Literature Review on Provision of Appropriate and Accessible ...

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3.11.2 Criminalising sexual activity between persons with an
intellectual disability
In its report on sexual offences, the Law Reform Commission (LRC,
1990) recognised <strong>Literature</strong> that <strong>Review</strong> a sexual on relationship Provision of Appropriate between persons and Accessible with mental
handicap or Support mental to illness People should with an not Intellectual of itself constitute Disability who an are offence.
Experiencing Crisis Pregnancy
However, this proposal was not included in the subsequent legislation,
the 1993 Act. Therefore, it is an offence to engage in sexual activity with a
person with an intellectual disability (that comes within the definition of
mental impairment), even if the person consents.
The Law Reform Commission (LRC 2005) noted that a regrettable effect
of Section 5 of the 1993 Act is that outside a marriage 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 (McAuley and McCutcheon, 2000:
515). The law, therefore, effectively blocks a mutually consensual sexual
relationship between persons considered to have a limited decisionmaking
ability. Similarly, Graydon et al. (2006) have been critical of the
protective nature of Section 5 of the 1993 Act for the fact that outside
of a marriage context it is an offence for any person to have sexual
relations with a person incapable of protecting themselves against sexual
exploitation.
It has been argued that if sexual development and reproduction are
to be possible, it must be legally acceptable for people with a ‘mental
handicap’ to enter into sexual relationships. [65] In this regard, the
Law Reform Commission notes that fear of facilitating the commission
of a criminal offence on the part of parents and carers may prevent
relationships between two adults with intellectual disability developing
even where they have capacity to consent and there is no element of
exploitation (LRC, 2005: 142).
O’Malley (1996: 133) has commented that the criminal law has a
limited capacity to achieve a balance between protection and sexual
65 Gunn Medical Law (1986) 255 at 257. Quoted in Law Reform Commission Report
on Sexual Offences Against the Mentally Handicapped (LRC, 1990) at paragraph
12.