Recognition, Equality and Marriage

MarriageThe expansion of equality laws and the adoption in Ireland of a ‘modern equality code’ (to borrow from former Minister for Justice, Mr Dermot Ahern T.D.), has addressed many of the inequalities that perpetuated discrimination and prejudice in Ireland – but not all.  The introduction of civil partnership in Ireland was an important step towards a more equal regime of relationship recognition, but it did not secure either formal or substantive equality in law for gay and lesbian communities in Ireland.

Extending and opening up civil marriage to same sex couples seeks to bring an end to legally sanctioned discrimination, by providing constitutional recognition to same sex relationships. As the campaign posters note, it does nothing more, and nothing less.

EquinetAs Ireland’s National Human Rights Institution, and National Equality Body, the Irish Human Rights and Equality Commission has expressed its view that ‘the opening out of civil marriage to two persons without distinction as to their sex is a matter of equality and human rights.’ Recognising that marriage is celebrated in Ireland as ‘a key part of an individual’s and a family’s participation in the social and cultural life of the State’, the Commission concludes that the current constitutional position relating to marriage does ‘not provide full recognition and equality of status for same-sex couples’.

Fundamentally, this referendum is about equal recognition, and about the normative, symbolic and practical value of constitutional texts and equality guarantees. The significance of such recognition has been recognized by many constitutional courts worldwide. The Canadian Supreme Court, in Egan v Canada, has held that ending discrimination is fundamentally about ‘recognition’. Excluding same sex couples from marriage, they held, perpetuates the view that same sex relationships are less worthy of recognition than different sex relationships.

In the United States v Windsor, the U.S. Supreme Court pointed out that in providing legal recognition to the Canadian marriage of Ms Windsor and her spouse, the State of New York had ‘enhanced the recognition, dignity, and protection’ of same sex couples.

These statements were echoed in the Irish High Court in Zappone and Galligan, where Dunne J noted  – in a comment that remains very relevant today:

‘…there are two individuals at the heart of this case who have spoken eloquently of the sense of social exclusion they feel by virtue of being denied entry to the institution of marriage.’

The words of Marshall C.J. in the Massachusetts case, Goodridge, were also extensively cited by the High Court:

Recognising the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite sex marriage,…. If anything, extending civil marriage to same sex couples reinforces the importance of marriage to individuals and communities.

In Minister of Home Affairs and Another v Fourie and Another, the South African Constitutional Court stated that denying same sex couples the right to marry, negated their right to self-definition ‘in a most profound way’.

These are not abstract judicial statements. They recognise the everyday injuries and harms, caused by legally sanctioned exclusions from the institutions that function as markers of equality and recognition in Irish society.

The words of CJ Warren in Loving v Virginia are often cited in debates on marriage equality, and rightly so:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma,316 U. S. 535, 316 U. S. 541 (1942).

The ‘unsupportable’ racial classifications impugned in the proceedings before the Court were he said, ‘directly subversive of the principle of equality’.  There can be, he said, ‘no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification’. In the forthcoming referendum, we are being asked to rewrite the text, and to dismiss the invidious and subversive distinctions that limit recognition of the equal worth of same sex relationships.

Gender, and the regulation of gender roles within the family remains at the heart of the referendum debate, though less attention has been paid to this aspect of the campaigns to date. In the 1873 Supreme Court case of Bradwell v. Illinois, Justice Bradley stated clearly the link between women’s societal roles and the institution of marriage:

“The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman …[]..The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.”

As Judge Bradley’s quote indicates, the marital family was defined by distinct and hierarchical roles across gender. The ideology of separate spheres that underlies Judge Bradley’s statement continues to be reflected in the Irish Constitution – in the gendered reference to “women’s duties in the home” and in legislative exclusions of same sex couples from the institution of civil marriage. Such gendered divisions are appealed to yet again, in this referendum, as they have frequently been in Submissions to UN human rights treaty bodies, and in resistance to constitutional and legislative change.

The Child and Family Relationships Act 2015 is a significant step towards securing the best interests and rights of all children and families in this State. The (much delayed) coming into force of the 31st Amdt to the Constitution gives constitutional recognition to the best interests of the child. These constitutional and legislative protections for children will not be diminished if marriage equality is introduced into Irish law, contrary to the views expressed in several confusing and confused statements about the forthcoming marriage referendum. If anything, the rights of children and the constitutional protections of family life will only be strengthened by a move towards a more inclusive and equal society, and by the constitutional recognition of an equal right to marry for same sex couples.

Generating traditional values: on the Marriage Referendum

Aengus UNAengus Carroll is a PhD candidate in international human rights law at UCC and author of State Sponsored Homophobia: A World Survey of Laws: criminalisation, protection and recognition of same-sex love, 2015, launched by the UN Office of the High Commissioner of Human Rights in Geneva on 13 May 2015.

