Legislating Consent

Abstract

In this article, we draw on our experiences of law reform in Ireland to explore how to create a definition of consent to sex that is inclusive of people with cognitive disabilities. Using critical disability studies and feminist theory, we set out the context in which capacity to consent to sex law is currently operating. We critique the law on the basis that it holds people with cognitive disabilities to a different standard of sexual decision-making than others. We tell the story of the movement in Ireland to reform such law and our experiences working collaboratively with artists, disabled people’s organizations and parliamentarians to achieve change.

Keywords

Consent disability sex

Introduction

Sex and sexuality is an important part of personhood and identity. Recent scholarship has affirmed that people with disabilities must have equal recognition of legal agency in all areas of life – including sexual agency (Flynn and Arstein-Kerslake, 2014). However, the criminal law in many jurisdictions has assumed that persons with disabilities, and women with cognitive disabilities in particular, are vulnerable to sexual exploitation. As a result, it has prioritized the protection of people with cognitive disabilities over the recognition of their sexual agency.¹

The criminal law often seeks to provide this protection in the form of separate criminal offences that only apply where the complainant has a cognitive disability and where the complainant is not regarded as capable of providing valid consent to sex. These laws presume that people with cognitive disabilities are vulnerable and require that their ability to consent to sex be demonstrated, before their consent will be regarded as valid.² In the past decade, in many countries, people with disabilities themselves have begun to critique these laws. With the support of allies, they have begun to develop concrete proposals for law reform. These proposals, such as the one we helped to develop in Ireland, seek to ensure that rape and sexual offences law is disability sensitive and non-discriminatory.

We partnered with people with disabilities and allies in Ireland to develop a definition of consent to sex that can accommodate the diverse ways in which people with disabilities, and others, communicate and make decisions about sex. Throughout this process, it became clear that reform can and should take as its starting point the views of people with disabilities and their grass-roots advocacy organizations. This approach has the potential to lead to more sustainable, inclusive and effective rape and sexual offences law that serves the whole population and provides recognition of people with disabilities as sexual agents.

Setting the Context: Disability and Sexual Violence

Feminist scholarship has documented the history of rape and sexual violence as a tool of oppression both in the larger societal realm (MacKinnon, 1994) and in interpersonal relationships (Copelon, 1993). Rape and sexual offences law has often been constructed either in a domineering way that leaves sexual power in the hands of men (Anderson, 1998; Ryan, 1995) or in a paternalistic way to ‘protect’ women (Schulhofer, 1992). Many feminist scholars have discussed these issues in depth (Estrich, 1987); however, much of the feminist literature on rape and sexual offences has overlooked the perspectives of people with disabilities. This is particularly unfortunate because studies have shown that people with disabilities, especially women with disabilities, experience sexual violence at a higher rate than people without disabilities (Plummer and Findley, 2012; Young et al., 1997). Women with disabilities have fought for their right to be treated equally as sexual agents (Morris, 1991) and to equal protection from sexual violence. Many disability activists have argued that people with disabilities also have a right to be free from disproportionate interferences into their sexual lives (Shakespeare et al., 1996). This requires a delicate balancing of protection from sexual abuse and respect for sexual agency.

Women with disabilities have long been viewed as ‘vulnerable’ individuals who must be protected from sex and who cannot be trusted to protect themselves (McCarthy, 1999). Some women with disabilities, particularly women with cognitive disabilities, may actually be vulnerable to sexual abuse. However, vulnerability is often caused by the factors such as poverty, social isolation, dependency and misunderstandings about appropriate intimate relationships, which are also risk factors for sexual abuse in the general adult population (Finkelhor et al., 1990). Segregation in institutions or other congregated settings perpetuate power imbalances and leave people with disabilities socially isolated with little recourse to the outside world (Goffman, 1961). Vulnerability to sexual violence is also often caused by a lack of accessible sexual education (Dukes and McGuire, 2009). Many people with disabilities do not receive sexual education because they are in segregated education settings where sexual education is not offered, or it is so altered as to not reflect the reality of the sexual lives of individuals with disabilities (Whitehouse and McCabe, 1997). People with disabilities and their representative organizations continue to advocate for change in sexual education and the social conditions such as institutionalization that create vulnerability to sexual violence (Connect People Network, 2013).

