Disability Federation of Ireland
Disability Federation of Ireland
Submission to the Department of
Justice and Equality
on the
Discussion Paper on Sexual Offences
against Vulnerable Persons
September 2014
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Disability Federation of Ireland
1) Introduction
Disability Federation of Ireland (DFI) is the national support organisation for
voluntary disability organisations in Ireland who provide services to people with
disabilities and disabling conditions:
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Hidden
Intellectual
Mental Health
Physical
Sensory
Emotional
Neurological
DFI works to ensure that Irish society is fully inclusive of people with disabilities and
disabling conditions so that they can exercise fully their civil, social and human
rights. In pursuit of this vision DFI:
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Acts as an advocate for the voluntary disability sector.
Supports organisations to further enable people with disabilities
There are 132 organisations within membership or as associates in DFI. DFI also
works with a growing number of organisations and groups around the country that
have a significant disability interest, mainly from the statutory and voluntary
sectors. DFI provides:
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Information
Training and Support
Organisation and Management Development
Research and Policy Development
Advocacy and Representation
Networking
DFI represents the disability interest within social partnership through its
participation in the Community and Voluntary Pillar. DFI is a member of the
Disability Stakeholders Group, which works with government to progress the
National Disability Strategy and it is also active in other fora.
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Disability Federation of Ireland
2) Executive summary of the submission
DFI is pleased to make a submission to the Department of Justice and Equality
regarding the recent Discussion Paper on Sexual Offences against Vulnerable Persons
(2014). DFI welcomes the move away from the restrictive legislation which has been in
place since 1993, towards a more nuanced and human rights based set of legislation.
There is much of the proposed legislation contained within the discussion paper which
is positive, including a widening of the set of offences which can be prosecuted to
include non-penetrative offences. Whilst in general this legislation is an improvement
over the existing laws, DFI has some concerns regarding the definition of disability,
how the Act views capacity, and the new offence proposed regarding individuals in
positions of power engaging in sexual acts with those they support.
In addition to these concerns that directly relate to the proposed legislation, DFI would
like to raise the issue of sexual education, which is crucial for the successful
implementation of this, or any other legislation which involves this topic. We also
propose that disability-neutral legislation1 should be the over-arching goal, in order
to ensure that such legislation as it pertains to all people within Ireland is compatible
with the United Nations Convention on the Rights of Persons with Disabilities
(UNCRPD).
Key to note at this juncture is that throughout this paper, different terms are used
(“intellectual disability”, “vulnerable person”, “person with mental health concerns”,
etc.) to describe the group which this proposed legislation refers to. The submission
details the objections which DFI has towards the use of the term “vulnerable” in regards
to the population most affected by this proposed legislation, and in point 4.1 below
proposes the term “at risk” be used if such a definition is needed. This aims to include
any individual who may be more at risk of sexual exploitation for various reasons,
whether that be due to an intellectual disability, mental health concern, acquired brain
injury, etc.
3) Key positives
DFI acknowledges the work undertaken to date by the Government on this sensitive
and contentious issue. Within the proposed legislation there is much improvement on
the 1993 Sexual Offences Act which has, for 20 years, been the cause of great concern
Disability neutral legislation has been proposed by the Centre for Disability Law and Policy, NUI Galway
(and other groups) and works from the basis that victims of sexual offences come from all spheres of
society, and that special legislation is not needed to deal with sexual offences which are perpetrated
against people with intellectual disabilities.
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Disability Federation of Ireland
within the disability community, and in particular within the intellectual disability sector
in Ireland. As outlined above, the unforeseen impact of that legislation has been that
people with intellectual disabilities and their supporters have found it more difficult to
fully explore the topic of intellectual disability and sexuality. There is a chance here to
ensure that the legislation (and allied government policy) takes into account the
concerns of people with intellectual disabilities and other disabling conditions which
this legislation pertains to. There is a chance for Ireland to lead in this regard, and this
is not a chance which should be squandered.
The following section highlights the key areas of the discussion paper and proposed
legislation which DFI supports. DFI is fully committed to the full implementation of the
UNCRPD, and therefore supports legislation which enables that ratification and
implementation.
