Michael McDowell (Independent) | Oireachtas source

I agree with the idea that the term used to refer to someone in the protected category of people should be renamed "protected person". I think it is a good idea. I also agree that such people should be protected in a workable way.

A legal adviser to political people who are not here in the House - this person is not a legal adviser of my own - has asked me to draw the attention of the House to section 21(3) of the Bill, which provides that: "in proceedings for an offence under this section, it shall be presumed, unless the contrary is shown, that the defendant knew or was reckless as to whether the person against whom the offence is alleged to have been committed was a protected person". In a criminal trial, it generally falls to the prosecution to prove the person was a protected person, but the significance of this section is that it will require the accused person to show whether he or she: "knew or was reckless as to whether the person against whom the offence is alleged to have been committed was a protected person".

The point that was raised with me - this would not have occurred to me directly - is that the effect of this section of the Bill will be to require the accused person in this kind of case to testify. If the prosecution proves that somebody was a protected person, the accused will be guilty, in effect, unless he or she gets into the witness box and on oath tenders evidence establishing his or her state of knowledge. That might be a worthwhile and sensible rule to introduce, but it is also a far-reaching one. When a psychologist or a psychiatrist says that a party to sexual activity is a protected person, as defined in section 21(7), that will be the end of the case unless the accused person rebuts the presumption that he or she knew about the state of the other party to that activity. It seems to me that a presumption of this kind is a fairly serious one to bring about in our law. I think it was introduced by the Dáil. It could have far-reaching effects in trials. I would like it to be properly explained and defended. For that reason, I would like to propose that the Bill be recommitted in respect of this group of amendments.