consultation paper
sexual offences AND
CAPACITY TO CONSENT
(LRC CP 63 - 2011)
© Copyright
Law Reform Commission
FIRST PUBLISHED
October 2011
ISSN 1393-3140
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at the time of going to print (October 2011)
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Principal legal researcher for this CONSULTATION
PAPER
Darelle O'Keeffe LLB
(UL), H Dip SP (NUI), E.MA (EIUC)
CONTACT DETAILS
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ACKNOWLEDGEMENTS
The
Commission would like to thank the following people who provided valuable
assistance:
CoAction
West Cork:
Mr. Coleman
Harrington, Self- Advocate
Ms. Mary
O’Donovan, Financial Controller
Mr. Conor
McAtasney, Manager
Cosc:
Mr. Tony
Flynn, Assistant Principal Officer
Disability
Federation of Ireland:
Ms.
Jacqueline Thompson, Support Officer
Down
Syndrome Ireland:
Mr. Pat
Clarke, Chief Executive Officer
Ms. Clare
Leonard, President
Mr.
Risteard Pierce, National Secretary
Ms. May
Gannon, Counsellor and Advocacy Officer
Health
Service Executive
Dr.
Stephanie O’Keeffe, Acting Director, Crisis Pregnancy Programme
Ms. Roisin
Guiry, Programmes and Communication Assistant, Crisis Pregnancy Programme
Mr. Michael
Shemeld, Development Manager, National Disability Unit
Ms. Caoimhe
Gleeson, National Accessibility Specialist, National Disability Unit
Mr. Andy
Walker, Regional Health Promotion Manager, HSE South
Ms. Sharon
Parkinson, Senior Health Promotion Officer Sexual Health
Ms. Moira
Germaine, Regional Health Promotion Officer Sexual Health
Ms. Mary
Russell, Teenage Health, HSE Dublin North City and County
Inclusion
Ireland:
Ms. Deirdre
Carroll, Chief Executive Officer
Ms. Sarah
Lennon, Training and Development Officer
Irish
Family Planning Association:
Mr. Niall
Behan, Chief Executive Officer
Ms. Anita
Butt, Training and Education Coordinator
Irish
Mental Health Commission:
Ms.
Caroline McGrath, Director
National
Disability Authority:
Ms. Mary
Van Lieshout, Head of Research and Standards Development
Ms. Eithne
Fitzgerald, Head of Policy and Public Affairs
Dr. Rosarie
McCarthy, Senior Policy and Public Affairs Advisor
National
Federation of Voluntary Bodies (Members):
Inclusive
Research Network
Ability
West
Brothers of
Charity
The Callan
Institute
KARE
Peamount
Rehab Group
National
Federation of Voluntary Bodies:
Ms. Maria
Walls, Director of Research and Policy Development
Ms. Edel
Tierney, Director of Research and Policy Development
NUI
Galway:
Dr. Mary
Keys, Lecturer in Law, Faculty of Law
Office
of Director of Public Prosecutions:
Mr. James
Hamilton, Director of Public Prosecutions
Ms. Kate
Mulkerrins, Head of Prosecution Policy Unit
Rape
Crisis Network Ireland:
Ms.
Caroline Counihan, Legal Policy Director
St.
Michael’s School, Daughters of Charity:
Sr.
Bernadette Carron, Principal
Trinity
College Dublin:
Dr. Fintan
Sheerin, Lecturer in
Intellectual Disability Nursing,
School
of Nursing and Midwifery
Full
responsibility for this publication lies, however, with the Commission.
C The
Commission’s general approach: empowerment and protection
D Terminology
and intellectual disability
E Connection
between reform of the law and the policy setting
F Outline
of this Consultation Paper
CHAPTER 1 DEFICIENCiES IN THE CURRENT LAW WITHIN THE policy AND
RIGHTS-BASED CONTEXT
B Detailed
analysis of section 5 of Criminal Law (Sexual Offences) Act 1993
(1) Before
1993: section 4 of the Criminal Law Amendment Act 1935
(2) The
Commission’s 1990 Report on Sexual Offences against the Mentally Handicapped
(3) Issues
arising from section 5 of the Criminal Law (Sexual Offences) Act 1993
C Decision-making
capacity and the functional approach
(1) The WHO
approach to classifying intellectual disability and the functional approach
(2) The WHO
classification system in Ireland
(3) Capacity
and the functional test in the legal setting generally
(4) The
functional approach applied in the criminal law
D Evolution
of the current general policy and legal framework
(1) Move from
a Medical Model to a Social Model
(2) From a
Social Model to a Disability Human Rights Model
(3) The
Constitution and Rights of People with a Disability: Recent Legislative
Developments
(3) Constitutional
and human rights considerations
CHAPTER 2 CONVERGENCE OF THE CIVIL AND CRIMINAL LAW IN assessing
CAPACITY TO CONSENT
B Capacity
to consent in the criminal law context
C Convergence
of the criminal law and the civil law
(1) Test for
capacity to marry
(2) Understanding
the nature of marriage
(3) Interplay
with capacity to consent to sexual relations
(4) Issue
specific test for capacity to consent to sexual relations
(5) Concluding
comments and provisional recommendations
CHAPTER 3 Reproductive Freedom
(2) The Irish
position on eugenics
(3) Moves
towards a community and rights-based approach
C Parental
rights of persons with intellectual disability
(2) Threshold
required to apply for care order
(3) Legal aid
for appointed person to assist parent with intellectual disability
(4) Parents
with disabilities, capacity to parent and the need for support services
(5) The
Disability Act 2005 and the nature of socio-economic rights in Ireland
(6) Constitutional
considerations
(7) The
Family, the Constitution and International Standards
(8) The
European Convention on Human Rights
(9) United
Nations Convention on the Rights of the Child 1989
(10) United
Nations Convention on the Rights of Persons with Disabilities 2006
(11) Comments
of Committee on Economic, Social and Cultural Rights
D Supports
for parents with disabilities
(3) Concluding
comments and provisional recommendations
CHAPTER 4 SAFEGUARDS FROM SEXUAL ABUSE
B Barriers
to disclosing sexual abuse
C The
changing nature of service provision
(1) The
importance of education on personal and sexual relations
(2) Policies
on personal and intimate relationships
(2) 2006 UN
Convention on the Rights of Persons with Disabilities
F Protection
measures in mainstream settings
(1) Lessons
learned from other categories of vulnerable groups
(2) A
National Action Plan on Abuse for people with disabilities
(5) Whistle-blowing
protection and protected disclosures
(6) Conclusions
and provisional recommendations
CHAPTER 5 CAPACITY TO CONSENT IN THE CRIMINAL LAW AND SEXUAL
OFFENCES: COMPARATIVE ANALYSIS
B Decision-making
capacity and sexual offences
(1) Difficulties
in prosecuting sexual offences - Consent
(2) Situations
where consent is vitiated
(3) Comparisons
with Criminal Law (Sexual Offences) Act 2006
C Background
to recent legislative change in England, Wales and Northern Ireland
(1) Sexual
Offences in England and Wales
(3) Capacity
to consent to sexual activity in England and Wales
(4) Sexual
offences involving people with mental disorders or learning disabilities
(5) Developments
in case law arising from the Sexual Offences Act 2003
(7) Capacity
to consent to sexual activity in Northern Ireland
D Background
to recent legislative developments in Scotland
(1) Capacity
to consent to sexual activity in Scotland
(2) Classification
of prohibited relationships
(3) Sexual
Offences (Scotland) Act 2009
(4) Capacity
to consent to sexual activity
(5) Classification
of prohibited relationships
(1) Recommendations
of the Model Criminal Code Officers Committee
(3) Capacity
to consent to sexual activity
(4) Abuse of
position of authority or trust and the available defences
(2) Capacity
to consent to sexual activity
(2) Capacity
to consent to sexual activity
(3) Abuse of
position or trust/authority
(2) Capacity
to consent to sexual activity
I Concluding
comments and provisional recommendations
CHAPTER 6 CRIMINAL PROCEDURE ISSUES
(1) Statistics
on sexual offences against persons with limited capacity
(1) Competency
to give evidence
(3) Availability
of Special Measures: Part III of the Criminal Evidence Act 1992
(4) Training
for personnel working in the criminal justice system
(2) Comparative
overview of support measures
D Special
measures for defendants
CHAPTER 7 SUMMARY OF PROVISIONAL RECOMMENDATIONS
1.
This Consultation Paper forms part of the Commission’s Third
Programme of Law Reform 2008-2014,[1] which proposes
a general review of the law on sexual offences with a view to its
consolidation. Since the Third Programme was formulated, the Commission
has become aware that the Department of Justice and Equality is engaged in a
general consolidation of the law on sexual offences. The Department has
indicated that this consolidation process, while comprehensive, would benefit
from analysis of specific aspects which the Commission has previously examined,
notably the civil law aspects of capacity to consent in the specific context of
persons with intellectual disability or limited capacity.[2] The Commission has therefore concluded that, to complement
the Department’s consolidation process and to avoid any duplication of work, it
should confine this project to a review of how the law deals with the issue of
the capacity of persons with limited capacity to consent to sexual relations.[3]
At a wider level, this
Consultation Paper also complements the codification of the criminal law
currently being undertaken by the Criminal Law Codification Advisory Committee.[4]
2.
The current legislation
on sexual offences in the specific context of persons with intellectual disability or limited
capacity is contained in section 5 of the Criminal Law (Sexual Offences) Act
1993. Section 5 of the 1993 Act implemented some of the recommendations
made by the Commission in its 1990 Report on Sexual Offences against the
Mentally Handicapped,[5] but it
retains what might be described as a paternalistic or protective approach
to the specific aspect of the law under discussion in this Consultation Paper.
As discussed in detail in Chapter 1, section 5 of the 1993 Act reflects the
legitimate aim of protecting from sexual exploitation or abuse persons who are
at risk or are otherwise vulnerable to such exploitation or abuse because of
their intellectual disability or limited capacity. Section 5 of the 1993 Act
fails, however, to provide sufficient clarity that it recognises the rights of
persons with intellectual disability or limited capacity to have a
fully-expressed consensual sexual life.
3.
The Commission’s
general approach in this Consultation Paper is that the law should recognise
both the right of persons with intellectual disability to express their
sexuality and also that they may be at risk or are otherwise vulnerable to
sexual exploitation or abuse. The Commission acknowledges in this respect that
a rights-based approach to the sexuality of persons with intellectual
disability has only become a real concern in relatively recent times.
4.
Indeed, as shown in the
discussion in this Consultation Paper, overall policy concerning persons with
intellectual disability has gone through enormous changes in a relatively short
period in the second half of the 20th century and the beginning of
the 21st century. The eugenics movement of the late 19th
century and early 20th century, now discredited, was an extreme
instance of where poor understanding of intellectual disability led to gross
violation of rights, including forced sterilisation. Even when these aspects of
eugenics were ended, largely from the middle of the 20th century, a
continuing major feature of policy that continued until the late 20th
century was overwhelmingly based on taking persons with intellectual disability
out of their family and community setting, detaining them in large institutions
with relatively limited developmental support structures where, often, persons
with mental illness were also detained. While some improvements were evident in
the second half of the 20th century, notably in terms of providing
some level of vocational training in the institutional setting, the predominant
policy approach continued to be based on separation.
5.
Towards the end of the
20th century, developed countries such as Ireland recognised the
need to close these large institutions and move towards a community-based
approach or social model of policy development. As a result, persons with
intellectual disability were integrated more fully into, for example, the
mainstream educational and employment setting. This reflected a better
understanding of the capacity of persons with intellectual disability, as well
as the need to recognise their rights. Internationally, from the 1970s onwards
the member states of global bodies such as the United Nations laid the
foundation for the recognition of the rights of persons with intellectual
disability, culminating in the 2006 UN Convention on the Rights of Persons with
Disabilities (which, of course, applies to persons with physical disability as
well as persons with intellectual disability). This rights-based analysis is
also seen in the case law of the Irish courts concerning the rights under the
Constitution of Ireland of persons with intellectual disability, beginning with
the 1993 High Court decision in O’Donoghue v Minister for Health,[6]
discussed in Chapter 1, below.
6.
The Commission also
notes that, with the advent of a rights-based approach to persons with
intellectual disability, and a move from large institutions to a community
setting, there has also been a corresponding increase in research into the
risks associated with the exploitation of their rights. The Commission is
conscious from its previous work on the civil law aspects of intellectual
capacity that the risk of abuse, whether financial, sexual or physical, is a
matter that requires an appropriate response, both in terms of policy and,
where relevant, legislation. In the context of the criminal law, the Commission
recognises that any reform proposals must take account of the need to ensure
that suitable protections from the risk of abuse remain a feature of the law.
The Commission is especially conscious in this regard that any reformed law on
sexual offences must contain a rights-based analysis and also contains robust
references to standards of consent. As the discussion in the Consultation Paper
makes clear, consent to sexual relations is one of the most personal of matters
for all individuals, and the criminal law should reflect this, whether dealing
with consent in general or in the context of persons with an intellectual
disability. In preparing this Consultation Paper, the Commission has also taken
into account the importance of court procedure and related issues of evidence.
In this respect, any reforms must have regard to constitutional and
international human rights standards concerning fair trial procedures, both for
any person with intellectual disability who appears as a witness and also any
person with intellectual disability who is charged with a sexual offence.
7.
Complementing the
general development of policy in this area, the terminology and language used
in this area has also undergone, and continues to undergo, considerable
development. In this Consultation Paper, the Commission is conscious of the
need to use suitable terminology that indicates respect and does not insult or
demean. Equally, the Commission is aware that the terminology used in this area
is prone to the “euphemism treadmill.”[7] This means that,
while we all attempt to ensure that respectful terminology is used, any
language runs the risk that, over time, it eventually comes to have a
derogatory or insulting meaning.
8.
From the perspective of
the early 21st century, it is difficult to judge whether the
language used in 19th century medical practice and legislation
concerning persons with intellectual disability would have been regarded at the
time as insulting or demeaning. With the passage of time, it is clear that, to
a contemporary reader, legislation from the 19th century that
remains in force contains objectionable language. Thus, the Lunacy
Regulation (Ireland) Act 1871 – which contains terms such as “lunatic,”
“idiot” and “person of unsound mind” – remains on the Irish statute book
in 2011 as the principal legislation regulating the care and protection of
persons with intellectual disability. The Commission’s 2006 Report on
Vulnerable Adults and the Law[8] recommended
the repeal of the 1871 Act and the enactment of modern mental capacity
legislation that would be comparable to legislation enacted in many other
states in recent decades, and which would be consistent with relevant
international human rights standards, including the 2006 UN Convention on the
Rights of Persons with Disabilities. The Commission is aware that the
Government is committed to publishing, in early 2012, a Mental Capacity Bill
that is consistent with the 2006 UN Convention.[9]
9.
Even relatively recent
legislation, such as section 5 of the Criminal Law (Sexual Offences) Act
1993, contains terminology such as “mentally impaired” that is, to a lesser
extent, outdated. Indeed, the Commission’s 1990 Report on which the 1993 Act
was based used the term “mentally handicapped” in its title.[10]
Again, it is of little consolation that the 1990 Report had recommended the
repeal and replacement of section 4 of the Criminal Law Amendment Act
1935, which had referred to “any woman or girl who is an idiot, or
an imbecile, or is feeble-minded.”
10.
The language used in the 1935 Act is clearly objectionable in today’s
setting, although it is notable that each term in the 1935 Act has or had a
specific meaning that was related to the extent of intellectual ability or
disability. Thus, the term “idiot” was used in the past to describe the highest
degree of intellectual disability. This would now be described, adapting the
WHO classification system,[11] as “profound
intellectual disability”, indicating an IQ of under 20, in adults a mental age
below 3 years, and which would also mean that the person would have severe
limits to their capacity for self-care or to guard themselves against common
physical dangers. The term “imbecile” indicated an intellectual disability less
extreme than “idiot,” and would now often be divided into two WHO-based
categories, “severe intellectual disability” and “moderate intellectual
disability.” The term “severe intellectual disability” is used to indicate an approximate IQ range of 20 to 34, in
adults a mental age from 3 to under 6 years, and likely to mean the person
would be in continuous need of support. The term “moderate intellectual
disability” is used to indicate an approximate IQ range of 35 to 49, in adults a mental age from 6 to under
9 years. The WHO classification system indicates that this “is likely to result
in marked developmental delays in childhood but most can learn to develop some
degree of independence in self-care and acquire adequate communication and
academic skills. Adults will need varying degrees of support to live and work
in the community, and likely to mean the person would be in continuous need of
support.”
11.
The term “feeble-minded” (in some countries the term “moron” was also
used) was used to describe the smallest degree of intellectual disability. This
would now be described, adapting the WHO classification system, as “mild
intellectual disability”, indicating an approximate IQ range of 50 to 69, in adults a mental age from 9 to under
12 years. The WHO classification system indicates that, while this is likely to
result in some learning difficulties in school, many adults “will be able to
work and maintain good social relationships and contribute to society.” In
general, individuals with an IQ of 70 or over may also have a diagnosed
intellectual disability, but this could more accurately described as a learning
disability, or that the person has developmental delay. This may often be
identified in the educational setting.
12.
In Ireland, the 2006 National Disability Survey (NDS)
carried out by the Central Statistics Office indicates that 50,400 people in
Ireland have a diagnosed intellectual disability. The NDS figure includes 14,000 individuals whose main disability was classified as
dyslexia or a specific learning difficulty and 2,500 individuals whose
disability was classified as attention deficit disorder. Many of these
16,500 individuals are unlikely to require specific supports outside their
specific educational needs. The Health Research Board, which has adapted the WHO classification
system in the development of its National Intellectual Disability Database
(NIDD), has noted that, in 2009, there
were 26,066 people registered on the NIDD.[12] The NIDD registers
data only on individuals with an intellectual disability for whom specialised
health services are being provided or who, following a needs assessment, are considered
to require specialised services in the next 5 years.
13.
The Commission
acknowledges that, reflecting the “euphemism treadmill,” many other terms
commonly used in the past (and which continue to be used) have come to have
pejorative meanings, such as “mental handicap” and “mental retardation.”
Indeed, the use of “vulnerable adult” in the Commission’s 2006 Report on
Vulnerable Adults and the Law could, arguably, also be seen as emphasising
disability rather than empowerment. For this reason, the Law Commission for
England and Wales suggested in 2010 that the term “adult at risk” might be more
suitable in some contexts, in particular where there is a real potential that a
person with intellectual disability is open to exploitation or abuse.[13]
14.
In the wider context of
everyday speech, terms such as “cretin”, “handicapped”, “mongol”, “moron,”
“retard,” “retarded” and “spastic” – many of which also have, or had at one
time, specific legal or medical meanings – are also often used pejoratively,
whether consciously or unconsciously. The Commission also notes that, on the
other hand, huge efforts have rightly been made both in the literature and in
policy formation to restrict the use of derogatory terms[14]
and to encourage the use of positive language such as “ability” (not
disability), “developmental delay” (to indicate the individual’s potential) and
“capacity” (not incapacity).
15.
The terminology used in this area is clearly subject to ongoing
development and change, and the Commission accepts that any proposals to
replace existing legislation, whether the Lunacy Regulation (Ireland) Act
1871 or section 5 of the Criminal Law (Sexual Offences) Act 1993,
must take account of this reality while ensuring that any chosen
terminology indicates appropriate respect for those addressed or affected by
any resulting legislation. The
Commission notes that the leading international human rights instrument in this
area, the 2006 UN Convention on the Rights of Persons With Disabilities, uses
the term “disability” while clearly promoting a rights-based approach to
persons with disability. Similarly worthy of note is “Rosa’s Law,”[15]
enacted in 2010 by the US Federal Congress, which replaces the term “mental
retardation” with the term “intellectual disability” in all US federal
legislation. The term “intellectual disability” (or ID) is also commonly used
in Ireland in this respect.[16] While there is, therefore, no universal agreement on appropriate
terminology, and bearing in mind the risks connected with the “euphemism
treadmill,” the Commission has concluded that is should use “intellectual
disability” in this Consultation Paper as a general term to include persons
whose decision-making or cognitive capacity may be limited.[17]
16.
The Commission has already noted briefly the important development of
policy in this area, in particular the move from an institutional approach to a
community and rights-based approach to persons with intellectual disability. In
developing this Consultation Paper, the Commission is extremely grateful to the
many groups and individuals (listed in the Acknowledgements page) who assisted
the Commission with insights into the reality of sexual lives for persons with
intellectual disability, in particular the challenges that remain to achieve a
full expression of their sexuality. The Commission is especially conscious in
this respect that reform of section 5 of the Criminal Law (Sexual Offences)
Act 1993 will not, by itself, lead to change but that it may at least
remove a barrier to change.
17.
For that reason, the Commission discusses in the Consultation Paper some
aspects of the policy setting that are in ongoing transition; and that these
will require further adjustment to reflect any replacement of section 5 of the
1993 Act. In this respect, it is important to note the combined effect of the
WHO classification system and the development of the National Intellectual Disability Database. The
WHO classification system is, as noted in the Consultation Paper, based on a
functional test of capacity, which determines decision-making ability by
reference to the specific decision a person is making and its consequences. In
practice, this can be one way in which the individual’s self-determination can
be realised in the context of their personal social setting. In Ireland where a
community-based approach has been in place for many years, for most people with
an intellectual disability, this is the same social setting for the rest of the
population, their family home, their school, college or workplace (as opposed
to the large institutional setting of the past).
18.
The challenge
identified by the WHO classification and the National Intellectual Disability
Database is to ensure that the potential for self-determination can be realised
in practice. The Commission is conscious in this respect that the National
Disability Authority and the Crisis Pregnancy Programme has engaged in a
significant review of the policy developments required to achieve this.[18]
19.
The Commission now
turns to outline briefly the main contents of the Consultation Paper.
20.
In Chapter 1, the
Commission begins with a detailed examination of section 5 of the Criminal
Law (Sexual Offences) Act 1993. The Commission notes that section 5 of the
1993 Act is deficient in a number of important respects. In particular, section
5 of the 1993 Act (a) fails to protect people with intellectual
disability from unwanted
sexual contact generally (in that it is limited to sexual intercourse only) and
(b) fails to empower people with limited capacity to realise their right to
sexual expression (in that it does not clearly provide for situations of
consensual sex between two persons with intellectual disability). Section 5 of
the 1993 Act is also deficient in terms of the outdated language used to
describe those affected by its provisions.
21.
The Commission then
discusses briefly the current internationally-recognised classification of
intellectual disability, adapted from the World Health Organization (WHO). The
Commission also discusses the related meaning of capacity in its legal setting
and in particular the prevalence of the functional text of capacity, that is, a
decision-specific assessment of capacity. This includes how the functional test
is used in the criminal law generally, although not in section 5 of the 1993
Act. The Commission then considers the changing perceptions of intellectual
disability in Ireland, which reflect a global shift in thinking away from a medical
model towards a social understanding and a rights-based approach. The
Commission also places capacity issues in the context of relevant
constitutional and international human rights.
22.
In Chapter 2, the Commission discusses the convergence of the civil and
criminal law in assessing capacity to consent to sexual relationships. This
includes discussion of this convergence in the case law developed in England
and Wales in the wake of the enactment of reforms of the law on sexual offences
in 2003 and the enactment of modern mental capacity legislation in 2005. In the
context of civil law determinations as to capacity, which in general concern
cases on the capacity to marry, there is no uniform approach in determining
capacity to consent to sexual relations, but there is an implicit right that
individuals with limited capacity can lawfully engage in sexual relationships.
This right may be compromised, however, by the criminal law which, as for example
under section 5 of the Criminal Law (Sexual Offences) Act 1993, creates
offences that may have the effect of limiting the exercise of any perceived
rights granted by virtue of the civil law approach while aiming to protect
people from sexual exploitation.
23.
In Chapter 3, the Commission discusses the general approach to
reproductive freedom for people with intellectual disability. This Consultation
Paper is concerned primarily with reform proposals in the context of capacity
to consent to sexual relations by persons with limited decision-making ability.
Nonetheless, the Commission considers it is important to briefly highlight the
related issues of reproductive and parental rights of persons with limited
decision-making ability. The Commission therefore examines the historical
approach which has framed section 5 of the Criminal Law (Sexual Offences)
Act 1993. The Commission also considers the related policy issue of
parental rights in the context
of constitutional and international standards. The Commission then concludes
the chapter by discussing the range of supports for parents with disabilities.
24.
In Chapter 4, the
Commission discusses the literature on sexual abuse which suggests that people
with disabilities are at a greater risk of sexual abuse and assault than the
‘non-disabled’ population. In doing so, the Commission sets out the reasons why
this may be so, the prevalence of sexual abuse involving people with
disabilities and the barriers confronting disclosing of sexual abuse for people
with disabilities.
25.
In Chapter 5, the
Commission examines options for repeal and replacement of section 5 of the Criminal
Law (Sexual Offences) Act 1993, taking into account reform of comparable
laws in other countries in recent years. Internationally, there has been
considerable reform in this area, which has seen the introduction of
legislation in the criminal law context aimed at empowerment of persons with
intellectual disability while at the same time achieving protection from harm
and exploitation. In this respect, reform of the criminal law has complemented
reform of mental capacity and adult guardianship laws, including a rights-based
functional approach to assessing capacity.
26.
The Commission begins
Chapter 5 by examining the challenges posed by the assessment of capacity in
the criminal law. This includes situations in which, for a variety of reasons
(such as age), consent may not be regarded as legally valid. In the remainder
of Chapter 5, the Commission examines how a number of different countries have
sought to balance the line between the legitimate right of all adult persons to
engage in sexual relationships and the need to protect vulnerable adults from
exploitation and abuse. The Commission examines recent legislative change in
England and Wales in the Sexual Offences Act 1993, largely replicated in
Northern Ireland in the Sexual Offences (Northern Ireland) Order 2008,
and comparable developments in Scotland, culminating in the Sexual Offences
(Scotland) Act 2009. The Commission discusses developments in this area in
Australia, New Zealand, Canada and the United States.
27.
The Commission
concludes Chapter 5 by setting out its conclusions and preliminary
recommendations. This includes the need to repeal and replace section 5 of the Criminal
Law (Sexual Offences) Act 1993. The Commission provisionally recommends
that section 5 should be replaced by a law that provides that the test for assessing capacity to
consent to sexual relations should reflect the functional test of capacity to
be taken in the proposed mental capacity legislation, that is, the ability to
understand the nature and consequences of a decision in the context of
available choices at the time the decision is to be made. Consistently with
this, therefore, a person lacks capacity to consent to sexual relations, if he
or she is unable: (a) to understand the information relevant to engaging in the
sexual act; (b) to retain that information; (c) to use or weigh up that
information as part of the process of deciding to engage in the sexual act; or
(d) to communicate his or her decision (whether by talking, using sign language
or any other means).
28.
The Commission also
provisionally recommends that there should be a strict liability offence for
sexual acts committed by a person who is in a position of trust or authority
with another person who has an intellectual disability. A position of trust or
authority should be defined in similar terms to section 1 of the Criminal
Law (Sexual Offences) Act 2006 which defines a “person in authority” as a
parent, stepparent, guardian, grandparent, uncle or aunt of the victim; any
person who is in loco parentis to the victim; or any person who is, even
temporarily, responsible for the education, supervision or welfare of the
victim. The Commission also provisionally recommends that a defence of
reasonable mistake should apply, which would mirror that applied to sexual
offences against children but that the defence should not be available to
persons in positions of trust or authority.
29.
In Chapter 6, the
Commission examines a number of related procedural issues concerning
persons with disabilities and the criminal justice system. The Commission
examines the range of special measures which are currently available to
eligible witnesses and complainants in Ireland. The Commission also explores
what measures are available to witnesses and complainants in other countries.
The Commission then discusses the position of defendants who may require
assistance and support to enhance their participation in the criminal trial
process.
30.
Chapter 7 contains a
summary of the provisional recommendations made by the Commission in this Consultation
Paper.
31.
This Consultation Paper is intended to form the basis of discussion and
therefore all the recommendations are provisional in nature. The Commission
will make its final recommendations on sexual offences and capacity to consent
following further consideration of the issues and consultation. Submissions on
the provisional recommendations included in this Consultation Paper are
welcome. To enable the Commission to proceed with the preparation of the
Report, which will contains the Commission’s final recommendations in this
area, those who wish to do so are requested to make their submissions in
writing to the Commission or by email to info@lawreform.ie by 31 December
2011.
1
1.01
In this Chapter,
the Commission begins in Part B with a detailed examination of section 5 of the
Criminal Law (Sexual Offences) Act 1993. The Commission notes that
section 5 of the 1993 Act is deficient in a number of important respects. In
particular, section 5 of the 1993 Act (a) fails to protect people with intellectual
disability or limited capacity
from unwanted sexual contact generally (in that it is limited to sexual
intercourse only) and (b) fails to empower people with limited capacity to
realise their right to sexual expression (in that it does not clearly provide
for situations of consensual sex between two persons with intellectual
disability). Section 5 of the 1993 Act is also deficient in terms of the
outdated language used to describe those affected by its provisions. The
Commission then discusses briefly in Part C the current
internationally-recognised classification of intellectual disability, adapted
from the World Health Organization (WHO). The Commission also discusses the
related meaning of capacity in its legal setting and in particular the
prevalence of the functional text of capacity, that is, a decision-specific
assessment of capacity. This includes how the functional test is used in the
criminal law generally, although not in section 5 of the 1993 Act. In Part D,
the Commission considers the changing perceptions of intellectual disability in
Ireland, which reflect a global shift in thinking away from a medical model
towards a social understanding and a rights-based approach. In Part E, the
Commission places capacity issues in the context of relevant constitutional and
international human rights.
1.02
The current legislation
on sexual offences in the specific context of persons with intellectual disability or limited
capacity is contained in section 5 of the Criminal Law (Sexual Offences) Act
1993. Section 5 of the 1993 Act implemented some of the recommendations
made by the Commission in its 1990 Report on Sexual Offences against the
Mentally Handicapped,[19] but it
retains what might be described as a paternalistic or protective approach
to the specific aspect of the law under discussion in this Consultation Paper.
In general terms, section 5 of the 1993 Act reflects the legitimate aim of
protecting from sexual exploitation or abuse persons who are at risk or are
otherwise vulnerable to such exploitation or abuse because of their
intellectual disability or limited capacity. Section 5 of the 1993 Act fails,
however, to provide sufficient clarity that it recognises the rights of persons
with intellectual disability or limited capacity to have a fully-expressed
consensual sexual life.
1.03
At the time of the Commission’s 1990 Report on Sexual Offences
against the Mentally Handicapped the only explicit statutory prohibition
against sexual exploitation of people whose capacity may be impaired by
intellectual disability was in section 4 of the Criminal Law Amendment Act
1935. Section 4 of the 1935 Act stated:
“(1) Any person who, in circumstances which do not amount to
rape, unlawfully and carnally knows or attempts to have unlawful carnal
knowledge of any woman or girl who is an idiot, or an imbecile, or is
feeble-minded shall, if the circumstances prove that such person knew at the
time of such knowledge or attempt that such woman or girl was then an idiot or
an imbecile or feeble-minded (as the case may be), be guilty of a misdemeanour
and shall be liable on conviction thereof to imprisonment for any term not
exceeding two years.
(2) No prosecution for an offence which is declared by this
section to be a misdemeanour shall be commenced more than twelve months after
the date on which such offence is alleged to have been committed.”
1.04
The Commission has already noted in the Introduction to this
Consultation Paper the out-dated (and now offensive) wording used in the 1935
Act. In particular, the 1935 Act referred to “any woman or girl who is an idiot, or an imbecile,
or is feeble-minded.” It is clear that this would, in today’s terms, more
properly refer to the different levels of intellectual disability, ranging from
“profound intellectual disability” (“idiot”), through “severe intellectual
disability” and “moderate intellectual disability (“imbecile”),
and to “mild intellectual
disability” (“feeble-minded”).
1.05
In addition section 4 of the 1935 Act was limited in its scope of
protection in that it only provided protection to females from vaginal sexual
intercourse or attempted intercourse. It did not provide any protection for
“mentally handicapped” males (except to the extent that all homosexual sexual
acts, whether consensual or non-consensual, constituted criminal offences under
the relevant provisions in the Offences Against the Person Act 1861 prior
to their repeal by the Criminal Law (Sexual Offences) Act 1993). It is
also notable that section 4(1) of the 1935 Act contained a form of ‘honest
mistake’ defence or at least required ‘knowledge’ by the accused of the
victim’s limited mental capacity.
1.06
Section 254 of the Mental Treatment Act 1945 increased the term
of imprisonment up to a maximum of 5 years where persons convicted under
section 4 of the 1935 Act were in two, quite different, positions of trust:
first, a carer of the woman; and, second, a person in the management or
employment of a psychiatric institution where the victim was either a patient
or prisoner.[20]
The first category, carer, reflected an awareness of the general “at risk”
context or vulnerability of persons with disability, and this clearly remains a
legitimate concern today (in respect of men and women). The second category
reflected the use of institutional settings as the main context in which
persons with intellectual disability actually lived in the first half of the 20th
century in Ireland.
1.07
Section 4 of the 1935 Act can be described as an example of the
paternalistic and gendered approach taken by the law throughout the 20th
century regarding persons whose decision-making capacity may be limited. As
O’Malley notes its sole concern was the protection of “mentally impaired women”
against sexual intercourse and the consequent prevention of pregnancy.[21] This approach was consistent with the,
now discredited, eugenics movement of the early to mid 20th century.
1.08
The reform of the
law in this area was addressed in the Commission’s 1990 Report on Sexual
Offences against the Mentally Handicapped.[22]
The 1990 Report followed on from related recommendations made by the Commission
concerning the law on sexual offences generally in the 1987 Consultation
Paper on Rape[23] and
1988 Report on Rape and Allied Offences.[24]
In the 1987 Consultation Paper on Rape, the Commission described section
4 of the 1935 Act as being “expressed in the language of a former age”[25]
and the Commission’s subsequent 1988 Report on Rape and Allied Offences
recommended that the offensive wording in section 4 of the 1935 Act, notably
the references to “any woman or girl who is an idiot, or an imbecile, or is
feeble-minded” should be replaced with provisions which reflected
then-contemporary knowledge of “mental impairment,” such as “mental incapacity”
or “mental handicap.”[26] In its 2005 Consultation
Paper on Vulnerable Adults and the Law: Capacity,[27]
the Commission noted that contemporary terminology would now favour the use of
the term “intellectual disability” in preference to “mental handicap”.[28]
1.09
The Commission’s 1990
Report on Sexual Offences against the Mentally Handicapped[29]
sought to strike a balance between protecting persons with intellectual
disability from sexual exploitation while at the same time respecting the right
of such persons to sexual fulfilment. The Commission recommended that the law
should recognise that those whose capacity to make decisions may be limited are
capable of giving consent in certain circumstances. The 1990 Report emphasised
two distinct principles in relation to the law’s function regarding sexual
behaviour and persons with limited capacity:
1.10
As to respecting the
right of persons to sexual fulfilment, the Commission noted there was
considerable room for debate as to the extent of the role of the criminal law
in protecting persons whose capacity may be limited from sexual exploitation
and abuse.[31] With respect
to the limitations on the scope of the criminal law, the Commission considered
it essential to be clear as to what is meant by “exploitation” if protection
from such exploitation is to be the basis for the involvement of the criminal
law in this area.[32]
1.11
As the Commission has
previously noted, the language used in section 4 of the Criminal Law
Amendment Act 1935 was,
even by 1990, “both offensive and out of date” and this alone would have
justified its repeal and replacement with a more appropriately worded
provision.[33] In its 1990
Report, the Commission went further than the recommendation in the 1988 Report
that the section should be reformulated with more acceptable terminology. The
Commission acknowledged however that the categorisation of persons who should
be protected was “a question of considerable difficulty”.[34]
Ultimately, the Commission recommended that section 4 of the 1935 Act be
repealed and replaced with an indictable offence of sexual intercourse with “another
person who is at the time of the offence a person with mental handicap, or
suffering from mental illness, which is of such a nature or degree that the
person is incapable of guarding himself or herself against exploitation.”[35]
The Commission also recommended the enactment of a parallel offence in respect
of anal penetration and other acts of sexual exploitation.[36]
Of particular importance to this Consultation Paper, the Commission recommended
that a sexual relationship between persons with limited mental capacity or
mental illness should not in itself constitute an offence. The
Commission noted:
“[i]t is
possible that a sexual relationship between two people suffering from mental
handicap or mental illness could result in the conviction of either or
both...This would clearly be contrary to the underlying principles which, in
our view, should inform the proposed legislation.
We accordingly
recommend that no act of vaginal sexual intercourse, or anal penetration or
other proscribed sexual activity should constitute an offence where both
participants are suffering from mental handicap or mental illness as defined,
unless the acts in question constitute a criminal offence by virtue of some
other provision of the law.”[37]
1.12
The Commission notes
here that the 1990 Report equated, for this purpose, intellectual disability
and mental illness. For the purposes of this Consultation Paper, the Commission
treats these separately with a view to determining whether different
conclusions should be drawn on the question of criminal liability. The
Commission emphasises the need to treat mental capacity quite separately from
mental illness. In general, they are completely separate matters, both in terms
of literature on health care and also in terms of how they are dealt with, or
ought to be dealt with, in the law.
1.13
As already noted section 5 of the Criminal Law (Sexual Offences) Act
1993 reflects some of the recommendations made by the Commission in its
1990 Report on Sexual
Offences against the Mentally Handicapped.[38] Section 5 of the Criminal Law (Sexual
Offences) Act 1993 states:
“(1) A person who—
(a) has or attempts to have sexual intercourse, or
(b) commits or attempts to commit an act of buggery,
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)
shall be guilty of an offence and shall be liable on conviction on indictment
to—
(i) in the case of having sexual intercourse or committing an
act of buggery, imprisonment for a term not exceeding 10 years, and
(ii) in the case of an attempt to have sexual intercourse or an
attempt to commit an act of buggery, imprisonment for a term not exceeding 3
years in the case of a first conviction, and in the case of a second or any
subsequent conviction imprisonment for a term not exceeding 5 years.
(2) A male person who commits or attempts to commit an act of
gross indecency with another male person who is mentally impaired shall be
guilty of an offence and shall be liable on conviction on indictment to
imprisonment for a term not exceeding 2 years.(3) In any proceedings under this
section it shall be a defence for the accused to show that at the time of the
alleged commission of the offence he did not know and had no reason to suspect
that the person in respect of whom he is charged was mentally impaired.
(4) Proceedings against a person charged with an offence under
this section shall not be taken except by or with the consent of the Director
of Public Prosecutions.
(5) In this section “mentally impaired” means 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.”
1.14
Section 5 of the 1993 may, therefore, be broken down into the following
5 elements. First, it creates three offences: (a) for any person to have, or
attempt to have, sexual intercourse with another person who is “mentally
impaired”; (b) for any person to commit or attempt to commit an act of buggery
with another person who is “mentally impaired”; and (c) for a male person to
commit or attempt to commit an act of gross indecency with another male person
who is “mentally impaired.”
1.15
Second, section 5 of the 1993 Act defines “mentally impaired” to mean
“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.”[39]
1.16
Third, in terms of penalties: (a) in the case of having sexual
intercourse or committing an act of buggery a person is liable on conviction on
indictment to a term of imprisonment not exceeding 10 years; (b) in the case of
an attempt to have sexual intercourse or an attempt to commit an act of buggery
a person is liable on conviction on indictment to a term of imprisonment not
exceeding 3 years in the case of a first conviction and in the case of a second
or any subsequent convictions to a term of imprisonment not exceeding 5 years;[40]
(c) in the case of a male person who commits or attempts to commit an act of
gross indecency with another male person who is “mentally impaired” the male
person is liable on conviction for a term not exceeding 2 years.[41]
1.17
Fourth, section 5 provides two defences: (a) that the accused is married
to the other person or the accused believes with reasonable cause he (or she in
the case of sexual intercourse) is married to the other person; and (b) where
the accused shows that at the time of the alleged offence he or she did not
know and had no reason to suspect that the person in respect of whom he or she
is charged was “mentally impaired”.[42]
1.18
Fifth, in terms of procedure, proceedings against a person charged with
an offence under the section will only be taken with the consent of the
Director of Public Prosecutions.[43]
1.19
Section 5 of the 1993 Act introduced a new offence which applies
where a person has or attempts to have sexual intercourse or buggery[44]
with a person who is “mentally impaired” unless they are married to each other.
The Commission noted in its 2005 Consultation Paper on Capacity that “a
regrettable effect of section 5 of the 1993 Act is that outside a marital
context a sexual relationship between two ‘mentally impaired’ persons may
constitute a criminal offence because there is no provision for consent as a
defence in respect of a relationship between adults who were both capable of
giving a real consent to sexual intercourse.”[45]
1.20
The operation of section 5 of the 1993 Act therefore, in effect,
bars a mutually consensual sexual relationship with another person with limited
decision-making capacity. This runs contrary to the Commission’s recommendation
in the Report on Sexual Offences against the Mentally Handicapped[46]
that a relationship between participants who both have either a mental handicap
or mental illness should not in itself be prohibited. As mentioned, in the
Commission’s 2005 Consultation Paper on Capacity a fear of prosecution
on the part of parents and carers may prevent the development of relationships
between two adults with intellectual disability even though they have the
capacity to consent and where there is no element of exploitation.[47]
1.21
Section 5 of the 1993 Act also makes it an offence for a male person to
commit or attempt to commit an act of gross indecency with another male who is
mentally impaired.[48] Section 5 provides a defence where
a person did not know and had no reason to suspect that the person with whom he
performed the sexual act was ‘mentally impaired’.[49]
1.22
“Mentally impaired” is
defined in section 5 of the 1993 Act 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[50]
of guarding against serious exploitation.”[51]
1.23
In determining capacity to consent, the Commission noted in its 1990
Report that the test of ability to guard against serious exploitation (the
second test in section 5(5) of the 1993 Act) constitutes a more accurate
yardstick for determining capacity to consent than the ability to lead an
independent life (the first test in section 5(5) of the 1993 Act).[52]
This position is premised on the argument that an element of dependency should
not necessarily preclude an ability to consent.[53]
According to Doyle, equating a person’s ability to live independently with
their capacity to consent to sexual relations:
“both imports a medical model of mental disability and also
fails to recognise its imposition of socially constructed barriers to the
enjoyment by persons with mental disabilities of their sexual lives. The
inherent discrimination of this offence is compounded by the fact that, on its
face, this provision also prohibits two persons who are both determined
“mentally impaired” from engaging in sexual activity.”[54]
1.24
The Commission considers that predicating capacity to consent on ability
to live independently is not an accurate assumption. For example, in the
Canadian 2008 case R v Prince[55] the
complainant adult was assessed as having the ability of a 6 to 8 year old
(broadly corresponding to the WHO-based classification of “moderate
intellectual disability,” discussed in Part C below), but she also lived
independently (which also reflects the potential envisaged in the WHO classification
for persons with moderate intellectual disability: see also Part C, below). The
accused was acquitted in Prince on the basis that the trial court found
that there was nothing in the situation that should have alerted him to the
need to make inquiries as to mental capacity. Even if the court had found that
there was no consent, the court would have found that there was an honest but
mistaken belief in the complainant’s capacity to consent.[56]
1.25
A prosecution under section 5 of the 1993 Act requires the consent of
the Director of Public Prosecutions.[57] The
Department of Justice in its 1998 Discussion Paper The Law on Sexual
Offences[58] noted that
the issue of sexual offences and vulnerable adults was of such sensitivity that
proceedings against a person charged with an offence under section 5 should
continue to require the consent of the Director of Public Prosecutions. It
considered that where the definition of the category of persons was “of
necessity” partially subjective in nature, an otherwise appropriate and clear
statutory provision as to the scope of the offence would be no guarantee
against an inappropriate prosecution (by a person other than the Director of
Public Prosecutions) or even an inappropriate decision not to prosecute.”[59]
The English Court of Appeal decision in R v Hall[60] indicates, of course, that in the event of a
prosecution, the question of whether a person has an intellectual disability
would be a matter for the jury to decide.
1.26
The Commission notes
here that there is very little information available on the operation in
practice of section 5 of the 1993 Act. This may be explained by the
deficiencies identified in section 5 of the 1993 Act already discussed,
including that it is limited to sexual intercourse and does not deal with
sexual abuse or exploitation more generally. The Commission is aware that, in
recent years, the Prosecution Policy Unit of the Office of the Director of
Public Prosecutions has carried out analysis of cases in its files concerning
section 5 of the 1993 Act. This analysis, which focused primarily on the
application of the general prosecution policy, including the discretion to
prosecute, is analysed in the context of criminal procedure issues in Chapter
6, below.[61]
1.27
There is no reference in
the 1993 Act to section 254 of the Mental Treatment Act 1945 which, as
already noted, provided for a higher possible maximum sentence on conviction
under section 4 of the 1935 Act where the accused was in a position of
trust, such as a carer or in the management or employment of the mental
institution where the victim was a patient or prisoner.[62] Contrary to the Commission’s recommendation in its 1990
Report, provision for a higher sentence in such circumstances was not included
in section 5 of the 1993 Act. The Commission had also recommended that the
maximum sentence in such cases be increased from 5 to 10 years’ imprisonment,
but this recommendation was also not implemented in section 5 of the 1993 Act.
As a result, currently there is no distinction between accused persons who are
in a position of trust or authority or accused persons who have no relationship
with the victim. As O’Malley notes:
“on the grounds
of social policy, there is much to be said for marking out institutional abuse
as more serious and heinous than abuse occurring in a relationship which has
been formed in the community. Persons are usually confined to institutions on
the grounds of infirmity or vulnerability, and any exploitation they suffer at
the hand of those employed by the institution involves a grave breach of trust
as well as the commission of a substantive offence.”[63]
1.28
The gender neutral approach adopted in section 5 of the 1993 Act was a
welcome advance on the approach taken in section 4 of the 1935 Act. In other important respects,
however, section 5 of the 1993 Act remains paternalistic in its approach by
failing to enact a specific recognition of the functional approach to capacity
which the Commission had recommended in 1990 Report. As discussed later in this
Consultation Paper, in that respect, section 5 of the 1993 Act involved a
retreat from the common law (judge-made) approach to capacity to consent in the
law of sexual offences generally, under which a functional approach had been in
place since the 19th Century. Because of this, in its 2005
Consultation Paper on Capacity,[64] the
Commission provisionally recommended that section 5 of the 1993 Act be amended
“in order to ensure that relationships between adults with limited
decision-making ability would be lawful where there is real informed consent.”[65]
The Commission also invited views:
“as to whether
the offence should be re-modelled so that it would be an offence to have or
attempt to have sexual intercourse or buggery with a person who lacked capacity
to consent to the relevant act at the time because they did not understand the
nature or reasonably foreseeable consequences of the act or could not
communicate their consent or lack of consent.”[66]
1.29
Submissions received by
the Commission after the publication of the 2005 Consultation Paper on Capacity
indicate that this is an area in which many different perspectives need to be
taken into account. There was some support for the approach taken in section 30
of the English Sexual Offences Act 2003 (and, since then, the comparable
Article 43 of the Sexual Offences (Northern Ireland) Order 2008) discussed in detail in Chapter 7,
below. Section 30 of the English 2003 Act (and Article 43 of the Northern
Ireland 2008 Order) defines lack of capacity in functional terms as to whether
the person lacks the ability to choose whether to agree to the touching because
of an absence of understanding of what is being done or for any other reason or
because the person in unable to communicate their choice. The English 2003 Act
(and Northern Ireland 2008 Order) contains a number of sexual offences in
relation to a person who lacks functional capacity to consent or is unable to
communicate their choice. However, as noted by the Commission in its 2006 Report
on Vulnerable Adults and the Law,[67] a strong
theme in the submissions was the need to provide appropriate protection for
vulnerable members of society. Submissions emphasised the vulnerability of
adults with limited decision-making ability to exploitation and abuse. There
was also a perceived need to consider how the law in this area should fit
together with the Trust in Care policy[68] and
developing elder abuse policies.[69] There was
support in the submissions received for a specific offence in this area to be
formulated to cover circumstances where there is an imbalance in power between
parties, for instance where a person is in a position or trust or authority
over someone with limited decision-making capacity.[70]
The extension of section 5 of the Criminal Law (Sexual Offences) Act 1993
to include all forms of unwanted sexual contact rather than limiting the
offence to attempted or actual penetrative acts of sexual intercourse, buggery
and acts of gross indecency between males was also evident from submissions
received.
1.30
The Commission notes
here that, in its 2006 Report on Vulnerable Adults and the Law, the
Commission ultimately concluded that, because that Report was concerned
primarily with reform of the civil law concerning mental capacity, it was not
appropriate to make final recommendations concerning section 5 of the 1993 Act,
which is of course confined to criminal law. This Consultation Paper, against
the background of the general review of the law on sexual offences being
conducted by the Department of Justice and Equality, provides an appropriate
setting within which the Commission can review this area.
1.31
O’Malley, commenting on the need for the criminal law to achieve the
appropriate balance between paternalism and autonomy, stated that section 5:
“may swing the balance too far in the direction of depriving
mentally ill or disabled persons of the right to a sexual life compatible with
their physical, mental and emotional capacities. The policy adopted in s.5 of
the Act of 1993 may be faulted on this ground. Even allowing for the tacit
assumption that prosecutorial discretion will diminish the incidence of ‘hard
cases’, the section fails to reflect the right of persons who are mentally
impaired (to use its own language) to have a sexual life.”[71]
1.32
It is clear that section 5 of the 1993 Act reflects the need to protect
from sexual exploitation and abuse identified in the Commission’s 1990 Report
but that it does not address the competing principle concerning the right to
sexual expression.
1.33
Since the enactment of
section 5 of the Criminal Law (Sexual Offences) 1993 Act, the Commission
has examined in detail the need to reform the civil law aspects of the law on
capacity, culminating in its 2006 Report on Vulnerable Adults and the Law.
The 2006 Report recommended the enactment of mental capacity legislation
that would be comparable to legislation enacted in many other states in recent
decades, and which would be consistent with relevant international human rights
standards, including the rights-based analysis found in the 2006 UN Convention
on the Rights of Persons with Disabilities. The Commission is aware that the
Government is committed to publishing, in early 2012, a Mental Capacity Bill
that is consistent with the 2006 UN Convention.[72]
1.34
The Commission notes
that, in general, research on persons with limited capacity has tended to focus
on consent to make healthcare decisions or testamentary capacity.[73]
Historically, the issue of capacity to consent to sexual relationships has not
featured centrally in the debate on capacity. The limited research that has
been carried out in this area indicates differing approaches in assessing
capacity to consent to sexual activity. A minority of commentators suggest
that, once a person has previously been found capable of giving informed
consent in at least one other area, it is more likely that the person will be
found capable of consenting to sexual contact. The Commission notes, however, that
the more widely accepted view in the literature is to assess capacity on an
“issue-specific” functional basis, which the Commission recommended in its 2006
Report on Vulnerable Adults and the Law should be the basis for
reform of the law in this area.
1.35
In general terms, a
person’s capacity refers to their ability to perform a given task. A person
whose capacity is limited may be capable of making decisions in one area but
may not have the requisite capacity to understand the nature and the
consequences of making a decision in another area or be able to communicate
their decision on the matter. This task-specific or functional approach to
capacity has become the most commonly-used basis for assessing capacity
internationally. In this Part, the Commission discusses the use of the
functional approach against the general background of the classification of
mental disability by the World Health Organization’s (WHO) and its application in Ireland. The
Commission then discusses the functional test of capacity in its legal setting,
including in the context of the law of sexual offences.
1.36
The task-specific,
functional, approach to capacity is reflected in the World Health
Organization’s
internationally-recognised classification system for diseases and related
health problems, ICD-10.[74] Chapter 5 of
the ICD-10 is headed “Mental and Behavioural Disorders” and contains the
sub-chapter “Mental Retardation”[75] (F70-F79)
which, in turn is divided into the following four main headings: “mild mental
retardation” (F70), “moderate mental retardation,” (F71), “severe mental
retardation” (F72), and “profound mental retardation” (F73). As discussed in
the Introduction to this Consultation Paper, the terminology used, “mental
retardation”, is outdated and in Ireland has been replaced by “intellectual
disability”.
1.37
Nonetheless, it is also
clear that the ICD-10 follows a functional approach to assessing capacity.
Thus, the ICD-10 refers to estimation of the degrees of “mental retardation” in
this way:
“Degrees of mental retardation are
conventionally estimated by standardized intelligence tests. These can be
supplemented by scales assessing social adaptation in a given environment.
These measures provide an approximate indication of the degree of mental
retardation. The diagnosis will also depend on the overall assessment of
intellectual functioning by a skilled diagnostician. Intellectual abilities and
social adaptation may change over time, and, however poor, may improve
as a result of training and rehabilitation. Diagnosis should be based on the
current levels of functioning.” (emphasis added)
1.38
The functional approach
to assessing capacity is clearly indicated by the references to “social
adaptation in a given environment”, that this “may change over time” and, in
particular, that any diagnosis of ability or disability “should be based on the
current levels of functioning.”
1.39
ICD-10 also contains
the following discussion of each of the four main headings of “mental
retardation”:
“F70 Mild mental retardation
Approximate IQ range of 50 to 69 (in adults,
mental age from 9 to under 12 years). Likely to result in some learning difficulties
in school. Many adults will be able to work and maintain good social
relationships and contribute to society.
F71 Moderate mental retardation
Approximate IQ range of 35 to 49 (in adults,
mental age from 6 to under 9 years). Likely to result in marked developmental
delays in childhood but most can learn to develop some degree of independence
in self-care and acquire adequate communication and academic skills. Adults
will need varying degrees of support to live and work in the community.
F72 Severe mental retardation
Approximate IQ range of 20 to 34 (in adults,
mental age from 3 to under 6 years). Likely to result in continuous need of
support.
F73 Profound mental retardation
IQ under 20 (in adults, mental age below 3
years). Results in severe limitation in self-care, continence, communication
and mobility.”
1.40
It is clear from this
analysis in the ICD-10 that persons with mild intellectual disability are very
well able to have good social relationships and that persons with moderate
intellectual disability can do so with varying degrees of support, while
persons with severe intellectual disability are likely to be in continuous need
of support. Persons with profound intellectual disability are likely to have
severe limits in terms of their self-care.
1.41
Reflecting the
discussion of terminology in the Introduction to this Consultation Paper, the
Commission reiterates here that it does not consider that the word
“retardation” is an appropriate term to use in Ireland. Nonetheless, the ICD-10
graduated four steps of “mild”, “moderate”, “severe” and “profound” are
accepted in the context of policy development by the Health Research Board.
1.42
In its 2009 Report on
the National Intellectual Disability Database (NIDD),[76]
the Board notes that the 2006
National Disability Survey (NDS) carried out by the Central Statistics Office indicates
that 50,400 people in Ireland have a diagnosed intellectual disability. The NDS
figure includes 14,000 individuals whose main disability
was classified as dyslexia or a specific learning difficulty and 2,500
individuals whose disability was classified as attention deficit disorder.
As a general principle, the Board states that the NIDD registers data only on individuals
with an intellectual disability for whom specialised health services are being
provided or who, following a needs assessment, are considered to require
specialised services in the next five years. As a result, and by contrast with
the NDS figure, there were 26,066 people registered on the
NIDD.[77] In compiling the NIDD, the Board carries out an individual
assessment of each person and uses
the WHO ICD-10 classification system discussed above.[78]
1.43
The Board notes that “almost
everyone with a moderate, severe or profound intellectual disability” is
expected to be included on the NIDD, because they are likely to be in receipt
of or require intellectual disability services. The Board accepts that “the
number of people on the NIDD with a mild intellectual disability may, however,
be underestimated as they are less likely to require specialised intellectual disability
services.”[79] The Board added:
“By contrast, the NDS included all individuals
who defined themselves as having an intellectual disability, regardless of
whether they were in receipt of or required intellectual disability services.”
1.44
Bearing in mind the differences between the figures in the NDS and the
NIDD, the information concerning persons registered in the NIDD is of particular
importance in the context of this Consultation Paper. This is because it
provides detailed indicators of both the prevalence of the ICD-10 categories of
intellectual disability and the living circumstances of the persons involved.
1.45
The Board pointed out that the administrative prevalence rate for “mild
intellectual disability” was 2.04 per 1,000 and the prevalence rate for
“moderate, severe or profound intellectual disability” was 3.65 per 1,000. The
Board noted that there were more males than females at all levels of
intellectual disability, with an overall ratio of 1.30 to 1. The total number
with moderate, severe or profound intellectual disability had increased by 37%
since the first “Census of Mental Handicap in the Republic of Ireland” was
carried out in 1974. The Board noted that one of the factors contributing to
this increase in numbers was the growth in the general population over the
period. Of the people with moderate, severe or profound intellectual
disability, the proportion who were aged 35 years or over increased from 29% in
1974 to 38% in 1996, and to 49% in 2009. This reflected an increase in the
lifespan of people with intellectual disability.
