Literature Review on Provision of Appropriate and Accessible ...

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relationships of various kinds, including sexual, with the other
person. In principle, whenever the state sets up rules for the
behaviour of the individual within this sphere, it interferes with
respect for private life and such interference must be justified in
the light of Article 8 (2). [58]
Support to People with an Intellectual Disability who are
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Experiencing Crisis Pregnancy
Keywood (2003b) observes that the right to sexual expression has long
been recognised as a facet of the basic right set out in Article 8. [59]
However, Evans and Rodgers (2000), writing in the UK context, argue
that the civil law is not consistent in its approach as to the ability of an
individual to engage in sexual intercourse or other sexual acts, and
whether rights to do so exist in law.
Meanwhile, criminal law in Ireland imposes several offences that limit
the exercise of any perceived rights granted through civil law. When
considering personal relationship issues, capacity to enter a sexual
relationship is a matter which is ruled by the criminal law, which requires
that to enter into a sexual relationship each of the parties must be of
age and consent to the act. The question of the capacity of people with
intellectual disabilities to engage in lawful sexual relationships arises.
As stated previously, Section 5 of the Criminal Law Sexual Offences Act
1993 criminalises sexual intercourse with a person who has a mental
impairment as defined.
3.3 Protection from exploitation versus need for autonomy
The Law Reform Commission (LRC), in its report on vulnerable adults
and the law (LRC, 2006), noted that the subject of the capacity of adults
with limited decision-making ability to enter into relationships is a
difficult one, which has yet to be widely explored in Irish society. The
Commission acknowledges that historically the law has approached
this subject with ‘a form of benign paternalism based on the concept of
what is considered to be in their best interests’ (LRC, 2005). The difficulty
in designing legislation that would provide for a balance between the
need to protect vulnerable individuals from exploitation and the need to
respect an individual’s autonomy and capacity to engage in voluntary and
58 (1997) EHRR 244.
59 Based on an English case, Dudgeon v United Kingdom (1982).