3.1) Purpose
The purpose of the proposed legislation as outlined sets the context- this includes
ensuring that all sexual offences are covered2, that sexual expression and relationships
between people with intellectual disabilities are not automatically criminalised; and
attempting to ensure that the legislation is compliant with the UNCRPD. DFI welcomes
these key elements which underpin the proposed legislation, however we have
concerns regarding the level of realisation of these goals within the scope of the
discussion paper and proposed legislation. These concerns are more fully explored in
later sections.
3.2) Acknowledgement of increased likelihood of sexual exploitation
People with intellectual disabilities are acknowledged to be more likely to be exploited
for sexual reasons than other members of the population3. There may be many reasons
for this, however it is still necessary that there are protections in place for individuals
who are “at risk” of sexual exploitation4. DFI welcomes the acknowledgement of this
within the discussion paper.
Previous legislation was primarily concerned with penetrative offences
M McCarthy, Sexuality and Women with Learning Disabilities (Jessica Kingsley, 1999).
4
This category of people “at risk” is not confined to people with intellectual disabilities, but may
encompass many disparate groups, as outlined elsewhere in this submission.
2
3
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Disability Federation of Ireland
3.3) Inclusion of more offences
DFI welcomes the proposed expansion of offences included within the legislation- the
existing legislation is restricted to offences involving sexual intercourse or buggery.
Ensuring that offences are not restricted to penetrative acts ensures gender neutrality
regarding the perpetrators that can be prosecuted under this legislation. It also
acknowledges the wide spectrum of sexual offences that can be committed, and the
impact of these offences upon an individuals’ life.
3.4) Formal acknowledgement of relationships between people with Intellectual
disabilities
Critically important to the success of this revised legislation is the inclusion of specific
acknowledgement of the rights of people with intellectual disabilities to have loving
relationships, which include mutually agreed sexual expression. DFI is pleased that this
is explicitly referenced in the preamble to the proposed legislation.
3.5) New offence- position of trust
The introduction of a new offence under Head X.4 (Sexual acts involving a vulnerable
person and a person in a position of trust and authority) is welcomed by DFI. It is vital
that the position of power which some individuals have over people with intellectual
disabilities and/ or mental health difficulties is formally recognised, along with the
greater possibility of sexual exploitation. However, DFI has a concern regarding the
definition of a person under this heading- see point 4.3 below.
4) Key concerns
4.1) Definition of “vulnerable person”
A key concern of DFI is the definition used within the proposed legislation, of a
“vulnerable person”. Whilst this language is still being used within the intellectual
disability sphere, many groups and organisations are turning away from this
terminology, towards more empowering language. Whilst it must be acknowledged
that people with intellectual disabilities are more at risk of abuse5, we suggest the use
of more appropriate terminology to be used through this legislation.
The Connect People Network (CPN)6, an organisation of self-advocates and supporters
working within the area of education in the area of sexuality and intellectual disability,
5
6
Ibid.
www.connectpeoplenetwork.com
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Disability Federation of Ireland
have begun using the term “people with extra support needs” to describe themselves
and those who, ostensibly, this legislation would pertain to. Previous consultation
papers from various groups7 on this subject have suggested and lent support to the
use of the term “adults at risk” rather than the term “vulnerable” or “intellectually
disabled”, and DFI would stand behind either of these definitions, which in turn would
also go some way towards disability-neutral legislation, taking into account other at
risk groups of the population, not just those with intellectual disabilities and/ or mental
health concerns.
4.2) Capacity
It is the view of DFI that there is not sufficient attention paid to the issue of capacity
to consent within the proposed legislation or the explanatory preamble. Whilst DFI is
in support of disability neutral legislation8, within the context of this proposed
legislation it is unclear how consent can be ascertained in certain circumstances. It is
also not clear if this will lead to the situation whereby adults with intellectual disabilities
and/or mental health concerns will be held to a much higher standard of capacity to
consent than other members of the population. We support the view of the Centre for
Disability Law and Policy when they state (in their 2011 submission on the topic to the
Law Reform Commission9) that;
“The existence of a specific offence which explicitly or implicitly requires
people with disabilities to meet a higher standard of consent before engaging
in sexual activity therefore runs contrary to the underlying principles of the
(UN) Convention.”
- (2011, P. 5)
In particular, DFI is concerned that holding people with intellectual disabilities to a
higher standard regarding consent in such a manner contradicts the general principles
as outlined in Article 3, and in particular the principle of Equality and NonDiscrimination (Article 5), and that of Freedom of expression and opinion, and access
to information (Article 21)10.
