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

Senator Mullen may not have been present earlier when we dealt with that section, so if he would like clarity I can explain section 21 again. The proposed section 21(3) 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." This is effectively what is known as a reversal of the 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 when the defendant is a person in a position of trust or authority, the more onerous the shifting of that burden. Clearly there will also be a requirement on the prosecution to show that the act took place. That is assumed.

The question was asked as to how would a defendant 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.