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. Continue reading “Legal Capacity and Consent to Sex – Reform for People with Disabilities”
This post is inspired by the excellent RTE 1 documentary ‘Somebody to Love’ which aired last night and provided a sensitive and thought-provoking exploration of disability, relationships and sexuality. If you haven’t already watched the programme you can catch it on the RTE player here. At several points during the programme the participants mentioned the law which criminalises sexual activity with a person with an intellectual disability – which is worth explaining in further detail here.
Last week the High Court issued a significant judgment in the case of MX v HSE. An earlier judgment in the same case on an issue of judicial review is available here. The most recent judgment addresses issues of constitutionality and compliance with the European Convention on Human Rights regarding the treatment of a patient in the Central Mental Hospital without her consent. A novel argument was made in the case regarding the direct effect of the UN Convention on the Rights of Persons with Disabilities following its conclusion by the European Union – even though Ireland has not yet ratified the Convention. This argument was however dismissed by MacMenamin J, although he acknowledged the guidance provided by the Convention in relation to issues of legal capacity.
I will focus my analysis of the case here on the issues of the plaintiff’s perceived lack of mental capacity to consent to treatment, and the availability of independent review of her treatment, with a view to outlining how the UN Convention takes us in a different direction from the procedural safeguards provided for in the ECHR, and will discuss how a new approach to consent to treatment, and support to exercise legal capacity is required.
We’ve seen much of late on what rape is and what rape is not (mostly from white men, though Helen Mirren has also expressed distressing opinions). What has been expressed however is mostly personal opinion on what should be rape. Counterarguments have attempted to clearly state that the law is in fact very clear and that any instance where a man has non-consensual sexual intercourse with a woman/another person (I think the gendered descriptions around this reveal quite a few biases) is rape. Take for instance this brilliant, honest and important blog post by Laurie Penny. The reality is that this, however, is far from true. If we take a detailed look at the law on rape in the UK and Ireland we will see that it is much more complicated and that it remains problematic and contested. Continue reading “The Law of Rape in the UK and Ireland”