1.46
The Board pointed out that, in
2009, 64% of those registered on the NIDD (16,742 individuals) lived at
home with parents, siblings, relatives
or foster parents. More than one in four people who had a moderate, severe or
profound intellectual disability and who were aged 35 years or over in 2009
lived in a home setting. The Board stated, however, that “formal supervised
living arrangements will need to be provided for an increasing number of adults
with intellectual disability as their carers begin to age beyond their
care-giving capacity.”[80]
1.47
In terms of the increasing move away from the institutional approach to
a community setting, the Board pointed out that, during the period 1996 to
2009, there was an increase of 66% in
the number of people with intellectual disability living full-time in community
group homes, and a 71% reduction in the number of people with intellectual
disability accommodated in psychiatric hospitals. This obviously represents a
significant tangible indication of policy changes in Ireland, and is an
important reflection of international trends in this respect, including the
rights-based approach to be found, for example, in the 2006 UN Convention on
the Rights of Persons With Disabilites.
1.48
The Board also projected that a number of services would be needed in the period 2010–2014, notably
2,298 full-time residential placements, an increase of 42 (or 2%) since 2009
and the highest number since the NIDD was established. The Board noted that the
number of new full-time residential places required has been increasing
consistently following a slight downward trend during the years 2000 to 2002.
The Board also commented that the “demographic profile of people with
intellectual disability in Ireland suggests that the number of new full-time
residential places required is likely to continue to increase over the coming
years as those with a more severe disability and those who care for them
advance in age.”
1.49
Having set out some of the
analysis of the prevalence of and living circumstances of persons with intellectual
disability in Ireland, the Commission turns to discuss the general legal
setting within which intellectual capacity arises.
1.50
Capacity, in the legal
sense, is a threshold requirement for persons to make enforceable decisions for
themselves. Capacity can therefore be described as “the pivotal issue in
balancing the right to autonomy in decision making and the right to protection
from harm.”[81]
1.51
As the Commission has
already noted, its general approach in this Consultation Paper is that the
criminal law concerning sexual offences should, on the one hand, provide for
the legitimate right of all persons to engage in consensual sexual
relationships and, on the other hand, protect people who may not have the
requisite capacity to consent to sexual relations and therefore may be more at
risk of abuse or exploitation.
1.52
The functional,
issue-specific, approach requires that capacity is assessed in the setting in
which the issue arises. It thus rejects the approach that once capacity has
been established in one area it is seen as conclusive proof of capacity in
other areas regardless of the circumstances. Equally importantly, the
functional approach does not accept the view that merely because a person lacks
capacity in one aspect of decision-making they must lack capacity in another
area. In other words, the functional test rejects a “status” approach under
which capacity could be determined on an “all or nothing” basis, in which a
single test could deprive a person of their legal capacity. The status approach
is associated with the current Wards of Court system, regulated under the Lunacy
Regulation (Ireland) Act 1871, which the Commission recommended in its 2006
Report on Vulnerable Adults should be replaced by a statutory framework on
mental capacity based on the functional approach. The functional approach
defines capacity as the ability, with assistance if needed, to understand the
nature and consequences of a decision within the context of the available range
of choices; and to communicate that decision, with assistance as needed.
1.53
As noted by the Commission in its 2006 Report on Vulnerable Adults
and the Law this is a complex area where many different aspects need to be
accommodated. In advocating
the functional “issue-specific” test for assessing capacity to consent to
sexual relations, Stavis noted that “sexual consent is very different from
medical or other types of consent in that no one else can consent [on behalf]
of another to have sexual relations. There is no such thing as surrogate
consent for sexual activity.”[82] The
Commission agrees with this approach, which is consistent with its analysis in
the Report on Vulnerable Adults.
1.54
Regardless of the issue
to be decided, capacity to make a decision can be described as a fluctuating
phenomenon. Since the 19th Century, the common law has applied a
functional approach in assessing capacity to consent in the context of sexual
relationships. That is, an individual may be capable of consenting to some
forms of sexual contact with a certain individual in a particular setting but
not to other forms of sexual contact with the same, or other, individuals in
other settings. There may be differences in capacity depending on the nature of
the relationship between the accused and the complainant, particularly where
the accused is in a relationship of trust or position of authority over the
complainant. Decision-making is contextual and this situational
assessment is one way of striking a balance, amongst others to be
discussed below, between individual self-expression while ensuring that
individuals are not exposed to risk of exploitation and abuse.
1.55
The functional approach in assessing capacity in the criminal context
can be traced to the mid 19th Century when the requirements
of force and lack of will in adjudicating rape cases were replaced by the
concept of consent. The turning point was the case R v Camplin.[83] The accused had made the complainant drunk and
subsequently had sexual intercourse with her. She made a complaint of rape, but
there was no evidence presented of force by the accused. The accused was
convicted. On appeal, the UK House of Lords widened the interpretation of rape
to include instances where intercourse had taken place without the woman’s
consent even though there had been no force, fear or fraud.[84]
This was confirmed in R v Fletcher[85]
which set out the common law position on capacity in the criminal context. In Fletcher,
the defendant was
convicted of the rape of a girl with limited capacity (at that time, referred
to as a girl of “weak intellect”). On appeal, the conviction was upheld on the
basis that the girl was incapable of giving consent due to “a defect in
reasoning”, in other words, an inability to consent by reason of limited
capacity. The Fletcher case therefore established a subjective,
functional, test of capacity to consent to sexual relations. Under this
functional test, a person cannot give a valid consent if he or she is incapable
of understanding the nature of the act to which the consent is apparently
given.
1.56
Section 5 of the Criminal Law (Sexual Offences) Act 1993 and its
predecessor section 4 of the Criminal Law Amendment Act 1935 were, in
effect, a departure from the established common law rule in the Fletcher case
by incorporating a “status based” assessment of capacity to consent to sexual
relations in respect of persons with limited capacity. As a general approach,
the functional test had been applied to the issue of capacity in a criminal law
setting in connection to persons over the age of consent. The same approach
however was not applied to persons whose functional capacity may be affected in
specific instances. This includes girls under the age of 15, as well as those
who in the past were described as “lunatics”, “imbeciles” or “feeble-minded” or
more recently those with a “mental disorder” or “mental handicap”.
1.57
As noted in the Draft Criminal Code and Commentary prepared in
2010 by the Criminal Law Codification Advisory Committee and published in 2011,[86]
consent may be vitiated due to lack of capacity.[87]
The Draft Criminal Code and Commentary notes that two differing
approaches to determining capacity co-exist in Irish law, the common law
subjective, functional test and various statutory objective, status, tests. The
Draft Criminal Code and Commentary points out that under the subjective,
functional, approach a person is considered to lack capacity if he or she, by
reason of some personal characteristic is incapable of consenting to a
particular transaction. It notes that the Oireachtas has created a number of
protective offences, including section 5 of the Criminal Law (Sexual
Offences) Act 1993 and section 3 of the Criminal Law (Sexual Offences)
Act 2006 (statutory rape/defilement of a girl under 15 years), that depart
from the common law position by imposing an objective test of capacity. The
Oireachtas does so by enacting protective offences which apply to categories of
vulnerable individuals and to which consent is not a defence.[88]
1.58
The Draft Criminal Code and Commentary notes that the law
identifies certain groups as being incapable of consenting to a particular act
“regardless of their actual personal capabilities of consenting. The
justification for such legislation is primarily paternalistic in so far as it
affords greater protection to vulnerable groups, such as children or persons
with mental disorders.”[89] Section 5 of
the Criminal Law (Sexual Offences) Act 1993 is an example of how the law
takes such an objective approach to capacity in the criminal context. As such,
both a subjective and objective approach to capacity co-exist. Indeed, as noted
in the Draft Criminal Code Bill this is a well-established aspect of
Irish criminal law and of many other the common law jurisdictions generally.[90]
In the context of people with limited capacity, there may be “ineffective
consent” to the sexual act as a result of an underlying condition which may
impair their capacity to consent. By creating a specific offence it creates a
protective provision for persons whose impairment may be so severe as to negate
their consent if raised as a defence by the accused.
1.59
As noted above, the law concerning sexual relationships involving adults
with limited decision-making ability can be compared with the law applying to
children and adolescents under the age of criminal consent (in Ireland,
currently 17) in that there is a need for a sufficiently protective regime in
order to ensure that the
criminal sanctions can be relied on where there is “ineffective consent”.[91]
The Commission is acutely aware of the sensitivity involved in this area
bearing in mind the immediacy of the legislative response to the decision of
the Supreme Court in CC v
Ireland (No.2),[92]
in which the Court declared unconstitutional section 1(1) of the Criminal
Law Amendment Act 1935. Section 1(1) of the 1935 Act, which dealt with
sexual offences between an adult, that is a person over 17, and a young girl,
that is, under 15,[93] was declared
unconstitutional by the Supreme Court because it did not include a defence of
“honest mistake” as to age.
1.60
The Oireachtas almost
immediately enacted an “honest mistake” defence in these cases in section 2(3)
of the Criminal Law (Sexual Offences) Act 2006. In considering whether
or not the defendant had an honest belief the court must have regard to the
presence or absence of reasonable grounds for holding such a belief which
guarantees that the defendant’s belief will be appraised both subjectively and
objectively. The question as to whether the defence of “honest mistake” should
continue to form part of the law is currently the subject of ongoing debate.[94]
In particular there is considerable debate as to whether, if it were to be
removed, an amendment to the Constitution would be required to provide for
criminal liability where the defendant believed there had been consent. The CC
case highlighted the importance of an offence being appropriately defined
in order to prevent persons escaping punishment for the behaviour which the
offence is designed to penalise.
1.61
In recent years, there
has been a fundamental shift in the discourse on disability, including
capacity, from the traditional medical or individual model which viewed
disability as a physiological deficiency or abnormality towards the social
model which locates disability within society and as a function of potential
and actual material, economic, social and cultural barriers.[95]
The social model also reflects a rights-based approach to disability. This
requires that laws and practices should provide for full and equal enjoyment of
human rights to persons with disabilities on the same basis as any other
person.
1.62
As the Commission noted
in its 2005 Consultation Paper on Capacity there has been a gradual move away
from what may be termed “benign paternalism”.[96]
The approach taken by the Oireachtas in section 5 of the 1993 Act appears to be
consistent with a paternalistic view that people with limited capacity were
considered to have the mind of a child and consequently either incapable of
having sexual desires or needs or, if they did have such desires and needs,
that they should be prevented from expressing them. A second stereotype saw
people with intellectual disabilities as potentially dangerous[97]
in that they would “reproduce excessively and thereby threaten the national
heritage of intelligence”.[98] As such, it
was seen that people with intellectual disabilities required protection from
sex and in turn “society needed to be protected from all the sex that people
with learning disabilities had within them”.[99]
This led to a culture of segregation in the form of institutionalisation in
Europe and/or compulsory sterilisation which was common in the US and
Scandinavia.[100]
1.63
Such stereotypes have
gradually been undermined by a growing recognition that all adults, including
those living with a disability, have a right to sexual expression and
self-determination.[101] With the
advent of normalisation and the growth of the rights movement, expression of
one’s sexuality is now seen as a human rights issue and is considered part of
every-day life for people with disabilities and people without disabilities.
Attention has now turned to ways of empowering people in relation to their
sexuality while at the same time provide protection to people who may not have
the requisite capacity to consent to sexual relations. The National Disability
Authority (NDA) and the Crisis Pregnancy Programme (CPP) have pointed that that
this has also meant that, in Ireland, like other countries with a similar
policy development, there are a growing number of people with intellectual
disabilities who are also parents.[102]
1.64
The advent of
this rights-based perspective has coincided with the emergence of evidence of
high rates of sexual abuse involving people with intellectual disabilities.[103] This has, in turn, triggered the need to look at both empowerment of a
traditionally disenfranchised group to make their own sexual choices while at
the same time provide adequate legal safeguards in the form of sexual offences.
The Commission discusses the issue of abuse involving people with intellectual
disabilities in Chapter 4, below.
1.65
The social model
asserts that the constructed environment has created disabling conditions which
have excluded people with disabilities from participating in society.
Reasonable accommodations are a typical example of how the social model has
corrected the disabling environment. Like the social model, the disability
human rights framework recognises society’s role in constructing disability and
its responsibility to take positive measures to counteract disability-based
exclusion. Unlike the social model, however, the disability human rights model
offers a more inclusive approach in that it maintains that each individual,
regardless of their level of functioning, is entitled to the means necessary to
develop and express his or her individual talent. It seeks to combine both
first and second generation rights in recognising the need for corrective
measures while also realising the need for economic means as vehicles for the
realisation of the first generation rights.
1.66
The 2006 United Nations
Convention on the Rights of Persons with Disabilities (UNCRPD) is an example of
how, for the first time, first and second generation rights have been brought
together in one single human rights instrument.
1.67
In recent years
constitutional case law in Ireland in connection with those with a disability
has resulted in a movement towards a rights-based approach. The case law, which
the Commission discusses briefly below, has led to important legislative
developments with a rights-based approach, notably in the area of educational
needs. These developments are part of a process of change nationally and
internationally in the implementation of the social model of disability which
embraces the notion of a rights-based approach to people with disabilities.
1.68
The recognition in
constitutional case law of the rights of persons with a disability can be seen
in a series of cases relating to the special education needs of persons with
disabilities. In the 1993 High Court decision O’Donoghue v Minister for
Health[104] O’Hanlon J
considered the right to free primary education under Article 42.4 of the
Constitution of Ireland in connection with the plaintiff, a 9 year old boy with
special education needs. O’Hanlon J referred extensively to the enormous
literature on the changing approach to the educational needs of children with a
disability, and the need to ensure equality of access and treatment. O’Hanlon J
cited the following provisions of the 1989 UN Convention on the Rights of the
Child:[105]
“Article 2 –
States Parties shall respect and
ensure the rights set forth in the present Convention to each child within
their jurisdiction without any discrimination of any kind irrespective of the
child's... disability... or other status.
Article 23 –
1. States
Parties recognize that a mentally or physically disabled child should enjoy a
full and decent life, in conditions which ensure dignity, promote self-reliance
and facilitate the child's active participation in the community.
2. States
Parties recognize the right of the disabled child to special care and shall
encourage and ensure the extension, subject to available resources, to the
eligible child... of assistance for which application is made and which is
appropriate to the child's conditions and to the circumstances of the
parents... caring for the child.
3. Recognizing
the special needs of the disabled child, assistance extended in accordance with
paragraph 2 shall be provided free of charge, wherever possible... and shall be
designed to ensure that the disabled child has effective access to and receives
education, training, health care services... in a manner conducive to the
child's achieving the fullest possible social integration and individual
development”.
1.69
In the O’Donoghue case,
O’Hanlon J also cited the 1975 UN General Assembly’s Resolution 3447, or
Declaration on the Rights of Disabled Persons, which was the genesis for what
ultimately became the 2006 UN Convention on the Rights of Persons With
Disabilities, discussed below. O’Hanlon J cited the following provisions of the
1975 UN Resolution:[106]
“3. Disabled persons have the
inherent right to respect for their human dignity. Disabled persons, whatever
the origin, nature and seriousness of their handicaps and disabilities, have
the same fundamental rights as their fellow citizens of the same age, which
implies first and foremost, the right to enjoy a decent life, as normal and as
full as possible.
5. Disabled persons are entitled to the
measures designed to enable them to become as self-reliant as possible.
6. Disabled persons have the right to...
education and other services which will enable them to develop their
capabilities and skills to the maximum and will hasten the process of social
integration and reintegration.”
1.70
On the basis of this
extensive overview of the literature, O’Hanlon J stated:[107]
“[t]here is a
constitutional obligation imposed on the State by the provisions of Article 42,
s.4 of the Constitution to provide for free basic elementary education of all
children and that this involves giving each child such advice, instruction and
teaching as will enable him or her to make the best possible use of his or her
inherent and potential capacities, physical mental and moral, however limited
these capacities may be.” Or, to borrow the language of the [1989]
United Nations Convention [on the Rights of the Child] and [1975] Resolution of
the General Assembly – ‘such education as will be conducive to the child's
achieving the fullest possible social integration and individual development;
such education as will enable the child to develop his or her capabilities and
skills to the maximum and will hasten the process of social integration and
reintegration’.”
1.71
This important judgment
recognises the convergence between the rights-based approach of the
Constitution of Ireland and the rights-based approach of relevant international
conventions in an area where capacity arising from age and mental capacity were
involved at the same time.
1.72
O’Hanlon J’s wide
definition of education in the O’Donoghue case has been relied on in
subsequent special education needs cases[108]
and the O’Donoghue case also ultimately led to the enactment of the Education
for Persons with Special Educational Needs Act 2004. The 2004 Act
acknowledges that a child with a disability has a right to be educated in an
inclusive environment,[109] in a
manner which is appropriate to his or her particular disability[110]
and to have an individual education plan which describes how he or she
is to “participate in and benefit from education.”[111]
1.73
In a wider setting, the
Equal Status Acts 2000 and 2004 aim to ensure that people with
disabilities are not discriminated against in terms of goods and services based
on their disability, whether provided by public sector or private sector
undertakings. The Disability Act 2005[112]
places certain obligations on Governmental Departments and public bodies
concerning accessibility, participation and inclusion.[113]
The 2005 Act incorporates a “needs-approach” and imposes an obligation across
governmental departments to ensure effective service delivery to people with
disabilities. The 2005 Act also established a complaints mechanism and gave the
Office of the Ombudsman a mandate to investigate complaints and ensure
compliance by public bodies with the provisions of the Act. The Citizens
Information Act 2007 established an advocacy service under the auspices of
the Citizens Information Board specifically aimed at people with disabilities.[114]
1.74
Internationally,
the Commission has already noted that the issue of disability was discussed in,
among other documents, the 1975 UN General Assembly Recommendation; and that
this influenced the analysis of the Constitution of Ireland by O’Hanlon J in
the O’Donoghue case. The 1975 Recommendation ultimately led to the 2006 United
Nations Convention on the Rights of Persons with Disabilities, which supports a
global effort to achieve greater progress in this area. In addition the 1950
Council of Europe’s European Convention on Human Rights has had an important
influence in this area. The Commission now turns to discuss the general
influence of a rights-based approach to disability.
1.75
There are two competing
interests in the context of sexual offences and persons with limited capacity.
On the one hand, the criminal law operates to protect from sexual exploitation
people whose capacity is limited. On the other hand, the sanctions
of the criminal law are juxtaposed against the competing need to respect
choices made by such persons. The protection of individuals with a “mental
impairment” lies at the heart of section 5 of the 1993 Act. While it is
recognised that the desired effect of this provision is the protection of
persons whose capacity may be limited from sexual exploitation, it has,
however, failed to strike the appropriate balance with this objective and the
need to protect the rights of such persons to engage in sexual activity.
1.76
The determination of
capacity is inextricably linked to the exercise of the right to autonomy and
self-determination. The Commission has previously highlighted this point in
terms of society’s response in empowering people to make decisions in the civil
law context.[115] To make a
finding of incapacity results in the restriction of one of the most fundamental
rights enshrined in law, the right to autonomy.[116]
In addition, the individual involved may have “to contend with practical
limitations on his or her freedom and the stigmatising effect of being labelled
“incapable”.[117] Section
5 of the 1993 Act ignores the circumstances in which sexual relationships can
consensually occur between persons with limited capacity, thereby failing to
enable such persons exercise their right to self-determination in the context
of their sexuality. In this
Part, the Commission discusses constitutional considerations at the centre of
the debate on the capacity of vulnerable adults to consent to sexual relations.
1.77
Human rights are, in
general, based on a set of norms to which a person is inherently entitled
simply because she or he is a human being. In the specific context of a
person with a disability, a traditional, paternalistic, approach would have
allowed limits to be placed on what would otherwise be a generally available
right. The current model has gradually moved away from this in the form of a
rights-based approach to disability. This model has created a framework in
which the right to make one’s own decisions is not wholly diminished where a
person has limited capacity. The adoption of a rights-based approach to
capacity to consent to sexual relations is grounded in the need to protect the
rights and the conditions which enable adults to act as self-governing agents
where possible even where there is limited capacity. This is reflected in the
widely accepted functional model of capacity.[118]
1.78
The interplay of the
right to autonomy and respect for the equal dignity of all human beings in the
context of adults with limited decision-making capacity has previously been
discussed by the Commission in the context of making healthcare decisions and
testamentary capacity. It is important to give a brief outline here of these
personal rights.
1.79
In the context of capacity, the concept of autonomy is consistent with
the gradual move from a paternalistic model to a more person-centred approach.
This shift can be seen in an emphasis on ability rather than disability. The
fact that an adult has a partial, considerable or even complete lack of
decision-making capacity does not entail a corresponding loss of constitutional
rights on their part.[119] In the
context of legal regulation of sexual conduct autonomy involves placing
emphasis on a person freely choosing to engage in sexual activity. Where a
person has not freely chosen to engage in a sexual act, that person’s autonomy
has been infringed upon, and a wrong has been committed. The fundamental
principle for the law on sexual offences is that any activity that breaches
someone’s sexual autonomy is a wrong which the law must treat as a crime.[120]
1.80
The right to respect for dignity is not specified as a fundamental right
in the Constitution but Articles 40 and 41 are construed in accordance with the
Preamble of the Constitution which states that the objective of the
Constitution is to promote the common good so that the dignity and freedom of
the individual may be assured.[121]
The courts have recognised that the rights to dignity and privacy are
interlinked as the “nature of the right to privacy must be seen as to ensure
the dignity and freedom of an individual.”[122]
In its 2006 Report on Vulnerable Adults the Commission recommended that
the proposed mental capacity legislation include a guiding principle that due
regard be given to a person’s dignity, privacy and autonomy;[123]
which is likely to be incorporated into the proposed mental capacity
legislation.
1.81
Article 40.1 of the Constitution
prohibits invidious or unjustifiable discrimination by the State between
different classes or persons but expressly permits the State in its enactments
to have due regard to differences of capacity. In this respect Article 40.1 is
not absolute.[124] Article
40.1 provides that equality before the law “shall not be held to mean that the
State shall not in its enactments have due regard to differences of capacity,
physical and moral, and of social function”. On this point, O’Byrne J in Re
Clarke[125] upheld an
involuntary psychiatric detention under the Mental Treatment Act 1945
and stated:
“The existence
of mental infirmity is too widespread to be overlooked, and was, no doubt,
present to the mind of the draughtsmen when it was proclaimed in Article 40.1
of the Constitution that, though all citizens, as human beings, are to be held
equal before the law, the State may have regard to difference of capacity,
physical and moral, and of social function.”[126]
1.82
This passage was
referred to by McGuinness J in Gooden v St. Otteran’s Hospital[127]
where she advocated a purposive construction of section 194 of the 1945 Act
which was again endorsed by Kearns J in E.H. v Clinical Director of St.
Vincent’s Hospital.[128]
1.83
Article 8 of the
European Convention on Human Rights, which concerns the right to private and
family life,[129] is central
to the specific aspects of capacity under discussion in this Consultation
Paper. Also of importance are Article 12, which concerns the right to marry and
found a family[130] and
Article 14 which prohibits discrimination in terms of the application of the
rights and freedoms in the Convention.[131]
Although dignity is not referred to explicitly in the Convention, it is
implicit, which was highlighted by the European Court of Human Rights in Pretty
v United Kingdom[132]
where the Court stated that “[t]he very essence of the Convention is respect
for human dignity and human freedom.”[133]
1.84
The 2006 United Nations Convention on the Rights of Persons with
Disabilities (UNCRPD) is the first international legally binding instrument
that sets down minimum standards for the protection and safeguarding of the
civil, political, social, economic and cultural rights of persons with
disabilities throughout the world. As
already mentioned, its uniqueness lies in it being the first human rights
treaty which incorporates both first and second generation rights. On 23
December 2010 the EU ratified the UNCRPD and following this the UNCRPD became a
legally binding instrument for the EU on 22 January 2011.[134] Ireland was
one of the first countries to sign the UNCRD when it opened for signature in
2007. Ireland has not yet ratified the Convention and has not yet signed the
Optional Protocol to the Convention on the Rights of Persons with Disabilities.
The State adheres to the approach that it should not ratify international
treaties until such time as that it is considered that domestic laws are in
general conformity with its provisions. In 2007 a Governmental
High-Level and Cross-Departmental Implementation Group was established whose
role is to advise the Government on any amendments necessary to the National
Disability Strategy, which will be the main mechanism for the implementation of
the UNCRPD, in order to facilitate ratification.
1.85
Quinn notes that agreeing on a definition of disability for the purposes
of the Convention was contentious with the result that “disability” is broadly
defined and open-ended.[135] The
Convention applies to those who have long-term physical, mental, intellectual
or sensory impairments which subsequently may hinder their full and effective
participation in society. This is in line with the Preamble to the Convention
which recognises disability as an “evolving concept and that disability results
from the interaction between persons with impairments and attitudinal and
environmental barriers that hinder their full and effective participation in
society on an equal basis with others.” The Convention perceives disability as
a social phenomenon which encompasses persons with a wide range of impairments
(physical, sensory, mental and intellectual) and considers various types of
barriers (legal, physical, attitudinal and others) that persons with such
impairments may face in the enjoyment of their human rights.[136]
In stressing the need that national legislation must reflect an understanding
of disability as a social construct in order to achieve full and effective
implementation of the Convention, the Office of the UN High Commissioner for
Human Rights advises that medically-based definitions or definitions that are
based on an incapacity due to an impairment to carry out daily life activities
should be repealed.[137]
1.86
Traditionally people
with disabilities tended to be treated not as rights holders but rather as
objects. This notion is best exemplified in the highly restrictive laws on
legal capacity. As Quinn notes “full legal capacity is the key to making
decisions for oneself. Having it withdrawn enables others to make those
decisions and effectively direct one’s personal destiny.”[138]
As noted by the Office of the High Commissioner for Human Rights:
“[a]rticle 12
of the Convention requires States parties to recognize persons with
disabilities as individuals before the law, possessing legal capacity,
including capacity to act, on an equal basis with others. Article 12,
paragraphs 3 and 4, requires States to provide access by persons with
disabilities to the support they might require in exercising their legal
capacity and establish appropriate and effective safeguards against the abuse
of such support. The centrality of this article in the structure of the
Convention and its instrumental value in the achievement of numerous other
rights should be highlighted. Article 16, paragraph 1, of the International
Covenant on Civil and Political Rights already requires the recognition of
legal personality of persons with disabilities. The implementation of the
obligations contained in article 12, paragraphs 2,3,4 and 5, of the Convention
on the Rights of Persons with Disabilities, on the other hand, requires a
thorough review of both civil as well as criminal legislation containing
elements of legal competence.”
1.87
It is accepted that there is a significant amount of legislative reform
necessary in Ireland before this ratification can occur. In particular, there
is a need to introduce capacity legislation in order for Irish law to comply
with Article 12 of the Convention which sets out equal recognition of persons
with disabilities before the law. Article 12 makes clear that there is no legal contradiction in providing
a person with decision-making support while maintaining their full legal
capacity. This article represents an important breakthrough in advancing the
self-determination and equality rights of people with disabilities. The Government has indicated its
intention to ratify the Convention as quickly as possible and the proposed
enactment of mental capacity legislation will enable the State to meets its
obligations under the UN Convention, insofar as it relates to legal capacity
issues.[139]
1.88
The functional approach
is given clear expression in Article 12 of the Convention as well as evolving
jurisprudence from the European Court of Human Rights[140]
and in the development of soft law at European level, including a number of
Recommendations by the Committee of Ministers.[141]
1.89
The Commission has noted that, if the matter arose for consideration,
section 5 of the Criminal Law (Sexual Offences) Act 1993 may be
considered to be in breach of Article 8 of the European Convention on Human
Rights (ECHR) by disproportionately interfering with a person’s right to
respect for their private life thereby not falling within the State’s narrow
“margin of appreciation”.[142] In
particular, the Commission has noted that the ECHR has held, in finding the
criminalisation of consensual homosexual acts to be in breach of Article 8,
that a practice of non-enforcement by the national authorities was not
sufficient to prevent the law from being held incompatible.[143]
1.90
The right to engage in sexual activity may be considered implicit in the
constitutional right to privacy and under Article 8 of the ECHR. The right
includes “to a certain degree the right to establish and to develop
relationships with other human beings, especially in the emotional field for
the development and fulfilment of one’s own personality.”[144]
As noted above, this wider appreciation of the right to privacy has led, in
particular, to laws criminalising private homosexual conduct between adults[145] being found to be contrary to Article 8,[146]
because they concerned “a most intimate aspect of private life”.[147]
O’Malley has cautioned[148] that in
applying section 5 of the 1993 Act the courts must interpret it in line with
the fundamental rights guaranteed expressly or implicitly by the Constitution
including the right to marry,[149]
the right to privacy[150] and the
right to have children.[151] Any
protective criminal legislation will need to recognise the right to private
life under Article 8 and interference with the exercise of this right would
have to be justified if in accordance with the law it is “necessary in a
democratic society… for the protection of health and morals, or for the
protection of the rights and freedoms of others.”
2
2.01
In this Chapter, the Commission discusses the convergence of the
civil and criminal law in assessing capacity to consent to sexual
relationships. This includes discussion of this convergence in the case law
developed in England and Wales in the wake of the enactment of reform of its
law on sexual offences in 2003 and the enactment of modern mental capacity
legislation in 2005. In the context of civil law determinations as to capacity,[152]
which in general concern cases on the capacity to marry, while there is no
uniform approach in determining capacity to consent to sexual relations, there
is an implicit right that individuals with limited capacity can lawfully engage
in sexual relationships.[153] This right
may be compromised, however, by the criminal law which, as for example under
section 5 of the Criminal Law (Sexual Offences) Act 1993, creates
offences that may have the effect of limiting the exercise of any perceived
rights granted by virtue of the civil law approach while aiming to protect
people from sexual exploitation.
2.02
As already noted in
Chapter 1, under the common law’s 19th century Fletcher rule,
a person cannot give a valid consent if he or she is incapable of
understanding the nature of the act to which the consent is apparently given.
Section 5 of the Criminal Law (Sexual Offences) Act 1993 and its
predecessor, section 4 of the Criminal Law Amendment Act 1935 were
effectively a departure from the established common law rule by incorporating a
status based assessment of capacity to consent to sexual relations in respect
of persons with limited capacity.
2.03
Currently, the common law presumption of capacity exits unless the
issue of an individual’s capacity is called into question. As Inclusion Ireland
noted in 2003, the assessment of a person’s sexual consent capacity, which
encompasses similar issues when assessing legal capacity in general, focuses on
6 areas when making a determination. The test looks at: (i) the ability to
absorb relevant sexual information; (ii) whether there is an understanding of
the information; (iii) an ability to evaluate critically different relevant
considerations, including different advice; (iv) understanding explanations of
the nature of decisions to be taken; (v) understanding the consequences of the
decision to be taken when it is explained and (vi) an ability to communicate a
decision to engage or not engage in various sexual behaviours.[154]
2.04
The issue of consent distinguishes between when sexual activity becomes
a criminal act or a protected right of the individual. A sexual offence
concerning adults can only be established where a lack of consent by the victim
can be proved by the prosecution beyond reasonable doubt. The lack of consent
can often be particularly difficult to prove where adults with limited capacity
are concerned.[155] The
judgment of the Supreme Court of Victoria in R v Morgan[156] has been useful in developing a threshold in determining
capacity to consent.[157] According
to this test a person has the capacity to consent unless they do not have
sufficient knowledge to understand either that sex may involve physical
penetration of the body or that penetration is an act of sexual connection, as
distinct from an act of a totally different character.[158]
2.05
The challenge is to determine the extent to which adults with limited
capacity have a sufficient level of knowledge or understanding in order to make
sexually related decisions. Generally, it is a question of fact which is
determined “in accordance with the ordinary meaning of the word ‘consent’ on
the basis of common sense and experience.”[159]
What can be a straightforward determination is compounded, however, by the
considerable degrees of capacity amongst persons with a “mental impairment” who
have reached the age of consent[160]
but who may not be capable of giving consent. In such situations, the degree of
impairment may act as a barrier to understanding the nature of the sexual act
and, therefore, an obstacle to giving an effective consent. The individual’s
vulnerability might also add an additional layer of complexity in making a
determination as it may be possible to coerce a person with limited capacity
“into having a sexual relationship without having to use threats of a degree
which would be sufficient to sustain a rape charge.”[161]
For this reason the State, through its criminal law, has a compelling interest
in protecting people with limited capacity from harm. Indeed, failure to fulfil
this positive obligation could be a breach of the ECHR.[162]
2.06
Recent English case law has seen the convergence of both the civil and
criminal context in assessing capacity.[163]
As already mentioned the diagnostic or medical approach was previously used in
making an assessment of capacity to consent to sexual relations. The assessment
of capacity from a functional approach can be seen as a “substantive step
forward in terms of progressing the agenda for a meaningful approach” to
assessing capacity of persons with limited capacity to sexual activity and
which can be equally applied in both the criminal and civil law.[164]
2.07
Section 5 of the Criminal Law (Sexual Offences) Act 1993 provides
a defence to the accused to the offences therein where the accused is married
to the victim or where the accused has reasonable cause to believe he is
married to the victim. In addition to the question of reform of section 5 in
general, a question arises as to whether this blanket exemption remains valid.
In this respect, the English courts have recently examined the capacity
question in the context of marriage and people with limited decision-making
ability.
2.08
In this Part, the Commission examines the legal test in determining
capacity to marry and how the English courts have revisited this test in light
of an individual’s capacity to consent to sexual relations.
2.09
As noted by the Commission in its Consultation Paper on Capacity[165] the classic common law statement of the nature of the
contract of marriage is that of Lord Penzance in Hyde v Hyde[166] where he described it as “the voluntary and permanent
union of one man and one woman to the exclusion of all others for life.”[167]
Legally, marriage is a civil contract which created reciprocal rights and
duties between the parties and which established a status which is constitutionally
protected by Article 41.3.1° of the Constitution.[168]
Once solemnised, a marriage is presumed valid until the contrary is
established.[169] In
Ireland, a right to marry has been recognised as one of the unenumerated
personal rights under Article 40.3.1° of the Constitution[170]
although it has not been considered an absolute right.[171]
2.10
The contract of marriage is essentially a simple one, which does not
require a high degree of understanding however it is not sufficient that a
person’s understanding only extends to participating in a marriage ceremony. Traditionally
the courts have established a low threshold for determining capacity to marry.[172]
As Hannen P observed in Durham v Durham,[173] “the contract of marriage is a very simple one, which
does not require a high degree of intelligence to comprehend.”[174]
2.11
In Ireland, the formalities (including the required age) in relation to
marriage are set out in statute[175]
while the issue of capacity to marry remains a matter of common law.
2.12
Apart from observing
the necessary formalities required to effect a valid marriage, the free consent
of both parties is a prerequisite to a valid marriage. As well as requiring an
exercise of independent will, ‘informed consent’ means that each party must
have an understanding of the nature and responsibilities of marriage at the time
of marriage otherwise the marriage is void. In certain circumstances an adult
with limited decision-making ability may not be in a position to give informed
consent to marriage. The onus of proving that a person did not understand or
was incapable of understanding the nature and consequences of the marriage
ceremony rests on the person asserting this.[176]
Under common law there is a presumption that all persons, once they have met
the age requirement, have the capacity to marry.
2.13
In relation to the question of whether the person has capacity to
marry the relevant law was set out by Singleton LJ in In Re Park[177] that the question is whether the person was:
“capable of understanding the nature of the contract into which
he was entering, or was his mental condition such that he was incapable of
understanding it? To ascertain the nature of the contract of marriage a man
must be mentally capable of appreciating that it involves the responsibilities
normally attaching to marriage. Without that degree of mentality, it cannot be
said that he understands the nature of the contract.”[178]
2.14
The English case Sheffield City Council v E and S[179]
sets down the test to determine whether a person has capacity to marry or enter
into a civil partnership under English law. In this case, a declaration was
sought by a local authority to prevent a young lady ‘E’ with spina bifida and
an alleged mental age of 13 from marrying or associating with ‘S’ who had a
history of sexual violent crimes. A preliminary issue arose as to the correct
test to be employed in assessing capacity to marry.
2.15
The Court summarised the test for assessing capacity to marry in
four propositions:
2.16
There are two requirements which need to be fulfilled; namely (a) does
the person understand the nature of the marriage contract? and (b) does the
person understand the nature and responsibilities that normally attach to
marriage?[181] Munby J
stated:
“”[u]nderstanding” a problem, so as to have the capacity to decide what to do about
it, requires on this approach, the mental ability: (i) to recognise the
problem; (ii) to obtain, receive, take in, comprehend and retain information
relevant to the problem and its solution; (iii) to believe that information;
and (iv) to weigh (evaluate) that information in the balance so as to arrive at
a solution (decision).”[182]
2.17
As such a question arose as to whether the appropriate test for
assessing E’s capacity to marry was (a) whether E was capable of understanding
the nature of a marriage contract generally; or (b) whether E had the capacity
to understand the responsibilities created by marriage. Mr. Justice Munby
concluded that the question is not whether a person has capacity to marry X
rather than Y. Rather, the relevant question is whether the person has capacity
to marry. If the person does, it is not necessary to show that she also has
capacity to take care of her own person and property. Munby J went on to note
that the question of whether a person has capacity to marry is quite distinct
from the question of whether it is in the person’s best interests to marry; at
all, or wise to marry X rather than Y. Munby J stated that the essence of a
contract of marriage is:
“an agreement between husband and wife to live together, and to
love one another as husband and wife, to the exclusion of all others. It
creates a relationship of mutual and reciprocal obligations, typically involving
the sharing of a common home and a common domestic life and the right to enjoy
each other’s society, comfort and assistance.”[183]
2.18
In terms of policy, Munby J noted that:
“[t]here are many people in our society who may be of limited or
borderline capacity but whose lives are immensely enriched by marriage. We must
be careful not to set the test of capacity to marry too high, lest it operate
as an unfair, unnecessary and indeed discriminatory bar against the mentally
disabled.”[184]
2.19
The Court rejected a submission that capacity should be assessed in
relation to the particular marriage proposal in question. Rather, in assessing
a person’s capacity to marry, the Court held that it is not concerned with the
wisdom of their marrying in general nor with the wisdom of marrying the
particular person contemplated. The Court held that:
“[t]he implications for A of choosing to marry B rather than C
may be immense. B may be a loving pauper and C a wife-beating millionaire. But
this has nothing to do with the nature of the contract of marriage into which A
has chosen to enter. Whether A marries B or marries C, the contract is the
same, its nature is the same, and its legal consequences are the same. The
emotional, social, financial and other implications for A may be very different
but the nature of the contract is precisely the same in both cases.”[185]
2.20
In its 2006 Report on Vulnerable Adults and the Law the
Commission recommended that the law on capacity to marry would continue to be
governed by the common law and that the proposed mental capacity legislation
would specifically exclude the law relating to capacity to marry in relation to
the test of capacity. The Commission also recommended that it should, however,
also be provided that a presumption of capacity will operate in relation to
capacity to marry.[186]
2.21
Apart from requiring an exercise of independent will, “full and free”
consent means that each party must have an understanding of the nature and
responsibilities of marriage at the time the contract is entered into.
Otherwise the marriage is void.[187]
Capacity to marry is therefore assessed in an issue-specific or functional
manner. As already mentioned, capacity is presumed unless proven otherwise[188]
therefore the onus of proving that a person did not understand or was incapable
of understanding the nature and consequences of the marriage ceremony rests on
the person asserting this.[189]
2.22
The English courts have revisited the question of capacity which has
crystallised the issue of sexual relations within the legal test of capacity to
marry. In this respect the courts have advocated that given the nature of marriage, capacity to
consent to marriage will normally require the capacity to consent to sexual
relations.
2.23
In order to ensure that marriage is not a blanket invitation to
sexual relations between spouses regardless of capacity,[190]
Munby J, in X City Council v MB, NB and MAB[191]
held that capacity to marry must generally include the capacity to consent to
sexual relations. In doing so Munby J endorsed the test for determining consent
set out by the Supreme Court of Victoria in R v Morgan[192]
and stated that:
“[t]he question is whether a woman (or man) lacks the capacity
to understand the nature and character of the act. Crucially, the question is
whether she (or he) lacks the capacity to understand the sexual nature of the
act. Her knowledge and understanding need not be complete or sophisticated. It is
enough that she has sufficient rudimentary knowledge of what the act comprises
and of its sexual character to enable her to decide whether to give or withhold
consent.”[193]
2.24
While agreeing with the requirement of understanding laid down by Morgan
Munby J noted however that the position of whether an individual has capacity
to consent to sexual relations in England and Wales must be considered in the
context of the Sexual Offences Act 2003. In order to have the requisite
capacity to consent to sexual relations the 2003 Act requires an individual to
have an understanding of the reasonably foreseeable consequences of the act as
well as an understanding of the nature of the act.
2.25
The decision to apply the same test by Munby J was underpinned by the
fact that a sexual relationship is usually implicit in marriage and without
capacity to consent to sexual relations the parties to a marriage run the risk
of committing serious criminal offences under the English Sexual Offences
Act 2003. The conclusion reached in X City Council saw the merging
of the two issues of capacity to consent to marriage and capacity to consent to
sexual relations. Accordingly, the following question must be asked:
“[d]oes the person have sufficient knowledge and understanding
of the nature and character - the sexual nature and character - of the act of
sexual intercourse, and of the reasonably foreseeable consequences of sexual
intercourse, to have the capacity to choose whether or not to engage in it, the
capacity to decide whether to give or withhold consent to sexual intercourse
(and, where relevant, to communicate their choice to their spouse)?”[194]
2.26
The approach taken by Munby J in this case shows that a “rudimentary
knowledge”[195] of the
sexual act is all that is required to prove capacity to consent to sexual
relations. This would include the capacity to choose whether to agree to the
touching whether because the individual lacks sufficient understanding of the
nature of the act and the capacity to understand the reasonably foreseeable
consequences of what is being done, or for any other reason, or is unable to
communicate such a choice.
2.27
The English case KC,
NNC v City of Westminster Social and Community Services & Anor[196]
involved an individual ‘IC’ who has a severe impairment of intellectual
functioning and autism with skills expected of a three year old child. Thorpe J
held that:
“physical intimacy is an ordinary consequence of a celebration
of a marriage. Were IC’s parents to permit or encourage sexual intercourse
between IC and NK, NK would be guilty of the crime of rape under the provisions
of the Sexual Offences Act 2003. Physical intimacy that stops short of
penetrative sex would constitute the crime of indecent assault under that
statute.”[197]
2.28
The marriage was held void under English law since IC did not have the
sufficient capacity to consent to sexual relations which was seen as
determining her ability to consent to the marriage contract.
2.29
The analysis employed by Munby J in X City Council was applied in
In the matter of MM[198] where
Munby J found the determination of capacity to consent to sexual relations to
be issue-specific. He noted that:
“someone who may have capacity to consent to sexual relations
whilst lacking capacity to decide more complex questions about long-term
relationships. There is… no necessary dissonance between the lack of capacity
to consent to contact and capacity to sexual relations. The former is a
potentially complex concept involving a range of considerations arising in the
context of a potentially wide variety of situations, for example, from having a
cup of tea with someone to going away with them on holiday, whilst the latter
is often, and of its very nature, much less complex.”[199]
2.30
As regards policy, Munby J stated that:
“there are sound reasons of policy why the civil law and the
criminal law should in this respect be the same, why the law should, as it were,
speak with one voice and why there should not be any inconsistency of approach
as between the criminal law and the civil law. In this context both the
criminal law and the civil law serve the same important function: to protect
the vulnerable from abuse and exploitation… Viewed from this perspective, X
either has capacity to consent to sexual intercourse or she does not. It cannot
depend upon the forensic context in which the question arises, for otherwise,
it might be thought the law would be brought into disrepute.”[200]
2.31
The UK House of Lords (in one of its last decisions in 2009 before being
replaced by the UK Supreme Court) endorsed the functional approach in R v
Cooper.[201] The
English Court of Appeal had overturned the defendant’s conviction on the
grounds that “a lack of capacity to choose to agree to sexual activity could
not be ‘person specific’ or ‘situation specific’.”[202]
The UK House of Lords rejected this analysis on the basis that:
“it is difficult to think of an activity which is more person
and situation specific than sexual relations. One does not consent to sex in
general. One consents to this act of sex with this person at this time and in
this place. Autonomy entails the freedom and the capacity to make a choice of
whether or not to do so. This is entirely consistent with the respect for
autonomy in matters of private life which is guaranteed by art 8 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950.”[203]
2.32
The UK House of Lords also described the potentially fluctuating nature
of capacity, recognising that a person may have sufficient understanding to
consent on one particular day but not on another because of the variations in
one’s mental state associated with a mental disability. It was noted that:
“[t]he complainant here, even in her agitated and aroused state,
might have been quite capable of deciding whether or not to have sexual
intercourse with a person who had not put her in the vulnerable and terrifying
situation in which she found herself…The question is whether, in the state that
she was in that day, she was capable of choosing whether to agree to the
touching demanded of her by the defendant.”[204]
2.33
Similarly, in D. County Council v LS[205] Wood J stated that:
“there should in principle be a significant degree of conformity
in the tests relevant to establishing capacity in both the civil and the
criminal courts, although it may be conceivable that there is room for some
differentiation depending on the particular circumstances. For obvious reasons,
it would be highly undesirable to have totally inconsistent and/or
significantly incompatible approaches between the two jurisdictions.”[206]
2.34
In the 2011 High Court decision, D Borough Council v AB,[207]
D Borough Council applied for a declaration that the respondent, ‘AB’, lacked
capacity to consent to sexual relations and an order restricting contact
between AB and his partner. The case concerned AB, who had a moderate learning
disability and had developed a homosexual relationship with a fellow service
user, ‘K’. There was no evidence of an exploitative relationship, but the local
authority had in addition been alerted to two incidents in which members of the
public had raised concerns about AB’s behaviour in public. The local authority
sought a declaration that AB did not have capacity to consent to sexual
relations and that his sexual contact with K should end.
2.35
The relevant test had
been questioned in obiter comments by Baroness Hale of Richmond in R v
Cooper.[208] The
expert in Cooper proposed a test for capacity based on understanding the
following six factors:
2.36
The expert’s advice was
that the man should not be offered sex-education, as this would create
confusion and anxiety. The Official Solicitor reported to the court, however,
that it was the man’s wishes to have sexual relations again. The judge rejected
the above test and the local authority’s submission that the personality and
characteristics of the sexual partner were relevant factors. The judge adopted
the approach set out by Munby J in both X City Council v MB, NB and MAB (By
His Litigation Friend the Official Solicitor)[209]
and Re MM, Local Authority X v MM (By the Official Solicitor) and KM,[210]
that consent to sexual relations is act-specific, not person- or
situation-specific. The judge concluded that the only information relevant to
giving consent which the person must understand and retain is (a) the mechanics
of the act, (b) that there are health risks involved including sexually
transmitted infections, and (c) for heterosexual relations only, that sex may
result in pregnancy.
2.37
The judge found that AB
lacked capacity because he had a very limited and a faulty understanding of
sexually transmitted infections, believing that sex could give you spots or
measles. The court, in making an interim declaration that at that time AB did
not have the capacity to consent to and engage in sexual relations. However,
the judge refused to make a final declaration and made several consequential
orders, including an order for the provision of sex education.
2.38
The Court of
Protection, in deciding whether AB, had capacity to consent, referred to the
decisions of Munby J already discussed on the determination of capacity to
consent to sexual relations prior to the coming into force of the Mental Capacity Act 2005.[211]
Mostyn J drew on two analogies in D Borough Council. Firstly,
following Munby J in Re E, he compared sexual consent to consenting to
marriage.[212] Mostyn J
said that:
“it can be seen that the test of capacity to marry must be very
closely related to the test of capacity to consent to sexual relations. And it
would be a very strange thing if the latter were set higher than the former,
for it would be an absurd state of affairs if a person had just sufficient
intelligence to consent to marriage but insufficient capacity to consent to its
(generally speaking) intrinsic component of consummation.”[213]
2.39
The second analogy given by Mostyn J as being closely related to
capacity to consent to sexual activity is the capacity of a girl under 16 to
give consent to medical treatment in the form of prescribing contraception. In Gillick
v West Norfolk and Wisbech Area Health Authority[214] the UK House of Lords held that a girl under 16 could
validly consent to contraception “provided that she has sufficient
understanding and intelligence to know what they involve.”[215]
As such, all that is required for consent is ‘sufficient rudimentary knowledge’
to enable them to decide whether to give or withhold consent.[216]
Recent court decisions, as mentioned above, had concluded that capacity to
consent to sexual relations was act rather than partner specific. In other
words, the court would have regard for the specific act rather than the sexual
partner. Mostyn J went on to note that the English Mental Capacity Act 2005 had
no bearing on the test for consent as laid out by Munby J in Re E; MAB
and MM. Moreover, he rejected Baroness Hale’s doubts in Cooper that
consent could truly be act specific. Mostyn J concluded that the capacity to
consent to sex remains act-specific and requires an understanding and awareness
of the mechanics of the act; that there are health risks involved, in
particular the acquisition of sexually transmitted and sexually transmittible
infections and that sex between a man and a woman may result in pregnancy.[217]
Mostyn J concluded by stating that a situation such as capacity to consent to
sexual relations must be subject to a similar threshold as significant harm in
the context of children where the state seeks to intervene and which is
implicit under section 1(3) of the English Mental Capacity Act 2005.
Finally, Mostyn J ordered that the local authority provide the subject of the
proceedings sex education in line with the obligation under the Mental
Capacity Act 2005 that a person should not be treated as unable to make a
decision unless all practicable steps are made to assist that person in making
a decision.
2.40
The leading English
decisions on capacity to consent to sexual relations, X City Council v MB,
NB and MAB[218] and
Re MM; Local Authority X v MM (By the Official Solicitor) and KM[219]
set out an issue specific test for capacity to consent to sexual relations,
by analogy with capacity to marry and capacity to consent to contraception.
Both cases, however, were decided before the English Mental Capacity Act
2005 came into force.
2.41
Commentators have
cautioned that D Borough Council v AB should not be adopted as a test
case for future deliberations on capacity to consent to sexual relations. The
case was not concerned with exploitation and the reasons for proposing a
person- and situation-specific test were far from clear. As noted by Cole:
“[o]ne of the
difficulties with cases on capacity to consent to sexual relations is that the
particular circumstances of the individual concerned[ed] necessarily limit the
scope of the court’s deliberations - decisions are made in the absence of
sufficient information about the circumstances in which the test may need to be
applied. Thus, in this case, the lowest degree of knowledge possible was found
to be needed to consent to sex. Had, for example, the judge been considering
heterosexual relations, he may well have concluded that understanding not just
the risk of becoming pregnant but that pregnancy itself may carry risks, was
necessary. Had, for example, there been an exploitative relationship, the judge
may have been more inclined to prefer a test that does not impose a blanket ban
on sexual relations, but only within an exploitative relationship.”[220]
2.42
It is clear from this discussion that, in the wake of the enactment
of the English Sexual Offences Act 2003 and the English Mental
Capacity Act 2005 the English courts have found it necessary to re-examine
their approach to assessing capacity to consent to sexual relationships. As a
result, there has been a marked convergence between the civil law and criminal
law determinations as to capacity. Consistently with the presumption of
capacity in the English 2005 Act, which is also likely to form a central part
of the proposed mental capacity legislation in Ireland, there is an implicit
recognition that individuals with intellectual disability or limited capacity
can lawfully engage in sexual relationships. This right may be compromised,
however, by the criminal law which, as for example under section 5 of the Criminal
Law (Sexual Offences) Act 1993, creates offences that may have the effect
of limiting the exercise of any perceived rights granted by virtue of the civil
law approach while aiming to protect people from sexual exploitation.
2.43
The Commission considers that, having regard to these developments
in English law, which is likely to mirror proposed developments in Irish law,
the same functional test for assessing capacity to marry in the civil law
should apply to assessing capacity to consent to sexual relations in the
criminal law. The Commission, therefore, provisionally recommends that the same
functional approach to capacity be taken in respect of assessing capacity to
marry in the civil law and capacity to consent to sexual relations in the
criminal law. The Commission also provisionally recommends that capacity to
marry should generally include capacity to consent to sexual relations.
Furthermore, the Commission also provisionally recommends that, consistently
with the functional approach, capacity to consent to sexual relations should be
regarded as act-specific rather than person-specific.
2.44
The Commission provisionally recommends that the same functional
approach to capacity be taken in respect of assessing capacity to marry in the
civil law and capacity to consent to sexual relations in the criminal law. The
Commission also provisionally recommends that capacity to marry should
generally include capacity to consent to sexual relations. The Commission also
provisionally recommends that, consistently with the functional approach,
capacity to consent to sexual relations should be regarded as act-specific
rather than person-specific.
3
3.01
This Consultation Paper is concerned primarily with reform proposals in
the context of capacity to consent to sexual relations by persons with limited
decision-making ability. Nonetheless, the Commission considers it is important
to highlight briefly the related issues of reproductive and parental rights of
persons with intellectual disability. In Part B, the Commission examines the
historical approach which has framed section 5 of the Criminal Law (Sexual
Offences) Act 1993. In Part C, the Commission considers the related policy
issue of parental rights in
the context of constitutional and international standards. Finally, in Part D,
the Commission discusses the range of supports for parents with disabilities.
3.02
Historically, negative
and repressive attitudes towards the sexual expression of people with
disabilities resulted in their reproductive freedom being the subject of
control by society. This was a result of false beliefs held by negative
societal assumptions and attitudes regarding their potential criminality,
promiscuous behaviour and sexual perversion and deviance. Well into the 20th
century, the consequences of such prejudice and sexual stigmatisation led to
the practice of selective breeding or eugenics, spurred by the eugenics
movement,[221] which
remained influential from the late 19th century to the mid 20th
century.
3.03
Women’s sexual and reproductive
rights were particularly controlled and violated by the eugenics movement
through measures such as involuntary sterilisation; forced abortion; sex
segregation by placing women in institutions; over-use of long-acting
contraceptives; and the loss of custody of their children. These practices were
justified on the premise that women with disabilities were a threat that had to
be ‘controlled’; that they were unable to give informed consent, unable to
parent and that they would give birth to children with disabilities.
3.04
The US Supreme Court
decision in 1927 in Buck v Bell[222]
indicated the continuing influence of the eugenics movement well into the 1920s
and 1930s. The US Supreme Court upheld the constitutionality of a Virginia Act
permitting eugenical sterilisation of persons with disabilities. The decision
of the Court in Buck v Bell contained the following (now-embarrassing)
comments of the otherwise liberal-minded Holmes J that:
“[i]t would be
strange if [the public welfare] could not call upon those who already sap the
strength of the State… in order to prevent our being swamped with incompetence.
It is better for all the world, if instead of waiting to execute degenerate
offspring for crime, or to let them starve for their imbecility, society can
prevent those who are manifestly unfit from continuing their kind. The
principle that sustains compulsory vaccination is broad enough to cover cutting
the fallopian tubes. Three generations of imbeciles are enough.”[223]
3.05
The Eugenics Movement
became notorious when the medical experiments associated with the Nazi regime
of World War II (1939-1945) came to light, and its views were ultimately
largely abandoned. Some aspects of eugenics, such as sterilisation for
non-therapeutic purposes, continued for some years in many countries and it was
only towards the end of the 20th century that courts began to take a
more rights-centred view. In the leading Canadian case on sterilisation of the
1980s, Re Eve[224],
the Supreme Court of Canada decided that the court’s common law power to
intervene to protect vulnerable or “at risk” adults with intellectual disability
(its parens patriae jurisdiction) did not include a power to authorise
sterilisation for non-therapeutic purposes. The Court was asked to consent to a
mother’s application for a sterilisation operation for her daughter who had
(using the WHO classification discussed in Chapter 1) a mild to moderate
intellectual disability. The reason the operation was sought was to prevent
pregnancy rather than any medical necessity. Delivering the unanimous decision
of the Canadian Supreme Court, La Forest J stated:[225]
“The grave
intrusion on a person’s rights and the certain physical damage that ensues from
non-therapeutic sterilisation without consent, when compared to the highly
questionable advantages that can result from it, have persuaded me that it can
never safely be determined that such a procedure is for the benefit of that
person. Accordingly, the procedure should never be authorised for
non-therapeutic purposes under the parens patriae jurisdiction.”
3.06
Accordingly, taking
this rights-based approach the Court refused the application for consent to
sterilisation. The comparable leading English decisions of recent years have
tended to focus on whether sterilisation is in the ‘best interests’ of the
person involved.[226]
3.07
In its 1990 Report
on Sexual Offences against the Mentally Handicapped[227]
the Commission commented that, if the issue of non-consensual sterilisation
arose for judicial consideration in Ireland, it seems probable that the
approach taken by the Canadian Supreme Court in Re Eve[228]
would be applied. The Commission has previously noted that it has since
been argued that a consideration of whether sterilisation is in the best
interests of an individual would not be sufficient given the existence of the
individual’s underlying constitutional rights.[229]
In Ireland, the right to have children has been recognised in a marital context
as one of the unenumerated rights guaranteed by Article 40 of the Constitution
as being essential to the human condition and personal dignity.[230]
A person who has the capacity to marry or capacity to consent to sexual
relations, and who retains that capacity, has the capacity to consent to or
refuse sterilisation. A wider right to reproduce has not yet been judicially
recognised in Irish constitutional law. In addition, the constitutional right
to bodily integrity and the right to family life and privacy in Article 8 of
the European Convention on Human Rights (ECHR) are relevant in this context. Furthermore,
in certain circumstances non-consensual sterilisation may constitute, under
civil law, a trespass against the person and, under criminal law, an assault
under the Non-Fatal Offences Against the Person Act 1997.
