Seanad debates

Tuesday, 10 June 2014

Criminal Law (Sexual Offences) (Amendment) Bill 2014: Second Stage


Question proposed: "That the Bill be now read a Second Time."

5:05 pm

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Before calling on Senator Zappone to speak, I wish to take this opportunity to welcome the Minister for Justice and Equality, Deputy Frances Fitzgerald, to the House in her new capacity. She is a familiar face in this House not only because she was Leader of the Opposition during the last Seanad, but also because she was a frequent visitor here during her time as Minister for Children and Youth Affairs both to present legislation and take Adjournment matters. She is very welcome.

I call Senator Zappone who has ten minutes.

Photo of Katherine ZapponeKatherine Zappone (Independent)
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I wish to echo the Acting Chairman's eloquently stated sentiments in welcoming the Minister for Justice and Equality, Deputy Frances Fitzgerald, in her new portfolio. That role is so appropriate for her.
The Bill that I have such a privilege to introduce this afternoon was inspired by the voices of people with disabilities in Ireland. Those voices are telling stories of loving relationships that are crushed, or never even given the chance to develop, because of stigma and prejudice against people with intellectual disability. Those voices, which also belong to some of those in the Visitors Gallery today, are calling for the freedom to love and to express love on an equal basis with others.
The right to relationships and sexuality goes to the core of what it means to be human. Only this morning, I received an e-mail from the parent of a very young boy with Down's syndrome. After expressing his gratitude for this Bill this parent wrote:

While this doesn't affect my son yet, as he is far too young, I have been aware of the current legislation for quite some time. It is completely outdated and harks back to the time of anyone with an intellectual disability being segregated, isolated and not allowed the freedom to live their life, their way ... I would hate my son to be at risk of prosecution ... for finding a happy, fulfilling and active relationship in time - actually, maybe, when he's in his thirties.

As the Minister is aware, section 5 of the Criminal Law (Sexual Offences) Act 1993 prevents people with intellectual disabilities from having sexual relationships before marriage. While the initial intention of this law was to provide protection from abuse, it has instead created a painful, chilling effect on loving relationships. Although the law is relatively infrequently utilised in the criminal context, the mere presence of such a discriminatory law on the Statute Book has caused a widespread and damaging mindset against people with intellectual disabilities engaging in romantic relationships. This conflicts with international human rights law and Irish constitutional law.

Recently, self-advocates with intellectual disability have given poignant accounts of the effect of these laws on their lives through the Inclusive Research Network, Connect People Network, some of whose members are present in the Visitors Gallery, the RTE documentary "Somebody to Love", which powerfully captured the artistry of the Blue Teapot Theatre Company in Galway, a number of whose members are also present, and the wider self-advocacy national platform and movement. These accounts inspired me to take action and create this Bill, which aims to change the current discriminatory laws and give people with intellectual disabilities the freedom to love. One could say, therefore, that art and advocacy have influenced politics in this case. In lay person's language, the Bill could be, to take as the Title, the right to love Bill - that is the hashtag - or the right to romance for people with intellectual disabilities Bill.

I acknowledge the research and technical support I have received in the drafting of the Bill from Dr. Eilionóir Flynn and Dr. Anna Arstein-Kerslake of the Centre for Disability and Law at NUI Galway, both of whom are in the Visitors Gallery, and Dr. Brian Hunt. I also thank the Leader for allowing me to introduce a Private Members' Bill at this time.

I am aware that the Department is reviewing the Criminal Law (Sexual Offences) Act and my Bill is offered to support that process. It has been designed with and for those on whom it impacts and according to the best international standards, including the United Nations Convention on the Rights of Persons with Disabilities. This is an opportunity for Ireland to become a world leader in securing the right to relationships for people with disabilities.

The aims of the Bill are threefold, namely, to eliminate discrimination on the basis of disability; to provide protection from abuse for all individuals by introducing a new offence, "abuse of a position of dependence and trust"; and to create a statutory definition to consent to sex. As a starting point and to ensure non-discrimination, it was clear that section 5 needed to be removed from the Act in its entirety. International human rights standards and Irish constitutional law do not permit such blatant discrimination against people with intellectual disabilities. In addition, in accordance with the UN Convention on the Rights of Persons with Disabilities, the Bill specifically and intentionally avoids any functional test of capacity, as it is known in legal terms, to consent to sex.

These tests generally require that the individual understood and appreciated the nature and consequences of the act and could use and weigh information relevant to the Act prior to the sexual act. Even in jurisdictions where their application is not specifically restricted to people with intellectual disability, these tests are disproportionately applied to people with intellectual disability. This occurs formally in courtrooms and informally when service providers and others believe they can require people with intellectual disabilities to pass such a test before they will support or facilitate their relationships. In addition, these tests do not accurately reflect how sexual decision making occurs. If we were all held to the standard of understanding and appreciating the nature and consequences of sexual acts prior to engaging in them, much of our sexual activity would be criminalised. For this reason, the Bill aims to eliminate such tests to ensure people with intellectual disabilities are not discriminated against by being held to a higher standard of sexual decision making than we are.

The Bill creates an offence for people in a position of authority or trust who abuse their position for sexual purposes. This reflects a recommendation of the Law Reform Commission.

This offence of abuse applying to people who are in a position of trust or authority is an attempt to respect people with intellectual disabilities as individuals while acknowledging that they, like anybody else, may consent to sexual activity. The offence is included to provide the necessary protection while ensuring that right is respected.