Health Services Executive, Response on Behalf of Directorates and Programmes of the HSE to the Sexual
Offences and Capacity to Consent Consultation Paper (Dublin, 2012)
8
See section 5.1 below
9
Centre for Disability Law and Policy and NUI Galway, “Submission on Law Reform Commission
Consultant Paper: Sexual Offences and Capacity to Consent", 2011
10
United Nations, “United Nations Convention of the Rights of Persons with Disabilities,” 2006.
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Disability Federation of Ireland
4.3) New offence regarding “a person in a position of trust and power”
The creation of a specific offence which directly addresses the inequality of power
which people with intellectual disabilities (and other groups at risk of sexual
exploitation) experience with regards to those who support them is to be welcomed.
However, DFI is disappointed that the offence does not apply to unpaid and
community supports, such as organisational volunteers, neighbours, sports and
recreation tutors, etc. The definition within Head X.111 of a “person is a position of trust
and authority” includes the following note:
“This is intended to identify those who as part of their job or through paid
contracts interact with vulnerable persons and have a position of power and
trust and authority in respect of that person because of that vulnerability […]
It is only intended to cover current paid interaction”.
– (2014, P. 6)
This does not take into consideration the considerable number of volunteers and
unpaid supporters who have daily contact with people with intellectual disabilities
and/or mental health concerns. The question is raised whether this offence will be
applicable to these individuals- even though in many cases the level of authority and
influence that regular volunteers and community supporters can be significant and
equitable to paid staff supports. It is noted that while current legislation which covers
incestuous offences will be applicable to family members who commit sexual offences
against people with intellectual disabilities, it is clear that there is still a gap regarding
the levels of power and influence that individuals can hold over people with intellectual
disabilities. This is particularly noteworthy, taking into consideration the move away
from congregated residential settings and increased community participation
currently underway. These changes are taking place through the implementation of
the Value for Money framework12 and related policy changes, and there will therefore
be a greater emphasis on networks of support that will consist of community and
voluntary supports drawn from across society.
Department of Justice, Equality & Law Reform, “Discussion Paper on Sexual Offences against
Vulnerable Persons,” 2014.
12
Dept. of Health, Value for Money and Policy Review of Disability Services in Ireland National
Implementation Framework (Dublin, 2012).
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Disability Federation of Ireland
5) Comments & Suggestions
Outlined above are the key concerns of DFI related to this proposed legislation and
discussion paper. It is clear that there are both positives and negatives contained within
the paper, however there are two major issues which require further highlighting.
5.1) Disability neutral legislation
In their 2011 submission to the Law Reform Commission regarding sexual offences
and capacity to consent, the Centre for Disability Law and Policy, NUI Galway argued
strongly for the introduction of disability neutral legislation regarding sexual offences
and capacity13.
“…in order to respect the freedom, rights and dignity accorded to people with
disabilities, all sexual offences legislation should be made disability-neutral.”
- (2011, Pg. 3)
The basis of such disability-neutral legislation is the provision within the UNCRPD that
people with disabilities should not be treated differently before the law14. The existence
of separate legislation regarding people with intellectual disabilities and sexual
offences is discriminatory and promotes a sense of people with disabilities being
different and ‘vulnerable’ in other areas of life, as well as in the area of sexuality and
sexual expression. It forces the issue of a victim’s disability to become a focus of
interest, rather than the offence which was committed.
The effect of disability neutral legislation (which does take into consideration the
increased likelihood of people with intellectual disabilities and other “at risk” groups
to experience sexual abuse and sexual misconduct15) would be to ensure that people
with intellectual disabilities and/ or mental health concerns are not stigmatised and
punished for being disabled. The current proposed legislation has the effect of
contravening the social model of disability, which the government has based its policy
on, and pledged to follow, for many years now16.
Centre for Disability Law and Policy and NUI Galway, “Submission on Law Reform Commission
Consultant Paper: Sexual Offences and Capacity to Consent" 2011.
14
Article 5.1: States Parties recognize that all persons are equal before and under the law and are entitled
without any discrimination to the equal protection and equal benefit of the law.
