New sex offences legislation ‘lacks definition of consent’

Proposed legislation on sex offences has a “significant gap” in that it fails to provide a definition of consent, one of the main advocacy bodies for survivors of rape has said.

Rape Crisis Network Ireland (RCNI) called for the inclusion of a definition of consent in the Criminal Law (Sexual Offences) Bill 2015.

The organisation held a public information seminar on the general scheme of the Bill in Dublin on Thursday.

Almost a decade of work has gone into the draft legislation, which focuses in particular on combatting sexual exploitation of children and child abuse material.

Offences include the use of the internet for sexual exploitation and the sending of sexually explicit material to a child.

Someone sending such material to a child under 17 would be liable to a maximum jail sentence of 12 months if summarily convicted in the District Court, and to up to five years in jail if convicted on indictment.

Legal director of the RCNI, Caroline Counihan, said it was essential to define consent in the legislation "to give us the capacity to challenge the denial and minimisation which often works to isolate and silence victims".

The organisation was advocating for a positive definition of consent to sexual activity similar to that adopted in England and Wales in a 2003 law.

This definition reads: “A person consents if he agrees by choice, and has the freedom and capacity to make that choice.”

RCNI director Cliona Saidléar said the Bill also sought to fix some of the gaps that had become evident in legislation, particularly involving changes in technology since the last sexual offences legislation was enacted in 2001.

“A lot of the of the gaps are around the law catching up and trying to get ahead of those changes and the way that exploitation has moved and has new opportunities.”

But she said that along with these legal changes, Minister for Justice Frances Fitzgerald "must work to vindicate the rights and deliver justice for the 80 per cent of all sexual violence victims that do not report to the gardaí".

The seminar heard that under the proposed legislation gardaí will be able to consider publishing the names of sex offenders where they believe they pose an immediate threat to someone.

Insp Michael Lynch of Blanchardstown Garda station in Dublin, who is responsible for the Sex Offenders Management and Investigations Unit, spoke about the risk assessment and risk management aspects of the Bill.

Insp Lynch said gardaí had set up the ‘Soram’ (sex offenders’ risk assessment and management) pilot project in 2009 in anticipation of this new legislation. There was a risk assessment unit in every Garda division, he said.

Insp Lynch said gardaí would not be just naming every sex offender to the public and that there would have to be a good reason.

Such information would probably be published on the Garda website, but it might also be published in the media.

Such disclosures would only be made if they were unlikely to result in harm, including physical harm. People who were outed as sex offenders were often attacked and their families were attacked, Insp Lynch noted. They could become homless and end up under severe stress, which might send them “underground” and put them at risk of offending again.

There are more than 1,400 people who are subject to orders under the Sex Offenders Act 2001 in the State, the seminar heard.

Insp Lynch said the vast majority of people who were subject to sex offender orders and obligations to check in with gardaí were compliant but a “small number” were not.

Expert speakers on the panel also included Dr Conor Hanly of NUIG School of Law and Ombudsman for Children Dr Niall Muldoon.