Katherine Zappone (Independent) | Oireachtas source

I wish to echo the Acting Chairman's eloquently stated sentiments in welcoming the Minister for Justice and Equality, Deputy Frances Fitzgerald, in her new portfolio. That role is so appropriate for her.
The Bill that I have such a privilege to introduce this afternoon was inspired by the voices of people with disabilities in Ireland. Those voices are telling stories of loving relationships that are crushed, or never even given the chance to develop, because of stigma and prejudice against people with intellectual disability. Those voices, which also belong to some of those in the Visitors Gallery today, are calling for the freedom to love and to express love on an equal basis with others.
The right to relationships and sexuality goes to the core of what it means to be human. Only this morning, I received an e-mail from the parent of a very young boy with Down's syndrome. After expressing his gratitude for this Bill this parent wrote:

While this doesn't affect my son yet, as he is far too young, I have been aware of the current legislation for quite some time. It is completely outdated and harks back to the time of anyone with an intellectual disability being segregated, isolated and not allowed the freedom to live their life, their way ... I would hate my son to be at risk of prosecution ... for finding a happy, fulfilling and active relationship in time - actually, maybe, when he's in his thirties.

As the Minister is aware, section 5 of the Criminal Law (Sexual Offences) Act 1993 prevents people with intellectual disabilities from having sexual relationships before marriage. While the initial intention of this law was to provide protection from abuse, it has instead created a painful, chilling effect on loving relationships. Although the law is relatively infrequently utilised in the criminal context, the mere presence of such a discriminatory law on the Statute Book has caused a widespread and damaging mindset against people with intellectual disabilities engaging in romantic relationships. This conflicts with international human rights law and Irish constitutional law.

Recently, self-advocates with intellectual disability have given poignant accounts of the effect of these laws on their lives through the Inclusive Research Network, Connect People Network, some of whose members are present in the Visitors Gallery, the RTE documentary "Somebody to Love", which powerfully captured the artistry of the Blue Teapot Theatre Company in Galway, a number of whose members are also present, and the wider self-advocacy national platform and movement. These accounts inspired me to take action and create this Bill, which aims to change the current discriminatory laws and give people with intellectual disabilities the freedom to love. One could say, therefore, that art and advocacy have influenced politics in this case. In lay person's language, the Bill could be, to take as the Title, the right to love Bill - that is the hashtag - or the right to romance for people with intellectual disabilities Bill.

I acknowledge the research and technical support I have received in the drafting of the Bill from Dr. Eilionóir Flynn and Dr. Anna Arstein-Kerslake of the Centre for Disability and Law at NUI Galway, both of whom are in the Visitors Gallery, and Dr. Brian Hunt. I also thank the Leader for allowing me to introduce a Private Members' Bill at this time.

I am aware that the Department is reviewing the Criminal Law (Sexual Offences) Act and my Bill is offered to support that process. It has been designed with and for those on whom it impacts and according to the best international standards, including the United Nations Convention on the Rights of Persons with Disabilities. This is an opportunity for Ireland to become a world leader in securing the right to relationships for people with disabilities.

The aims of the Bill are threefold, namely, to eliminate discrimination on the basis of disability; to provide protection from abuse for all individuals by introducing a new offence, "abuse of a position of dependence and trust"; and to create a statutory definition to consent to sex. As a starting point and to ensure non-discrimination, it was clear that section 5 needed to be removed from the Act in its entirety. International human rights standards and Irish constitutional law do not permit such blatant discrimination against people with intellectual disabilities. In addition, in accordance with the UN Convention on the Rights of Persons with Disabilities, the Bill specifically and intentionally avoids any functional test of capacity, as it is known in legal terms, to consent to sex.

These tests generally require that the individual understood and appreciated the nature and consequences of the act and could use and weigh information relevant to the Act prior to the sexual act. Even in jurisdictions where their application is not specifically restricted to people with intellectual disability, these tests are disproportionately applied to people with intellectual disability. This occurs formally in courtrooms and informally when service providers and others believe they can require people with intellectual disabilities to pass such a test before they will support or facilitate their relationships. In addition, these tests do not accurately reflect how sexual decision making occurs. If we were all held to the standard of understanding and appreciating the nature and consequences of sexual acts prior to engaging in them, much of our sexual activity would be criminalised. For this reason, the Bill aims to eliminate such tests to ensure people with intellectual disabilities are not discriminated against by being held to a higher standard of sexual decision making than we are.

