Sex crime laws ‘fail’ people with disabilities

CURRENT laws do not protect people with intellectual disabilities from most sexual crimes, according to the Law Reform Commission.

The commission is recommending that anyone convicted in the higher courts of a sexual offence against such a person could receive a maximum sentence of 10 years imprisonment.

The LRC, which is the country’s statutory independent legal advisory body, also said the law does not empower two people with intellectual disabilities to engage in consensual sex.

The recommendations are contained in a consultation paper published by the commission, which is inviting submissions on issues covered in its 237-page report.

In relation to the first key recommendation, the commission notes that Section 5 of the Criminal Law (Sexual Offences) Act 1993 fails to protect people with intellectual disability from unwanted sexual contact generally, as the law is limited to sexual intercourse only.

“The Commission provisionally recommends that any replacement of Section 5 . . . should cover all forms of sexual acts including sexual offences which are non-penetrative and sexual acts which exploit a person’s vulnerability,” the report said.

It said a defence of reasonable mistake should apply, as it currently does in offences against children, but that this defence should not be available to people in positions of trust or authority.

This includes parents, step-parents, guardians, grandparents, uncles or aunts, or people involved in their education, supervision or welfare.

The commission recommends that cases where the sexual offence occurs within marriage or civil partnership should not be, in itself, a defence. It said a maximum possible sentence of 10 years should apply in prosecutions taken on indictment.

On the second main issue covered in the report, the commission said current laws fail to empower people with intellectual disabilities to realise their right to sexual expression.

It said the legislation does not clearly provide for situations of consensual sex between two persons with intellectual disability.

It said the Health Research Board has indicated there are just over 26,000 people registered on the National Intellectual Disability Database.

“The commission provisionally recommends that the test for assessing capacity to consent to sexual relations should reflect the functional test of capacity to be taken in the proposed mental capacity legislation, that is, the ability to understand the nature and consequences of a decision.”

It said people lack the capacity to consent to sexual relations if they are unable to understand the information relevant to engaging in a sexual act, retain and use that information and communicate their decision.

The consultation will feed into a general consolidation of sexual offences law currently being undertaken by the Department of Justice.

* see www.lawreform.ie