As the Minister is well aware, the focus of criminal law generally is on the perpetrator and ensuring the law is appropriately crafted to hold people responsible for their criminal actions. We took that into account in the Bill. However, the purpose of criminal law also is to see that justice is served. The mere existence of the criminal law encompasses much more than courtrooms, law enforcement and the perpetrators of crime. The codified law permeates the minds and social consciousness of wider society and has the power to affect the daily lives of individuals. We have seen this effect in respect of section 5 of the 1993 Act. Its most damaging effect has not been in the criminal justice system but in the daily lives of people with intellectual disabilities. As a consequence of that provision, community service providers, family members and others have believed that they can or must prevent people with intellectual disabilities from having relationships. This Bill aims to end that situation, to ensure justice is truly served and to prevent the criminal law from acting as a barrier to the rights of people with disabilities.

The proposed section 5A of the 1993 Act, as inserted by section 1 of this Bill, aims to provide a statutory definition of consent in order to respect the sexual agency of all actors and criminalise sexual acts that are not agreed upon or understood by all parties. This provides a nuanced, meaningful and relatively straightforward definition of consent that is inclusive of people with disabilities. It is intended to apply to all existing sexual offences that provide for a defence of consent. There has been a great deal of debate about the merits of including a statutory definition of consent to sex in Irish law. My view is that it must be done. In fact, it is a crucial addition to ensure full equality before the law, especially for people with disabilities. The goal of the provision is to set out fundamental principles to guide courts and jurors when determining whether valid consent was given in particular circumstances and thereby eliminate the need for a functional test of capacity that is discriminatory.

The Bill provides a test of consent which everybody can undergo. Rape Crisis Network Ireland and the Law Reform Commission support the inclusion of a statutory definition of consent in sexual offences legislation. The Minister has the power to ensure it is done. The guidance on determining consent provided in the proposed section 5A of the 1993 Act includes a requirement that is simple, namely, that there must be agreement and understanding by both parties before engaging in a lawful sexual act.

The proposed subsection 5A(5), to be inserted in the 1993 Act by way of section 1 of this Bill, provides that in determining whether consent was validly given, a person's mental impairment shall not be a determinative factor. This requirement reflects the obligations contained in the Convention on the Rights of Persons with Disabilities, especially the obligation under Article 12 which has been interpreted by the UN committee to mean that "perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity". In other words, legal capacity cannot be denied on the basis of a person's mental capacity.

In summary, this short Bill seeks to replace a section of the current Act, to insert a new offence and to add a statutory definition of consent to sex. Taken together, these provisions will ensure that Irish legislation on sexual offences is disability neutral, that is, that no separate offences exist which apply only to persons with disabilities and no higher standards are imposed on persons with disabilities than those imposed on the general population. This is essential to end the stigmatisation of persons with disabilities and ensure full equality. The Bill represents an attempt at a legal innovation to ensure a proper balance is achieved between respect for individual autonomy and legal capacity and the need to ensure protection against exploitation and abuse.

I repeat the terms "respect" and "protection" - the Act refers only to protection but not respect.

I remain open to discussing ways of accomplishing these important goals of equality and protection against abuse by introducing other innovations, but not at the expense of the principles that I have identified as core to the Bill. I thank the Minister for Justice and Equality, Deputy Fitzgerald, and the officials in the criminal law reform unit who very graciously met me last week, for their consideration of the Bill and I look forward to the Minister's response.

5:20 pm

Photo of Ivana BacikIvana Bacik (Independent)
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I welcome the Minister, Deputy Fitzgerald, back to the House as Minister for Justice and Equality. I think that I have already welcomed her in that capacity, but she is welcome, too, on this important legislation. I commend Senator Zappone on bringing forward this legislation and I am delighted and honoured that she asked me to second it.

The legislation recognises a lacuna and flaw in our current legislation on sexual offences which has been recognised and identified by many people, but Senator Zappone is the first to have put the work in and given the commitment to look at how best to deal with and resolve the issue. I thank her also for the excellent briefing which she offered us in the Merrion Hotel earlier today, which I was delighted to attend. It was chaired by Suzy Byrne, the disability rights campaigner, and a clip from the documentary "Somebody To Love" by Anna Rodgers was introduced by Zlata Filipovic. It is a moving and powerful film concerning the right to sexual autonomy of people with disabilities. I am sorry that I had to leave before the end, but a panel of self-advocates was also there. I know that many of the people there, whom we also welcome here today, would have been instrumental in seeking legislation such as this.

As Senator Zappone said, she created the Bill in response to a call to action by the self-advocates and disabled people's organisations. She also acknowledged, as was acknowledged at the meeting earlier, the role of the Centre for Disability Law and Policy at NUI Galway in the formulation of the Bill, in particular that of Dr. Eilionóir Flynn and Anna Arstein- Kerslake. I should acknowledge also the role of my friend, Professor Gerard Quinn, who has done a huge amount to put law on disability rights to the fore in Ireland. There has been a long genesis to the Bill and I commend Senator Zappone on putting it together.

The fact that the existing legislation is outdated has been recognised. The current legislation is the Criminal Law (Sexual Offences) Act 1993, section 5 of which creates an offence for a person who has or attempts to have sexual intercourse, or commits or attempts to commit buggery, with a person who is mentally impaired. It is a crude provision which is problematic in two aspects, as Senator Zappone has outlined. First, it purports to criminalise particular forms of sexual activity with persons who are mentally impaired irrespective of consent, the only proviso being otherwise than a person to whom they are married. Marriage provides the defence, but there is no provision for consent as a defence. Secondly, the Act provides insufficient protection against abuse for persons who are vulnerable. As the explanatory memorandum points out, that was demonstrated in a case in the Central Criminal Court in November 2010, where it was pointed out that particular sexual acts are not covered by section 5. The provision is therefore crude and inadequate in some respects, but it is also overly paternalistic in others and fits in with a very outdated view of intellectual disability which happily has changed even in the relatively short period since 1993. We are not talking about very old legislation - that is the irony - but I wanted to address the context for this. If one looks at our sexual offence laws generally - I did some work on them in practice, acting for the State in some cases defending aspects of sexual offences legislation - one sees that a real problem, particularly when one is in that position of defending legislation before the courts, is that there has been so much piecemeal reform over the years. So much of it has become dated quickly as our understanding of certain offences, for example, those against children, has changed.

