Over the next two days, two pieces of legislation which the government has deemed necessary for Ireland’s ratification of the UN Convention on the Rights of Persons with Disabilities will be debated in the Dail. While several calls have been made by the disability community to ensure that Ireland ratifies the Convention without delay, there are ongoing human rights concerns with the legislation being proposed which will have a significant impact on the day to day lives of people with disabilities in Ireland.
The Criminal Law (Sexual Offences) Bill is going through its Report and Final stages in the Dail tonight. This Bill includes an amendment by Minister Fitzgerald to define sexual consent, which is vitally important and widely supported by civil society. The wording of the Minister’s amendment in respect of persons with disabilities could however be improved. For example, the amendment states that a person does not consent to a sexual act if “he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act.” The term ‘physical disability’ seems unnecessarily limiting here, as there are many different physical and psychological reasons that might prevent the person from communicating consent or refusal. Instead, it would be preferable if the amendment provided that a person does not consent if “he or she is experiencing an impairment which prevents him or her from communicating whether he or she agrees to the act.”
The main human rights concern for people with disabilities in Ireland relates to Part 3 of the Bill. The Minister has maintained the need for a separate offence of sexual act with a ‘protected person’ (section 21) – as well as introducing a new offence against a ‘relevant person by a person in authority’ (section 22). Despite many submissions by organisations of persons with disabilities (e.g. Connect People Network, Inclusive Research Network) and their allies (e.g. Inclusion Ireland, Centre for Disability Law and Policy), calling for a disability-neutral approach to sexual offences legislation the Minister has maintained the need to have separate sexual offences in the Bill which only apply when the victim has a mental or intellectual disability, or mental illness.
Part 3 of the Bill singles out people who lack capacity to consent to sex because of a disability. There are many reasons why a person might lack capacity to consent as now recognised in the Minister’s amendment defining sexual consent – for example, due to consumption of alcohol or drugs, or where the person is asleep or unconscious. Therefore, there should be no separate offence targeting victims with disabilities who lack the capacity to consent to sex. If someone engages in sexual intercourse with a person who does not consent to it (for example because the person lacks capacity to consent) then this constitutes rape and should be prosecuted as such. Therefore, the new offences introduced in Part 3 should be removed, along with the existing, discriminatory section 5 of the Criminal Law (Sexual Offences) Act 1993 which they seek to replace.
The second piece of legislation being debated in the Dail today and tomorrow is the Disability (Miscellaneous Provisions) Bill. The Bill will introduce long-overdue reform in the areas of access to goods and services, jury service, electoral laws, and will establish national implementation and monitoring mechanisms for the Convention in Ireland. However, many of the most significant provisions in the Bill, including those relating to deprivation of liberty, have not yet been published, and will be introduced as amendments at Committee stage. This is a grave concern as it means there will be little opportunity for public debate and even less opportunity to amend the provisions once they are introduced. Many civil society organisations working in the areas of disability and mental health have expressed concern about the Bill and you can read more about these concerns in this press release. The Irish Human Rights and Equality Commission has also made observations on the legislation which can be read here and here.
Given the increasing pressure on the government to ratify the Convention, it is important to have a robust debate in the Oireachtas on the laws which are being passed to enable Ireland to ratify. Ratification without real change in our laws and policies, the kind of change demanded by people with disabilities and their allies, is meaningless, and undermines the hard work of so many campaigners and activists, including the late Martin Naughton, who worked tirelessly to bring about real change in the lives of people with disabilities in Ireland. To stimulate debate on these issues, I’ve developed a list of questions TDs could ask the Minister on both Bills (Questions for TDs) . The Centres for Independent Living have also devised a list of questions on the Disabilities Bill which can be accessed here.