Literature Review on Provision of Appropriate and Accessible ...

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Laws that prohibit sex with people deemed unable to consent to sex
• Laws that prohibit sex with people deemed unable to consent
to sex are based on the need to protect some people who
are so disabled as to be unable to give consent to any sexual
relationship. In Ireland Section 5 of the Criminal Law (Sexual
Offences) Act 1993 falls under this category. Section 5
criminalises sexual activity with women who have a ‘mental
impairment’, which is defined as rendering a person ‘incapable
of living an independent life or of guarding against serious
exploitation’ unless the two parties are married to each other.
Thus, it may be an offence to engage in sexual activity with a
person with an intellectual disability even if the person consents.
Support to People with an Intellectual Disability who are
Accessible
and Appropriate of Provision on <strong>Review</strong> <strong>Literature</strong>
Experiencing Crisis Pregnancy
• 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. [79] 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).
• Other jurisdictions using diagnostic criteria in relation to capacity
to consent to sexual relationships include Western Australia and
forty-five states in the U.S.
Laws that incorporate a functional approach to assessment of
capacity to consent to sexual relations
• The Sexual Offences Act 2003 in England and Wales provides an
example of the functional approach, where capacity to consent
is articulated in terms of a person’s understanding of the nature
and consequences of the act and her/his ability to communicate
choice.
79 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.