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.

An Inconvenient Truth: Epistemic Flaws in the Adversarial Legal Tradition

 

Alan Cusack

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 at University College Cork and The Institute for Social Sciences in the 21st Century (ISS21) at University College Cork. His research is in the area of access to justice for victims of crime with disabilities. Specifically, Alan’s research assesses how traditional adherence to normative adversarial processes at each of the pre-trial, trial and post-trial stages of the Irish justice system inhibits participation by victims of crime with disabilities.

INTRODUCTION

According to Damaska an adversarial model of justice is characterised by an entrenched value system which comprises “a relatively passive tribunal that ideally comprises both judge and jury; the presentation of evidence by the parties through their lawyers who proceed by direct questioning and cross-examination…a presumption that the defendant is innocent until proven guilty; and the principle that he cannot be forced to testify against himself” (1983: 25). Within this formulation, three fundamental principles can be identified which have long been considered – not only by Damaska but by our wider Anglo-American legal community – as essential to the pursuit of adversarial justice, namely: the principle of party autonomy and judicial passivity, the principle of orality and the principle of fair procedures. Significantly however, each of these principles accommodate fatal epistemic flaws which, although rarely admitted, fundamentally inhibit the system’s efficiency in ascertaining the truth and restrict its accessibility to those select quarters of society who meet its normative demands.

EPISTEMIC FLAWS IN ADVERSARIAL IDEOLOGY

1. The Epistemic Flaw in the Principle of Party Autonomy and Judicial Passivity

It is a fundamental tenet of adversarial ideology that parties enjoy private autonomy in the vindication of their legal rights. Indeed, within the Anglo-American legal tradition parties enjoy almost unfettered freedom in initiating, investigating and presenting legal cases before our courts. The greatest courtroom casualty within this autonomous environment is the truth. With success being measured by the satisfaction of a client, not by the announcement of a true verdict, advocates are actively encouraged to tailor the available evidence in the interest of strengthening their client’s case. Thus not only do we find advocates wilfully concealing inaccuracies in the evidence which supports their cause, but we also find them actively supressing any evidence which might be disruptive to their client.

The autonomy of the parties starkly contrasts with the investigative passivity of the judiciary. Unlike their European counterparts, members of the Anglo-American judiciary occupy a reactionary role with no positive fact-finding mandate. The jury occupies a similarly passive position. Indeed famously described by Glanville William as “a group of twelve men of average ignorance” (1963: 271), the jury is faced with the unenviable task of organising “an incoherent mass of data…into a story which they can understand” without the support of a pro-active investigative jurisdiction (Bennett and Feldman, 1981: 10).

2. The Epistemic Flaw in the Principle of Orality

Every aspect of the adversarial model is strategically designed around the fundamental notion that the truth can best be achieved through the immediate observation of a testimonial account in open court. According to Bennett and Feldman however, “the plausibility of stories has little to do with their actual truth status” (1981: 75). Placing faith in the revealing attributes of behavioural performance therefore risks, not only accepting the inaccurate testimony of an accomplished perjurer but also rejecting the honest account of an intimidated witness.

Moreover, in a further epistemological failing, this classic construction of orality fails to appreciate the inherent fallibility of witnesses and the formative influence which advocates enjoy in shaping the courtroom narrative. In essence, the adversarial model’s predication upon viva voce testimony presupposes the capacity of witnesses to deliver a flawless account of events. Even honest witnesses, however, can tender inaccurate testimony arising from an erroneous observation or an ill-conceived recollection of events. Similarly, it must be appreciated that “[o]ften a statement owes as much to the officer’s controlling hand as to the witness’s actual memory” (Wolchover and Heaton-Armstrong, 1997: 857). Thus, from their calculated employment of the pre-trial interview to shift a witness’s recollection of events to their abuse of the leading question protocol to cast doubt on peripheral details, advocates constantly compete to re-shape the courtroom narrative in a design which best supports their client’s case.

Significantly, the centrality of oral testimony also invites an inherent bias against those who “lack shared cognitive routines for presenting evidence in story-coded forms” (Bennett and Feldman, 1981: 171). The root for such inequality of treatment lies in a long-accepted, adversarial assumption that “all honest witnesses are equally capable of holding their own against [cross-examination]”. Significantly however, “people are not uniformly articulate, confident and emotionally balanced” (McEwan, 1998: 15). Within this flawed epistemological landscape the forgotten victims are those members of society “who cannot communicate in commonly accepted ways about their actions” (Bennett and Feldman, 1981: 168).

3. The Epistemic Flaw in the Principle of Fair Procedures

The adversarial model has evolved in a design which accommodates a rich artillery of exclusionary evidential rules. Thus, from the common law privilege against self-incrimination to the rules prohibiting hearsay statements and character evidence, the adversarial trial is predicated upon a series of procedural protocols which insist that courtroom actors meet exacting evidential standards in delivering testimony. In prioritising, however, the exigencies of fair procedures the adversarial model naturally sacrifices a measure of fact-finding accuracy. In practical terms, this strict insistence on procedural rectitude reduces the adversarial trial to little more than a glorified sporting event wherein it is “perfectly acceptable that a party, perhaps in the right on the merits, “lose” on a technicality- if he violated the rules regulating the contest” (Damaska, 1973: 581).

CONCLUSION

Unlike our European counterparts who, in subscribing to an inquisitorial model, have openly affirmed their social commitment to uncovering the truth, we find that, within Anglo-American legal culture, the primary social objective of the legal system is to achieve a fair result through the application of a just process. This dedication to procedural rectitude is, however, epistemically flawed, cultivating substantive barriers to the truth-distilling enterprise which are re-enforced through the subtle interplay of the three adversarial principles.

Moreover, the centrality of oral testimony in the adversarial courtroom imposes significant obstacles upon vulnerable victims who, through their inability to construct a story, are “vulnerable to having truthful accounts of their actions rejected” (Bennett and Feldman, 1981: 171). Thus within this flawed epistemological landscape the truth is not the only casualty. The real victims are those members of society who, through procedural intimidation, cognitive impairment or testimonial anxiety suffer a communicational deficit which, not only prevents them from delivering a coherent narrative in court but also from expressing publically their frustration with the biased nature of the system in which they find themselves.