Sexual Offences

Thursday, 18 November 2010

Seanad Éireann Debate
Vol. 205 No. 14

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Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer I thank the Cathaoirleach for allowing me to raise this important issue, namely, the consequences of a decision taken this week in the courts. I ask the Minister for Justice and Law Reform make a statement on the plans of the Government to amend the Criminal Law (Sexual Offences) Act 1993 in the light of the decision by a judge to direct a jury to return a not guilty verdict because the Act does not provide for oral rape as an offence. This is a most disturbing and distressing case, as the Minister of State, Deputy Calleary, will no doubt agree.

[866]Inclusion Ireland has taken a forceful position in raising a number of issues related to this week’s case. It has correctly noted, for example, that the current law does not adequately protect people from a range of sexual offences. It also points out, however, that the law potentially criminalises consenting sexual relationships. This issue requires urgent action by the Government rather than words in an Adjournment debate. The 1993 Act criminalises only sexual intercourse or buggery with a mentally impaired person. People with identifiable mental illnesses and older people with dementia or people with a brain injury can fall under the definition of “mentally impaired”. The test applied under the Act is that the person is incapable of living independently or guarding against exploitation. It is unclear how narrowly or broadly this definition will be interpreted. The Act does not apply to married individuals but criminalises consenting adults with a mental impairment. The issue of consent is not addressed. If other sexual acts short of intercourse take place, a case may proceed and consent and other matters can be examined. The Law Reform Commission is drawing up a consultation paper on the matter. The bottom line is that the law must be changed because, as constituted, it does not protect against sexual offences which fall outside sexual intercourse or buggery.

Ms Deirdre Carroll, chief executive officer of Inclusion Ireland, has issued a strongly worded press statement on the recent court case in which she states that without new legislation in this area, Ireland cannot ratify the UN Convention on the Rights of People with Disabilities. All citizens must enjoy rights and for this reason the Government must clarify the position on the Criminal Law (Sexual Offences) Act. The decision taken by a judge earlier this week has serious consequences and widespread implications and constitutes an impingement on the rights of citizens.

As Ms Carroll noted, the current law relating to people with an intellectual disability is antiquated and dates back to the Lunacy Act 1871. While commitments have been given to introduce new legislation in this area, as far as I am aware, a Bill has not been forthcoming. While I am not sufficiently qualified to disagree with the judge’s decision in this week’s case, it clearly demonstrates that the current law fails to protect people with an intellectual disability from sexual acts other than sexual intercourse and buggery. This must be rectified as a matter of urgency.

Minister of State at the Department of Enterprise, Trade and Innovation (Deputy Dara Calleary): Information on Dara Calleary Zoom on Dara Calleary I welcome the opportunity to discuss the important matter raised by the Senator which I will take on behalf of my colleague, the Minister for Justice and Law Reform, Deputy Dermot Ahern.

As the Senator will be aware, I am not in a position to discuss individual cases. However, it is important to outline the criminal law measures in place to protect the intellectually disabled from sexual abuse. These include general criminal law measures and measures directed specifically at the intellectually disabled.

Rape, under section 4 of the Criminal Law (Rape) (Amendment) Act 1990, includes oral rape and a person found guilty of section 4 rape is liable, on conviction on indictment, to life imprisonment. The offence is committed in the absence of consent and can be committed against any person, including a person who is intellectually disabled.

Section 5 of the Criminal Law (Sexual Offences) Act 1993 deals specifically with offences against persons who are “mentally impaired”. Under this provision, it is an offence for any person to commit or attempt to commit specific sexual acts — sexual intercourse or buggery — with a person who is mentally impaired, whether consent is given. Section 5 was the main [867]legislative vehicle for implementation of the recommendations in the Law Reform Commission’s 1990 report on sexual offences against the mentally handicapped.

The law governing sexual offences needs to strike a careful balance between the need to protect persons with intellectual disabilities from sexual abuse and sexual exploitation, while not intruding on their right, in appropriate circumstances, to engage in consensual sexual activity. The basic right of people with disabilities to enjoy the same degree of fulfilment through relationships as anyone else must always be taken into account. This area of the law is again being examined by the Law Reform Commission and, if necessary, the Minister will bring forward legislative proposals to implement the commission’s recommendations. A key concern in this context is that the criminal law should only be used to punish clear sexual exploitation of persons who are intellectually disabled but not to deprive them of intimate relations where that is possible in a non-exploitative manner.

The law on sexual offences is kept under continuous review and amended, as required, to keep the law up to date. Work is well advanced on various legislative proposals in this area. The Minister of State with responsibility for children will bring a draft general scheme to the Government in the near future to address recommendations made in the second interim report of the Joint Committee on the Constitutional Amendment on Children. The scheme of a second sexual offences Bill to protect vulnerable persons generally from sexual abuse and sexual exploitation is also being prepared.

I am sure the Senator will appreciate the sensitivities involved in framing legislation to protect the intellectually disabled. Protection from predatory and exploitative actions is paramount. However, we must be extremely careful not to criminalise sexual activity which could not be deemed exploitative and might deprive the intellectually disabled of intimate relationships. This is a major concern of campaigners, service providers and others who promote the rights of the intellectually disabled. I look forward to the Law Reform Commission’s report and the Government will not be found wanting in addressing its recommendations.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer It is vital that the Minister for Justice and Law Reform take steps to protect people with an intellectual disability. I hope he will introduce modern capacity legislation which, as Inclusion Ireland notes, concerns all decisions taken by people deemed not to have the capacity to make a decision. While I accept the Minister of State’s point that this is a sensitive issue, we have a duty not to criminalise people with an intellectual disability by failing to legislate in this area.

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