The Bill creates an offence for people in a position of authority or trust who abuse their position for sexual purposes. This reflects a recommendation of the Law Reform Commission.

This offence of abuse applying to people who are in a position of trust or authority is an attempt to respect people with intellectual disabilities as individuals while acknowledging that they, like anybody else, may consent to sexual activity. The offence is included to provide the necessary protection while ensuring that right is respected.

As the Minister is well aware, the focus of criminal law generally is on the perpetrator and ensuring the law is appropriately crafted to hold people responsible for their criminal actions. We took that into account in the Bill. However, the purpose of criminal law also is to see that justice is served. The mere existence of the criminal law encompasses much more than courtrooms, law enforcement and the perpetrators of crime. The codified law permeates the minds and social consciousness of wider society and has the power to affect the daily lives of individuals. We have seen this effect in respect of section 5 of the 1993 Act. Its most damaging effect has not been in the criminal justice system but in the daily lives of people with intellectual disabilities. As a consequence of that provision, community service providers, family members and others have believed that they can or must prevent people with intellectual disabilities from having relationships. This Bill aims to end that situation, to ensure justice is truly served and to prevent the criminal law from acting as a barrier to the rights of people with disabilities.

The proposed section 5A of the 1993 Act, as inserted by section 1 of this Bill, aims to provide a statutory definition of consent in order to respect the sexual agency of all actors and criminalise sexual acts that are not agreed upon or understood by all parties. This provides a nuanced, meaningful and relatively straightforward definition of consent that is inclusive of people with disabilities. It is intended to apply to all existing sexual offences that provide for a defence of consent. There has been a great deal of debate about the merits of including a statutory definition of consent to sex in Irish law. My view is that it must be done. In fact, it is a crucial addition to ensure full equality before the law, especially for people with disabilities. The goal of the provision is to set out fundamental principles to guide courts and jurors when determining whether valid consent was given in particular circumstances and thereby eliminate the need for a functional test of capacity that is discriminatory.

The Bill provides a test of consent which everybody can undergo. Rape Crisis Network Ireland and the Law Reform Commission support the inclusion of a statutory definition of consent in sexual offences legislation. The Minister has the power to ensure it is done. The guidance on determining consent provided in the proposed section 5A of the 1993 Act includes a requirement that is simple, namely, that there must be agreement and understanding by both parties before engaging in a lawful sexual act.

The proposed subsection 5A(5), to be inserted in the 1993 Act by way of section 1 of this Bill, provides that in determining whether consent was validly given, a person's mental impairment shall not be a determinative factor. This requirement reflects the obligations contained in the Convention on the Rights of Persons with Disabilities, especially the obligation under Article 12 which has been interpreted by the UN committee to mean that "perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity". In other words, legal capacity cannot be denied on the basis of a person's mental capacity.

In summary, this short Bill seeks to replace a section of the current Act, to insert a new offence and to add a statutory definition of consent to sex. Taken together, these provisions will ensure that Irish legislation on sexual offences is disability neutral, that is, that no separate offences exist which apply only to persons with disabilities and no higher standards are imposed on persons with disabilities than those imposed on the general population. This is essential to end the stigmatisation of persons with disabilities and ensure full equality. The Bill represents an attempt at a legal innovation to ensure a proper balance is achieved between respect for individual autonomy and legal capacity and the need to ensure protection against exploitation and abuse.

I repeat the terms "respect" and "protection" - the Act refers only to protection but not respect.

I remain open to discussing ways of accomplishing these important goals of equality and protection against abuse by introducing other innovations, but not at the expense of the principles that I have identified as core to the Bill. I thank the Minister for Justice and Equality, Deputy Fitzgerald, and the officials in the criminal law reform unit who very graciously met me last week, for their consideration of the Bill and I look forward to the Minister's response.