'Protection' breaches human rights

Legislation displays a paternalistic approach to persons with intellectual disability, conference is told, writes JOANNE HUNT

IRISH PEOPLE with intellectual disabilities are having their right to express their sexuality denied, a conference in Dublin heard yesterday.

At the Law Reform Commission’s annual conference, titled Sexual Offences and Capacity, attendees were told about the findings of the commission’s consultation paper on sexuality and the intellectually disabled.

Published in October, the paper says that legislation not only fails to provide for situations of consensual sex between persons with intellectual disability but is also deficient in protecting such people from unwanted sexual contact.

The commission is calling for the repeal and replacement of the sections of the Criminal Law (Sexual Offences) Act 1993.

Speaking before the conference, Raymond Byrne, director of research at the Law Reform Commission, said the 1993 Act reflected “a very old paternalistic approach to persons with intellectual disability”.

He said there was a presumption that those with an intellectual disability “wouldn’t be capable of having a social life, an emotional life or a sexual life”.

According to Byrne, while it cannot be said that it is definitely an offence for two people who have an intellectual disability to have sex, because of the way the Act is worded, it could be.

He argued that the principle of consent should be the basis of any reform to the law and suggested that Ireland could follow the lead of other countries where an assessment of a person’s capacity to consent can be made.

In the case of unwanted sexual contact, he noted that under the current law, it was defined as “sexual intercourse” only and said that any replacement of the Act should cover all forms of sexual assault that exploit a person’s vulnerability.

Chairwoman of Inclusion Ireland, Frieda Finlay, said that while the law may have been designed to protect the vulnerable, it “denies people with intellectual disability their human right to any physical contact in a loving relationship”.

“There are plenty of young people with an intellectual disability who want to have loving relationships and unfortunately the law is sometimes used as an excuse to say, ‘Oh, we can’t have any of that because it’s not legal.’ It’s used as an excuse to deny people their human rights,” she said.

Finlay said that sex education for those with an intellectual disability was critical. “We must give the person the capacity to consent and give them the understanding as best as possible about what they are giving consent to.

“Vulnerable people do need to be protected, but you also have to acknowledge people’s human rights . . . an awful lot of people are denied romance in their lives. Romance is equally important to everybody.”

Health Research Board figures indicate there are just over 26,000 people registered on the National Intellectual Disability Database.

Finlay said that while the 1993 Act might have been designed to protect the vulnerable, “it assumes that all people with an intellectual disability are the same. Instead there are varying degrees of ability among the 26,000.”

In its provisional recommendations, the Law Reform Commission is calling for a capacity to consent test to be put in place to determine whether a person’s level of intellectual disability impairs their ability to consent.

Under such a test, a person will be deemed to lack the capacity to consent to marry or to have sexual relations if they are “unable to understand the information relevant to engaging in the sexual act and its consequences, unable to retain that information or weigh it up as part of a process of deciding to engage in a sexual act or are unable to communicate their decision”.

As a protection to those with intellectual disability from unwanted sexual contact, the commission is also recommending that a defence of “reasonable mistake” should not be available in cases where sexual acts are committed by a person who is in a position of trust or authority.

For cases that do come before the court, the commission is calling for guidelines for those working in the criminal justice system, so that they can better assist those with intellectual disability to participate in court proceedings.

The Law Reform Commission’s consultation paper, Sexual Offences and Capacity to Consent, builds on its 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.