FERGUS FINLAY: Consensual sex between adults is illegal if they have an intellectual disability

Legislation going though the Dáil at the moment will recognise the capacity of people who have an intellectual disability to make many decisions

WHEN is sex illegal? That is, normal, consensual sex between adults? Sex that is an act of love, as part of a loving relationship? Never, I thought.

But if you agree with me, that sex is a part of life, and fundamental to a relationship between two people who love each other, you’d be wrong.

There is one group of adults in Ireland for whom sexual expression is illegal. It’s taboo. Forbidden by law. Punishable by imprisonment.

That group is adults who have an intellectual disability. For them to have sex with each other is a crime.

It’s been a crime forever — well, at least since William Gladstone was prime minister of Great Britain.

His government passed a law, the Lunacy Regulation (Ireland) Act, 1871, which labelled people with an intellectual disability as lunatics.

Although it will change soon, that is still the law in Ireland, and it denies people who have an intellectual disability the right to make basic decisions.

Legislation going though the Dáil at the moment will change that, and will recognise the capacity of people who have an intellectual disability to make many decisions, but not in relation to sexual relationships. The new changes will not reverse some of the most revolting pieces of legislation.

There’s the 1935 Criminal Law Amendment Act, for instance, described in its short title as “an act to make further and better provision for the protection of young girls”.

That act — still in force — refers to “any woman or girl who is an idiot, or an imbecile, or is feeble-minded”.

It’s difficult, of course, to put yourself into the minds of legislators of that era. I worked for a government, however, that passed the 1993 Criminal Law (Sexual Offences) Act. This is celebrated as the legislation that decriminalised homosexuality. But, in Section 5, it made any act of sexual intercourse involving a “mentally impaired person” an offence. The purpose was to protect people who have an intellectual disability from exploitation or abuse — but the consequence was to make sex between two adults who have an intellectual disability a crime.

For a long time now, my wife Frieda has campaigned to change that. It’s not a complicated issue — just one that nobody wants to hear. She has been branded as a troublemaker, even, once or twice, as sex mad, of all things.

That’s because the issue Frieda has talked about is sex. To be specific, the right of adults who have an intellectual disability to have relationships with each other that include normal sexual expression.

It’s not often, I think, that an ordinary citizen can claim to have significantly influenced legislation.

I don’t think my wife would claim that, so I will on her behalf.

A couple of years ago, she spoke passionately about this to the Law Reform Commission, when it was starting to look in detail at the issue.

The commission is an independent and highly distinguished body, set up in 1975 to examine areas of the law that need to be reformed. It has published nearly 200 reports that have led to all sorts of changes.

Back in 1990, it published a report on Sexual Offences Against the Mentally Handicapped. In that report, it said the law must “respect the rights of the mentally handicapped to sexual fulfilment and should not pose unnecessary obstacles to intimate relationships, which find sexual expression, where one of the partners is mentally disabled”.

But there the matter rested. When Frieda spoke to the Law Reform Commission, it was planning to revisit the subject, because no change had happened. The talk she gave then resonated with the commission — so much so that when it completed its latest report, and readied it for publication last week, it asked Frieda to launch it.

This latest report is called Sexual Offences and Capacity To Consent. It makes 29 recommendations, and would repeal the law, allowing for consensual sex between adults who have an intellectual disability. It also makes strong recommendations to improve protection against abuse or exploitation, and calls for much better standards of sex education.

When she was launching the report, Frieda said: “At the very beginning of this report, the commission talks about how language has evolved.

“I can’t read it without thinking about all the labels that have been applied over the years — many of them in my lifetime: Lunatic, idiot, imbecile, feeble-minded, mongoloid, spastic, retarded, mentally handicapped.

“And it reminds me, too, of all the techniques that have been used down through the years.

“The commission’s report traces a history that includes dreadful concepts like eugenics, but other trends have come and gone — institutionalisation, incarceration, normalisation, integration.

“Even today, agencies that provide services to people with disabilities routinely use terms like patient, client, service-user ... Every time I hear any of those terms, I wonder why is it so hard to apply a simpler label, one that the rest of us take for granted. A label like citizen, for instance. Or, even just person.

“When I think of my daughter and her friends, I don’t think of service-users. I think of men and women with a disability, people whose names I know, people who have the same rights that I have to live a normal life … So why, I wonder, is it so easy for public policy to think in terms of labels?

“Could it be, I wonder, that it’s easier to ignore a label than it is to ignore a person? A label doesn’t have needs, and a label doesn’t have to have rights, after all.”

SHE suggested that the law is worded as it is because “it simply never occurred to the lawmakers that people with an intellectual disability would, or could, have the same feelings as the rest of us.

“For some reason, they made an equation between intellectual capacity and emotional development.”

But isn’t it the case, Frieda concluded, that “the right to love and be loved is a basic human right? So why, for one group of people and for them alone, is there a law against it?”

Perhaps, someday soon, the legislators, who are now recognising and addressing the issue of capacity in other areas for people who have an intellectual disability, will turn to this question.

In addition to its report, the Law Reform Commission has published a draft bill to help them along.

If it is recognised in law that people who have an intellectual disability should have the same rights to normal sexual expression as every other adult, that will be a profound change in our culture.

And I’m proud to say I know one citizen who has influenced that change.


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