There is growing momentum for reform in this area. Self-advocacy groups of people with cognitive disabilities all over the world continue to identify relationships and sexuality as a priority issue for social change.³ In addition, the 2006 Convention on the Rights of Persons with Disabilities (CRPD) provides protection for the right to legal agency (Article 12), respect for relationships (Article 23) and freedom from abuse (Article 16). People with disabilities, and their allies, can now draw on the CRPD to substantiate their arguments for change – and this was an important strategy for legislative reform in Ireland, which we discuss further below. Prior to outlining the movement for reform in Ireland, we will set out the framework for reform by describing the role of human rights law in addressing this issue – specifically focusing on the CRPD.

The Role of Human Rights Law in Recognizing the Sexual Agency of People With Disabilities

The CRPD was drafted with the unprecedented collaboration of disabled people’s organizations (DPOs). It contains several articles that are directly relevant to the sexual lives of people with disabilities. These articles were drawn on in the development of the reform in Ireland, which we discuss further below.

Article 12 of the CRPD enumerates the right to equal recognition before the law of people with disabilities. This includes the right to equal recognition as a person before the law (paragraph 1), the right to legal capacity on an equal basis (paragraph 2) and the state obligation to provide access to support for the exercise of legal capacity. The right to legal capacity on an equal basis includes both the right to be a holder of rights and the right to be a legal agent (McSherry, 2012). The recognition of an individual’s capacity to consent to sex is a recognition of that individual’s legal agency, which is protected by the right to legal capacity on an equal basis in Article 12.

Capacity to consent to sex law varies between jurisdictions. It is generally contained in legislation or common law that delineates a test for the assessment of an individual’s potential to understand the relevant sexual acts.⁴ Where an individual is found to have lacked the potential to understand and agree to the sexual acts, she is deemed to lack capacity to consent. As such, her legal capacity and legal agency are not recognized – at least at the moment in time that the sexual acts occurred. These laws are often explicitly focused on or disproportionately applied to people with cognitive disabilities. This creates a discriminatory barrier for people with cognitive disabilities engaging in sexual activity that does not exist for people without disabilities.

The concept of ‘understanding’ is, and will continue to be, an important part of our legal system. The right to legal capacity in Article 12 does not seek to minimize this. Rather, it seeks to ensure that when the law is searching for the existence of understanding, or ‘free agreement’ between individuals, it does so on an equal basis for people with and without disabilities. Where capacity to consent to sex law has the power to deny legal capacity, it should therefore ensure that it only denies legal capacity to people with disabilities on an equal basis with others (Dhanda, 2007, 2012; Flynn and Arstein-Kerslake, 2014). Therefore, all capacity to consent to sex laws that apply solely to people with disabilities are de facto non-compliant with Article 12.

Article 16 CRPD describes the right to freedom from violence, exploitation and abuse of people with disabilities. Denials of capacity to consent to sex are generally made in an effort to protect survivors of sexual abuse. They are intended to ease prosecution because there is no need to prove the non-existence of consent if the prosecutor can prove that the individual did not have the potential to consent in the first place.⁵ However, laws that are constructed to deny sexual agency of people with disabilities in order to provide this prosecutorial tool may do more harm than good in the stigma they perpetuate by denying the sexual agency of these groups.

Article 23(1) CRPD requires that States Parties take ‘effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others…’ This Article should be interpreted to require the elimination of discrimination in matters relating to sexual relationships. In order to achieve non-discrimination in sexual relationships, people with disabilities must have their legal capacity to consent to sex – their right to sexual agency – respected on an equal basis with others.

The right to sexual agency has not perfectly found its place in human rights law (Shakespeare, 2015). However, the right to legal capacity and the state obligation to eliminate discrimination in matters relating to relationships in the CRPD provide a solid foundation for the evolution of the right to sexual agency for people with disabilities. The right to be free from abuse creates an impetus to ensure that rape and sexual offences law sufficiently protects people with disabilities. Balancing these rights requires rape and sexual offences law to respect the right to sexual agency on an equal basis for people with disabilities. This can ensure compliance with human rights law and may also be the best way to provide protection from sexual abuse through empowerment of people with disabilities in their sexual lives. In the following section, we consider how existing rape and sexual offences law is currently applied to people with disabilities in ways that restrict or deny sexual agency in order to set the context for reform in this field.

