Alice-Mary Higgins (Independent) | Oireachtas source

I feel very strongly about this section. My colleague has spoken about the wider issue of the inclusion of criminal sanctions in this Bill. We would all prefer if it was a health Bill and if issues such as criminal sanctions were dealt with in other areas, for example, in amendments to the Offences Against the Person Act or in other locations. This is why there is such strong opposition. It is because for far too long, there has been an attitude of threat and sanction. We have spoken about the shadow of the eighth amendment, which has been felt. In terms of bringing light to this area, it would have been better if we were able to resolutely say that women and women's health constituted the centre. I acknowledge they are strong in this Bill because I believe people voted to support rather than to police women and their health.

I will address the very serious concern I have. As Senator Ruane noted, during the debate in the Dáil, we were told that some of the provisions in this section in terms of offences were to deal with situations of coercion with terms such as "serious and violent", "intimidated" or "forced". One of my main concerns here is that aiding, abetting or counselling a person - actions that may be done from a positive perspective, perhaps done without full knowledge of the law or taken by a family member with good intent in trying to support another family member - are offences but coercion is not an offence under this Bill and is not covered. Regarding the terrible situations we described, I believe this is the case in a very small minority of situations, but where undue pressure is being applied, I do not see where it is properly dealt with in this Bill. Section 23(1) talks about carrying out a termination but in a situation of intimidation or pressure, the termination is not being carried out by the actor. Section 23(4) again uses the terms "aid", "abet", "counsel" or "procure". The Minister said that this is language taken from the 1997 Act regarding accessories. Again, we have a problem. While the woman may not be guilty of a crime, those who support her are treated as accessories to a crime so there is an implied crime in the actions of a woman that are happening outside the terms of this Bill in that section through choosing the 1997 Act.

The other issue is the fact that "aid", "abet", "counsel" and even "procure" are actions that a person takes for someone. It is that person's intent that is being supported. In the case of coercion, intent is being forced upon somebody and the action is being pressed upon somebody and it is not an action of that person's will. We have very clear legislation that we passed in this House regarding coercion. Coercion is not an abstract word. We debated the meaning of words up and down over the course of this debate. Coercion is something for which there is a very strong, clear and recent legal precedent in the legislation on domestic violence. As it sets out what it is to intimidate, press and force somebody to act in a way to which he or she has not consented in the sense of freely given and informed consent, we have the legal precedent in this regard. With respect to the Minister and the Attorney General, I would say that when we put in new legislation, we should endeavour to ensure that our legislation does not simply go back to the 1997 Act or other Acts but reflects the realities, situations, legislation and social concerns such as coercion that have been recognised since and have been given legal recognition since.

I will not press all of these amendments. I recognise that there may be legal complexities with regard to some of them because of the intersection with the 1997 Act, which is the choice and base. However, I am extremely concerned that we could see a situation arise under this Bill whereby a family member, friend or classmate who gives advice, shares medicine in the wrong way or who tells somebody what she did because she had a termination at a time when it was illegal and gives advice that is wrong or inappropriate could find themselves prosecuted in this context while an abusive partner might not. If the person was to find him or herself in such a situation, I would find it very concerning if the same case law was to generate in respect of both.

I have strong concerns about this. I realise there are issues with a couple of my amendments in terms of their legal intersection with the language of the 1997 Act. Could the Minister clarify where coercion sits in this? I seek an assurance about what the interpretation of the word "counsel" is in this regard, because I know the Minister is taking it from the Act relating to accessories. I am very concerned that it could be very widely interpreted whereby innocently given advice or people talking about their own experiences could be misconstrued in this regard and could be regarded as an offence under this section. I am particularly concerned about the term "counsel" in this regard.

I will be supporting amendment No. 36 from our colleagues across the House. It is very important that we are clear, as we are in other parts of the Bill, that when a medical practitioner is acting in good faith, that should be recognised in respect of sections 23(1) and (2). As we already have very clear tests in respect of good faith, I will support that also.