Report urges repeal of part of sex offences act

The country’s top legal thinktank has claimed existing legislation governing sexual offences is deficient in important areas for people whose capacity to consent is at issue.

The Law Reform Commission has recommended that part of the Criminal Law (Sexual Offences) Act should be repealed because it fails to empower people who have limited consent capacity to realise their right to sexual expression.

In a report to be published later today, the LRC claims the existing law does not clearly provide that no offence is committed when such persons engage in a sexual act where no exploitation or abuse has taken place. The LRC said current legislation also fails to protect people with limited capacity to consent from the most common types of exploitation or abuse because it deals with sexual intercourse only. “It ignores the reality that exploitation or abuse often arises from other unwanted sexual acts.”

It points out that there are many other acts which involve exploitation or abuse such as unwillingly having to watch others involved in sexual acts which are not covered by Section 5 of the Criminal Law (Sexual Offences) Act.

The LRC stressed that a person’s state of health or ill health should not be seen as directly connected to their decision-making capacity to consent to sexual activity.

The LRC recommends the enactment of legislation which allows that a person has capacity to consent to any sexual act where they are able to choose to agree to the specific act because they understand its nature and reasonably foreseeable consequences as well as being able to communicate their decisions.

The LRC said any new law should make clear that no offence is committed where such persons engage in a sexual act where there is no exploitation or abuse.

It claims such legislation should be drafted on a rights-based approach in line with the UN’s Convention on the Rights of Persons with Disabilities.

For accused persons, the LRC suggests they should be able to avail of a defence of reasonable belief that the person has a capacity to consent. However, such a defence should not be available to person in a position of trust or authority including family members and professional carers because there should be “a rebuttable presumption that he or she knew that the person did not have capacity to consent”.

Other recommendations include the development of guidelines for people working in the criminal justice system to identify problems and improvements for those in involved in court proceedings in relation to sexual offences on people with limited capacity to consent as well as the introduction of national standards by all relevant agencies to ensure a consistent approach to sex education for such persons.

The report will be launched by Frieda Finlay, former chairwoman of Inclusion Ireland, in Dublin later today.

The research was conducted as part of the LRC’s Third Programme of Law Reform in tandem with a general review of the law on sexual offences being conducted by the Department of Justice and Equality.

The recently published Assisted Decision-Making (Capacity) Bill 2013 incorporates earlier recommendations made by the LRC in a 2006 report on the issue.