Generating traditional values: Tradition is a powerful political force in all cultures around the world. Indeed many would identify that culture itself is largely defined by the traditions of a place. Increasingly, the demands of implementing human rights law in national settings conflict with states’ traditions regarding issues of female genital mutilation, child brides, women driving cars and the imprisonment, or execution of gays and lesbians, as examples.

ILGALegislation in every country in the world discriminates against LGBT people in penal or civil codes to some degree: 76 criminalise, 10 have the death penalty, and only eight have constitutional bans on discrimination based on sexual orientation. They generally discriminate by exclusions from, or non-inclusions in, legal protections provided to others. Enacting law, or indeed codifying the constitution, that differentiates a class of people based on a particular characteristic is discrimination whether in Ireland, Uganda or Russia. It just is. And the more the public discusses the issues, the more clearly that fact is realized.

Claiming that treating difference differently is not inequality when there are direct and known burdens being carried by the excluded class of person is a false paradigm worthy of Brave New World. Lately, in the print edition of the Irish Times of 16 May 2013 but curiously not headlined as such online, Breda O’Brien’s offering was “New Thought Police Push Dogmatism and Intolerance”. In it she expressed dismay about how the Irish National Teacher’s Organisation “intend to normalize same sex marriage” to children “as young as four”.  Her observation about normalizing, reveals her true position that same sex relations are not normal, and we should not teach kids it is.

This is exactly the logic that has informed laws in Russia, Nigeria, Lithuania and Algeria of the last two years about the ‘propaganda of homosexuality to minors’ resulting in the repression on privacy, freedom of expression, association and other core human rights. These attitudes share themes: fear of a gay-friendly education, and fear of the commodification of reproductive technologies. Since earlier this year, 220 million US citizens now live under equal marriage laws. Children across 37 states are being taught that its okay to be gay, that some people have same sex parents and others don’t. This has been the case in Massachusetts since 2004 where there are a lot of respectful young people around.

The No campaign state there is no human right to same sex marriage (while accepting that there is an equivalent right to different sex marriage). What the European Court of Human Rights actually said is that it was not prepared to compel States to recognize marriage regardless of ‘sex’ at this time. The wriggle room the Court affords to states to figure out weighty social issues, known as the margin of appreciation, tends to run out. This happened in the transgender legal recognition case in Goodwin in 2002 after 20 years of ‘grace’ and prior cases at the Court. The Court did not say that marriage between people of the same sex is not a human right – that is blatant misinformation by the No campaign – the Court just has not affirmed it is. Yet.

Tradition is something that has always evolved, and this is how it is ‘owned’ and passed on by the generations. Marriage, as so many have pointed out already, has changed utterly since women were the vehicles for property and progeny (much like livestock). As Professor Lee Badgett (who writes about the economic cost of homophobia globally) in her extensive research found, in today’s world attitudes to marriage are primarily about human companionship. This then means it is less about the gendered historical, marital roles on which traditional marriage is predicated. Where there are children, the privilege vested to parenthood is given legal shape by a society that supports all familial forms equally.

It beggars belief to accept that this somehow means it’s all about selfish adults with their commodified children modeled as accessories, who put themselves and not their children first. The No posters that elevate a mother’s love as ‘irreplaceable’ sneakily mislead: the person who brings you up and holds you close and gives you the love and protection that all babies and children flourish within is irreplaceable, and these bonds need to be supported, with whoever that is.

The inference being made by the No campaign is that same sex partners are intrinsically ‘unnatural’ in their familial construction, because they may need assistance in the reproductive process. Just extend that to other people that need medical assistance and you see its rather twisted logic. This line of argument posits that rights claims are actually the ‘promotion of homosexuality’ in a new liberalized human reproduction industry. In effect, this position actually attacks the core and intrinsic identity of gays and lesbians. If followed through it in fact seems to suggest a mal-intent on behalf of same sex partners, and it may be very interesting after the referendum is over to examine the nature of such speech. It might be that the cautionary tendencies of many mild ‘Don’t Know’ voters are being triggered by fear stoked all in the name of tradition.

 

Call for Papers Extended CCJHR PhD Symposium

Call for Papers: EXTENDED until 11th May 2015
Centre for Criminal Justice and Human Rights, U.C.C.
PhD Symposium (2015)
Rights in Conflict: Socio-Legal and Critical Approaches to Human Rights
June 8th-9th 2015
Keynote Speakers:
• Prof. Kieran McEvoy, Queen’s University Belfast
• Dr Liz Campbell, University of Edinburgh
• Prof. Illan Rua Wall, Warwick University
The Centre for Criminal Justice and Human Rights (CCJHR) at University College Cork welcomes submissions for its 9th Annual PhD Symposium. The symposium will examine socio-legal and critical approaches to human rights law and practice, with a particular focus on conflicting rights claims, and to rights in conflict. We welcome papers from doctoral candidates researching in law, politics, criminology, philosophy, sociology and related social sciences. The symposium will include workshops on a range of themes including: ‘Linking Research / Praxis’; Critical Research methodologies; Socio-Legal approaches to human rights.
Please forward an abstract (max. 300 words), including a working title, name and institutional affiliation to ucclawconf@gmail.com by May 11th 2015. Selected participants will be notified no later than 15th May 2015. To be considered for the best paper prize, full papers should be submitted by 22nd May. (Best Paper Prize: €200)
Please note: a registration fee of €20 will apply to all attendees.

