Ivana Bacik (Independent) | Oireachtas source

We could have this debate all night. I want to make one very simple point. These are two separate offences, which are separately drafted. I have already pointed out to Senator McDowell that in section 22 the burden is heavier on the person in authority to raise a defence - I am right about that - than the defence available in section 21 or the onus on the prosecution in section 21.

It is also important to note that the person being protected, the complainant or victim in each section is also different. In section 22 it relates to a person who lacks capacity to consent.

I do not take Senator McDowell's point on the drafting and the "or". It is like oranges, apples or pears. I think that is very clear in section 21(7). However, one should look at the difference between the person who lacks capacity to consent, who is being protected in section 21, and the relevant person in section 22, who may not, in fact, lack the capacity to consent. However, where the offence against them has been committed by a person in authority, section 22(4) specifically states that it is not a defence to prove that the person, against whom the offence is alleged to have been committed, consented. These are two very different offences designed to tackle two very different types of exploitation or abuse. Perhaps we can wrap up the debate on the note that they are different. While at first sight the Senator might think the language should have been closer or more aligned, on closer perusal, one can see why the language is different in both because they are seeking to tackle two very different harms.