Criminal Law (Sexual Offences) (Amendment) Bill 2014 Private Members’ Bill – Second Stage

Thank you Cathaoirleach/ Leas-Cathaoirleach

I would like to thank Senator Zappone for raising this very important issue.

Section 5 of the Criminal Law (Sexual Offences) Act 1993 is of its time. I accept that it should be repealed. It does not reflect current thinking and 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 all their human rights.

From its adoption in 2006, the UN Convention on the Rights of Persons with Disabilities 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 a number of obligations on States. These are:

– 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The Assisted Decision-Making Capacity Bill, currently before the Oireachtas, will comprehensively reform the long outdated civil law on mental capacity.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 and yet are effective within the existing legal system. The challenge in terms of the criminal law is not dissimilar.

The criminal law should only be used to punish the clear sexual abuse or exploitation of vulnerable persons and 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.

Of course, 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 that abuse and exploitation of vulnerable persons can be effectively 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 that people with disabilities 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 and I have no difficulty in incorporating a number of the concepts in Senator Zappone’s Bill into the Sexual Offences Bill currently being drafted.

Modern provisions to substitute section 5 of the 1993 Act will be included in the Sexual Offences Bill. These will be consistent with the Assisted Decision-Making Capacity Bill and will acknowledge the right of vulnerable persons to sexual autonomy.

However, I also want to ensure that 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 and must be considered. Despite its very obvious drawbacks given developments in current thinking and discourse, 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. In other words, the section 5 offence is an offence regardless of consent. In addition, the Director of Public Prosecutions has the discretion not to prosecute non-exploitative incidents.

The Sexual Offences Bill will also 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 as well. In this way, all of 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. Consequently, I am constrained, at present, in what I can say about this particular head in the General Scheme of the Bill. As soon as this work is completed, it is my intention to engage in consultations with the disability sector and other interested parties.

Like Senator Zappone, I am concerned to avoid labelling vulnerable persons. I want to avoid 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.

Of course, what the law on sexual offences does is frame criminal offences. Criminal offences are committed by perpetrators not victims and it is perpetrators who should be the focus of the criminal law. Another requirement of the criminal law is certainty. These are the factors central to our approach, and without making inappropriate assumptions about the capacity of vulnerable persons.

Again, I would like to thank Senator Zappone for bringing forward this Private Members’ Bill. It is a complex but very important issue. The Senator’s work has a fit with the work my Department is doing in this area. In matters such as this the Government does not have a monopoly of wisdom and I look forward to hearing all of the contributions to today’s debate. These will be considered in the context of the development of the relevant provisions in the Sexual Offences Bill.