Law Reform Commission of Ireland Report on Sexual Offences and Capacity to Consent

The Law Reform Commission of Ireland has released a Report on Sexual Offences and Capacity to Consent.

The Commission recommends that section 5 of the Irish Criminal Law (Sexual Offences) Act 1993 should be repealed and replaced because it fails to empower people whose capacity may be at issue (for example, because of an intellectual disability) to realize their right to sexual expression. This is so because the existing legislation does not clearly provide that no offence is committed where they engage in a sexual act and there is no exploitation or abuse of either person.

It also fails to protect persons whose capacity is in question from the most common types of exploitation or abuse because the 1993 Act deals with sexual intercourse only and ignores the reality that exploitation or abuse often arises from other unwanted sexual acts.

Among the Report's other recommendations:

• Legislation should be enacted to replace section 5 of the 1993 Act that would be based on a functional test of capacity, which is a rights-based approach that is in line with the UN’s 2006 Convention on the Rights of Persons With Disabilities and also with the Government’s recently published Assisted Decision-Making (Capacity) Bill 2013;
• The legislation to replace section 5 of the 1993 Act should provide that a person has capacity to consent to any sexual act where he or she is able to choose to agree to the specific sexual act involved (including where he or she has been given suitable decision-making assistance) because he or she: (a) understands the nature and reasonably foreseeable consequences of the act; (b) can use or weigh up relevant information in deciding whether to engage in the sexual act; and (c) is able to communicate his or her decision (whether by talking, using sign language or any other means);
• The new legislation should cover all forms of sexual assault (including sexual assault and rape) and also any other acts that involve exploitation or abuse (such as unwillingly having to watch others involved in sexual acts);
• The accused should, in general, have a defence of reasonable belief that the person has capacity to consent, but this defence should not be available to persons in a position of trust or authority (which should include close family members and professional carers) in relation to whom there should be a rebuttable presumption that he or she knew that the person did not have capacity to consent;
• Guidelines should be developed for those working in the criminal justice system to identify current obstacles and examine methods by which the participation in court proceedings of persons covered by the proposed legislation could be enhanced

The Report also looks at the legal situation in England, Wales, Northern Ireland, Scotland, Australia, and New Zealand.