15
For example by including the offence of “Abuse of Relationship of Dependence or Trust” as proposed
by Sen. K. Zappone in her Criminal Law (Sexual Offences) (Amendment) Bill (2014)
16
Department of Justice, Equality & Law Reform, National Disability Strategy (Dublin, 2004); Dept. of
Health, Value for Money and Policy Review of Disability Services in Ireland National Implementation
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Disability Federation of Ireland
5.2) Education
One of the key elements in ensuring the safety of adults who are termed “vulnerable”
is education17. It is critical to provide a comprehensive sex education programme as
part of the policy surrounding this proposed legislation. A large proportion of adults
with intellectual disabilities have limited or no access to sex and relationship education
in Ireland18. There are many reasons for this (which are beyond the scope of this
submission to delineate and detail) but this education must not only include people
with intellectual disabilities themselves, but also their staff supporters and families.
There are many examples of adult men and women not understanding the basics of
reproduction, consent, bodily integrity, and the formation of loving relationships.
Ensuring that a comprehensive and appropriate education programme is provided to
all citizens of Ireland is vitally important to ensuring that Irelands policy is compatible
with the UNCRPD- this includes access to information about family planning and
parenting, among other issues.
6) Conclusion
The 1993 Criminal Law (Sexual Offences) Bill is a piece of legislation which was initially
provided to ensure the safety of people with intellectual disabilities. While this is a
commendable endeavour, it is clear that it has had the unfortunate side effect of
restricting the sexual expression of adults with intellectual disability, and other groups.
It is clear also that policy and attitudes to disability and sexuality need to move from
one of protection and paternalism to one that is in line with the UNCRPD, and which
is cognisant of the rights of people with intellectual disabilities and/ or mental health
concerns.
DFI has detailed the key concerns which have arisen from the discussion paper and
proposed legislation in this area. We commend the Department in their inclusion of a
wider range of offences, the acknowledgement of the rights of people with intellectual
disabilities to enter into loving and mutually consenting sexual relationships, and the
inclusion of a new offence addressing the exploitation of people with intellectual
disabilities by individuals who hold positions of trust and influence. We are concerned,
however, by the language and definitions used within the legislation, the insufficiently
Framework; Department of Health & Social Welfare, Towards a Full Life: Green Paper on Services for
Disabled People (Dublin, 1984).
17
W.R. Linsday et al., “Increases in Knowledge Following a Course of Sex Education for People with
Intellectual Disabilities,” Journal of Intellectual Disability Research 36, no. 6 (1992): 531–39.
18
Margaret Allen and Deirdre Seery, The Current Status of Sex Education Practice for People with an
Intellectual Disability in Ireland (Dublin: Irish Sex Education Network & The Sexual Health Centre, 2007).
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addressed issue of consent, and that the proposed offence of abuse of power is
seemingly restricted to individuals who are paid to support people with intellectual
disabilities.
DFI proposes that the legislation concerning sexual offences be disability-neutral,
meaning that the focus is upon the defendant and the offence committed, rather than
the disability or capacity of the victim. Vital to the success of any legislation and policy
in this area is the provision of sexual education to all individuals, with due regard to
their age and abilities. All people with disabilities are entitled to the information and
education to make their own decisions regarding taking part in sexual activities, and
the consequences of that decision.
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Disability Federation of Ireland
Representing the interests and expectations of people with
disabilities to be fully included.
The Disability Federation of Ireland (DFI) represents the interests and the
expectations of people with disabilities to be fully included in Irish society. It
comprises organisations that represent and support people with disabilities and
disabling conditions.
The vision of DFI is that Irish society is fully inclusive of people with disabilities and
disabling conditions so that they can exercise their full civil, economic, social and
human rights and that they are enabled to reach their full potential in life. DFI’s mission
is to act as an advocate for the full and equal inclusion of people with disabilities and
disabling conditions in all aspects of their lives.
There are over 120 organisations within membership or as associates of DFI. DFI also
works with a growing number of organisations and groups around the country that
have a significant disability interest, mainly from the statutory and voluntary sectors.
DFI provides:

Information

Training and Support

Networking

Advocacy and Representation

Research and Policy Development / Implementation

Organisation and Management Development
DFI works on the basis that disability is a societal issue and so works with Government,
and across the social and economic strands and interests of society.
Disability Federation of Ireland, Fumbally Court, Fumbally Lane, Dublin 8
Tel: 01-4547978, Fax: 01-4547981
Email: info@disability-federation.ie Web: www.disability-federation.ie
The Disability Federation of Ireland is a company limited by guarantee not having
share capital, registered in
Dublin. Registered No. 140948, CHY No 6177
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