We have seen our sentencing regime for sexual offences against children change dramatically within a relatively short space of time as people become more aware.

Senator Zappone has proposed a Bill that seeks to amend section 5 of the Criminal Law (Sexual Offences) Act 1993, which did quite a number of things but did not purport to set out any sort of proper code on sex offences. That had been attempted in the Criminal Law (Rape) (Amendment) Act 1990, which is now seen as somewhat problematic as it creates a somewhat clumsy series of tiered serious offences, including the rather anomalous offence of "rape under section 4", which covers forms of rape other than common law rape as covered in the Criminal Law (Rape) Act 1981. Even though we have all of these different variants of sexual offences, we have gaps where certain adequate protections are not offered. As a result of the 2006 decision in the CC case, which called into question the whole practice and policy of charging in sexual offences case, we saw some hasty law-making to try to fill another gap concerning the protection of children against sex offences. Again, that legislation subsequently needed to be amended.

This Government has committed to an overhaul of sex offence laws. On 17 December 2013, it approved the drafting of a wide-ranging sexual offences Bill. I know it is currently being drafted as priority legislation. Private Members' legislation like the Bill before the House has an important role to play in seeking to highlight to the drafters of Government legislation what can be done to try to address problems that have been identified with existing legislation. Now that we are finally looking at a comprehensive overhaul and codification of sexual offences laws, we have an opportunity to ensure up-to-date and adequate provisions are in place. The Government has to ensure the new legislation is consistent with the Assisted Decision-Making (Capacity) Bill 2013, which the Joint Committee on Justice, Defence and Equality has been debating. At our hearings on that Bill, we have considered similar issues relating to personal autonomy and the capacity to make choices. We heard about some of the same issues at this morning's briefing. They were evident in the documentary.

Senator Zappone has proffered a resolution of the difficulties with section 5 of the 1993 Act, which we have identified. It is a much more elegant structure. As the Senator said, it offers a disability-neutral approach. Rather than providing specific protection for people with intellectual disabilities, it breaks down what section 5 sought to do into two things. First, it provides for a new offence of "abuse of position of dependence and trust". This new offence would apply to anyone who takes advantage of such a position by sexually exploiting another person, or committing a sexual offence involving him or her. That is disability-neutral. It does not offer specific protections to people with disabilities. Instead, it rather elegantly shifts the focus to the perpetrator of the offence of "abuse of position of dependence and trust". There are specific criteria for what constitutes a position of dependence and trust. It covers a person who provides care to another. That would clearly cover many instances of carers of people with disabilities. It is not limited to that, however. It seeks to resolve an issue that relates not only to people with disabilities but also to people who are vulnerable in other ways and may be in dependent positions.

The second thing the new legislation seeks to do is provide for a definition of consent. This goes well beyond any issues around specific offences concerning people with disabilities. It seeks to offer a new definition of consent that again focuses on the issue of agreement and on the positive aspect of consent. This is something feminist critics of rape laws have often called for. We do not yet have it in an Irish context. The explanatory memorandum rightly points out that section 9 of the Criminal Law (Rape) (Amendment) Act 1990 sought to assist juries in defining absence of consent by providing that "any failure or omission by [a] person to offer resistance ... does not of itself constitute consent". Again, that is a very inadequate provision. By simply stating that submission is not consent, it addressed an old rape myth that needed to be addressed but did not go any further than that. It certainly did not provide the sort of positive affirmation of the need to ensure agreement and consent in sexual activity that we now recognise as imperative.

I am out of time but I will conclude by commending Senator Zappone again. The legislation the Government will bring forward should take account of many of the issues and principles that have been addressed by the Senator in this Bill. Section 5 of the 1993 Act has not given rise to many prosecutions - almost none, as it is very rarely used - but it has undoubtedly had a chilling effect on the lives of people with disabilities. It is a discriminatory provision that requires amending. I hope the new legislation that the Government intends to introduce will incorporate respect for the sexual agency of all.

5:35 pm

Photo of Averil PowerAveril Power (Fianna Fail)
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I welcome the Minister to the House and congratulate her on her recent promotion. I also commend Senator Zappone on introducing the Bill. I welcome the individuals and organisations present with us today in the Gallery. It has been a long fight to put the legislation on the agenda. Those concerned have a powerful advocate in Senator Zappone to take the issue forward. I acknowledge the work that has been done by individuals, their families, advocacy groups, personal advocates, and Anna Rodgers who made the documentary "Somebody to Love" which I found powerful and touching, that highlighted the need for change in the area.

As other speakers have indicated, the current law is totally out of date and inappropriate. It stigmatises people and is based on totally outdated and patronising attitudes to people with disability and takes no account of their ability to have relationships, engage in sexual activity and have the same aspirations all of us have. Senator Zappone referred to the freedom to love, to be in a relationship and to have ways of expressing that love. It is past time for us to change the law to ensure that it is disability-neutral and is based on the principle of equality while also ensuring adequate protection against exploitation and people taking advantage of their position. That should apply to everyone, regardless of whether they have a disability. Advantage can be taken of elderly people and others in care homes and other environments regardless of whether they have a disability.

I very much welcome the legislation, which as Senator Zappone pointed out, addresses a number of different issues. For the first time, it moves towards having a statutory definition of consent that is disability neutral. That is something the Rape Crisis Centre, the Law Reform Commission and others have recommended. It is a complex area in some respects and I look forward to considering such aspects in more detail using case law and definitions used in other jurisdictions. It would be a new departure to put such a definition in legislation. That is a positive step but it is something we must be careful to get right. I welcome the opportunity to debate the issue at a later stage.

