THE LAW on sexual offences relating to people with intellectual disabilities should be overhauled, so that those who are capable of consenting to sexual activity are not deprived of the opportunity for intimate relationships, according to the Law Reform Commission.
The commission will publish a consultation paper on the subject this evening, in which it makes a provisional recommendation for the repeal of the existing law on sexual offences involving people with an intellectual disability.
Section 5 of the Criminal Law (Sexual Offences) Act 1993 makes it an offence to have sexual intercourse with a person with an intellectual disability. The commission points out that it fails to protect people with intellectual disability from unwanted sexual contact generally, as it is limited to sexual intercourse, and it fails to allow for consensual sexual activity between two persons with intellectual disability.
The commission points out that legislation is planned on reforming the law on mental capacity, so that people would be enabled to make decisions in line with their level of capacity. The same approach should be taken by civil and criminal law. It recommends therefore, that capacity to consent to sexual relations should be regarded as act-specific rather than person-specific.
In assessing the capacity to consent of a person with a mental disability, it should be established whether he or she can understand the information relevant to engaging in the sexual act, including the consequences; whether the person can retain that information; whether he or she can weigh it up in making a decision on sexual activity, and whether the person can communicate that decision.
It recommends that there should be a strict liability offence for sexual acts committed by a person in authority with a person with an intellectual disability. However, a defence of honest mistake should apply. The maximum penalty should be 10 years’ imprisonment. It also recommends that there should be a presumption of capacity to parent in the forthcoming mental capacity legislation, which should involve inter-agency support and assistance from both child protection and disability services.
It also stresses the need to protect vulnerable adults from sexual exploitation, and recommends that national standards be developed, again involving a multi-agency approach.
It recommends the development of guidelines for those working in the criminal justice process in identifying current obstacles to the participation of people with disabilities in court proceedings and identifying ways in which these could be overcome.
The consultation paper will be the subject of a conference on Monday, November 7th, in the Law Society. See lawreform.ie