Super quick post…
The Republic of Ireland is in the process of revising various pieces of legislation in order to be able to comply with the United Nations Convention on the Rights of Persons with Disabilities (CRPD), in order to be able to ratify it. I’ve blogged before about their exciting Assisted Decision Making (Capacity) Bill, which is about support for decision making and legal capacity in general, but another piece of work has been ongoing about sex and disability.
Under the Criminal Law (Sexual Offences) Act 1993 it is an offence to have (or attempt to have) sexual intercourse or to commit (or attempt to commit) an act of buggery (the statute’s words, not mine) ‘with a person who is mentally impaired (other than a person to whom he is married or to whom he believes with reasonable cause he is married)’. ‘Mentally impaired’ is defined in the statute as ‘suffering from a disorder of the mind, whether through mental handicap or mental illness, which is of such a nature or degree as to render a person incapable of living an independent life or of guarding against serious exploitation.’ The statute was widely agreed to be unacceptably discriminatory and offensive, and so the Irish Law Reform Commission undertook work to repeal it and replace it with more up to date provisions, which would comply with the CRPD. Their proposals (2011, 2013) were for legislation based on a mental capacity model of consent to sex, similar to its English and Welsh counterpart – the Sexual Offences Act 2003.
The Centre for Disability Law and Policy (CDLP) wrote a submission to the Law Reform Commission arguing that a mental capacity based approach would be discriminatory against people with disabilities. Instead, they argued for a disability neutral offence, which could potentially apply to anybody, which took into account the person’s situation and the power dynamics therein, instead hinged on something like abuse of a position of power and whether or not consent was freely and voluntarily given, or whether given by force, threat, intimidation, deception or fraudulent means. Since this is only a short post, I encourage you to read their submission in full.
Today the Oireachtas published a draft Criminal Law (Sexual Offences) (Amendment) Bill 2014, sponsored by Senator Katherine Zappone, and it looks as if it took up the recommendations of the CDLP, as it is not explicitly capacity based and it does take into account a person’s situation. Although I can’t find it online, I am aware that Senator Zappone also prepared an easy to read explanation of the Bill (I suggest contacting her office for copies of this). The relevant text of the Draft Bill is given below, for anybody who struggles to read pdf documents (apologies for the slightly odd formatting).
The structure of the proposed new offence is very interesting, and I’m sure English and Welsh lawyers interested the development of English mental capacity law regarding sex will be especially interested. Essentially, a person who is in a position of trust and takes advantage of that position or aids, abets, counsels or procures another person to do so, and ‘induces or seduces’ a person to have sexual intercourse with him or her or commit any other sexual offence, is ‘guilty of an offence of abuse of position of trust’. However, a person charged with that offence has a defence if they can prove that ‘the victim consented to the sexual act which had been engaged in’ and ‘that such consent was granted freely and in the absence of duress or coercion’. A ‘position of dependence and trust’ is defined non-exhaustively as somebody who provides care, is responsible for welfare, occupies a position of authority, provides education, or provides support services including therapy or counselling, to the victim. ‘Consent’ is given a definition in a separate clause. It states that in determining the existence of consent, ‘an agreement between the parties to engage in the specific act must be established’. This, in turn, requires ‘an examination of the communication between the parties immediately prior to the act’ and that ‘each person must be shown at that time to have understood the nature of the act.’ It then goes on to say, ‘In determining whether a person has consented to engage in a sexual act, no higher standard of understanding shall apply to persons with disabilities than that which applies to persons without disabilities’ and ‘In determining whether a person understood the nature of the act, the presence of a mental impairment shall not be a determinative factor’.
I am hoping that in due course the Human Rights in Ireland Blog will say more about what this legislation means for Ireland, and from a CRPD perspective (hint hint!)(update: hint taken). In the meantime, and apologies to international readers for being parochial, I just want to reflect for a moment on where this Bill is going and what is happening in our own ‘sex and capacity’ case law in the UK.
