DPP urges reform of disability sex laws

THE law should be changed to make it easier to prosecute carers who sexually exploit people with disabilities, the outgoing DPP has said.

James Hamilton made his comments following a conference held by the Law Reform Commission, which has launched a consultation paper on sexual offences and intellectual disability.

In its consultation paper, the LRC makes several provisional recommendations, including the repeal and replacement of the existing law on sexual offences involving people with an intellectual disability, Section 5 of the Criminal Law (Sexual Offences) Act 1993.

Mr Hamilton, speaking on his last day as DPP, said there needed to be “prosecutorial discretion” in certain cases, such as instances where two people with an intellectual disability are in a consensual relationship.

The conference also heard from the chairwoman of Inclusion Ireland, Frieda Finlay, that laws that make such a relationship a crime should be changed.

She and others also said society had failed those with intellectual disabilities, in that proper sexual education had not been provided, making it harder to form relationships.

Mr Hamilton said the test used to assess capacity — based on the question “are you fit to manage our own affairs?” — did not necessarily work in cases where an individual might want to consent to a sexual relationship with another person.

Referring to a three-year review of cases involving people with intellectual disabilities, learning difficulties or mental health issues, between 2005 and 2007, he said the rate of cases prosecuted was similar to the overall rate, apart from cases involving mental health issues.

In the sample of 11 cases in that period, there had been no prosecutions.

Regarding the proposals, Mr Hamilton said: “There should be an absolute prohibition of carers being in a sexual relationship with the individuals they are caring for, except where carers are a spouse.”

He also said laws needed to be “widened out” to cover other forms of sexual contact. He added that there needed to be a balance between the right to pursue relationships but also to not be exploited or abused.

The conference was told by Patricia Rickard-Clarke of the LRC that there were “huge challenges” regarding cases where an individual with an intellectual disability but with a child had had the child taken into care while various HSE services worked separately in “different silos”, resulting in “non-communication”.

Ms Finlay said that there were more than 4,000 people living in “congregated settings” and at risk of a abuse and that it was “an absolute scandal” that there was no system of independent inspections.

The conference also heard from Inclusion Ireland that consideration should be given to instituting a national guardian ad litem service for people with an intellectual disability who have children and are subsequently taken into care.