3.08
The Commission in
its 2006 Report on Vulnerable Adults and the Law[231]
endorsed the approach of the Commission on the Status of People with
Disabilities that there should be a legal prohibition on sterilisation on the
basis of disability alone, that is, non-therapeutic sterilisation, and that
every effort should be made to ensure that informed and free consent exists.
This would require prior court approval for the non-therapeutic sterilisation
of an adult who lacks capacity to make a decision to consent to or to decline
such a procedure. The Commission recommended that any proposed sterilisation of
an adult where there is no serious malfunction or disease of the reproductive
organs would require the prior consent of the High Court where the adult lacks
the capacity to make a decision to consent to or to decline such a procedure.[232]
3.09
It was not until the
1970s that groups began to advocate for individual choices and desires for
people with disabilities. Since the de-institutionalisation period began,
people with intellectual disability have begun to live and participate in their
community, but the Commission notes that attitudes to sexuality for people with
disability may survive. In a Special Olympics survey undertaken in 2003,
53% of Irish respondents thought that people with intellectual disability were
capable of marriage but only 23% believed they would be capable of caring for
their children.[233]
3.10
This reflects some of
the international literature on this and may also echo some of the eugenics
myths, as infamously stated in Buck v Bell in 1927, including that
parents with intellectual disability are also more likely to have children with
an intellectual disability. Given that people with intellectual disability have
only been in a position in many countries to have children in recent years,
there are very few evidence-based studies to address this. One Australian study
concluded that there was no statistically significant correlation found
between the developmental status of children and the characteristics of the
mother or their home environment, but that the developmental status of the
children varied markedly in physical, self-help, academic, social and
communication domains; and that in all developmental domains, between 35% and
57% of children showed a delay of at least three months.[234] It is
clear, of course, that many factors affect the intellectual and developmental
capacity of children, including: the presence or absence of lead in petrol; the
presence of absence of alcohol during conception and pregnancy; the
intellectual capacity of parents; nutrition; social grouping; access to
ante-natal and post-natal health care; the presence or absence of immunisation
programmes to prevent measles, mumps and rubella; and screening programmes to
prevent congenital disorders such as phenylketonuria (PKU).
3.11
As the Australian study
referred to above noted, a specific challenge is that pregnant women with
intellectual disability may have poor health relative to the general
population and may also access
ante-natal services relatively late and have a poor birth experience, which may
also impact on the child. The 2011 literature review by the National
Disability Authority (NDA) and the Crisis Pregnancy Programme (CPP),[235]
discussed below, confirms that there is a need to develop appropriate policies
and supports to ensure enhanced parenting outcomes. The NDA and CPP literature
review also concluded that the
repeal and replacement of section 5 of the Criminal Law (Sexual Offences)
Act 1993 would complement these support measures.
3.12
The Commission
emphasises of course, that pregnancy, and parenting, are aspects of a
fully-expressed sexual life for persons with intellectual disability, but they
are not the sole focus. Indeed, the limited focus of section 5 of the 1993 Act
in criminalising sexual intercourse only, but not other forms of sexual
assaults or exploitation, may reveal a lingering aspect of older prejudices and
myths. The Commission agrees with the view expressed in the NDA and CPP
literature review that policy development in this area must deal not simply
with supporting parents with intellectual disability but must also focus on
general sexual health, including the emotional aspects of interpersonal
feelings that develop from a sexual relationship, the use of contraception and
sexually transmitted infections. Just as policy development should reflect this
holistic view to all aspects of positive sexual health, reform of the criminal law,
the focus should not be limited to sexual offences involving intercourse, but
should also reflect the wider aspects of a sexual life, including other sexual
assaults and sexual abuse and exploitation.
3.13
In considering the
sexual rights of persons with intellectual disability or limited decision-making capacity, the
Commission turns to discuss the related policy issue of parental rights in the
context of constitutional and international standards. As already noted the
eugenics movement had framed the historical context of people with disabilities
as sexual beings and as parents. Eugenics is driven by a fear that people with
disabilities would (i) give birth to children with disabilities; (ii) be
incapable of adequately parenting their children regardless of supports
provided; (iii) be incapable of understanding the legal implications of
marriage and parenthood; and (iv) be unable to bond with their children.[236]
3.14
In this Part, the
Commission considers the barriers confronting people with disabilities as
parents. Before turning to the literature in this area, the Commission
discusses the Child Care Act 1991, notably the power under the 1991 Act
to make a care order bringing a child into the care of the Health Service
Executive. The Commission is conscious in this respect that the 1991 Act has
been used as a response to a person with an intellectual disability becoming
pregnant or having a child.
3.15
The Child Care Act
1991 is the primary legislation dealing with children who are in need of
adequate care and protection in the State. Section 3(1) of the Child
Care Act 1991[237] states that the Health Service Executive (HSE) “shall...
promote the welfare of children who are not receiving adequate care and
protection”, and section 3(3) adds that the HSE must provide “child care and
family support services.” Section 3(2) of the 1991 Act provides that, in
carrying out its mandatory statutory function to promote the welfare of
children, the Health Service Executive shall:
“(a)
take such steps as it considers requisite to identify children who are not
receiving adequate care and protection and co-ordinate information from all
relevant sources relating to children;
(b)
having regard to the rights and duties of parents, whether under the
Constitution or otherwise—
(i)
regard the welfare of the child as the first and paramount consideration, and
(ii)
in so far as is practicable, give due consideration, having regard to his age
and understanding, to the wishes of the child; and
(c)
have regard to the principle that it is generally in the best interests of a
child to be brought up in his own family.”
3.16
Section 3(2)(c) of the 1991 Act clearly reflects the constitutional
position and relevant international human rights standards that it is presumed
to be in the best interests of a child that he or she be brought up in their
own family by their parents or guardians.[238]
It is only when extensive efforts to achieve this have failed that the more
interventionist aspects of the 1991 Act should be employed.[239]
3.17
A care order may be
made by the District Court under section 18 of the 1991 Act, which places a
child in the care of the Health Service Executive, either temporarily or
permanently. Section 18(1) of the 1991 Act states that such an order may be
made only where the court is satisfied that: (a) the child has been
or is being assaulted, ill-treated, neglected or sexually abused, or (b) the
child’s health, development or welfare has been or is being avoidably impaired
or neglected, or (c)
the child’s health, development or welfare is likely to be avoidably impaired
or neglected.
3.18
The consequences of a
care order under the 1991 Act requires that it be used as a measure of last
resort where parents are afforded every opportunity to demonstrate their
intention and ability to provide a safe and secure environment for their child.[240]
Thus, in KC and AC v An Bord Uchtála,[241]
Finlay CJ noted “that the welfare of the child… is to be found within the family
unless the court is satisfied that there are compelling reasons why this cannot
be achieved”. Similarly, in North Western Health Board v HW and CW[242]
the High Court and Supreme Court noted that it was only in exceptional
cases that the State could intervene under the 1991 Act in respect of decisions
made by parents. This was so even where, as in that case, which involved the
refusal by parents to consent to a PKU screening test for their baby, the
decision was one that most other parents would not have made.
3.19
In the context of care
orders under the comparable English Children Act 1989, the UK House of
Lords in Lancashire County Council v Barlow[243]
noted that an application for a care order requires caution and restraint. One
of the judges in the case, Lord Clyde, commented that “the stress which care
proceedings may well impose on the parents may even itself be damaging to the
child”. Lord Clyde also referred to the right to family life and privacy under
Article 8 of the European Convention on Human Rights, noting that this
underlines “the need for caution and restraint” in applying for a care order.
Similarly, in another UK House of Lords decision, Re H (Minors)
(Sexual Abuse: Standard of Proof),[244] Lord
Nicholls stated that parents:
“are not to be
at risk of having their children taken from them and removed into the care of
the local authority on the basis only of suspicions, whether of the judge or
the local authority or anyone else. A conclusion that the child is suffering or
is likely to suffer harm must be based on the facts, not just suspicion.”
3.20
Lord Nicholls added
that the more improbable the event, the stronger the requirement for evidence
that abuse or neglect did occur before, on the balance of probabilities, its
occurrence will be established. Nonetheless, he also added that:
“It is, of
course, open to a court to conclude there is a real possibility that the child
will suffer harm in the future although harm in the past has not been
established. There will be cases where, although the alleged maltreatment
itself is not proved, the evidence does establish a combination of profoundly
worrying features affecting the care of the child within the family. In such
cases, it would be open to a court in appropriate circumstances to find that,
although not satisfied the child is yet suffering significant harm, on the
basis of such facts as are proved there is a likelihood that he will do so in
the future.”
3.21
Shannon suggests that
the Irish courts are likely to follow this approach, namely that the
pre-condition for a care order under section 18 of the 1991 Act is met if it
can be shown that there is a real possibility that the child is likely to
suffer significant harm.[245]
3.22
As already noted, the
Commission is aware that applications for care orders have been made under the
1991 Act as a response to a person with an intellectual disability becoming
pregnant or having a child. In Legal Aid Board v Brady[246]
the respondent judge of the District Court had appointed a guardian ad litem
(litigation guardian) to assist in communicating the views of a parent with an
intellectual disability in an application for a care order under section 18 of
the 1991 Act. At the end of the hearing, the judge ordered the Legal Aid Board
to pay the costs of the guardian at litem. The Legal Aid Board
challenged this order on judicial review.
3.23
The Irish Human Rights Commission (IHRC) intervened in the proceedings
as amicus curiae (friend of the court) in accordance with the Irish
Human Rights Commission Act 2000. In its written submissions to the Court,
the IHRC argued that, in the absence of legal aid support, the proceedings
under section 18 of the 1991 Act would be in breach of the rights of the parent
and child to fair procedures under Article 40.3 of the Constitution as well as
Articles 6 and 8 of the European Convention on Human Rights. The IHRC also
referred to the 2006 UN Convention on the Rights of Persons With Disabilities
in this context. The IHRC also argued that the parent, like all parents, must
have every reasonable opportunity to present her case against the making of a
care order, having particular regard to the fact that such an order would have
the effect of transferring parental responsibility to the Health Service
Executive “and displacing the parent’s role in a most fundamental manner” and
argued that such procedural rights cannot be diminished by virtue of a lack of
legal capacity on the part of the parent.
3.24
The case was ultimately settled in 2007 and, arising from it, the Legal
Aid Board issued a policy document for these cases.[247] As a result, arrangements have been in place since 2007 to
appoint a person (the Legal Aid Board policy stating he or she is not a
guardian ad litem) for an adult with an intellectual disability in care
order proceedings under section 18 of the 1991 Act. The appointed person will
assist in communicating the views of a parent with an intellectual disability
to the solicitor who has been retained in the proceedings. The Commission very
much supports this important aspect of ensuring that care proceedings under
section 18 of the 1991 Act properly respect the rights of parents with
intellectual disabilities.
3.25
The Commission now turns to discuss the available literature in Ireland
on the provision of appropriate and accessible support to people with an
intellectual disability who are pregnant or who have had a child.
3.26
As already noted, in Ireland
the 2006 National Disability Survey (NDS) carried out by the Central
Statistics Office indicates that 50,400 people in Ireland have a diagnosed
intellectual disability. This includes 14,000 whose
main disability was classified as dyslexia or a specific learning difficulty
and 2,500 whose disability was classified as attention deficit disorder.
Many of these 16,500 individuals are unlikely to require specific supports
outside their specific educational needs. As also already pointed out, the Health Research Board, which has
adapted the WHO classification system in the development of its National
Intellectual Disability Database (NIDD), has noted that, in 2009, there
were 26,066 people registered on the NIDD.[248]
3.27
Within this group of
about 50,000, there is
no reliable figure as to the number of people with intellectual
disability or a learning disability who are also parents. In a 2011 literature
review, the National Disability Authority (NDA) and the Crisis Pregnancy
Programme (CPP) have pointed out that, in Ireland, “the number of women with
intellectual disability having children is increasing and that when a woman
announces her pregnancy, the reactions of people close to her are almost
exclusively negative. Other challenges faced by women with an intellectual
disability experiencing pregnancy and parenthood include accessing sexual
health information, accessing sexual health services, inadequate information
and negative attitudes to pregnancy and parenthood among service providers and
the wider community.”[249]
This analysis indicates that, while the worst features of the eugenics movement
may be in the past, some lingering elements of it continue to make their
presence felt. The NDA/CPP
literature review confirms that current practice has meant that parents who
have disabilities must disprove stereotyped myths surrounding their ability to
parent. This practice does not reflect the functional approach which has at its
core a rebuttable presumption of capacity.
3.28
As mentioned, the 2011
literature review by the NDA
and CPP indicates that, while the number of women with intellectual
disability having children is increasing, there is no reliable figure as to the
total current number. The NDA and CPP note that, in the UK, estimates vary
widely from 23,000 to 250,000, and that an English 2005 study found that almost
7% of adults with “learning difficulties” were parents.[250]
Other international literature
confirms that the numbers that are known to the health and welfare services are
widely recognised to be on the increase.[251]
This increase can be attributed to the move towards services based on the
principle of ‘normalisation’ and as a result of a well-developed child
protection system.[252]
3.29
In connection with the
discussion above on the use of the Child Care Act 1991, in the English setting
Booth and Booth note that parents with learning difficulties are between 30
and 60 times more likely to be the subject of a care order application than
their numbers in the general population would warrant.[253]
Other English research suggests that decisions about the future placement of
children of parents with intellectual disabilities are regularly taken without
adequate information, arrangements or support being put in place to allow
parents to demonstrate that they can look after their children satisfactorily.[254]
The following barriers have been identified in the literature on parenting:[255]
· assessments are not accessible and do
not test parents’ abilities or support needs effectively;
· professionals often have negative or
stereotypes attitudes about people with an intellectual disability and their
ability to be parents;
· information about parenting which is
routinely given to parents without an intellectual disability is not provided
in an accessible format to new parents who have an intellectual disability;
· support which parents with an
intellectual disability may require to help them look after their children
satisfactorily may not be available from services, due to the application of
increasingly narrow eligibility criteria for support by services.
3.30
Another NDA
commissioned study found in 2010 that expectant mothers with disabilities are
confronted with having to prove their capacity to parent. It found that health
professionals tended to overly-focus on the impact of the woman’s disability on
the child and the physiological risks associated with inheritance.[256]
This was accompanied by a perception that health professionals were
constantly observing, watching and scrutinising their ability to parent and to
execute parenting skills without receiving adequate supports.[257]
3.31
The study recommended that a common tool be used to assess a person’s
ability to parent, with clear explicit criteria as well as the engagement of
the parents throughout the process and that such an assessment be carried out
in their own home with supports.[258]
International literature shows that over the past 20 years, an evidence-based
intervention technology has been developed to teach parenting skills to parents
with intellectual disabilities. Using these behavioural instructional
strategies, parents with intellectual disabilities have learned a wide variety
of skills including: basic newborn, infant and child care; nutrition; health
and safety; and positive interactions. The literature suggests that when
measured, their children’s health and development benefit from such training
and the family unit remains intact.[259]
As such, there is strong evidence that with the appropriate supports many of
these parents are able to provide a nurturing, healthy, and safe home
environment for their children.
3.32
Literature suggests
that the absence of specialist support and other services directed towards
disabled adults with parenting responsibilities, combined with resource
constraints, has meant that in many instances, disabled parents receive
attention from service providers only after problems have arisen in respect of
their children. Research suggests that best practice would include providing
timely and appropriate support to assist disabled adults to fulfil their
parenting role and responsibilities is the best way to safeguard the welfare of
children.[260] Best
practice also shows that when child protection procedures are instituted, there
should be joined-up coordination among adult and child services which ensure
that disabled parents continue to receive specialist support and have access to
such advocacy as they require.[261]
3.33
The NDA study called for relevant education programmes for staff working
in this area in order to tackle the stigmatising practices and attitude which
can sometimes exist. Central to this is the need for modern capacity
legislation grounded in the presumption of capacity rather than incapacity in
the context of parenting by persons with disabilities. In this situation
mothers would have to be proven to be incapable of parenting before social
services could apply for a care order to take the child into care. There would
also be the need for services to be put in place to support these women during
all stages of pregnancy and early motherhood. This would require accepting the
sexual rights of women with intellectual disabilities and to move from the
current situation where sexuality is discouraged and pregnancy is viewed as a
failure of preventive strategies.
3.34
There is an obligation
on the State to provide support to parents to realise their rights rather than
intervene to deny them
the right. As the 2001 UK White Paper Valuing People noted:
“[p]arents with
learning disabilities are amongst the most socially and economically
disadvantaged groups. They are more likely than other parents to make heavy
demands on child welfare services and have their children looked after by the
local authority. People with learning disabilities can be good parents and
provide their children with a good start in life, but may require considerable
help to do so. This requires children and adult social services teams to work
closely together to develop a common approach. Social services departments have
a duty to safeguard the welfare of children, and in some circumstances a parent
with learning disabilities will not be able to meet their child’s needs.
However, we believe this should not be the result of agencies not arranging for
appropriate and timely support.”[262]
3.35
The Commission now turns to discuss the obligations of the State to
provide support to parents with disabilities under the Disability Act 2005
and the unenumerated personal rights under the Irish Constitution.
3.36
The protection of
socio-economic rights under the Constitution has been seen through the doctrine
of unenumerated personal rights and the Directive Principles of Social Policy,
through the guarantee of equality under the Constitution or by way of
amendment.[263]
3.37
The main tenet of the Disability
Act 2005 was the provision of an independent assessment of need[264]
which results in the compilation of a service statement listing the services a
person deemed to have a disability, as defined under the Act, requires.[265]
Arising from the assessment, the person concerned will be given an assessment
report which indicates whether a person has a disability; the nature and extent
of the disability; the health and education needs arising from the disability;
the services considered appropriate to meet those needs and the timescale
ideally required for their delivery; and when a review of the assessment should
be undertaken.
3.38
The Disability Act
2005, while it creates a statutory entitlement once a person comes within
the definition of having a ‘disability’ there is no guarantee built into the
legislation to ensure that the relevant services required can be litigated
through the courts.[266] The
provisions enshrined in the Disability Act 2005 “can best be described
as ones which are based on the fundamental civil and political rights to
participation and autonomy.”[267] People
with disabilities may require supports to facilitate their participation in
society and this may include education, training and health service provision.
These provisions can be described as mechanisms necessary in order to access
other substantive rights.
3.39
Under the 2005 Act,
6 statutory Departmental Plans are obliged to implement the provisions
in the Act. As highlighted by the Commission in its 2006 Report on Vulnerable
Adults the UNCRPD, when ratified by Ireland, will provide a further
framework for the future discussion of rights in Ireland. The ’rights-based’
approach of the Convention, however, may not sit easily with the approach taken
in the Disability Act 2005, although the Commission accepts that the
sectoral plans and funding arrangements surrounding the 2005 Act provide
tangible evidence of movement towards the objectives of the UN Convention.
3.40
The legislative basis
for the identification of health and social needs is contained in Part 2 of the
Disability Act 2005 which provides for the identification of health and
social needs of people with disabilities. Part 2 of the Act also provides for
identifying and allocating responsibility of such needs to the relevant
departments and agencies.
3.41
Of particular
importance is section 30 of the 2005 Act which provides that the Minister for
Justice and Equality may request the NDA to prepare codes of practice
specifying what public bodies must do to comply with their obligation to make
their mainstream services, information resources and heritage sites properly
accessible. A Code of Practice on Accessibility of Public Services and
Information was published in 2006 by the NDA[268]
which includes clear guidance on how public bodies can comply with their
statutory duties under the 2005 Act.
3.42
The assessment of need
under the Disability Act 2005 does not extend to a positive assessment
of need for parents with limited capacity in the context of the Child Care
Act 1991. The following section discusses the nature of socio-economic
rights in Ireland and how the provision of a positive assessment of need and
the implementation of a range of supports identified under the assessment
process under the Disability Act 2005 could support parents with limited
capacity in their parenting role.
3.43
The Commission
considers there should be a positive assessment of capacity to parent in line
with section 8 of the Disability Act 2005 which specifies that an
assessment officer should be independent in carrying out his or her functions
and that an assessment should be carried out without regard to the cost of
providing the services required.[269]
Where it has been determined that the applicant has a disability the
assessment of needs statement for parents with limited capacity could include
the following:[270]
3.44
The guarantee of free
primary education in Article 42 of the Constitution as well as the implied
right of ‘at risk’ children to be placed in the care of the State in certain
extreme circumstances has generated a substantial body of jurisprudence. The
Irish Supreme Court, in 2001, delivered two particularly significant judgments.
TD v Minister for Education[271]
dealt with the State’s obligation to provide for the needs of at risk children,
whose parents had failed to do so. Sinnott v Minister for Education[272]concerned
the provision of special educational needs regardless of age for those with
severe disabilities. More broadly, however, these two cases were ultimately
about whether or not the Irish courts would protect socio-economic rights, and
if so, in what way.[273] In
overturning the High Court, the Irish Supreme Court reaffirmed that the Irish
Constitution was a charter of negative rights and that socio-economic rights
should be the domain of the elected branches of government.
3.45
In the 1993 High Court
decision O’Donoghue v Minister for Health[274]
case, O’Hanlon J also cited the 1975 UN General Assembly’s Resolution 3447,
or Declaration on the Rights of Disabled Persons, which was the genesis for
what ultimately became the 2006 UN Convention on the Rights of Persons With
Disability, discussed below. O’Hanlon J cited the following provisions of the
1975 UN Resolution:[275]
“6. Disabled persons have the right to... education and other services
which will enable them to develop their capabilities and skills to the maximum
and will hasten the process of social integration and reintegration.”
The
Commission now turns to discuss the position of the ‘family’ under the
Constitution and international standards.
3.46
The ‘family’ is guaranteed special protection under Article 41 of the
Irish Constitution. Article 41.1.1° provides that:
“The State recognises the Family as the natural primary and
fundamental unit group of society.”
Article 41.1.1° is sometimes regarded as an unusually strong
recognition of the importance of the family unit, but it is virtually identical
to Article 16.3 of the 1948 UN Universal Declaration of Human Rights, which
states:
“The family is the natural and fundamental group unit of society
and is entitled to protection by society and the State.”
3.47
Article 23.1 of the 1966 UN International Covenant on Civil and
Political Rights (ICCPR) involves a remarkable reflection of the text of Article
41.1.1° and provides:
“The family is the natural and fundamental group unit of society
and is entitled to protection by society and the State.”
3.48
Similarly, the Preamble to the 1989 UN Convention on the Rights of the
Child (UNCRC) reiterates that the family is “the fundamental group in society.”
The 1966 and 1989 UN Conventions thus underline that Article 41.1.1° reflects a
contemporary views at international level of the fundamental importance of the
family unit. It is unsurprising, therefore, that this approach is reflected not
only in Article 41 of the Constitution of Ireland but also in the law of other
countries, such as Germany and Australia.[277]
In family law proceedings in Australia, for instance, section 43(1)(b) of the
Australian (federal) Family Law Act 1975 states that Australian courts
must have regard to “the need to give the widest possible protection and
assistance to the family as the natural and fundamental group unit of society.”
The Australian 1975 Act clearly was intended to codify Article 23.1 of the 1966
ICCPR.[278]
3.49
Article 42.1 of the Constitution reinforces the statement in Article 41
that the family is the fundamental unit group of society by acknowledging that
the family is “the primary and natural educator of the child.” Article 42.5
provides that only in “exceptional circumstances” where parents “fail in their
duty towards their children” the State may “supply the place of parents.”
Article 42.5 also states that any such role of the State must have due regard
for the rights of the child. As with Article 41.1.1°, Article 42 is reflected
in relevant international human rights documents. The provisions of Article 41
and 42 of the Constitution, and the relevant international instruments such as
the 1948 UN Universal Declaration of Human Rights, the 1966 International
Covenant on Civil and Political Rights and the 1989 UN Convention on the Rights
of the Child and the 2006 UN Convention on the Rights of Persons with
Disabilities contain the following important elements: (a) parents and
guardians have primary responsibility for the upbringing and development of
their children, (b) the State may intervene to supply the place of parents only
in exceptional circumstances where this is necessary, and (c) the rights of the
child, and their best interests, must always be taken into account in this
context.
3.50
Article 8 of the ECHR guarantees as a basic right respect for private
and family life, home and correspondence. Paragraph 2 of the provision provides that there will be no interference
with this right except where it is in accordance with law, in pursuit of a
legitimate aim and necessary in a democratic society. Unless justified as a
proportionate and necessary response to a risk to the child, or others,
compulsory removal of a child from the care of its parents constitutes a
significant infringement of the rights of both the child and its parents, to
respect for their family life as protected under Article 8 of the ECHR and the
ECHR Act 2003. As such, those who enjoy family life must be able to do so
without the arbitrary interference of the state.[279]
Where this right is not adhered to such as a situation where a child is taken
into care, family members are able to challenge the validity of the order and
its compatibility with article 8 of the ECHR. In deciding whether the measure
is compatible consideration must be given to whether it is in accordance with
law, in pursuit of a legitimate aim and necessary in a democratic society.[280]
3.51
The best interest
element, although not explicit, is the accepted principle by which the
consistency with Article 8(2) of state interference with family life is
maintained.[281] The
principle of proportionality is applied in balancing the interference of the
state with family life and the aim of protecting the interests and rights of
the child. The Court must consider whether, in light of the details of the
particular case, the authorities had relevant and sufficient reasons for
initiating the measures.[282] The State
enjoys considerable discretion in making a care order which must be justified
under Article 8(2) of the Convention. Kilkelly notes that in cases where there
is not clear evidence of abuse or neglect or a failure on the part of the
parent to protect the child from injury or neglect determining compatibility
with Article 8 is not so easily achieved.[283]
Kilkelly gives the example in situations where:
“it is not
readily apparent that taking a child into care because his/her parent suffers
from a mental condition, which either prevents him from understanding the
child’s needs, or may lead to the development of similar problems in this child
is justified under Article 8. The difficulty in balancing the interests of the
child with the family life of the parent is even greater where the child is
removed from a parent with such a condition shortly after birth.”[284]
3.52
Kilkelly notes that the
Commission on Human Rights recognised the severity of the interference with
family life which such a measure would cause. In situations where children of
parents with disabilities were being taken into care the Commission queried
whether the relevant authorities provided support to parents or took other
preventive measures before they instigated proceedings for the removal of the
child from the care of its parent(s).[285]
3.53
Although the State has
a broad margin of appreciation in taking individual decisions on the need for
child protection measures, the ECtHR has stressed that decisions to remove a
child must take into account the availability of help, such as additional
educational support for children, and whether it would be more appropriate to
provide additional support to a family rather than remove a child. The fact
that a child could be placed in a more beneficial environment for his or her
upbringing is not a sufficient justification for compulsory removal from the
care of its biological parents. The Court must have regard to the positive
obligation of the state to enable the ties between parents and their children
to be preserved.
3.54
In Kutzner v Germany[286]
the European Court of Human Rights considered the removal of parental
responsibility for two daughters of a couple with learning disabilities. The
children were placed in different foster homes, despite evidence that the
parents were capable of meeting the children’s needs with support. Although
existing levels of educational support had been inadequate to meet the needs of
the children, the State had not considered whether greater levels of support
would be appropriate. The Court also considered that the parents were given
very limited opportunities for visitation and that the children had been placed
in separate foster homes. The Court considered that while the State enjoys a
margin of appreciation in relation to individual decisions on child protection,
in this case Germany had acted in breach of Article 8 of the ECHR in that the
interference was not proportionate to the legitimate aims pursued.
3.55
In the English case In Re B[287]
Thorpe LJ stated that
“where the application is for a care order empowering the local
authority to remove a child or children from the family, the Judge in modern
times may not make such an order without considering the European Convention
for the Protection of Human Rights and Fundamental Freedoms Art 8 rights of the
adult members of the family and of the children of the family. Accordingly he
must not sanction such an interference with family unless he is satisfied that
that is both necessary and proportionate and that no other less radical form of
order would achieve the essential end of promoting the welfare of the
children.”[288]
3.56
Furthermore, in EH v Greenwich[289]
Baron J stated that
“In a case where the care plan leads to adoption the full
expression of the terms of Article 8 must be explicit in judgment, because,
ultimately there can be no greater interference with family life. Accordingly,
any judge must show how his decision is both necessary and proportionate.”[290]
3.57
In P., C. and S. v UK[291] the European Court of Human Rights found that there was
a violation of Article 6(1) and Article 8 of the ECHR. The Court found that the
baby’s rights had been breached by being deprived the milk of its mother where the
baby was the subject of a court-ordered adoption. The Court found that both the
mother and baby’s rights had been breached since it was sought at birth.
3.58
Social services, courts, and other public authorities working with
parents with limited capacity and their children are subject to the duty to act
compatibly with the right to respect for family life, as guaranteed by Article
8 ECHR. The State has a positive, human rights based obligation to protect
children from harm and promote their development. However, any decision that
impinges on the relationship between a parent and his or her child could have
very serious implications for the protection of family rights. Care must be
taken to ensure that any restrictions on the development of ordinary family
relationships must not only be in the best interests of the child, but also be
a necessary and proportionate response to the level of risk posed to the child
or to its parents though continuing care in the home. An assessment of risk must
take into account all of the relevant facts of each case, including the
provision of supports to meet the needs of parents and their children.
3.59
The UN Convention
on the Rights of the Child[292] confirms
that every child has the right not to be separated from its parents, unless
separation is necessary to meet the child’s best interests.[293]
This may be determined in a case involving abuse or neglect of the child by the
parents. In such a situation parents are to be given an opportunity to
participate in proceedings and make their views known. The Convention also
notes that parents have the primary responsibility for the upbringing and
development of the child. The Convention also notes that States may only
intervene to separate a child from parents against their will where “such
separation is necessary for the best interests of the child”.[294]
3.60
The UNCRPD affirms that
people with disabilities have the right to parenthood, fertility, reproduction,
family planning and to “the same range, quality and standard of free or
affordable health care and programmes… in the area of sexual reproductive
health”.[295] Article
4(1)(a) of the Convention requires States Parties to “adopt all appropriate
legislative, administrative, and other measures for the implementation of the
rights” recognised in the Convention. In particular, Article 23(1)(a) of the
Convention recognises the “right of all persons with disabilities who are of
marriageable age to marry and to found a family on the basis of fee and full
consent of the intending spouses”. Article 23(1)(b) ensures that the
“rights of persons with disabilities to decide freely and responsibly on the
number and spacing of their children and to have access to age-appropriate
information, reproductive and family planning education… and the means
necessary to enable them to exercise these rights”. Article 12(2) obliges States Parties to
recognise that persons with disabilities enjoy legal capacity on an equal basis
with others in all aspects of their lives.
3.61
Article 10 of the
International Covenant on Economic Social and Cultural Rights (ICESCR) provides
that States Parties recognise that the widest possible protection and
assistance should be accorded to the family, which is the natural and
fundamental group unit of society, particularly for its establishment and while
it is responsible for the care and education of dependent children. Special
measures of protection and assistance should also be taken on behalf of all
children and young persons without any discrimination of parentage or other
conditions.
3.62
General Comment No.5 of
the Committee on Economic Social and Cultural Rights[296]
requires States parties to endeavour to ensure that persons with disabilities
can, when they so wish, live with their families. It also requires them to
ensure that “laws and social policies and practices” do not impede the
realisation of the rights of persons with disabilities to marry and form a
family.[297] In
addition, persons with disabilities should have access to “necessary
counselling services in order to fulfil their rights and duties within the
family.”[298]
3.63
General Comment No.5
reiterates Rule 9(2) of the Standard Rules on the Equalization of
Opportunities, stating that “persons with disabilities must not be denied the
opportunity to experience their sexuality, have sexual relationships and
experience parenthood.”[299] It
stresses that “”[t]he needs and desires in question should be recognized and
addressed in both the recreational and the procreational contexts.”[300]
The Committee on Economic, Social and Cultural Rights noted that while these
rights are commonly denied to both sexes, it mentions explicitly that “[w]omen
with disabilities also have the right to protection and support in relation to
motherhood and pregnancy.” The provision of the Standard Rules corresponding to
Article 10 of the Covenant is Rule 9, according to which:
“States should
promote the full participation of persons with disabilities in family life.
They should promote their right to personal integrity and ensure that laws do
not discriminate against persons with disabilities with respect to sexual
relationships, marriage and parenthood.”[301]
3.64
Rule 9 states that
persons with disabilities should not be denied the opportunity to experience
their sexuality, have sexual relationships and experience parenthood. They must
have access to family planning methods and information in accessible form on
the sexual functioning of their bodies. States should remove all “unnecessary
obstacles” to the adoption of fostering of a person with a disability.[302]
It is incumbent on States to promote measures to change negative attitudes
towards marriage, sexuality and parenthood of persons (especially girls and
women) with disabilities. Part of this obligation is encouraging the media to
tackle the negative attitudes.[303]
3.65
Action 27 of the Government’s 2001 Health Strategy[304]
details an expansion programme for family support services including the
expansion of positive supports and programmes for families. There already exits
a range of services which fall under national family support programmes, as
provided by Community Mothers, Family Support Workers, Teen Parents, and Spring
Board Projects and encompass specific interventions such as Parents Plus
programme, the Family First Parenting Initiative as well as a range of general parenting
programmes and supports.
3.66
Recent developments have taken place in Ireland in recognition of the
need to provide supports to parents with limited decision-making ability who
are engaged in care order proceedings. The National Advocacy Service for People
with Disabilities which was formally launched in 2011 provides independent,
representative advocacy services for people with disabilities. Advocates can provide an important
role in supporting parents in accessing services. Section 7A(5) of the Comhairle
Act 2000, as inserted by section 5 of the Citizens Information Act 2007
specifies the grounds on which the Personal Advocacy Service should prioritise
its services and is based on urgency of needs and risk of harm, the degree of
benefit of having an advocate appointed and availability of alternative
services.
3.67
The Personal Advocacy Service has also an important role in supporting
parents with disabilities in court proceedings.[305]
Since it was established the Service has already been involved in a number of
cases where people with disabilities have been threatened with losing their
children.[306] The
Commission has also noted the appointment of persons to represent the views of
parents with an intellectual disability in care proceedings under section 18 of
the Child Care Act 1991 arising from the settlement in 2007 in Legal
Aid Board v Brady and Ors.[307]
3.68
The UK Government’s
2001 White Paper Valuing People states that:
“[p]arents with
Learning Disabilities are increasing in number; the most socially and
economically disadvantaged groups. They are more likely than other parents to
make heavy demands on child welfare services and have their children looked
after by the local authority. People with learning disability can be good
parents and provide their children with a good start in life, but need considerable
help to do so. This requires children and adult social services teams to work
closely together to develop a common approach. Social services departments have
a duty to safeguard the welfare of children, and in some circumstances a parent
with learning disabilities will not be able to meet their child’s needs.
However, we believe this should not be the result of agencies not arranging for
appropriate and timely support.”[308]
3.69
It acknowledges that
support for disabled parents has been disjointed and underdeveloped and
recognises that tensions exist within social services departments between those
whose focus is the welfare of the child and those concerned with assisting the
parent in developing their parenting capabilities. The Strategy highlighted
that people with learning disabilities and their children are often passed
between organisations and professionals with insufficient clarity about where
responsibility rests for ensuring effective service provision. The Strategy
recommended that effective partnerships are needed in promoting social
inclusion of people with learning disabilities and the need for timely and
appropriate supports for parents to prevent children being removed from their
care.[309] Protocols
have now been developed to address the specific needs of safeguarding and
protecting children of parents with a learning disability.
3.70
Such protocols have
been introduced in recognition of the need to increase effectiveness of
assessment, communication and joint working arrangements between professionals
from different agencies if parents are to be adequately supported and children
protected. The protocols are used by all adult and children services,
non-statutory, private and voluntary sector services and are to be considered
in line with child protection procedures and the national policy on delivering
social care. Such protocols emphasise the need for multi-agency assessments, to
ensure appropriate multi-agency intervention to support parents and safeguard
children, to ensure access to most appropriate specialist assessments and
assessment tools and lastly, to ensure the child’s welfare is paramount.
3.71
In 2006 the UK Department
of Health and Department for Education and Skills published Good practice
guidance on working with parents with a learning disability. The guidance
is aimed at professionals in health and social care. The guidance recommends
that good practice is underpinned by the policy, legislation and guidance which
set out the responsibilities of both children’s and adult services. Legislation
and associated guidance in the Good practice document set out the
following as integral to achieving good practice[310]:
· children have a right to be
protected from harm;
· in family court proceedings
children’s interests are paramount;
· children’s needs are usually best
met by supporting their parents to look after them;
· local authorities and all other
agencies working in contact with children have a responsibility to safeguard
and promote children’s welfare;
· parents with learning disabilities
have the right to an assessment of their needs for support in their daily
lives; such assessment include any assistance required with parenting roles and
tasks; parents should have their assessed needs met where eligible and
considering available resources in line with Fair Access to Care Services;[311]
· parents with learning disabilities
are entitles to equal access to services, including parenting support and
information services;
· public bodies have a duty to
actively promote equality of opportunity for people with learning disabilities.
3.72
The Guidance also notes
that good practice is underpinned by an approach to parenting and learning
disability which addresses needs relating to both impairment and the disabling
barriers of unequal access and negative attitudes. This approach recognises
that it would be difficult to understand how to bring about positive changes
for parents and their children if the issue to be addressed is entirely
attributed to the impairment and personal limitations. Furthermore, the
Guidance advices that if the focus is instead put on measures that can
ameliorate a situation such as adequate housing and support needs that can be
met such as equipment to help a parent measure baby feeds, there can be many
are more possibilities for bringing about positive results.[312]
3.73
The Guidance notes
there are five key features of good practice in working with parents with
learning disabilities. These are accessible information and communication;
clear and co-ordinated referral and assessment procedures and processes,
eligibility criteria and care pathways; support designed to meet the needs of
parents and children based on assessments of their needs and strengths;
long-term support where necessary; and lastly, access to independent advocacy.[313]
3.74
In reinforcing the
2001 Strategy and 2006 Guidance, the UK Joint Parliamentary Committee on the
Human Rights of Adults with a Learning Disability[314]
outlined that, unless justified as a proportionate and necessary response to a
risk to the child, or to others, compulsory removal of a child from the care of
its parents poses a significant infringement of the rights of both the child
and its parents and respect for their family life under Article 8 of the ECHR
and the Human Rights Act 1998.
3.75
The Commission notes
that the presumption of capacity envisaged in the forthcoming mental capacity
legislation will, consistently with a rights-based approach, be enabling rather
than restrictive in nature. This will include, therefore, a rebuttable presumption
of capacity to parent by any person with intellectual disability, and that onus
of displacing the presumption of capacity will be on any person asserting lack
of capacity, including in the context of parenting by persons with intellectual
disability. The Commission has therefore concluded, and provisionally
recommends, that consistently with the general presumption of capacity in the
forthcoming mental capacity legislation, which would include a presumption of
capacity to parent, there should be a positive obligation to make an assessment
of the needs of parents with disabilities under the Disability Act 2005.
The Commission also provisionally recommends that, in providing assistance to
parents with disabilities, an inter-agency protocol is needed between
the child protection services and family support services which would provide
that, before any application for a care order is made under the Child Care
Act 1991, an assessment is made of parenting skills and the necessary
supports and training that would assist parents with disabilities to care for
their children.
3.76
The Commission
provisionally recommends, that consistently with the general presumption of
capacity in the forthcoming mental capacity legislation, which would include a
presumption of capacity to parent, there should be a positive obligation to
make an assessment of the needs of parents with disabilities under the
Disability Act 2005. The Commission also provisionally recommends that, in
providing assistance to parents with disabilities, an inter-agency
protocol is needed between the child protection services and family support
services which would provide that, before any application for a care order is
made under the Child Care Act 1991, an assessment is made of parenting skills
and the necessary supports and training that would assist parents with
disabilities to care for their children.
4
4.01
In this Chapter, the
Commission discusses the literature on sexual abuse which suggests that people
with disabilities are at a greater risk of sexual abuse and assault than the
general population. In doing so, the Commission sets out the reasons why this
may be so, the prevalence of sexual abuse against this cohort of the population
and the barriers confronting disclosing sexual abuse for people with
disabilities.
4.02
There is considerable
research which suggests that people with disabilities are at a higher risk of
sexual abuse and assault than the general population.[315]
Research shows that the incidence of sexual abuse against this cohort of the
population can be as much as four times higher than it is among the
‘non-disabled’ population and people with an intellectual disability are at the
highest risk of abuse.[316]
4.03
In Ireland, research
carried out on sexual violence of intellectually disabled adults over a
three-year period found that, in 5 of the 13 cases, the abuse was
intra-familial. 8 of the 13 cases described in the study were of ongoing abuse,
with 4 continuing over a period of months and 4 over a period of years. The
study found that behaviour problems and “acting out” are significant indicators
of sexual violence having occurred, particularly among those who have limited
communication skills.[317]
4.04
The 2002 Sexual Abuse
and Violence in Ireland (SAVI) Report was the first Irish study that documented
the actual prevalence of sexual violence among disabled people.[318]
The Report estimated that sexual abuse of people with disabilities ranged from
8 to 58 per cent.[319] This stark
variation in estimates and the dearth of research carried out in this area have
been attributed to the difficulties in gathering evidence-based data due to a
number of factors. As noted above, poor communication skills compounded by
limited capacity to recall and articulate past events, difficulties in
assessing capacity to consent and co-morbidity conditions have contributed to
the difficulties in developing reliable data.[320]
To date, researchers have either employed the diagnostic or functional approach
to assess capacity to consent to sexual activity, both of which have further
caused difficulties in applying a consistent working definition of sexual
violence amongst this population.[321]
4.05
As noted above, the
SAVI Report found stark variations in estimates of sexual abuse against people
with disabilities. In an analysis of national statistical information collected
by Rape Crisis Network Ireland (RCNI) in 2009, it was found that 7.3% of
survivors who had availed of its services had a disability.[322]
This figure is just slightly lower than the proportion of people identified as
living with a disability nationally, which was recorded in the 2006 Census at
9.6%. Of the 7.3% in the RCNI 2009 survey, 48.5% had a learning disability and
41.2% had a mobility impairment. In an analysis of its statistics of those who
availed of its services in 2006 the RCNI found that one in 20 of every client
had a disability and there was little variation across gender groups. More than
four in every five clients in this category had a learning disability or
mobility impairment.[323] As many as
41% of disabled service users had been subjected to abuse by multiple
perpetrators and at multiple times involving multiple perpetrators.[324]
The analysis reported a higher proportion of service users with a disability
among those who had been abused as a child and adult, compared to either “child
only” and “adult only” groups, showing 13.9 per cent versus 4.1 per cent and
6.8 per cent respectively.[325]
4.06
These statistics from
RCNI for 2009 and 2006 confirm the findings in the SAVI Report that people with
disabilities are at a higher risk of sexual abuse “both in terms of being
targets of sexual violence and subsequently in terms of disclosure and
verification of that abuse.”[326] In the
next section, the Commission considers the issue vulnerability and examines a
number of situational factors which can increase the risk of abuse.
4.07
Vulnerability to abuse
is a multi-faceted. The research suggests that vulnerability involves a complex
relationship and interaction between individual, situational and societal
factors. For example, while disability may increase risk directly whether
through not being able to fend off an attack, or not being able to communicate
what happened, more often it indirectly increases risk because of the way
society views and responds to persons with disabilities.
4.08
The 2002 SAVI
Report identified a
number of situational risk factors which suggest why this cohort of people
might be more ‘at risk’ of abuse. The reasons ranged from deficiencies of
sexual knowledge, physical and emotional dependence on caregivers may create
difficulties in disclosure as people may not feel that they have other care
alternatives and therefore constrained from making complaints. The Report also
noted that multiple caregiving, limited communication skills, and behavioural
difficulties might also be factors which contribute to situational risk
factors.[327] The Report
put forward that “people with learning disabilities are more trusting of
strangers than others, may be unable to discriminate between appropriate and
inappropriate behaviour, readily comply with the requests of others, may be
unable to defend themselves, and may not report incidences” as they may not
have the skills necessary to identify abuse and when incidences are reported
their experiences may at times be overlooked, trivialised, or even not
believed.[328] As such,
the situational or environmental setting may offer opportunities for abuse
without detection. In residential or community care settings, people can be at
an even higher risk of abuse if appropriate safeguards are not in place. This
may be so as limits are placed on personal control, privacy and personal
autonomy. People are expected to follow directions of staff and caregivers in
daily activities contributing to an air of compliance. In such settings people
may be more isolated from friends and family, which may render them more ‘at
risk’.
4.09
The Commission
considers that one’s impairment does not necessarily create an inherent
vulnerability to sexual abuse but rather situational settings can also create
an environment which places people at increased risk of abuse. In the next
section, the Commission examines how the Law Commission of England and Wales
has recently advocated a change in terminology on the issue of ‘vulnerability’
and risk of abuse.
4.10
The Law Commission for
England and Wales, in its 2010 Consultation Paper on Adult Social
Care[329] choose
to adopt different legal terminology to define the cohort of people who are or
may be unable to protect themselves from abuse or neglect. The term ‘vulnerable
adults’ or ‘adults at risk’ was an attempt to move beyond the term ‘mental
incapacity’ as a means of defining this cohort. This can also be seen as a move
from the status approach to the use of more appropriate language which does not
see one’s impairment as the disabling factor with regard to one’s environment.
The Law Commission noted that more recent definitions have adopted the term
‘adults at risk’ since it focuses on the risk factor rather than the
impairment. The definition of ‘adult at risk’ is any person “who is or may be
eligible for community care services” and “whose independence and wellbeing is
at risk due to abuse or neglect”.[330]
The term ‘adults at risk’ has been adopted in the Adult Support and
Protection (Scotland) Act 2007 which refers to people who are unable to
safeguard their own well-being, property, rights or other interests; at risk of
harm; and because they are affected by disability, mental disorder, illness or
physical or mental infirmity, are more vulnerable to being harmed than adults
who are not so affected.
4.11
In England and Wales,
the Safeguarding Vulnerable Groups Act 2006 views vulnerability solely
through the situation in which an adult is placed. The mere fact that an adult
is receiving a service means that they are classified as a ‘vulnerable adult’. The
Law Commission noted that while this situational definition may be useful for
vetting and barring care workers, it is of less use as a definition of who is
potentially at risk of abuse and neglect as it would require an additional
subjective element.[331] The Law
Commission recommended that the term ‘vulnerable adults’ be replaced by ‘adults
at risk’ to reflect the need to focus on the risk that a person faces rather
than the characteristics of the person concerned for the purposes of the duty
to make enquiries.[332] The Law
Commission put forward a two limbed approach of the definition of an ‘adult at
risk’. It recommended that the first limb should be based on a person’s social
care needs, rather than being based on the receipt of services or diagnosis.
The second limb, it recommended, should be based on what the person would be at
risk from. The Law Commission provisionally recommended that the threshold of
significant harm which is currently used in No Secrets, In Safe Hands
and the Children Act 1989, should be retained and welcomed views on
whether the term is useful in practice or whether it establishes a threshold
which is too high. It also recommended that the term ‘harm’ be defined in
legislation but that the term ‘significant harm’ should continue to be left
undefined and left to interpretation. It put forward that ‘harm’ could be
defined as ill-treatment or the impairment of health and development, or unlawful
contact, including specifically financial abuse.[333]
The Law Commission proposed that an ‘adult at risk’ should be statutorily
defined as anyone with social care needs who is or may be at risk of
significant harm.[334]
4.12
A study on sexual abuse
of learning disabled people by others with learning disabilities was compared
to cases where the perpetrator was a paid staff or family member or other
person. Of 171 substantiated cases, 42% involved perpetrators who themselves
had a learning disability. Men comprised 44% of those who had been abused by
learning disabled perpetrators and 15% of those were abused by staff, family
and others.[335] Another
study of sexual abuse of adults with learning disabilities by other people with
learning disabilities found that men were as much at risk of being sexually
abused as women.[336] 94% of the
perpetrators were men and eighty-one per cent had lived or still lived in
congregate settings. Findings were congruent with research that perpetrators
with a disability victimise men and women at similar rates, that living in
congregate settings results in significant risks, and that men and women with
disabilities need to be provided with the skills necessary to identify what
constitutes sexual abuse and what actions are needed to prevent and guard
themselves from it. In fact, abuse prevention work by services has been
identified as a way to raise awareness of situations in which people might be
more at risk of abuse.[337] The
Commission returns to this issue later in this Chapter.
4.13
The UN Declaration on
the Elimination of Violence Against Women, adopted by the UN General Assembly
in 1993, specifically identified women with disabilities as particularly at
risk of sexual abuse.[338] A
preliminary scoping study carried out by Women’s Aid found that the forms of
violence experienced by women with disabilities range over a wide spectrum,
including physical, sexual and psychological abuse, often depending on
the context in which the violence occurs, but that abuse is largely a hidden
problem and women with disabilities are particularly vulnerable to
intra-familial abuse.[339] It
concluded that the possibilities for women with disabilities to leave their
situation are often extremely limited due to a number of factors including
difficulties in naming and identifying abuse both by women and service
providers; women’s isolation and low self esteem; lack of accessible
information for women with disabilities; institutionalised settings in which
many women with disabilities live and the lack of awareness that women with
disabilities can also be victims of sexual violence.
4.14
Similar findings were presented by the Irish Human Rights Commission
(IHRC) in its 2003 submission to the UN Committee on the Elimination of
Discrimination Against Women. In its submission, the IHRC noted that women with
disabilities are particularly at risk of mistreatment in closed environments,
such as residential institutions and rehabilitation centres. It also noted that
a limited number of organisations working to address violence against women
with disabilities have the specific training or expertise to respond to the
needs of disabled women who have experienced abuse. Practical issues, including
a lack of access to information on medical, psychological and legal services,
were identified as obstacles for women with disabilities who have experienced
sexual violence.[340] The IHRC
recommended that that the Government carry out comprehensive research on the
experiences of sexual violence by disabled women taking into consideration the
various contexts in which disabled women live, in particular institutional
settings. The IHRC also recommended that extra funding be allocated to
organisations that provide support and services to women who have experienced
sexual violence in order to make their services accessible to women with
disabilities.[341]
4.15
It is recognised that
there are difficulties in evaluating the levels of sexual crimes partly because
crimes of a sexual nature are underreported. Many factors mitigate against
disclosure of such crimes by victims. Research suggests that some groups in the
community do not have effective access to the criminal justice system and face
particular difficulties in reporting sexual assault. Sexual offences are also
highly personal and traumatic. Instigating proceedings against the accused can
often result in a process of retraumatisation for the complainant. Another
factor identified in the literature is the victim’s expectations of how she or
he will be dealt with by the police, prosecuting authorities and the courts.[342]
The capacity of the criminal justice system to hear and respond to allegations
of abuse from people with limited capacity is a factor that affects disclosure.
As well as facing the same impediments to reporting sexual assault that other
victims face, such as embarrassment, shame and powerlessness, persons with
limited capacity must also manage additional problems such as misconceptions
about their credibility, their memory and their presentation as witnesses;
difficulties communicating with policy, lawyers and judges as well as lack of
appropriate information about the criminal justice process.[343]
The difficulties experienced by adults with limited capacity in the criminal
justice system will be dealt with in greater detail in Chapter 6, below.
4.16
The international literature in this area is supported by the relevant
literature in Ireland. The figures for reporting sexual violence to the Gardaí
are strikingly low.[344] Of the
respondents in the SAVI Report, only 1 in 5 women and only 1 in 10 men had
reported their experience of contact sexual assault. As noted above, figures
from RCNI reveal that in 2009 7.3%
of clients accessing rape crisis centre services were reported as having a
disability.[345] This is
just slightly lower than the proportion of people with disabilities nationally,
which was recorded by the 2006 Census as 9.3%.[346]
This confirms there may be issues around disclosure and access to rape crisis
services for persons with limited capacity which may indicate that these
figures do not accurately reflect the true incidences of sexual abuse of people
with disabilities. Research from RCNI also reveals that the majority of
victims of sexual violence know their abuser which disputes the myth that
sexual offences are most commonly perpetrated by strangers. The Report shows
that where the complainant is attacked by a stranger in a public place and
reports the rape immediately she is more likely to have her case prosecuted
than the “far more common rape which is committed in a private place by someone
known to the victim and where the delay in reporting is greater than an hour.”[347]
It was noted that institutional obstacles and bureaucratic structures are
contributors to the low reported response rate to abuse.[348]
Enquiries into allegations of abuse committed by individual members of staff
were not presented as isolated incidents in the Report, but rather “’a sub-culture within which the
(organisational) hierarchy who at [the very] least passively acknowledged or
condoned what was going on’”.[349]
This sub-culture can perpetuate the position of people with limited capacity as
potential victims of sexual violence.
4.17
As already mentioned,
the environmental context has been identified internationally as a barrier to
reporting abuse. The Victorian Law Reform Commission in its 2003 Interim
Report on Sexual Offences,[350]
noted that dependency on the state, families or caregivers for everyday
needs, coupled with the unwillingness of some agencies to recognise the public
nature of sexual assault can lead to a denial of its existence and an
unwillingness to intervene. Other factors leading to non-disclosure were
restricted social lives and experiences which can impact on the level of
understanding of boundaries of social relations and legal rights. The Victorian
Law Reform Commission also noted that myths surrounding people with limited
capacity can often result in their rights to sexual expression being
compromised, or their credibility put into question with the result that their
complaint may not be taken seriously by police. It also noted that when
complaints are made communication difficulties may arise when victims are
interviewed by police, that complex courtroom language makes it difficult to
respond to questioning or understanding the legal process and that
cross-examination presented particular difficulties for complainants with
limited capacity.[351]
4.18
The proposed mental capacity legislation is likely to provide that
all practicable steps should be taken to assist an individual in making his or
her decision which includes being given an explanation of information in
relation to the decision to be made in a way that is appropriate to his or her
circumstances; including information about the reasonably foreseeable
consequences of deciding one way or another or failing to make the decision.
Rule 9 of the UN Standard Rules on the Equalization of Opportunities also notes that:
“States should promote the full participation of persons with
disabilities in family life. They should promote their right to personal
integrity and ensure that laws do not discriminate against persons with
disabilities with respect to sexual relationships, marriage and parenthood.
Persons with disabilities must not be denied the opportunity to experience
their sexuality, have sexual relationships and experience parenthood. Taking
into account that persons with disabilities may experience difficulties in
getting married and setting up a family, States should encourage the
availability of appropriate counselling. Persons with disabilities must have
the same access as others to family-planning methods, as well as to information
in accessible form on the sexual functioning of their bodies. Persons with
disabilities and their families need to be fully informed about taking
precautions against sexual and other forms of abuse. Persons with disabilities
are particularly vulnerable to abuse in the family, community or institutions
and need to be educated on how to avoid the occurrence of abuse, recognize when
abuse has occurred and report on such acts.”[352]
4.19
The changing model of
service provision in Ireland has meant that people with intellectual disability
are able to realise aspects of their independence and autonomy, in particular
by living in the community setting, rather than in an institutional setting,
and living independently or with some supports. In that respect, people living
with intellectual disability are encouraged to live full and rewarding lives. In
another important respect, however, section 5 of the 1993 Act means that they
are, in effect, restricted from developing intimate relationships that are
enjoyed by the ‘non-disabled’ population. In this section, the Commission
examines the need for policies on educational programmes on personal and
intimate relations for persons with disabilities. In doing so, the Commission
notes the effect of section 5 of the 1993 Act on the development of policies on
sexuality and the provision of education on personal and sexual relations in
services.
4.20
It is well
documented that people with limited capacity often have limited sexual
knowledge by comparison with the ‘non-disabled’ population. There is a clear
connection between the level of one’s sexual knowledge and in being to identify
exploitative situations and guard oneself from sexual abuse. Knowledge about
sexuality, relationships and sexual rights and safety is hugely important and
may assist people with limited capacity to develop appropriate sexual and
self-protective behaviours which may in turn reduce the risk of unwanted sexual
contact.
4.21
This point was
highlighted in the 2002 SAVI Report which raised the issue of lack of
sex-education as an indicator of vulnerability. The Report found that while
sex-education did not seem to prevent sexual abuse, it did increase the
likelihood of it being reported. In recognising this, the Commission its 2005
Consultation Paper on Capacity emphasised the close connection between the
promotion of capacity to consent to sexual relationships with the provision of
education on personal and sexual relations for young adults whose capacity may
be limited which would be pitched at an appropriate level to their capacity.[353]
4.22
The Commission
considers that any legislative change in this area should be accompanied by
greater awareness and understanding by people with limited capacity concerning
privacy, intimacy, relationships and the ability to identify what constitutes
abuse or exploitation. The Commission in its Report on Vulnerable Adults noted
that the Office of Public Guardian, which is anticipated will be established in
the forthcoming mental capacity legislation, will have a general educational
role by including codes of practice and general advice and guidelines to a
range of professionals working in a variety of area, including medical, health,
care staff, financial institutions, legal professionals and others.[354]
4.23
The Commission is
aware that there is a general desire by service providers to have in place
policies and procedures aimed at empowering people to realise their sexual
rights. Currently, the provision of sex-education is a voluntary step taken by
the service provider. The Commission has learnt that for the most part the
policies on sexuality have focused on protection rather then empowering clients
and providing them with information on sexuality and relationships which in
turn perpetuates their lack of knowledge in this area.
