Ivana Bacik (Independent) | Oireachtas source

I should have welcomed the Minister and wished her a happy new year. I also welcome the groups represented in the Visitors Gallery which have worked hard to secure the passage of this Bill, with all of the important provisions it contains. We are all very hopeful it will be enacted before the dissolution of the Dáil.

I commend Senator Katherine Zappone for the important provisions proposed in amendment No. 48. They raise important issues concerning the statutory definition of consent in sexual offences. I have already communicated with the Minister's office on this issue and, as the Senator said, the Minister is likely to propose amendments on Report Stage.We very much welcome that. The Senator outlined a very difficult and complex area, particularly when one considers statutory definitions of consent generally. The English Sexual Offences Act 2003 provides in section 74 for a statutory definition of the concept of consent that is very broad. In that, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice. That very broad definition has been criticised for being too broad and allowing too much discretion to judges and jurors in its interpretation. Senator Zappone's provisions are much more detailed and clearly relate specifically to issues around abuse of positions of dependence and trust. In framing any amendments, it is difficult to strike the balance between allowing a definition to be broad enough to encompass the idea of freedom and capacity, which is so central to consent, and yet be detailed enough so that any discretion can be structured rather than too open to subjective interpretation by jurors. I appreciate that it is a difficult task to draft these amendments.

I will briefly mention another amendment that I know Senator van Turnhout will put forward on Report Stage. It is an amendment to section 33. On the last day we did not get an opportunity to discuss her amendments Nos. 35 and 43 to section 33, which concern third party disclosure. I know we were all hopeful that we would conclude Committee Stage on 11 December last year and at that point Senator van Turnhout did not engage in any detailed discussion of those amendments. I know we have now dealt with them but on her behalf - she is engaged in business before the UN Committee on the Rights of the Child - I notify the House that she will put forward another amendment to section 33 on Report Stage concerning third party disclosure. She has probably contacted the Minister about this already. This will be an amendment to section 19A(17) of the 1992 Act, where the complainant or witness has expressly waived his or her right to non-disclosure of a relevant record without leave of the court. I thank the Acting Chairman for allowing me to raise that matter.