...Deputy Aodhán Ó Ríordáin: I move amendment No. 3:

In page 15, between lines 4 and 5, to insert the following:

“Administering a substance with intent (“spiking”)

20. The Act of 1997 is amended by the insertion of the following section after section 12:

“12A. (1) A person who administers to or causes to be taken by another person (‘C’) a drug or other substance-

(a) knowing that C does not consent to what is being done, and

(b) with intent thereby to stupefy or overpower C so as to enable himself or herself or any other person to engage in sexual activity with or involving C,

is guilty of an offence. 

(2) A person guilty of an offence under subsection (1) is liable-

(a) on summary conviction, to a Class A fine or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 10 years or to both. 

(3) In subsection (1), ‘sexual activity’ has the meaning assigned to it by section 2 of the Criminal Law (Sexual Offences) Act 2017.”.”. 

As the Minister may know, the Labour Party raised with the Minister, Deputy McEntee, the stand-alone offence of spiking. On Committee Stage, the Minister, Deputy McEntee, undertook to engage with me further about the proposed offence of spiking but, unfortunately, she did not get the chance. There does not seem to be a Government amendment to address this issue. What we are trying to achieve is to have a stand-alone offence of spiking. The Minister points to the existing offence of poisoning under section 12 of the Non-Fatal Offences Against the Person Act 1997 but there are two relevant differences. Perhaps we can work on this together to achieve something substantial, potentially not through this amendment, but through the goodwill of the Minister and the Department. 

First, the spiking offence would involve administering a substance without consent for the purpose of facilitating a sexual offence. Being of a more serious nature, it would carry a maximum sentence of ten years rather than the three years maximum provided for poisoning. That is the first difference that a stand-alone offence of spiking would necessitate. Second, the current poisoning offence states that inducing sleep or unconsciousness is covered, which suggests that anything less than that, such as stupefying a person or overpowering them while they remain conscious, is not covered. Therefore, while poisoning forces an unconscious state, somebody can spike a person while they are still conscious but extremely drowsy, and then assault or rape that person. 

A criminal statute has to be given the interpretation most favourable to the accused. Some of the most common drugs suspected of use for sexual assault or that can be used to commit physical and sexual harm can sedate or incapacitate a victim without necessarily making them unconscious, but making them more vulnerable to attack. In these circumstances, we do not believe the current law will sufficiently protect the victim. 

The need for this offence has only been highlighted by the findings of the independent review group chaired by Ms Justice Bronagh O'Hanlon, which investigated bullying and sexual abuse in the Defence Forces and which is at the top of our minds today. The group found serious complaints of spiking and attempted spiking. We are not dancing on the head of a pin here. We are trying to do what is right. We do not want a situation where somebody is not successfully prosecuted in court because we did not have a stand-alone offence or is prosecuted for an offence with a maximum penalty of three years when clearly a very different offence has been committed. We seek the Minister's goodwill and to work collaboratively. This may not be the vehicle through which to achieve this aim but I am interested in hearing the Minister's point of view. 

Deputy Michael McNamara: I support Deputy Ó Ríordáin's amendment. The matter of intent might need to be added to it. As the Deputy read it out, the actus reus seems to involve assaulting somebody rather than merely having the intention to assault him or her. That is just a question mark over it but I very much support the amendment. If it cannot be included, I would join with Deputy Ó Ríordáin in urging contemplation of including the matter in future legislation. I refer to future legislation during the lifetime of this Dáil rather than legislation that will be brought forward in a decade's time. 

Deputy Ivana Bacik: I commend Deputy Ó Ríordáin on bringing this forward. He has identified a really important area of law and a gap in the current criminal scheme that we need to address. Deputy McNamara raises an important point about the intent offence but that would be built into the substantive offence in any case. I hope we can work with the Minister on this because we want to achieve the necessary change in the law through working collaboratively. 

Deputy Sean Sherlock: I support the amendment. Will the Minister indicate whether he will accept the amendment? If he does not propose to do so, will he indicate whether he would accept a Private Member's Bill or some other mechanism that would allow this issue to remain on the books? 

Deputy Simon Harris: I, too, thank Deputy Ó Ríordáin for his work on this issue and for the way in which we are engaging on it. I hope we will engage to find a way forward. As the Deputy has said, he discussed this issue with my colleague, Deputy McEntee, on Committee Stage. It is an issue my Department has been considering and one on which I have spoken in recent weeks because I share the concern. We all want to reach the same point in this regard....

[For the full debate, click this link to the Oireachtas website]