For updates: Twitter: @CCJHRlawucc ; W: http://www.ucc.ie/en/ccjhr/
FB: (Centre for Criminal Justice and Human Rights Postgraduate Conference)

Launch of World Report on State Sponsored Homophobia

ILGAWe are delighted to welcome this guest post from Aengus Carroll, PhD researcher at University College Cork, School of Law. Aengus has a long track record of research and advocacy in the field of sexuality rights, and this year, is the co-author of the landmark ILGA publication State-Sponsored Homophobia: A World Survey of Laws: criminalisation, protection and recognition of same-sex love.

ILGA : World Survey of Laws  On 13 May 2015, the 10th edition of State-Sponsored Homophobia: A World Survey of Laws: criminalisation, protection and recognition of same-sex love will be launched by ILGA (the International Lesbian, Gay, Bisexual, Trans and Intersex Association), in Geneva. The Report will be launched by UN High Commissioner, Mr. Zeid Ra’ad Al Hussein, in Geneva.

Alongside an in-depth report, ILGA produces the World Map, which is very widely disseminated across the globe, and referred to as an authoritative source on the nature and numbers of existing criminalising States. The 9th edition from 2014 version of the report can be found at: http://old.ilga.org/Statehomophobia/ILGA_SSHR_2014_Eng.pdf, and the map can be downloaded from: http://old.ilga.org/Statehomophobia/ILGA_Map_2014_ENG.pdf. Both of these are translated into the six official UN languages, and are disseminated directly to ILGA’s 1,100 member organisations, a very wide range of ally organisations in various sectors, as well as to all UN country and regional desks and targeted individuals at the United Nations in Geneva and New York.

The only global document of its kind produced on an annual basis, as its name suggests it includes a listing of, information on and links to laws under a series of headings: same-sex sexual behavior legal or illegal, non-discrimination in the workplace, (un)equal age of consent, marriage and partnership rights, and so on. Further, it lays out the texts of the laws in criminalising states – specifying what exactly is being outlawed (for example, “sodomy”, “buggery”, “acts against nature”, “homosexuality”), and provides links to the Gazettes or legal instruments in which these legal provisions are found. In the entries on these states, the authors have researched state responses to recent recommendations at the Universal Periodic Review, Treaty Bodies and other UN mechanisms.

The final section of the publication is a series of essays on developments in sexual orientation activism in legal and policy spheres from legal experts worldwide. In this year’s edition, there will be an essay on intersectionality in LGBTI activism from the international NGO, Sexual Rights Initiative, as well as an essay on sexual orientation and gender identity developments at the UN.

ILGA moved their offices from Brussels to Geneva in 2014, having achieved ECOSOC status in 2013. Last year the publication was launched by outgoing UN High Commissioner for Human Rights, Navanethem Pillay, and this year it will be launched by the new High Commissioner, Mr. Zeid Ra’ad Al Hussein. High-level interest in the publication is growing and it is being increasingly cited in UN fora. The authors of State-Sponsored Homophobia are Aengus Carroll (Ireland) and Lucas Paoli Itaborahy (Brazil).

 

Migration and responsibility for deaths in the Mediterranean

UNHCRThe tragic deaths of an estimated 700 people in the Mediterranean this week have again highlighted the limits of Europe’s responses to migration, including forced migration and human trafficking. It has taken the deaths, the avoidable deaths of hundreds of desperate people, including several hundred children, to jolt Europe into action. These tragic events were avoidable, and following the policy choices made by the European Union and its Member States in 2014, they were, sadly, all too predictable.

Following Italy’s decision to end the successful Mare Nostrum search and rescue mission, because of a lack of financial support, the EU launched the much more limited Triton mission, the priority of which was  ‘border management’.

The Mare Nostrum mission itself was launched by Italy in response to another tragic event, the drowning of 366 Eritrean and Somali men, women and children off the coast of Lampedusa. This event is now almost forgotten. At that time, the European Council met and expressed its deep sadness at this tragedy which, it said, “shocked all Europeans”. Sadly these words have become all too familiar. Commissioner Malström called for a more open approach to migration, to define a common European policy based on the rights of the migrants and of the asylum seekers and on solidarity to both the migrants and the Member States.