4.24
From a practical
perspective section 5 of the Criminal Law (Sexual Offences Act 1993 has
created a dilemma for many services. There is a clear lack of knowledge how the
law is applied. Staff are fearful that if they encourage mutually consensual
relationships between clients they could be held liable for aiding and abetting
a crime. As such, given the difficulties section 5 of the 1993 Act presents,
service providers are slow to take a proactive approach to sexuality which consequently
perpetuates the ignorance experienced by service users in this area. At the
same time organisations are vulnerable to criticism that, if they support
people to develop relationships that are seen as contravening the provisions of
section 5 of the 1993 Act and also open to failure in their duty of care if
they allow relationships between service users.
4.25
From a service user
perspective the impact of section 5 of the 1993 Act is that their right to
sexual relationship is denied; repressive rules on sexual expression and
discussion in services and in the family context is forbidden; if the
provisions of section 5 of the 1993 Act are complied with, a mutually
consenting relationship is dependent on the permission of staff or family members;
a culture exists wherein a sexual relationship is seen as creating difficulties
in terms of its ‘management’ and general negative attitudes towards sexual
expression and sexuality.
4.26
The Commission
considers there is merit in having a national sex-education programme which
would give guidance on what the law permits and the steps required to protect
adults who may be vulnerable to abuse while maintaining their right to sexual
freedom. The introduction of national guidelines on sex-education would also
benefit from training of staff, carers and parents. Without such guidelines
there is a danger that information and training would be inconsistent. A
curriculum along the lines of the FETAC level training courses which are
currently provided on a range of topics could be developed. In the past, the
Irish Sex-Education Network funded research on sex-education programmes and
this could be reviewed in line with national guidelines. As noted above, the
Commission in its 2006 Report on Vulnerable Adults and the Law
recommended that the proposed Office of Public Guardian should ensure
appropriate codes of practice are formulated for a range of people dealing with
‘vulnerable adults’, including medical, health and social care staff, financial
institutions, legal professionals and others.[355]
A code of practice could be developed by the Office of Public Guardian to
provide guidance for those working with people with disabilities in the area of
sexuality and relationships on interpreting the provisions in the forthcoming
mental capacity legislation.
4.27
In its 2006 Report on Vulnerable Adults the Commission recommended a
mechanism so that anyone may complain to the proposed Office of Public Guardian
in relation to abuse, to ensure that the necessary investigation can take place
and relevant action instigated. The Commission also noted once the Public
Guardian is established, coordination will be required between the Public
Guardian, and other bodies such as the National Disability Authority, the
Health Service Executive and the Health Information Quality Authority.[356]
4.28
Formal policies, standards, regulations and inspection, together with
advocacy services represent the key current protective mechanisms for
disability service users.[357] In this
section, the Commission examines these existing frameworks.
4.29
The HSE’s Trust In
Care Policy document provides the framework for the treatment of
allegations of abuse within health and social care services.[358]
The Policy recognises that health and social care agencies have a duty of care
to their clients that goes beyond their duty as employers. In discharging this
duty of care the policy identifies the need for a robust procedure for dealing
with allegations of abuse against staff members while safeguarding the welfare
of clients.
4.30
The policy identifies
the following measures that each health and social care agency must adhere to
in discharging its responsibility to protect the dignity and welfare of clients
and support staff in their work:
·
sufficient allocation of resources to enable best practice standards to
be delivered;
·
provide safe systems of work to minimise the potential for abuse;
·
provide information leaflets setting out how clients, their relatives
and members of the public can report concerns or complaints of abuse to the
relevant authorities;
·
rigorous recruiting process and selection procedures with induction for
all new staff;
·
the provision of effective supervision, support and training;
·
communicate the Trust In Care Policy to all staff so they are fully
aware that the welfare of clients is of paramount importance and know what
action is required if abuse is suspected or alleged; and
·
manage allegations of abuse against staff members promptly and with due
regard of the right to fair procedure while safeguarding the welfare of
clients.
4.31
The Health Information and Quality Authority (HIQA) was established
under the Health Act 2007 with the specific role to set standards and
oversee the quality throughout the health and social care services. HIQA‘s role
also extends to monitoring compliance with these standards and operates
accreditation programmes for services. It is also responsible for registration
and inspection of residential care centres for people with disabilities.
4.32
In 2009, HIQA published a set of non-statutory standards in relation to
residential care for people with disabilities, with specific provisions on
abuse.[359] Standard 6
of the National Quality Standards: Residential Services for People with
Disabilities states that each individual must be safeguarded and protected
from abuse through risk assessment and management policies and procedures for
dealing with situations where people’s safety may be risk. Standard 9.2 states
that individuals should be encouraged to access appropriate health information
and education, both within the residential setting and in the local community
in all aspects of his or her life, including sexual relationships and sexual
health. The HIQA guidelines do not apply to people with disabilities availing
of community-based or day services. The 2011 Programme for Government pledges
to put these National Standards on a statutory footing and ensure that services
are inspected by HIQA.[360]
4.33
The Social Services Inspectorate has a remit which was extended under
the Health Act 2007 to include the registration and inspection of
nursing homes and residential services for people with disabilities as well as
its original responsibility which was to oversee residential child care
settings. The mandate of the Inspectorate does not cover community-based or day
services for people with disabilities.
4.34
The Commission considers that with the current drive towards community
living there is a need to develop national standards for community-based or day
services similar to those developed by HIQA for residential services.
Furthermore, the Commission believes there is merit in extending the remit of
the Social Services Inspectorate to cover community-based and day services.
4.35
In England and Wales
social services authorities have statutory powers and duties in adult
protection cases. Section 47 of the NHS and Community Care Act 1990
imposes a duty on a local authority to carry out an assessment of need for
community care services where a person appears to be someone for whom community
care services could be provided and a person’s circumstances may need the
provision of some community care services. This duty could be regarded as
amounting to a statutory duty to investigate. It notes that where a local
authority becomes aware that a person may be in need of services due to actual
or potential abuse or neglect, the duty to assess will be triggered. This
assessment will establish the facts of the case and may in turn initiate
referrals to other services and organisations, for instance, local safeguarding
teams, mental health services, the police and the Public Guardian.
4.36
Where an authority
provides services it may have be held accountable for any failure to
investigate where there is an allegation of abuse. Local authorities may also
be held accountable for not adhering to their responsibilities, particularly
where a failure to investigate or use the powers conferred on it, leads to a
situation where a person suffers harm.[361]
4.37
The duty to assess or
investigate is triggered where a local authority becomes aware that a person
may be in need of services due to actual or potential abuse or neglect. This
assessment establishes the facts of the case and referrals to other services and
organisations may be required, such as local safeguarding teams, mental health
services, the police and the Public Guardian.[362]
4.38
Furthermore, local
authorities have statutory powers to take or initiate compulsory action under
section 47 of the National Assistance Act 1948. Section 135(1) of the Mental
Health Act 1983 enables a person to be removed from their home to a place
of safety where it is believed that they are being ill-treated or neglected. In
terms of statutory guidance No Secrets and In Safe Hands establishes
social services as the lead co-ordinating agency for safeguarding and public
law requirements including those imposed under the European Convention on Human
Rights. The Commission will discuss the statutory guidance as outlined in No
Secrets and In Safe Hands in the next section.
4.39
In its 2011 Report
on Adult Social Care, the Law Commission of England and Wales noted,
however, that the community care assessment duty, which is the main legal
vehicle for carrying out investigations, was not framed with primarily with
adult protection in mind and has become an unsatisfactory mechanism. It
proposed that a statute should clarify the existing legal position and
establish a duty on local authorities to make enquiries and take appropriate
action in adult protection cases. It proposed that such appropriate action
could include service provision, monitoring or the use of existing compulsory
powers.[363]
4.40
The Care Standards
Act 2000 established a new regulatory body for social care and care
services in England, known as the National Care Standards Commission. It is
responsible for inspecting and regulating almost all forms of residential and
domiciliary care. In 2004 this body was replaced by two organisations, the
Commission for Social Care Inspection and the Commission for Healthcare Audit
and Inspection. In 2009 these two bodies were replaced by the Care Quality
Commission which was established under the Health and Social Care Act 2008. The
Care Quality Commission is now the new independent body with exclusive
responsibility for the inspection, monitoring and regulation of health and
social care in England.
4.41
The English Mental
Capacity Act 2005 also permits decisions or actions to be taken by local
authorities. The 2005 Act enables local authorities and NHS bodies to appoint
an Independent Mental Capacity Advocate where it is alleged that a person who
lacks capacity is or has been abused or neglected by another person, or the
person is abusing or neglecting another person.[364]
4.42
The English statutory
guidance document No Secrets[365]
and Welsh equivalent In Safe Hands[366]
provide for the development of local inter-agency policies, procedures and
joint protocols for the purposes of safeguarding adults, and establish the
local social services authority as the lead agency. Both documents were
issues as guidance in 2000 under section 7 of the Local Authority Social
Services Act 1970. The guidance was introduced on foot of calls that
national guidelines be developed in conjunction with local multi-agency codes
of practice for the protection of adults at risk.[367]
The guidance states that criminal investigation should take priority over all
other lines of inquiry. The guidance emphasises the importance of cooperation
at all levels of management and operations; rigorous recruitment and vetting
procedures for all staff and volunteers working with vulnerable adults;
training for staff and volunteers; internal guidelines for agencies; and
information to service users, carers and the public. No Secrets and In
Safe Hands are to be read in conjunction with the Safeguarding Adults
Protocol and Guidance, as issued by the Commission for Social Care Inspection
which is discussed below.
4.43
The guidance
states that an investigation is normally justified on the basis of “harm”, which includes ill-treatment,
impairment of or avoidable deterioration in physical or mental health and
impairment of physical, intellectual, emotional, social or behavioural
development.[368] All staff
have a responsibility to act if there is a suspicion or evidence of
abuse or neglect. In most cases, the guidance outlines, there should be
a joint investigation rather than a series of separate investigations.[369]
As such, both No Secrets and in Safe Hands require social
services authorities in England and Wales to investigate cases of actual or
alleged abuse and neglect, and to coordinate any appropriate action.
4.44
The Care Standards Act 2000 and the Health and Social Care
(Community Health and Standards) Act 2003 place specific responsibilities
and duties on the Commission for Social Care Inspection and in working to
safeguard adults the Commission for Social Care Inspection must work within
that legal framework. In 2007 the UK’s Commission for Social Care Inspection
issued the Safeguarding Adults Protocol and Guidance which is a national
framework of standards for good practice and outcomes in adult protection work.
The protocol involves setting up Safeguarding Adult teams for each local
authority area. These teams provide a forum for locally based statutory bodies
such as police, social workers, health service and the voluntary service
providers and people with disabilities themselves to meet on a regular basis to
share and follow up on concerns relating to possible abuse and neglect.[370]
4.45
The national framework is comprised of eleven standards for good
practice and outcomes in relation to adult protection:
·
a multi-agency partnership in each local authority to lead ‘Safeguarding
Adults’ work;
·
accountability for and ownership of Safeguarding Adults work is
recognised by each partner agency’s executive body;
·
the Safeguarding Adults policy includes a clear statement of every
person’s right to lead a life free from abuse and neglect, and this message is
actively promoted to the public by partner organisations;
·
each partner agency has a well-publicised policy of zero-tolerance of
abuse within the organisation;
·
there is a multi-agency development/training strategy resources within
each partnership;
·
all citizens can access information about how to gain safety from abuse
and violence, including information about local Safeguarding Adults procedures
·
there is a local multi-agency Safeguarding Adults policy and procedure
describing the framework for responding to all adult who may be or are eligible
for community care services or who may be at risk of abuse of neglect;
·
each partner agency has a set of internal guidelines, consistent with
the local multi-agency Safeguarding Adults policy and procedures, which sets
out the responsibilities of all workers to work within such guidelines;
·
the multi-agency Safeguarding Adults procedures detail the following stages:
alert, referral, decision, safeguarding assessment strategy, safeguarding
assessment, safeguarding plan, review, recording and monitoring;
·
the Safeguarding Adults procedures are accessible to all adults covered
by the policy;
·
the partnership explicitly includes service-users as key partners in all
aspects of its work.
4.46
In 2010, the Law
Commission for England and Wales published a Consultation Paper on Adult
Social Care[371]in response
to growing calls for the introduction of new adult protection powers and duties
on local authorities to investigate abuse. Arising from a consultation on the
review of the legal framework for safeguarding adults in England, the
Government set up an Inter-Departmental Ministerial Group on Safeguarding
Vulnerable Adults with the intention of introducing new legislation to
strengthen the local governance of safeguarding adults by putting Safeguarding
Adults Boards on a statutory footing. On foot of the consultation process the
Government also launched a programme of work with agencies and stakeholders to
support effective policy and practice in safeguarding vulnerable adults. The
Law Commission’s Consultation Paper proposes that the future adult social care
statute should clarify the existing legal position and establish a duty to make
enquiries and take appropriate action in adult protection cases within the
existing powers of social services authorities. The Commission provisionally
recommended that the “proposed duty would operate in conjunction with the
community care assessment duty by enabling explicitly a formal process
to be initiated in adult protection cases. The duty to investigate would be
triggered if the authority has reasonable case to suspect abuse or
neglect, which would not be the case, for example, if the authority did not
have and could not be expected to have full knowledge of the relevant facts.”[372]
4.47
In the Law Commission’s
2011 Report on Adult Social Care the Commission recommended that a
future adult social care statute should provide clearly that local social
services authorities have the lead co-ordinating responsibility for
safeguarding. Its also recommended that a future statute should place a duty on
local social services authorities to investigate adult protection cases, or
cause an investigation to be made by other agencies, in individual cases; and
that the future statute should place a duty on the Secretary of State and Welsh
Ministers to make regulations prescribing the process for adult protection
investigations.[373]
4.48
The issue of the common law duty of care came to light in the 2009 case X
v Hounslow London Borough Council where the Court of Appeal head that a
local authority did not owe a common law duty of care to protect tenants living
in one of its flats by moving them into alternative accommodation as a result
of “the unusual but dangerous situation which had developed”.[374]
The case illustrates the difficulties in bringing claims against public
authorities. X, Y and Y’s children lived in a flat provided for by the local authority.
The local authority knew that X and Y had learning difficulties. Local youths
took control of the flat and used it for illicit activity, including taking
drugs, underage sexual activity and storing stolen goods, and on several
occasions the coupe had been subjective to threatening and abusive
behaviour. X claimed that the local authority should have realised that the
family were in imminent physical danger which should have triggered its
responsibility in providing alternative accommodation. The Court of Appeal held
that the local authority did not owe a duty of care to protect X from the
criminal acts of third parties. The Court held that in order to establish a
duty of care to protect one party against the criminal acts of a third party,
something more than reasonably foreseeability of harm was needed. The necessary
factors for establishing the duty of care include situations where the
defendant creates the source of danger to the claimant; the third party who
causes damage is under the control or supervision of the defendant; and the
defendant has assumed a responsibility to the victim. It can be deduced that
the point at which a local authority will be held to have assumed a duty of
care to protect an individual from harm caused by a third party is more than
merely providing services and other support to individuals. The common law has
not yet recognised a duty of care, if a local authority assumes a
responsibility over an individual or increases or causes the danger they face,
such a duty may be found in the future.[375]
4.49
In recognising the high
levels of abuse perpetrated against people with disabilities, the Council of
Europe introduced a Resolution in 2005 on safeguarding adults and children with
disabilities against abuse.[376] The
Resolution recommends that member States invest in the prevention of abuse and
give this commitment a high profile. In meeting this commitment, human rights
standards need to be adhered by Sates when developing primary prevention
measures which would include raising awareness of rights through education and
proper recruitment and training and the introduction of strong laws which act
as deterrents. If, despite the introduction of these measures, abuse continues,
the Resolution calls for secondary prevention measures to ensure that abuse is
promptly recognised investigated and acted upon. Lastly, the Resolution
outlines tertiary prevention methods to alleviate harm done as a result of
being a victim of abuse and help people recover their confidence and trust in
others.
4.50
Arising from the
Council of Europe 2005 Resolution, the Council of Europe Disability Action
Plan 2006-2015 was agreed in 2006.[377]
The objective of the Action Plan is to translate the aims to the Council of
Europe with regard to human rights, non-discrimination, equal opportunities,
full citizenship and participation of people with disabilities into a European
policy framework on disability.[378]
The Action Plan highlights each member State’s duty in preventing and
protecting people against acts of abuse and violence. The Plan recommends the
development of policies aimed at safeguarding people with disabilities against
all forms of abuse and violence and ensure appropriate support for victims of
abuse and violence. In fulfilling this duty, Action line no.13, entitled
‘protection from abuse and violence’, calls on each member State to develop a
national action plan to protect people with disabilities from abuse with the
aim of ensuring access to services and supports for victims. It also highlights
the increased rate of abuse and violence committed against persons with
disabilities than the rate for the ‘non-disabled’ population and higher again
for women with disabilities, particularly women with severe disabilities, where
the percentages of abuse far exceed those of ‘non-disabled’ women. The Action
Plan notes that such abuse can be inflicted by strangers or persons known to
the individual and can take many forms.
4.51
As previously mentioned the 2006 Convention on the Rights of Persons
with Disabilities (UNCRPD) is the first international legally binding
instrument that sets down minimum standards for the protection and safeguarding
of the civil, political, social, economic and cultural rights of persons with
disabilities throughout the world. Article 16 of the Convention, is new in that the human rights protection
it affords is applied to situations where people with disabilities may be more
at risk of abuse, for instance, in institutional settings.[379]
Article 16(1) of the UNCRPD imposes a duty to protect on States Parties to take
all appropriate legislative, administrative, social, educational and other
measures to protect persons with disabilities. Of particular significance is
the obligation on States Parties to take all appropriate measures to protect
persons with disabilities both within and outside the home from all forms of
exploitation, violence and abuse. Thus, “the explicit inclusion of ‘home’ means
that States Parties will have to craft appropriate tools to investigate abuse
within the family setting.”[380] The
article imposes a duty on States to prevent all forms of exploitation and abuse
by providing assistance and supports including information on how to recognise
and report instances of abuse.[381]
It puts an obligation on States Parties to set up independent bodies to
effectively monitor institutions.[382]
Furthermore, it requires States Parties to put in place effective measures to
assist and support in the recovery of people with disabilities who are victims
of abuse by introducing measures to promote the physical, cognitive and
psychological recovery, rehabilitation and social integration of victims.[383]
Importantly, it requires effective legislation and policies to ensure
identification, investigation and prosecution of abuse. States are also obliged
to introduce preventative measures to ensure that people with disabilities and
their families are given information to help them avoid, recognise and report
instances of abuse which is age, gender and disability-specific.[384]
4.52
The obligation of the
State to protect must be done on an equal basis with others. As such, Article
16 is not a mandate for the State to restrict the other provisions in the Convention
and cannot encroach on consensual intimate relationships.
4.53
The provisions in
Article 16 could prove extremely useful as a tool for effective prevention from
sexual abuse and exploitation of persons with limited decision-making ability.
The very fact that Article 16 provides for investigative powers, effective
complaint mechanisms;, disability awareness training for people working in the
criminal justice system and cross-departmental collaboration (which currently
exists for child protection) shows the importance attached to this Article
within the UN Convention. Traditionally, there has been tension between the
public and private in terms of how far investigatory powers extend to, however,
as Quinn notes, Article 16 “sends a very strong signal that there are to be no
more ‘no-go-areas’ for the public authorities.”[385]
4.54
In this section, the Commission outlines the current shift from
institutional care to living in the community and how this movement will demand
strengthening the protection framework in mainstream setting for people with
disabilities.
4.55
According to the National Intellectual Disability Database Report,
25,556 people with intellectual disability were in receipt of services. This
figure applies to those in receipt of day, respite or residential services.
This represents 98% of the total number registered on the National Intellectual
Disability Database in 2009.[386]
4.56
There are gaps in the protection framework for people with disabilities.
The absence of statutory regulations or standards for day services for people
with disabilities; the absence of an inspection system for day services for
people with disabilities and the absence of specific mechanisms to prevent or
address abuse of people with disabilities who live in the community must be
addressed if people are to be protected from abuse. With the drive towards
community-based services as a result of people with disabilities choosing to
live in the community there may be a need for HIQA to develop a set of
standards that would apply to community services as well as extending the mandate
of the Social Services Inspectorate to oversee community settings. Indeed,
Article 19 of the UNCRPD explicitly recognises the right of persons with
disabilities to independent living and community inclusion which requires a
shift in policy away from institutions towards in-home, residential and other
community support services. As noted by the Office of the High Commissioner for
Human Rights, the key element in this provision is that any intervention aimed
at giving effect to the right to independent living and community inclusion is
the explicit legal recognition of the right of persons with disabilities to
determine where and with whom they live.[387]
4.57
Cosc, the National
Office for the Prevention of Domestic, Sexual and Gender-based Violence which
was set up in 2007, has a remit in the development of intervention responses
for groups which are seen as most at risk of abuse. The protection of people
with disabilities who do not live in residential settings falls on this agency.[388]
In its National Strategy on Domestic, Sexual and Gender-based
Violence 2010-2014 Cosc states that it will work closely with service
providers and the National Disability Authority to look at models of best
practice standards to meet the particular needs of persons with disabilities
and to promote and encourage improved responses to preventing abuse.
4.58
In developing best practice for the prevention of abuse, parallels can
be drawn from systems that have been introduced to address abuse against other
categories of vulnerable people such as children and the elderly. Possible
policy innovations could include coordination between the Garda Síochána and
the HSE on responding to allegations of abuse. In 2010, the Garda Síochána
introduced such a measure and has developed a policy document on the
investigation of sexual crimes against children in which members, responding to
allegations of sexual crimes involving people with a disability, are advised
that such incidents may require inter-agency collaboration with the disability
sector.[389] The
document also advices members to be aware that disability can present itself in
many forms such as physical, sensory, intellectual or a mental health
difficulty.
4.59
Section 3 (1) of the Child Care Act 1991 imposes a statutory duty
on the Health Service Executive (HSE) to promote the welfare of children who
are not receiving adequate care and protection. This duty lies at the centre of
the Irish child protection system. It is important to bear in mind that the
section imposes a positive duty on protect children at risk. This duty can be
fulfilled in two ways – the identification of children not receiving proper
care and the coordination of information of information from relevant sources,
such as police and schools. This duty is broad and extends to a duty to
institute court proceedings where, according to the HSE, is necessary for the
protection of the child. In line with this duty and the standard reporting
procedures set out in Children First: National Guidelines for the Protection
and Welfare of Children (first published in 1999 and replacing 1996
Department of Health guidance), concerns regarding children should be reported
to the HSE. Once a significant doubt arises from an investigation into an
allegation of abuse, the HSE is obliged to take measures to protect the child
concerned. The Children First guidelines could provide a model for dealing with
suspected abuse of people with disabilities who are in receipt of services from
the HSE.
4.60
In 2011, the Minister for Children and Youth Affairs stated that the
Government will place the Children First guidelines on a statutory footing in
2011 in order to enhance accountability for people working with children. By
placing the Children First Guidelines on a statutory footing, all
organisations and individuals working with children will have a legal
obligation to share information with authorities relating to child welfare
concerns, and to follow protocols for the assessment of suspected abuse or
neglect.[390] Failure to
comply with aspects of the national code will give rise to criminal sanctions
including jail sentences, fines, prohibition from working with children and
mandatory external inspections.
4.61
The Office of the Ombudsman for Children was set up in 2004 under the Ombudsman
for Children Act 2002 to promote the rights and welfare of children
and to ensure that legislation, policy and practice on matters relating to
children are adequate. The Office can investigate complaints about the actions
of public bodies where it appears that a child has been adversely affected and
the action taken was not in line with fair or sound administrative practices.
As such, the Office does not directly investigate allegations of abuse but the
manner in which investigations are handled by the authorities.
4.62
The HSE has taken significant measures in recent years to combat elder
abuse in particular by raising awareness about the issue.[391]
As part of these measures, the HSE has appointed Dedicated Officers for Elder
Abuse in each HSE administrative area who are responsible for developing and
evaluating the HSE’s response to elder abuse. The HSE has also appointed Senior
Care Workers for Elder Abuse, who are employed within Local Health Offices, and
who work closely with Dedicated Officers for Elder Abuse to assess and manage
cases of suspected elder abuse referred to the HSE. These initiatives have led
to increase public awareness of elder abuse, and increased reporting of
incidents of suspected abuse.
4.63
As already mentioned,
the Government has adopted a national strategic approach in relation to child
protection in the form of the Children First National Guidelines.
Significant developments have also begun in recognising the need to address
elder abuse.[392] There have
been calls for a similar national strategic approach on the issue of abuse of
adults with disabilities.[393]
4.64
Some services are
obliged by the Health Service Executive to report any abuse or allegation of
abuse committed against children and adults on a monthly basis. This obligation
would arise where a service operates as an agent of the HSE. While there is no
statutory duty to report where there is an allegation of abuse their obligation
stems from their services agreements with the HSE. Some services have a
designated person to whom complaints of abuse are sent to but there needs to be
clear protocols on what action is taken on foot of receiving such allegations.
The duty to report is part of the services agreement for HSE funded services
and the duty is also included in the HIQA guidelines. Consistent rules,
however, must apply across all services.
4.65
Protection and
statutory immunity from liability is provided for bona fide reporting of
child sexual abuse under the Protection for Persons Reporting Child Abuse
Act 1998. Currently, mandatory reporting of abuse is not required. The
Commission is acutely aware that this issue has been the subject of renewed
attention in the wake of the publication of the Report by the Commission of
Investigation into Catholic Diocese of Cloyne[394]
which revealed how the Church and state agencies responded to
allegations against 19 clerics in the Diocese of Cloyne between 1996 and 2008.
As a result of this Report, the Minister for Justice and Equality has stated
that legislation is being prepared which will make it a criminal offence to
withhold information relating to sexual abuse or other serious offences against
a child or vulnerable adult.
4.66
The concept of mandatory reporting originated in the United States and
refers to legislation that specifies who is required by law to report suspected
cases of abuse or neglect. This obligation imposes a penalty, usually a fine, on any mandated individual found in
breach of their reporting responsibilities.[395]
Immunity is provided from civil or criminal prosecution where a person submits
a report of suspected abuse in good faith.
4.67
Along with the United States, Australia and Canada pursue mandatory
reporting as an integral feature of their respective child protection systems.
In Australia, mandatory reporting laws exist in all states and territories. Similarly,
in Canada, each province, with the exception of Yukon Territory, has mandatory
reporting provisions in their legislation. In general, however, voluntary
reporting systems tend to be more common and are included in inter-agency
protocols which emphasise information sharing and structured coordination of
efforts.[396] England,
Scotland and Wales share this voluntary reporting system whereas Northern
Ireland has enacted mandatory reporting legislation in its child protection
laws.
4.68
Legislative arrangements for mandatory reporting can vary in relation to
the scope of what is mandated which can range from full coverage requiring all
citizens to report child abuse to selected mandatory reporting which focuses on
specific professional groups. There are variations in terms of definitions of
abuse and neglect, limits of professional confidentiality as well as timeframes
for reporting. As such, stark variations exist, from minimal professional
coverage in the Yukon Territory in Canada to New Jersey in the US where each
person is under a duty to report. In Western Australia there is a voluntary
reporting system in place, however, this is buttressed by inter-agency
protocols.
4.69
There is no empirical
research that clearly shows that introducing a legal obligation to report
decreases the incidences of abuse. It has been suggested that the context in
which mandatory reporting laws are introduced will dictate their effectiveness.[397]
While mandatory reporting has been seen to increase reporting cases of
maltreatment, questions have been raised as to the quality of reporting and
increased rates of unsubstantiated cases as well as the ability of a system to
deal with the numbers of allegations in an appropriate manner.[398]
The Irish Association of Social Workers, in response to plans to introduce
mandatory reporting in respect of allegations of abuse against children and
vulnerable adults[399], warned
that “the child protection system is not working properly. There are
significant numbers of children without social workers or care plans… I don’t
see how putting additional pressure on child protection services will improve
this situation.”[400] The
Association, in highlighting the difficulties with mandatory reporting, pointed
to Australian states where mandatory reporting has led to services being
overwhelmed by reports of suspected abuse. To deal with difficulties in
administering the system of mandatory reporting the “Wood Inquiry” which was
set up in 2008 to investigate the deaths of 2 children in New South Wales
recommended that that the duty to report be limited to cases of suspected
significant harm and to implement greater focus on the referral of more minor
cases to community-based services.[401]
4.70
In Ireland, the move
towards mandatory reporting has been positively received by child advocacy
groups. Barnados, the Irish Society for the Prevention of Cruelty to Children
(ISPCC) and the Children’s Rights Alliance had been calling for some time for
the introduction of mandatory reporting of child abuse in response of recent
cases involving clerical child sex abuse.[402]
4.71
The issue of mandatory
reporting is not a panacea however and it has been argued, that rather than
introducing mandatory reporting or other regulatory measures in the hope that
services become aware of more instances of abuse, that the protection system
could be better supported by providing training, skill development, supervision
and capacity building to employees within a supportive framework.[403]
4.72
Assuming mandatory
reporting is introduced, the Commission considers it will be important to
clarify what extent of abuse needs to be reported. Furthermore, the Commission
believes that multidisciplinary training should be introduced alongside
imposing a legal duty on those to report concerns over possible abuse.
4.73
The 2004 Report of the
Working Group on Garda Vetting recommended that the Protection of Persons
Reporting Child Abuse Act 1998 should be amended so as to offer protection
for persons reporting the abuse of people with mental or physical disabilities.[404]
In 2011, the Draft Heads of a National Vetting Bureau Bill were
published. The Bill will provide a statutory basis for the vetting of all
applicants for employment and employees working with children or vulnerable
adults. The Bill will provide for a vetting process which will provide for the
identification of both ‘hard’ and ‘soft/relevant information’, in particular,
information relating to the endangerment, sexual exploitation or sexual abuse,
or risk thereof, of children and vulnerable adults.[405]
The Bill will allow the use of information where individuals are under
investigation for alleged abuse and if an organisation is concerned that an
individual could place a child or a vulnerable adult at serious risk, the
agency will be obliged to provide that information to the vetting bureau. This
obligation will be on the HSE, faith-based organisations and groups including
the Catholic Church. Organisations could face a fine and individuals could be
imprisoned where job applicants or volunteers are not vetted or where concerns
that they may put children at risk are not reported.
4.74
The 2011 Draft Heads
of a National Vetting Bureau Bill 2011 is modelled on the English Safeguarding
Vulnerable Groups Act 2006 which sets outs the legislative basis in England
and Wales for the vetting of people working with children and vulnerable
adults. The Independent Safeguarding Authority (previously called the
Independent Barring Board) works in conjunction with the Criminal Records
Bureau, an agency of the Home Office, in delivering the vetting and barring
scheme. The 2006 Act creates a list of people barred from working with children
and a second list barring people from working with vulnerable adults.
4.75
The Commission is aware
of the Government’s intention to propose the enactment by the Oireachtas of
generally applicable legislation to prevent employers from taking action
against whistleblowers.[406] This would
go beyond, for example, the provisions of section 20 of the Criminal Justice
Act 2011, which deal with protecting any person who is penalised for
providing information to Gardaí concerning specified serious “white-collar”
crimes.
4.76
The Commission, in its
2009 Consultation Paper on Legal Aspects of Carers invited submissions
on the issue of protecting people who report concerns about incidents of
possible abuse of vulnerable adults by professional carers.[407]
The Commission now turns to discuss this issue in light of renewed attention in
recent times which showed the lack of legal protection currently afforded to
so-called ‘whistle-blowers’ in the event of an action taken by employers or
colleagues.
4.77
A “whistleblower” is
someone who discloses information to authorities about serious concerns they
have about a health or social care service which either they or someone they
are in contact with receive. A “whistleblower” may also be someone who is
employed by a health or social care provider, and who discloses information to
the relevant authority about the care provider.[408]
4.78
The Protection for
Persons Reporting Child Abuse Act 1998 introduced legal safeguards to
protect persons who reported concerns about incidents of possible child abuse. Section
3(1) of the 1998 Act provides that where a person expresses his or her opinion
to an appropriate person that a child is or have been abused he or she will not
be liable for damages, provided that he or she acts reasonably and in good
faith.[409]
4.79
The 1998 Act provides
that where an employee makes a communication under section 3, his or her
employer shall not penalise the employee for having done so.[410]
Where an employer breaches this provision, the employee may present a complaint
to a rights commissioner in the Labour Relations Commission that his or her
employer has contravened this provision, and the rights commissioner must give
the parties an opportunity to be heard by the commissioner. Where a person
makes a statement in accordance with section 3, and he or she knows the
statement to be false, that person is guilty of an offence.[411]
4.80
The Health Act 2004 (which
established the Health Service Executive), as amended by the Health Act 2007,
has made extensive provision in relation to employees of relevant bodies who
make disclosures of information.[412]
Where an employee of a relevant body[413]
makes a disclosure of information to an authorised person in good faith, then
this disclosure shall be deemed to be a “protected disclosure”.[414]
Such a disclosure of information must be made in good faith, and the
whistleblower must have reasonable grounds that the disclosed information will
establish that the health or welfare of a person who is receiving a health or
personal social service is or is likely to be at risk,[415]
that the actions of any person employed by a relevant body poses or is likely
to pose a risk to the health or welfare of the public[416]
or that the relevant body is failing or is likely to fail to comply with any
legal obligation.[417] Where an
employee makes a protected disclosure regarding the conduct of his/her
employer, he or she shall not be penalised,[418]
and any contravention of this by the employer constitutes a ground of complaint
by an employee to a rights commissioner.[419]
4.81
Where a person makes a
protected disclosure, he or she is not liable in damages, or other forms of
relief,[420] unless he
or she knew that it was, or was reckless as to whether it was, false,
misleading, frivolous or vexatious.[421]
Where a professional carer is employed by the HSE, or another organisation that
has entered into a contractual arrangement with the HSE,[422]
and he or she makes a disclosure of information on reasonable grounds and in good
faith, the disclosure will be deemed to be protected.[423]
4.82
Section 55C of the Health
Act 2004, inserted by the Health Act 2007, appears to protect
employees of residential institutions not operated by the HSE or contracted to
provide services on behalf of the HSE from liability for disclosing information
to the chief inspector. This would occur where the information is disclosed in
good faith and on reasonable grounds that it would show that (a) the actions of
any person employed by the institution posed, is posing or likely to pose a
risk to the health or welfare of a resident or (b) the person carrying on the
business has failed to comply with the regulations and standards as prescribed
under the Health Act 2004, as amended by the Health Act 2007.
4.83
Furthermore,
section 103 of the Health Act 2007 provides some protection for
whistle-blowers in the health sector who bring their concerns to the Health
Information and Quality Authority or the Mental Health Commission. Manning
notes, however, that it is unclear to the Irish Human Rights Commission,
whether this mechanism is commonly known to healthcare workers and whether the
whistleblowing authorised in the legislation works in practice.[424]
It has been highlighted that there is little experience of whistleblowing in
Ireland. In its 2009 annual report, the Standards in Public Office Commission
indicated that it receives a surprisingly small number of complaints every year
under ethics legislation.
4.84
Article 10 of the
ECHR expressly provides for the right to “impart information and ideas without
interference by public authorities”. Individuals who disclose information they
deem to be in the interest of the public are this entitled to protection from
sanctions imposed upon them by employers about whom the disclosures are made.
4.85
The Commission considers
that there is a need to develop national standards concerning safeguards from
sexual abuse for “at risk” adults and to develop protocols on cooperation
between different agencies, including the Health Service Executive and the
Garda Síochána.
4.86
In relation to the development of standards that would apply to
community based services, the Commission considers that such standards should
be developed by all relevant bodies. The Commission also considers that a
multi-agency approach, similar to that which was adopted for the implementation
of the National Guidelines for the Sexual Assault Treatment Units (SATUs),[425]
could be applied to deal with sexual offences involving persons with
intellectual disability. In the context of persons with an intellectual
disability who have been the victim of a sexual assault the National Guidelines
note the following:
“[i]f a
person with an intellectual disability lacks the capacity to give consent, you
should consult their parents, guardians and/or carers. Many Intellectual
Disability Services now have a Designated Person structure, with nominated
Organisation Designated Persons and onsite Designated Contact Persons to manage
abuse incidents/allegations. The SATU should set up service level agreements
with the Intellectual Disability Services locally with regard to referral
processes and activating the Organisation Designated Persons system. The
benefits of using Garda Specialist Interviewer’s skills should also be
considered.”[426]
4.87
In relation to persons with mental health conditions or disorders who
have been the victim of sexual assault the National Guidelines advise:
“[c]onsent in relation to a patient with a mental health
condition should be obtained in the same manner as all other patients that is -
they give their consent freely, following adequate information which is given
in the appropriate manner. Where an adult patient is deemed to lack capacity to
make the decision then steps should be made to find out whether any other
person has legal authority to make decisions on the patient’s behalf. In the
case of a patient who is an inpatient through an Involuntary Admission Order to
a Psychiatric Hospital, then the Consultant Psychiatrist responsible for the
care and treatment of that patient assesses that the patient is capable of
understanding the nature, purpose and likely effects of the proposed treatment.
Local guidance on consent with regard to the Mental Health Act and the Mental
Health Commission (MHC) reference guide should be available in the SATU.”[427]
4.88
The Commission
therefore provisionally recommends that national standards be developed
concerning safeguards from sexual abuse for “at risk” adults, including
protocols on cooperation between different agencies such as the Health Service
Executive, the Health Information and Quality Authority, the proposed Office of
the Public Guardian and the Garda Síochána. The Commission also provisionally
recommends that, in developing such standards, a multi-agency approach
be adopted similar to that adopted for the implementation of the National
Guidelines for the Sexual Assault Treatment Units (SATUs).
4.89
The Commission
provisionally recommends that national standards be developed concerning
safeguards from sexual abuse for “at risk” adults, including protocols on
cooperation between different agencies, including the Health Service Executive,
the Health Information and Quality Authority, the proposed Office of the Public
Guardian and the Garda Síochána. The Commission also provisionally recommends
that, in developing such standards, a multi-agency approach be adopted
similar to that adopted for the implementation of the National Guidelines for
the Sexual Assault Treatment Units (SATUs).
5
5.01
In this Chapter, the
Commission examines options for repeal and replacement of section 5 of the Criminal
Law (Sexual Offences) Act 1993, taking into account reform of
comparable laws in other countries in recent years. Internationally, there has
been considerable reform in this area, which has seen the introduction of
legislation in the criminal law context aimed at empowerment of persons with
intellectual disability while at the same time achieving protection from harm and
exploitation. Essentially, the role of the criminal law is to supervise the
line between the legitimate right of all adult persons to engage in sexual
relationships and the need to protect vulnerable adults from exploitation and
abuse. The Commission has already discussed how reform of the criminal law has
complemented reform of mental capacity and adult guardianship laws, including a
rights-based functional approach to assessing capacity. In Part B, the
Commission examines the challenges posed by the assessment of capacity in the
criminal law. This includes situations in which, for a variety of reasons (such
as age), consent may not be regarded as legally valid.
5.02
In the remainder of the
Chapter, the Commission examines how a number of different countries have
sought to balance the line between the legitimate right of all adult persons to
engage in sexual relationships and the need to protect vulnerable adults from
exploitation and abuse. In Part C, the Commission examines recent legislative
change in England and Wales in the Sexual Offences Act 1993, and how
these have been largely replicated in Northern Ireland in the Sexual
Offences (Northern Ireland) Order 2008. In Part D, the Commission
examines developments in Scotland, culminating in the Sexual Offences (Scotland) Act 2009. In Part E, the Commission discusses
developments in this area in Australia, while in Part F the Commission
discusses relevant legislation in New Zealand. In Part G, the Commission
discusses the Canadian legislation and in Part H the influence of the Model
Penal Code in a number of criminal and penal codes in the United States. The
Commission concludes in Part I by setting out its conclusions and preliminary
recommendations.
5.03
Decision-making
capacity in the context of consent to sexual relations raises difficult issues.
On the one hand it is necessary that the law respects the choices made by
persons with limited decision-making capacity while at the same time it should
recognise that in some instances people may be vulnerable and require an added
layer of protection from sexual violence than the ‘non-disabled’ population. In
providing adequate protection from harm there may be a need for a specific
sexual offence concerning people with intellectual disability to reflect this
reality. Arguments have been presented against the need to provide specific
offences on the grounds that there is sufficient protection provided by
the general law on consent and sexual offences against children; that specific
offences limit the sexual freedom of people with limited decision-making
capacity and that it may be discriminatory to target a group in a manner which
differs from the ‘non-disabled’ population.[428]
5.04
It is widely recognised
that general provisions on sexual offences are difficult to prosecute
successfully, particularly in the area of lack of consent which is the most
probable defence raised by an accused to an allegation of rape or sexual
assault, hence the enormous importance of consent in law governing sexual
offences. Arguing that the complainant did not consent is a difficult element
to prove in cases involving victims of sexual violence in general but arguably
even more so where victims have limited decision-making capacity and where
difficulties may arise in relation to credibility and reliability of evidence.
General provisions, therefore, may not be sufficient in providing adequate
protection.
5.05
Consent is not
statutorily defined in this jurisdiction. Case law and legislation provide guidance
on how consent is proved. From case law, it is clear that consent is absent
where the victim is incapable of giving it for instance where the complainant
lacks capacity or is unconscious or intoxicated. Consent can also be vitiated
by the presence of force, fear or fraud. There is legislative guidance in the
form of section 9 of the Criminal Law (Rape) (Amendment) Act 1990 which
implemented the Commission’s recommendation in its 1988 Report on Rape
that a complainant’s failure or omission to offer resistance to the efforts of
the accused does not of itself constitute consent.[429]
5.06
The defence of honest
belief provides that the accused will be acquitted once it can proven that he
honestly believed that the woman was consenting. The jury can have regard to
the presence or absence of reasonable grounds for this belief, however, the
accused’s belief does not have to be a reasonable one.
5.07
In a review of sexual
offences legislation enacted in other countries the test for establishing
whether an offence has been committed depends on two elements, namely capacity
and exploitation. Differing tests have been adopted in making an assessment of
capacity, however, a minimum standard requires that a person be able to
understand and make a decision about the nature of the act at the time the
sexual activity takes place. In terms of exploitation, in general, it is an
offence to have a sexual relationship with someone who is unable to give free
agreement to the relationship. Free agreement would not exist where there is a
significant degree of limited capacity in making decisions, and evidence that
the other party is in a position of trust or influence over the other person
and has exploited that position.
5.08
Comparisons can be made
with the treatment of children by the Criminal Law (Sexual Offences) Act
2006 which makes it an offence for a “person in authority” to engage
in or attempt to engage in a sexual act with a child who is under the age of 17
years. If the accused is a “person in authority”, the penalty increases from a
term not exceeding 5 years to 10 years and for an attempt to commit a sexual
act from 2 years to 4 years. A “person in authority” is defined as a parent,
stepparent, guardian, grandparent, uncle or aunt of the victim; any person who
is in loco parentis to the victim; or any person who is, even temporarily,
responsible for the education, supervision or welfare of the victim.[430]
In terms of any subsequent conviction an accused who is a “person in authority”
will receive a term of imprisonment not exceeding 7 years. The 2006 Act
provides for a defence where the accused establishes that he or she honestly
believed that, at the time of the alleged commission of the offence, the child
against whom the offence is alleged to have been committed had attained the age
of 15 years or 17 years respectively.[431]
The court, in considering whether the accused honestly believed that, at the
time of the alleged commission of the offence, the complainant was over the
relevant age, shall have regard to the presence or absence of reasonable
grounds for this belief as well as all other relevant circumstances.[432]
5.09
The specific power held
by persons in trust or authority can act to undermine the potential for giving
free consent. Care staff are in positions of power or influence over the person
they care for. This power imbalance undermines the ability of the person who is
cared for to give free consent and may inhibit their ability to seek help in an
abusive situation. A sexual relationship between a staff member and a person
with limited capacity is intrinsically unequal and this should be reflected in
the law.
5.10
The Scottish Law
Commission, in considering the breach of trust involving persons with a mental
disorder, recommended that there should be a specific offence in relation to
people with mental disorders since there are issues in respect of protecting
people with mental disorder which do not arise in other case of abuse of trust
such as a limit at to the age of the parties. The Commission also believed it
to “be of value for people who provide and receive case services if there is
provision which deals specifically with their situation.”[433]
5.11
Identifying what
relationships are potentially exploitative is a complex task since it requires
consideration of the power dynamic between parties. In recognition of this,
laws have been introduced which prohibit sexual relationships with certain
groups of people, such as carers, which avoid tests of capacity and consent and
which lead to higher penalties for the accused. In a review of literature on
this issue, provisions specifically vitiating consent in this context have been
justified on the basis that people with limited decision-making capacity may
not want the sexual relationship but find it difficult to refuse as a result of
the clear power differentials between them and their carer. One possible
option would be to limit the offence to people who have a duty of care over
their client while an alternative would be the introduction of a “carer’s
offence” where consent is not a defence.[434]
The issue of abuse within the family must also be provided for when legislating
on this issue.
5.12
Certain jurisdictions
have introduced an “exploitation offence” which is primarily concerned with the
exploitative intentions of the accused. Some abusers actively seek out
situations in which they have access to people with limited capacity with the
intention of abusing that person. Abusers may use their position of power to
coerce or deceive a person into participating in sexual activity or threaten
the person or indeed “groomed” a person with limited capacity and
inappropriately induce them into performing a sexual act.
5.13
It is widely accepted that persons living in institutional settings
are at increased vulnerability to abuse. The Commission is conscious that this
Consultation Paper coincides with the various reports published since 2005 in
response to institutional settings and abuse in such settings which had
occurred in the latter half of the 20th Century.[435]
Over the past twenty years there have been major changes in the delivery of
services to people with limited decision-making capacity. Closure of large institutions and the move to
community living has allowed people with intellectual disabilities enjoy
greater freedom in their lives. This has been assisted with the so-called
normalisation movement and the growth and development of the self-advocacy
movement. This transition has also seen the introduction and development
of community based models of service delivery based on the principle of social
inclusion with a focus on ensuring that people have choices and opportunities
in how they want to live their lives. The 2011 Report of the HSE Working Group
on Congregated Settings revealed however that over 4,000 people with
disabilities continue to live in congregated settings in Ireland, many of whom
isolated from any community and their families. The Report also identified that
many experience institutional living conditions where they lack basic privacy and
dignity.”[436]
5.14
Additional difficulties arise where the decision-making capacity of both
parties is limited as well as situations where one party’s capacity to consent
is more in doubt than their partners. On this point the Scottish Millan Report
noted that
“there will be
some people with severe learning disabilities who could not be said to have
legal capacity to consent to sexual relationships, yet who may be involved in
sexual activity which they enjoy and which is not exploitative. It would be
wrong to seek to proscribe such activity by the operation of the criminal law.”[437]
5.15
Arguably, these issues
should be left to the discretion of the DPP, notwithstanding the need to
provide clear guidelines for staff in identifying exploitative relationships in
conjunction with the provision of sex education and support services for
service users so that people are aware of how to deal with potentially
exploitative situations.[438]
5.16
Some people’s level of
impairment might be so severe that they could not be regarded as having the
capacity to consent to sexual activity in any circumstances. In such cases,
people would not understand what was being asked of them or to communicate
their consent, or lack of it. A specific offence that related to sexual abuse
of a person with no capacity to consent is a necessary legal safeguard and is
justified on the grounds of protecting the interests of “at risk” or vulnerable
individuals. Once it is established that an individual is not able to
understand the nature of the sexual act, the consequences of the act and
communicate that decision, it cannot be a defence that the accused thought the
individual gave their consent.
5.17
The Criminal Law
(Sexual Offences) Act 2006 may be informative for sexual acts among people
with limited decision-making capacity which are non-exploitative. Section 3(9)
of the 2006 Act provides that no proceedings under section 3 shall be brought
against a child who is under the age of 17 years except by or with the consent
of the Director of Public Prosecutions (DPP). The intention behind section 3(9)
was to ensure consistency in prosecution policy and that the DPP’s common law
discretion not to prosecute in cases where it would be unjust or inappropriate
to do so would be preserved in its entirety.[439]
Section 3(10) provides that a person who has been convicted of an offence under
section 3 and is not more than twenty-four months older than the child under
the age of 17 years with whom he or she engaged or attempted to engage in a
sexual act shall not be subject to the provisions of the Sex Offenders Act
2001.
5.18
In Parts C to F, below,
the Commission examines how a number of different countries have sought to
balance the line between the legitimate right of all adult persons to engage in
sexual relationships and the need to protect vulnerable adults from
exploitation and abuse. The Commission begins in Part C by examining recent
legislative change in England and Wales in the Sexual Offences Act 1993,
and how these have been largely replicated in Northern Ireland in the Sexual
Offences (Northern Ireland) Order 2008. In Part D, the Commission
examines developments in Scotland, culminating in the Sexual Offences (Scotland) Act 2009. In Part E, the Commission discusses
developments in this area in Australia, while in Part F the Commission
discusses relevant legislation in New Zealand. In Part G, the Commission
discusses the Canadian legislation and in Part H the influence of the Model
Penal Code in a number of criminal and penal codes in the United States. The
Commission concludes in Part I by setting out its conclusions and preliminary
recommendations.
5.19
In England and Wales, the law in relation to rape and sexual offences
has received considerable attention in recent years. The focus of much of the
reform has been on the substantive issues involved and in particular the vexed
issue of consent. To be guilty of rape, the accused must lack a reasonable
belief that there is consent. There can be no defence of consent where sexual
activity is alleged in relation to a child aged under 13 years. The burden of
proving the absence of consent lies with the prosecution. The factors
establishing a rape case, regardless of the complainant’s capacity, involve
penetration (including partial penetration) and the lack of consent which does
not need to be proved through the use of force. Consent can be negated through
threat, duress, or apprehension of fear and mere submission does not equate to
consent although the dividing line may on occasion be difficult to delineate.[440]
5.20
In 1999, the UK Home Office embarked on a review of the law of sexual
offences aimed at providing coherent guidelines on specific offences. The review
followed several publications which provided the backdrop for an examination of
the inter-relationship between the civil and criminal law in the area of
capacity and decision-making.[441]
The objective of the Home Office Review was to look at how the legislature
could protect individuals, especially children and vulnerable adults, from
abuse and exploitation and at the same time punish abusers in line with fair
and non-discriminatory practices in accordance with the ECHR and the UK Human
Rights Act 1998.[442] To
complement this revision, the English Law Commission submitted a Report to the
Home Office Sex Offences Review in 2002 which noted that:
“[a]ny protective criminal legislation aimed at discharging the
responsibilities of the state under Articles 1 and 3 will need to recognise the
right to private life under Article 8, and to limit any interference with this
right to that which is “necessary in a democratic society… for the protection
of health or morals, or for the protection of the rights and freedoms of
others”.”[443]
5.21
As such, any interference with the right to respect for private and
family life under Article 8 of the ECHR is permissible under certain
circumstances and where it is proportionate to the need which it seeks to
address. Decisions of the European Court of Human Rights suggest that Article 1
together with Article 3 of the European Convention of Human Rights impose a
positive obligation on the state to enact laws aimed at protecting children and
other vulnerable groups from abuse.[444]
This positive duty on contracting State parties to the Convention involves
taking:
“measures designed to ensure that individuals within their
jurisdiction are not subjected to torture or inhuman or degrading treatment or
punishment, including such ill-treatment administered by private individuals…
Children and other vulnerable individuals, in particular, are entitled to State
protection, in the form of effective deterrence, against such serious breaches
of personal integrity”.[445]
5.22
Indeed, the Commission, in its 1990 Report on Sexual Offences Against
the Mentally Handicapped, noted that an alleged victim’s “mental handicap”
may make it difficult for the prosecution to prove the absence of consent in
rape cases and that this consideration provided a further “pragmatic”
justification for interference in a person’s right to sexual activity.[446]
5.23
The English Law Commission’s Report noted that in a situation where a
sexual relationship existed between a person of full capacity and one with
severe learning disabilities such a relationship had the possibility of
involving an abusive element which would call on the criminal law to proscribe
such relationships, particularly where there is a “care” or trust relationship.[447]
A sexual relationship between two people both of whom have limited capacity
presents more complex issues. Such a relationship may not intrinsically involve
any abuse although, depending upon the circumstances, these relationships can also
be potentially abusive.[448]
5.24
The English Law Commission endorsed the functional approach as the
correct method for assessing capacity in both the civil law context,
culminating in the enactment of the Mental Capacity Act 2005 and the
criminal context which resulted in the 2003 Sexual Offences Act.
5.25
The Sexual Offences Act 2003 made far-reaching changes to the law
on sexual offences in England and Wales. These changes included the widening of
rape to include oral penetration and the introduction of a statutory definition
of consent.[449] Section 74
of the Sexual Offences Act 2003 states that “a person consents if he
agrees by choice and has the freedom and capacity to make that choice”. The
1999 Home Office Review identified that problems associated with the offence of
rape were a result of a lack of clear defining criteria in which to determine
whether consent existed and therefore proposed to overcome this difficulty by
defining consent as “free agreement” as well as setting out a non-exhaustive
list of examples illustrating the circumstances in which consent would not
present which would form the basis of directions for judges when deciding
whether the complainant freely agreed to the sexual act. The 2003 Act also
abolished the Morgan defence of a genuine though unreasonably mistaken belief as to the
consent of the complainant.[450] This was
based on the recommendation made by the UK Home Office Review that the:
“defence of honest belief in free agreement should not be
available where there was self-induced intoxication, recklessness as to
consent, or if the accused did not take all reasonable steps in the
circumstances to ascertain free agreement at the time.”[451]
5.26
This now means that the defendant has the responsibility to ensure that
the person consents to the sexual activity at the time in question.
5.27
There is no definition of capacity in the Sexual Offences Act 2003,
but the Court of Appeal has made clear that the common law and criminal tests
of capacity to consent to sexual activity should be essentially the same.[452]
In addition, the 2003 Act states that a person may lack capacity to consent
“for any other reason”.[453] In an
appeal to the House of Lords, Baroness Hale of Richmond held that these words
“are clearly capable of encompassing a wide range of
circumstances in which a person’s mental disorder may rob them of the ability
to make an autonomous choice, even though they may have sufficient
understanding of the information relevant to making it.”[454]
5.28
The 2003 Act makes it clear that where the accused intentionally
deceived the complainant as to the nature or purpose of the sexual act, or
intentionally induced the complainant to consent to it by impersonating someone
known personally to the complainant, consent will conclusively be presumed to be
absent.[455] A series
of situations are also set out in the Act where it will be presumed that no
consent exists unless there is evidence to the contrary. These include
situations of violence, fear of violence, or unlawful detention, and where the
complainant had been asleep or unconscious or unable to communicate whether or
not they consent, due to physical disability.[456]
5.29
The shift towards the adoption of a contextual approach in making an
assessment of capacity is a recent development in the law governing sexual
relations in England and Wales. The English courts have not always applied a
high threshold for assessing the capacity of persons with limited capacity to
consent to sexual relations.
5.30
In R v Jenkins[457] a care worker was acquitted of the rape of a woman
with severe learning disabilities who became pregnant as a result of the sexual
contact. The woman had no understanding of her pregnancy although the accused
argued she consented to the act. The Crown Prosecution Service had two options
available; either to charge the accused under section 7 of the Sexual
Offences Act 1956 with having sex with a mental “defective” or to
charge him with rape. They charged the accused with rape[458]
as the offence under the 1956 Act only carried a 2 year sentence (as was the
case under the Irish 1935 Act, replaced by section 5 of the 1993 Act). It
therefore had to be proved whether the victim had the capacity to consent to
sexual intercourse and whether or not she had actually consented to the act. An
assessment by the expert witness for the prosecution showed that the woman did
not have the capacity to consent to sexual relationships, as defined by the
British Medical Association and Law Society guidelines, since she could not
identify many basic body parts and could not tell the difference between
pictures of sexual intercourse and other pictures. The expert witness for the
defence argued that the woman had capacity to consent to sexual relationships
because she seemed to like the accused.
5.31
The trial judge, Coltart J, agreed with the defence and ruled that the
complainant had consented as it was not necessary to understand the
consequences of sexual intercourse. All that was required, according to Coltart
J was an understanding of the act itself. Jenkins raises serious
questions that someone with such limited capacity could be regarded as capable
of consenting to sexual activity under such circumstances. The 2000 case
illustrated the significance of the need to have a clear definition of capacity
to consent to sexual relations, and the need for an adequate level of
protection of vulnerable persons with limited capacity. The Law Commission for
England and Wales compared the test applied in Jenkins to the low
threshold developed by the Australian Model Criminal Code Officers Committee
(MCCOC) and noted that a similar result would be possible if the MCCOC test was
applied. The Commission felt that such a low test for assessing capacity to
consent would not offer sufficient protection for vulnerable adults and in
situations like Jenkins the law should hold that there is no capacity to
consent.[459]
5.32
The Sexual Offences Act 2003 introduced a range of
offences specific to victims with a ‘mental disorder’ or ‘learning disability’.
