Reform of the sexual offences law concerning people with intellectual disabilities is overdue, writes CAROL COULTER
THE LAW Reform Commission report on sexual offences concerning people with intellectual disabilities should be combined with consolidation with reform of the law in the whole area, according to Mr Justice Peter Charleton.
He was speaking at the launch of the LRC consultation paper, where he outlined some of his own experiences in dealing with such cases.
He pointed out that the language in the relevant 1935 Act, which outlawed sex with people suffering from intellectual disabilities, described them as “idiots or imbeciles”, while there was no provision for them to take the oath in court in order to give evidence.
He recalled the issues this had posed in cases in which he was involved. In one 1988 case where, as a barrister, he was acting for the defence, the judge examined the victim and found her capable of understanding and taking the oath. Acting according to his duty to his client, he then successfully sought to have the case dismissed on the grounds that she had intellectual capacity, therefore was not an “idiot or imbecile”, so could not be a victim under the Act.
This placed people with such a disability in an impossible position, as if they were found incapable of understanding the oath they could not give evidence, and if they could and had legal capacity, they could not be regarded as victims under the Act (since reformed).
In another case, he was acting for the prosecution, where a girl with Down Syndrome had alleged that her father, who was separated from her mother, had sexually abused her.
Her father insisted on defending himself and cross- examining the girl. However, it turned into a disaster for him, her evidence was compelling and he was convicted. This was also a case where the long-standing convention that a wife could not give evidence against her husband was overturned, he told The Irish Times. He remembered the tears of gratitude of the girl that her father had been convicted.
Mr Justice Charleton cited the statistics in the 2002 Sexual Abuse and Violence in Ireland (SAVI) report, which noted that one in eight women faces the experience of a serious sexual assault, and more than one in 20 men.
“The figures for those with a mental disability must be much higher,” he said.
He also referred to an English report which found that all but five of the UK’s 52 police forces were conducting investigations into abuse in children’s homes, showing the increased vulnerability of people in residential homes.
He said that the Law Reform Commission had done a great job in bringing together all the issues in its consultation paper, particularly with its emphasis on moving from a “status” approach to a functional one, where capacity was examined from the point of view of how the person functioned in a given context.
Mr Justice Charleton added that there was also a need for consolidation of the law relating to sexual offences.
“Sitting as a judge it’s very complicated. There is the 1861 Offences against the Person Act, the 1935 Criminal Law Act and all their amendments, including the amendments arising out of the C case [relating to under-age sex and consent].
“There is a risk of a serious mistake on the part of the judge or the prosecution. It’s completely unsatisfactory and reform is long overdue. There should be consolidation into one sexual offences Act.”
He is chairing the Law Reform Commission’s conference on its consultation paper which takes place today in the Law Society, Blackhall Place. Further details on lawreform.ie