A key part of the law on sexual offences should be replaced because it fails to respect the right to sexual expression of people whose capacity to consent may be at issue, the Law Reform Commission has said.
In a report to be published today, the commission says the relevant piece of legislation – section 5 of the Criminal Law (Sexual Offences) Act 1993 – also falls short because it does not deal with all situations in which exploitation or abuse may arise.
It says legislation should be enacted to replace that section and provide that a person has capacity to consent to any sexual act where he or she is able to choose to agree to the act involved.
This legislation should make it clear that no offence is involved where two people whose capacity to consent may be at issue – because of an intellectual disability, for example – engage in a sexual act and where no exploitation or abuse is involved.
The publication of the report coincides with a review of the law on sexual offences being carried out by the Department of Justice. It comes against the backdrop of a shifting policy approach to intellectual disabilities, with the emphasis increasingly being placed on rights and empowerment.
It states that any reform in this area must be accompanied by co-ordination between agencies, in particular to provide for national standards of sex education in this area.
Overall, it finds that the 1993 Act fails to empower people whose capacity may be at issue “to realise their right to sexual expression” because it does not clearly provide that no offence is committed where they engage in a sexual act and there is no exploitation or abuse of either person.
Failure
Moreover, it argues that the law fails to protect such people from the most common types of exploitation or abuse because it deals with sexual intercourse only and ignores the reality that exploitation or abuse often arises from other unwanted sexual acts.
On that point, the report states that the new law should cover all forms of sexual assault and any other acts that involve exploitation or abuse - such as unwillingly having to watch others involved in sexual acts.
On how to determine a person’s capacity to consent, the commission recommends the use of a “functional test of capacity”. This would include a requirement that the person is able to weigh up relevant information in deciding whether to engage in a sexual act, and is able to communicate his or her decision.
The commission, an independent statutory body whose main role is to keep the law under review and make proposals for reform, suggests that, in general, the accused should have a defence of reasonable belief that the person has capacity to consent.
However, it believes this defence should not be available to people in a position of trust or authority, including close family members and professional carers.
Guidelines
The report also recommends that guidelines should be developed for those working in the criminal justice system to identify current obstacles and look at ways to enhance the participation in court proceedings of people covered by the proposed legislation.
National standards should be developed by all relevant agencies to ensure a consistent approach to sex education, including the risks of exploitation or abuse, for all people affected by these reforms.
