Michael McDowell (Independent) | Oireachtas source

It seems to me that the introduction of a presumption in criminal law of guilty knowledge against an accused person is a very far-reaching and most unusual provision of criminal law. The mental capacity of the person alleged to be a protected person is a matter to be proven one way or the other by the prosecution. As I read it - maybe others will disagree with me in this regard - there is an onus on the prosecution to establish that the alleged party to the sexual activity is a protected person and to introduce evidence which will ultimately place that issue beyond reasonable doubt.

It is worth looking at the presumption that underpins section 21(3) of the Bill. It means that in a case in which the prosecution has proven that sexual activity took place, the accused person - a man or a woman - took part in that sexual activity, and that the other party to that activity was a protected person, the crucial question of whether the accused person "knew or was reckless as to" the mental status of the person he or she was with is presumed against him or her in a most unusual way. The effect of the presumption against the accused person relates to the ingredient in section 21(1), which defines the offence when it provides that "a person who engages in a sexual act [this is defined in section 20] with a protected person knowing that that person is a protected person or being reckless as to whether that person is a protected person shall be guilty of an offence." That is the essence of the crime.

My reading of the meaning of this section is that the Dáil, following on from the requirement to prove that the accused person and the protected person engaged in a sexual act, as defined in this Bill, and that one party to that act was a protected person who "by reason of a mental or intellectual disability or a mental illness" was incapable of "understanding the nature, or the reasonably foreseeable consequences, of that act", of "evaluating relevant information for the purposes of deciding whether or not to engage in that act" or of "communicating his or her consent to that act by speech, sign language or otherwise", has introduced a presumption that forces the accused person to give evidence to prove his or her own innocence. That is a very far-reaching change in our criminal law. In effect, it is a presumption against the accused person in respect of one of the essential ingredients in the offence created by section 21(1).

I have doubts about the propriety of creating such a presumption to the extent provided for in the Dáil. I know there are difficulties in these kinds of cases, but it seems to me that this provision will affect an accused person who wants to raise an issue about a person with a slight intellectual disability - I do not like to use the word "handicapped" - after it comes to light that sexual activity took place between those two people. We are talking about people with various degrees of disability who engage in sexual activity, perhaps to the displeasure of their guardians.The real issue is that the accused person will be presumed to have been reckless or to have known that that person's disability was such as to bring them over the line. I wonder about the propriety of that.