The offences are committed by sexual activity with,[460]
or in the presence or view of,[461]
someone who is unable to refuse because they are suffering from mental disorder
or learning disability, or by intentionally causing or inciting such a person
to engage in sexual activity.[462]
The accused must know or could reasonably be expected to know, of the
complainant’s condition and that this is likely to make them unable to refuse.
The 2003 Act creates three sets of offences where the complainant is a person
with a mental disorder. The legislation draws a distinction between three types
of offences on the basis of:
·
persons who have a mental disorder, impeding choice, and persons whose
mental functioning is so impaired at the time of the sexual activity that they
are unable to make any decision about their involvement in that activity;
·
persons who have the capacity to consent to the sexual activity but who
have a mental disorder that makes them vulnerable to inducement, threat or
deception; and
·
persons who have the capacity to consent to sexual activity but who have
a mental disorder and are in a position of dependency upon the carer. (the
‘care workers’ offence)
5.33
The 2003 Act provides that the test of capacity to refuse is whether the
person “lacks the capacity to choose whether to agree to the touching (whether
because she/he lacks sufficient understanding of the nature or reasonably
foreseeable consequences of what is being done or any other reason)” or is
unable to communicate such a choice.[463]
Capacity to consent is articulated in terms of a functional capacity to
understand the nature and consequences of the act and a person with a mental
disorder’s ability to communicate his or her choice.
5.34
According to the British Medical Association and Law Society even where
there is some element of capacity to consent there may still be the potential
for exploitation and in such instances there may be grounds for the criminal
law to intervene for public policy reasons should that person be under the
professional care of the other person involved.[464]
To provide for these situations the Sexual Offences Act 2003, as already
mentioned above, created a group of offences which can be committed only by
‘care workers’.[465] This
includes workers in NHS bodies, independent medical agencies, care homes, community
homes, voluntary homes, and children’s homes, independent clinics and
independent hospitals, who have had or are likely to have regular face-to-face
contact with the victim in the course of their employment.[466]
It also includes those who, whether or not in the course of employment, provide
care, assistance, or services to the victim in connection with the victim’s
learning disability or mental disorder, where they have regular face-to-face
contact with the victim.[467] Where it
is proved that the other person had a mental disorder, it is to be taken that
the accused knew or could reasonably have been expected to know that the person
had a mental disorder, unless sufficient evidence is produced to show the
contrary.
5.35
The 2003 Act also introduced a new offence of ‘obtaining sexual activity
by inducement, threat or deception with a person who has a learning disability
or mental disorder’. This offence is aimed at individuals who both deliberately
and repeatedly target people with learning disabilities because of their
vulnerability to sexual exploitation. This offence is intended to protect
individuals with learning disabilities who may feel induced because of possible
power imbalances in the relationship. For these offences, there is no need to
prove that the person is unable to refuse.
5.36
In Hulme v Director of Public Prosecutions[468]
the complainant suffered from cerebral palsy and had a mental age below her
actual age of 27 years. The accused was charged under section 30 of the 2003
Act. The court noted that the question to be determined, under section 30 of
the 2003 Act, was whether the complainant was able to understand that she could
choose to agree or refuse to the sexual activity and communicate that choice.
If the court was satisfied that complainant did not have the capacity to make
that choice it would then be considered whether the incapacity was related to
her mental disorder under section 30(2)(a) of the 2003 Act. In Hulme,
the court found that the complainant understood the nature of the sexual
activity but did not have the capacity to understand that she could refuse to
be touched in a sexual manner and communicate that decision. Accordingly, the
court found that an offence had been committed under section 30 of the 2003
Act.
5.37
The approach in the 2003 Act parallels the protective offences relating
to children between the age of 13 and 16[469]
and applies where a person has a mental disorder which impedes choice. This
approach seems to overlap with offences where there is no consent by the person
with a mental disorder rather than cases where the person consents but where
consent is induced.[470] A positive
development in striking an appropriate balance between sexual rights for
persons with limited capacity and protection from sexual violence would take
into consideration the situational aspects of capacity, where people with
limited capacity could consent to sexual activity with certain persons, but not
with others such as the circumstances and the type of relationships where
consent is negated under sections 34-41 of the 2003 Act.
5.38
The British Medical Association and the Law Society of England and Wales
have developed guidelines on assessing capacity to consent to sexual
relationships.[471] They note
that the courts, in recent years, have had to consider this issue and have
developed the following principles from the case law:
·
the civil and criminal tests for capacity to consent to sexual
intercourse should be essentially the same;[472]
·
capacity to consent to sexual intercourse relates to sexual intercourse
with a particular partner in a specific situation;[473]
·
capacity to consent to sexual intercourse relates to particular sexual
activity;[474]
·
there are different tests of capacity to consent to sexual intercourse
and capacity to contract.[475]
5.39
The BMA and Law Society
have noted the following factors some of which have derived from court
decisions[476] that may
be relevant in an assessment of an individual’s capacity to consent to sexual
relations[477]:
·
their understanding of the nature and character of sexual intercourse;
·
their understanding of the reasonably foreseeable consequences of sexual
intercourse (including their knowledge, even if at a basic level) of the risks
of pregnancy and sexually transmitted diseases;
·
the kind of relationship they have (for example, if there is a power
imbalance);
·
the pleasure (or otherwise) which they experience in the relationship;
·
their ability to choose or refuse intercourse;
·
their ability to communicate their choice to their partner.
5.40
According to the BMA
and Law Society a lack of capacity to consent formally to sexual relations
should not necessarily mean that the relationship should be prevented or even
discouraged. The main issue is that both individuals “appear willing and
content” for the activity to continue.[478]
Where there are signs that either person is being sexually abused or exploited,
they advise that the issue be immediately reported to the police which would
trigger the protection afforded by the criminal law and also to the relevant
authority responsible for the care of the individual in order to take the
necessary procedures as laid out by the Department of Health.[479]
They note that where individuals benefit and enjoy non-exploitative
relationships, their best interests should be promoted in terms of providing contraception
and protection from sexually transmitted infections. This implies that at a
minimum people would need to understand what sexual intercourse was and that
pregnancy and/or sexually transmitted diseases were risks. It would also
recognise the particular circumstances of the individuals involved, whether for
instance, one person is in a position of power which may influence the ability
of the other to consent in freely negotiated manner.
5.41
The Sexual Offences (Northern Ireland) Order 2008 closely
follows the format and detailed content of the England and Wales Sexual
Offences Act 2003. Articles 43 to 46 of the 2008 Order correspond precisely
with sections 30 to 33 of the 2003 Act concerning people who cannot legally
consent to sexual activity because of a mental disorder impeding choice.
Similarly, Articles 51 to 54 of the 2008 Order correspond to sections 38 to 41
of the 2003 Act on protecting people with mental disorders from sexual abuse by
people with whom they are in a relationship of care. The exemptions in the 2003
Act for married persons, civil partners and similar situations are also
replicated in the 2008 Order. As to capacity to consent, the 2008 Order,[480]
like the 2003 Act, provides that a person is deemed unable to
refuse if he or she lacks the capacity to choose whether to agree to the
touching (whether because he or she lacks sufficient understanding of the
nature or reasonably foreseeable consequences of what is being done, or for any
other reason), or if he or she is unable to communicate such a choice.
5.42
These offences are designed to give protection to persons with a mental
disorder. This would occur where the victim is unable to agree to sexual
activity because of a mental disorder which impedes their capacity to make an
informed choice, or where it might appear that the victim had agreed to the
sexual activity but because of a mental disorder which makes them vulnerable to
inducements, threats or deceptions, or because they are in a relationship of
care, their consent was not or could not be deemed to have been freely given.
5.43
The Sexual Offences
Act 2003 and the Sexual Offences (Northern Ireland) Order 2008
have both moved from the
“diagnostic” or “status” approach contained in the Sexual Offences
Act 1956 and Sexual Offences Act 1967 which determined
capacity by reference simply to whether the person has a “mental disorder”, and
this is also the approach in section 5 of the 1993 Act. By contrast, the 2003
Act and the 2008 Order apply a
functional or contextual approach to capacity to consent based on
whether the person understands the nature and consequences of the act and their
ability to communicate their choice. The legal shift is that the severity of
the learning disability is not the determining factor of whether an offence is
committed, but the ability of the person to give a legally effective consent to
sexual contact.
5.44
The Mental Health
(Care and Treatment) (Scotland) Act 2003 created two offences in respect of
sexual activity involving persons with “mental disorder”. Section 311 of
the 2003 Act makes it an offence for someone to engage in a sexual act with a
“mentally disordered” person if at the time of the act the person does not
consent to the act or was by reason of the mental disorder incapable of
consenting to it. The offence is separate from rape, but is based on the lack
of consent by the “mentally disordered” person, who at that time did not, or
could not, give consent to the sexual activity.
5.45
Section 311(3) of the
2003 Act introduced a statutory definition of consent which is more detailed
than that set out in common law.[481]
The section states that a person is regarded as not consenting if the person
purports to consent as a result of being placed in such a state of fear; or
subject to threats; intimidation; deceit; or persuasion. Section 311(4) sets out that a person is
incapable of consenting to an act where that person is unable to understand
what the act is; form a decision as to whether to engage in the act or whether
the act should take place; or communicate any such decision.
5.46
Section 311 of the Act
was based on foot of a recommendation by the Millan Committee which was
established to examine the law on mental disorder.[482]
The Committee based its justification on having a separate offence relating to
“mentally disordered” victims on the difficulties in applying the general
definition of consent in prosecuting the sexual abuse of mentally disordered
adults.[483] The
Scottish Law Commission also considered that there may be weak protection for
people who have a mental disorder in situations where sexual activity is
ostensibly consensual but exploitative and which does not involve a breach of
trust.[484] The
Committee noted that an alternative to making provision for a separate offence:
“would
be to redefine consent generally in relation to sexual behaviour to something
closer to ‘free agreement’. This approach could avoid the need for special
offences to protect people with mental disorders, by bringing abuse of this
group within the definition of generally applicable crimes such as rape.”[485]
5.47
Although the Millan Committee felt that redefining consent to free
agreement would be more consistent with the principle of non-discrimination in
that people with “mental disorders” would not be treated differently when it
came to sexual activity from the ‘non-disabled’ population, the Committee did
not recommend pursuing such an approach as it
“would involve a radical reform to general sexual offences,
which would have consequences for a wider group than people with mental
disorders… If the law concerning sexual offences is reviewed in future, we
would hope that consideration would be given to how it applies to people with
mental disorders. In the meantime, however, reform to the special offences
appears to us to be a more practical way forward.”[486]
5.48
In 2006 the Scottish
Law Commission embarked on an examination of the law relating to rape and
sexual offences on foot of concerns voiced “as a consequence of certain
high-profile decisions of the High Court of Justiciary.”[487]
In its Discussion Paper on Rape and Other Sexual Offences[488]
the Scottish Law Commission acknowledged that the challenge in making
provision for people with mental disorder to engage in sexual relations is to
recognise their right to sexual autonomy. The Commission noted, however, that
this right must be balanced with the need to protect vulnerable persons from
sexual exploitation and to recognise that in some situations the degree of
mental disorder might act as a barrier to being fully capable of understanding
the act in question and thereby being unable to give a valid consent to sexual
activity. The Scottish Law Commission together with the Millan Committee
recommended the introduction of a specific offence in relation to persons with
a “mental disorder” as well as changes to the definition of prohibited sexual
activity. The outcome was the Sexual Offences (Scotland) Act 2009. The
Scottish Law Commission’s 2007 Report on Rape and Other Sexual
Offences agreed with the
Millan Report in recommending that if the definition of consent in sexual
offences was something similar to “free agreement” it would not be necessary to
provide for a specific offence of engaging in sexual activity with a person
with a “mental disorder”. The Commission felt that having separate definitions
of consent where one would be used for general application while the other
would be applied in situations where the person has a “mental disorder” would
be confusing and therefore recommended the repeal of section 311 of the Mental
Health (Care and Treatment) (Scotland) Act 2003.[489]
At the same time the Commission took the view that there would be value in
making provision for situations where an individual with a “mental disorder”
could give consent and recommended a provision for defining the capacity of a
person with a “mental disorder” to consent to sexual activity. The Commission
felt that:
“[c]learly
where a person lacks such a capacity then any sexual activity is done without
his or her consent. In such a situation there is no need to apply the consent
model. The fact that someone has a mental disorder does not mean that he or she
necessarily or always lacks the capacity to give consent. Much depends on the
nature of the disorder at the relevant time. We are therefore in favour of
restating the 2003 Act provisions which define the capacity of a mentally
disordered person to consent to sexual activity.”[490]
5.49
The Commission endorsed
the time-specific functional approach in recommending reform by acknowledging
that a “mental disorder” does not automatically preclude an individual from
consenting to sexual activity and recommended the introduction of a definition
of capacity to consent to sexual activity by a person with a “mental disorder”.[491]
5.50
The Report of the
Millan Committee proposed that the law should prohibit sexual relationships
between:
·
a patient with a mental disorder, whether inpatient or outpatient of a
hospital, and a member of staff, whether paid or unpaid;
·
a mentally disordered person in residential care and a member of staff,
whether paid or unpaid;
·
a mentally disordered person and a person employed to deliver care
services in the community to that person;
·
a mentally disordered person and a doctor or therapist involved in a
professional relationship with that person.
5.51
In such situations,
according to the Millan Committee, it would not be necessary to prove lack of
consent, or incapacity to consent. The position of trust would be breached by a
sexual relationship which is sufficient to justify treating such relationships
as criminal offences.
5.52
Section 313 of the Mental
Health (Care and Treatment) (Scotland) Act 2003 prohibits a person who is
in a position of care over a person who suffers from a mental disorder to
engage in a sexual act with that person. Section 313(2) classifies the
prohibited relationships where the victim has a mental disorder as defined by
section 328(1) of the Act.[492] A person
is guilty of an offence under section 313(2) where he or she provides care
services to the mentally disordered person; is employed in, or contracted to
provide services; or is a manager of a hospital in which the mentally disordered
person is receiving medical treatment.[493]
Section 313(3) lists the defences available to the accused. It is a defence for
the accused to prove that at the time of the intercourse or act that he or she
did not know, and could not reasonably have been expected to know, that the
other person was mentally disordered[494];
or where the mentally disordered person was a spouse of the accused.[495]
It is also a defence for the accused to prove that a sexual relationship
existed prior to the provision of care services by the accused[496]
or where such a relationship existed immediately before the victim was admitted
to a hospital in which the accused was an employee, contracted to provide
services or a manager of the hospital in which the victim was a patient.[497]
5.53
The Scottish Law
Commission felt that:
“there are
issues in respect of protecting people with mental disorder which do not arise
in other cases of abuse of trust (such as a limit of the ages of parties)… it
would be of value for people who provide and receive care services if there is
a provision which deals specifically with their situation.”[498]
5.54
The 2009 Act provides
for a consent model and provides a general definition of consent as “free
agreement” to conduct which can be withdrawn at any point before or during the
conduct and is supplemented with a non-exhaustive list of circumstances in
which conduct takes place without free agreement.[499]
5.55
Section 17(2) of the Sexual
Offences (Scotland) Act 2009 states that a person is
incapable of giving
consent to sexual activity where by reason of the mental disorder the person is
unable to understand what the conduct is, form a decision as to whether to
engage in the conduct or as to whether the conduct should take place, or
communicate any such decision.[500]
This provision, however, does not create a separate offence. According to Maher
“It is expressly linked to the general sexual offences, which are defined in
terms of lack of consent and it functions to supplement the consent model in
some (but not all) cases where the complainer has a mental disorder.”[501]
5.56
The 2009 Act provides
for an offence of sexual abuse of trust of a mentally disordered person.[502]
An offence is committed where a person engages in sexual activity with a
mentally disordered person where that person provides care services to the
mentally disordered person or works in, or is a manager of, a hospital where
the mentally disordered person is being given medical treatment.[503]
This offence does not involve proving lack of consent on the part of the
mentally disordered person. The offence is the sexual conduct between the
parties, where, had the sexual activity been consenting, was prohibited based
on the nature of the relationship.
5.57
The Scottish Law
Commission, in its Discussion Paper on Rape, asked in addition to
offences based on the abuse of trust, whether there should also be a separate
offence of taking advantage of the condition of a person with a mental disorder
which prevents that person from guarding against sexual exploitation. The
Commission, in its subsequent Report on Rape, decided not to introduce
such an offence and noted that:
“We are of the
view that there are considerable difficulties in identifying the precise
mischief that the offence is to remedy. Where a person with a mental disorder
is subject to threats or deceptions, the offences based on lack of consent,
including attempts to commit those offences, will provide protection. Moreover,
if the criminal law were to intervene where a person with a mental disorder
receives inducements to have sex, which result or may result in that person
consenting to sex, the outcome would be diminish the sexual autonomy of people
with mental disorders.”[504]
5.58
Where Ireland has
adopted a strong paternalistic approach in assessing capacity to consent by
persons with limited capacity in the form of section 5 of the Sexual
Offences Act 1993, Australia has favoured strong individual autonomy and is
probably most evident at federal level. The Model Criminal Code Officers
Committee (MCCOC), in its 1999 Report on Sexual Offences Against the Person,
took a narrow view of the scope of legal paternalism.[505]
The Committee recommended that the general offences of rape and indecent
assault be applied to victims of “impaired mental functioning” where
appropriate. They also recommended specific offences to be included in the
Model Criminal Code designed to protect “mentally impaired” persons from sexual
exploitation. The Committee was particularly drawn by offences in New South
Wales and Victoria which prohibit sexual contact between a carer and a person
with “impaired mental functioning” and advocated that offences should be
limited to such relationships. The MCCOC noted
“There are
powerful arguments for prohibiting sexual activity within this particular type
of relationship. One is that a person with impaired mental functioning may not
want sexual contact with his or her carer but, due to power imbalance or
institutional setting, may find it difficult to refuse. Other concerns include
the psychological harm which may result from such a relationship as well as the
breach of trust put in the carer by, say, the victim’s family.”[506]
5.59
The overarching
justification of adopting such a narrow view was to prevent the legislation
from arbitrarily restricting the sexual autonomy of the “mentally impaired”
person.[507] The
Committee adopted a broad definition of carer which is not restricted to those
who fulfil a professional role for “mentally impaired” persons.
5.60
The Committee
recommended that consent should not be a defence unless the person with the
“mental impairment” consented to the act and the giving of that consent was not
unduly influenced by the caring relationship. In addition, there is a marriage
and a “de facto partner” defence available. This is against the background of a
statutory definition of consent as “free and voluntary agreement.”[508]
There can be no consent where “the person is incapable of understanding the
essential nature of the act.”[509]
Consent would, therefore, “not necessarily be lacking if a person has
sufficient knowledge or ability to comprehend the physical nature of the sexual
act, and to understand the difference between that act and an act of another character,
such as bathing of the body or a medical examination.”[510]
This test would therefore not require an understanding of concepts associated
with sexuality such as an understanding of the risks involved in sexual
activity. The MCCOC, in agreeing with the Victorian Law Reform Commission,
stated:
“Enabling those
with impaired mental functioning to understand completely the consequences of
their actions is a wider social responsibility that needs to be met through education”
5.61
In doing so, it
recommended a narrow test of capacity which is the position taken in the
majority of jurisdictions in Australia, with the exception of South Australia.[511]
5.62
In Australia, the
subjective Morgan test for determining consent has been adopted in the
Australian Capital Territory, Victoria, New South Wales and South Australia. In
Victoria and New South Wales the jury, in deciding whether belief was genuinely
held, can take into account whether the accused’s belief was reasonable in the
circumstances.[512] The Model
Criminal Code proposals favoured retaining the subjective test of honest belief.
5.63
Specific offences have
been enacted to address the particular vulnerabilities to sexual assault of
people with a “cognitive impairment” across all six jurisdictions in Australia.[513]
Such offences involving victims with a “cognitive impairment” is an aggravating
factor which supplements other sexual offences.
5.64
In Australia most
jurisdictions require that the person understands the nature of the act in
order to consent to sexual activity but it is not a requirement to know the
consequences of the act.[514] This is
the test laid down in R v Morgan[515]
where the Supreme Court of Victoria stated that for incapacity to consent to
sexual activity to be proved it must be shown that the person does not have:
“sufficient
knowledge or understanding to comprehend (a) that what is proposed to be done
is the physical fact of penetration of her body by the male organ or, if that
is not proved, (b) that the act of penetration proposed is one of sexual
connexion as distinct from an act of a totally different character.”[516]
5.65
In R v Mueller[517]
the New South Wales Court of Criminal Appeal approved the Morgan test
and added that knowledge or understanding need not be a sophisticated one. All
that is required is a “rudimentary” knowledge of what the act comprises, and of
its character, to enable an individual to decide whether to give or withhold
consent.[518] The Morgan
test is lower than the test applied in most American states, which require
understanding of the nature and consequences of the act and to which the
Commission returns later in this Chapter.[519]
5.66
In Australia, sexual
offences governing the abuse and exploitation of people with a “cognitive
impairment” regulate conduct depending on the nature of the relationship of the
individuals involved in the sexual activity, for example those who provide care
for the person,[520] or are
providers of medical or therapeutic services,[521]
or provide special programmes.[522]
Consent is negated where the accused person is in a position of authority or
trust over the complainant. Consent is also not a defence to a charge where
sexual intercourse was conducted with the intention of taking advantage of that
person by the person in authority.[523]
In this section, the Commission looks at how the Australian States have
legislated in this area.
5.67
The NSW Law Reform
Commission, in its 1996 Report on People with an Intellectual
Disability and the Criminal Justice System[524]
made several recommendations relating to sexual offences and persons with
limited capacity. The Report noted that the majority of people with an
intellectual disability would have the capacity to consent in that they would
have sufficient knowledge or understanding to comprehend the physical nature of
the sexual act and appreciate the difference between that act and an act of a
different character.[525] The
Commission recommended that consensual relationships should only rarely be
prohibited and that people with an intellectual disability should not have
greater restrictions on their sexual lives than other people, where they have
capacity to consent. The Commission, however, considered that consensual
relationships with carers raise concerns and in light of this recommended that
the carer’s offence in section 66F(2) of the Crimes Act 1900 (NSW) be
redrafted to reflect all relevant carers, including volunteers and staff
providing home-based care, but not to prohibit sexual relations between two
service users.[526]
5.68
Section 66F of the Crimes
Act 1900 (NSW) was designed to prevent the sexual exploitation of people
with intellectual disability, not just by their carers, but by other people who
have knowledge of the person’s intellectual disability and who could
potentially take advantage of their vulnerability to sexual exploitation. It
was noted in the NSW Law Reform Commission Report on People with an
Intellectual Disability and the Criminal Justice System that this provision
had been used in a limited number of cases since its introduction in 1987.[527]
Rather than focusing on the issue of consent, the section prohibited certain
consensual and exploitative sexual relationships.
5.69
The Crimes
Amendment (Cognitive Impairment-Sexual Offences) Act 2008[528]
made several changes to the law governing sexual offences and persons with
limited capacity. The amendments made to section 66F of the Crimes Act 1900
(as amended) replaced the term “intellectual disability” with “cognitive
impairment”.[529] The 2008
Act created two specific offences. The first offence is having sexual
intercourse with a person who has a “cognitive impairment” where the accused
was responsible for the care of that person either generally or at the time of
the sexual intercourse.[530] The care
of a person with a “cognitive impairment” includes voluntary care, health
professional care, education, home care and supervision and includes care
provided “in the course of a program” at a facility or at home.[531]
5.70
The second offence
introduced by the 2008 Act is having sexual intercourse with a person who has a
“cognitive impairment” with the intention of taking advantage of that person’s
cognitive impairment.[532] This
offence is primarily concerned with the exploitative intentions of the accused.
It is not concerned with whether the victim has actually been exploited, rather
the focus is on the intention of the accused and such an intention “may be
extremely difficult, if not impossible, to prove and may make the section
unworkable.”[533] The
Commission noted that there is little judicial guidance about the section and
the only case which reached the Court of Criminal Appeal involved a guilty
plea.[534]
5.71
Where the accused
is responsible for the care of a person with a cognitive impairment consent
cannot be relied on in a number of offences or engaged in conduct with the
intention of taking advantage of that person’s cognitive impairment.[535]
There is no consent where the person engages in the sexual act as a result of
intimidatory or coercive conduct or other threats which need not involve
threats of force.[536] The
Act does not place a limit to the grounds under which it may be established
that a person does not consent to sexual intercourse.[537]
5.72
It is a defence
where the accused did not know of the impairment, where the accused was married
or the de-facto partner of the person to whom the charge relates to, or where
the act was for medical purposes.[538]
5.73
The Victoria Law Reform
Commission noted that the rationale for introducing a specific offence for
persons with cognitive impairment was that the general law of rape did not
adequately protect such people from sexual abuse. The Commission acknowledged
that sexual abuse of people with a cognitive impairment by carers or people
involved in service provision is relatively common. It felt that the operation
of section 52 of the Crimes Act 1958 which prohibits sexual acts between
people with a “cognitive impairment” and workers in a residential facility
achieves an appropriate balance between these goals and sets out clear
standards of behaviour for those who work in service provision.[539]
They recommended that section 52 of the Crimes Act 1958 be amended and
extended to cover persons “working or volunteering at a facility or in a
program which provides services to people with cognitive impairment, who takes
part in a sexual act with a person whom he or she knows has cognitive
impairment, should be guilty of an indictable offence.”[540]
5.74
The Commission,
while accepting the need for a “carer’s offence”, specifically rejected a
general “exploitation offence”, on the grounds that:
[t]here is too
great a risk that an offence of that type would unduly restrict expression of
the sexual rights of people… The offence should be confined… to specified
situations in which people… are particularly dependent - and therefore
particularly vulnerable. It should be targeted at specified caregivers, as it
is reasonable to impose a special prohibition on those people who are
responsible for the care and welfare of others.”[541]
5.75
Following the
Commission’s 1988 Report, sections 50-52 of the Crimes Act 1958
(Vic) was amended by the Crimes (Sexual Offences) Act 2006.[542] Section 16
of the 2006 Act substituted section 51 of the 1958 Act and now makes it an
offence for a person who provides medical or therapeutic services to a person
with a “cognitive impairment” to engage in an act of sexual penetration with
that person[543] or to
commit or be in any way a party to the commission of an indecent act with that
person.[544] Consent
to such acts is not a defence unless the accused was married to, or was in a de
facto relationship with, the alleged victim.[545] The defence
of reasonable belief that the other person did not have a “cognitive
impairment” or that the person was the spouse or domestic partner is available
to the accused and must be proven on the balance of probabilities.[546]
This is to cover the rare situation where a person providing services relating
to the impairment is not aware that the person had a “cognitive impairment”.[547]
Consent cannot be implied and relied upon where an individual did not say or do
anything to indicate free agreement.[548]
The lack of physical resistance or injury is also not to be taken as free
agreement as well as evidence of instances where the individual consented to
previous sexual acts with the accused or other person.[549]
5.76
The Commission
discussed the issue of allowing a defence of consent, with the onus on the
accused to demonstrate that consent was not obtained through the abuse of trust
or professional authority such as health professionals and workers in residential
facilities[550] and
considered that the defence of consent in such circumstances would be
inconsistent with the policy goal of protecting people with “cognitive
impairment” from sexual abuse. Allowing a defence of consent would invariably
raise the issue of capacity, which would make the offence more difficult and
lengthy to prosecute. In recognising the difficulties involved in prosecuting
sexual offences, the Commission noted that:
“The number of
prosecutions under these sections of the Act is very small compared to the
estimated number rates of sexual abuse. We therefore do not support adopting a
definition that would make it harder to prosecute those who sexually exploit
people with a cognitive impairment.”[551]
5.77
The Commission argued
that a capacity-based definition could result in a wide range of experts being
called to testify about whether or not the complainant had the capacity to make
a choice about whether or not to participate in sexual acts with people in
positions of power. If experts presented conflicting opinions on whether or not
the person had capacity to make an informed choice to participate in sexual
acts, a situation could arise where a jury might not convict an accused who
claimed that he believed the complainant had made such a choice. The Commission
therefore recommended that a capacity-based definition should not be adopted in
relation to these offences which would apply regardless of whether the
individual consented.[552]
5.78
Section 126 of the Criminal
Code Act 1924 provides a blanket ban on sexual intercourse with a person
with a “mental impairment” by a person responsible for the care of that person.
It is a defence to an offence under the section where the accused can prove
that at the time of the act the person with the “mental impairment” consented
to the act and the giving of consent was not unduly influenced by the
fact that the person was responsible for that person’s care; or at the time of
the act, the person was married to, or was in a significant relationship,
within the meaning of the Relationships Act 2003, with the person with
the “mental impairment”.
5.79
Section 130 of the Criminal
Code Act 1983 provides an offence of sexual intercourse or gross indecency
by a provider of services to a “mentally ill” or “handicapped person”. It is a
defence if the accused was, at the time of the alleged crime, the husband or
wife, or a de facto spouse of the “mentally ill” or “handicapped person” or did
not know that the person was a “mentally ill” or “handicapped person”.[553]
5.80
There can be no consent
under section 67(1) of the Crimes Act 1900 where the sexual act is
induced by a person in a position of authority held by the accused or
where the relationship is of a professional or trusting nature.
5.81
Section 216 of the Criminal
Code Act 1899 provides specific protection for “intellectually impaired”
persons.[554] The
legislation places a blanket prohibition on unlawful sexual or indecent acts
with a person with “impaired mental functioning”. Section 348 of the Criminal
Code Act defines consent as that which is freely and voluntarily
given by a person with the cognitive capacity to give the consent. There can be
no consent where it is induced by the exercise of authority.[555]
It is a defence where the accused did not know of the “mental impairment”. It
is also a defence if the act was not “sexual exploitation”.[556]
5.82
In Western Australia
section 330 of the Criminal Code Act 1913 provides for sexual offences
against an incapable person. An “incapable” person is a person who is so
mentally impaired as to be incapable of understanding the nature of the act of
which the accused is charged with, or of guarding himself or herself against
sexual exploitation.[557] The
section provides that a person who sexually penetrates a person who the
offender knows or ought to have known was an incapable person is guilty of a
crime or where the accused procures, incites, or encourages a person who the
offender knows or ought to know is an incapable person to engage in sexual
behaviour is liable to a term of imprisonment of 14 years.[558]
It is an aggravating factor where the accused provides care, supervision,
or holds a position of authority.[559]
Accused persons in these positions are liable to imprisonment for 20 years.
5.83
A third offence covered by the section applies to situations where the accused
indecently deals with a person[560],
or procures, incites, or encourages a person to do an indecent act[561]
or, lastly, indecently records a person who the offender knows or ought to know
is an incapable person.[562] These
offences carry a term of imprisonment of 10 years.[563]
Again, if the incapable person is under the care, supervision, or authority of the
offender, the offender is liable to imprisonment for 10 years.[564] It is a
defence, under the section, if the accused can prove he or she is married to
the incapable person.[565]
5.84
Section 128 of the Crimes
Act 1961 was amended in significant respects in the Crimes Amendment Act
(No.3) 1985 concerning sexual crimes. The 1985 Act modified the definition
of consent by reversing the subjective Morgan test of determining
consent by statute introducing the defence of ‘honest belief’ to an objective
test of reasonableness.[566] The 1985
Act also created two separate offences; the offence of “sexual violation” and
“sexual connection by coercion” in place of the offence of rape.
5.85
The offence of sexual
violation requires the prosecution to prove that the physical act took place
without the consent of the other person and without the accused believing on
reasonable grounds that the other person was consenting to that sexual act.
Section 128A of the 1985 Act provides that where the person does not protest or
offer physical resistance to the sexual connection this, by itself, does not
constitute consent. Consent is also not present where the person acquiesces as
a result of actual or threatened force to that person or another person, or
fear of application of such force, or where the person consents by reason of
mistake as to the identity of the accused or mistake as to the quality or
nature of the act.
5.86
The offence of inducing
sexual connection by coercion is committed where the person has been induced to
consent as a result of an express or implied threat in a set of given
circumstances.
5.87
Section 138 of the Crimes Amendment Act 2005 explicitly provides
an offence prohibiting the “sexual exploitation of a person with a significant
impairment”. A person exploitatively carries out an indecent act on a person
with a “significant impairment” where the accused has knowledge that the other
person has a “significant impairment” and has obtained the acquiescence of the
person by taking advantage of the impairment.[567] The Act defines “significant
impairment” as:
“as an
intellectual, mental, or physical condition or impairment (or a combination of
2 or more intellectual, mental, or physical conditions or impairments) that
affects a person to such an extent that it significantly impairs the person's
capacity (a) to understand the nature of sexual conduct; or (b) to understand
the nature of decisions about sexual conduct; or (c) to foresee the
consequences of decisions about sexual conduct; or (d) to communicate decisions
about sexual conduct.”[568]
5.88
Consent is negated in a
situation where the victim is affected by an impairment of such a nature
and degree that he or she cannot consent or refuse to consent to the activity
for the reasons listed in section 138(6). There can also be no consent where
the individual with the “significant impairment” allows the act because he or
she is mistaken about its nature and quality; or if the person is mistaken as
to the identity of the offender.[569]
Consent is not implied where a person does not protest or offer physical
resistance or permits the activity because of the application of force, threats
or the fear of the application of force.[570]
5.89
Section 244(3) of the
Canadian Criminal Code 1985 provides that no consent is obtained where
the complainant acquiesces to the sexual act as a result of force, threats
thereof or fraud or a result of the position of authority which the accused
holds. The section has been described as “partially a codification of common
law principles and partially a reflection of former statutory provisions.”[571]
5.90
The sexual offences
contained in the 1985 Code were amended in 1998 which created an explicit
offence of “sexual exploitation of a person with a disability”.[572]
It is an offence to have sexual contact with a person with a disability[573]
in circumstances in which there is a relationship of authority or dependency
between the accused and the person with a disability, and where the person with
the disability does not consent to the contact.
5.91
Consent is defined in terms of the “voluntary agreement of the
complainant to engage in the sexual activity in question”.[574]
Consent to sexual activity is contingent on the complainant being legally
capable of giving consent.[575] Proof of
non-consent is required for an offence to be committed[576] however there can be no consent where the complainant is
incapable of consenting.[577] Incapacity
to consent can therefore be seen as a substitute element for non-consent.[578]
The Criminal Code does not elaborate on the assessment of capacity to
consent.
5.92
Consent is not present where the accused counsels or incites the
complainant to engage in the activity by abusing a position of trust, power or
authority or where the complainant expresses, by words or conduct, a lack of
agreement to engage in the activity or where the complainant expresses, by
words or conduct, a lack of agreement to continue to engage in the activity.[579]
The defence of mistaken belief in consent excludes situations in which the
accused “did not take reasonable steps, in the circumstances known to the
accused at the time, to ascertain that the complainant was consenting.”[580]
5.93
There is a presumption that the complainant is capable of giving consent
unless there is evidence of a severe mental disability.[581]
Expert evidence may be given in such cases but is not required. Literature
suggests that capacity to consent is viewed by Canadian judges as a “static and
absolute condition: one is capable of consenting to any sexual activity or to
none at all.”[582] Arguably,
the lack of clear criteria on how to assess capacity to consent is unhelpful.
The virtual complete failure to use section 153.1 of the Criminal Code,
according to some commentators, is unsurprising, “since the provision tries to
satisfy both the goals of protection from harm and the promotion of sexual
autonomy in contradictory ways.”[583]
It has been suggested that including the requirement of non-consent in section
153.1 means that the offence does not provide additional protection for persons
with limited capacity[584] since:
“The crime of sexual assault in the Canadian Criminal Code
already criminalizes sex without consent, without requiring proof of
“disability” plus one of the listed power relationships. Since the maximum
penalty in section 153.1 (five years) is actually lower than the penalty for
sexual assault under section 271 (ten years), there is little incentive to lay
charges under the section… Both in the House of Commons and in committee,
members raised concerns that ‘the current section 271, which refers to sexual
assault for anyone, is much broader and calls for a stronger sentence of [up
to] ten years as opposed to five.’ If section 153.1 had simply criminalized sex
with a person with a disability where one of the specified power relationships
existed, as is the case with the sexual exploitation of a young person offence,
it would have added something to the Code. However, it might also have limited
the sexual autonomy of some women with disabilities.”[585]
5.94
In R v R.R.[586] the Ontario Court of Appeal noted that:
“The issue of whether a person did or did not consent to a
particular action or event is a question of fact to be determined in each
individual case. It is not sufficient to simply determine whether an individual
said yes when asked if they would submit to or engage in a particular activity.
It must be determined whether that individual made such a decision of their own
free will, fully aware of or apprised of the proposed activity and its
consequences.”[587]
5.95
This judgment is of particular importance since it affirmed the 1999
decision of the Supreme Court of Canada in R v Ewanchuk that silence,
compliance or acquiescence on the part of the complainant does not constitute
consent in Canadian law.[588] In R.R.
Abella J stated that, under the 1985 Criminal Code, in every situation
involving sexual activity there is a responsibility on the participants to
ascertain consent.[589] The
threshold of responsibility escalates exponentially in circumstances where one
of the participants has “demonstrable mental limitations” which “requires that
prior caution be exercised to avoid the exploitation of an exceptionally
vulnerable individual.”[590]
5.96
In the United States,
criminal law is largely a matter of state law, and states have adopted
different standards for determining capacity to consent to sexual relations in
the context of those with limited capacity. As with many other common law
jurisdictions, there is a general presumption that an individual has capacity
to engage in a sexual relationship once he or she has reached the age of
consent. While the wording of statutes vary across states, most criminal laws
use terms such as “mentally defective” to describe a person with a diagnosis of
mental impairment which essentially nullifies the person’s ability to consent
to engage in sexual activity.
5.97
The offence of rape in
the Model Penal Code occurs where a man has sexual intercourse with a woman,
who is not his wife, if he compels her to submit to such an act by force or by
threatening imminent death, serious bodily injury, extreme pain or kidnapping,
which can be inflicted on anyone. The offence is also committed where the man
substantially limits the woman’s power by administering drugs, intoxicants, or
other methods. Unconsciousness or engaging in sexual intercourse with a female
younger than 10 years of age will also trigger the offence.[591]
The notion of meaningful consent is the unifying principle that negates
consent.
5.98
In terms of incapacity
to consent, section 231(2)(b) of the Penal Code proscribes intercourse with a
“mentally incompetent” person. Under this section a male who has sexual
intercourse with a female who is not his wife commits a felony of the third
degree if “he knows that she suffers from a mental disease or defect which
renders her incapable of appraising the nature of her conduct”. As noted by the
American Law Institute, “The critical issue is to define the degree of mental
disease or deficiency that suffices to make noncoercive intercourse a crime.”[592]
5.99
US courts have adopted
three different headings with variations in determining competency to consent
to sexual activity under state statutes. The first is whether the woman was
capable of expressing any judgment on the act; whether she had the ability to
understand the moral nature of the act and whether she had the capacity to
understand the character and likely consequences of intercourse.[593]
The American Law Institute, in their analysis of the differing standards, felt
the first test was too narrow while the second test too expansive. In rejecting
the moral aspect to having the requisite capacity to consent, the Institute
noted that:
“Emphasis on
ability to assess the moral nature of the act of intercourse implies a focus on
the female’s comprehension of ‘appropriate’ value judgments. One can imagine
many instances in which a woman is not mentally incompetent in any ordinary
sense but, by reason of background or sociopathic development, is incapable of
appreciating fully the community’s notions of intercourse as an event of moral
or ethical significance. A standard of this sort is plainly unsuited for
imposition of criminal liability on the male.”[594]
5.100
The standard adopted by
the Model Criminal Code is similar to the third test of understanding the
character and likely consequences of the act as developed by the US courts.
Section 231(2)(b) creates the offence where the actor “knows that she suffers
from a mental disease or defect which renders her incapable of appraising the
nature of her conduct.” According to the American Law Institute, this offence
limits liability for sexual intercourse with “a mentally incompetent woman to
cases of severe defect or impairment precluding ability to understand the
nature of the act itself.”[595]
5.101
In general terms,
variations of 6 tests have been applied in the criminal codes of the 50 US
states.[596] In 13
states, the criminal codes require an understanding of the nature of the sexual
activity and the potential consequences of sexual activity, such as pregnancy
and disease.[597] This can
be described as a compromise in seeking to protect vulnerable adults from
sexual exploitation while balancing the rights of persons with a disability to
sexual autonomy. In 7 states, an understanding of the nature and consequences
of sexual conduct is required, with the additional element of understanding the
moral dimension of sexual conduct.[598]
While appreciating the moral aspect of engaging in sexual activity might be
considered an onerous task which could negate capacity in situations that
otherwise appear to be consensual, it appears that courts “stress that the
complainant need only understand that society has these views; she need not
adhere to them herself.”[599] A majority
of states require an understanding of the sexual nature of the conduct and an
understanding of the voluntary aspect of participation. There is no obligation
to understand the morality or the nature and consequences of the act in this
test.[600] In State
v Sullivan[601], the Iowa
Supreme Court, in referring to the Iowa statute which proscribes a sexual act
with a person who suffers from a “mental defect or incapacity which precludes
giving consent, or lacks the mental capacity to know the right and wrong in
sexual matters”,[602] held that:
“The moral
“right” and “wrong” test is… an unfit tool in determining the mental competency
of a person to consent to a sexual act… Application of the “right” and “wrong”
dichotomy in the legal context would require the victim to analyze his or her
own mental capacity to assent to a sex act.”[603]
5.102
The totality of
circumstances test is particular to the state of Illinois. This test, while
considering the morality issue, also considers factors other than the sexual
act, including the nature, and the consequences due to the special context of
the act or the perpetrator’s intent. In 9 states, the court can consider
evidence of a disability which affects an individual’s ability to consent to
the sexual activity.[604] Finally,
two states, Georgia and Minnesota, apply a judgment test which is used to
ascertain whether an individual can exercise judgment with regard to giving consent
to sexual activity.
5.103
The “morality” test is
applied in New York and six other states. This test was best illustrated by the
New York Court of Appeals decision in People v Easley,[605]
where the court affirmed a rape conviction involving a moderately disabled
woman who engaged in sexual intercourse. The psychologist assessed the woman
and found her to be able to respond to sexual stimulation, participate in the act
of intercourse and comprehend that it could result in pregnancy “but was
incapable of thinking beyond the act in terms of what the consequences could
be.”[606] In
addition to understanding the physiological nature of sexual activity and its
consequences, the court ruled that an individual must also have the ability to
understand and appreciate how the conduct will be “regarded in the framework of
the societal environment and taboos to which a person will be exposed may be
far more important. In that sense, the moral quality of the act is not to be
ignored.”[607] This high
standard was reaffirmed in the later case People v Cratsley.[608]
The New York Court of Appeals in Cratsley asserted that the law does
not presume that a person with intellectual disabilities is unable to consent
to sexual intercourse and proof of incapacity must come from facts other than
intellectual disability alone.[609]
Arguably, the restrictive standard laid down in Easley and Cratsley which
require the individual to understand the social mores associated with sexual
behaviour sets too high and ambiguous a threshold. Setting the threshold too
low, however, would run the risk of failing to protect people with mental
disabilities from exploitative sexual behaviour.
5.104
In New Jersey, a person
must understand the sexual nature of an act and the decision to engage in the
sexual behaviour must be voluntary. This test is followed in a majority of
states. There is no requirement that the individual shows an understanding of
the potential risks and consequences of engaging in the sexual act. The Supreme
Court of New Jersey in People v Olivio[610] noted that only an understanding of the sexual nature of
the act and a voluntary decision to participate in the act is required to have
the requisite capacity to give consent. The court made it clear that an
understanding of the risks and consequences associated with sexual intercourse,
such as pregnancy or the risk of acquiring a sexually transmitted disease, is
not required in determining capacity to consent. The court held that the
test of giving consent by a “mentally defective” is whether:
“at the time of
the sexual activity, the mental defect rendered him or her unable to comprehend
the distinctively sexual nature of the conduct, or incapable of understanding
or exercising the right to refuse to engage in such conduct with another.”[611]
5.105
The Supreme Court’s
formulation in Olivio would result in a finding that many more people
with limited capacity would be found to have the capacity to consent than under
the New York Court of Appeals decision in Easley and Cratsley.
5.106
Courts in the
United States have taken a more active role than their Canadian counterparts in
making declarations of incapacity to consent to sexual relations.[612]
While this may be applauded as evidence of the courts seeking to protect
vulnerable adults from sexual violence it might also tip the balance in
encroaching on the sexual rights of persons with limited capacity.
5.107
Benedet and Grant contend that a problem with US case law is that
the inquiry into the nature of a woman’s disability and associated limited
capacity can prevent any inquiry into whether there was evidence of nonconsent.
In some cases, evidence of force and nonconsent is ignored once the complainant
is deemed capable of giving consent, the accused is acquitted since nonconsent
is not an element of the specific offence. The authors argue that US law may
have developed this focus on incapacity because the understanding of nonconsent
in the US is not advanced to the level expressed on the Canadian case of R v
Ewanchuk, but rather still requires proof of a clear expression of
resistance in the face of force before reaching a finding of rape. R v
Ewanchuk confirmed that mere compliance does not amount to consent and that
there must be some positive evidence of consent. The authors observed that
consent, therefore, cannot be implied from silence, passivity or ambiguous
behaviour, because it is the complainant’s state of mind that is at issue. The
authors note that this is particularly important and relevant for people with
limited capacity as it is typical in these cases to see compliance in sexual activity
along with no real affirmative consent.
5.108
The common law jurisdictions discussed by the Commission in this Chapter
have each approached the issue of vulnerability in a similar manner. States
have legislated for a specific offence dealing with sexual offences involving
persons with intellectual disability. Most jurisdictions provide a defence of
reasonable honest mistake that can be raised where the accused did not know or
could not have reasonably been expected to know that the complainant had
limited capacity to such a degree that made their consent ineffective. Many
jurisdictions have created a specific offence prohibiting certain relationships
between persons with positions of trust or authority with a person with limited
capacity. Many jurisdictions have also created an offence where the sexual act
was committed through inducement, threat or deception which is aimed at
individuals who both deliberately and repeatedly target people with the
intention of taking advantage of that person’s vulnerability.
5.109
The defence of reasonable belief on the balance of probabilities exists
for the circumstances where the accused can prove the parties were married or
in a de-facto relationship or where the accused did not know that the
complainant had limited capacity. In jurisdictions which have provided a
specific offence prohibiting relationships between persons in authority or
trust and those in their care, a defence of reasonable mistake is not available
for the accused.
5.110
The Commission has therefore concluded, and provisionally recommends,
that the test for assessing capacity to consent to sexual relations should
reflect the functional test of capacity to be taken in the proposed mental
capacity legislation, that is, the ability to understand the nature and
consequences of a decision in the context of available choices at the time the
decision is to be made. Consistently with this, therefore, a person lacks
capacity to consent to sexual relations, if he or she is unable:
5.111
The four elements of
this definition are based on the functional test of capacity recommended by the
Commission in its 2006 Report on Vulnerable Adults and the Law[613]
and have been adapted from the definition in section 3 of the English Mental
Capacity Act 2005.[614]
The definition used here has been tailored to the context of capacity to
consent to sexual acts.
5.112
The Commission has also
concluded, and therefore provisionally recommends, that since section 5 of the Criminal
Law (Sexual Offences) Act 1993 is not consistent with a functional test of
capacity, it should be repealed and replaced.
5.113
The Commission
provisionally recommends that there should be a strict liability offence for
sexual acts committed by a person who is in a position of trust or authority
with another person who has an intellectual disability. A position of trust or
authority should be defined in similar terms to section 1 of the Criminal
Law (Sexual Offences) Act 2006 which defines a “person in authority” as a
parent, stepparent, guardian, grandparent, uncle or aunt of the victim; any
person who is in loco parentis to the victim; or any person who is, even
temporarily, responsible for the education, supervision or welfare of the
victim.
5.114
The Commission also
provisionally recommends that any replacement of section 5 of the Criminal
Law (Sexual Offences) Act 1993 should cover all forms of sexual acts
including sexual offences which are non-penetrative and sexual acts which
exploit a person’s vulnerability.
5.115
The Commission
provisionally recommends that a defence of reasonable mistake should apply,
which would mirror that applied to sexual offences against children but that
the defence should not be available to persons in positions of trust or
authority.
5.116
The Commission
provisionally recommends that the fact that the sexual offences in question
occurred within a marriage or a civil partnership should not, in itself, be a
defence.
5.117
The Commission invites
submissions as to whether any replacement of section 5 of the Criminal Law
(Sexual Offences) Act 1993 should provide a specific offence of obtaining
sex with a person with intellectual disability by threats or deception.
5.118
The Commission
provisionally recommends that the maximum penalty on conviction on indictment
for the sexual offences involving a person with an intellectual disability
should be 10 years imprisonment. The Commission also provisionally recommends
that the consent of the Director of Public Prosecutions be required for any
prosecution of such offences, as is currently the case under section 5 of the Criminal
Law (Sexual Offences) Act 1993, bearing in mind that where a prosecution is
brought the ultimate assessment of capacity will be matter for the jury in a
trial on indictment.
5.119
The Commission provisionally recommends that the test for assessing
capacity to consent to sexual relations should reflect the functional test of
capacity to be taken in the proposed mental capacity legislation, that is, the
ability to understand the nature and consequences of a decision in the context
of available choices at the time the decision is to be made. Consistently with
this, therefore, a person lacks capacity to consent to sexual relations, if he
or she is unable:
5.120
The Commission
provisionally recommends that, since section 5 of the Criminal Law (Sexual
Offences) Act 1993 is not consistent with a functional test of capacity, it
should be repealed and replaced.
5.121
The Commission
provisionally recommends that there should be a strict liability offence for
sexual acts committed by a person who is in a position of trust or authority
with another person who has an intellectual disability. A position of trust or
authority should be defined in similar terms to section 1 of the Criminal Law
(Sexual Offences) Act 2006 which defines a “person in authority” as a parent,
stepparent, guardian, grandparent, uncle or aunt of the victim; any person who
is in loco parentis to the victim; or any person who is, even temporarily,
responsible for the education, supervision or welfare of the victim.
5.122
The Commission
also provisionally recommends that any replacement of section 5 of the Criminal
Law (Sexual Offences) Act 1993 should cover all forms of sexual acts including
sexual offences which are non-penetrative and sexual acts which exploit a
person’s vulnerability.
5.123
The Commission
provisionally recommends that a defence of reasonable mistake should apply,
which would mirror that applied to sexual offences against children but that
the defence should not be available to persons in positions of trust or
authority.
5.124
The Commission
provisionally recommends that the fact that the sexual offences in question
occurred within a marriage or a civil partnership should not, in itself, be a
defence.
5.125
The Commission
invites submissions as to whether any replacement of section 5 of the Criminal
Law (Sexual Offences) Act 1993 should provide a specific offence of obtaining
sex with a person with intellectual disability by threats or deception.
5.126
The Commission
provisionally recommends that the maximum penalty on conviction on indictment
for the sexual offences involving a person with an intellectual disability
should be 10 years imprisonment. The Commission also provisionally recommends
that the consent of the Director of Public Prosecutions be required for any
prosecution of such offences, as is currently the case under section 5 of the
Criminal Law (Sexual Offences) Act 1993, bearing in mind that where a
prosecution is brought the ultimate assessment of capacity will be matter for
the jury in a trial on indictment.
6
6.01
In this Chapter the Commission discusses a number of related procedural
issues concerning persons with disabilities and the criminal justice system.
The Commission examines the range of special measures which are currently
available to eligible witnesses and complainants in Ireland. The Commission
also explores what measures are available to witnesses and complainants in
other countries. The position of defendants who may require assistance and
support to enhance their participation in the criminal trial process is also
examined.
6.02
A number of countries
have enacted legislation enabling extra assistance to be given to “special
witnesses” based on a number of criteria. These include:
· the witness’s persons
characteristics (such as physical or mental condition, age and cultural
background);
· the nature of the offence;
· the relationship between the witness
and defendant;
· the nature of the evidence the
witness is required to give; and
· the defendants’ characteristics
(particularly dangerousness).
6.03
For the purposes of
this Consultation Paper, the focus is on complainants and defendants who may
require accommodation in the criminal trial process.
6.04
As already discussed, sexual offences, when reported, are difficult to
prove.[615] For vulnerable
complainants or witnesses there is the additional layer of evidentiary and
procedural rules that create even more difficulties for such persons in
accessing the criminal justice system. Despite the over-representation as
victims of sexual assault, there are few prosecutions under current legislation
designed to protect people with limited capacity from sexual abuse.[616]
Several reasons have been attributed for this. People with an intellectual
disability are generally less likely to report cases of abuse and if abuse is
reported they are less likely to be believed. Communication difficulties may
make it difficult for someone to tell others if they are unhappy, hurt or
afraid. Living in an isolated environment may mean someone does not have free
communication with someone they can trust. These barriers can be confounded by
feelings of fear of losing a person’s service, retaliation from an abuser or
fear of being reprimanded if a person reports a case of abuse.[617]
Furthermore, deficits in memory, problems with communication which can be
particularly relevant in a legal culture which relies heavily on oral
communication, and an inability to estimate time or place events in sequence
have been identified as difficulties which the criminal trial might pose for
the complainant.[618]
6.05
These difficulties require particular accommodations in the criminal
trial process in order to effectively provide access to justice for survivors
of sexual violence while maintaining the accused’s right to a fair trial. The
following have been identified as measures aimed at improving the criminal
justice process for witnesses with disabilities:[619]
·
encouraging reporting - failure to define an incident as criminal and an
ethos that all discussions with clients should be treated confidentially have
been seen as reasons for low reporting rates of crimes against people with
disabilities;
·
identifying vulnerability;
·
facilitating communication;
·
recognising that a crime has occurred which can be done through improved
education, informing service professionals about the relevant piece of
legislation and having formal policies for professional carers and service
providers;
·
providing support; and
·
preventing future offences.
6.06
It has been suggested
that an excessive number of cases involving witnesses with disabilities are
lost at the early stage of deciding whether or not to go ahead with a case.[620]
In the UK, of 167 cases of alleged sexual abuse against people with learning
disabilities reported between 1989 and 1990, only 10-15% resulted in a court
appearance despite three-quarters being accompanied by corroborative evidence.[621]
The Commission now turns to discuss the reasons which may explain the high
number of cases which do not reach prosecution stage.
6.07
There are a number of
reasons for deciding not to prosecute including the following:
· lack of evidence following delayed
reporting or internal investigations by service providers;
· credibility of witnesses; and
· competence to give evidence.[622]
6.08
Sanders et al observed that in the UK although the police often
liaised with the Crown Prosecution Service (CPS) before this stage on cases
involving the ‘non-disabled’ population, the evidence showed that the CPS and
the police rarely consulted experts on disability issues.[623]
6.09
The Commission has learned that there is a lack of data on both the
incidence and characteristics of sexual assault of people with limited capacity
arguably impedes legal and policy development in this area. The Victorian Law
Reform Commission recommended that a working group be convened by the
Department of Justice in Victoria to establish an integrated process for the
collection of statistics relating to sexual offences and that cognitive
impairment be a particular focus of this endeavour. This working group was made
up of representatives from the Victoria Police, the Office of the Director of
Public Prosecutions, the courts and other relevant stakeholders.[624] The Commission is aware that over the past number of years the Prosecution Policy Unit of
the Office of the Director of Public Prosecutions in Ireland has undertaken a
detailed file analysis project in respect of a statistically significant sample
of investigation files received from the Garda Síochána.[625]
This cohort represented over 90% of the files concerning a complaint of rape[626]
received by the Office during this period. The primary objective of this
project was an examination of the prosecutorial decision-making processes
involved with a view to the development of internal policy guidelines to assist
professional officers in this task. The study recorded the particular circumstances
of the complainants and of relevance to this Consultation Paper is the mental
health and intellectual disability status of the complainants identified in the
study.
6.10
The Prosecution Policy
Unit of the Office of the Director of Public Prosecutions in Ireland, in its
sample of investigation, noted that out of 17 cases involving persons with an
intellectual disability a prosecution rate of 24% was identified which compared
with a total prosecution rate of 27.68% when measured as a proportion of
‘prosecutable cases’.[627]
6.11
As for complainants
presenting with a psychiatric illness the sample size for 2005 was again small
at 11 cases, but, by contrast, the prosecution rate in respect of cases
involving such complainants was 0%. The complainant’s psychiatric illness was
not the determining factor and in 2 of the 11 cases additional reasons for not
prosecuting were advanced. In 3 of the 11 cases the complaint was withdrawn
before the Office received the file. The level of withdrawal, at 27%, reflects
the overall level of withdrawal identified generally in the sample surveyed and
as such it would not necessarily seem to be connected to the complainant’s
psychiatric history. The fact of the withdrawal, coupled with other evidential
difficulties which were unrelated to the complainant’s psychiatric illness,
resulted in a decision not to prosecute in these cases. The reason for not
prosecuting in a further 2 of the 11 cases was in part the issue of the
complainant’s ‘recovered’ memory and again the issue of the complainant’s
mental illness did not appear to have been specifically relevant to the
decision not to prosecute. The remaining 4 cases shared similar features to the
‘no prosecution’ decisions in the general sample and included a combination of
no forensic evidence, no corroboration, no evidence of the absence of consent,
delayed reporting, intoxication at the time of the allegation and
inconsistencies in the complainant’s statements.
