A JUDGE has accused the Oireachtas of failing to protect the vulnerable as a loophole in the law forced him to acquit a man of allegedly orally raping a woman with an intellectual disability before a jury could even consider its verdict.
The 61-year-old accused had pleaded not guilty to sexually assaulting the now 23-year-old woman by penetrating her mouth with his penis on December 11, 2008.
The prosecution alleged the man had asked the young woman, who has an intellectual age of 8-9 years, to follow him outside and then repeatedly asked her to perform a "blow job".
The young woman told gardaí during a recorded interview shown to the jury, that she had been forced to perform the act and that she kept saying "no" when the man said "go on".
Mr Justice Barry White said he "utterly abhorred" the thought of an allegation of someone taking advantage of a person with a mental impairment, but said "justice must be administered in a cold, dispassionate and analytic way".
He told the jury that the accused had been charged under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 which does not have regard to any mental impairment a complainant may have.
He said there was legislation in place which makes certain sexual activity with a mentally impaired person illegal, but it does not provide an offence for the alleged circumstances of this case.
This legislation, the Criminal Law (Sexual Offences) Act 1993 (Section 5), provides only for offences in which a person "has or attempts to have sexual intercourse" or "commits or attempts to commit an act of buggery" with a "mentally impaired person".
"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," said Mr Justice White, adding he had to come to the conclusion that there had not been an assault involving a person being forced to do something or threatened so that they feel they must submit.
He told the jurors they had heard the complainant use the word "forced" in her evidence, but she had not expanded on that and there was no suggestion of threat or menace. He said it "was with great reluctance" he was asking the jury to return the not-guilty verdict.
Rape Crisis Network Ireland criticised the "bizarre omission" in the law adding special measures needed to be taken to deal with the whole gamut of sexual offences against those with a mental or intellectual impairment.
Inclusion Ireland, which works with people with an intellectual impairment, also called for the "antiquated legislation" to be updated.
a d v e r t i s e m e n t
This appeared in the printed version of the Irish Examiner Tuesday, November 16, 2010
