Provisions of new Sexual Offences Bill are narrow, protective and paternalistic

Wednesday, February 15th 2017

Provisions of new Sexual Offences Bill are narrow, protective and paternalistic

New Bill leaves people with intellectual disabilities pre-judged in the eyes of the law

Inclusion Ireland is disappointed that the Criminal Law (Sexual Offences) Bill 2015, which passed through the final stage in the Seanad yesterday evening, uses terms that will mean persons with intellectual disabilities can be pre-judged in the eyes of the law.

While repeal of its legal predecessor - the Sexual Offences Act 1993 which made sexual intercourse with ‘mentally impaired’ people illegal - is to be welcomed, Inclusion Ireland is disappointed that the new Bill will continue to treat people with disabilities in an unequal way.

Inclusion Ireland has long advocated for a change in this law, but it is regretful that an opportunity to adopt a disability-neutral approach to the criminal law has been missed.

The new law categorises someone with an intellectual disability as a ‘protected person’, which will continue a status approach and, as a result, means that persons with intellectual disabilities can be pre-judged in the eyes of the law.

Inclusion Ireland is also disappointed that the provisions of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which Ireland has failed to ratify a decade after it was signed, were repeatedly used to justify the narrow, protective and paternalistic provisions of the new law.

The use of the term ‘protected person’ is also in stark contrast to the Assisted Decision-Making (Capacity) Act 2015, which takes a disability-neutral approach to assessing capacity.

The ‘chilling effect’ which people with intellectual disabilities currently experience in accessing information, education and support around intimate relationships is addressed in the upcoming screening of ‘Sanctuary’ at the Dublin International Film Festival in the Light House Cinema in Dublin 7 on Saturday, February 18th.

The film perfectly illustrates the legal restrictions which impact on the lives of unmarried persons with intellectual disabilities and seeks to prevent them from having healthy, intimate relationships.

Inclusion Ireland Campaigns & Policy Lead Sarah Lennon said:

“Through our advocacy work, Inclusion Ireland has seen the ‘chilling effect’ of the legislation with educators and advocates afraid to provide support to individuals with disabilities or provide education for fear of encouragement of law-breaking.

“This Bill was an opportunity to remove the restrictions on the rights of persons with disabilities and repeal an Act that does nothing to protect persons; instead it is replicating many aspects of that Act.

“The new legislation will continue a status-based approach to the criminal law and defines a relevant person as one who has a mental or intellectual disability, or a mental illness, which is of such a nature or degree as to severely restrict the ability of the person to guard him or herself against serious exploitation. Serious exploitation is not defined in the Bill. We are disappointed that a disability-specific approach has been taken.

“It is disappointing that the Minister for Justice, Frances Fitzgerald, repeatedly used the UNCRPD to justify the use or ‘protected person’ in this Bill. While the UNCRPD requires States Parties to protect persons, it is protection on an equal basis with others. This Bill simply sets people with disabilities apart for ‘special’ treatment’.”