Today Senator Katherine Zappone published a Private Members Bill which aims to reform the law on consent to sex as it affects people with disabilities – particularly section 5 of the Criminal Law (Sexual Offences) Act 1993, which I have written about here previously.
This new Bill abolishes section 5 of the 1993 Act entirely and introduces a disability-neutral offence of abuse of a position of dependence or trust, designed to prohibit the sexual abuse or exploitation of any adult by someone in a position of trust – which could be a family member, relative or friend. Most importantly, it also provides a nuanced definition of consent to sex for the purpose of sexual offences in Irish law – one based on agreement, understanding and communication, which aims to ensure that people with disabilities are not asked to meet a higher standard of consent than their non-disabled peers before engaging in lawful sexual activity.
This Bill is a significant departure from the Law Reform Commission (LRC) proposal to reform this aspect of our law. As I’ve written here previously, the LRC proposed introducing a series of new offences to mirror existing sexual offences which would include the lack of capacity of the victim as part of the definition of the offence.
The LRC’s report does contain some important suggestions on how to move away from the paternalistic approach of section 5, which assumes that people with ‘mental impairment’ (including people with intellectual disabilities) are not capable of giving valid consent to sex. However, its recommended reforms did not fully address the requirements of the UN Convention on the Rights of Persons with Disabilities – specifically, the requirement in Article 12 of the Convention to ensure that all persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
The UN Committee on the Rights of Persons with Disabilities, which monitors the UN Convention, has clarified in its General Comment 1 on Article 12, the difference between legal capacity and mental capacity. It states:
Legal capacity and mental capacity are distinct concepts. Legal capacity is the ability to hold rights and duties (legal standing) and to exercise these rights and duties (legal agency). . . . Mental capacity refers to the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors. . . . Under Article 12 of the Convention, perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity.
In Ireland, as in many other countries, a person’s mental capacity (or decision-making skills) are often used to restrict or deny their legal capacity. This disproportionately affects people with disabilities, whose mental capacity is more likely to be questioned than that of non-disabled people. The most common way of assessing mental capacity is the ‘functional test’ — which requires the individual to demonstrate that for the specific decision, they are able to understand the information about the decision (including the nature and consequences of the decision), use and weigh information in order to come to a decision, retain the information long enough to make a decision, and communicate the decision to third parties. This test was introduced into Irish case law by Fitzpatrick and Anor. v K and Anor  2 IR 7.
Criticism of the functional test of mental capacity is now widespread, with the UN Committee on the Rights of Persons with Disabilities stating in its General Comment on Article 12 that: ‘‘Article 12 does not permit this discriminatory denial of legal capacity and instead requires that support be provided for the exercise of legal capacity.’’ The Mental Capacity Act in England and Wales which adopts this functional test has been the subject of two different inquiries — most recently by the House of Lords Select Committee. In his evidence to this Committee, Denzil Lush, a prominent judge in the Court of Protection, acknowledged that this law is in his view, not compliant with the UN Convention.
The problem with the use of the functional test of mental capacity as a proxy for ability to consent to sex is that it holds people with a disability to a higher standard than the rest of the population — who are not required to understand and appreciate the nature and consequences of their decision to engage in sexual activity. These tests are disproportionately applied to people with disabilities — especially those with intellectual, psycho-social and other cognitive disabilities. In this sense, the functional test of mental capacity, where it is used as a proxy for legal capacity, can be viewed as a form of indirect discrimination against persons with disabilities.
Irish advocates for legal capacity reform have continuously emphasized that in the reform of our law on legal capacity, including in the Assisted Decision-Making (Capacity) Bill 2013, legal capacity must be recognized as a universal human attribute, and not made contingent upon tests of mental capacity — whether functional or otherwise. This advocacy complements the commitment in the Programme for Government 2011 to introduce capacity legislation ‘in line with the UN Convention on the Rights of Persons with Disabilities.’
The Inclusive Research Network (a group of people with learning disabilities who work as researchers) strongly argued at the Department of Justice’s Consultation Symposium on the Assisted Decision-Making (Capacity) Bill 2013 for the need to reform law in this area — to give them the right to have relationships on an equal basis with all other citizens. Similarly, the Connect People Network (a group of self- advocates who promote the right of people with support needs to romantic relationships) — stated as follows in their submission to the Law Reform Commission on this issue:
‘‘We don’t want laws that are about testing us. We want proper sex education. Then we can make our own choices. We don’t want special laws for people with extra support needs either. The new law should be disability neutral. It should apply to everyone. We want you to listen to our opinions. We want you to take them seriously.’’
The need for equality and respect for people with disabilities’ relationships was also highlighted powerfully in the recent documentary ‘Somebody to Love’, aired on RTE in February 2014, where people with a wide range of disabilities (including people with intellectual disabilities) spoke honestly about their own experiences — and how the current law is a barrier for them in entering into relationships.
I’m proud to have been worked with my colleague Anna Arstein-Kerslake in supporting Senator Zappone to develop this Private Members Bill, and I hope that it will be taken seriously by government as Ireland moves closer to ratification of the UN Convention on the Rights of Persons with Disabilities.