In 2011, we heard similar expressions of outrage following the ‘boat left-to-die’ tragedy, when more than 60 people lost their lives amid confusion and dispute as to who bore the legal responsibility to launch a rescue mission. Rapporteur for the Parliamentary Assembly of the Council of Europe (PACE), Dutch Parliamentarian Tineke Strik, concluded following her investigation that this was a tragedy that should not have happened – in the busy Canal of Sicily.

The Council of Europe Group of Experts on Action against Trafficking (GRETA), commended Italy’s Mare Nostrum operation, as an example of best practice in protecting victims of trafficking. In 2014, Mare Nostrum saved the lives of more than 150,000 people. When the mission was ended, GRETA wrote to Prime Minister Renzi expressing its concern at the ending of the Operation and calling for its reinstatement.

Mr Francios Crépeau, UN Special Rapporteur on Migration, writing in December 2014, expressed his fear that without Mare Nostrum, thousands of people would die in 2015. Shamefully, and tragically, his fears have been realised. In October 2014, the UK Govt. announced that it would not support search and rescue missions in the Mediterranean because they created, in their words, an unintended “pull factor”, encouraging more migrants to attempt the dangerous sea crossing. The failure to recognise the desperation and trauma endured by people who are smuggled or trafficked, many of them children, provoked outraged responses from civil society,  UN and European human rights bodies. In a strongly worded statement, Mr Crépeau said:

“To bank on the rise in the number of dead migrants to act as deterrence for future migrants and asylum seekers is appalling. It’s like saying, let them die because this is a good deterrence.”

The European Council has now agreed to triple the funding to be provided to Operation Triton, headed up by the EU agency, Frontex and the Italian authoritiesAn increase in the numbers of Syrian refugees to be resettled is also likely, though remains a matter of voluntary pledges. The recognition that the Dublin system is broken is welcome, if long overdue.

The proposal to seek a UN Security Council resolution to destroy the vessels of traffickers and smugglers reflects a continuing preoccupation with security. As yet, far too little is being done to respond to what is a humanitarian and human rights crisis.  Despite a Joint Statement from UN leaders, calling for expanded access to regular migration routes, this is not addressed, the focus remaining on return of irregular migrants (including through expedited removals), and externalisation of border controls.

UN Special Representative on Migration, Mr Peter Sutherland speaking on Morning Ireland commented that there is a lack of clarity on the responsibilities of states towards asylum seekers who arrive on their shores. The responsibilities, however, are clear, and have been reinforced by the European Court of Human Rights in its landmark 2012 judgment, Hirsi v Italywhich condemned any ‘push back’ of asylum seekers or migrants to countries where they would face torture, inhuman or degrading treatment.

Ireland has done far too little to assist in this crisis to date. The comittment to providing a fully crewed naval vessel is welcome, but it is not enough. We could and should play a much bigger role in resettlement of Syrian refugees, as called for by UNHCR for several years now. The avoidable deaths of children, women and man in coffin ships should be confined to the distant and sad past, not an all too familiar tragedy on the shores of the European Union.

Professor Siobhán Mullally, Director, Centre for Criminal Justice and Human Rights, University College Cork, Vice-President of the Council of Europe Group of Experts on Action Against Trafficking in Human Beings. 

 

Annual CCJHR PhD Symposium at UCC – Call for Papers

Call for Papers: Centre for Criminal Justice and Human Rights, U.C.C.
PhD Symposium (2015)
Rights in Conflict: Socio-Legal and Critical Approaches to Human Rights
June 8th-9th 2015
Keynote Speakers:
• Prof. Kieran McEvoy, Queen’s University Belfast
• Dr Liz Campbell, University of Edinburgh
• Prof. Illan Rua Wall, Warwick University

The Centre for Criminal Justice and Human Rights (CCJHR) at University College Cork welcomes submissions for its 9th Annual PhD Symposium. The symposium will examine socio-legal and critical approaches to human rights law and practice, with a particular focus on conflicting rights claims, and to rights in conflict. We welcome papers from doctoral candidates researching in law, politics, criminology, philosophy, sociology and related social sciences. The symposium will include workshops on a range of themes including: ‘Linking Research / Praxis’; Critical Research methodologies; Socio-Legal approaches to human rights.

Please forward an abstract (max. 300 words), including a working title, name and institutional affiliation to ucclawconf@gmail.com by May 4th 2015. Selected participants will be notified no later than 8th May 2015. To be considered for the best paper prize, full papers should be submitted by 22nd May. (Best Paper Prize: €200)
Please note: a registration fee of €20 will apply to all attendees.

For updates: Twitter: @CCJHRlawucc ; W: http://www.ucc.ie/en/ccjhr/
FB: (Centre for Criminal Justice and Human Rights Postgraduate Conference)

School Admissions and the Equal Status Act

screenshot Irish Times headlineI have written a short piece for the Irish Times concerning school admissions and the Equal Status Act. The article has been published here. I may in due course develop this into a longer article for a journal in which I can provide evidence for each aspect, and tease out the issues in more depth.