6.12
In Ireland a series of
measures have been enacted specifically with respect to victims of sexual
crimes. A person has a right to be accompanied to court.[628]
Legal aid is also available for complainants of the most serious sexual
offences.[629] Section 34
of the Sex Offenders Act 2001 provides victims with a right of separate
legal representation in respect of applications to introduce evidence relating
to their previous sexual history.
6.13
Article 13.1 of the
UNCRPD states that:
“States Parties shall ensure effective access to justice for persons
with disabilities on an equal basis with others, including through the
provision of procedural and age-appropriate accommodations, in order to
facilitate their effective role as direct and indirect participants, including
as witnesses, in all legal proceedings, including at investigative and other
preliminary stages.”
6.14
As Benedet and Grant note the criminal trial process was not designed to
facilitate the testimony of persons with limited capacity. An inability to
operate within the confines of the traditional trial process can result in a
finding of diminished credibility as regards the testimony of persons with
limited capacity. Further difficulties arise particularly in cases involving
sexual violence where a complainant’s prior sexual history may be introduced by
the defence and the complainant is subjected to rigorous cross-examination.[630]
6.15
Research exploring the issue of sexual offences against persons with
limited capacity in England and Wales showed that court users, both in criminal
and civil proceedings, with mental health conditions and learning disabilities
experience particular difficulties when giving evidence in court.[631]
Many court users found the legal terminology barriers to their understanding of
the court process while a number stated that they experienced problems in
understanding questions when asked in court. The report concluded that this
lack of understanding resulted in confusion for the court users which had a
negative impact on their demeanour in court.[632]
Those involved in the study reported that difficulties with understanding were
improved by awareness of their particular mental health issue or learning
disability amongst legal representatives as this resulted in the court taking
steps to ensure that proceedings were explained in an easily understood manner.[633]
When asked, court users with a mental illness or learning disability stated
that they would benefit from being able to use special measures when giving
evidence in court, particularly, if screens or intermediaries were made
available to them.[634]
6.16
In this Part, the Commission discusses some of the main issues facing
adults who may require extra supports in the criminal justice process. The
Commission examines the difficulties that can face a complainant with limited
capacity such as their competency as reliable witnesses and credibility to give
evidence which have tended to create difficulties for securing convictions for
complainants of sexual offences. The Commission briefly examines whether
existing safeguards in the criminal justice process are sufficient to protect complainants
from unnecessary distress and whether additional safeguards should be
introduced. The Commission also discusses whether such safeguards should be
available for vulnerable defendants in line with fair procedures.
6.17
Where the competency of
a witness is put in question it becomes a matter for the trial judge to
determine whether the witness is competent to give evidence. A witness is
competent if he or she has the capacity to provide an intelligible account in a
trial process. Generally, if a witness is capable of understanding the nature
of the oath and can convey his/her evidence in a manner which enables the jury
to follow it, that person is deemed competent.[635]
The assessment of competency to give evidence, as to whether the witness
understood the nature of the oath, is already framed in the context of a
functional assessment, however, traditionally the evidence of some groups of
witnesses who may require extra supports to facilitate them in giving their
testimony has been considered unreliable.[636]
Under the proposed mental capacity legislation however the presumption of
capacity to give evidence will require that the person asserting lack of
competency must disprove this presumption in line with the functional approach.
6.18
The credibility of the complainant or witness is closely intertwined
with the evidentiary issues. Sexual assault prosecutions often contest
credibility because there are rarely other witnesses to corroborate the
complainants testimony and such cases are often based on the issue of consent
which generally is given or not given in private between the two parties. In
the context of a criminal trial and the requirement of proof beyond a
reasonable doubt, the accused need not be believed to be successful. If the
trier of fact has a reasonable doubt that the accused is telling the truth, the
accused is entitled to an acquittal.
6.19
There are several ways in which disability itself can be misinterpreted
to undermine credibility. The complainant may have difficulty forming long-tem
memories, communicating information to people in authority or communicating
effectively on the witness stand. The pressures of cross-examination may also
result in conflicting testimony.[637] As Benedet and Grant note “the fact of
disability itself can be used in a discriminatory manner to cast doubt on the
complainant’s credibility… if she cannot be sworn, her testimony carries less
weight. In other cases, memory or communication problems may raise a reasonable
doubt about the believability of the complainant.”[638] Section 14 of the Criminal Evidence Act 1992 provides
that questions, but not responses, may be put through an intermediary. The
section provides that on the application of prosecution or the accused the
court may, if satisfied that justice requires it, direct that questions be put
to the witness through an intermediary. The questions are put either in the
words used by the questioner or so as to convey to the witness in a way
appropriate to their age and mental condition the meaning of the questions
being asked.
6.20
The inherent difficulties in the prosecution of offences involving
witnesses with limited capacity have prompted suggestions for how the process
can be improved for these witnesses while protecting the right to a fair trial
for the accused.[639]
Internationally, the rise in reporting of sexual offences
particularly against children and the “mentally impaired” in the latter half of
the 20th Century and the influence of the Report of the UK
Home Office Advisory Group on Video Evidence[640]
prompted calls for the examination of the means by which witnesses could be
assisted to give evidence without the right of the accused to a fair trial
being put in jeopardy. In an attempt to facilitate the giving of evidence in
court in the context of trials for sexual and violence offences, Part III of
the Criminal Evidence Act 1992 introduced a series of measures designed
to assist witnesses in the trial process. The Act was introduced following the
recommendations of the Commission in its Report on Child Sexual Abuse[641]
and Report on Sexual Offences against the Mentally Handicapped.[642]
6.21
The 1989 Home Office Report recommended that video-recorded evidence
would relieve some of the difficulties faced by child witnesses. The Report
recommended that the accused should not be allowed to cross-examine a child
witness as the process was seen as potentially damaging the child. The Report also
recommended that the changes brought in to facilitate children should also be
extended to adult witnesses if certain criteria made them eligible. The test
for determining eligibility would be on the basis of age, physical or mental
condition; the nature and seriousness of the offence and the nature of the
evidence which the witness was to give. The 1989 recommendations on
video-recorded evidence were implemented in England and Wales by the Criminal
Justice Act 1991.
6.22
The Commission in its 1990 Report on Child Sexual Abuse recommended
that the court should continue to make the ultimate decision as to the
competence of children to give evidence. The test of competency of children
should be the capacity of the child to give an intelligible account of events
which he or she has observed.[643]
The Commission also recommended that the requirement to warn a jury before they
can convict on the sworn evidence of a child and the requirement of
corroboration of the unsworn evidence of a child should be abolished.[644]
On the issue of giving evidence on oath the Commission recommended that section
30 of the Children Act 1908 be repealed and replaced by a provision
enabling the court to hear the evidence of children under the age of 14 without
requiring them to give evidence on oath or affirm where the court is satisfied
that the children are competent to give evidence in accordance with the
criteria as to competency already proposed.[645]
6.23
The Commission in its 1990 Report on Sexual Offences against the
Mentally Handicapped recommended that any special legislative arrangements
facilitating the giving of evidence by children by the use of closed circuit
television, video recordings and skilled examiners should apply also in cases
of sexual offences against persons with ‘mental handicap’ or suffering from
‘mental illness’.[646]
6.24
The Commission also recommended that, in the case of persons with
‘mental handicap’, the requirements as to giving evidence on oath or
affirmation should be the same as for other witnesses. Where appropriate,
however, the court should satisfy itself that a person with ‘mental handicap’
is capable of giving an intelligible account of events which he or she has
observed. There should be no requirement of corroboration.[647]
6.25
As already mentioned, many of the Commission’s recommendations in its
1990 Report were implemented in the Criminal Evidence Act 1992 including
pre-trial recording of examination in chief testimony. These measures included
the introduction of video link evidence,[648]
the use of an intermediary,[649] the
abolition of the need for the testimony to be given on oath or by affirmation
as long at the witness was capable of giving an intelligible account[650]
and the elimination of mandatory corroboration of the witness’ testimony.[651]
These measures were aimed at children under a certain and age[652]
and persons with a ‘mental handicap’ who did not meet the age requirement.
6.26
Section 19 of the Criminal Evidence Act 1992 allows persons with
a ’mental handicap’ to avail of support measures which apply to appropriate
child witnesses. The 1992 Act refers to ‘mental handicap’ whereas the 1993 Act
applies to persons with a ‘mental impairment’ defined as a “disorder of the
mind, whether through mental handicap or mental illness”. This would suggest
that the 1992 Act only applies to persons with an intellectual disability
rather than persons with a mental illness.
6.27
Section 16(1)(b) of the Criminal Evidence Act 1992 which came
into force in 2008, provides protection to witnesses who are eligible under the
Act and who have been the victims of sexual and violent offences. It provides
for the admission of a video recorded statement to be taken close in time to
the alleged incident which will in turn allow greater detail to be recorded. It
may also serve to minimise trauma for the witness in the trial process however
the witness must be available in court from cross-examination.[653]
Section 16(1)(b) of the Act states that the complainant must be under 14 or
suffer from a ‘mental handicap’, and the interview may be taken by a member of
An Garda Siochána or “a person who is competent for the purpose”.[654]
It only applies to those in respect of whom such an offence is alleged to have
been committed and is therefore confined to complainants. Section 16(1)(b) was
drafted specifically for the most vulnerable witnesses with a presumption that
complainants who allege certain sexual or violent offences were committed against
them will be available for cross examination. There is a legislative
presumption that the video-recording will not be admitted into evidence unless
it is not in the interests of justice to do so or would run the risk of
unfairness to the accused.
6.28
Section 16(1)(b) of the Criminal Evidence Act 1992 was applied
for the first time in The People (DPP) v XY[655]
in which White J admitted a DVD recording of an interview of an eligible
complainant as evidence. As Delahunt notes this was the first time a DVD
recording of a witness statement was admitted in such a case which marks a
particular shift in the perception of how the testimony of more eligible
witnesses may be heard at trial. The application highlighted issues such as
training of Gardaí and legal practitioners in taking evidence from eligible
witnesses, the right of the accused to a fair trial and whether admitting the
recording of the interview would compromise this right, undefined terms and
lacunae in the legislation and lastly technical difficulties in the editing and
playing of the recording.[656]
6.29
In The People (DPP) v XY the accused was alleged to have
forced a female with an intellectual disability into performing the act of oral
sex with him. As a sexual act does not come within the scope of section 5 of
the 1993 Act (which deals with sexual intercourse and buggery only), the
accused was charged under section 4 of the Criminal Law (Rape) (Amendment)
Act 1990. It is notable that section 4 of the 1990 Act does not have regard
to any mental impairment a complainant may have. On this issue White J noted
that “[i]t seems to me that the Oireachtas when they introduced the 1993 Act
did not fully appreciate the range of offences needed to give protection to the
vulnerable.” In directing the jury to acquit the defendant, he stated that the
judiciary could not fill “a lacuna in the law” and having regard to case law,
he had come to the conclusion that there had not been an assault involving a
person being actually forced to do something or threatened so that they must
submit. He noted in his direction that the jurors had heard the complainant use
the word “force” in her evidence on the DVD, that she kept saying “no” when the
accused said “go on”, but that she had not expanded on that and there was no
suggestion of threat or menace. White J therefore directed that it was “with
great reluctance” that the accused be acquitted on the basis that there was no
evidence of assault or hostile act on his part and as such he directed the jury
to return a verdict of not guilty.
6.30
It could be argued that
if the complainant’s evidence-in-chief is recorded before the trial, it would
be desirable for her to be cross-examined at the same time, and that
pre-recording of cross-examination could limit the distress associated with the
experience. The Victorian Law Reform Commission noted, however, that time
limits in trials involving sexual offences may weaken the argument that
pre-recording of cross-examination provides a means by which complainants can
be cross-examined while events are fresh in their minds.[657]
6.31
Delahunt notes that as
the courts move towards pre-trial deposition, legislation is required which
will remove witnesses who are eligible for special measures under the Act from
the trial process altogether by giving all of her evidence pre-trial.[658]
She notes that:
“[f]or the complainant, having his or her testimony deposed soon
after the alleged incident will mean not having to endure the considerable delay
waiting for the case to come to court. For both the prosecution and defence,
the knowledge that the evidence has been fully adduced will allow them to
prepare their cases, and this will increase the choices open to the accused.”[659]
6.32
Delahunt suggests that:
“[w]e have legislation here which is 20 years out of date, which
is limited in respect of the offences to which is applies, which contains
archaic, undefined terms, which does not provide statutory guidelines for
Gardaí or courts to work within, and which does little to safeguard the
interests of either the complainant or defendant. We continue to endure a
situation where our adversarial system risks imposing a secondary trauma on the
complainant.”[660]
6.33
The Commission has not yet come to any conclusion at this stage on this
matter and therefore invites submissions on whether the Criminal Evidence
Act 1992 should be amended to allow for pre-trial cross-examination of
complainants and witnesses who are eligible under the 1992 Act to special
measures in the criminal trial process.
6.34
The Commission invites submissions on whether the Criminal Evidence Act
1992 should be amended to allow for pre-trial cross-examination of complainants
and witnesses who are eligible under the 1992 Act to special measures in the
criminal trial process.
6.35
In order to ensure
effective access to justice for persons with disabilities Ireland is obliged
under Article 13(2) of the UNCRPD to promote appropriate training for those
working in the field of administration of justice, including police and prison
staff.
6.36
At present Gardaí receive training in relation to engaging with people
with mental health difficulties as part of their overall training in the Garda
College which includes input from external experts.[661]
As submitted by Delahunt, there is an expectation on the Garda to gather all
the information which will ground the offence at an early stage in the
proceedings which places an undue burden on him/her to conduct full examination
in chief questioning while taking a witness statement.[662]
Delahunt asserts this is an unreasonable demand of the Garda Síochána for which
they receive specialised training that no legal practitioner receives in this
jurisdiction as of yet.[663] This
point, according to Delahunt, was highlighted by prosecution counsel in The
People (DPP) v XY. As she put it:
“[g]ardaí who conduct the section 16(1)(b) interviews are now
more specifically trained then senior legal practitioners in the techniques of
interviewing children and persons with an intellectual disability. Specific
advocacy training for legal practitioners in this area is recognised as an
ongoing need in respect of the advocacy training provided by the Honourable
Society of Kings Inns and the Law Society.”[664]
6.37
The provision of training for those working the in the criminal justice
process could cover the nature of disabilities and illnesses and how one’s
impairment might be better accommodated in the process. In doing so it could
examine the methods by which the participation of eligible adults in court
proceedings could be enhanced.[665]
Such efforts have already begun in the UK. The Bar Council has, for example,
set up a network of barristers who have some experience and knowledge of cases
involving people with learning disabilities.[666]
6.38
The law must provide a robust and comprehensive framework for the
redress of grievances. In providing an accessible criminal justice framework
the law must take into account both the bio-medical diagnosis and the social
construction of disability in order to tailor it to meet the individual needs
of complainants. As recommended by the Commission in its 2005 Consultation
Paper on Capacity, and proposed mental capacity legislation should ensure that
a determination of a person’s legal capacity complies with procedural fairness
by ensuring that the person has appropriate assistance in terms of information,
access to representation and other reasonable assistance which will enable them
to understand the implications of the process and to make submissions in
relation to their capacity.[667] The Commission considers that it is necessary that
concerns over the reliability and credibility of evidence are seen as part of
the overall objective in advocating a functional, situational assessment of
capacity. In line with this approach, the Commission considers there is a
presumption of capacity to give evidence which can only be rebutted if the
complainant does not understand the nature of the oath and the consequences of
taking the oath at the specific time when the decision to take the oath is
made. The current definition of “mental impairment” which is based on a static
assessment of capacity has made securing a prosecution under section 5 of the
1993 Act difficult. While there may need to be some reasonable accommodations
made for people with disabilities this should not infer a lack of capacity to
give evidence. The Commission considers that rules of evidence and procedure
need to be sufficiently flexible in order to hear the accounts of complainants
in a manner which recognises the individual circumstances of the complainant’s
disability while ensuring the right to a fair trial and fair procedures for the
accused.
6.39
The Commission
therefore provisionally recommends the development of guidelines for those
working in the criminal justice process in identifying current obstacles
and examining methods by which the participation of eligible adults in court
proceedings could be enhanced in consultation with the proposed Office of
Public Guardian, to be established under the proposed mental capacity
legislation, and the National Disability Authority.
6.40
The Commission
provisionally recommends the development of guidelines for those working in the
criminal justice process in identifying current obstacles and examining
methods by which the participation of eligible adults in court proceedings
could be enhanced in consultation with the proposed Office of Public Guardian, to
be established under the proposed mental capacity legislation, and the National
Disability Authority.
6.41
In the next Part, the Commission considers ways of enhancing the
participation of witnesses and complainants in the criminal trial process
through the assistance of support persons or intermediaries.
6.42
There are several ways
of assisting witnesses which may be used to increase the reliability of
relevant evidence by reducing the witness’s distress. Supports can be through
the use of support persons and intermediaries.[668]
The Law Reform Commission of Western Australia, in its Discussion Paper on
Evidence of Children and Other Vulnerable Witnesses describes the role of
support persons in the following way:[669]
“”[s]upport”
can, of course, cover a wide range of activities. At its minimum it would
usually involve accompanying a child to court and sitting near him or her
either in court (or in a monitor room) when he or she is giving evidence. In
the United States, where some very young children have given evidence, the
support person has been the child’s mother who has held the child on her lap while
the child was questioned. The role of the support person is to give the child
some emotional security in a strange situation, thereby enhancing the child’s
ability to withstand the ordeal of giving evidence. This is valuable for both
child and prosecution. It is not the part of a support person to coach or
prompt the child in what he or she has to say, but the role should not preclude
a gently encouragement to “tell the judge what happened” when a child seems to
freeze, or giving a soothing pat to a distraught witness. Experience will
obviously determine acceptable limits to such support and provide guidelines
for support persons.”
6.43
In Ireland, the National
Advocacy Service for People with Disabilities which was formally launched on 30th
March 2011 and provides independent, representative advocacy services for
people with disabilities including where they are involved in court proceedings. The Personal Advocates as
legislated for in the Citizens Information Act 2007 assist people with
disabilities in accessing essential social services and include making
applications for services and submitting formal complaints if services to which
the person is entitled are not provided. As already discussed in Chapter 3, the
Commission is aware that Personal Advocates have accompanied parents with
limited capacity to court where an application for a care order has been made.
6.44
An intermediary is an
independent third party who may act as a “go-between” to facilitate
communication between a witness who may require supports and the court.[670]
The role of an intermediary is to identify and address the needs of the
witness and represent such needs at pre-trial plea and case management hearings
as well as at trial. Essentially their role is to effectively liaise with the
court as to how best the witness can communicate his or her testimony.[671]
6.45
In Ireland section 14
of the Criminal Evidence Act 2009 provides that:
“(1) Where -
the court may, on the application of the
prosecution or accused, if satisfied that, having regard to the age or mental
condition of the witness, the interests of justice require that any questions
be put to the witness be put through an intermediary, direct that such questions
be so put.
(2) Questions put to a witness through an
intermediary under this section shall be either in the words used by the
questioner or so as to convey to the witness in a way which is appropriate to
his age and mental condition the meaning of the questions being asked.
(3) An intermediary referred to in subsection
(1) shall be appointed by the court and shall be a person who, in its opinion,
is competent to act as such.”
6.46
Recent initiatives
have been undertaken in England and Wales to determine the efficacy of
intermediaries. In 2007 pilot projects were carried out in six areas in order
to assess the use of intermediaries in the criminal justice process with the
aim of establishing a model for national implementation.[672]
There were a number of difficulties identified with the implementation of the
projects; namely:
· implementation suffered initially
from insufficient national and local leadership across criminal justice
organisations;
· few problems were encountered with
recruitment of intermediaries, although some skill-gaps were identified;
· it was not possible to determine
what influence the use of intermediaries had on case outcomes, however,
respondents to the evaluation considered that at least half of the cases in the
pilot project would not have reached trial stage without the use of an
intermediary;
· respondents considered that
intermediaries’ contribution at the investigative stage was greatest when they
had adequate time for witness assessment and for assisting the police in
planning;
· the number of requests for
intermediaries was lower than expected. Reasons for a lack of usage included:
poor levels of awareness, misinterpretation of eligibility criteria;
over-estimation of advocates’ competence; and under-estimation of the extent of
communication difficulties;
· operational difficulties and
cultural resistance were identified amongst some in the criminal justice
system;
· it was not possible to assess the
demand for intermediaries but overall the pilot projects indicated positive
contributions of the use of intermediaries in facilitating vulnerable witnesses
to access justice and to furthering the government’s objectives for the
criminal justice system.
6.47
Despite the
difficulties encountered the evaluation identified a number of benefits.
Feedback from witnesses and carers in trail cases was positive with carers
considering that intermediaries not only facilitated communication but also
helped witnesses cope with the stress of giving evidence. Appreciation of the
role was almost unanimous across the judiciary and the criminal justice
personnel. Furthermore, the following, as identified by the Northern Ireland
Law Commission,[673] were
considered as positive in the evaluation:
· potential assistance in bringing
offenders to justice - 13 cases (involving 15 witnesses for whom intermediaries
were appointed) ended in a conviction, five after trial;
· increasing access to justice -
participants in the projects estimated that at least half of 12 trial cases
would not have reached trial without the use of an intermediary;
· potential cost savings - it was
considered that the use of an intermediary had the potential to save court time
by keeping witnesses focused, reducing the time that might otherwise have been
needed to question them;
· benefits at trial - participants
reported a number of benefits during the trial stage, including: facilitating
communication in a neutral way, through informative reports and appropriate
interventions; and ensuring that witnesses understood everything said to them,
including explanations and instructions.
Deciding to roll-out the use of intermediaries
nationally, it was decided to adopt the following measures in order to avoid
the difficulties identified in the evaluation. It was suggested that:
· central guidance should be provided,
together with a clear allocation of local responsibility for implementation;
· links between implementation of
intermediaries and other initiatives should be highlighted;
· awareness raising needed to take
place amongst the criminal justice community and “mind-set” obstacles to
intermediary use tackled;
· eligible witnesses should be
identified at the earliest opportunity; and
· improvements should be made to
pre-trial planning and it should be ensured that ground rules for intermediary
use are discussed before trial.[674]
6.48
Facilitated
communication is undoubtedly controversial in nature. The Commission considers
that the use of intermediaries can have great importance in the trial process
in making the judicial system more accessible for witnesses considered eligible
under the Act. At the same time the Commission also considers that care should
be taken to ensure that methods employed by intermediaries are effective. The
use of intermediaries must also be balanced with the defendant’s right to a
fair trial under Article 6 of the ECHR while ensuring that witnesses who give
evidence are enabled to do so in a manner which enables their full
participation in the trial process. The Commission therefore invites
submissions on the current use of intermediaries under section 14(1) of the Criminal
Evidence Act 1992 and their efficacy as a special measure in criminal
proceedings.
6.49
The Commission
invites submissions on the current use of intermediaries under section 14(1) of
the Criminal Evidence Act 1992 and their efficacy as a special measure in
criminal proceedings.
6.50
In June 1998, the UK Government published the Report Speaking Up for
Justice which made 78 recommendations to assist vulnerable or intimidated
witnesses to give evidence in court to facilitate their right to access
justice.[675] The Report
acknowledged that some individuals, such as children, adults living with a
mental disorder or significant impairment of intelligence or social
functioning, adults living with a physical disability or disorder and people
who are suffering fear or distress because they must give evidence, experience
particular difficulties while giving evidence in court. Such difficulties might
dissuade people from engaging in court proceedings and the justice system in
general.
6.51
Amongst the recommendations in the Report was the use of “special
measures” which is a model of giving oral evidence in a non-traditional manner.
The types of “special measures” recommended in the Report included:
·
the use of live television link to allow a witness to give evidence
without having to appear in person;[676]
·
allow a witness to be accompanied by a supporter when giving evidence by
television link,[677]
·
creating a statutory basis for the use of screens in court proceedings;[678]
·
giving the court the power to restrict the press from reporting
details of a case;[679]
·
allowing for video-recordings of a witness’s evidence-in-chief;[680]
·
the use of methods to assist the witness to communicate whilst in court,
including interpreters, communication aids, techniques and intermediaries;[681]
and
·
creating a statutory basis for the court to have the power to require
the removal of wigs and gowns in appropriate circumstances.[682]
6.52
The need to offer effective support and assistance in giving evidence to
those who may be particularly vulnerable was addressed in Part II of the Youth
Justice and Criminal Evidence Act 1999 which enables the court to order one
or more of a range of measures to assist the witness in court. Vulnerable
witnesses are defined by section 16 of the 1999 Act. Children are defined as
vulnerable by reason of their age[683]
while other vulnerable witnesses include witnesses who have a mental disorder
as defined by section 1(2) of the Mental Health Act 1983,[684] witnesses significantly impaired in relation to
intelligence and social functioning[685]
and physically disabled witnesses.[686]
Intimidated witnesses are defined by the 1999 Act as those suffering from fear
or distress in relation to testifying in the case.[687]
Complainants, for example, in sexual assault cases are considered intimidated
witnesses.[688]
6.53
The special measures available to vulnerable and intimidated witnesses
which correspond to the recommendations made by the 1998 Home Office Report, include:
·
screens, to shield the witness from the accused;[689]
·
giving evidence by live-link;[690]
·
evidence given in private;[691]
·
removal of wigs and gowns;[692]
·
video-recorded evidence in chief;[693]
·
video- recorded cross-examination or re-examination;[694]
·
examination of witness through an intermediary for vulnerable witnesses;[695]
·
aids to communication;[696]
·
clearing the public gallery in sex offence cases and cases involving
witness intimidation.
6.54
It is possible in some circumstances for all of the complainant’s
evidence, their evidence-in-chief, cross-examination and any re-examination, to
be recorded at a special hearing prior to the trial.
6.55
The 1999 Act also amended the law on competency. This provides that as a
general rule, all people, whatever their age, are competent to act as witnesses
unless they cannot understand questions asked of them in court or cannot answer
them in a way that can be understood, with, if necessary the assistance of any
of the special measures above. This enables the witness to receive assistance
from an intermediary in explaining questions and communicating answers “so far
as is necessary to enable them to be understood by the witness or person in
question”.[697] In 2008
there was full roll out of the use of intermediaries in England and Wales. As
Delahunt notes the criminal courts in England and Wales introduced the use of
intermediaries in order to resolve the difficulties inherent in protecting the
rights of the witness and the accused.
6.56
Section 19(1) of
the Youth Justice and Criminal Evidence Act 1999 obliges the court to
take into account the manner in which witnesses are enabled to give
their best evidence and imposes an obligation on judges and magistrates to
raise their own motion as to whether special measures should be used if the
party has not applied for them. The 1999 Act lists a number of factors that the
court must, or should, take into account when assessing whether the witness
qualifies for any of the special measures. These include:
· the nature and alleged circumstances
of the offence;
· the age of the witness;
· the social and cultural background
and ethnic origins of the witness;
· any religious beliefs or political
opinions of the witness;
· the domestic and employment
circumstances of the witness; and
· any behaviour towards the witness on
the part of the accused, their family or associates, or any other witnesses or
co-accused.
6.57
When deciding
eligibility, the court must consider the witnesses’ own views about the need
for special measures. The court must also take into account the circumstances
of the case and whether or not the special measures are likely to inhibit the
evidence being effectively tested by any part to the proceedings.[698]
6.58
Section 32 of the Youth
Justice and Criminal Evidence Act 1999 provides that where on a trial on
indictment evidence has been given in accordance with a special measures
direction, the judge may give the jury such warning (if any) as the judge
considers necessary to ensure that the fact that the direction was given in
relation to the witness does not prejudice the accused.
6.59
The English Criminal
Procedure Rules 2011, which came into force in England and Wales in October
2011, affect procedures used in magistrates’ courts, the Crown Court, the Court
of Appeal and the Criminal Division. The 2011 Rules consolidated with
amendments the Criminal Procedure Rules 2010, as amended by the Criminal
Procedure (Amendment) Rules 2010 and the Criminal Procedure (Amendment
No.2) Rules 2010. The 2011 Rules amended the time limits for making
applications, and giving notices in connection with, special measures for
vulnerable witnesses. The time limits in rule 29.3 in making an application for
a direction or order for special measures to assist a witness or defendant to
give evidence were also extended.
6.60
The Coroners and
Justice Act 2009 made a number of amendments which came into force in June
2011 to the special measures provisions in the Youth Justice and Criminal
Evidence Act 1999. Section 98 extends automatic eligibility for special
measures to witnesses under the age of 18 as opposed to 17. Section 100 amends
section 21 of the 1999 Act by removing the category of child witnesses in need
of ‘special protection’. The effect of this change is to place all child
witnesses in the same position regardless of the offence and as such there will
be a presumption that they will give their evidence-in-chief by a
video-recorded statement and any further evidence by live link unless the court
is satisfied that this will not improve the quality of the child’s evidence. In
addition, subject to the agreement of the court, child witnesses may ‘opt out’
of giving their evidence by either a video-recorded interview as
evidence-in-chief or by means of live link or both. If they do wish to ‘opt
out’ there is a presumption that they will give their evidence in the court
room from behind a screen. Should they not wish to use a screen, they may also
be allowed to ‘opt out’ of using it, subject to the agreement of the court.
Section 105 amends the definition of a child in section 35 of the 1999 Act to
mean a person under the age of 18 years as opposed to 17 years.
6.61
Section 101 inserts a
new section 22A into the 1999 Act and makes special provision for adult
complainants in sexual offence trials in the Crown Court. It provides, on
application by a party to the proceedings, for the automatic admissibility of a
video-recorded statement as evidence-in-chief under section 27 of the 1999 Act,
unless this would not be in the interests of justice, or would not maximise the
quality of the complainant’s evidence. Witnesses are eligible for this
assistance[699] if they
suffer from a mental disorder within the meaning of mental health legislation[700]
or otherwise have “significant impairment of intelligence and social
functioning”. Section 102
amends section 24 of the 1999 Act. When the court directs a live link special
measure it can also direct that a person specified by the court which is
essentially someone who supports a witness, can accompany the witness when the
witness is giving evidence by live link. Section 103 amends section 27 of the
1999 Act which relaxes the restrictions on a witness giving additional
evidence-in-chief after the witness’s video-recorded statement has been
admitted.
6.62
In England and Wales,
section 28 of the Youth Justice and Criminal Evidence Act 1999, if
implemented, will introduce pre-recorded cross-examination and re-examination
in all cases where examination-in-chief is being provided by means of video
recording.[701] The
recording must be made in the absence of the defendant but in circumstances
where he can see and hear the witness being examined and communicate with his
legal representative.[702] Once with
witness has been cross-examined, they may not be called back for further
cross-examination without leave of the court.[703]
Leave may be granted only if a new matter has arisen which the party seeking
further cross-examination could not have discovered with reasonable diligence
before the original recording, or if for some other reason the proposed
cross-examination is in the interests of justice.[704]
Pre-recorded cross-examination is currently not available and so witnesses who
have made a recording suitable for use as evidence-in-chief must still attend
court to be cross-examined, unless the parties agree to the admission of
evidence[705] or their
evidence can be admitted in statement-form under the hearsay provisions of the Criminal
Justice Act 2003.[706]
6.63
In Northern Ireland the
provision of supporters have been put on a statutory footing in criminal
proceedings. In its Consultation Paper on Vulnerable Witnesses in Civil
Proceedings, the Northern Ireland Law Commission noted that the “use of
supporters appears to be a useful method of assisting witnesses in civil
proceedings, though it should be noted that there may be a financial impact in
making a recommendation of this nature if supporters were to be provided by
agencies or organisations.”[707]
6.64
The provisions of the Youth Justice and Criminal Evidence Act 1999 in
England and Wales have been replicated in the Criminal Evidence
(Northern Ireland) Order 1999. Adults are eligible for special measures in
two circumstances. Under Article 4, witnesses other than the accused who suffer
from a mental disorder within the meaning of the Mental Health (Northern
Ireland) Order 1986 or otherwise have a significant impairment of
intelligence or social functioning or who suffer from a physical disability or
a physical disorder may be eligible for special measures. The types of special
measures available to eligible adults under the Act are the same as those for
children which include screening the witness from the accused; giving evidence
by live-link; giving evidence in private; video-recording of evidence in-chief;
video-recording of cross-examination and re-examination (the provision of which
ahs yet to be commenced); using an intermediary to examine the witness and
using aids to assist communication. Under Article 5, witnesses other than the
accused whose evidence may be compromised by fear or distress caused by
testifying are also eligible for all types of special measures excluding the
use of intermediaries and the use of aids of communication. In a trial of
indictment, under Article 20, the judge must give the jury a warning if he or
she feels necessary to ensure that the fact that the special measures were used
does not prejudice the accused’s right to trial in any way.
6.65
As noted above, in
criminal proceedings in Northern Ireland, provision has been made under Article
16 of the Criminal Evidence (Northern Ireland) Order 1999 for certain
witnesses to give their evidence during cross-examination and re-examination by
way of video-recording if they have given their evidence-in-chief by way of
video-recording. This provision has yet to be brought into force. The Northern
Ireland Law Commission in its Report on Vulnerable Witnesses in Civil
Proceedings noted that the fact that the provision has yet to be
successfully implemented in criminal proceedings, considered that it would be
unwise to recommend that video-recorded cross-examination and re-examination is
made available for eligible witnesses in civil proceedings but advised that it
would reconsider this position should the provision be commenced in the
criminal context.[708]
6.66
Under Article 18 of the
Criminal Evidence (Northern Ireland) Order 1999, the court may authorise
the use of communication aids to help witnesses overcome difficulties when
being asked or answering questions. The measure is available to witnesses based
on their eligibility under article 4 of the Order. As such it is available to
children, people who are living with a mental disorder or significant impairment
of intelligence and social functioning, or those living with a physical
disability or disorder. The Northern Ireland Law Commission, in, its Consultation
Paper on Vulnerable Witnesses in Civil Proceedings referred to a case in
which a man was convicted of sexually abusing severely disabled residents in a
care home upon the evidence of residents who communicated by blinking or by
indicating symbols on a computer. In the case, one resident blinked her eyes in
response to yes or no questions put to he by the lawyers, while another
resident used a pointer on a computer screen, operated by a joystick on her
wheelchair to identify the accused and to indicate what he had done to her by
using symbols of body parts.[709] The Northern
Ireland Law Commission, in its Report, recommended that aids be included as a
special measure for witnesses in civil proceedings.[710]
6.67
In Scotland
‘supporters’ have been put on a statutory footing for attending court with a
witness in order to provide support.[711]
Video-recorded cross-examination or re-examination is not included as a special
measure in Scotland. Intermediaries are not explicitly provided for in the Vulnerable
Witnesses (Scotland) Act 2004, but the Act provides for Scottish Ministers
to make secondary legislation to make provisions for additional special
measures.[712] In 2007,
the Scottish Government consulted on the possible use of intermediaries which
was published in 2008 with the result that no action was taken on the issue due
to the lack of consensus amongst those consulted.[713]
6.68
As noted by the Law
Reform Commission of New Zealand, it would seem unlikely that the presence of
support persons would either hinder the ascertainment of facts or impinge on
the right of the accused to a fair trial. The Commission, in its Discussion
Paper on The Evidence of Children and Other Vulnerable Witnesses, put
forward that it would be useful to include a provision giving a presumptive
entitlement to a support person for all complainants subject to the court’s
discretion.[714] The
Commission advised that the judge in each case would decide on what role the
support person could take in particular circumstances, depending on, for
example, the age of the witness, the nature of the proceedings or offence, and
the relationship between the witness and the defendant in a criminal case.[715]
6.69
In New Zealand, the
introduction of intermediaries was rejected as a result of divided views by the
legal profession and concerns over the effectiveness of communicating a
witness’s answers to the court. There is, however, a provision for a limited
kind of intermediary in the Evidence Act 1908 but this applies only to
complainants in sexual offence cases who are children or “mentally
handicapped”.[716] Section
23E(4) of the 1908 Act provides that where a witness is to give evidence from
out of court by closed-circuit television or from behind a partition by
audio-link, the judge may direct that questions be put to the witness through a
person approved by the judge. The provision does not permit the intermediary
rephrase the questions or interpret the witness’s answer. The Law Commission of
New Zealand, however, put forward that witnesses should be able to use
intermediaries whenever their assistance is required. The Commission proposed
that in any case where the
“rational
ascertainment of facts would be assisted by use of an intermediary, the judge
should have a discretion as to who may act as intermediary. In many cases
communication difficulties can be best addressed by lawyers and judges being
sensitive to the characteristics of particular witnesses, but in some cases the
assistance of a specialist intermediary may be more effective.”[717]
6.70
Furthermore the Law
Commission of New Zealand recommended that intermediaries be allowed rephrase
questions in line with the principles of the law of evidence to assist witness
comprehension as they would have the skills to enable them to communicate with
people who may have real difficulties understanding questions put to them in
court. At the same time, the Commission did not recommend that intermediaries
interpret the witness’s response to the court.[718]
6.71
The Commission noted
that procedural fairness should govern the use of intermediaries and in doing
so put forward that it would be the judge’s role to give guidance to the
intermediary on how they are to perform their function in a particular case and
to oversee the fairness and accuracy if rephrased question.[719]
6.72
Video-recorded
cross-examination or re-examination is not included as a special measure in New
Zealand.
6.73
In Australia the use of
a support person exists in Victoria[720]
and Queensland,[721] South
Australia,[722] the
Northern Territory[723] and
Western Australia.[724] The Law
Reform Commission of New South Wales, in its Report on People with an
Intellectual Disability and the Criminal Justice System, proposed that a
support person should be available to a witness with an intellectual
disability, subject to the court’s leave and made reference to the submission
of the Intellectual Disability Rights Service which stated that people who had
a support person in court thought that it was very important and that the role
should be extended to include sitting with their clients in the witness box and
being able to tell the judge and magistrate if the witness did not understand a
question posed.[725]
6.74
The Victorian Law
Reform Commission, in its Final Report on Sexual Offences, recommended
the following measures:
· abolishing the right to
cross-examine complainants with a cognitive impairment;[726]
· establishing a specialist list in
the Magistrates’ Court to handle summary offences against people who have a
cognitive impairment and committals in cases involving indictable sexual
offences against these people;[727]
· assigning a designated judge in the
County Court to list and manage all sexual offence cases involving offences
against complainants with a cognitive impairment;[728]
· increasing the use of video and
audio recording so that fewer complainants with a cognitive impairment have to
give oral evidence-in-chief;[729]
· allowing all complainants (including
complainants with a cognitive impairment) to give evidence by closed circuit
television;[730]
· introducing a process for
pre-recording evidence-in-chief and cross-examination of people who have a
cognitive impairment;[731] and
· preventing the accused in a sexual
offence case from cross-examining the complainant.[732]
6.75
The Victorian Law
Reform Commission, in facilitating people with a cognitive impairment, also
recommended that the Evidence Act 1958 be amended to impose a duty on
the court to ensure, as far as possible in the case of questions asked of
people with a cognitive impairment, that neither the context of a question nor
the manner in which it is asked is misleading or confusing, phrased in
inappropriate language or unduly annoying, harassing, intimidating, offensive,
oppressive or repetitive; and that the questions are not structured or
sequenced in a way that is intimidating, harassing, confusing, annoying or
misleading.[733]
6.76
In terms of training,
the Victorian Law Reform Commission noted a submission from the Disability
Discrimination Legal Services that the criminal justice system can only operate
fairly if judges and magistrates have an understanding of and sensitivity to the
needs of people with a cognitive impairment.[734]
The provision of such training would assist them to assess whether the person
with the disability understands the questions being put to them. The Commission
made a recommendation for prosecutor training, training of defence lawyers and
judicial education programmes on issues that are central to sexual offence
cases. The Commission recommended that such training include information on the
problems which are common to people with a cognitive impairment in
participating in the criminal justice process and how such difficulties might
be overcome. Such training materials, according to the Victorian Law Reform
Commission, should be developed with input from the Office of the Public
Advocate.[735]
6.77
At the same time that
section 153.1 was added to the Canada Criminal Code in 1998 to create
the specific offence of sexual exploitation of a person with a disability,
changes were made to the Canada Evidence Act[736]
and to the Code[737] to address
the needs of persons with disabilities when they testify as witnesses. The
purpose of these changes was to ensure the full and equal participation of
persons with disabilities in the justice system and in particular in the
criminal trial process. These changes included permitting persons with
disabilities to testify behind a screen or with assistance from a support
person or interpreter.[738] Changes
also allow for a complainant with a disability to testify outside the courtroom
or from behind a screen blocking her view of the accused yet allowing the
accused and other participants to view her.[739]
They also affirmed a presumption of testimonial competence for all adult
witnesses. Furthermore, there is now the use of a screen device to block the
view of the accused, but complainants are still expected to give evidence in
the standard form of examination-in-chief and cross-examination.
6.78
In this section, the
Commission examines the position of defendants who may require special
assistance to ensure their full and equal participation in the criminal trial
process. In Ireland defendants who may require special assistance in the trial
process do not have the same statutory entitlement to the same range of
supports as witnesses. The Commission considers that this could potentially be
in breach of the right to a fair trial enshrined in the Constitution and in
Article 6 of the ECHR.
6.79
Research suggests that
defendants, like witnesses, who may have particular impairments face
difficulties when confronted with the criminal justice process. Defendants who
may require extra support may be:
· less likely to understand
information about the caution and legal rights;
· more likely to make decisions which
would not protect their rights as suspects and defendants, and
· more likely to be acquiescent and
more likely to be suggestible.[740]
6.80
Article 6 of the ECHR
sets out the accused’s right to a fair trial. It states that everyone charged
with a criminal offence should be presumed innocent until proved guilty by law,[741]
and establishes five minimum rights for the defendant. These are:
6.81
The minimum rights as
set out in Article 6 of the ECHR are arguably violated where a defendant’s
impairment significantly inhibits his understanding and involvement in the
trial and where the necessary supports to assist him in participating in the
trial process are not provided. The UK’s Joint Committee on Human Rights
concluded that:
“[w]e are
concerned that the problems highlighted by… [the] evidence could have
potentially very serious implications for the rights of people with learning
disabilities to a fair hearing, as protected by the common law and by Article 6
ECHR. Some of this evidence also suggests that there are serious failings in
the criminal justice system, which give rise to the discriminatory treatment of
people with learning disabilities.”[747]
6.82
The current
availability of Special Measures to vulnerable defendants in England and
Wales when giving evidence is based on the inherent discretion of the Crown
Court. The inherent powers under section 19(6) of the Youth Justice and
Criminal Evidence Act 1999 must be considered in the context of Article 6
of the ECHR which ensures a right to a fair trial for the accused which could
mean that comparable Special Measures should be made available to a vulnerable
defendant when testifying.
6.83
Defendants in general
cannot give evidence in England and Wales by way of live link,
and the courts do not have an inherent power to order the use of this
particular means of giving evidence. However, for a limited class of vulnerable
defendants where the use of a live link would enable them to participate
effectively in their trial, the court may order the use of a live link. Section
33A-C of the Youth Justice and Criminal Evidence Act 1999, as inserted
by section 47 of the Police and Justice Act 2006, is limited to accused
persons under the age of 18 years where their ability to participate
effectively in the proceedings as a witness giving oral evidence in court is
compromised by their level of intellectual ability or social functioning. For
defendants over the age of 18 the courts may direct the use of a live link if
he/she is unable to participate effectively in the proceedings as a witness
because he/she suffers from a mental disorder within the meaning of the Mental
Health Act 1983, or has a significant impairment of intelligence or social
functioning.
6.84
As noted above, when
implemented sections 33BA and 33 BB of the 1999 Act, as inserted by section 104
of the Coroners and Justice Act 2009, will enable the court to direct
that certain vulnerable defendants may be assisted by an intermediary when they
give evidence in court if this is necessary to ensure that the accused receives
a fair trial. Pending implementation, the court will then be able to use its
inherent powers to direct that a defendant be given the assistance of an
intermediary.
6.85
In England and Wales,
two cases are of particular relevance to the provision of supports to
defendants who may require supports. Although they concern child defendants the
significance for this discussion of adult defendants lies in the fact that the
children’s cognitive impairments were recognised as having direct implications
for the conduct of the criminal proceedings.[748]
6.86
In S.C. v United
Kingdom[749] the
European Court of Human Rights held that the right to fair trial under Article
6 of the Convention had been breached. The applicant, an 11 year old boy, with
significant learning difficulties meant that he had insufficient
understanding of the proceedings and their potential consequences.[750]
The Court held that his right to a fair trial had been breached because he was
not facilitated in giving an effective participation in his trial.
6.87
In the 2005 case of
R (TP) v West London Youth Court,[751]
the administrative court held that neither youth nor limited intellectual
capacity on the part of the defendant would necessarily lead to a breach of the
right to a fair trial; but that the court hearing the case should adapt its
procedures to ensure the defendant can participate in the proceedings. The
judge, in directing the minimum requirements for a fair trial, listed the
following:
6.88
Furthermore, the
defendant must also be able to give proper instructions and to participate by
way of providing answers to questions and suggesting questions to his lawyers
in the circumstances of the trial as they arise.[752]
6.89
The judge outlined the
following practical steps that could be taken to assist the defendant in
participating in the criminal trial process. These included:
6.90
It has been suggested
that in light of the European Court of Human Rights’ judgment in SC v United
Kingdom[754] “it may be
appropriate, in certain circumstances, to consider use of an intermediary for
defendants with communication needs.”[755]
In the 2009 case R (on application of C) v Sevenoaks Youth Court[756]
it was established that while the youth court did not have a statutory
power to appoint an intermediary, it had a duty to do so under common Law and
the Criminal Procedure Rules 2005.[757]
6.91
Furthermore, the Lord
Chief Justice in England and Wales issued a practice direction in 2007 which
outlined a range of measures that should be adopted in the criminal courts,
where appropriate, “to assist a vulnerable defendant to understand and
participate in… proceedings”. The direction went so far as to recommend that
“the ordinary trial process should, so far as necessary, be adapted” for the
purpose of helping a vulnerable defendant understand and participate in the
proceedings.”[758] The
importance of communication is highlighted by the practice direction’s
recommendations for assisting vulnerable defendants. It states that:
“[a]t the
beginning of the proceedings the court should ensure that what is to take place
has been explained to a vulnerable defendant in terms he can understand…
Throughout the trial the court should continue to ensure, by any appropriate
means, that the defendant understands what is happening and what has been said
by those on the bench, the advocates and witnesses.”[759]
6.92
Furthermore, the court
should ensure, so far as is practicable, that the trial is conducted in easily
understood, clear language that the defendant can understand and that
cross-examination is conducted by questions that are equally easily understood
and short.[760]
6.93
On the issue of
extending the use of intermediaries in civil proceedings, the Northern Ireland
Law Commission in its Report on Vulnerable Witnesses in Civil Proceedings noted
that:
“[i]n order to
provide greater clarity regarding the use of intermediaries, the Commission
considers that there would be merit in court rules or secondary legislation
being produced which would offer assistance in relation to the role and
function of intermediaries.”[761]
6.94
The intermediary
Special Measure completed national roll-out in 2010 and is available to all
intimidated and vulnerable witnesses in England and Wales. The matching service
for the Witness Intermediary Scheme transferred to the National Policing
Improvement Agency on 10 August 2009 which coordinates the use of
intermediaries. The recruitment and registration process which ensures that
intermediaries are qualified and vetted continues to be managed by the Office
of Criminal Justice Reform. This right to support does not extend to support
with communication throughout the trial. In Northern Ireland this measure is
included in the Justice Act (Northern Ireland) 2011.[762]
6.95
As highlighted by the
Northern Ireland Law Commission in its Consultation Paper on Vulnerable
Witnesses in Civil Proceedings[763]
while the use of intermediaries can be an effective tool in providing
assistance to witnesses in helping them understand proceedings and
communicating to the court, a note of caution must be raised to ensure that
intermediaries are fully trained and that their methods of assisting
communication have results. While stressing the need to use caution, the
Consultation Paper referred to the method knows as “facilitated communication”
in light of comments made by Dame Butler-Sloss in Re D (Evidence:
Facilitated Communication).[764]
In this case a young man of 17 years who suffered from severe autism and
epilepsy and who had a cognitive age of 2 years, alleged with the assistance of
an intermediary that he had been sexually abused by his father. After an
investigation carried out by the social services and police as well as the
commencement of wardship proceedings, the allegations were discovered to be
unfounded. During the course of the wardship proceedings Dame Butler-Sloss
placed a caveat on the use of facilitated communication in noting the
following:
“[f]acilitated
communication is a process by which a facilitator supports the hand or arm of a
communicatively impaired individual while using a keyboard or typing device. It
has been claimed that this process enables persons with autism or mental
retardation to communicate. Studies have repeatedly demonstrated that
facilitated communication is not a scientifically valid technique for
individuals with autism or mental retardation. In particular, information
obtained via facilitated communication should not be used to confirm or deny
allegations of abuse or to make diagnostic or treatment decisions. Therefore,
be it resolved that the American Psychological Association adopts the position
that facilitated communication is a controversial and unproved communicative
procedure with no scientifically demonstrated support for its efficacy.”
6.96
The Commission has, in
light of this discussion and the development in other jurisdictions, concluded
that there is a case to be made for the introduction of pre-trial recording of
the cross-examination of a defendant with an intellectual disability, and that
this would be taken at the same time as evidence in-chief, and invites
submissions on this.
6.97
The Commission
invites submissions as to whether pre-trial recording of the cross-examination
of a defendant with an intellectual disability should be introduced, and
whether this would be taken at the same time as evidence in-chief.
7
The provisional
recommendations made by the Commission in this Consultation Paper are as
follows.
7.01
The Commission provisionally recommends that the same functional
approach to capacity be taken in respect of assessing capacity to marry in the
civil law and capacity to consent to sexual relations in the criminal law. The
Commission also provisionally recommends that capacity to marry should
generally include capacity to consent to sexual relations. The Commission also
provisionally recommends that, consistently with the functional approach,
capacity to consent to sexual relations should be regarded as act-specific
rather than person-specific. [paragraph 2.44]
7.02
The Commission
provisionally recommends, that consistently with the general presumption of
capacity in the forthcoming mental capacity legislation, which would include a
presumption of capacity to parent, there should be a positive obligation to
make an assessment of the needs of parents with disabilities under the Disability
Act 2005. The Commission also provisionally recommends that, in providing
assistance to parents with disabilities, an inter-agency protocol is needed
between the child protection services and family support services which would
provide that, before any application for a care order is made under the Child
Care Act 1991, an assessment is made of parenting skills and the necessary
supports and training that would assist parents with disabilities to care for
their children. [paragraph 3.76]
7.03
The Commission
provisionally recommends that national standards be developed concerning
safeguards from sexual abuse for “at risk” adults, including protocols on
cooperation between different agencies, including the Health Service Executive,
the Health Information and Quality Authority, the proposed Office of the Public
Guardian and the Garda Síochána. The Commission also provisionally recommends
that, in developing such standards, a multi-agency approach be adopted similar
to that adopted for the implementation of the National Guidelines for the
Sexual Assault Treatment Units (SATUs). [paragraph 4.89]
.
7.04
The Commission
provisionally recommends that the test for assessing capacity to consent to
sexual relations should reflect the functional test of capacity to be taken in
the proposed mental capacity legislation, that is, the ability to understand
the nature and consequences of a decision in the context of available choices
at the time the decision is to be made. Consistently with this, therefore, a
person lacks capacity to consent to sexual relations, if he or she is unable-
(a)
to understand the
information relevant to engaging in the sexual act, including the consequences;
(b)
to retain that
information;
(c)
to use or weigh up that
information as part of the process of deciding to engage in the sexual act; or
(d)
to communicate his or
her decision (whether by talking, using sign language or any other means). [paragraph
5.119]
7.05
The Commission
provisionally recommends that, since section 5 of the Criminal Law (Sexual
Offences) Act 1993 is not consistent with a functional test of capacity, it
should be repealed and replaced. [paragraph 5.120]
7.06
The Commission
provisionally recommends that there should be a strict liability offence for
sexual acts committed by a person who is in a position of trust or authority
with another person who has an intellectual disability. A position of trust or
authority should be defined in similar terms to section 1 of the Criminal
Law (Sexual Offences) Act 2006 which defines a “person in authority” as a
parent, stepparent, guardian, grandparent, uncle or aunt of the victim; any
person who is in loco parentis to the victim; or any person who is, even
temporarily, responsible for the education, supervision or welfare of the
victim. [paragraph 5.121]
7.07
The Commission also
provisionally recommends that any replacement of section 5 of the Criminal
Law (Sexual Offences) Act 1993 should cover all forms of sexual acts
including sexual offences which are non-penetrative and sexual acts which
exploit a person’s vulnerability. [paragraph 5.122]
7.08
The Commission
provisionally recommends that a defence of reasonable mistake should apply,
which would mirror that applied to sexual offences against children but that
the defence should not be available to persons in positions of trust or
authority. [paragraph 5.123]
7.09
The Commission
provisionally recommends that the fact that the sexual offences in question
occurred within a marriage or a civil partnership should not, in itself, be a
defence. [paragraph 5.124]
7.10
The Commission invites
submissions as to whether any replacement of section 5 of the Criminal Law
(Sexual Offences) Act 1993 should provide a specific offence of obtaining
sex with a person with intellectual disability by threats or deception. [paragraph
5.125]
7.11
The Commission
provisionally recommends that the maximum penalty on conviction on indictment
for the sexual offences involving a person with an intellectual disability
should be 10 years imprisonment. The Commission also provisionally recommends
that the consent of the Director of Public Prosecutions be required for any
prosecution of such offences, as is currently the case under section 5 of the Criminal
Law (Sexual Offences) Act 1993, bearing in mind that where a prosecution is
brought the ultimate assessment of capacity will be matter for the jury in a
trial on indictment. [paragraph 5.126]
7.12
The Commission invites
submissions on whether the Criminal Evidence Act 1992 should be amended
to allow for pre-trial cross-examination of complainants and witnesses who are
eligible under the 1992 Act to special measures in the criminal trial process. [paragraph
6.34]
7.13
The Commission
provisionally recommends the development of guidelines for those working in the
criminal justice process in identifying current obstacles and examining methods
by which the participation of eligible adults in court proceedings could be
enhanced in consultation with the proposed Office of Public Guardian, to be
established under the proposed mental capacity legislation, and the National
Disability Authority. [paragraph 6.40]
7.14
The Commission invites
submissions on the current use of intermediaries under section 14(1) of the Criminal
Evidence Act 1992 and their efficacy as a special measure in criminal
proceedings. [paragraph 6.49]
7.15
The Commission
invites submissions as to whether pre-trial recording of the cross-examination
of a defendant with an intellectual disability should be introduced, and
whether this would be taken at the same time as evidence in-chief. [paragraph
6.97]
[1]
Law Reform Commission Report on Third Programme of Law Reform 2008-2014 (LRC
86-2007), Project 12.
[2] The Commission has
previously examined the law on capacity in its: Consultation Paper on Law and the Elderly (LRC
CP 23-2003);Consultation
Paper on Vulnerable Adults and the Law: Capacity (LRC CP 37-2005); Report
on Vulnerable Adults
and the Law (LRC 83-2006), Report on Bioethics: Advance Care
Directives (LRC 94-2009) and Report on Children and the Law: Medical
Treatment (LRC 103-2011).
[3] The
Commission engaged in a comparable co-operative exercise in Project 20 of its Second
Programme of Law Reform 2000-2007, which formed part of the general review
of the law of charities (currently the responsibility of the Department of
Justice and Equality). The Commission contributed an analysis of the duties of
charitable trustees and of charitable structures in its Report on Charitable
Trusts and Legal Structures for Charities (LRC 80-2006). The general review
of the law ultimately led to the enactment of the Charities Act 2009,
which incorporated a number of the Commission’s proposals on charitable
trustees.
[4] The Criminal Law Codification Advisory Committee
was established under Part 14 of the Criminal Justice Act 2006.
In 2011, the Department of Justice and Equality published the Advisory
Committee’s inaugural Draft Criminal Code Bill and Commentary, available
at www.justice.ie.
[5] LRC 33-1990.
[7] This is also
reflected in the comparable
literature on the identification of persons based on ethnicity, race, religion,
sex and sexual orientation.
[8] LRC 83-2006.
[9] The Programme for
Government 2011-2016 contains a commitment to “introduce a Mental Capacity
Bill that is in line with the UN Convention on the Rights of Persons with
Disabilities”. The Government Legislation Programme, Autumn Session 2011,
available at www.taoiseach.ie, states that the Mental Capacity Bill,
which is to take account of the Commission’s 2006 Report, is scheduled for
publication in early 2012. In September 2011, the Oireachtas Committee on
Justice, Defence and Equality requested interested parties to make submissions
to the Committee on the proposed mental capacity legislation.
[10] Report on Sexual Offences against
the Mentally Handicapped (LRC 33-1990).
