THE LAW relating to sex and people with an intellectual disability needs reform, a conference on the law and people with such disabilities has heard.
Patricia Rickard-Clarke of the Law Reform Commission told the Inclusion Ireland conference the commission was about to publish a consultation paper on the issue of sexual offences and consent, which would distinguish between exploitative and non-exploitative sex with people who have intellectual disabilities.
She pointed out that at present the 1993 Criminal Law (Sexual Offences) Act makes it an offence to have sex with a person who is “mentally impaired”. There are two defences to the charge: marriage, and not knowing the person had the disability. A prosecution requires the consent of the DPP.
She said there was no provision for consent as a defence in situations where both parties were capable of giving real consent to sexual intercourse. The issue of consent should be examined from the point of view of the person’s capacity to understand the act involved and its possible consequences, including pregnancy and sexually transmitted disease.
Using the distinctions between those with a mild, a moderate and a profound disability, those with a mild disability could generally understand what was involved in consenting to sexual activity if they received appropriate sex education. Those with a moderate disability may, depending on the circumstances. Those with a profound disability would be unlikely to have capacity to consent. The fear of prosecution could prevent relationships where there was consent and there was no element of exploitation.
Dr Gerard Quinn of NUI Galway said the plenary guardianship laws, where people are deprived of all decision-making capacity, were in violation of the European Convention on Human Rights.