Some extra points:

The Supreme Court case is Stokes v Christian Brothers High School [2015] IESC 13.

My article only discusses the main judgment in the case, agreed by three judges. It does not discuss the other judgment in the case, in which two judges found that the Supreme Court did not have jurisdiction to hear an appeal in a case such as this.

The Equality Authority appeared as amicus curiae in this case. See the press release of the Irish Human Rights and Equality Commission (which replaces the Equality Authority).

Aisling Twomey writes in the Irish Examiner about how travellers would thrive if they were given the opportunity.

The earlier stages are as follows:

Commentary on the High Court stage:

  • Olivia Smith, ‘Perpetuating Traveller children’s educational disadvantage in Ireland: Legacy rules and the limits of indirect discrimination’ (2014) 14 International Journal of Discrimination and the Law 145 (Sage Journals)
  • Mel Cousins, “Travellers, equality and school admission in the High Court: Stokes v Christian Brothers High School Clonmel” – http://works.bepress.com/mel_cousins/22
  • Page at Northern/Irish Feminist Judgments Project

I previously posted on travellers in County Clare and the Equal Status Act.

Mental Health, Criminal Law and Risk of Harm

Dr Darius Whelan, Senior Lecturer, School of Law, U.C.C., and author of Mental Health Law: Civil and Criminal aspects (Roundhall: 2009). (This blog was originally posted on:  http://irishlawblog.blogspot.ie/2014/12/mental-health-criminal-law-and-risk-of.html )

CMH DublinCentral Mental Hospital, Dublin

The recent tragic case of stabbings in Cobh, Co. Cork, highlights the treatment of those with mental health issues by the criminal justice system. This is a complex area and further details may be found in some of the source materials referred to at the end of this blog post. The Criminal Law (Insanity) Act 2006 introduced major changes in Irish law concerning mental health  and criminal law.  For example, it changed the verdict in some of these cases from ‘guilty but insane’ to ‘not guilty by reason of insanity’.  In order for such a verdict to be reached, the Act requires the following:

(a) the accused person was suffering at the time from a mental disorder, and
(b) the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she—

(i) did not know the nature and quality of the act, or
(ii) did not know that what he or she was doing was wrong, or
(iii) was unable to refrain from committing the act,
the court or the jury, as the case may be, shall return a special verdict to the effect that    the accused person is not guilty by reason of insanity.

According to media reports in this case, it appears that such a verdict was returned regarding this individual (Mr Michael Greaney) in 2013. Under the 2006 Act, if such a verdict is returned, the judge does not automatically send the person for mental health treatment.  Instead, the person may be sent to the Central Mental Hospital (CMH) for assessment to see if the person requires treatment.  The emphasis switches at this stage from the person’s mental health on the day of the act to their health at the time of assessment.  A person’s mental health may fluctuate enormously from month to month (or even from day to day).

Depending on the assessment, the judge can then either order that the person be detained in the Central Mental Hospital or discharged.  In this case, it appears that the judge ordered that the person be discharged, on condition that he live away from the family home.  That condition was later lifted by the court.

If the judge ordered that the person be detained at the Central Mental Hospital, the question of the person’s release would be in the hands of the independent Mental Health (Criminal Law) Review Board.  This board has 4 members (listed here) and usually 3 members sit on a hearing to review a particular case. There are approximately 110 hearings per year.  Each case is reviewed every six months and the person will be represented by a solicitor.  A person could also be temporarily released by the CMH under s.14 of the 2006 Act (which does not require approval by the Review Board).

A decision made by a judge to release a person (or to put it another way, not to order that they be treated in the CMH) would be made based on psychiatric evidence of the risk they pose at the time of the assessment.  Assessment of risk is a difficult matter and it is impossible to predict risk of harm with high levels of accuracy.  As a society, it is important that we strike a fair balance between detaining those who may pose a risk to the community and recognising that a person with significant mental health issues may not have been criminally responsible for their actions. The current law attempts to strike that balance as best it can, with advice from medical experts.  This law is in fact of need of reform to strengthen the rights of the individuals concerned, e.g. there is a need for more frequent reviews of detention by the Review Board as the cases of those detained under the civil legislation – the Mental Health Act 2001 – are reviewed more frequently. The law also urgently needs to be changed to remove the “insanity” label from such individuals, a label which is entirely inappropriate and anachronistic.

