Law Reform Commission of Ireland Consultation Paper on Sexual Offences and Intellectual Disability

Yesterday, the Law Reform Commission of Ireland released its Consultation Paper on Sexual Offences and Capacity to Consent.

In the Consultation Paper, the Commission makes 15 provisional recommendations for reform, including the repeal and replacement of the existing law on sexual offences involving persons with intellectual disability.

The Commission argues that section 5 of Ireland's Criminal Law (Sexual Offences) Act 1993 (a) fails to protect people with intellectual disability from unwanted sexual contact generally and (b) fails to empower people with intellectual disability to realise their right to sexual expression (it does not clearly provide for situations of consensual sex between two persons with intellectual disability).

The Commission’s main provisional recommendations in the Consultation Paper are:

• Section 5 of the Criminal Law (Sexual Offences) Act 1993 should be repealed and replaced;
• the same functional approach to capacity (that is, an assessment of capacity to consent based on understanding the decision and its consequences at the time the decision is being made) must be taken in respect of assessing capacity to marry in the civil law and capacity to consent to sexual relations in the criminal law;
• consistently with the functional test of capacity, a person lacks capacity to consent to sexual relations if he or she is unable: (a) to understand the information relevant to engaging in the sexual act, and its consequences; (b) to retain that information; (c) to use or weigh up that information as part of the process of deciding to engage in the sexual act; or (d) to communicate his or her decision;
• a defence of reasonable mistake should apply, as with sexual offences against children, but this defence should not be available to persons in positions of trust or authority;
• 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;
• any replacement of section 5 of the 1993 Act should cover all forms of sexual assault and sexual acts which exploit a person’s vulnerability;
• guidelines should be developed for those working in the criminal justice process to identify current obstacles and examine methods by which the participation in court proceedings of adults with intellectual disability could be enhanced

The report also takes a comparative approach, examining other jurisdictions such as England and Wales, Scotland, Canada, and New Zealand.

The consultation ends on 31 December 2011.