Loophole allows sex assaults on disabled people
A major research project said current legislation only makes certain sexual offences against such victims — such as rape, buggery, and gross indecency — a criminal offence, and that general sexual assaults are not covered.
Academics at University College Cork have called for a range of new offences to cover exploitative sexual activity against people with disabilities.
They are part of a raft of recommendations made in research commissioned by the Irish Council for Civil Liberties. Others include:
Changes in how the issue of a witness’s competency is tested by courts so as not to exclude people with disabilities;
The Incitement to Hatred Act to include inciting hatred against persons with a disability;
New legal provisions to allow people with disabilities give evidence by television link and from behind screens;
Making an offence committed against such people an aggravating factor in sentencing.
The 240-page report was written by Shane Kilcommins, Claire Edwards, and Tina O’Sullivan from UCC’s law faculty.
Prof Kilcommins said that victims generally were “bit-part players” in the criminal justice system and that victims with disabilities become “more and more invisible” as they go through the system.
Speaking at the report launch, he said the laws governing sexual offences against people with disabilities had created a “dangerous” situation, whereby these laws only criminalised three offences: Intercourse, buggery, and gross indecency between males.
“Sexual assault is not included in the provision,” he said, cited the case of DPP v XY (see panel above).
The report said that offences exempted include “unwanted sexual contact more generally” and added: “Such an obvious hole in the criminal law jeopardises the sexual autonomy of persons with disabilities and falls short of establishing a process that punishes all forms or serious sexual abuse against such persons.”
It said laws should be introduced to criminalise a more comprehensive range of “exploitative sexual activity”.
The report said two thirds of people with disabilities who suffered sexual violence and received help from rape crisis centres did not report the crime to the authorities — a higher percentage than other victims.
The academics said State agencies, including the gardaí, should have a structured system to provide enhanced support to victims with disabilities and that people in these services needed to undergo training.
It said “cultural change” was needed and there was no place for terminology such as “mental handicap”.
In the case of the DPP v XY, the accused was charged under section four of the Criminal Law Rape Act 1990 after it was alleged that he forced the woman with an intellectual disability into performing oral sex with him. Such a sexual act did not come within the scope of section five of the Criminal Law Sexual Offences Act 1993.
Justice White noted: “It seems to me that the Oireachtas, when they introduced the 1993 Act, did not fully appreciate the range of offences needed to give protection to the vulnerable.”
Given the lack of evidence of an assault or hostile act on the part of the accused, the trial judge directed the jury to acquit the defendant, stating the judiciary could not fill a “lacuna in the law”.
In the recent case of Laura Kelly, the complainant, who has Down syndrome, alleged she was sexually assaulted at a 21st birthday party. The family claimed that, shortly after Ms Kelly was put to bed, a family member entered the bedroom and saw a man in bed with her.
It was alleged that Ms Kelly had most of her clothes removed and that the man was naked from the waist down. However, at trial, Ms Kelly, who had “a mental age of four”, was deemed incompetent to testify and the case was dismissed.
Ms Kelly’s mother told the Irish Examiner: “[Laura] was brought into this room in the Central Criminal Court and asked questions about numbers and colours and days of the week which had no relevance in Laura’s mind.
“She knew that she had to go into the courtroom and tell a story so the bad man would be taken away.
“It was ridiculous. There is no one trained in Ireland to deal with someone similar to Laura, from the gardaí up to the top judge in Ireland and the barristers and solicitors.”
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