Source Materials

Barry Roche – Irish Times coverage

Muiris Houston in Irish Times

Ralph Rigel – Irish Independent coverage 

Irish Examiner coverage

T.J. McIntyre, Sinead McMullan & Seán Ó Toghda, Criminal Law, 3rd ed. (Dublin: Round Hall, 2012)

Darius Whelan, Mental Health Law and Practice: Civil and Criminal Aspects (Dublin: Round Hall, 2009)

Liz Campbell, Shane Kilcommins & Catherine O’Sullivan, Criminal Law in Ireland: Cases and Commentary (Dublin: Clarus Press, 2010)

Darius Whelan, annotations of Criminal Law (Insanity) Act 2006 and 2010, available in Westlaw IE database

Citizens’ Information – Criminal Insanity and Mental Health

Website of Mental Health (Criminal Law) Review Board

Full text of Criminal Law Insanity (Act) 2006 as amended by Criminal Law (Insanity) Act 2010

Darius Whelan, slides on Criminal Law (Insanity) legislation

Mental Health Commission, Forensic Mental Health Services for Adults in Ireland, Position Paper, 2011

Mental Health Reform submission
Louise Kennefick blogpost on Human Rights in Ireland

The Right to Love: Over and under-criminalisation in the sexual autonomy of persons with intellectual disabilities

This post originally appeared on the Human Rights in Ireland blog. Alan Cusack is a PhD candidate and IRC Scholar in the School of Law, UCC. He is a member of the Centre for Criminal Justice and Human Rights.

To mark International Day of Persons With Disabilities, award-winning Galway production company Blue Teapot will stage a special performance of Sanctuary, written by Christian O’Reilly, this coming Wednesday night in the Liberty Hall Theatre, Dublin. The play tells the story of Larry and Sophie- two adults with intellectual disabilities- who, in the course of a daytrip to the cinema convince their care worker, Tom, to book them a hotel room so that they may have some private time together. Superbly written by O’Reilly and sublimely delivered by Charlene Kelly and Kieran Coppinger- both of whom have an intellectual disability- Sanctuary offers a funny, touching and human account of the barriers which unmarried adults with intellectual disabilities continue to face in Ireland.

At present, under Irish law, persons with an intellectual disability are faced with the threat of criminal prosecution if they engage in a sexual relationship with a person to whom they are not married. This highly draconian state of affairs owes its origin to section 5 of the Criminal Law (Sexual Offences) Act 1993 (hereinafter ‘the Act’) which explicitly criminalises the sexual activity of persons who, to quote the Act, have a ‘mental impairment’. Significantly, section 5 is a strict liability offence which means, in effect, that the fact that the parties consented to the sexual intimacy is not, of itself, a valid defence. No criminal offence is committed however if the parties are married to each other, or if the victim is shown to be capable of living independently and protecting him or herself against abuse.

Criticisms of the Act can be brought on two seemingly competing, but entirely legitimate grounds; that it both under-criminalises and over-criminalises this sensitive area of sexual activity. In relation to the former argument the Act has rightly been criticised, by academics and advocacy groups alike, for fundamentally failing to recognise that persons with an intellectual disability can engage in consensual sexual activity. Indeed this over-criminalisation of a person sexual autonomy was expressly acknowledged by the Law Reform Commission in its 2005 Consultation Paper, where it noted that

“a regrettable effect of section 5 of the 1993 Act is that, outside a marriage context, a sexual relationship between two ‘mentally impaired’ persons may constitute a criminal offence because there is no provision for consent as a defence in respect of a relationship between adults who were both capable of giving a real consent to sexual intercourse” (Law Reform Commission, Consultation Paper on vulnerable Adults and the Law: Capacity (Dublin: Law Reform Commission, 2005) at p.141).

Although no known prosecutions have been taken under the Act to date, the continued existence of this offence on our statute book has been strongly criticised- most notably by Inclusion Ireland- for cultivating a fear amongst care workers, family members and persons with an intellectual disability of engaging in any act which might be considered to facilitate such sexual activity. In the words of Senator Katherine Zappone, the Act has perpetuated, a “chilling effect” whereby persons with intellectual disabilities within Irish society are fearful of forming relationships (The Irish Times, 10 June 2014).

In addition, in relation to the latter argument- the theory that the Act under-criminalises this area of sexual autonomy- section 5 has been criticised for offering insufficient protection for persons with an intellectual disability. Indeed, as the Act only applies to sexual intercourse and buggery, there is an evident and palpable gap whereby the instrument fails to criminalise unwanted sexual contact more generally. The tragic consequences of this legislative gap were recently illustrated in the case of The People (DPP) v XY (Central Criminal Court, 15 November 2010, The Irish Times 16 November 2010). In this case the accused was alleged to have forced a woman with an intellectual disability to perform oral sex with him. As this form of sexual conduct did not come within the scope of section 5 of the Act, the accused was charged with an offence under section 4 of the Criminal Law (Rape) (Amendment) Act 1990. On this issue White J., in his judgment, noted that “the Oireachtas when they introduced the 1993 act did not fully appreciate the range of offences needed to give protection to the vulnerable”. In the particular circumstances of this case, given that there was no evidence of assault or a hostile intent on the part of the accused, the trial judge directed the jury to acquit the defendant stating that it was no appropriate for the judiciary to fill the “lacuna in the law”.

