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.