I agree with the principles proposed that the definition of consent would be based on a consideration of understanding and communication and not on the circumstances that pertain such as whether the person involved has a disability. It is time that those matters should be the key elements rather than as has been pointed out, presenting anyone with an impossible test on which any of us could fall short. It is wrong to categorise people with disability and assume they do not have the capacity to consent.

It is important that the Bill raises educational initiatives. Advocacy groups and the Law Reform Commission have highlighted such a gap in current practice. We are not great on sex education in general for anyone in this country. We still have young people going through school that get a cursory sex education, if any, depending on the school they attend or the teacher they have for the purpose. Some students still go through the school system with perhaps a half hour talk on the mechanics of sex but without any proper education on protecting themselves, risks, relationship and related matters. It is an area where a lot of work needs to be done. It is of particular importance that people with disabilities would have the same access to appropriate sex education as everyone else so that they do not end up in a situation where they are vulnerable to abuse because they do not understand what is happening. I am concerned that as matters stand that would be an issue for all children, in particular when some schools do not offer the stay safe programme. Because the programme is not compulsory a small number of schools do not offer child protection programmes. I accept that is a wider issue. I commend Senator Zappone on including it as part of the debate because it is important.

Regardless of whether a person has a disability, key aspects in a relationship include having an understanding of what is involved, having an ability to spot if someone is doing something inappropriate, protecting oneself and making an informed decision and choice. It is time we recognise one cannot categorise people with disabilities so as to refuse them the option to make that choice. Our laws must catch up and, as was said at the start of the debate, it is time these people were given the freedom to love.

This is excellent legislation and I commend Senator Zappone for bringing it forward. I hope the Minister will support it. I understand the Government has promised legislation in this area at some stage but that it deals with a much wider area than what is proposed in this Bill. I would like to see this legislation progress to Committee Stage where we could have a more detailed discussion on the different issues involved.

I commend the Bill to the House.

5:40 pm

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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I thank Senator Zappone for introducing this important legislation and Senator Bacik for seconding it. I was glad to avail of the opportunity to meet with Senator Zappone, along with my departmental officials, to discuss the details of the Bill. I congratulate her on drafting this legislation and pay tribute to the advocates she mentioned who work in this area and supported her in this, some of whom join us here today.

Section 5 of the Criminal Law (Sexual Offences) Act 1993 is of its time - although as was noted earlier, it is not very old as we often discuss much older legislation - and I accept it should be repealed. It does not reflect current thinking or international developments concerning the rights of persons with disabilities. In particular, the 2006 UN Convention on the Rights of Persons with Disabilities aims to facilitate the full participation in society of disabled persons and the full realisation of their human rights. From its adoption, the convention set out a blueprint as to what was needed to promote equality, in practice, for persons with disabilities. The impetus driving the convention was well put in the statement of Don McKay, chairman of the committee that negotiated the treaty: "What the convention endeavours to do is elaborate in detail the rights of persons with disabilities and set out a code of implementation".

Article 12 of the convention views equal recognition before the law as a fundamental right of persons with disabilities. The article imposes several obligations on signatory states, namely to reaffirm that people with disabilities have equal right to recognition before the law; to recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life; to take appropriate steps to support persons with disabilities to exercise their legal capacity; and to provide appropriate safeguards against abuse.

The Assisted Decision-Making Capacity Bill 2013, currently before the Oireachtas, will comprehensively reform the long outdated civil law on mental capacity. It will greatly assist vulnerable persons to better manage their personal, property and financial affairs. To mirror these developments, both I and the Government are committed to amending the criminal law on sexual offences to acknowledge, as far as possible, the right of vulnerable persons to sexual autonomy.

The challenge in mental capacity legislation is to develop legal solutions that are appropriate to diverse decision-making needs, yet are effective within the existing legal system. The challenge in criminal law is not dissimilar. The criminal law should only be used to punish the clear sexual abuse or exploitation of vulnerable persons, not to deprive them of intimate sexual relationships where that is possible. In this context too, there are diverse decision-making needs and the criminal law must take this into account.

As well as recognising the rights of persons with disabilities, the UN convention also imposes a specific obligation to put effective legislation in place to ensure that instances of exploitation, violence and abuse can be identified, investigated and prosecuted.

There is a requirement, therefore, to strike an appropriate balance between sexual autonomy for vulnerable persons who have the capacity to consent and some level of special protection so abuse and exploitation of vulnerable persons can effectively be prosecuted. The purpose of Senator Zappone's Bill, as stated in the explanatory memorandum, is to reform the sexual offences law to eliminate discrimination against people with disabilities and to ensure they have the same freedom to consent to sexual activity as people without disabilities. It also aims to reform the law to ensure respect for the sexual agency of people with mental impairment while also providing protection from sexual abuse. It is clear, therefore, that we share the same principal objectives. I have no difficulty incorporating a number of the concepts in Senator Zappone's Bill into the sexual offences Bill currently being drafted, and I intend to do that. The Bill is priority legislation and work is under way on it.

Modern provisions to substitute section 5 of the 1993 Act will be included in the sexual offences Bill, will be consistent with the Assisted Decision-Making (Capacity) Bill and will acknowledge the right of vulnerable persons to sexual autonomy. I also want to ensure sexual abuse and exploitation of vulnerable persons can be effectively prosecuted. Linked to that is the clear need to avoid subjecting vulnerable persons to potentially traumatic court proceedings, including cross-examination. These are very real, practical concerns that must be considered, as Senator Zappone would acknowledge.

