Justice minister seeks to define sexual consent

Justice Minister Frances Fitzgerald is to make a fresh attempt to define sexual consent after an Oireachtas committee heard the issue was “incredibly complex”.

Speaking on amendments to the Criminal Law (Sexual Offences) Bill 2015, the Tánaiste said she favours a list of sexual activity where there is no consent as well as a more general section where other factors can be considered.

It lists 12 types of sexual activity that do “not amount to consent”, including where force or threat of force is applied or if the person is asleep or incapacitated.

There is no legislative definition of consent and the courts have interpreted it in case law.

“I think it is right to include a definition,” said Ms Fitzgerald. “In most common law countries that is the approach.

“The intention is looking to have a list, if you like, but also a section that you have a non-exhaustive list, where other factors could be considered.”

The committee discussed proposed amendments to the bill defining consent as “voluntary agreement to engage in the sexual activity”.

Fianna Fáil justice spokesman and barrister Jim O’Callaghan said a lot of sexual activity in Ireland was “accompanied by alcohol consumption” and it is important the law doesn’t “end up unintentionally criminalising a lot of young people or other people”.

Independents4Change deputy Clare Daly agreed that the issue of consent was “incredibly complex”: “Defining the sexual activity as being voluntary or a free choice is probably a better way rather than a prescriptive list of activities.”

Ms Daly and fellow Independents4Change TD Mick Wallace made light of one of the 12 listed sexual activities where the person affected was “mistaken about its nature and quality”.

Mr Wallace said: “I look forward to going down to the Garda station and complaining about the quality of sex I had the night before.”

Anti Austerity Alliance TD Ruth Coppinger, who tabled the amendment with the list, said “people can joke about it” but that particular provision covered situations where people begin a sexual act but don’t realise what it entails and withdraw consent. “These definitions have been suggested by people who actually deal with rape victims,” she said.

TDs were willing to wait for the minister’s consent proposal at report stage.

The bill will decriminalise a number of offences relating to sex workers, including solicitation and, as a result of an amendment yesterday, loitering.

But concern was expressed at the committee that the bill will criminalise a sex worker (for brothel keeping) who allows a premises, including her own home, for prostitution, in situations where more than one sex worker operate.

The minister said to exempt such groups would create a “legal loophole” for organised crime gangs but agreed to proposals to conduct a review of the legislation after two years.

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