This guest post is by Dr. Susan Leahy, Lecturer in Law at the University of Limerick.
Last week, the Law Reform Commission (LRC) published its Report on Sexual Offences and Capacity to Consent. The Report is a welcome assessment of a complex area of the law which is in much need of reconsideration. In this post, the LRC’s proposed reformulation of the substantive law relating to the sexual exploitation of those with intellectual disability is discussed.
The existing law in this area may be found in section 5 of the Criminal Law (Sexual Offences) Act 1993. Section 5 provides that a person who (a) has or attempts to have sexual intercourse or (b) commits or attempts to commit an act of buggery with a person who is ‘mentally impaired’ shall be guilty of an offence. ‘Mentally impaired’ is defined as ‘suffering from a disease of the mind, whether through mental handicap or mental illness, which is of such a nature or degree as to render a person incapable of living an independent life or of guarding against serious exploitation’. The section also provides that it is an offence for a male person to commit or attempt to commit an act of gross indecency with another male person who is mentally impaired. Section 5 does not apply where the complainant is married to the defendant (or where the defendant has reasonable cause to believe that he is married to the complainant). There is also a defence for the defendant to prove that at the time of the alleged offence, he did not know and had no reason to suspect that the complainant was ‘mentally impaired’. There are a number of shortcomings with the current legal position.
The first, and perhaps most troubling, issue with section 5 is that consent does not provide a defence. In effect, this means that an individual who is ‘mentally impaired’ within the meaning of the section is legally barred from engaging in a sexual relationship. Although this paternalistic stance is legitimately founded in a desire to protect these individuals from exploitation and abuse, it goes too far. This ‘all-or-nothing’ approach does not account for the situation where an individual with an intellectual disability is capable of exercising sexual choice. In this respect, the right of such an individual to have a sexual relationship is absolutely denied and his/her autonomy is undermined. This is in direct conflict with the rights-based approach to disability which is required by the United Nations Convention on the Rights of People with Disabilities, as well as the European Convention on Human Rights (see X and Y v The Netherlands (1985) 8 EHRR 235) and the equality provisions of the Irish Constitution (Article 40.1).
The definition of ‘mentally impaired’ is also inappropriate. The terminology itself is outdated. However, most significantly, the reference to the ability to live independently is questionable. As the LRC point out, capacity to consent to sexual activity is not predicated on an ability to live independently. As is often said, competence is local. It must be judged in a context-sensitive manner with reference to each decision which the relevant person may need to make or each activity which s/he wishes to engage in. It is not correct (or sufficiently respectful of autonomy) to assert that an individual who does not have capacity to live independently necessarily does not have capacity to consent to sexual activity.
Another problem with section 5 is the focus on sexual intercourse and buggery and this has been criticised by the LRC who highlight research which shows that sexual touching, rather than penetration, was the most common type of abuse suffered by people with intellectual disability. The failure of section 5 to provide for all forms of sexual abuse (penetrative and non-penetrative) was highlighted in People (DPP) v XY (Central Criminal Court, 23rd November 2010).
LRC Proposals for Reform
Given the problems with section 5, it is unsurprising that the LRC has recommended that it be repealed and replaced with a more modern, rights-based provision. The LRC recommends the adoption of a functional approach to the assessment of capacity to consent to sexual activity. This functional test of capacity would apply in relation to ‘relevant persons’ (i.e. persons (a) whose capacity to consent to a sexual act is called into question or (b) who lack capacity to consent). Under the LRC’s proposed test, a relevant person should be found to have capacity to consent to the sexual act involved ‘(including where he or she can so choose arising from the provision to him or her or suitable decision-making assistance) because he or she-
(a) has sufficient understanding of the nature and reasonably foreseeable consequences of the sexual act involved,
(b) is able to 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). ‘
This is a sensible test which is sufficiently flexible to allow for context-sensitive assessments of capacity. This individualised approach seeks to ensure maximum respect for sexual autonomy whilst still having an assessment mechanism in place to make sure that relevant persons have sufficient capacity to consent and are not being abused or exploited.