Despite its very obvious drawbacks, given the developments in current thinking and discourse I mentioned, the current offence in the 1993 Act facilitates prosecution of those who would exploit the vulnerable because there is no need to prove lack of consent. This means the offence under section 5 is an offence regardless of consent. In addition, the Director of Public Prosecutions, DPP, has the discretion not to prosecute non-exploitative incidents. The sexual offences Bill will create a number of new offences to enhance the protection of children from sexual exploitation and abuse, and these will be applied to vulnerable persons. All these provisions combined will significantly extend the protections available to vulnerable persons in the criminal law on sexual offences.

Discussions are ongoing with the Office of the Attorney General and the Office of the Director of Public Prosecutions to complete work on the provisions to substitute section 5 of the 1993 Act, which is the section under discussion here today. Although I am a little constrained on what I can say about this head in the general scheme of the Bill, as soon as this work is completed I intend to engage in consultations with the disability sector. I will be very happy to continue discussions with Senator Zappone and other interested parties. Like the Senator, I am concerned to avoid labelling vulnerable persons. I want to avoid making provisions which make blanket assumptions about the decision-making powers of persons with intellectual or learning disabilities or those with mental health issues or cognitive disabilities.

The law on sexual offences frames criminal offences. Criminal offences are perpetrated by perpetrators, not victims, and perpetrators should be the focus of criminal law. Another requirement of criminal law is certainty. These factors are central to our approach, without making inappropriate assumptions about the capacity of vulnerable persons, as a number of Senators said. I thank Senator Zappone for bringing forward this Private Members' Bill on a complex but very important issue. The Senator's work has a fit with the work the Department of Justice and Equality is doing in this area. There is no monopoly of wisdom in how to progress this. I look forward to contributions from and working with everybody involved in today's debate and I will listen to the contributions in today's debate and consider them in the context of the development of the relevant provisions in the sexual offences Bill. I will not oppose the Bill today.

5:50 pm

Photo of Trevor Ó ClochartaighTrevor Ó Clochartaigh (Sinn Fein)
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Tá céad fáilte roimh an Aire. Is dóigh go bhféadfar a rá gur lá maith don Seanad an lá inniu agus an méid atá ráite ag an Aire anseo go n-aontaíonn sí leis an Seanadóir Zappone gur gá an reachtaíocht atá ann i láthair na huaire a athrú agus go nglacann sí i bprionsabail leis na moltaí atá an Seanadóir ag cur chun cinn.

Having listened to the Minister's contribution, it should be said this is a good day for the Seanad. It is very welcome that the Minister stated she agrees with Senator Zappone that the law at present should be repealed and that in principle she takes the thrust of what the Senator is putting forward and accepts it. We also certainly support the Bill from this perspective. It is good this is happening today in the Seanad. I hope the level of priority the Minister indicated will be given to the legislation because we know she is very busy with much on her plate and we hope the legislation she is discussing will be moved as quickly as possible through the parliamentary process so it becomes a reality for the people living in difficult situations at present.

I welcome our guests in the Gallery, many of whom are from my home town of Galway. It is great to see the work done by Senator Zappone, the people from NUIG who are here, and the members of the Blue Teapot Theatre Company. I will mention a neighbour of mine, Paul Connolly, who is one of its stars. He would not let me go if I did not mention the fact he is involved with the group.

As republicans, we in Sinn Féin believe all people living with a disability have the right to have their whole person recognised, their capabilities valued and developed to full potential and their dignity respected. We believe disabled people should have the right to make choices about their lives and be consulted, heard and resourced in all matters affecting them. Disabled people should be protected against all exploitation and all regulations and all treatment of a discriminatory, abusive or degrading nature. People with disabilities have the right to a poverty-free life facilitated by direct payments to offset the cost of disability and to equal access and equal participation in education, employment and training.

People with disabilities have the right to access appropriate co-ordinated services. The State has a duty to provide such services as well as proper individual needs assessments. I very much welcome Senator Zappone's Bill which aims to eliminate discrimination against those with intellectual disabilities in Irish legislation concerning sexual offences. The Bill will repeal the existing law which is discriminatory in that it criminalises sexual activity of people who are mentally impaired unless they are married to one another. Here in this State a person's mental capacity or decision-making skills are often used to restrict or deny his or her legal capacity. This disproportionately affects people with disabilities whose mental capacity is more likely to be questioned than that of non-disabled people. This means all people are not treated as equal in the eyes of the law.

Assessing mental capacity is most commonly done via the functional test. This test requires individuals to demonstrate that for the specific decision they are able to understand information about the decision, including the nature and consequences of the decision, use and weigh information to come to a decision, retain the information long enough to make a decision and communicate the decision to third parties. However, as we have heard there, is now widespread criticism of the functional test.

The UN Committee on the Rights of Persons with Disabilities stated in its general comment on Article 12 that it does not permit this discriminatory denial of legal capacity and instead requires that support be provided for the exercise of legal capacity. By using this test for mental capacity to distinguish an individual's ability to consent to sex, we hold people with a disability to a higher standard than the rest of the population. We do not make all citizens prove to us that they understand and appreciate the nature and consequences of their decision when they engage in sexual activity. We only demand this standard of people with a disability and this is clearly discriminatory.

Sinn Féin also welcomes the introduction of a new offence of abuse of position of dependence or trust, which will address the law created by the abolition of the outdated section 5. I reiterate Sinn Féin's support for the Bill and I commend Senator Zappone on bringing it before us. I wish her the best with it. Cuirim fáilte roimh an reachtaíocht but with the caveat that while we appreciate the Minister stated she is in favour of the thrust of the Bill and will bring forward her own legislation, we hope we will not have to wait for the legislation because it got caught in the quagmire of legislation which is already in the Office of the Attorney General. We are often told legislation is on the way but we do not see it. The people in the Gallery deserve equality in this regard and I hope it can be brought forward as soon as possible.

6:00 pm

Photo of Martin ConwayMartin Conway (Fine Gael)
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I am very pleased that the Government is supporting the Second Stage of this Bill. I commend Senator Zappone on the huge effort she made to bring this legislation before the Seanad. Unfortunately I could not attend the briefing in the Merrion Hotel earlier but my assistant was there on my behalf. I believe it was a very powerful and informative session.