[11] The
discussion here is based on the World Health Organization’s (current) 10th Revised Version
of the International
Statistical Classification of Diseases and Related Health Problems (ICD-10), available at www.who.org.
As discussed in Chapter 1,
below, the WHO classification system retains the general term “mental
retardation”, which is no longer in general use in many countries, including
Ireland. The Health Research Board’s National Intellectual Disability Database
(NIDD), available at www.hrb.ie, also discussed in Chapter 1, below, uses the
WHO classification system but employs the term “intellectual disability” rather
than “mental retardation.”
[12] Annual
Report of the National Intellectual Disability Database Committee 2009
(Health Research Board, 2010), p.15, available at www.hrb.ie. See also the
discussion in Chapter 1, below.
[13] Law Commission for
England and Wales Consultation Paper on Adult Social Care (No. 193 2010)
at paragraph 12.28 fn 26, citing Association of Directors of Adult Social
Services Safeguarding Adults: A National Framework of Standards (2005)
at 5, discussed in Chapter 6, below.
[14] The Commission
accepts, of course, that many individuals and groups may seek to use or
“reclaim” pejorative terms to promote greater awareness. In the context of
disability generally, the English song writer, rock artist and disability
campaigner Ian Dury (who had contracted polio as a child) wrote the song Spasticus
Autisticus in 1981. This was in reaction to his perception that the 1981
International Year of the Disabled was based on a paternalistic and patronising
view of disability.
[15] Public Law 111-256,
enacted on 5 October 2010. Section 1 of the 2010 Act provides that it is to be
cited as ‘‘Rosa’s Law’’, which refers to Rosa Marcellino, a Special Olympics
athlete: see www.specialolympics.org/rosas-law.aspx.
[16] See the discussion
in Chapter 1, below, of the
Health Research Board’s National Intellectual Disability Database (NIDD),
available at www.hrb.ie.
[17] The same
conclusion was reached in Literature Review on Provision of Appropriate and
Accessible Support to People with an Intellectual Disability who are
Experiencing Crisis Pregnancy (National Disability Authority and Crisis
Pregnancy Programme, 2011), pp.29-30, available at www.nda.ie. See the
discussion in Chapter 3, below.
[18] Literature
Review on Provision of Appropriate and Accessible Support to People with an
Intellectual Disability who are Experiencing Crisis Pregnancy (National
Disability Authority and Crisis Pregnancy Programme, 2011), available at
www.nda.ie, discussed in Chapter 3, below.
[19] LRC 33-1990.
[20] Section 254 of the
1945 Act was repealed when the Mental Health Act 2001 was brought fully
into force: see the Schedule to the 2001 Act and the Mental Health Act 2001
(Commencement) Order 2006 (SI No.411 of 2006).
[21] O’Malley Sexual
Offences: Law, Policy and Punishment (Round Hall Sweet & Maxwell 1996)
at 125.
[22] LRC 33-1990.
[23] Law Reform
Commission Consultation Paper on Rape (LRC CP 1-1987). Prior to 1987,
the Commission’s Consultation Papers were described as Working Papers, of which
11 were published between 1977 and 1984.
[24] Law Reform
Commission Report on Rape and Allied Offences (LRC 24-1988).
[25] Consultation
Paper on Rape (LRC CP 1-1987) at paragraphs 39 and 126. See also Charleton,
McDermott and Bolger Criminal Law (Butterworths 1999) at paragraph 8.24.
[26] Law Reform
Commission Report on Rape and Allied Offences (LRC 24-1988) paragraph
51. See also Law Reform Commission Consultation Paper on Rape (LRC CP
1-1987) at paragraph 126.
[27] LRC CP 37-2005. In
the remainder of this Consultation Paper, this is referred to as the
Consultation Paper on Capacity.
[28] LRC CP 37-2005 at
paragraph 1.06.
[29] Law Reform
Commission Report on Sexual Offences against the Mentally Handicapped (LRC
33-1990).
[30] LRC 33-1990 at
paragraph 27.
[31] LRC 33-1990 at
paragraph 28.
[32] LRC 33-1990 at
paragraph 29.
[33] LRC 33-1990 at
paragraph 18.
[34] LRC 33-1990 at
paragraph 18.
[35] LRC 33-1990 at
paragraph 32.
[36] LRC 33-1990 at
paragraph 33. The question of how such acts should be described was not
addressed in the Report.
[37] LRC 33-1990 at
paragraph 35. A similar recommendation was given by Australia’s Model Criminal
Code Officers Committee of Attorneys-General Report on Sexual Offences Against
the Person (1999) at 177.
[38] LRC 33-1990.
[39] Section 5(5) of
the Criminal Law (Sexual Offences) Act 1993.
[40] Section 5(1) of
the Criminal Law (Sexual Offences) Act 1993.
[41] Section 5(2) of
the Criminal Law (Sexual Offences) Act 1993.
[42] Section 5(3) of
the Criminal Law (Sexual Offences) Act 1993.
[43] Section 5(4) of
the Criminal Law (Sexual Offences) Act 1993.
[44] See also O’Malley Sexual
Offences: Law, Policy and Punishment (Round Hall Sweet & Maxwell 1996)
Chapter 6.
[45] LRC CP 37-2005 at
paragraph 6.20.
[46] LRC 33-1990.
[47] LRC CP 37-2005 at
paragraph 6.20.
[48] Section 5(2) of
the Criminal Law (Sexual Offences) Act 1993.
[49] Section 5(3) of
the Criminal Law (Sexual Offences) Act 1993.
[50] See LRC CP
37-2005, Chapter 6 fn 53 where the Commission states: “It would appear that the
tests contained in this definition are disjunctive or alternative - the person
must be incapable of leading an independent life or incapable of
guarding against serious exploitation”: Department of Justice, Equality and Law
Reform The Law on Sexual Offences (Discussion Paper) (The Stationery
Office 1998) at 9.3.2.
[51] Section 5(5) of
the Criminal Law (Sexual Offences) Act 1993. Part 4 of the Sex
Offenders Act 2001 also uses the definition of “mentally impaired” in
section 5 of the Criminal Law (Sexual Offences) Act 1993.
[52] LRC CP 37-2005 at
paragraph 6.19.
[53] This view is
approved in the NAMHI Discussion Document Who Decides and How? People with
Intellectual Disabilities - Legal Capacity and Decision Making (2003) at
65.
[54] Doyle “The notion
of consent to sexual activity for persons with mental disabilities” (2010) 31 Liverpool
Law Review 2 111, at 123.
[55] R
v Prince [2008] MBQB 241.
[56] R
v Prince [2008] MBQB 241, at paragraph 64.
[57] Section
5(4) of the Criminal Law (Sexual Offences) Act 1993. See also Director
of Public Prosecutions Guidelines for Prosecutors (Office of Director of
Public Prosecutions, Revised November 2010) at para 7-5, available at
www.dppireland.ie.
[58] Department of
Justice, Equality and Law Reform The Law on Sexual Offences (Discussion
Paper) (The Stationery Office 1998).
[59] Department of
Justice, Equality and Law Reform The Law on Sexual Offences (Discussion
Paper) (The Stationery Office 1998).
[60] R
v Hall (1988) 86 Cr App R 159.
[61] See paragraphs
6.08 to 6.10, below. The Commission is extremely grateful to the Office of the
Director of Public
Prosecutions for providing the Commission with the results of this analysis.
[62] Section 254 of the
1945 Act was, ultimately, repealed when the Mental Health Act 2001 was
brought fully into force: see the Schedule to the 2001 Act and the Mental
Health Act 2001 (Commencement) Order 2006 (SI No.411 of 2006). This repeal
was not directly connected to the replacement of section 4 of the 1935 Act by
section 5 of the 1993 Act.
[63] O’Malley, Sexual
Offences: Law, Policy and Punishment (Round Hall Sweet & Maxwell 1996)
at 131.
[64] LRC CP 37-2005. In
the remainder of this Paper, this is referred to as the Consultation Paper on
Capacity.
[65] LRC CP 37-2005 at
paragraph 6.26.
[66] LRC CP 37-2005 at
paragraph 6.28.
[67] LRC
83-2006. In the remainder of this Paper, this is referred to as the Report on
Vulnerable Adults.
[68] Trust
in Care: Policy for Health Service Employers on Upholding the Dignity and
Welfare of Patients/Clients and the Procedure for Managing Allegations of Abuse
against Staff Members (Health Service Eexecutive, 2005). The Trust in Care
policy forms part of the services agreement between the service provider and
the service user.
[69] The Elder Abuse
National Implementation Group was established in 2003 following the
recommendations of the Working Group on Elder Abuse in its Report Protecting
Our Future (2002).
[70] The possibility of
increased sanctions for abuse by an institutional carer was mooted by the
Department of Justice in its Discussion Paper The Law on Sexual Offences
(Stationery Office, 1998) at paragraph 9.5.2. As already noted, and discussed
in detail below, this had previously been recommended by the Commission in its Report
on Sexual Offences against the Mentally Handicapped (LRC 33-1990) at
paragraph 36.
[71] O’Malley Sexual
Offences: Law Policy and Punishment (Round Hall Sweet & Maxwell 1996)
at 133.
[72] The Programme
for Government 2011-2016 contains a commitment to “introduce a Mental
Capacity Bill that is in line with the UN Convention on the Rights of Persons
with Disabilities”. The Government Legislation Programme, Autumn Session
2011, available at www.taoiseach.ie, states that the Mental Capacity
Bill, which is to take account of the Commission’s 2006 Report, is
scheduled for publication in early 2012. In September 2011, the Oireachtas
Committee on Justice, Defence and Equality requested interested parties to make
submissions to the Committee on the proposed mental capacity legislation.
[73] See for example
the Commission’s Report on Vulnerable Adults and the Law (LRC
83-2006) and Report on Children and the Law: Medical Treatment (LRC
103-2011).
[74] International Statistical
Classification of Diseases and Related Health Problems, 10th Revised Version
(ICD-10), available at
www.who.org.
[75] The ICD-10 defines
“mental retardation” as: “a condition of arrested or incomplete development of
the mind, which is especially characterized by impairment of skills manifested during
the developmental period, skills which contribute to the overall level of
intelligence, i.e. cognitive, language, motor, and social abilities.
Retardation can occur with or without any other mental or physical condition.”
[76] Annual
Report of the National Intellectual Disability Database Committee 2009
(Health Research Board, 2010), p.21, available at www.hrb.ie.
[77] Annual
Report of the National Intellectual Disability Database Committee 2009
(Health Research Board, 2010), p.15, available at www.hrb.ie.
[78] Annual
Report of the National Intellectual Disability Database Committee 2009
(Health Research Board, 2010), p.21, available at www.hrb.ie.
[79] Ibid.,
at p.22.
[80] Annual
Report of the National Intellectual Disability Database Committee 2009
(Health Research Board, 2010), p.16, available at www.hrb.ie
[81] British Medical
Association and the Law Society Assessment of Mental Capacity: Guidance for
Doctors and Lawyers 2nd ed (2004) at 3.
[82] Reed “Criminal Law
and the Capacity of Mentally Retarded Persons to Consent to Sexual Activity”
(1997) 83 Va. L. Rev. 799, at 819.
[83] R
v Camplin (1845) 1 Den 89.
[84] Rook and Ward Sexual
Offences Law & Practice 4th ed (Sweet & Maxwell 2010) at
36
[85] R
v Fletcher (1886) LR 1 CCR 39.
[86] Criminal Law
Codification Advisory Committee, Draft Criminal Code and Commentary (May
2010) available at www.justice.ie.
[87] Commentary on Head
1105 (Consent) of the Draft Criminal Code at paragraph 34.
[88] Commentary on Head
1105 (Consent) of the Draft Criminal Code at paragraph 37.
[89] Commentary on Head
1105 (Consent) of the Draft Criminal Code at paragraph 37.
[90] Commentary on Head
1105 (Consent) of the Draft Criminal Code at paragraph 34.
[91] Oireachtas Joint
Committee on Child Protection Report on Child Protection (2006) PRN
A6/2024 available at www.oireachtas.ie.
[92] CC v Ireland (No.2) [2006]
IESC 33; [2006]
4 IR 1.
[93] Section 1(1) of the
Criminal Law Amendment Act 1935 criminalised carnal knowledge of a girl
under 15 years of age.
[94] In relation to
section 1(1) of the Criminal Law Amendment Act 1935 O’Malley had
noted in 1996 that “[d]espite being apparently discriminatory against males,
ss. 1 and 2 of the Act of 1935 have never been challenged as being inconsistent
with the Constitution. The male is guilty even if the female clearly consented
and there is no defence of genuine mistake as to age, a rule that may seem at
variance with the generally subjective nature of criminal liability in Ireland,
as exemplified by decisions on provocation and self-defence.” O’Malley Sexual
Offences: Law Policy and Punishment (Round Hall Sweet & Maxwell 1996)
at 97.
[95] Commission on the
Status of People with Disabilities A Strategy for Equality: Report of the
Commission on the Status of People with Disabilities (1996) at 2.2;
McCarthy Sexuality and Women with Learning Disabilities (Jessica
Kingsley Publishers 999) at 85.
[96] LRC CP 37-2005 at
paragraph 1.21.
[97] According to
McCarthy “Just as it was unthinkable to talk to young children about sex, so it
was unthinkable to talk to adults with learning disabilities about sex -
protecting their natural innocence was the priority and this fitted into an
‘ignorance is bliss’ philosophy. Within the belief system that saw people with
learning disabilities as potentially dangerous, the effect this had on ideas
about their sexuality are clear: it was thought that people with learning
disabilities would have an uncontrolled sexuality, that they would be
‘over-sexed’, sexually promiscuous. In short, they were thought to be a
potential sexual threat to others.” McCarthy Sexuality and Women with
Learning Disabilities (Jessica Kingsley Publishers 1999) at 53.
[98] Murphy “Capacity
to consent to sexual relationships in adults with learning disabilities” (2003)
29 Journal of Family Planning and Reproductive Health Care 3, at 148.
[99] McCarthy Sexuality
and Women with Learning Disabilities (Jessica Kingsley Publishers 1999) at
53.
[100] Murphy,
“Capacity to consent to sexual relationships in adults with learning
disabilities” (2003) 29 Journal of Family Planning and Reproductive Health
Care 3, at 148.
[101] LRC CP 37-2005
at paragraph 1.21. McCarthy has identified the adoption of the
principles of normalisation and the growth of the self-advocacy movement as two
major ideological changes which have had a positive effect on the provision of
services for people with intellectual disabilities. See McCarthy Sexuality
and Women with Learning Disabilities (Jessica Kingsley Publishers 1999) at
44.
[102] See Literature
Review on Provision of Appropriate and Accessible Support to People with an
Intellectual Disability who are Experiencing Crisis Pregnancy (National
Disability Authority and Crisis Pregnancy Programme, 2011), available at
www.nda.ie, discussed in Chapter 3, below.
[103] Law Commission
for England and Wales Consent in Sex Offences A Report to the Home Office
Sex Offences Review (2000) at paragraph 4.7 fn 15. See also Setting the
Boundaries Reforming the Law on Sexual Offences (Home Office 2000) at
paragraph 4.1.6.
[104]
O’Donoghue v
Minister for Health [1993]
IEHC 2, [1996]
2 IR 20.
[105]
O’Donoghue v
Minister for Health [1996]
2 IR 20, at 55.
[106]
O’Donoghue v
Minister for Health [1996]
2 IR 20, at 56.
[107]
O’Donoghue v
Minister for Health [1996]
2 IR 20, at 65.
[108] See Comerford
v Minister for Education [1997]
2 ILRM 134; Sinnott v Minister for Education [2001]
2 IR 545.
[109]
Section 2 of the Education for Persons with Special Educational Needs
Act 2004.
[110] Section 3(5) of
the Education for Persons with Special Educational Needs Act 2004.
[111] Section 7 of the
Education for Persons with Special Educational Needs Act 2004.
[112] The Disability
Act 2005 does not formally take a “rights-based” approach to disability,
although it does not contain a “non-justiciability” clause, which had been
included in section 47 of the Disability Bill 2001. See LRC 83-2006 at
paragraph 1.36.
[113] The 2005 Act
gave rise to six Sectoral Plans of the following Departments: the Department of
Health and Children; the Department of Social Protection; the Department of Communications, Energy and Natural
Resources; the Department of Transport; the Department of Enterprise, Trade and
Innovation and the Department of the Environment, Heritage and Local
Government.
[114] A National
Advocacy Service (NAS) was established by the Citizens Information Board in
March 2011, in accordance with the Citizens Information Act 2007. The
service allocates trained independent advocates to disabled people who can
advise or support them to make a claim for services such as welfare or housing,
or negotiate on their behalf on issues affecting them. In 2011 the NAS drafted
a Non-Instructed Advocacy policy to ensure that appropriate advocacy is
provided where advocates are unable to obtain instructions from the person they
represent.
[115] LRC 37-2005 at
paragraph 1.26. Writing in the context of consent to or refusal of medical
treatment Madden has noted that the Supreme Court has “definitively stated that
one does not lose the right to autonomy and dignity with the loss of mental
capacity, and therefore the constitutional rights of bodily integrity and
privacy, as well as respect for the person apply in equal measure to those who
may not have the ability to communicate their consent”. Madden Medicine,
Ethics and the Law (Butterworths 2002) at 393.
[116] LRC 37-2005
paragraph 1.26; Donnelly “Legislating for Incapacity: Developing a Rights-Based
Framework” (2008) 15(1) DULJ 395, at 5.
[117] Donnelly
“Assessing Legal Capacity: Process and the Operation of the Functional Test”
[2007] 2 Judicial Studies Institute Journal, at 142.
[118] See sections
30-31 of the UK Sexual Offences Act 2003. The Act has adopted a
functional approach to capacity to consent to sexual relations.
[119]
In re a Ward of Court (No.2) [1996]
2 IR 73, at 126. Hamilton CJ noted that a loss of mental capacity
does not result in any diminution of a person’s personal rights under Article
40.3.1 and Article 40.3.2 of the Constitution. See also JM v Board of
Management of St Vincent’s Hospital [2003] 1 IR 321 and Fitzpatrick v FK
(No.2) [2008]
IEHC 104, [2009] 2 IR 7.
[120] Scottish Law
Commission Report on Rape and Other Sexual Offences (No. 209 2007) at
paragraph 1.25.
[121]
McKinley v Minister for Defence [1992] 2 IR 333, at 349 (Hederman
J). See also In re a Ward of Court (No.2) [1996] 2 IR 79, at 163 (Denham
J); North Western Health Board v HW and CW [2001]
3 IR 622, at 717 (Denham and Hardiman JJ).
[122]
Kennedy v Ireland [1987] IR 587, at 592 (Hamilton P).
[123] LRC 83-2006 at
paragraph 2.106.
[124]
O’B v S [1972] IR 144; Brennan v Attorney General [1983]
ILRM 449; Re Employment Equality Bill 1997 [2000]
2 IR 321; Re Planning and Development Bill 1999 [2002] 2 IR
321. See further LRC CP 37-2005 at paragraph 1.32-1.33 fn 62.
[125]
Re Clarke
[1950] IR 235. See also Re Keogh High Court (Finnegan P) 15 October 2002
where it was held that Article 40.1 permitted differences of capacity to be
taken into account in a wardship inquiry.
[126]
Re Clarke
[1950] IR 235, at 247-248.
[127]
Gooden v St.
Otteran’s Hospital [2001]
IESC 14.
[128]
E.H. v Clinical
Director of St. Vincent’s Hospital [2009]
IESC 46.
[129] Personal
autonomy and dignity are included in the right to respect for private life as
guaranteed by the ECHR. In Pretty v United Kingdom [2002]
ECHR 2346/02, at paragraph 61, the ECtHR affirmed that the right of
autonomy came within the protection of Article 8, stating that “the notion of
personal autonomy is an important principle underlying the interpretation of
its guarantees”. The Court confirmed this principle in Goodwin v UK
[2002] ECHR 2978/02 and I v UK [2002] ECHR 2979.
[130] In Hamer v
United Kingdom [1982] 4 EHRR 139, at paragraphs 60-62, the European
Commission of Human Rights indicated that national law may not deprive “a
person or category of persons of full legal capacity of the right to marry”.
[131] While disability
is not specifically listed in the enumerated grounds of prohibited
discrimination in Article 14 of the ECHR it is generally regarded as coming
within the words “or other status” in Article 14. Bartlett et al Mental
Disability and the European Convention on Human Rights (Martinus Nijhoff
Publishers 2007) at 184. Article 14 is breached where there is different
treatment with no objective reasonable justification or which is
disproportionate to that justification.
[132]
Pretty v United
Kingdom (2002)
35 EHRR 1.
[133]
Pretty v United
Kingdom (2002)
35 EHRR 1, at paragraph 65.
[134] This is the
first comprehensive human rights treaty to be ratified by the EU as a whole.
The EU became the 97th party to the treaty. It complements the EU’s
Disability Strategy 2010-2020.
[135] Quinn
“Disability and Human Rights: A New Field in the United Nations” in Krause
& Scheinin (eds) International Protection of Human Rights: A Textbook (Åbo
Akademi University Institute for Human Rights 2009) at 259.
[136]
Thematic Study by the Office of the United Nations High Commissioner
for Human Rights on enhancing awareness and understanding of the Convention on
the Rights of Persons with Disabilities, Human Rights Council A/HRC/10/48
(adopted 26 January 2009) at paragraph 35.
[137]
Thematic Study by the Office of the United National High Commissioner
for Human Rights on enhancing awareness and understanding of the Convention on
the Rights of Persons with Disabilities, Human Rights Council A/HRC/10/48
(adopted 26 January 2009) at paragraph 36.
[138] Quinn,
“Disability and Human Rights: A New Field in the United Nations” in Krause
& Scheinin (eds) International Protection of Human Rights: A Textbook (Åbo
Akademi University Institute for Human Rights 2009) at 262.
[139]
Observations on the Scheme of the Mental Capacity Bill 2008
(Irish Human Rights Commission 2008) at 4.
[140]
See for example, Winterwerp v. The Netherlands, Judgment
of 24 October 1979, (1979)
2 EHRR 387; Shtukaturov v. Russia, Judgment of 27 March 2008.
[141] Council of
Europe Committee of Ministers Recommendation No. R (99) on Principles
Concerning the Legal Protection of Incapable Adults (23 February 1999).
[142] LRC 37-2005 at
paragraph 6.22.
[143] See Dudgeon v
UK (1981)
4 EHRR 149; Norris v Ireland (1991)
13 EHRR 186; Modinos v Cyprus (1993)
16 EHRR 485. In Ireland, the blanket prohibition on buggery was
removed by section 2 of the Criminal Law (Sexual Offences) Act 1993. LRC
CP 37-2005 at paragraph 6.22 fn 68.
[144]
Bruggemann and Scheuten v Federal Republic of Germany (1977)
3 EHRR 244, at paragraph 57.
[145] In Dudgeon v
United Kingdom (1981)
4 EHRR 149 the prohibition of consensual homosexual conduct between
males under the age of 21 was found not to be in breach of the European
Convention on Human Rights, being justified under Article 8(2) as necessary for
the protection of morals.
[146]
Dudgeon v UK (1981)
4 EHRR 149 and Norris v Ireland (1991)
13 EHRR 186. Both cases were followed in Modinos v Cyprus (1993)
16 EHRR 485.
[147]
Dudgeon v UK (1981)
4 EHRR 149, at paragraph 52.
[148] O’Malley Sexual
Offences: Law Policy and Punishment (Round Hall Sweet & Maxwell 1996)
at 133.
[149]
Ryan v Attorney General [1965]
IR 294.
[150]
Kennedy v Ireland [1987] IR 587.
[151]
Murray v Ireland [1991] ILRM 465.
[152] Intentionally
having sex with an individual without consent or without the capacity to
consent is not only a violation of the criminal law but could also give rise to
a civil law claim for assault or battery.
[153] See Re F
(Mental Patient: Sterilisation) [1990]
2 AC 1. In Re F (Mental Patient: Sterilisation) Lord
Donaldson noted that “Mentally handicapped people have the same needs, feelings
and longings as other people, and this is much more frequently acknowledged
nowadays than years ago.” Re F (Mental Patient: Sterilisation) [1990]
2 AC 1, at 10.
[154]
Who Decides and How? People with Intellectual Disabilities - Legal
Capacity and Decision Making (NAMHI, 2003) at 20. Inclusion Ireland,
founded in 1961, was formerly known as NAMHI.
[155] Proving lack of
consent is the subject of much legal debate since there is no statutory
definition giving guidelines as to what is deemed consent. In R v Jenkins
2000 (unreported) it was held that there was no reason in law why a severely
mentally impaired woman could not consent to sex.
[156]
R v Morgan [1970] VR 337.
[157] The threshold
set down in Morgan was recently approved by the High Court Family
Division in the UK in X City Council v MB, NB and MAB [2006]
EWHC 168 (Fam).
[158]
R v Morgan [1970] VR 337, at 341.
[159] Law Commission
for England and Wales Consent in Sexual Offences A Report to the Home Office
Sex Offences Review (2000) at paragraph 4.5.
[160] The statutory
age for sexual consent in Ireland is currently 17 years of age. In 2009, the
Oireachtas Committee on the Rights of the Child recommended that this be
reduced to 16 years, and the Commission understands that this is currently
(July 2011) under consideration by Government.
[161] Millan Committee
“New Directions” Report on the Review of the Mental Health (Scotland)
Act 1984 (2001) at paragraph 25.
[162]
X and Y v Netherlands (1985) Application No.8978/80. The case
considered Article 8 of the ECHR. The Court found the Netherlands in breach of
Article 8 having failed in its duty to provide an effective criminal remedy to
ensure deterrence in relation to sexual assault. The court held that although
the object of Article 8 is the protection of the individual against arbitrary
interference from the state there is also a positive obligation on the state in
showing effective respect for private life under Article 8. This obligation may
involve the adoption of measures designed to secure respect for private life
even in the sphere of relations between individuals.
[163]
X City Council [2006]
EWHC 168 (Fam); In the matter of MM [2009] 1 FLR 443; R v
Cooper [2009]
UKHL 42.
[164] Doyle “The
notion of consent to sexual activity for persons with mental disabilities”
(2010) 31 Liverpool Law Review 2, 111, at 128.
[165] LRC CP 37-2005
at paragraph 6.29.
[166]
Hyde v Hyde (1866) L.R. 1 P&D 130.
[167] (1866) L.R. 1
P&D 130, at 133. The permanency characteristic has been watered down as a
result of the divorce referendum which led to the amendment of Article 41.3.2°
and a provision for divorce pursuant to the Family Law (Divorce) Act 1996.
[168] See generally
Shannon (ed) Family Law Practitioner (Round Hall Sweet & Maxwell
lose-leaf) at Division A.
[169]
N (orse K) v K [1986] ILRM 75, 89 per Griffin J.
[170]
Ryan v Attorney General [1965]
IR 294. See also Donovan v Minister for Justice (1951) 85
ILTR 134.
[171]
Foy v An t-Ard Chláraitheoir High Court (McKechnie J) 9 July
2002.
[172]
In Re Park [1953] 2 All ER 1411.
[173]
Durham v Durham (1885) 10 PD 80.
[174]
Durham v Durham (1885) 10 PD 80, at 82
[175] Section 31(a) of
the Family Law Act 1995 permits persons over 18 to marry. An exemption
to the age requirement may be granted on application to the Circuit Family
Court pursuant to section 33 of the Family Law Act 1995.
[176]
Sheffield City Council v E [2004]
EWHC 2808 (Fam).
[177]
In Re Park [1954] P 112.
[178]
In Re Park [1954] P 112, at 127.
[179]
Sheffield City Council v E and S [2004]
EWHC 2808 (Fam), [2005]
Fam 326.
[180]
Sheffield City Council v E and S [2004]
EWHC 2808 (Fam), at paragraph 67.
[181]
Sheffield City Council v E and S [2004]
EWHC 2808 (Fam), [2005]
Fam 326, at paragraph 141.
[182]
Sheffield City Council v E [2004]
EWHC 2808 (Fam), at paragraph 134.
[183]
Sheffield City Council v E and S [2004]
EWHC 2808 (Fam), at paragraph 132.
[184]
Sheffield City Council v E and S [2004]
EWHC 2808 (Fam), at paragraph 144.
[185]
Sheffield City Council v E and S [2004]
EWHC 2808 (Fam), at paragraph 85.
[186] LRC 83-2006 at
paragraph 3.19.
[187]
N (otherwise K) v K [1986] ILRM 75, at 89.
[188] Law Reform
Commission Consultation Paper on Law and the Elderly (LRC CP 23-2003) at
paragraph 6.60. A person who is made a Ward of Court may not marry. See Law
Reform Commission Consultation Paper on Vulnerable Adults and the Law:
Capacity (LRC CP 37-2005) at paragraph 6.48.
[189]
Sheffield City Council v E [2004]
EWHC 2808 (Fam).
[190] Section 43 of
the English Sexual Offences Act 2003 provides a defence to the accused
to the offences under sections 38-41 of the 2003 Act if he proves he is
lawfully married or in a civil partnership with the victim at the time of the
activity and the victim was over the age of 16.
[191]
X City Council v MB, NB and MAB [2006]
EWHC 168 (Fam).
[192]
R v Morgan [1970] VR 337.
[193]
X City Council v MB, NB and MAB [2006]
EWHC 168 (Fam), at paragraph 74.
[194]
X City Council v MB, NB and MAB [2006]
EWHC 168 (Fam), at paragraph 84.
[195]
X City Council v MB, NB and MAB [2006]
EWHC 168 (Fam), at paragraph 74.
[196]
KC, NNC v City of
Westminster Social and Community Services & Anor [2008]
EWCA Civ 198. This case dealt with capacity to marry under Sharia
law where capacity to consent of the spouses is not relevant and a marriage can
therefore be validly contracted even if one or both would lack capacity under
the tests set out in Sheffield City Council v E. However such a marriage
would not be held valid under English law.
[197]
KC, NNC v City of
Westminster Social and Community Services & Anor [2008]
EWCA Civ 198, at paragraph 32.
[198]
In the matter of MM [2009] 1 FLR 443.
[199]
In the matter of MM [2009] 1 FLR 443, at paragraph 95.
[200]
In the matter of MM [2009] 1 FLR 443, at 467.
[201]
R v Cooper [2009]
UKHL 42. The complainant was a 28 year old woman with a diagnosis of
schizo-affective disorder and emotionally unstable personality disorder and had
an IQ of less than 75.
[202]
R v Cooper [2009]
UKHL 42, Headnote.
[203]
R v Cooper [2009]
UKHL 42, at paragraph 27.
[204]
R v Cooper [2009]
UKHL 42, at paragraph 26.
[205]
D. County Council v LS [2010]
EWHC 1544 (Fam).
[206]
D. County Council v LS [2010]
EWHC 1544 (Fam), at paragraph 26.
[207]
D. Borough Council v AB [2011]
EWHC 101 (COP).
[208]
R v Cooper [2009]
UKHL 42, [2009]
1 WLR 1786.
[209]
X City Council v MB,
NB and MAB (By His Litigation Friend the Official Solicitor [2006]
EWHC 168 (Fam).
[210]
Re MM, Local
Authority X v MM (By the Official Solicitor) and KM
[2007]
EWHC 2003 (Fam), [2009] 1 FLR 443.
[211]
Re E (Alleged Patient); Sheffield City Council v E and S [2004]
EWHC 2808 (Fam), X City Council v MB, NB and MAB (by his
Litigation Friend the Official Solicitor) [2006]
EWHC 168 (Fam) and Local Authority X v MM and KM [2007]
EWHC 2003 (Fam).
[212]
D. Borough Council v AB [2011]
EWHC 101, at paragraph14.
[213]
D. Borough Council v AB [2011]
EWHC 101, at paragraph15.
[214]
Gillick v West Norfolk and Wisbech Area Health Authority [1985]
All ER 402.
[215]
Gillick v West Norfolk and Wisbech Area Health Authority [1985]
All ER 402.
[216]
X City Council v MB, NB and MAB (by his Litigation Friend the
Official Solicitor) [2006]
EWHC 168 (Fam).
[217]
D. Borough Council v AB [2011]
EWHC 101, at paragraph42.
[218]
X City Council v MB,
NB and MAB [2006]
EWHC 168 (Fam).
[219]
Re MM; Local
Authority X v MM (By the Official Solicitor) and KM
[2007]
EWHC 2003 (Fam), [2009] 1 FLR 443.
[220]
Keene and Cole (eds) Thirty Nine Essex Street Court of Protection
Newsletter Issue 6 February 2011.
[221] Eugenic theory
generally held that many of society’s ills, including crime, poverty and mental
deficiency, were largely caused by hereditary defects rather than environmental
and social factors.
[222]
Buck v Bell 274 US 200 (1927).
[223]
Buck v Bell (1927) 274 US 200, at 207.
[224]
Re Eve (1986) 31 DLR (4th) 1.
[225]
Re Eve (1986) 31 DLR (4th) 1, at 32.
[226]
In re B (A Minor) (Wardship: Sterilisation) [1988] AC 199; In
re F (Mental Patient: Sterilisation) [1989] 2 WLR 1025
[227] LRC 33-1990.
[228]
Re Eve (1986) 31 DLR (4th) 1. The decisions in Re
Eve and Buck v Bell were discussed by the Supreme Court in North
Western Health Board v HW and CW [2001]
IESC 90, [2001]
3 IR 622.
[229] Donnelly
“Non-Consensual Sterilisation of Mentally Disabled People: The Law in Ireland”
(1997) 32 Ir Jur 297, at 310, cited in LRC CP 37-2005.
[230]
Murray v Ireland [1991] ILRM 465, 471, 476. In the decision of
the UK House of Lords in In re F (Mental Patient: Sterilisation) [1990]
2 AC 1, Lord Brandon described the right to bear children as “one of
the fundamental rights of a woman.”
[231] LRC 83-2006 at
paragraph 3.13.
[232] LRC 83-2006 at
paragraph 3.14.
[233] Cited in Friendship
and Taboos: Research on Sexual Health Promotion for People with Mild to
Moderate Intellectual Disabilities in the 18-25 Age Range (Health Service
Executive, 2009) at 9.
[234] McConnell and
Ors, “Developmental Profiles of Children Born to Mothers with Intellectual
Disability” (2003) 28 Journal of Intellectual and Developmental Disability
122-134, cited in Literature Review on Provision of Appropriate and
Accessible Support to People with an Intellectual Disability who are
Experiencing Crisis Pregnancy (National Disability Authority and Crisis
Pregnancy Programme, June 2011), available at www.nda.ie.
[235]
Literature Review on Provision of Appropriate and Accessible Support
to People with an Intellectual Disability who are Experiencing Crisis Pregnancy
(National Disability Authority and Crisis Pregnancy Programme, June 2011),
available at www.nda.ie.
[236] Richards et
al “Sexuality and Human Rights of Persons with Intellectual Disabilities”
in Owen and Griffiths (eds) Challenges to the Human Rights of Persons with
Intellectual Disabilities (Jessica Kingsley Publishers 2009) at 194.
[237] As amended by
the Health Act 2004, which established the Health Service Executive to
replace the former health boards.
[238] The Commission
examined in detail the relevant constitutional and international human rights
standards in this area in its 2011 Report on Children and the Law: Medical
Treatment (LRC 103-2011), at paragraphs 1.21-1.32.
[239] Buckley et al
“Protecting children under the Child Care Act 1991 – Getting the Balance Right”
(1999) 21) IJFL 10, at 2.
[240] Shannon (ed) Family
Law Practitioner (Round Hall Sweet & Maxwell loose-leaf) at Division I,
I-133A.
[241] [1986] ILRM 65.
[242]
[2001]
IESC 90, [2001]
3 IR 622. See the discussion of the case in Report on Children
and the Law: Medical Treatment (LRC 103-2011), at paragraphs 1.29 and 2.28.
[243]
Lancashire County Council v Barlow [2000]
UKHL 16.
[244]
Re H (Minors) (Sexual Abuse: Standard of Proof) [1996]
AC 563, at 592.
[245] Shannon (ed) Family
Law Practitioner (Thomson Round Hall loose-leaf) at Division I, I-133B.
[246]
Legal Aid Board v Brady and Ors High Court, March 2007
(settlement of case), High Court Record Nos.474/2005 JR and 2006/652
JR.
See
http://www.ihrc.ie/enquiriesandlegal/amicuscuriae/intellectualdis.html
[247] Circular 2/2007:
Arrangements to appoint persons to assist clients with impaired capacity in
child care proceedings.
[248]
Annual Report of the National Intellectual Disability Database
Committee 2009 (Health Research Board, 2010), p.15, available at
www.hrb.ie. See also the discussion in Chapter 1, above.
[249]
Literature Review on Provision of Appropriate and Accessible Support
to People with an Intellectual Disability who are Experiencing Crisis Pregnancy
(National Disability Authority and Crisis Pregnancy Programme, June 2011),
p.18, available at www.nda.ie.
[250]
Literature Review on Provision of Appropriate and Accessible Support
to People with an Intellectual Disability who are Experiencing Crisis Pregnancy
(National Disability Authority and Crisis Pregnancy Programme, June 2011),
p.165, available at www.nda.ie.
[251] Booth “Parents
with learning difficulties, child protection and the courts” (2000) 13 Representing
Children 3, at 175-188. It is estimated that there are 250,000 parents with
learning difficulties known to health and social service agencies in the UK.
[252] Booth and Booth
“A family as risk: multiple perspectives on parenting and child protection”
(2004) 32 British Journal of Learning Disability 1, at 9-15. International research shows rates
of removal of children from parents with a learning disability vary but are
seen to be in the range of 30 and 80%. Booth and Booth argue that parents with
learning difficulties often live under closer scrutiny of child protection
agencies and that such scrutiny sometimes results in the application of
stricter standards of accountability that might be applied for ‘non-disabled’
parents.
[253] Booth and Booth
“A family as risk: multiple perspectives on parenting and child protection”
(2004) 32 British Journal of Learning Disability 1, at 10.
[254]
A Life Like Any Other? Human Rights of Adults with a Learning
Disability (House of Lords/House of Commons Joint Parliamentary Committee
on Human Rights 2008) at paragraph 165.
[255]
A Life Like Any Other? Human Rights of Adults with a Learning
Disability (House of Lords/House of Commons Joint Parliamentary Committee
on Human Rights 2008) at paragraph 165.
[256] Begley et al,
The strengths and weaknesses of publicly-funded Irish health services
provided to women with disabilities in relation to pregnancy, childbirth and
early motherhood (National Disability Authority 2010) at 196.
[257] Begley et al,
The strengths and weaknesses of publicly-funded Irish health services
provided to women with disabilities in relation to pregnancy, childbirth and
early motherhood (National Disability Authority 2010) at 147.
[258] Begley et al,
The strengths and weaknesses of publicly-funded Irish health services
provided to women with disabilities in relation to pregnancy, childbirth and
early motherhood (National Disability Authority 2010) at 197.
[259] Richards et
al “Sexuality and Human Rights of Persons with Intellectual Disabilities”
in Owen and Griffiths (eds) Challenges to the Human Rights of Persons with
Intellectual Disabilities (Jessica Kingsley Publishers 2009) at 194.
[260]
Supporting disabled adults in their parenting role (Joseph
Rowntree Foundation 2002) at 27.
[261]
Supporting disabled adults in their parenting role (Joseph
Rowntree Foundation 2002) at 39.
[262] UK Government
White Paper Valuing People: A New Strategy for Learning Disability for the
21st Century (2001) at 7.40.
[263] O’Connell “The
Death of Socio-Economic Rights” (2011) 74 The Modern Law Review 4 533,
at 541.
[264] Sections 8-9 of
the Disability Act 2005. An assessment of need determines what services
the person needs based on their specific disability and circumstances.
[265] Section 11 of
the Disability Act 2005.
[266] De Wispelaere
and Walsh “Disability Rights in Ireland: Chronicle of a Missed Opportunity”
(2007) 22(4) Irish Political Studies, at 517.
[267] Flynn “Ireland’s
compliance with the Convention on the Rights of Persons with Disabilities:
Towards a rights-based approach for legal reform” (2009) 16(1) DULJ 357, at 7.
[268]
Code of Practice on
Accessibility of Public Services and Information (National Disability Authority 2006) available
at www.nda.ie.
[269] Currently a
request for an assessment of need in the Disability Act 2005 can
only be done by those who are eligible.
[270] Section 7(b) of
the Disability Act 2005.
[271]
TD v Minister for Education [2001] 4 IR 545.
[272]
Sinnott v Minister for Education [2001] 2 IR 241.
[273] O’Connell “The
Death of Socio-Economic Rights” (2011) 74 The Modern Law Review 4 533,
at 541.
[275]
[1996]
2 IR 20, at 56.
[276] See also the
discussion in Report on Children and the Law: Medical Treatment (LRC
103-2011), paragraphs 1.22-1.26.
[277] Hogan and Whyte
(eds) Kelly: The Irish Constitution 4th ed (LexisNexis, 2003)
fn 2 paragraph 7.6.01, citing Article 6 of the 1949 German Grundgesetz (the
German Basic Law, in effect its Constitution) and section 43(1)(b) of the
Australian (federal) Family Law Act 1975.
[278] Australian Law
Reform Commission Family Violence - A National Legal Response (ALRC
Report 114, 2010) at paragraph 4.42, referring to the Second Stage speech on
the Family Law Bill (which became the 1975 Act) of the then Australian
Attorney General, Lionel Murphy (who had cited the ICCPR in this context).
[279] Kilkelly “Child
Protection and the European Convention on Human Rights” (2000) 3(2) IJFL 12, at
1.
[280] Kilkelly “Child
Protection and the European Convention on Human Rights” (2000) 3(2) IJFL 12, at
1.
[281] Kilkelly “Child
Protection and the European Convention on Human Rights” (2000) 3(2) IJFL 12, at
2.
[282] Kilkelly “Child
Protection and the European Convention on Human Rights” (2000) 3(2) IJFL 12, at
3.
[283] Kilkelly “Child
Protection and the European Convention on Human Rights” (2000) 3(2) IJFL 12, at
3.
[284] Kilkelly “Child
Protection and the European Convention on Human Rights” (2000) 3(2) IJFL 12, at
3. See Johansen v Norway [1996] 33; EHRR.
[285] Kilkelly “Child
Protection and the European Convention on Human Rights” (2000) 3(2) IJFL 12, at
3-4. See L v Sweden (Application 10141/82 40 D & R 140).
[286]
Kutzner v Germany [2002]
35 EHRR 2, at paragraphs 65-82.
[287]
In Re B (Care: Interference with Family Life) [2003]
EWCA Civ 786.
[288]
In Re B (Care: Interference with Family Life) [2003]
EWCA Civ 786, at 34.
[289]
EH v Greenwich [2010]
EWCA Civ 344.
[290]
EH v Greenwich [2010]
EWCA Civ 344, at 64.
[291]
P., C. and S. v United Kingdom Application No. 56547/00 16 July
2002.
[292] The 1989
Convention entered into force on 2 September 1990. Ireland ratified the
Convention on 28 September 1992 without reservation.
[293] Article 9 of the
UN Convention on the Rights of the Child.
[294] Article 18 of
the UN Convention on the Rights of the Child.
[295] Article 25(a) of
the UNCRPD.
[296] Committee on
Economic Social and Cultural Rights Persons with Disabilities (General
Comment No.5 of 1994 of E/1995/229 December 1994) at paragraph 30.
[297] Committee on
Economic Social and Cultural Rights Persons with Disabilities (General
Comment No.5 of 1994 of E/1995/229 December 1994) at paragraph 30.
[298] Committee on
Economic Social and Cultural Rights Persons with Disabilities (General
Comment No.5 of 1994 of E/1995/229 December 1994) at paragraph 30.
[299] Committee on
Economic Social and Cultural Rights Persons with Disabilities (General
Comment No.5 of 1994 of E/1995/229 December 1994) at paragraph 31.
[300] Committee on
Economic Social and Cultural Rights Persons with Disabilities (General
Comment No.5 of 1994 of E/1995/229 December 1994) at paragraph 31.
[301]
United Nations Standard Rules on the Equalization of Opportunities
for Persons with Disabilities General Assembly Resolution 48/96 of 20
December 1993, rule 9.
[302]
United Nations Standard Rules on the Equalization of Opportunities
for Persons with Disabilities General Assembly Resolution 48/96 of 20
December 1993, rule 9(1).
[303]
United Nations Standard Rules on the Equalization of Opportunities
for Persons with Disabilities General Assembly Resolution 48/96 of 20
December 1993, rule 9(3).
[304]
Quality and Fairness: A Health System for You (Department of
Health and Children 2001) at 71.
[305] “Disabled parent’
children removed with ‘no support’” The Irish Times 1 June 2011.
[306] “Disabled
parent’ children removed with ‘no support’” The Irish Times 1 June 2011.
[307] See the discussion
of Legal Aid Board v Brady and Ors in paragraphs 3.22-3.24, above.
[308] UK Government
White Paper Valuing People: A New Strategy for Learning Disability for the
21st Century (2001) at 7.40.
[309] UK Government
White Paper Valuing People: A New Strategy for Learning Disability for the
21st Century (2001) at 9.3 and 9.4. The White Paper recommended
the establishment of Learning Disability Partnership Boards in all local authority
areas by October 2001. These Partnership Boards are responsible for
implementing Government proposals relating to adults with learning
disabilities.
[310]
Good practice guidance on working with parents with a learning
disability (UK Department of Health and Children and Department of
Education and Skills 2006) at 6.
[311] The Fair Access
to Care Services (FACS) framework was introduced in 2003 to address
inconsistencies across the UK about who gets support, in order to provide a
fairer and more transparent system for the allocation of social care services.
See Fair Access to Care Services- guidance on eligibility criteria for adult
social care (UK Department of Health 2003). The principle behind FACS was
that there should be one single process to determine eligibility for social
care support, based on the risks to independence over time. Its aim was to
provide a framework to enable councils to stratify need for social care support
in a fair and proportionate manner to individuals and the community taking into
account local budgetary considerations.
[312]
Good practice guidance on working with parents with a learning
disability (UK Department of Health and Children and Department of
Education and Skills 2006) at 7.
[313]
Good practice guidance on working with parents with a learning
disability (UK Department of Health and Children and Department of Education
and Skills 2006) at 7.
[314]
A Life Like Any Other? Human Rights of Adults with a Learning
Disability (House of Lords/House of Commons Joint Parliamentary Committee
on Human Rights 2008).
[315] See Literature
Review on Provision of Appropriate and Accessible Support to People with an
Intellectual Disability who are Experiencing Crisis Pregnancy (National
Disability Authority and Crisis Pregnancy Programme, June 2011), available at
www.nda.ie. See also A review of the literature and qualitative studies on
sexual abuse and people with disabilities: findings and methodologies
(National Disability Authority, July 2011) available at www.nda.ie.
[316] Voice UK,
Respond and Mencap UK Behind closed doors: preventing sexual abuse
against adults with a learning disability (2001) at 5.
[317] Dunne and Power
“Sexual abuse and mental handicap: Preliminary findings of a community-based
study” (1990) 3 Mental Handicap Research, at 111-125 as referred to in
McGee et al. Sexual Abuse and Violence in Ireland (The Liffey
Press 2002) at 252-253. The SAVI Survey reported that out of 3,000 randomly
selected telephone respondents, approximately a third disclosed some form of
unwanted sexual contact.
[318] McGee et al.
Sexual Abuse and Violence in Ireland (The Liffey Press 2002).
[319] McGee et al.
Sexual Abuse and Violence in Ireland (The Liffey Press 2002) at 244.
[320] McGee et al.
Sexual Abuse and Violence in Ireland (The Liffey Press 2002) at 245-246.
[321] McGee et al.
Sexual Abuse and Violence in Ireland (The Liffey Press 2002) at 246.
[322]
National Rape Crisis Statistics (Rape Crisis Network Ireland
2009) at 18.
[323]
National Rape Crisis Statistics (Rape Crisis Network Ireland
2007) at 51.
[324]
National Rape Crisis Statistics (Rape Crisis Network Ireland
2007) at 51.
[325]
National Rape Crisis Statistics (Rape Crisis Network Ireland
2007) at 42.
[326] McGee et al.
Sexual Abuse and Violence in Ireland (The Liffey Press 2002) at 243.
[327] McGee et al.
Sexual abuse and violence in Ireland (The Liffey Press 2002) at 244.
[328] McGee et al.
Sexual abuse and violence in Ireland (The Liffey Press 2002) at 244.
[329] Law Commission
of England and Wales Consultation Paper on Adult Social Care (No. 193
2010).
[330] Association of
Directors of Adult Social Services Safeguarding Adults: A National Framework
of Standards (2005) at 5, as referred to in Law Commission of England and
Wales Consultation Paper on Adult Social Care (No. 193 2010) at
paragraph 12.28 fn 26.
[331] Law Commission
of England and Wales Consultation Paper on Adult Social Care (No. 193
2010) at paragraph 12.37- 12.40.
[332] Law Commission
of England and Wales Report on Adult Social Care (Law Com. No.326 2011)
at paragraph 9.21.
[333] Law Commission
of England and Wales Consultation Paper on Adult Social Care (No. 193
2010) at paragraphs 12.36
[334] Law Commission
of England and Wales Report on Adult Social Care (Law Com. No. 326 2011)
at paragraph 9.22.
[335] McGee et al.
Sexual Abuse and Violence in Ireland (The Liffey Press 2002) at 253.
[336] Furey and Niesen
“Sexual Abuse of Adults with Mental Retardation by Other Consumers” Sexuality
and Disability 12 (1994) 4.
[337] Voice UK,
Respond and Mencap UK Behind closed doors: preventing sexual abuse
against adults with a learning disability (2001) at 2.
[338]
United Nations Declaration on the Elimination of Violence against
Women General Assembly Resolution 48/104 of 20 December 1993.
[339] Wilson Violence
Against Disabled Women. Report on a Consultation by Women’s Aid of the
Feasibility of Carrying out Research (Women’s Aid 2001).
[340] Wilson Violence
Against Disabled Women. Report on a Consultation by Women’s Aid of the
Feasibility of Carrying out Research (Women’s Aid 2001) at 9 quoted in Submission
of the Irish Human Rights Commission to the UN Committee on the Elimination of
Discrimination against Women, in respect of Ireland’s combined 4th
and 5th periodic reports under the Convention on the Elimination of
Discrimination against Women (Irish Human Rights Commission 2003) at 46-48.
The National Disability Authority and Women’s Aid have written a booklet
outlining a good practice response for organisations working to address
violence against women and disability organisations should take to respond to
violence against women with disabilities.
[341]
Submission of the Irish Human Rights Commission to the UN Committee
on the Elimination of Discrimination against Women, in respect of Ireland’s
combined 4th and 5th periodic reports under the
Convention on the Elimination of Discrimination against Women (Irish Human
Rights Commission 2003) at 49.
[342] Victorian Law
Reform Commission Sexual Offences: Discussion Paper (2001) at paragraph
3.21.
[343] Victorian Law
Reform Commission Sexual Offences: Interim Report (2003) at paragraph
3.32.
[344] McGee et al.
Sexual Abuse and Violence in Ireland (The Liffey Press 2002) at xxxiii.
[345] The main
categories of disabled people reported to have used rape crisis centre services
had an intellectual or mobility impairment.
[346]
National Rape Crisis Statistics and Annual Report (Rape Crisis
Network Ireland 2009) at 18. The Network estimates that that a fully
accessible Rape Crisis Centre service would have more than 9.3% of survivors
with disabilities.
[347] Figures from the
Rape Crisis Network Ireland National Rape Crisis Statistics for 2009 show that
sexual violence perpetrated by a stranger only accounted for 7.3% of all abuse
disclosed to the Rape Crisis Centres in 2009. Approximately two thirds of perpetrators
were either family members/relatives or friends/acquaintances/neighbours (34.6%
and 33.1% respectively). Partners/ex-partners, both cohabiting and
non-cohabiting, accounted for one in ten perpetrators (10.5%0 while authority
figures were disclosed as perpetrators in one in ten first incidents of abuse
(10.9%). See National Rape Crisis Statistics (Rape Crisis Network
Ireland 2009) at 2 & 7
[348] McGee et al.
Sexual Abuse and Violence in Ireland (The Liffey Press 2002) at 247.
[349] McGee et al.
Sexual Abuse and Violence in Ireland (The Liffey Press 2002) at 249.
[350] Victorian Law
Reform Commission Sexual Offences: Interim Report (2003).
[351] Victorian Law
Reform Commission Sexual Offences: Interim Report (2003) at paragraph
3.29.
[352] United Nations
Standard Rules on the Equalization of Opportunities for Persons with
Disabilities General Assembly Resolution 48/96 of 20 December 1993.
[353] LRC CP 37-2005
at paragraph 6.26.
[354] LRC CP 37-2005
at paragraph 1.98.
[355] LRC 83-2006 at
paragraph 7.25.
[356] LRC 83-2006 at
paragraph 1.97.
[357]
Abuse of People with Disabilities: Briefing Paper by the NDA
(National Disability Authority) available at www.nda.ie.
[358]
Trust In Care Policy for Health Service Employers on Upholding the
Dignity and Welfare of Patients/Clients and the Procedure for Managing
Allegations of Abuse against Staff Members (HSE 2005).
[359]
National Quality Standards: Residential Services for People with
Disabilities (HIQA 2009) available at www.hiqa.ie.
[360]
Programme for Government 2011 to 2016, at 24, available at
www.taoiseach.gov.ie.
[361] England and
Wales Law Commission Consultation Paper on Adult Social Care
Consultation Paper (No.192 2010) at paragraph 12.7. The local authority could
be held liable for damages by the victims or an investigation of
maladministration by the Local Government Ombudsman.
[362] England and
Wales Law Commission Consultation Paper on Adult Social Care Consultation
Paper (No.192 2010) at paragraph 12.8.
[363] England and
Wales Law Commission Report on Adult Social Care (Law Com. No. 326 2011) at
paragraph 9.4.
[364]
Regulations 2006, SI 2006 No.2883 Mental Capacity Act 2005
(Independent Mental Capacity Act Advocates) (Expansion of Role).
[365] Department of
Health and Home Office No Secrets: Guidance on developing and implementing
multi-agency policies and procedures to protect vulnerable adults from abuse
(2000). No Secrets has been criticised for failing to draw an adequate
distinction between duties to report suspected criminal behaviour and
responsibilities for safeguarding vulnerable adults, when abusive treatment
does not amount to a crime. See A Life Like Any Other? Human Rights of
Adults with a Learning Disability (Joint Parliamentary Committee on Human
Rights 2008) at paragraph 193.
[366] National
Assembly for Wales In Safe Hands (2000).
[367] The English Law
Commission, in its Consultation Paper on Safeguarding Adults at Risk,
provisionally proposed that the term “vulnerable adults” be replaced by “adults
at risk” to reflect the need to focus on the risks that a person faces rather
then the characteristics of the person concerned. Law Commission for England
and Wales Adult Social Care A Consultation Paper (Consultation
Paper No.192 2010) at paragraph 12.36.
[368] Law Commission
for England and Wales Adult Social Care A Consultation Paper
(Consultation Paper No.192 2010) at paragraph 12.12.
[369] Department of
Health and Home Office (UK) No Secrets: Guidance on developing and
implementing multi-agency policies and procedures to protect vulnerable adults
from abuse (2000) at paragraphs 2.18, 6.2 and 6.10; National Assembly for
Wales In Safe Hands (2000) at paragraph 1.1.
[370] Commission for
Social Care Inspection Safeguarding Adults Protocol and Guidance (2007)
available at www.cqc.org.uk.
[371] Law Commission
of England and Wales Consultation Paper on Adult Social Care A
Consultation Paper (Consultation Paper No.192 2010).
[372] Law Commission
of England and Wales Consultation Paper on Adult Social Care A
Consultation Paper (Consultation Paper No.192 2010) at paragraph 12.22.
[373] Law Commission
of England and Wales Report on Adult Social Care (Law Com. 326 2011) at
paragraph 9.19.
[374]
X v Hounslow London Borough Council [2009]
EWCA Civ 286, (2009) 12 CCLR 254, at 55.
[375] Law Commission
for England and Wales Consultation Paper on Adult Social Care A
Consultation Paper (Consultation Paper No.192 2010) at paragraph 12.15.
[376]
Resolution of the Committee of Ministers on safeguarding
adults and children with disabilities against abuse (Council of Europe
ResAP(2005)1, 2005).
[377]
Recommendation of the Committee of Ministers to member states on the
Council of Europe Disability Action Plan to promote the rights and full
participation of people with disabilities in society: improving the quality of
life of people with disabilities in Europe 2006-2015 (Council of Europe
Rec(2006)5, 2006). The National Disability Authority, the state agency on
disability issues, has established an Expert Advisory Committee to advice on
the design and implementation of a national study to identify the prevalence of
abuse of people with disabilities and areas for improvements within systems for
protection and redress.
[378]
Council of Europe Disability Action Plan 2006-2015.
[379] Quinn,
“Disability and Human Rights: A New Field in the United Nations” in Krause
& Scheinin (eds) International Protection of Human Rights: A Textbook (Åbo
Akademi University Institute for Human Rights 2009) at 262.
