, all of it will still stand for people with an intellectual disability who can be criminalised if they engage in sexual relations prior to getting married.

I understand the Minister is anxious to avoid making provisions that make blanket assumptions about the decision-making powers of persons with intellectual or learning disabilities. I know that it has been difficult and that departmental officials have worked very hard on this issue to strike the appropriate balance between autonomy and protection. The purpose of my proposed amendment is to achieve the desired outcome of acknowledging the specific harm caused when disabled people are deliberately selected by the perpetrators of rape and sexual violence. Instead of developing separate sexual offences involving people with disabilities, it can be achieved by introducing provisions to provide for sentencing uplift or enhancement where crimes are motivated by bias or hatred of persons with disabilities or where disabled people are deliberately targeted for sexual violence on the basis of their perceived vulnerability. That approach is used in the case of a wide variety of criminal offences in the United Kingdom. It could be applied in Ireland and would send the correct message on how rape and sexual violence directed at people with disabilities and the members of other marginalised communities would be treated in the criminal justice system. It would do so without sending a stigmatising message to people with disabilities about their perceived ability to consent.

I hope the Minister will seriously consider the proposed amendment for these reasons. It is my effort to respond to some of the arguments made by the Department.