I also welcome those in the Public Gallery, particularly those who assisted Senator Zappone in preparing this legislation. I have had contact with the Centre for Disability Law and Policy in the National University of Ireland Galway, NUIG, over the years and have often met the people who work there. There is a world class research department there and their work is recognised internationally. We are fortunate to have the support of people in such policy units to help us drive this agenda on.

As previous contributors have said, society has moved on and so have people with disabilities but, like so much else in society, this legislation is in a timewarp. The legislation of 1993, though not old, was not appropriate even at the time it was enacted. The Minister has committed to wide-ranging legislation that is being worked on at the moment. I agree with Senator Ó Clochartaigh that this legislation should not be caught in places to which we have no access, such as the Office of the Attorney General. I sincerely hope this legislation, on which the Minister and her staff are working, will run in tandem with Senator Zappone’s legislation. Indeed, it will be interesting to see how Senator Zappone’s legislation progresses on Committee Stage. There is a clear commitment from the Minister to follow the thrust of Senator Zappone’s legislation and to ensure her legislation encompasses it when the time comes. It is absolutely appropriate that it should be an offence for a person to abuse a position of responsibility. The Minister has correctly said that a balance must be struck between protecting citizens and ensuring those with the capacity to make decisions have the freedom to do so. As Senator Zappone said eloquently today, this is about fostering love, companionship, romance and the things we all hope for in our lives. Why should people with disabilities be treated any differently?

Section 5 of the 1993 legislation was a gross generalisation and categorised everyone within the same ambit. I think this is wrong and I am pleased the Seanad has, yet again, been the Chamber to highlight this issue and give a voice to people who have felt without a voice for too long. The people voted to retain the Seanad because its job is to reflect the views of those perceived to be members of minority groups. I hate labels such as minorities and majorities because we are talking about people and citizens. Everyone deserves to be treated equally and this is a matter of the equality agenda. Thankfully we are here today thanks to the good work of Senator Zappone carried out when Private Members' time in Seanad Éireann was dedicated to the discussion of this issue. When it comes to issues that matter to people, the great thing about the Seanad is the various parties and Independent Members can form a unified force to support the right thing.

It is incredible how we can have a unified force where all the parties and Independents can come together to unanimously support a measure when it is the right thing to do. Our colleagues in Dáil Éireann could learn quite a lot from the manner in which we do our business. We do not often get recognition for it because we possibly do our business a little too quietly, which does not get the same headlines generated by the adversarial element.

This legislation is most welcome. It is putting right something that is wrong within our legislative process that affects people's lives in a profound way. I agree with Senator Ó Clochartaigh that it is a good day for the Seanad. Let us hope it is a good day for our citizens as well.

6:05 pm

Photo of Caít KeaneCaít Keane (Fine Gael)
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I am pleased to be present for the debate. I thank Senator Zappone for introducing the Bill and I welcome the Minister, Deputy Fitzgerald, to the House.
The Minister outlined what she proposes to bring to the House. She stated it is priority legislation. If priority means anything the Bill will be introduced very quickly. When the Minister referred to priorities in her previous portfolio she could be taken at her word and she introduced change. I look forward to the same approach in this case. It is my first time addressing the Minister since she became Minister for Justice and Equality and I congratulate her on her appointment.
I welcome the representatives of disability groups in the Visitors Gallery. I am aware of the research and report they contributed to Senator Zappone. The purpose of the Bill has been widely stated and I will not refer to that. It is important to ensure that people with disabilities will have the same freedom to consent to sexual activity as people without disabilities. Just because a person has one type of disability or another does not mean he or she should be discriminated against in any sphere of life, in particular in terms of sexual activity which is a very important aspect of all our lives.
The Bill also protects people from sexual abuse. It goes without saying that it must be part of the Bill as our aspiration must be to protect everybody in society from sexual abuse. We have not been very successful to date given all the sexual abuse that has arisen, especially from places from where we would least have expected it. It is important to ensure that such protection is written into the Bill.
The Minister and another speaker indicated that one would think the current legislation is ancient and given the manner in which we are discussing it that we were back in the bad old days. It is not that ancient as it dates from 1993. One could ask whether we have moved forward since then. It is a case of we have and we have not, given that attitudes are slow to change. I am delighted the Bill is before us as attitudes do not change until something is written down in legislation. The existing law on the mentally impaired and the criminalisation of such people led to enforcing attitudes, not changing them, and we must ensure we change the situation.
The Minister and Senator Bacik referred to the Assisted Decision-Making (Capacity) Bill. In framing the legislation one must take into account the situation in general. If one were to examine the decision-making capacity of everybody who has sex at any stage and, for example, whether alcohol or another substance is involved, and if the same standards were to apply it would give rise to questions. We must bear that in mind as well.
The United Nations Convention on the Rights of Persons with Disabilities aims to facilitate the full participation in society of disabled people and the realisation of all their human rights. The specific UN obligation requires that effective legislation is put in place to ensure that exploitation does not take place. When one decriminalises something, it is important to ensure that people in all walks of life are protected from exploitation and abuse. The Minister made reference to the issue.
I am delighted that the Minister is accepting the Bill. She made the point that nobody has all of the answers and that progress can be made by working with Senator Zappone and the Seanad. The rights of people with disability have been talked about for a long time and the change is welcome. The National Disability Authority has done some work. Sexual activity is a worry for everybody in society, especially for parents, be their children able or disabled. The worry does not go away because one’s child is disabled. Everyone should have the same rights and degree of fulfilment through relationships and sexuality. Sex is a topic that has been surrounded by sensitivities in any walk of life and people tend to sweep things under the carpet. I am delighted that the sexualisation of people with a disability has been recognised as the situation has been unacceptable for far too long. Thankfully, the legislation will change that situation.
Many bodies that have written on the issue have made recommendations. The granting of rights gives rise to the facilitation of people with disabilities to have sexual relations in various walks of life but if there is segregation in society it does not lend itself to facilitation. We spoke previously about the involvement of Departments in the context of children. A cross-departmental approach is required. The Department of the Environment, Community and Local Government has a role in terms of housing. The Department of Health has a role to play in producing legislation for the provision of facilities for people with disabilities. The role of the Department of Education and Skills involves information, counselling and sexual education in an accessible format, including family planning. The work of the Departments is interlinked. Research and background information are required in advance of legislation rather than making changes at the stroke of a pen but there is no point in changing the legislation if nothing changes in society or changes are not implemented to facilitate what one wants to achieve in terms of disability and sexual awareness.
Those who work with people with disability also require training. Attitudes are hard to change and not everybody who works in homes or workplaces involving disabled people are aware of what is available or where the legislation has changed. Advice and counselling are necessary for all concerned.
The Minister and Senator Zappone spoke about sexual abuse. Some research has been done but I am not as au faitwith it as Senator Zappone. Research abroad has highlighted that children and adults with disabilities face an increased risk of sexual abuse. They were found to be most at risk in places where they live and work rather than in public places. We must ensure people are protected where they live and work and that such provisions are included in the legislation. That goes for people in all walks of life. If certain rights and responsibilities are not included in legislation people might not be protected. It is good that we are reforming the legal system.
I welcome the Bill and thank Senator Zappone for introducing it.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Before I call Senator Quinn I welcome the Minister of State, Deputy Perry, to the House.

