Damien English (Meath West, Fine Gael) | Oireachtas source

I would just like to provide some clarity. This is an issue on which we took a lot of legal advice from the Attorney General. We are very clear on the legal advice. It did change in the Seanad. The Minister addressed it and spoke to the Dáil on it, as well as on Committee Stage, but the change was made here. I say this as a point of clarity if it helps with the debate.

The proposed section 21(3) states 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." This is what is known as a reversal of evidential burden, where it is for the defendant to show, by raising a reasonable doubt, that they did not so know, or were not reckless as to the capacity of the person against whom the offence was committed to consent to the act. The closer the relationship between the two parties, such as whether the defendant is a person in a position of trust or authority, the more onerous the shifting of that burden. Clearly there would also be a requirement for the prosecution to show that the act took place.

In respect of how the defendant would prove that he or she did not have the requisite knowledge, or was reckless to the extent necessary to commit the offence, the defendant need only raise a reasonable doubt as to his or her knowledge or recklessness. We got strong, clear legal advice from the Attorney General on that. The Tánaiste referred to this on Committee Stage as well. She also referred to this approach being in line with the UN Convention on the Rights of Persons with Disabilities, which requires respect and which many Deputies have mentioned. She did raise it on Committee Stage but it happened here as well. We have very sound legal advice from the Attorney General on this.