Michael McDowell (Independent) | Oireachtas source

I fully take the Minister of State's point that this particular offence under section 22 is concerned with people in authority. One might consider that a person in authority is under a higher duty when it comes to protecting an individual suffering from mental disability and under his or her authority from engaging in sexual activity with him or her. The point I am making, is that it is the exact opposite.Members spoke earlier about section 21 of the Bill as passed by Seanad Éireann on a sexual act with a protected person. It states "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." However, in section 22, it is provided: "It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she was reasonably mistaken that, at the time of the alleged commission of the offence, the person against whom the offence is alleged to have been committed was not a relevant person." It is provided also: "The standard of proof required to prove that the defendant was reasonably mistaken that the person against whom the offence is alleged to have been committed was not a relevant person shall be that applicable to civil proceedings." The difference is that Senator Bacik referred to the case law regarding murder and the mens rearequired in murder cases. It is the case that in murder cases one is presumed to intend the probable and natural consequences of one's actions. That is a presumption against one in a murder case. However, the Supreme Court has held that if there is a reasonable doubt as to whether one intended the probable and natural consequences of one's act, one is entitled to be acquitted. Therefore, the kind of presumption Senator Bacik mentioned earlier is not the same as what we are dealing with in this case because-----