Photo of Feargal QuinnFeargal Quinn (Independent)
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The Minister of State, Deputy Perry, who has just arrived, is very welcome. I commend Senator Zappone on introducing the Bill. This is very much a human rights issue but it also shows how we must examine legislation which might no longer be fit for purpose. I was in the House in 1993 when the legislation was introduced and at the time I thought it was an excellent Bill. As far as I was concerned the purpose of the legislation was to protect people. My eyes were opened when I attended the session in the Merrion Hotel today organised by Senator Zappone. I understood for the first time the need for the Bill. Perhaps the Seanad could do even more in the area, such as examining legislation to see whether we can improve it or get rid of it in some cases.

As the explanatory memorandum, which is very good, notes, the current Criminal Law (Sexual Offences) Act states it is a criminal offence to engage or attempt to engage in sexual intercourse or an act of buggery with a person with a mental impairment and consent is not an defence. However, as it stands, if the people are married, or if the victim is proven to be capable of living independently, no criminal offence is committed. I did not understand this when the Bill passed 20 years ago. Obviously the current law discriminates as its criminalises the sexual activity of people with mental impairments before marriage. People with mental impairments also have to prove their ability to live independently and protect themselves from abuse before engaging in sexual activity. This is something which people without mental impairments do not have to do, which is an obvious form of discrimination.
The Bill is very progressive, reflecting human beings’ ability to choose and communicate preferences in order that they do not need to do more than a person without disabilities before engaging in sexual activity. There are also other various problems with the law, including the fact the law has not been used successfully very often – I do not know whether it has been used successfully at all - to prosecute relevant cases and is seen as inadequate in protecting people with disabilities from various forms of sexual abuse, which was the main objective of what we discussed 20 years ago.
I note the submission of the Connect People Network who describe themselves as a group of people in Ireland who believe that people with extra support needs have the right to have romantic and sexual relationships, just like everyone else. They made a smashing case today and those of us who attended their presentation without our eyes wide open beforehand had them opened. In its submission to the Law Reform Commission, it stated:

We can have sex like everybody else ... We should be allowed do all the sexual things we want to do. It's not up to other people: it's up to you. Everybody decides what they like and what they don't like. It is nobody's business what I do in my spare time. Other people don't get questioned, why should we get our private life questioned?
I agree we should not have different standards in our legislation. This is one of the reasons Senator Zappone's Bill is very welcome. People's mental capacity should not have to be tested. It is a concrete form of discrimination. If one can think of any form of discrimination, this certainly is. We must move towards recognising the capacity of all citizens to make adult decisions. With regard to specific questions, it would be interesting to consider the original intention of the 1993 legislation. It was partly influenced by the fact people with disabilities are more vulnerable to crime and specifically to sexual offences, and international research backs up this fact. I wonder whether we have figures or percentages on how much more vulnerable to crime a person with a disability is in this country. Recently in the Seanad we discussed the need for the Garda to record hate crimes which have an ethnic motive. There is a need for the Garda to record crimes against people with disabilities. With this information legislators would be much better equipped to tackle the problem. Senator Rónán Mullen will bring forward a Bill shortly on older people being attacked and seeking mandatory sentences. How many people with disabilities report sexual crimes against them? A major issue which goes along with the legislation is giving people the avenues and support to come forward. A local Garda station may be extremely intimidating.
The Bill proposes that section 5 of the 1993 Act be replaced with a new section which covers the offence of abuse by a person in a position of dependence and trust. The new section states it will be an offence if somebody aids, abets, counsels or procures another person to take advantage of his or her position or induces or seduces a person to have sexual intercourse with him or her. Should we expand this to include the fact a perpetrator could try to get the person with a disability to have sexual activity with a third party? Should we make this very clear in the Bill? I would be interested to hear a comment on the possible expansion of the offence.
With regard to the abuse of trust, the Bill states it will be an offence if a person commits any other sexual offence involving a person. Do we need to be more specific in the Bill? The offender could engage in sexual activity in front of the person with mental disabilities or they could force a person with disabilities to watch a sexual act, be it in person or images. I am very unsure whether this is already adequately covered in the legislation but this is what Committee Stage is for.
Should we explicitly include a reference to the fact that a person with a mental disability could be threatened or deceived into engaging in sexual activity? The UK's Sexual Offences Act 2003 uses this particular phrasing and it would be useful to consider whether we should do something similar with this legislation, with the end goal of providing as much protection as possible to the person with the disability. I would like to get a comment on this if possible. The Bill rightly considers people with disabilities as sexual beings and they should be treated like everyone else. Originally when I saw the Bill I did not understand it. I am sure we are all to a certain extent reticent about getting involved in this topic. I congratulate Senator Zappone on introducing it and identifying the issue. I congratulate all of those involved in bringing forward this topic because it needs to be discussed and the Bill will solve the problem. It may be possible to change and improve it but I hope the Government continues the support it has already shown for it.