Existing Rape and Sexual Offences Law As Applied to People With Cognitive Disabilities

Rape and sexual offences law, and its impact on people with cognitive disabilities, varies between jurisdictions. Some jurisdictions, like Ireland, retain separate offences that only apply when the complainant has a cognitive disability (Criminal Law (Sexual Offences) Act 1993, section 5). This offence does not recognize consent as a defence to sexual intercourse, creating a strict liability offence, similar to that of statutory rape. Such law, which applies only to people with cognitive disability, conflicts with Article 12 of the CRPD, described above.

In rape and most sexual offences involving adults, consent is generally recognized as a defence. However, most jurisdictions recognize that where an individual ‘lacks capacity’ to consent to sex, the sexual act will be criminalized. Tests of capacity to consent to sex are generally contained in legislation or common law that delineates a test for the assessment of an individual’s potential to understand the relevant sexual acts.⁶ Where an individual is found to have lacked the potential to understand and agree to the sexual acts, she is deemed to lack capacity to consent. As such, her legal capacity and legal agency is not recognized – at least at the moment in time that the sexual acts occurred. The law deems her to not have been a legally recognized decision-maker. Therefore, consent could not exist because consent can only exist where there is a legally recognized agent to give such consent. These laws are often explicitly focused on or disproportionately applied to people with cognitive disabilities. This creates a discriminatory barrier for people with cognitive disabilities engaging in sexual activity that does not exist for people without disabilities. Again, this seems inconsistent with human rights law that requires non-discrimination in matters relating to relationships (Article 23(1) CRPD) and equal recognition of legal capacity (Article 12) of people with disabilities.

In Ireland, there is a widespread recognition that the existence of a separate offence for complainants with cognitive disabilities has not led to increased prosecutions. It has, however, had a ‘chilling’ effect on the sexual expression of people with cognitive disabilities, posing additional barriers for people who require support to exercise their sexual agency (Law Reform Commission, 2013). This is the context within which calls for legal change have emerged from a number of disability groups that clearly identify the discriminatory impact of the existing law on the sexual expression of people with disabilities (Connect People Network, 2013; Minogue and Hopkins, 2012).

Setting the Context for Social Change – Critiques of the Existing Law

Prior to examining the existing law in Ireland and the efforts of artists and activists to achieve social change, it is important to provide some background on the sociopolitical context in Ireland through which this change has occurred. Social and legislative change in Ireland on issues of sexuality and reproductive freedom has been fraught and complex, given the legacy of the relationship between the Catholic Church and the State (Considine and Dukelow, 2009). Existing sexual offences law in Ireland developed in a context where people with disabilities were viewed as vulnerable individuals who needed to be protected rather than as sexual agents who could make decisions regarding sexual consent.

The majority of people with learning disabilities in Ireland continue to receive social care and daily support from charitable organizations founded with a religious ethos, which are funded by the State (Power, 2013). This can compromise individuals’ opportunities to express their sexuality and form sexual relationships (Ryan and McConkey, 2000). However, even where disability services take a progressive approach to sexuality and relationships, the current criminal law remains a significant barrier to supporting people with disabilities in Ireland to express their sexuality.

The current law in Ireland criminalizes sexual intercourse with a ‘mentally impaired person’. The definition of ‘mental impairment’ is that the person is ‘suffering from a disorder of the mind, whether through mental handicap or mental illness, which is of such a nature or degree as to render a person incapable of living an independent life or of guarding against serious exploitation’ (Criminal Law (Sexual Offences) Act 1993, section 5). The only defence available is that the parties are married, and consent is not a defence.