From an international perspective, it is unquestionable that section 5 of the Act is in breach of Article 23 of the UN Convention on the Rights of Persons with Disabilities (hereinafter ‘UNCRPD’) which expressly requires State Parties to take “effective and appropriate measures” to eliminate discrimination against persons with disabilities “in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others”. Moreover, it is arguable that the Act is in breach the principle of equal recognition as enshrined in Article 12 of the Convention as it fails to respect the decision-making autonomy of persons with intellectual disabilities in the same way that the decisions of non-disabled persons are respected.

In light of its overtly discriminatory effect, section 5 of the Act has long been criticised for representing a disproportionate interference with the sexual autonomy of persons with intellectual disabilities. For instance, Inclusion Ireland has been vocal in its opposition of this provision since 2003 when the group argued in its consultation document ‘Who Decides and How’ that the existing law was overly onerous and insensitive. Similarly, the Law Reform Commission, in its Consultation Papers from 2005 and 2011 respectively, criticized the burdensome and discriminatory effects of the Act. In particular, in its 2011 Consultation Paper, Sexual Offences and Capacity to Consent: Consultation Paper, the Commission recommended that section 5 be replaced by a new provision which would cover all forms of sexual acts. Moreover the Commission recommended that “there should be a strict liability offence for sexual acts committed by a person who is in a position of trust or authority with another person who has an intellectual disability” (at p.179).

There is, however, a reason to be hopeful. Significantly, and in a long-overdue response to this growing body of public criticism, our legislature has recently expressed its commitment to reforming this sensitive area of law. The primary impetus for this belated, but very welcome, legislative activism can be attributed to Senator Katherine Zappone who, on 13 May 2014, published a new bill to reform this area of law, namely the Criminal Law (Sexual Offences) Bill, 2014 (‘the Bill’). Colloquially dubbed, the “right to love” bill, this legislation is aimed at reforming our law so as to ensure that persons with an intellectual disability have the same freedom to consent to sexual activity as persons without a disability. In this regard, it is expected that the bill will strike a better balance in respecting the sexual agency of a person with an intellectual disability while also providing an important safeguard against sexual abuse.

The Bill- which was researched by Dr. Eilionóir Flynn and Anna Arstein-Kerslake of the Centre for Disability Law and Policy at NUIG and Dr. Brian Hunt- seeks to amend our subsisting draconian law in two key respects. Firstly, and perhaps most importantly, the Bill will repeal section 5 of the Act and will create a disability-neutral offence of abuse of a position of dependence and trust for sexual purposes. This reform is directly reflective of the Law Reform Commission’s recommendation in 2011. Secondly, the Bill will redesign the concept of consent for the purposes of sexual activity so as to make this concept universally applicable so that the same standard will apply to all persons equally. Significantly, in this regard, the Bill removes any consideration of a person’s mental capacity in determining questions of consent for sexual purposes. This marks a fundamental amendment to our subsisting legal position whereby, under our current law, it must first be established that a victim has ‘capacity’ to consent before any consideration can be given to the substantive question as to whether in fact any meaningful consent existed.

While these draft provisions are to be welcomed for representing a carefully considered and long-overdue reformative programme for this very sensitive area of sexual activity, the final form which these protections will take in the official version of the Bill remains to be seen. The Heads and General Scheme of the Bill were formally published by Minister Frances Fitzgerald on 27 November 2014, however, it is notable that the wording of Head 12- the section of the Bill dealing with vulnerable persons- had not yet been finalised by this date. Thus, it is not yet clear if, and to what extent, the measures contained in Senator Zappone’s draft bill will be retained in the official version of the instrument. Regardless, however, of the specific form which the final provision takes, the Minister has solemnly pledged that the new proposal will “seek to better balance the need to respect the independence of the intellectually disabled while ensuring their protection from sexual exploitation”. Thus at long last, it seems that a universal right to love will finally be realized in Irish society. There is a reason to be hopeful for the year ahead.

Legislating for Surrogacy

This post originally appeared on the Human Rights in Ireland blog. Lydia Bracken is a PhD Candidate at the School of Law UCC and a Department of Children and Youth Affairs Research Scholar.

The urgent need to introduce legislation to govern the precarious position of stakeholders in the surrogacy process formed a common thread amongst the seven judgments handed down by the Supreme Court in its recent ruling in the MR and An tArd Chláraitheoir case. Each of the judges expressed disquiet about the current lack of legal regulation in this area and in relation to the fact that, presently, the legal status of children born via surrogacy is “determined by happenstance.” Certainty was said to be vitally important for families involved in the surrogacy process and such certainty could only be achieved through the enactment of legislation.