The sexual acts covered by the LRC’s proposals would include all forms of sexual activity and thus should mirror the four non-consensual sexual offences against adults found in the Criminal Law (Rape) Act 1981 and the Criminal Law (Rape)(Amendment) Act 1990 (i.e. rape, rape under section 4, aggravated sexual assault and sexual assault). It is also recommended that the penalties on conviction for the new offences recommended by the LRC should replicate the penalties for the offences they mirror (e.g. that the maximum penalty of life imprisonment for rape should equally apply to sexual intercourse with a relevant person who lacks capacity to consent).
The LRC suggests that the defence that the defendant did not know and had no reason to suspect that the complainant did not have capacity to consent should continue to provide a defence. This would permit a defendant who is mentally innocent to exculpate him/herself and avoids the potential difficulties which a strict liability offence could create from a defendant’s rights perspective. The difficulty with strict liability for serious criminal offences, particularly sexual offences, was seen in CC v Ireland  IESC 33 where section 1(1) of the Criminal Law (Amendment) Act 1935, which provided for strict liability in the context of statutory rape, was struck down as unconstitutional. The LRC do, however, posit that the defence of marriage should no longer apply. Thus, the fact that the defendant is married to or in a civil partnership with the complainant (or had reasonable cause to believe that this was the case) would not in itself provide a defence under their proposed scheme. This reflects that fact that marriage or a civil partnership per se does not preclude the potential for sexual exploitation or abuse.
It has also been recommended that the replacement of section 5 should specifically provide that no offence occurs where (a) two relevant persons engage in or attempt to engage in a sexual at and (b) there is no exploitation or abuse (whether physical, sexual or emotional) of either relevant person. This provision would avoid the situation where two individuals with intellectual disability who engage in sexual activity might both potentially be liable to a criminal penalty. Where there is no abuse or exploitation in such a relationship, it should not attract the attention of the criminal law.
The LRC also recommends that there should be special provisions relating to abuse of ‘a position of trust or authority’ (i.e. ‘parents, stepparents, guardians, uncles, aunts, children, nephews and nieces of, any person who is in loco parentis to, or persons who directly care for and support, the victim’). They also propose that individuals who were such a position in relation to the complainant but were not in such a position at the time of the alleged offence would also be included within the definition. The significance of being found to be in a position of trust or authority would be that it would be presumed that the defendant knew that the relevant person did not have capacity to consent unless sufficient evidence is adduced to raise an issue as to whether the defendant knew or could reasonably have been expected to know that the relevant person did not have the capacity to consent. This proposal represents an important recognition that individuals who hold a position of authority or trust in relation to a relevant person are in a unique position in terms of knowledge of that person’s capacity to consent to sexual activity and to deter them from abusing their position in order to sexually exploit those they care for.
Of course, a side-effect of this attempt to increase the recognition of the sexual autonomy of relevant persons is that they may be more at risk of sexual abuse and exploitation. The LRC recognises this and posits that a crucial pre-requisite to the introduction of their recommended legislative changes is the provision of appropriate sex education to these individuals, as well as the introduction of national standards concerning safeguards for protecting them from sexual abuse and exploitation. This would ensure that the individuals themselves are aware of the potential for unwanted sexual intrusion and how to protect themselves, as well as how to report sexual abuse or exploitation. The introduction of safeguards in the form of national standards for safeguarding relevant persons from sexual exploitation or abuse which clearly delineate responsibility for this task, as well as adopting an inter-agency approach between institutions such as the Gardaí and the HSE (amongst others), will also be important.
The LRC has offered an excellent overview of the current law which highlights its inadequacies and the fact that it is out of step with best practice in relation to legislating for the rights and protection of people with disabilities. The legislative changes proposed by the LRC are realistic and complement the functional approach to capacity which has been adopted in the Assisted Decision-Making (Capacity) Bill 2013. Indeed, for the purposes of clarity and consistency, it is appropriate that all legislation which deals with an individual’s decision-making capacity (in whatever realm of their life) adopts the same test. It is hoped that the Government’s promised Sexual Offences Bill will take account of the recommendations put forward by the LRC in this Report and repeal and replace section 5 with a more appropriate rights-based provision.