I wrote, a little while ago, about an important new ruling by the Court of Appeal on the test of capacity to consent to sex, IM v LM (2014), a ruling which looks set to be appealed to the Supreme Court. (Apologies for the shameless blag, but I’ve also written a chapter for a forthcoming book on this very topic). In some respects, the English and Welsh case law appears to be moving towards the ‘minimalist’ position regarding consent and understanding embodied by this Bill. The courts have tried to reject requirements that a person understand the social and emotional sequellae and ‘moral’ and social baggage of sex, under the test of mental capacity to consent to sex connected to the Mental Capacity Act 2005. And they have also been trying to arrive at a test of capacity to consent to sex which does not impose a higher standard of people with disabilities than those without disabilities; this is a key part of the reason the ‘use or weigh’ requirement is minimised in the test of capacity to consent to sex. However, the Irish Bill appears to set an even lower threshold for understanding in order to give consent than even the English case law, as the English case law does still require an understanding of the health and pregnancy risks (which I argued in my article did seem to be discriminatory, and would be problematic for people with communication impairments who may not be able to articulate such risks).
It’s also interesting to observe that this Bill focuses on the situational dynamic, which is of especial concern to many over here as the civil law test of capacity to consent to sex does not have regard for situational and relational factors, but the criminal law test does (at least, that is what IM v LM concluded). So, a very interesting development all round. I have to run, and so can’t devote more space or time to this at present, but will have a think and may write more about this in due course… I’d love to hear your thoughts and comments in the meantime.
Text from the draft Bill
Offence of abuse of position of dependence and trust
5. (1) Any person who being in a position of dependence and trust—
(a) takes advantage of his or her position, or
(b) aids, abets, counsels or procures another person to take advantage of his or her position, and—
(i) induces or seduces a person to have sexual intercourse with him or her, or
(ii) commits any other sexual offence involving a person, shall be guilty of an offence of abuse of position of trust and shall be liable upon conviction on indictment to imprisonment for a term of not less than ten years.
(2) Where a person charged with an offence under this section can establish that, in respect of the sexual act which had been engaged in, no offence would have been committed had the consent of the victim been granted prior to the act, it shall in those circumstances be a defence for a person who is charged with an offence under this section to prove that—
(a) the victim consented to the sexual act which had been engaged in, and
(b) that such consent was granted freely and in the absence of duress or coercion.
(3) In this section—
‘position of dependence and trust’ includes, but is not limited to, a person who—
(a) provides care,
(b) is responsible for welfare,
(c) occupies a position of authority,
(d) provides education, or
(e) provides support services including therapy or counselling, to the victim;
‘sexual offence’ includes—
(a) a sexual offence within the meaning of section 3 of the Sex Offenders Act 2001,
(b) an offence under section 2, 3 or 4 of the Criminal Law (Rape) (Amendment) Act 1990,
(c) an offence under section 6 or 7 of the Criminal Law (Sexual Offences) Act 1993,
(d) an offence under section 4 or 5 of the Criminal Law (Human Trafficking) Act 2008, or
(e) any other offence of a sexual nature contained in any other enactment and which has been so prescribed in regulations made by
the Minister for Justice and Equality under this section.
5A. (1) It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of that person, the existence of consent in respect of that act shall be determined in accordance with this section.
(2) In determining the existence of consent, an agreement between the parties to engage in the specific act must be established.
(3) In determining the existence of an agreement between the parties to engage in the specific act—
(a) an examination of the communication between the parties immediately prior to the act shall be conducted, and
(b) each person must be shown at that time to have understood the nature of the act.
(4) An understanding of the nature of the act shall only require the person to understand the physical nature of the act and shall not require the person to understand possible physiological consequences of the act.
(5) (a) In determining whether a person has consented to engage in a sexual act, no higher standard of understanding shall apply to persons with disabilities than that which applies to persons without disabilities.
(b) In determining whether a person understood the nature of the act, the presence of a mental impairment shall not be a determinative factor.”