Michael McDowell (Independent) | Oireachtas source

In this instance, what is and what is not a defence is stated. The fact that consent was apparently given is not acceptable in cases where the relevant person is defined as being an individual who has a mental or intellectual disability or a mental illness which is of such a nature as to severely restrict the ability of the person to guard himself or herself against sexual exploitation. That is a different definition from that relating to "protected person". I find it curious that in respect of one group of people, namely, "protected persons" in section 21, that we introduce a different category of persons with disabilities and call them "relevant persons" and put a different standard into law in respect of individuals with mental or intellectual disabilities or mental illnesses that are of such nature or degree as to severely restrict the ability of those persons to guard themselves against serious exploitation.

I wonder about this matter. Let us take an example. Does a person who is suffering from bipolar disorder they fall within this category? Is somebody who is suffering from bipolar disorder and who is on a high and behaving egregiously, flamboyantly or in an uncharacteristic way simultaneously suffering from a mental illness that is of such a nature or degree as to severely restrict the ability of that person to guard himself or herself against serious exploitation? Arguably, somebody with bipolar disorder would fit into that category. A person in authority in respect of such an individual faces a different test completely from that contained in section 21 regarding the protected person category. I wonder why we are approaching people with mental disabilities or illnesses - temporary or permanent - in a different way in two sections, which are effectively about the same thing, namely, protecting people who are suffering from disabilities or mental illness from exploitative sexual activity by either persons in authority or any other person? The curious thing is that, as I see it, the defences outlined in section 22 are more generous to a person in authority than to an ordinary man or woman under the protected person section.

Without wasting any more time, why do we have two different standards in respect of a general rule for people who are "protected persons" and persons who are defined as "relative persons" under the authority of a person in authority? Why it is that the defence which is open to a person in authority seems to be more generous and easier to establish than is the case in respect of any other individual who has sexual activity with a person who is suffering from a mental illness or a disability?