Initially, the Government had included provisions to regulate parentage in cases of surrogacy in the Children and Family Relationships Bill 2014. These provisions provided that, in a surrogacy arrangement, the woman who gives birth to the child (ie. the surrogate) would automatically be regarded as the legal mother. The commissioning parents could, however, subsequently apply for a parental order so as to extinguish the surrogate’s parental status and to acquire parental responsibilities and rights for themselves. These provisions have since been removed from the Bill, however, and so in light of the Supreme Court’s finding that the woman who gives birth to the child is to be regarded as the child’s legal mother, the question now arises as to whether these provisions will be reinserted and, if they are, whether this is appropriate.

It is questionable as to whether the original provisions would strike an appropriate balance between the rights of all stakeholders in the surrogacy process. In particular, it should be noted that the parental order, as envisaged in the Bill, could not be sought less than 30 days after and not more than 6 months after the child’s birth. Prior to the granting of this order, the surrogate would continue to be recognised as the child’s legal mother and her consent would be required before the order could be made. Therefore, until this consent is given, there would be uncertainty as to whether the child would remain as the legal child of the surrogate or whether parentage would be transferred to the commissioning parents. This leaves the commissioning parents in an undesirable position as their status as joint legal parents cannot be established until the surrogate has exercised her choice.

Although it is quite a rare occurrence, should the surrogate refuse to consent to the parental order, the only option available to the commissioning parents to establish a legal relationship with the child would be to apply for guardianship as per Head 42 of the 2014 Bill. Where the commissioning father is also the genetic father of the child, he may apply for guardianship immediately in the same manner as any other unmarried father. The commissioning mother, however, as a “non-parent”(notwithstanding the fact that she may also be genetically related to the child) would have to have shared responsibility for the child’s day-to-day care for a period of at least two years before she would become eligible to apply. Similarly, where the commissioning parents are a male same-sex couple, this two year waiting period would also apply to the genetic father’s partner. Moreover, the consent of the surrogate would be required before either of the commissioning parents could be appointed as guardians, although the court would be at liberty to dispense with the surrogate’s consent where it is unreasonably withheld and where it is in the best interests of the child to do so.

It is, however, quite uncommon that a surrogate would subsequently seek to keep the child and therefore refuse to consent to the parental order. Typically, the child will be taken into the care of the commissioning parents prior to the making of the order. It should be noted, however, that in this period prior to the making of the parental order, the surrogate, as opposed to the commissioning parents, would be entitled to make decisions in respect of the child, for example in relation to consent to medical treatment. A genetic father could enter into a guardianship agreement with the surrogate so as to obtain parental responsibilities and rights in advance of the making of the parental order, but this option will not apply to a non-genetic commissioning father or indeed to a commissioning mother. The child could, therefore, be left in a vulnerable position as the commissioning parents may be hindered from fully protecting his or her interests during this intervening period. Furthermore, if the surrogate was to die during childbirth, the child, as the legal child of the surrogate, would be entitled to succeed from her estate under succession law. It is unlikely that this would have been intended by the parties at the outset of the agreement.

By contrast, other countries have dealt with the question of the allocation of parentage in surrogacy arrangements through the use of pre-conception orders. In South Africa, for example, under the Children’s Act 38 of 2005, surrogacy agreements can be validated by the High Court before the surrogacy is undertaken. Where validation is granted, the commissioning parents will be treated as the legal parents from the moment of the child’s birth. The surrogate will not acquire any parental status and she is legally required to “hand over” the child as soon as is reasonably possible after the birth. It should be noted, however, that a distinction is made in South African law between “full” and “partial” surrogacy. In the latter case, where the surrogate is also the genetic mother of the child, she retains the right to terminate the surrogate agreement within sixty days of the birth of the child. In Ireland, however, given that the original provisions of the 2014 Bill proposed to exclude the use of “partial” surrogacy, this issue would not arise.

Requiring that parental status is determined prior to the birth of the child would seem to strike a more appropriate balance between the interests of those involved in the surrogacy process than the original Irish proposals. The pre-conception order provides certainty and it removes the difficulties which can arise prior to the making of a parental order, as discussed above. Furthermore, it should be recalled that the Report of the Commission on Assisted Human Reproduction recommended by a majority in 2005 that the commissioning parents should be presumed to be the legal parents of any child born through surrogacy. Legislating for pre-conception orders to confer legal parental status on the commissioning parents from the moment of the child’s birth would, therefore, be in keeping with this recommendation.

Whatever legislative approach is ultimately undertaken, it is to be hoped that it will occur without unnecessary delay. As O’Donnell J. stated in the MR case, “[t]he absence of legislation does not mean an absence of assisted reproduction; rather it means an absence of regulation.” The families involved in the surrogacy process require and deserve security. In particular, the children born through the process require protection so as to avoid the “legal half-world” into which they are currently born and so it is to be hoped that legislation will be forthcoming.