Law Reform Commission publishes
Report on Sexual Offences and Capacity to Content
REPORT RECOMMENDS REPEAL AND REPLACEMENT OF EXISTING LAW ON SEXUAL OFFENCES INVOLVING PERSONS WHOSE CAPACITY TO CONSENT IS AT ISSUE OR WHO DO NOT HAVE CAPACITY TO CONSENT; RECOMMENDS THAT A NEW LAW SHOULD ENSURE SUITABLE RIGHTS-BASED EMPOWERMENT WITH APPROPRIATE PROECTION FROM EXPLOITATION OR ABUSE; AND RECOMMENDS NEED FOR INTER-AGENCY STANDARDS ON SEX EDUCATION
Wednesday 6 November 2013: The Law Reform Commission’s Report on Sexual Offences and Capacity to Consent will be launched by Ms Frieda Finlay, former Chairperson of Inclusion Ireland, at the Criminal Courts Complex Dublin at 4.30 pm this evening. The Report forms part of the Commission’s Third Programme of Law Reform and complements the general review of the law on 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 capacity, culminating in a 2006 Report that recommended the enactment of new capacity legislation, which is now envisaged in the Government’s recently published Assisted Decision-Making (Capacity) Bill 2013. In the Report being launched this evening, the Commission makes 29 recommendations for reform, including the repeal and replacement of the existing law in this area, section 5 of the Criminal Law (Sexual Offences) Act 1993. The Report also contains a draft Bill to implement these recommendations.
Commission’s general approach: empowerment and protection
The Commission’s general approach in the Report is that the law should recognise both the right of persons whose capacity to consent may be at issue (because of, for example, intellectual disability) to express their sexuality and also that they may be at risk of 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, in particular to provide for national standards of sex education in this area.
The Commission concludes in the Report that section 5 of the Criminal Law (Sexual Offences) Act 1993 should be repealed and replaced because it is deficient in two important respects:
· The 1993 Act fails to empower people whose capacity may be at issue to realise their right to sexual expression because it does not clearly provide that no offence is committed where they engage in a sexual act and if there is no exploitation or abuse of either person;
· It fails to protect persons whose capacity is in question from the most common types of exploitation or abuse because the 1993 Act deals with sexual intercourse only and ignores the reality that exploitation or abuse often arises from other unwanted sexual acts.
Overview of the main recommendations
The Commission’s main recommendations in the Report are:
· Section 5 of the Criminal Law (Sexual Offences) Act 1993 should be repealed and replaced because it fails to respect the right to sexual expression of persons whose capacity may be at issue and does not deal with all situations in which exploitation or abuse may arise;
· Legislation should be enacted to replace section 5 of the 1993 Act that would be based on a functional test of capacity, which is a rights-based approach that is in line with the UN’s 2006 Convention on the Rights of Persons With Disabilities and also with the Government’s recently published Assisted Decision-Making (Capacity) Bill 2013;
· The legislation to replace section 5 of the 1993 Act should provide that a person has capacity to consent to any sexual act where he or she is able to choose to agree to the specific sexual act involved (including where he or she has been given suitable decision-making assistance) because he or she: (a) understands the nature and reasonably foreseeable consequences of the act; (b) can use or weigh up relevant information in deciding whether to engage in the sexual act; and (c) is able to communicate his or her decision (whether by talking, using sign language or any other means);
· The new legislation should make clear that no offence is involved where two persons whose capacity to consent may be at issue (such as because of an intellectual disability) engage in a sexual act and where no exploitation or abuse of either person is involved;
· The new legislation should cover all forms of sexual assault (including sexual assault and rape) and also any other acts that involve exploitation or abuse (such as unwillingly having to watch others involved in sexual acts);
· The accused should, in general, have a defence of reasonable belief that the person has capacity to consent, but this defence should not be available to persons in a position of trust or authority (which should include close family members and professional carers) in relation to whom there should be a rebuttable presumption that he or she knew that the person did not have capacity to consent;
· Guidelines should be developed for those working in the criminal justice system to identify current obstacles and examine methods by which the participation in court proceedings of persons covered by the proposed legislation could be enhanced;
· National standards should be developed by all relevant agencies to ensure a consistent approach to sex education, which should include the risks of exploitation or abuse, for all persons affected by the reforms proposed in the Report.
Click here for Report