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

I am conscious that these very important amendments have been introduced at what might be a late Stage of the debate on this Bill in this House. They are a response to the amendments in which Senators Zappone, van Turnhout and others have had a particular interest. Detailed discussions have been held with Senators regarding the approach to this section. I thank all Senators who have made contributions to the discussions. This has been a technically difficult part of the legislation on which to work. The contributions have been very carefully considered, legal advice has been sought and we have worked with the Office of the Parliamentary Counsel and the Office of the Attorney General on these amendments.

There are four sections proposed to deal with at the core of the amendments. I draw the attention of Members to the proposed section 21, which creates the offence of a sexual act with a protected person. In order to define the persons who require protection under this provision, and to move away from the status-based approach that was followed in section 5 of the Criminal Law (Sexual Offences) Act 1993 which it is agreed needs to be changed, a functional test as to the capacity of a person with a mental or intellectual disability or a mental illness has been adopted. Essentially, the offence arises where a person engages in a sexual act with a person who they know lacks the capacity to consent to the sexual act by reasons of a mental or intellectual disability or mental illness. The offence also arises if the person is reckless as to the capacity of the protected person to consent to the sexual act. A lack of capacity to consent to a sexual act is defined in subsection (7) of the proposed section 21 and arises where the person is incapable, by reason of a disability, incapacity or illness, of understanding the nature or the reasonable foreseeable consequences of the sexual act; to evaluate relevant information for the purpose of deciding whether or not to engage in the act; or to communicate his or her consent to the act.

There is no presumption that a disability or illness of itself gives rise to an incapacity to consent. However, where a disability or an illness does mean that a person is incapable of understanding the act, evaluating relevant information or communicating consent, then there would be no capacity to consent. This approach is in line with the UN Convention on the Rights of Persons with Disabilities, which requires respect for the full participation in society of persons with disabilities, and which the Government is committed to, as well as appropriate protection for those who lack capacity to consent to such an act owing to the nature of the disability. This amendment will introduce the required provision.There is a second offence of inviting, inducing, counselling or inciting a person to engage in a sexual act where they lack capacity to consent by reason of the said disability or illness. Again, I repeat, there is no offence committed where there is capacity to consent. These offences clarify in law the approach advocated under the UN Convention and by the Law Reform Commission and address a number of the issues raised by and on behalf of various interest groups.

In regard to the other amendments which have been proposed the meaning of "sexual act" is expanded in the proposed section 20 from that set out in the 1993 Act. It includes the acts described in section 3(1) or 4(1) of the Criminal Law (Rape) (Amendment) Act 1990 which would amount to a rape or aggravated sexual assault. It also, importantly, includes the wide range of acts which are done without consent that would amount to sexual assault. This also responds to a number of calls to expand the meaning of "sexual act" under the 1993 Act. I hope this meets the concerns people had and the need to develop our legislation so that it respects the rights of those who may be dependent in other ways but respects their rights to have relationships, effectively. That is what this is doing.

I will highlight one or two other aspects of the amendment. The proposed section 22 retains the provision from the 1993 Act which confirms that no proceedings for an offence under this Part will be brought except with the consent of the Director of Public Prosecutions. That is an important provision.

Section 23 will repeal section 5 of the 1993 Act about which many people had concerns. It will also repeal section 6(2) of that Act which contained an offence of soliciting for the purpose of prostitution a mentally impaired person. I think these proposals address a very important and complex subject which was discussed in the course of the legislation in the House and on Committee Stage some time ago.

I commend these amendments to the House.