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

The nub of the matter relates to the difference in the relationship. That is what we are trying to reflect. Section 21 reverses the burden of proof on to the defendant and, therefore, a reasonable doubt is sufficient to remove that burden. Under that section, it is only necessary to establish a reasonable doubt. It is a different relationship between a person who is in authority on foot of a contract for services and who may exploit a vulnerable person in their charge. They have responsibility over the person. They are in authority. It is a completely different relationship. The position outlined in section 22 is in line with the Law Reform Commission report on sexual offences and capacity to consent with regard to offences of persons in authority.

By way of background - I did not refer to this in my opening address because we had a vote the meantime - section 22 was introduced by way of Government amendment brought forward on Committee Stage in the Dáil to fully ensure the necessary protection from exploitation by persons with responsibility - that is the difference - for the welfare, care and supervision of certain persons with disabilities, an offence is being introduced that will create an offence of engaging in sexual act with a relevant person. For this purpose, a "relevant person" is an individual who has a disability which is of such nature or degree as to severely restrict the ability of the person to guard against serious exploitation. Again, it is a fundamental test but it is not related - as is the case with section 21 - to capacity to consent at a particular time or to a particular act. The aim of the offence is to ensure that those persons with responsibility for the care and well-being of another do not take advantage of that person's ability to protect himself or herself against serious exploitation. The intention is to provide a breach of trust by those responsible for another person's care and welfare and who has contracted responsibility for the person. The relationship between a person in a position of authority and an individual under his or her care may be such as to be open to exploitation. This provision does not undermine the capacity of a person who may be defined as a "relevant person" from consenting to a sexual act. It simply places a responsibility on those in authority to maintain an appropriate relationship. The defence replicates the provisions in relation to sexual acts with persons under 17 years, as per the Sexual Offences Act 2006, which the Senator - who was then a Minister - introduced and which is being amended by this Bill.