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

I thank Senators Zappone and Bacik for their contributions. It is obvious from their comments that there has been much discussion with the Department on the issue over a protracted period and I thank them and other Senators for putting forward their views. On foot of the responses to the discussion paper mentioned by the Senators, a number of concerns raised are being addressed in the amendments that I will bring forward on Report Stage. Bringing forward these amendments will give us the opportunity to discuss the issue again.

On the question of consent, I have met Dr. Susan Leahy, who completed her doctorate on the question of consent. It is very detailed work and my officials have been in touch with her as well to discuss the issue. In some jurisdictions there are definitions that are elaborate but we rely on case law. There is quite a debate as to whether we should go down that direction in terms of definition. I am examining this very carefully as I do not want to undo some of the very good work that has already been done with this. At the same time, if a stronger definition is going to strengthen the opportunity to prosecute in cases of crime where it can be notoriously difficult to achieve prosecution, I will bring it about. The matter is being examined very carefully from the legal perspective.

I cannot accept the Senator's amendments but I should provide some context. The Government and I fully support the repeal of section 5 of the 1993 Act and necessary measures will be brought forward. We are fully committed to addressing the principles behind the Bill, as we have made clear. The fact that the necessary amendments have not been brought forward today - they would have had to have been in by 9 December last year - is entirely a reflection of the complexity of the issue. I have been considering the range of legal issues and we have been getting extensive legal advice on them. They are extremely complex from a criminal law perspective, as the Senator appreciates, notwithstanding the periods involved with our discussions.

Section 5 of the 1993 Act is a very blunt instrument. It identifies a group of people by reference to mental handicap or mental illness and offers complete protection based on their ability to live an independent life or guard against serious exploitation. In particular, where the section refers to a person being "incapable" of living an independent life, it fails to recognise that a person who may need assistance with certain daily routines or tasks is nonetheless perfectly capable of making decisions about personal and sexual relationships and the wide protection offered by section 5 is, in this respect, unwarranted. I absolutely accept that.

This is relevant given the Government's policy on supporting people to the greatest extent possible in living ordinary lives in ordinary places. By definition, this includes having relationships with other people, whether that is friendship or more. That duty sits alongside the duty to provide appropriate protection for those at greatest risk of exploitation. There are balances and we are trying to find a legal formulation to deal with that issue. For the first time we are seeking to introduce provisions into our criminal law that will protect only those who are unable to protect themselves while ensuring the rights of everybody to engage in everyday relationships. The challenge is that criminal law cannot be vague and there must be clarity as to the nature of an offence. Where the law purports to offer special protection, those it protects must be identifiable; that is a very obvious statement but it has proven complex in many ways.

As I have stated, we found the consultation process useful in hearing a wide range of views and proposals. There was not a clear consensus on the way forward. The time it has taken to bring forward these proposals reflects the consideration they have received. They are very close to finalisation. I have looked at them in detail. The final proposals will represent the very best solution available in criminal law for this issue.

With regard to the amendments put forward today, the proposed new section substitutes a new offence of abuse of position of dependence and trust. The offence arises where a person, being in a position of dependence and trust, takes advantage of his or her position and induces or seduces a person to have sexual intercourse with him or her or commit any other sexual offence involving a person. The proposals do not deal with situations outside this category of offence of abuse of position of dependence and trust. For example, a person who may be vulnerable to exploitation and who is so exploited by a neighbour, for example, may not be afforded the protection of this provision. In other respects, the provision is quite wide, as it does not include any limitations on persons who may fall within the category of a victim of this offence.

In terms of the defence of consent in subsection (2) of the proposal, consent must be granted freely and in the absence of duress or coercion. There is some concern as to whether this defence could be successfully relied upon where a person in a position of dependence and trust taking advantage of that position would effectively groom a victim for the purpose of having sexual relations. Depending on the form of act or activity involved, it may not amount to duress or coercion. There is a continuum with which it is difficult to deal.

In its report on sexual offences and the capacity to consent, the Law Reform Commission frames an offence on the basis of capacity to consent. The proposals being developed within the Department also contemplate the approach of capacity to consent.I share, as does my Department, the Senator's commitment to uphold and promote the integrity and rights of all persons. I have made it clear that we are obviously not satisfied with section 5. We are preparing an amendment that addresses what she has outlined in the best possible way. It is very complex. The ongoing work is equally focused on that goal. Where persons are at a greater risk of exploitation or abuse, the law must offer appropriate protection as, I am sure, the Senator would agree.

We are looking at several issues and finalising the amendments, including the definition of "vulnerable person" and the issues around consent. I am not in a position to accept the amendments today. We are working very closely with the OPC on the final drafting and I hope we will make good progress in the coming days.