6:15 pm

Photo of Katherine ZapponeKatherine Zappone (Independent)
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I welcome the Minister of State, Deputy John Perry, and I am happy to have him here as I add my final comments. I wish to express my deep appreciation to the Minister for Justice and Equality and her team for having listened to and heard the prime aspects of the Bill and the intent and principles behind it. This is critical in law-making and I am most appreciative.

The Minister made several comments in her speech which are particularly important for us as we take all of these issues forward. She stated she accepts that section 5 should be repealed. This means we have a Minister for Justice and Equality who accepts section 5 should be repealed, and this is a big deal. The Minister also stated it is important we make law to ensure everyone's equality before the law and acknowledge as far as possible the right to vulnerable persons to sexual autonomy. She also stated in her remarks that there is a requirement to strike an appropriate balance, and "balance" is the key word, between sexual autonomy for vulnerable persons who have the capacity to consent and some level of special protection. This is critical, but we must get the balance right. We did not get the balance right the last time. Senator Bacik, of whose seconding the Bill I am most appreciative, described the existing Act as crude, paternalistic and inadequate. We did not get the balance right the last time so we need to get it right this time. I am appreciative of the awareness of this.

I am a bit concerned about the use of language such as "vulnerable persons" and the need for "special protection". It sounds a little like language which is engaged to make law which treats differently people with a difference and therefore reduces their access to equality and justice. I know this is not the Minister's intent and this is the challenge we face as law-makers. The Bill, with its elements, is trying to move to provide a way to ensure a balance between respect and protection which does not take it away from people with a disability.

I acknowledge and thank the Minister because we share the same principles and concepts expressed in this Bill and in the Government's Bill which has priority in being drafted. Other Senators picked up on this and I am most grateful that the positive sentiments echoed by the Minister for Justice and Equality were also echoed by my fellow Senators. I appreciate the fact people attended the launch of the Bill and the briefing.

I knew what Senator Quinn meant when he said his eyes had been opened because my eyes were opened too on this journey. My ears could hear the voices that were growing louder and I knew that we had to do something. We must change the current law.

The Minister has identified many positive aspects and it indicates that the Minister and the Department of Justice and Equality have reached a milestone. I appreciate that Catherine Byrne and many others in the Department have worked long and hard on this Bill as we move towards the repeal of the discriminatory aspect of the legislation. Will there be amendments on Committee Stage? Perhaps it would be better if aspects of this Bill were incorporated into the Government's Bill. Once section 5 is repealed what will take its place and how will we make the substitution in a way that will appropriately balance respect with protection? The Minister said many of these issues are currently before the Attorney General and the Director of Public Prosecutions so of course we must wait to hear what they say. The Minister said the focus in criminal justice must be on the perpetrator and I said the same. In our discussions with the Department before this debate we learned something of this along with the Department's concerns. I appreciate the time I had to discuss this matter with the Department.

It is correct that the focus in criminal justice must be on the perpetrator to ensure victims are not doubly discriminated against or abused. This is why the effort to create a statutory definition of consent in this Bill seeks to focus on the perpetrator but also the victim, in order to protect the victim. There must be mutual understanding and agreement. The focus is not solely on the victim in our effort to create appropriate protection and respect by changing the legislation.

I have been considering what brought about the development of this Bill, including the voices of the self-advocates, especially those in the documentary "Somebody to Love". The director of the Blue Teapot Theatre Company in Galway, Petal Pilley, said in the documentary that one feels as though one has been hit in the chest when one realises existing legislation says people with intellectual disabilities should not engage in sexual relations and that it is a crime to do so. We must fix this legislation soon. I appreciate that this is priority legislation but as Fintan O'Toole said in his newspaper column today on the mother and baby homes, "the past has yet to pass". We need to make the past pass by passing this legislation soon. The milestone must not be kicked aside and nor can we fail to reach it. The timeframe on this is critical and we all, including self-advocates, must keep our feet on the pedal of protest until the legislation changes. The legislation must change before this Government comes to an end or we may have to start all over again. There is a sense of urgency and we await the responses from the Office of the Attorney and the Office of the Director of Public Prosecutions. I am very anxious to engage in final consultations to conclude this Bill.

6:25 pm

Photo of John PerryJohn Perry (Sligo-North Leitrim, Fine Gael)
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I congratulate Senator Zappone on this important legislation. There seems to be a consensus here, including Senators Keane and Quinn, that this is a milestone. I do not doubt that this debate will be of great benefit to the Minister and those drafting the Bill in forming a consensus on the legislation as it passes through Seanad Éireann and Dáil Éireann as Government legislation. This is about the move into the 21st century and the next generation. It is right that the discrimination that prevailed for so long will now be corrected.

Question put and agreed to.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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When is it proposed to take Committee Stage?

Photo of Ivana BacikIvana Bacik (Independent)
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Next Tuesday.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Is that agreed? Agreed.

Committee Stage ordered for Tuesday, 17 June 2014.

Sitting suspended at 5.25 p.m. and resumed at 5.45 p.m.