Michael McDowell (Independent) | Oireachtas source

I do not want to waste any further time on it because I can see that a different standard of proof has been applied for the two situations. Curiously, when one looks to the definition of the people who are to be protected from these crimes there is a further difference. A person could be in one category and not in the other. To be incapable of understanding the nature of reasonably foreseeable consequences of the act is, for instance, quite different from being a person who is suffering from a mental or intellectual disability or mental illness which is of such a nature or degree as to severely restrict the ability of the person to guard himself or herself against serious exploitation. It may be that one is more demanding a category than the other but I can foresee people who would be in one category for one offence and would not be in the other category for the other offence. I find that difficult to understand.

Senator Mullen raised the question that one could be guilty of both offences and that is true. Sometimes in Acts, one can say that a person who is prosecuted or indicted for offence A can be found guilty of offence B. That is not done here, as far as I know. We are therefore left in a peculiar situation where if both charges were put against a person on indictment, the judge would fling one of them out, saying that one cannot come at a person from two different angles. A judge cannot say to a jury that the presumption is one way in respect of one offence and another way in respect of the other or that in one offence the protected person is defined in one way and in the other, the protected person can suffer from different disabilities.

It would have been more to the point to have one single offence, and if there was a need to have an extra penalty for persons in authority that could be provided. I do not practice criminal law any more, and perhaps that is just as well.