[380] Quinn,
“Disability and Human Rights: A New Field in the United Nations” in Krause
& Scheinin (eds) International Protection of Human Rights: A Textbook (Åbo
Akademi University Institute for Human Rights 2009) at 262.
[381] This is the
State’s duty to prevent under Article 16(2) of the UNCRPD.
[382] Article 16(3) of
the UNCRPD.
[383] Article 16(4) of
the UNCRPD.
[384] Flynn “Ireland’s
compliance with the Convention on the Rights of Persons with Disabilities:
Towards a Rights-Based Approach for Legal Reform” (2009) 16 DULJ 1, 357, at 10.
[385] Quinn,
“Disability and Human Rights: A New Field in the United Nations” in Krause
& Scheinin (eds) International Protection of Human Rights: A Textbook (Åbo
Akademi University Institute for Human Rights 2009) at 262.
[386]
Annual Report of the National Intellectual Disability Database
Committee 2009, executive summary available at www.hrb.ie.
[387] United Nations Thematic
Study by the Office of the United Nations High Commissioner for Human Rights on
enhancing awareness and understanding of the Convention on the Rights of
Persons with Disabilities A/HRC/10/48 of 26 January 2009 at paragraph 50.
[388] The March 2011
Ministerial Briefing of the newly appointed Minister for Justice and Equality
noted Cosc’s National Strategy on Domestic, Sexual and Gender-based Violence
2010-2014 and highlighted the need to increase the recognition of sexual
violence amongst the public and people working in the justice sector in
particular as well as the need to raise awareness of the services available to
deal with these crimes. Department of Justice and Law Reform Ministerial
Briefing March 2011 at 17 available at www.justice.ie.
[389]
Policy on the Investigation of Sexual Crime - Crimes Against Children
and Child Welfare (Garda Síochána 2010) at 31.
[390] At the time of
writing (October 2011), the Minister for Justice and Equality has referred the Scheme
of the Criminal Justice (Withholding Information on Crimes Against
Children and Vulnerable Adults) Bill 2011 to the Oireachtas Committee on
Justice so that it can give its views before the formal Government Bill is
published.
[391] Working Group on
Elder Abuse Protecting Our Future (Stationery Office 2002); National
Elder Abuse Steering Committee Open Your Eyes HSE Elder Abuse
Services 2010 (Health Service Executive 2011) and HSE Elder Abuse Policy Responding
to Allegations of Elder Abuse 2008 (Health Service Executive 2008).
[392]
The HSE has taken significant measures in recent years to combat elder
abuse in particular by raising awareness such as the Report on the National
Study of Elder Abuse and Neglect published by the National Centre for the
Protection of Older People in 2010 which looked at the prevalence of elder
abuse in Ireland.
[393] The National
Disability Authority has called for the establishment of a steering group to
develop a National Action Plan for safeguarding children and adults with
disabilities from abuse to be led by the Department of Justice and Equality.
[394]
Report by the Commission of Investigation into Catholic Diocese of
Cloyne, available at www.justice.ie.
[395] In the United
States model statutes on mandatory reporting were introduced in the early
1960s. Since then, mandatory reporting has become a strong feature in laws
governing child abuse in all 50 states, including the District of Colombia, and
is considered to be a crucial feature in the child protection system. An
examination of local, national and international arrangements for the mandatory
reporting of child abuse: the implications for Northern Ireland (National
Society for the Prevention of Cruelty to Children 2007) at 4.
[396]
An examination of local, national and international arrangements for
the mandatory reporting of child abuse: the implications for Northern Ireland
(National Society for the Prevention of Cruelty to Children 2007) at 9.
[397] International
comparisons suggest that in America, which has the longest established
mandatory reporting laws, increases in reporting cases of abuse do not appear
to have reflected a reduction in abuse related deaths. An examination of
local, national and international arrangements for the mandatory reporting of
child abuse: the implications for Northern Ireland (National Society for
the Prevention of Cruelty to Children 2007) at 30.
[398]
An examination of local, national and international arrangements for
the mandatory reporting of child abuse: the implications for Northern Ireland
(National Society for the Prevention of Cruelty to Children 2007) at 4-5.
[399] The Minister for
Justice has referred the Criminal Justice (Withholding Information on Crimes
Against Children and Vulnerable Adults) Bill 2011 to the Oireachtas
Committee on Justice so that it can give its views before the formal Government
Bill is published.
[400] “Mandatory child
abuse report ‘could do more harm than good’” The Irish Times 16 July
2011.
[401] Wood Report
of the Special Commission of Inquiry into Child Protection Services NSW
(2008).
[402] Buckley
“Reforming the child protection system: why we need to be careful what we wish
for” 12 (2009) 2 IJFL 27, at 1. The
Law Reform Commission in its Report on Child Sexual Abuse (LRC 32-1990)
favoured the introduction of mandatory reporting laws in relation to child
sexual abuse.
[403]
Buckley “Reforming the child protection system: why we need to be
careful what we wish for” 12 (2009) 2 IJFL 27, at 2.
[404]
Report of the Working Party on Garda Vetting (Government
Publications 2004) at paragraph 5.2.3 available at www.justice.ie.
[405] This issue was
considered by the Joint Oireachtas Committee on the Constitutional Amendment on
Children in its Interim Report recommending legislation for the vetting
of all persons working in any capacity with children. See Interim Report by
the Joint Constitutional Committee on the Constitutional Amendment for
Children on Children on the Twenty-Eight Amendment of the Constitution Bill
2007 available at www.oireachtas.ie.
[406] “New
whistleblower laws outlined” The Irish Times 11 April 2011
[407] Law Reform
Commission Consultation Paper on Legal Aspects of Carers (LRC CP
53-2009) at paragraph 5.19.
[408] LRC CP 53-2009
at paragraph 5.16.
[409] Section 3(1)(a)
of the Protection for Persons Reporting Child Abuse Act 1998 includes
where a child has been or is being assaulted, ill-treated, neglected or
sexually abused. Section 3(1)(b) covers the expression of opinions that a
child’s health, development or welfare has been or is being avoidably impaired
or neglected.
[410] Section 4(1) of
the Protection of Persons Reporting Child Abuse Act 1998.
[411] On summary
conviction, a person shall be liable to a fine not exceeding £1,500 or a term
of imprisonment not exceeding 2 months or to both. On conviction on indictment,
a person shall be liable to a fine not exceeding £15,000 or a term of
imprisonment not exceeding 3 years, or to both, as per section 5(2) of the 1998
Act.
[412] Section 103(1)
of the Health Act 2007 amended the Health Act 2004 by inserting
Part 9A into the 2004 Act. Section 55B of the 2004 Act, now provides for the
protected disclosure of information by an employee of a relevant body. Sections
55E and 55G make further provisions regarding protected disclosures of
information in relation to regulated professions by persons other than
employees.
[413] Section 55A of
the Health Act 2004 provides that a “relevant body” includes (a) the
Executive (b) service provider (c) any other person who has received or is
receiving assistance in accordance with section 39 of the Health Act 2004 or
section 10 of the Child Care Act 1991 and (d) a body established under
the Health (Corporate Bodies) Act 1961. Under section 3 of the Health
Act 2004 a “service provider” is a person who enters into an arrangement
with the HSE to provide a health or personal social service on behalf of the
HSE.
[414] Section 55B of
the Health Act 2004. Under section 18 of the Defamation Act 2009
the defence of qualified privilege exists where the defendant can prove that
the statement was published to a person who had a duty to receive, or had an
interest in receiving the information; or the defendant believed on reasonable
grounds that the person had such a duty or interest and the defendant had a
corresponding duty to communicate the information to that person.
[415] Section 55B(a)
of the Health Act 2004.
[416] Section 55B(b)
of the Health Act 2004.
[417] Section 55B(c)
of the Health Act 2004.
[418] Section 55M(1)
of the Health Act 2004.
[419] Section 55M(2)
of the Health Act 2004.
[420] Section 55L(3)
of the Health Act 2004.
[421] Section 55L(2)
of the Health Act 2004.
[422] Section 38 of
the Health Act 2004.
[423] Section 55B of
the Health Act 2004.
[424] “Whistleblower
law a test of State maturity” The Irish Times 11 April 2011.
[425] A Sexual Assault
Treatment Unit involves the provision of health care, forensic clinical
examination, Garda interview, crisis intervention, psychological support and
links to longer term support services for victims of recent sexual violence
aged 14 and up. A multi-agency group has developed national guidelines and
continues to meet to develop protocols.
[426]
Recent Rape/ Sexual Assault: National Guidelines on Referral and Forensic
Clinical Examination in Ireland 2nd ed (Health Service Executive
and Department of Justice and Law Reform Publication 2010) at paragraph 2:3.10
[427]
Recent Rape/Sexual Assault: National Guidelines on Referral and
Forensic Clinical Examination in Ireland 2nd ed (Health Service
Executive and Department of Justice and Law Reform, 2010) at paragraph 2:3.11.
[428] Law Reform
Commission for New South Wales Report on People with an Intellectual
Disability and the Criminal Justice System (No. 80 1996) at paragraph 8.17.
[429] LRC 24-1988 at
paragraph 17.
[430] Section 1 of the
Criminal Law (Sexual Offences) Act 2006. The definition of “person in
authority” mirrors what was recommended by the Law Reform Commission in its Report
on Child Sexual Abuse (LRC 32-1990) at paragraph 4.11.
[431] Section 2(3) and
3(5) of the Criminal Law (Sexual Offences) Act 2006.
[432] Section 2(4) and
3(6) of the Criminal Law (Sexual Offences) Act 2006.
[433] Scottish Law
Commission Report on Rape and Other Sexual Offences (Scot Law Com No.209
2007) at paragraph 4.121.
[434] Law Reform
Commission for New South Wales Report on People with an Intellectual
Disability and the Criminal Justice System (No. 80 1996) at paragraph 8.31.
[435] See for example Time
to Move on from Congregated Settings. A Strategy for Community Inclusion
Report of the Working Group on Congregated Settings HSE June 2011 available at
www.hse.ie; the Ferns Inquiry Report (Government Publications, 2005), Report of the Commission to Inquire
into Child Abuse (2009)
available at www.childabusecommission.com and Dublin Archdiocese Commission
of Investigation Report (2009) available at www.dacoi.ie.
[436] A congregated
setting is a residence where they live with ten or more people. See Time to
Move on from Congregated Settings. A Strategy for Community Inclusion
Report of the Working Group on Congregated Settings (HSE 2011) available at
www.hse.ie.
[437]
New Directions Report on the Review of the Mental Health
(Scotland) Act 1984 (Millan Committee 2001) at paragraph 43.
[438]
The Millan Report
recommended that guidelines on sexual activity between adults with “mental
disorders” and sex education for people with “learning disabilities” be issued
by the Crown Office. New Directions Report on the Review of the Mental
Health (Scotland) Act 1984 (Millan Committee 2001) Recommendation 21.9.
[439] Vol. 621 No.1
Dáil Éireann Parliamentary Debates 2 June 2006 Col.12.
[440] See R v
Olugboja [1981] 3 WLR 585, at 585-593.
[441] Lord
Chancellor’s Department Who Decides? Making decisions on
behalf of mentally incapacitated adults (CM 3808) (The Stationary
Office 1997); Making Decisions (CM 4465) (1999); Consultation Paper Making
Decisions - Helping people who have difficulty deciding for themselves (2002)
and the Law Commission for England and Wales Report on Mental
Incapacity (No. 231 1995).
[442] Law Commission
for England and Wales Consent in Sex Offences. A Report to the Home Office
Sex Offences Review (2000) at paragraph 4.26.
[443] Law Commission
for England and Wales Consent in Sex Offences. A Report to the Home Office
Sex Offences Review (2000) at paragraph 4.27.
[444]
A v UK (1999) 27
EHRR 611 (100/1997/884/1096).
[445]
A v UK (1999) 27
EHRR 611 (100/1997/884/1096), at paragraph 22.
[446] Law Reform
Commission Report on Sexual Offences against the Mentally Handicapped (LRC
33-1990) at paragraph 29.
[447] Law Commission
for England and Wales Consent in Sex Offences. A Report to the Home Office
Sex Offences Review (2000) at paragraph 4.27.
[448] Law Commission
for England and Wales Consent in Sex Offences. A Report to the Home Office
Sex Offences Review (2000) at paragraph 4.27.
[449] The Sexual
Offences Act 2003 made three important provisions relating to consent. The
Act provides a statutory definition of consent; a test of reasonable belief in
consent and evidential and conclusive presumptions about consent and the
defendant’s belief in consent.
[450] Ireland does not
have the Morgan defence.
[451]
Setting the Boundaries Reforming the Law on Sexual Offences (Home
Office Consultation Paper 2000) Recommendation 9 at paragraph 2.13.14. This is
based on section 273.2 of the Canadian Criminal Code.
[452]
R v C [2008] EWCA Crim 1155, relying on the observations of Mr.
Justice Munby in Local Authority X v MM, KM [2007]
EWHC 2003 (Fam), at paragraphs 88-89; X City Council v MB, NB and
MAB (by his litigation friend the Official Solicitor) [2006]
EWHC 168 (Fam), [2006] 2 FLR 968, at paragraph 84. However, the
House of Lords has since cast doubt on some aspects of Munby J’s approach in
the common law context: R v C [2009]
UKHL 42, at paragraphs 24-27. According to the British Medical
Association and the Law Society “it is not entirely clear… whether the
observations of the Court of Appeal in R v C remain good. Once the Court
of Protection has had cause to consider this question (as it will do in the
near future) the authors consider it likely the Court will conclude that the
criminal and common law do indeed march in step in this regard.” See The
British Medical Association and the Law Society Assessment of Mental
Capacity: A Practical Guide for Doctors and Lawyers 3rd ed (Law
Society Publishing 2010) at 120 fn 3.
[453] Section 30(2)(a)
of the Sexual Offences Act 2003.
[454]
R v C [2009]
UKHL 42, at paragraph 25.
[455] Section 76 of
the Sexual Offences Act 2003.
[456] Section 75 of
the Sexual Offences Act 2003.
[457]
R v Jenkins 2000 (unreported). The case was heard at the Central
Criminal Court, 10-12 January 2000.
[458] Capacity to
consent to the act became the main issue.
[459] Law Commission
for England and Wales Consent in Sex Offences. A Report to the Home Office
Sex Offences Review (2000) at paragraph 4.67.
[460] Section 30(1) of
the Sexual Offences Act 2003.
[461] Sections 32(1)
and section 33(1) of the Sexual Offences Act 2003.
[462] Section 31(1) of
the Sexual Offences Act 2003.
[463] Section 30 of
the Sexual Offences Act 2003. This is similar to section 17 of the Sexual
Offences (Scotland) Act 2009 where capacity to consent to conduct is
determined where “a person is unable to do one of more of the following: (a)
understand what the conduct is; (b) form a decision as to whether to engage in
the conduct (or whether the conduct should take place), (c) communicate any
such decision.”
[464] The British
Medical Association and the Law Society Assessment of Mental Capacity: A
Practical Guide for Doctors and Lawyers 3rd ed (Law Society
Publishing 2010) at 118.
[465] Sections 38-41
of the Sexual Offences Act 2003.
[466]
Section 42 of the Sexual Offences Act 2003.
[467] The British
Medical Association and the Law Society Assessment of Mental Capacity: A
Practical Guide for Doctors and Lawyers 3rd ed (Law Society
Publishing 2010) at 118.
[468]
Hulme v Director of Public Prosecutions [2006]
EWHC 1347.
[469] Sections 9-12
and sections 30-33 of the Sexual Offences Act 2003.
[470] Scottish Law
Commission Report on Rape and Other Sexual Offences (No. 209 2007) at
paragraph 4.99.
[471] The British
Medical Association and the Law Society Assessment of Mental Capacity: A
Practical Guide for Doctors and Lawyers 3rd ed (Law Society
Publishing 2010).
[472]
Local Authority X v MM & Anor [2007]
EWHC 2003 (Fam), at paragraphs 88-89.
[473]
R v C [2009]
UKHL 42, at 27. The ‘issue-specific’ test was set down in this case.
[474]
Local Authority X v MM, KM [2007]
EWHC 2003 (Fam), at paragraphs 86-87 relying on X City Council v
MB, NB and MAB (by his litigation friend of the Official Solicitor) [2006]
EWHC 168 (Fam), [2006] 2 FLR 968, at paragraph 84.
[475]
Local Authority X v MM, KM [2007]
EWHC 2003 (Fam), at paragraph 94-95.
[476]
X City Council v MB, NB and MAB [2006]
EWHC 168 (Fam), [2006] 2 FLR 968, at paragraph 8; The London
Borough of Ealing v KS, LU, MHAS and SR [2008]
EWHC 636 (Fam); and R v C [2009] UKHL, at paragraphs 27, 29.
[477] The British
Medical Association and the Law Society Assessment of Mental Capacity: A
Practical Guide for Doctors and Lawyers 3rd ed (Law Society
Publishing 2010) at 108.
[478] The British
Medical Association and the Law Society Assessment of Mental Capacity: A
Practical Guide for Doctors and Lawyers 3rd ed (Law Society
Publishing 2010) at 109.
[479] Department of
Health No Secrets: Guidance on developing and implementing multi-agency
policies and procedures to protect vulnerable adults from abuse (2000); Safeguarding
Adults. Review on the consultation on the review of ‘No Secrets’ (2009).
[480] Section 43 of
the Sexual Offences (Northern Ireland) Order 2008.
[481] Scottish Law
Commission Report on Rape and Other Sexual Offences (No. 209 2007) at
paragraph 4.90.
[482] Scottish
Executive, Review of the Mental Health (Scotland) Act 1984 (2001).
[483] Maher “Rape and
Other Things: Sexual Offences and People with Mental Disorder” (2010) 14 Edin
LR, 129, at 133.
[484] Scottish Law
Commission Report on Rape and Other Sexual Offences (No. 209 2007) at
paragraph 4.97.
[485] Scottish Executive,
Review of the Mental Health (Scotland) Act 1984 (2001) at paragraph
21.55.
[486]
New Directions Report on the Review of the Mental Health
(Scotland) Act 1984 (Millan Committee 2001) at paragraph 57.
[487] Scottish Law
Commission Report on Rape and Other Sexual Offences (No. 209 2007) at
paragraph 1.3.
[488] Scottish Law
Commission Discussion Paper on Rape and Other Sexual Offences (No.
131 2006).
[489] Scottish Law
Commission Report on Rape and Other Sexual Offences (No. 209 2007)
Recommendation 39 at paragraph 4.96.
[490] Scottish Law
Commission Report on Rape and Other Sexual Offences (No. 209 2007) at
paragraph 4.95.
[491] Scottish Law
Commission Report on Rape and Other Sexual Offences (No. 209 2007) at
paragraph 4.95.
[492]
Section 328(1) of the
2003 Act defines mental disorder as “mental illness; personality disorder; or
learning disability, however caused or manifested”.
[493] Section
313(2)(a)-(b) of the Mental Health (Care and Treatment) (Scotland) Act 2003.
[494] Section
313(3)(a)(i) of the Mental Health (Care and Treatment) (Scotland) Act 2003.
[495] Section
313(3)(a)(ii) of the Mental Health (Care and Treatment) (Scotland) Act 2003.
[496] Section
313(3)(b)(i) of the Mental Health (Care and Treatment) (Scotland) Act 2003.
[497] Section
313(3)(b)(ii) of the Mental Health (Care and Treatment) (Scotland) Act 2003.
[498] Scottish Law
Commission Report on Rape and Other Sexual Offences (No. 209 2007) at
paragraph 4.121. The Commission’s recommendation repeated much of what already
was provided for in section 313 of the Mental Health (Care and Treatment)
(Scotland) Act 2003 with changes to the definition of the prohibited sexual
activity.
[499] Section 13-14 of
the Sexual Offences (Scotland) Act 2009.
[500] This sub-section
is similar to Section 30 of the England and Wales Sexual Offences Act 2003 and
section 43 of the Sexual Offences (NI) Order 2008.
[501] Maher “Rape and
Other Things: Sexual Offences and People with Mental Disorder” (2010) 14 Edin
L.R., 129, at 133.
[502] Section 46 of
the Sexual Offences (Scotland) Act 2009.
[503] Scottish Law
Commission Report on Rape and Other Sexual Offences (No. 209 2007)
Recommendation 47 at paragraph 4.122.
[504] Scottish Law
Commission Report on Rape and Other Sexual Offences (No. 209 2007) at
paragraph 4.100.
[505] These
recommendations have been developed by the Model Criminal Code Officers
Committee of the Standing Committee of Attorneys-General which was set up to
develop a model criminal code for Australian jurisdictions. Model Criminal Code
Officers Committee of the Standing Committee of Attorneys-General, Model
Criminal Code-Chapter 5 Sexual Offences Against the Person Report
(1999).
[506] Model Criminal
Code Officers Committee of the Standing Committee of Attorneys-General, Model
Criminal Code-Chapter 5 Sexual Offences Against the Person Report
(1999) at part 5.2.
[507] Model Criminal
Code Officers Committee of the Standing Committee of Attorneys-General, Model
Criminal Code-Chapter 5 Sexual Offences Against the Person (1999) at
paragraph 5.2.32.
[508]
section 5.2.3(1) of the
Code
[509] Section
5.2.3(2)(d) of the Code.
[510] Law Commission
for England and Wales Consent in Sex Offences. A Report to the Home Office
Sex Offences Review (2000) at paragraph 4.14.
[511] Model Criminal
Code Officers Committee of the Standing Committee of Attorneys-General, Model
Criminal Code-Chapter 5 Sexual Offences Against the Person (1999).
[512] Section 37(c) of
the Crimes Act 1958 (Vic); Saragozza [1984] VR 187; McEwan
[1979] 2 NSWLR. See the codified states including Northern Territory, Tasmania,
Queensland and Western Australia.
[513] Section 66F of
the Crimes Act 1900 (as amended) (NSW); sections 51-52 of the Crimes
Act 1958 (Vic); section 216 of the Criminal Code (Qld); section
49(6) of the Criminal Law Consolidation Act 1935; section 330 of the Criminal
Code (WA); section 126 of the Criminal Code (Tas); section 130 of
the Criminal Code (NT). See also Model Criminal Code Officers Committee
of the Standing Committee of Attorneys-General, Model Criminal Code-Chapter
5 Sexual Offences Against the Person (1999) atpart 5.2, division 5, as
discussed below.
[514] The exception to
this is South Australia, where the nature and consequences of the act must be
understood. See section 49(6) of the South Australian Criminal Law and
Consolidation Act 1935. Interestingly, the question of capacity is part of
the Queensland definition of consent. Section 348(1) of the Criminal Code
(Qld) defines consent as “consent freely and voluntarily given by a person with
the cognitive capacity to give the consent.”
[515]
R v Morgan [1970] VR 337, Vic SC. Morgan sets a noticeably
lower standard of knowledge required for consent to therapeutic treatment where
the person must understand the nature and character of the act but also the
risks, harms and benefits of both permitting and refusing the act.
[516] R v Morgan
[1970] VR 337, Vic SC, at 341.
[517]
R v Mueller (2005) NSWCCA 47 BC200500740.
[518]
R v Mueller (2005) NSWCCA 47 BC200500740, at 5.
[519]
Section 49(6) of the
South Australian Criminal Law Consolidation Act 1935 sets a similar test
to those employed in most American states. For charges to be proved for the
crime of knowingly having sexual intercourse with a “mentally deficient” person
under that section, it must be shown that the person was unable to understand
the nature or consequences of sexual intercourse.
[520] Section 66F(2)
of the Crimes Act 1900 (as amended) (NSW); section 126(1) of the Criminal
Code Act 1924 (Tas).
[521] Section 51 of
the Crimes Act 1958 (Vic).
[522] Section 52 of
the Crimes Act 1958 (Vic); section 130 of the Criminal Code
Act 1983 (NT).
[523] Section 66F(3)
of the Crimes Act 1900 (as amended) (NSW). This is known as the
“exploitation offence”.
[524] Law Reform
Commission for New South Wales Report on People with an Intellectual
Disability and the Criminal Justice System (No. 80 1996).
[525] Law Reform
Commission for New South Wales Report on People with an Intellectual
Disability and the Criminal Justice System (No. 80 1996) at paragraph 8.4
[526] Law Reform
Commission for New South Wales Report on People with an Intellectual
Disability and the Criminal Justice System (No. 80 1996) at paragraph 8.35.
[527] According to the
Judicial Commission of New South Wales’ Sentencing Information System, between
January 1990 and August 1995, there were only six successful cases under
section 66F(3) of the Crimes Act 1900 relating to exploitation and no
cases under section 66F(2) relating to the prohibition of sexual relations
based on caring relationship. In each case the defendant pleaded guilty, and in
four of the six cases, received a custodial sentence. Law Reform Commission for
New South Wales Report on People with an Intellectual Disability and
the Criminal Justice System (No. 80 1996) at paragraph 8.20 fn 38.
[528] The Crimes
Amendment (Cognitive Impairment-Sexual Offences) Act 2008 No.74 was
commenced on 1 December 2008.
[529] Under section
61H(1A) a person is cognitively impaired if he or she has an intellectual
disability; a developmental disorder including autism spectrum disorder; a
neurological disorder; dementia; severe mental illness or a brain injury that
results in the person requiring supervision or social habilitation in
connection with daily life activities.
[530] Section 66F(2)
of the Crimes Act 1900 (as amended) (NSW).
[531] Section 66F(1)
of the Crimes Act 1900 (as amended) (NSW).
[532] Section 66F(3)
of the Crimes Act 1900 NSW (as amended) (NSW).
[533] Law Reform
Commission for New South Wales People with an Intellectual Disability and
the Criminal Justice System: Courts and Sentencing Issues (1994 Discussion
Paper 35) at paragraph 9.18.
[534]
R v Parsons (Court of Criminal Appeal, NSW, 17 December 1990, CCA
600014/90 unreported) at 5 quoted in New South Wales Report on People
with an Intellectual Disability and the Criminal Justice System (No 80
1996) Chapter 8 footnote 61.
[535] Section
66F(6)(b) of the Crimes Act 1900 (as amended) NSW.
[536]
Section 61HA(6) of the Crimes
Act 1900 (as amended) NSW.
[537] Section 61HA(7)
of the Crimes Act 1900 (as amended) NSW.
[538] Section 66F of
the Crimes Act 1900 (as amended) NSW.
[539] Victorian Law
Reform Commission Sexual Offences Law and Procedure: Final Report 2004
at paragraph 6.55.
[540] Victorian Law
Reform Commission Sexual Offences Law and Procedure: Final Report 2004
Recommendation 1.65.
[541] Law Reform
Commission of Victoria Report on Sexual Offences Against People with
Impaired Mental Functioning (No. 15 1988) at paragraph 64.
[542] Section 15(a) of
the Crimes (Sexual
Offences) Act 2006
substituted the term “impaired mental functioning” in section 50(1) of the Crimes
Act 1958 for the term “cognitive impairment”. Amendments were also
made to the Evidence Act 1958 and Criminal Trials Act 1999 dealing
with people with cognitive impairments.
[543] Section 16(1) of
the Crimes (Sexual Offences) Act 2006.
[544] Section 16(2) of
the Crimes (Sexual Offences) Act 2006.
[545] Section 16(5) of
the Crimes (Sexual Offences) Act 2006.
[546] Sections 16(3)
and 16(5) of the Crimes (Sexual Offences) Act 2006.
[547] Victorian Law
Reform Commission Sexual Offences Law and Procedure: Final Report 2004
at paragraph 6.48. The VLC gives the example of a physical therapist who may
conduct an exercise class with a group of people with various disabilities, but
may be unaware of the nature of their disabilities. The therapist might engage
in a sexual act with a person with a cognitive impairment without being aware
that the person had in fact a cognitive impairment. In these circumstances the
VLC felt it appropriate for the accused to be able to raise the defence of
honest and reasonable belief.
[548] Section 37 of
the Crimes (Rape) Act 1991.
[549] Section 37 of
the Crimes (Rape) Act 1991.
[550]
Sections 51 and 52 of the Crimes Act 1958 as amended by the Crimes
(Sexual Offences) Act 2006.
[551] Victorian Law
Reform Commission Sexual Offences Law and Procedure: Final Report 2004
Executive Summary, xxxv-xxxvi.
[552] Victorian Law
Reform Commission Sexual Offences Law and Procedure: Final Report 2004
at paragraph 6.58.
[553] Section 130(3)
of the Criminal Code Act 1983.
[554] Chapter 1
Interpretation to the Criminal Code defines a person with an impairment
of the mind as a person with a disability that is attributable to an
intellectual, psychiatric, cognitive or neurological impairment or a combination
of these; and, results in a substantial reduction of the person’s capacity for
communication, social interaction or learning; and the person needing support.
[555] Section 348(d)
of the Criminal Code Act 1899.
[556] Section
216(4)(b) of the Criminal
Code Act 1899.
[557] Section 330(1)
of the Criminal Code Act 1913.
[558] Section
330(7)(a) of the Criminal Code Act 1913.
[559] Section
330(7)(b) of the Criminal Code Act 1913.
[560] Section 330(4)
of the Criminal Code Act 1913.
[561]
Section 330(5) of the Criminal Code Act 1913.
[562] Section 330(6)
of the Criminal Code Act 1913.
[563] Section
330(7)(a) of the Criminal Code Act 1913.
[564] Section
330(7)(b) of the Criminal Code Act 1913.
[565] Section 330(9)
of the Criminal Code Act 1913.
[566] Section 128 of
the Crimes Act 1961, as amended by section 2 Crimes Amendment Act
(No.3) 1985. New Zealand
has developed a subjective and objective test in that the accused can hold a
subjective but honest belief but that belief is subject to an objective test of
reasonableness.
[567] Section 138(3)
of the Crimes Amendment Act 2005.
[568] Section 138(6)
of the Crimes Amendment Act 2005.
[569] Section 128A(5)
of the Crimes Act 1961 was substituted by section 7 of the Crimes
Amendment Act 2005.
[570] Section
128(A)(1) and (2) of the Crimes Act 1961.
[571] Bryant “The
issue of consent in the crime of sexual assault” (1989) 68 Canadian Bar
Review, at 103.
[572] The new offence
created in section 153.1 of the Criminal Code is modelled on the offence
of sexual exploitation of a young person in sections 151-153 of the Criminal
Code with the exception that proof of non-consent is required. At the same
time some procedural changes were made to the Canada Evidence Act RSC 1985
to address the needs of witnesses with disabilities.
[573] The term “disability”
is not defined in the section.
[574] Section 273.1(1)
of the Canadian Criminal Code RSC 1985.
[575] In R v RR
[2001] 151 OAC 1 the Ontario Court of Appeal held that capacity is integral to
determining whether consent was present and the extent of capacity depends on
the circumstances of each case. See R v RR [2001] 151 OAC 1, at
paragraph 52.
[576] In Canada, there
are several cases where a failure to express non-consent explicitly is taken to
mean consent by the trial judges which led to the acquittal of the accused. See
R v Parsons (1999) 170 Nfld & PEIR 319; R v Harper [2002]
YKSC 18; R v Brown [2003] OJ No.5341 and R v B.M. [1994] OJ
No.2242. Arguably this can be seen as contrary to the decision taken by the
Supreme Court of Canada in R v Ewanchuk [1999] 1 SCR 330 that passivity,
acquiescence or physical resistance does not imply consent.
[577] Section
273.1(2)(b) of the Canadian Criminal Code RSC 1985. This incapacity
provision ostensibly applies to all sources of incapacity for example
intoxication and unconsciousness as well as to incapacity as a result of mental
disability.
[578] Benedet and
Grant “Hearing the sexual assault complaints of women with mental disabilities:
consent, capacity, and mistaken belief” (2007) 52 McGill LJ 243, at 269.
[579] Section 273.1(2)
of the Canadian Criminal Code RSC 1985. In R v Kiared [2008] AJ
No.1459 the judge was unable to conclude that the accused was in a position of
trust, authority or in a relationship of dependency with the complainant
because the accused was not acting in his capacity as the complainants’ bus
driver when the offence was committed and having only met once before the
incident, there was no “evolution of the relationship” to constitute one of
trust or dependency. R v Kiared [2008] AJ No.1459, at paragraph 70.
Arguably, the narrow interpretation taken by the Court in Kiared points
to possible difficulties in protecting vulnerable adults from sexual
exploitation.
[580] Section 273.2(b)
of the Canadian Criminal Code RSC 1985. It is not a defence to section
271, 272 or 273 of the Criminal Code where the accused’s belief that the
complainant consented to the activity arose from the accused’s self-induced
intoxication or recklessness or wilful blindness”. See Section 273.2(a)(i)(ii)
of the Criminal Code.
[581] See for example R
v Parrott [2001] 1 SCR 178, at paragraph 10. The adult complainant had Down
Syndrome with cognitive impairments that left her with mental abilities and
communication facility similar to a pre-school child.
[582] Benedet and
Grant “Hearing the sexual assault complaints of women with mental disabilities:
consent, capacity, and mistaken belief” (2007) 52 McGill LJ 243, at 269.
[583] Benedet and
Grant “Hearing the sexual assault complaints of women with mental disabilities:
consent, capacity, and mistaken belief” (2007) 52 McGill LJ 243, at 250.
[584] Benedet and
Grant “Hearing the sexual assault complaints of women with mental disabilities:
consent, capacity, and mistaken belief” (2007) 52 McGill LJ 243, at 250.
[585] Benedet and
Grant “Hearing the sexual assault complaints of women with mental disabilities:
consent, capacity, and mistaken belief” (2007) 52 McGill LJ 243, at 250.
[586]
R v R.R. [2001] 151 OAC 1.
[587]
R v R.R. [2001] 151 OAC 1, at paragraph 44. In this case the
Ontario Court of Appeal upheld that the complainant did not have the capacity
to consent to sexual activity. The Court based its decision on expert evidence
of a psychologist who had been involved with the complainant for over 12 years.
The defences’ expert witness argued, however, that “it seems to be going rather
far to suggest that she can’t be capable of appreciating that she may have
sexual feelings which, after all, are pretty basic to human nature and that
simply by reason of not being too smart doesn’t mean that you don’t know you
have sexual feelings and you want to do something to satisfy those feelings….
does she understand that she has sexual feelings and would like to do something
about them in terms of gratification; it seems pretty clear that she does… if
the issue is is she capable of understanding that she has these feelings and
wants to act on them, and that she’s capable of giving voluntary agreement to
participate in them, I don’t see any persuasive evidence that that’s not the
case.” See R v R.R. [2001] 151 OAC 1, at paragraph 49.
[588]
R v Ewanchuk [1999] 1 SCR 330. The Court held that an explicit or
positive expression consenting to the act must be present.
[589] Section 273.2(b)
of the Criminal Code.
[590]
R v R.R. [2001] 151 OAC 1, at paragraph 57.
[591] Section 231(1)
of the Model Criminal Code.
[592] American Law
Institute Model Penal Code and Commentaries” Part II sections 210.0 to 213.6
(1980) at 321.
[593] American Law
Institute Model Penal Code and Commentaries” Part II sections 210.0 to 213.6
(1980) at 321.
[594] American Law
Institute Model Penal Code and Commentaries” Part II sections 210.0 to 213.6
(1980) 321-322.
[595] American Law
Institute Model Penal Code and Commentaries” Part II sections 210.0 to 213.6
(1980) at 322.
[596] Denno
“Sexuality, rape and mental retardation” (1997) 2 UIllL Rev 315, at 415-424.
The 50 states, with the exception of Illinois, use one of the six tests in
reviewing cases of sexual abuse. Illinois uses both the morality test and the
totality of circumstances test. See Morano “Sexual abuse of the mentally
retarded patient: medical and legal analysis for the primary care physician”
(2001) 3(3) Primary Care Companion Journal of Clinical Psychiatry 126,
at 132.
[597] The states which
use this test in assessing capacity to consent to sex are Alaska, Arizona,
Arkansas, Indiana, Iowa, Kansas, New Mexico, Oklahoma, Pennsylvania, Tennessee,
Vermont, Virginia and Wyoming.
[598] These states are
Alabama, Colorado, Hawaii, Idaho, Illinois, New York, Washington.
[599] Benedet and
Grant “Hearing the sexual assault complaints of women with mental disabilities:
consent, capacity, and mistaken belief” (2007) 52 McGill LJ 243, at 272.
[600] These states are
California, Delaware, Florida, Kentucky, Louisiana, Maine, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oregan,
Rhode Island, South Carolina, Texas and Utah.
[601]
State v Sullivan
298 NW 2d 267 (S.Ct. Iowa 1980).
[602] Section 709.4,
subdivision 2 of the Iowa Code Annotated.
[603]
State v Sullivan
298 NW 2d 267, 272 (S.Ct. Iowa 1980).
[604] These states are
Connecticut, Maryland, Massachusetts, Michigan, Mississippi, Missouri, South
Dakota, West Virginia and Wisconsin.
[605]
People v Easley 42 NY 2d 50 (1977).
[606]
People v Easley 42 NY 2d 50 (1977), at 53.
[607]
People v Easley 42 NY 2d 50 (1977), at 56.
[608]
People v Cratsley 86 NY 2d 81 (1995).
[609] New York State
Penal Law section 130.25(1) states that a person is guilty of rape in the third
degree when he or she engages in sexual intercourse with another person who is
incapable of consent by reason of some factor other than being less than
seventeen years old.
[610]
People v Olivio 123 NJ 550, 589 A2d 597 (S. Ct. NJ 1991).
[611]
People v Olivio 123 NJ 550, 589 A2d 597 (S. Ct. NJ 1991), at 564.
[612] Benedet and
Grant “Hearing the sexual assault complaints of women with mental disabilities:
consent, capacity, and mistaken belief” (2007) 52 McGill LJ 243.
[613] LRC 83-2006.
[614]
The definition in section 3 of the English Mental Capacity Act 2005 was
also used in Head 2 of the Scheme
of the Mental Capacity Bill 2008 published by the Department of Justice and
Equality in 2008.
[615] Elliott Vulnerable
and intimidated witnesses: A review of the literature (Home Office Research
and Statistics Directorate 1998) at 167.
[616] The low level of
prosecutions of sexual offences against people with limited capacity was
highlighted by the Victorian Law Reform Commission in its Final Report on
Sexual Offences. See Victorian Law Reform Commission Sexual Offences: Final
Report (2004).
[617] Voice UK,
Respond and Mencap UK Behind closed doors: preventing sexual abuse
against adults with a learning disability (2001) at 8.
[618] Benedet and
Grant “Hearing the sexual assault complaints of women with mental disabilities:
evidentiary and procedural issues” (2007) 52 McGill LJ 515, at 548.
[619] Elliott Vulnerable
and intimidated witnesses: A review of the literature (Home Office Research
and Statistics Directorate 1998) at 104.
[620] Elliott Vulnerable
and intimidated witnesses: A review of the literature (Home Office Research
and Statistics Directorate 1998) at 142.
[621] Elliott Vulnerable
and intimidated witnesses: A review of the literature (Home Office Research
and Statistics Directorate 1998) at 142.
[622] Elliott
“Vulnerable and intimidated witnesses: A review of the literature” (Home Office
Research and Statistics Directorate 1998) at 142.
[623] Sanders et al
Victims with Learning Disabilities: Negotiating the Criminal Justice System (Oxford:
University of Oxford 1997) at 35-36.
[624] Victorian Law
Reform Commission Sexual Offences: Final Report (2004) at paragraph
6.62-3.
[625] 801 files
received over a three year period 2005-2007 were received by the Office of the
Director of Public Prosecutions. The Commission is extremely grateful to the
Office of the Director of
Public Prosecutions for providing the Commission with the results of this
analysis.
[626] A broad
definition of rape was used including ‘rape and attempted rape’ under the Criminal
Law (Rape) Act 1981 and section 4 of the Criminal Law (Rape) (Amendment)
Act 1990.
[627] This refers to
cases where complainant withdrawals, deceased accused and false complaints have
been removed.
[628] Section 6 of the
Criminal Law (Rape) Act 1981, as inserted by section 11 of the Criminal
Law (Rape) (Amendment) Act 1990.
[629] Section 26
(3)(b) of the Civil Legal Aid Act 1995.
[630] Benedet and
Grant “Hearing the sexual assault complaints of women with mental disabilities:
evidentiary and procedural issues (2007) 52 McGill LJ 515, at 524.
[631] McLeod et al.
Court experience of adults with mental health conditions, learning
disabilities and limited mental capacity, Ministry of Justice Research
Series (London: Ministry of Justice, July 2010)
[632] McLeod et al.
Court experience of adults with mental health conditions, learning
disabilities and limited mental capacity, (Ministry of Justice 2010) at 8.
[633] McLeod et al.
Court experience of adults with mental health conditions, learning disabilities
and limited mental capacity, (Ministry of Justice 2010) at 9.
[634] McLeod et al.
Court experience of adults with mental health conditions, learning
disabilities and limited mental capacity, (Ministry of Justice 2010) at 36.
[635] Walsh Criminal
Procedure (Thomson Round Hall 2002) at 856.
[636] For example
children’s testimony is considered untrustworthy because “children do not have
adequate cognitive skills to either understand or accurately describe what they
witnesses; children have no ethical sense and are prone to fabricate; and
children have difficulty differentiating fact from fantasy.” Ontario Law Reform
Commission Report on Child Witnesses 1991. In Ireland, for example, in 2006, a
23 year woman, Laura Kelly, was prohibited from testifying about her alleged
sexual assault by a judge who deemed she did not have the capacity to testify
in court.
[637] Benedet and
Grant “Hearing the sexual assault complaints of women with mental disabilities:
evidentiary and procedural issues” (2007) 52 McGill LJ 515, at 543.
[638] Benedet and
Grant “Hearing the sexual assault complaints of women with mental disabilities:
evidentiary and procedural issues” (2007) 52 McGill LJ 515, at 542.
[639] Delahunt “Video
Evidence and s.16(1)(b) of the Criminal Evidence Act 1992” (2011) 16 The Bar
Review, 1, at 2.
[640] Report of the
Home Office Advisory Group on Video Evidence (chaired by Judge Thomas Pigot).
The 1989 Report proposed that video recorded interviews conducted by a police
officer or social worker be used as a substitute for the child’s live testimony
at trial. The English Criminal Justice Act 1991 implemented this
recommendation for examination-in-chief evidence. As amended by sections 27 and
28 of the Youth Justice and Criminal Evidence Act 1999 this now applies
to examination in chief and cross-examination.
[641] LRC 32-1990.
[642] LRC 33-1990.
[643] LRC 32-1990 at
paragraph 5.18.
[644] LRC 32-1990 at
paragraph 5.28.
[645] LRC 32-1990 at
paragraph 5.36.
[646] LRC 33-1990 at
paragraph 38.
[647] LRC 33-1990 at
paragraph 37.
[648] Section 13 of
the Criminal Evidence Act 1992.
[649] Section 14 of
the Criminal Evidence Act 1992.
[650] Section 27 of
the Criminal Evidence Act 1992.
[651] Section 28 of
the Criminal Evidence Act 1992. Section 7 of the Criminal Law (Rape)
(Amendment) Act 1990 gives the trial judge discretion to decide, in light
of the evidence, if a warning is required. A corroboration warning should now
only be given to the jury if there is an evidential basis for believing that
the complainant’s testimony is unreliable.
[652] Section 257 of
the Children Act 2001 raised the qualifying age from 17 to 18 in the
appropriate sections of Part III of the Criminal Evidence Act 1992, i.e.
13(1)(a), 14(1)(b), 15(1)(b) and 16(1)(a).
[653] Section 16(1)(b)
of the Criminal Evidence Act 1992.
[654] The Minister for
Justice and Equality, Deputy Alan Shatter, in response to a parliamentary
question on 18 May 2011, noted that “[d]edicated interview suites have… been
established in six strategically chosen locations throughout the State, which
are used by An Garda Síochána to record interviews with such victims. Work is
also near completion on the establishment of a further facility”. See Dáil
Éireann Parliamentary Debates Vol.732 No.4, 18 May 2011 at 37.
[655] “Jury directed
to find man not guilty of sex assault on mentally disabled woman” The Irish
Times 16 November 2010.
[656] “Improved
measures needed for vulnerable witnesses in court” The Irish Times 7
December 2010.
[657] Victorian Law
Reform Commission Sexual Offences: Discussion Paper (2001) at paragraph
8.21.
[658] “Improved
measures needed for vulnerable witnesses in court” The Irish Times 7
December 2010.
[659] “Improved
measures needed for vulnerable witnesses in court” The Irish Times 7
December 2010.
[660] “Improved
measures needed for vulnerable witnesses in court” The Irish Times 7
December 2010.
[661]
Report of the Joint Working Group on Mental Health Services and the
Police (Mental Health Commission and An Garda Síochána 2009).
[662] Delahunt “Video
Evidence and s.16(1)(b) of the Criminal Evidence Act 1992” 16 The Bar Review 1
February 2011, at 5.
[663] Delahunt “Video
Evidence and s.16(1)(b) of the Criminal Evidence Act 1992” 16 The Bar Review 1
February 2011, at 5.
[664] Delahunt “Video
Evidence and s.16(1)(b) of the Criminal Evidence Act 1992” 16 The Bar Review 1
February 2011, fn 32, at 5.
[665] Elliott Vulnerable
and intimidated witnesses: A review of the literature (Home Office Research
and Statistics Directorate 1998) at 145.
[666] Elliott Vulnerable
and intimidated witnesses: A review of the literature (Home Office Research
and Statistics Directorate 1998) at 145.
[667] LRC CP 37-2005
at paragraph 4.55.
[668] These options
were examined by the New Zealand Law Commission in its Discussion Paper on
The Evidence of Children and Other Vulnerable Witnesses (Preliminary Paper
26 1996).
[669] Law Reform
Commission of Western Australia Discussion Paper on Evidence of Children and
Other Vulnerable Witnesses (Project No.87 1990) at paragraph 4.83.
[670]
Northern Ireland Law Commission Report on Vulnerable Witnesses in
Civil Proceedings (NILC 10 2011) at paragraph 3.44
[671] Delahunt “Video
Evidence and s.16(1)(b) of the Criminal Evidence Act 1992” (2011) 16 The Bar
Review 1, fn 35, at 6..
[672] Plotnikoff and
Woolfson The Go-Between: evaluation of intermediary pathfinder projects
(June 2007) as cited in Northern Ireland Law Commission Consultation Paper
on Vulnerable Witnesses in Civil Proceedings (NILC 4 2010) at paragraph
6.34.
[673] Northern Ireland
Law Commission Report on Vulnerable Witnesses in Civil Proceedings (NILC
10 2011) at paragraph 3.49.
[674] Plotnikoff and
Woolfson Measuring Up? Evaluating implementation of government commitments
to young witnesses in criminal proceedings (National Society for the
Prevention of Cruelty to Children 2009) at 14.
[675]
Speaking Up for Justice: Report on the Interdepartmental Working
Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal
Justice System (Home Office 1998).
[676]
Speaking Up for Justice: Report on the Interdepartmental Working
Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal
Justice System (Home Office 1998) Recommendation 36 at paragraph 8.7.
[677]
Speaking Up for Justice: Report on the Interdepartmental Working
Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal
Justice System (Home Office 1998) Recommendation 37 at paragraph 8.10.
[678]
Speaking Up for Justice: Report on the Interdepartmental Working
Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal
Justice System (Home Office 1998) Recommendation 38 at paragraph 8.17.
[679]
Speaking Up for Justice: Report on the Interdepartmental Working
Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal
Justice System (Home Office 1998) Recommendation 39 at paragraph 8.24.
[680]
Speaking Up for Justice: Report on the Interdepartmental Working
Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal
Justice System (Home Office 1998) Recommendation 41 at paragraph 8.48.
[681]
Speaking Up for Justice: Report on the Interdepartmental Working
Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal
Justice System (Home Office 1998) Recommendation 47 at paragraph 8.77.
[682]
Speaking Up for Justice: Report on the Interdepartmental Working
Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal
Justice System (Home Office 1998) Recommendation 49 at paragraph 8.80.
[683] Section
16(1)(a)(i) of the Youth Justice and Criminal Evidence Act 1999.
[684] Section
16(2)(a)(i) of the Youth Justice and Criminal Evidence Act 1999.
[685] Section 16(2)(a)(ii)
of the Youth Justice and Criminal Evidence Act 1999.
[686] Section 16(2)(b)
of the Youth Justice and Criminal Evidence Act 1999.
[687] Section 17(1) of
the Youth Justice and Criminal Evidence Act 1999.
[688] Section 17(4) of
the Youth Justice and Criminal Evidence Act 1999.
[689] Section 23 of
the Youth Justice and Criminal Evidence Act 1999.
[690] Section 24 of
the Youth Justice and Criminal Evidence Act 1999.
[691] Section 25 of
the Youth Justice and Criminal Evidence Act 1999.
[692] Section 26 of
the Youth Justice and Criminal Evidence Act 1999.
[693] Section 27 of
the Youth Justice and Criminal Evidence Act 1999.
[694] Section 28 of
the Youth Justice and Criminal Evidence Act 1999.
[695] Section 29 of
the Youth Justice and Criminal Evidence Act 1999.
[696] Section 30 of
the Youth Justice and Criminal Evidence Act 1999.
[697] Section 29(2) of
the Youth Justice and Criminal Evidence Act 1999.
[698] Section 19(3) of
the Youth Justice and Criminal Evidence Act 1999.
[699] Section 16(2) of
the Youth Justice and Criminal Evidence Act 1999.
[700] Mental disorder
is defined as “any disorder or disability of the mind” in section 1(2) of the
Mental Health Act 1983, as amended by the Mental Health Act 2007.
[701] Section 28(1) of
the Youth Justice and Criminal Evidence Act 1999.
[702] Section 28(2) of
the Youth Justice and Criminal Evidence Act 1999.
[703] Section 28(5) of
the Youth Justice and Criminal Evidence Act 1999.
[704] Section 28(6)(a)
or (b) of the Youth Justice and Criminal Evidence Act 1999.
[705] Section
27(4)(ii) of the Youth Justice and Criminal Evidence Act 1999.
[706] Rook and Ward on
Sexual Offences Law & Practice 4th ed (Sweet & Maxwell
2010) at 790.
[707] Northern Ireland
Law Commission Consultation Paper on Vulnerable Witnesses in Civil
Proceedings (NILC 4 2010) at paragraph 6.45.
[708] Northern Ireland
Law Commission Report on Vulnerable Witnesses in Civil Proceedings (NILC
10 2011).
[709] Northern Ireland
Law Commission Consultation Paper on Vulnerable Witnesses in Civil
Proceedings (NILC 42010) at paragraph 6.42.
[710] Northern Ireland
Law Commission Report on Vulnerable Witnesses in Civil Proceedings (NILC
10 2011) at paragraph 3.56.
[711] Section 22 of
the Vulnerable Witnesses (Scotland) Act 2004.
[712] Section 271H of
the Criminal Procedure (Scotland) Act 1995 as inserted by section 1 of
the Vulnerable Witnesses (Scotland) Act 2004 in relation to criminal
proceedings and section 18(1)(e) in respect of civil proceedings.
[713]
Consulting on intermediaries as a special measure for vulnerable
witnesses in Scotland (Government of Scotland Publication 2007) and Consulting
on intermediaries as a special measure for vulnerable witnesses: the use of
intermediaries for vulnerable witnesses in Scotland: report on the analysis of
responses to the consultation (Government of Scotland Publication 2008)
available at www.scotland.gov.uk.
[714] New Zealand Law
Commission Discussion Paper on The Evidence of Children and Other Vulnerable
Witnesses (Preliminary Paper 26 1996) at paragraph 163.
[715] New Zealand Law
Commission Discussion Paper on The Evidence of Children and Other Vulnerable
Witnesses (Preliminary Paper 26 1996) at paragraph 164. See section 79(2)
of the Evidence Act 2006.
[716] Section 23E(4)
of the Evidence Act 1908.
[717] New Zealand Law
Commission Discussion Paper on The Evidence of Children and Other Vulnerable
Witnesses (Preliminary Paper 26 1996) at paragraph 172.
[718] New Zealand Law
Commission Discussion Paper on The Evidence of Children and Other Vulnerable
Witnesses (Preliminary Paper 26 1996) at paragraph 173.
[719] New Zealand Law
Commission Discussion Paper on The Evidence of Children and Other Vulnerable
Witnesses (Preliminary Paper 26 1996) at paragraph 175.
[720] Section
37C(3)(c) of the Evidence Act 1958 (Vic).
[721] Section
21A(2)(d) of the Evidence Act 1977 (Qld).
[722] Section 13(2)(c)
of the Evidence Act 1929 (SA).
[723] Section
21A(2)(c) of the Evidence Act 1939 (NT).
[724] Section
106R(4)(a) of the Evidence Act 1906 (WA).
[725] New South Wales
Law Reform Commission Report on People with an Intellectual Disability and the Criminal Justice System (1996) at paragraph 7.16.
[726]
Victorian Law Reform Commission Sexual Offences: Final Report
(2004) recommendation 42.
[727] Victorian Law
Reform Commission Sexual Offences: Final Report (2004) recommendation
53.
[728] Victorian Law
Reform Commission Sexual Offences: Final Report (2004) recommendation
50.
[729] Victorian Law
Reform Commission Sexual Offences: Final Report (2004) recommendation
113.
[730] Victorian Law
Reform Commission Sexual Offences: Final Report (2004) recommendation
59.
[731] Victorian Law
Reform Commission Sexual Offences: Final Report (2004) recommendation
43.
[732] Victorian Law
Reform Commission Sexual Offences: Final Report (2004) at paragraph
6.35.
[733] Victorian Law
Reform Commission Sexual Offences: Final Report (2004) recommendation
158.
[734] Victorian Law
Reform Commission Sexual Offences Final Report (2004) at paragraph
6.38.
[735] Victorian Law
Reform Commission Sexual Offences: Final Report (2004) at paragraph
6.39.
[736] Sections 6 and
6.1 of the Criminal Code 1985, as amended by section 1 of An Act to
amend the Canada Evidence Act 1998.
[737] Section 715.2 of
the Evidence Act 1985, as amended by section 8 of An Act to amend the
Canada Evidence Act 1998. This section provides for the admission of a
video-taped interview made within a reasonable time after the alleged offence
where a complainant is unable to testify because of a disability.
[738] Section 486(1.2)
of the Criminal Code 1985.
[739] Section 486(2.1)
of the Criminal Code 1985.
[740] Jacobson and
Talbot Vulnerable Defendants in the Criminal Courts: a review of provision
for adults and children (Prison Reform Trust 2009) at 5.
[741] Article 6(2) of
the European Convention on Human Rights.
[742] Article 6(3)(a)
of the European Convention on Human Rights.
[743] Article 6(3)(b)
of the European Convention on Human Rights.
[744] Article 6(3)(c)
of the European Convention on Human Rights.
[745] Article 6(3)(d)
of the European Convention on Human Rights.
[746] Article 6(3)(e)
of the European Convention on Human Rights.
[747]
A Life Like Any Other? Human Rights of Adults with a Learning
Disability (House of Lords/House of Commons Joint Parliamentary Committee
on Human Rights 2008) at paragraph 212.
[748] Jacobson and
Talbot Vulnerable Defendants in the Criminal Courts: a review of provision
for adults and children (Prison Reform Trust 2009) at 8.
[749]
S.C. v United Kingdom [2004]
EWHC 263.
[750] The boy was said
to have a low attention span and cognitive abilities that were consistent with
a child of eight years.
[751]
R (TP) v West London
Youth Court [2005]
EWHC 2583 Admin. Expert evidence put the defendant’s cognitive
ability below a boy of 10 years.
[752]
R (TP) v West London
Youth Court [2005]
EWHC 2583 Admin, at paragraph 7.
[753]
R (TP) v West London
Youth Court [2005]
EWHC 2583 Admin, at paragraph 26.
[754]
S.C. v United Kingdom No. 60958/00.
[755]
Intermediary Procedure Guidance Manual (Criminal Justice System
2005) at paragraph 1.12.
[756]
R (on application of
C) v Sevenoaks Youth Court (2009)
EWHC 3088 (Admin).
[757] Under section
3.10(b) of the Criminal Procedure Rules, the court is required to consider
arrangements which facilitate the participation of the defendant.
[758]
Further Practice Directions Applying in The Crown Court and
Magistrates’ Courts (Ministry of Justice 2007) at part III.30.1-3 available
at www.justice.gov.uk.
[759]
Further Practice Directions Applying in The Crown Court and
Magistrates’ Courts (Ministry of Justice 2007) at part III.30.11 available
at www.justice.gov.uk.
[760]
Further Practice Directions Applying in The Crown Court and
Magistrates’ Courts (Ministry of Justice 2007) at part III.30.12 available
at www.justice.gov.uk.
[761] Northern Ireland
Law Commission Report on Vulnerable Witnesses in Civil Proceedings (NILC
10 2011) at paragraph 3.51.
[762] Section 104 of
the Coroners and Justice Act 2009 inserts section 33(b)(a) in the Youth
Justice and Criminal Evidence Act 1999 to provide for the use of an
intermediary for defendants.
[763] Northern Ireland
Law Commission Consultation Paper on Vulnerable Witnesses in Civil
Proceedings (NILC 4 2010) at paragraph 6.37.
[764]
Re D (Evidence: Facilitated Communication) [2001] 1 FLR 148.