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

I advise Senator David Norris that the term is used under existing law. It is used here in the same context as sexual intercourse, also described as an act under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 which involves penetration and that these are commonly used and understood in this area of law. There is a precedence.

In regard to the points made by Senator Jillian van Turnhout, we have tried to take on board the substance to deal with the issues which the Law Reform Commission felt needed to dealt with in this area which were not being dealt with under section 5 of the 1993 Act. That section 5 did not really make allowance for the fact that a person incapable of living an independent life may, nonetheless, be capable of giving consent to a sexual act. It was strongly believed and all the recommendations say that section 5 of the 1993 Act fails to respect the autonomy of individuals solely on their status rather than capacity. We have also widened out the range of offences because the Law Reform Commission also said that was an issue.

In regard to the last point as to how would the lack of capacity in the protected person be proven in court. The way that is done now is that evidence of the person's capacity could be shown through the victim's own testimony, the testimony of close family or others who know them or, as has been the case, expert evidence of persons with knowledge of particular disability or illness and the impact of such on the individual's capacity at the time the act took place.