The Law Reform Commission played a central role in shaping the development of disability-specific sexual offences in Ireland, as it recommended the creation of such an offence in its Report on Sexual Offences Against the Mentally Handicapped (1990: 3–5). It is interesting to note that although this reform was also advocated for and broadly welcomed by parents and service providers to persons with intellectual disabilities, these same actors have become some of the most vocal critics of the resulting legislation and have continued to seek further reform (NAMHI, 2003: 56). Despite the introduction of these reforms, rape allegations made by women with disabilities, especially those with cognitive disabilities, have continued to be incredibly difficult to successfully prosecute in Ireland (Bartlett and Mears, 2012; Central Statistics Office, 2013: 15).

This law in Ireland epitomizes the critiques of sexual offences law described above. It singles out people with cognitive disabilities and presumes that sexual decision-making is qualitatively different for that group. The law was created on the basis of an assumption of vulnerability of people with cognitive disabilities and then denies sexual agency to those individuals, instead of attempting to criminalize the actors who may be taking advantage of such perceived vulnerability. This law is also problematic from the standpoint of Article 12 CRPD because it denies legal capacity on the basis of disability. It also has had the effect of creating significant barriers to intimate relationships for people with cognitive disabilities in Ireland, contrary to Article 23(1), which protects family and relationships on an equal basis for people with disabilities.

In response to the acknowledged failures of the existing law, the Law Reform Commission (LRC) produced a consultation paper in 2011 on Sexual Offences and Capacity to Consent (Law Reform Commission, 2011) and sought submissions from interested parties to inform its recommendations. Many DPOs and allies made submissions to the LRC calling for a move away from separate offences for people with disabilities, and the introduction of more appropriate sex education programmes to ensure that people could make informed decisions about sex. Nevertheless, the LRC’s final report in 2013 retained the approach set out in the 2011 paper and recommended the introduction of a functional test of mental capacity to consent to sex and a separate set of sexual offences that would apply to those who lacked capacity to consent. Disability advocates and their allies in Ireland have consistently challenged this approach.

Developing an Inclusive Approach to Legislative Reform – Grass-roots Advocacy for Social Change

In engaging with people with disabilities and their representative organizations to develop proposals for legislative reform, we were conscious of the diverse nature of the disability movement in Ireland and the power dynamics that could impact on this collaborative process. Our standpoint, as disability researchers, is that the voices of people with disabilities themselves must lead social change related to disability. Whilst the disability movement has long been recognized as an agent of change at both national and international levels, we were aware the voices of people with cognitive disabilities are still at risk of being marginalized by others – including non-disabled and disabled allies. The role of non-disabled allies within the disability rights movement has often been fraught and tense (Barnes, 2003; Stone and Priestley, 1996). This is especially so given that the impetus for people with disabilities to come together to organize is often a desire to be free from the influences of others – including family members, professionals, charities and service providers, who seek to advocate on their behalf. Therefore, in any collaborative process of seeking law reform, we were anxious as non-disabled allies of the movement to ensure we were wholly guided by the voices of people with disabilities in developing proposals for reform.

Within disability studies literature, the term DPOs has emerged to describe organizations run and controlled by people with disabilities themselves (Shakespeare, 1993). In the specific context of Ireland, there is, at the time of writing, no one national DPO that represents the interests of all people with disabilities and is directly run and controlled by them. Organizations formed for this purpose operated in Ireland in the 1990s and early 2000s, such as the Forum of People with Disabilities and People with Disabilities Ireland, but neither organization has survived to the present day (Flynn, 2011). Most of the advocacy within civil society on disability rights in Ireland currently comes from disability non-governmental organizations – organizations whose membership includes family representatives, professionals and/or disability service providers along with people with disabilities. However, the past decade in particular has seen a growth in developing a self-advocacy movement in Ireland among people with cognitive disabilities – particularly among people with intellectual disabilities and people with psychosocial (mental health) disabilities. This presented an interesting opportunity for us to collaborate with new and emerging organizations led by peers with lived experience of disability on this key area of legal reform.

The Voice of Wisdom – Grass-roots Voices in Ireland on Capacity to Consent to Sex

In Ireland, the existence of specific sexual offences against people with mental impairments is seen as primarily an issue that affects people with intellectual disabilities. However, the current law could also cover people with mental health issues and other cognitive disabilities such as acquired brain injury or dementia. Since it is not an issue that affects all people with disabilities as a whole, it can be difficult to garner support from the broader disability movement for reform. In addition, since the majority of national advocacy organizations in Ireland representing the interests of people with cognitive disabilities are not run and controlled by people with disabilities themselves, there can be a tendency for civil society as a whole to suggest a more ‘protective’ approach to reform than that which people with disabilities would put forward themselves.

