LAW REFORM COMMISSION PUBLISHES CONSULTATION PAPER ON SEXUAL OFFENCES AND INTELLECTUAL DISABILITY
CONSULTATION PAPER RECOMMENDS REPEAL AND REPLACEMENT OF EXISTING LAW ON SEXUAL OFFENCES INVOLVING PERSONS WITH INTELLECTUAL DISABILITY; RECOMMENDS THAT NEW LAW SHOULD ENSURE SUITABLE RIGHTS-BASED EMPOWERMENT OF PERSONS WITH INTELLECTUAL DISABILITY AND RELEVANT PROTECTIONS; AND RECOMMENDS NEED FOR MULTI-AGENCY STANDARDS AND SUPPORTS
Monday 24th October 2011: The Law Reform Commission’s Consultation Paper on Sexual Offences and Capacity to Consent will be launched by Mr Justice Peter Charleton, judge of the High Court, at the Commission’s offices at 6 pm this evening. The Consultation Paper will also be discussed at the Commission’s Annual Conference 2011, which will take place on Monday 7 November 2011 at the Law Society of Ireland, Blackhall Place, Dublin. The Annual Conference will also be chaired by Mr Justice Charleton. Full details, including how to register for the Annual Conference, are available at www.lawreform.ie.
The Consultation Paper forms part of the Commission’s Third Programme of Law Reform 2008-2014 and complements the general consolidation of sexual offences law currently being undertaken by the Department of Justice and Equality. It builds on the Commission’s previous work on the civil law of mental capacity, culminating in a 2006 Report that recommended new mental capacity and adult guardianship legislation; the Government is due to publish a Mental Capacity Bill in 2012. In the Consultation Paper, the Commission makes 15 provisional recommendations for reform, including the repeal and replacement of the existing law on sexual offences involving persons with intellectual disability, section 5 of the Criminal Law (Sexual Offences) Act 1993.
Commission’s general approach: empowerment and protection
The Commission notes in the Consultation Paper that section 5 of the Criminal Law (Sexual Offences) Act 1993 (a) fails to protect people with intellectual disability from unwanted sexual contact generally (it is limited to sexual intercourse only) and (b) fails to empower people with intellectual disability to realise their right to sexual expression (it does not clearly provide for situations of consensual sex between two persons with intellectual disability). The Health Research Board has indicated that there are just over 26,000 people registered on the National Intellectual Disability Database.
The Commission’s general approach in the Consultation Paper is that the law should recognise both the right of persons with intellectual disability to express their sexuality and also that they may be at risk or are otherwise vulnerable to sexual exploitation or abuse. The Commission also recommends that any reform in this area must be accompanied by appropriate inter-agency co-ordination and supports.
Main provisional recommendations
The Commission’s main provisional recommendations in the Consultation Paper are:
- Section 5 of the Criminal Law (Sexual Offences) Act 1993 should be repealed and replaced;
- the same functional approach to capacity (that is, an assessment of capacity to consent based on understanding the decision and its consequences at the time the decision is being made) must be taken in respect of assessing capacity to marry in the civil law and capacity to consent to sexual relations in the criminal law;
- consistently with the functional test of capacity, a person lacks capacity to consent to sexual relations if he or she is unable: (a) to understand the information relevant to engaging in the sexual act, and its consequences; (b) to retain that information; (c) to use or weigh up that information as part of the process of deciding to engage in the sexual act; or (d) to communicate his or her decision;
- a defence of reasonable mistake should apply, as with sexual offences against children, but this defence should not be available to persons in positions of trust or authority;
- there should be a strict liability offence for sexual acts committed by a person who is in a position of trust or authority with another person who has an intellectual disability;
- any replacement of section 5 of the 1993 Act should cover all forms of sexual assault and sexual acts which exploit a person’s vulnerability, with a maximum sentence of imprisonment of 10 years on conviction;
- guidelines should be developed for those working in the criminal justice process to identify current obstacles and examine methods by which the participation in court proceedings of adults with intellectual disability could be enhanced;
- an inter-agency protocol is needed between child protection services and family support services to ensure that, before any care order is made under the Child Care Act 1991, there is an assessment of the necessary supports and training that would assist parents with disabilities to care for their children;
- national standards should be developed on safeguards from sexual abuse for at risk adults.
For further information/interview with Commissioner Patricia Rickard-Clarke or Director of Research Raymond Byrne contact: Winifred McCourt, McCourt CFL T: 087-2446004
Background Notes for Editors
The Law Reform Commission is an independent statutory body whose main role is to keep the law under review and to make proposals for reform. To date, the Commission has published over 160 documents (Consultation Papers and Reports) containing reform proposals, available at www.lawreform.ie. About 70% of these proposals have led on to reforming legislation. The Consultation Paper will be available on the Commission’s website on the afternoon of the launch, 24th October 2011. The Consultation Paper contains the Commission’s provisional recommendations on this area, and submissions are invited until 31 December 2011.