Against this backdrop of the development of self-advocacy organizations in Ireland, two organizations of people with disabilities have emerged with a clear interest in the law on sexual offences – the Connect People Network (CPN) and the Inclusive Research Network (IRN). The CPN describes itself as a group of people ‘who believe that people with extra support needs have the right to have romantic and sexual relationships, just like everyone else’ (2010). This organization grew out of the Irish Sex Education Network, established in 2002 as a forum for professionals who were advocating for better sexuality education programmes and policies in disability services (Allen and Seery, 2007). In 2009, a strong group of self-advocates with disabilities became involved with the Irish Sex Education Network, and based on the principle ‘nothing about us without us’, the organization changed its name and core activities.

CPN prepared its own submission (2011) to the LRC’s consultation paper on Sexual Offences and Capacity to Consent, where it clearly set out that people with extra support needs, including people with intellectual disabilities, currently experience discrimination in their rights to relationships and sexuality as a direct result of criminal offences such as that contained in the 1993 Act. The submission stated that:

We don’t want laws that are about testing us. We want proper sex education. Then we can make our own choices. We don’t want special laws for people with extra support needs either. The new law should be disability neutral. It should apply to everyone. We want you to listen to our opinions. We want you to take them seriously. (CPN, 2013: 2)

In respect of the LRC’s proposal to introduce a functional assessment of mental capacity for consent to sex, the Network stated:

We think you are making a big mistake. The new laws are all about testing us. You want to test us to see if we can consent to sex. You want to test us to see if we can consent to marriage. How are we meant to pass these tests if you don’t make sure we get clear and accessible sex education? (2013: 9)

These statements made clear recommendations to the LRC about what people with disabilities wanted to see in any proposals for law reform – a disability-neutral approach, rather than a separate criminal offence for persons with disabilities and no discriminatory functional assessments of mental capacity that apply only to persons with disabilities.

Similar comments on the LRC’s proposals were made by the IRN, a group of researchers with intellectual disabilities and supporters from service providers and universities. IRN was founded in 2008 (Tierney et al., 2009) as a joint initiative between an academic unit (National Institute for Intellectual Disability in Trinity College Dublin) and an umbrella body representing intellectual disability service providers (National Federation of Voluntary Bodies). This group had the opportunity to meet with the LRC to discuss efforts to change section 5 of the Criminal Law (Sexual Offences) Act 1993 in 2011, and one of the IRN’s researchers wrote about the experience in an article for Frontline Magazine as follows:

We heard from [the National Disability Authority] about the idea of “capacity” like having to prove you can live independently without support before you can have a sexual relationship? We don’t agree with this. You may need support but you can still have a relationship … We said the Capacity (or ability) of a person with a learning disability has been affected by people treating us like children and not giving information about things that affect our lives. We know that some people might still not understand but when none of us are told its like saying “You’re no good. You can’t think. (Minogue and Hopkins, 2012: 2–3)

The efforts of the IRN and CPN in preparing submissions were not formally coordinated, even though there is some overlap in the membership of both groups. At the same time, we, as activist–academics, had co-authored our own submission with other colleagues on behalf of the Centre for Disability Law and Policy (2012: 19). Without knowledge of the submissions being prepared by IRN and CPN, our academic submission emphasized many of the same points that had been raised by people with intellectual disabilities themselves. We all sought the abolition of this discriminatory offence and legal recognition of the autonomy of people with disabilities in sexual offences law. Our submission on behalf of the Centre for Disability Law and Policy specifically recommended the introduction of a disability-neutral sexual offence of ‘abuse of position of power or authority’ that could address the concerns about institutional abuse or abuse by carers and support staff, without discriminating against individuals on the basis of disability in terms of their sexual agency.

Of the 24 individuals and organizations listed in the acknowledgements section of the LRC report, only 5 are individuals with disabilities or DPOs – with the rest being academics, health service representatives or professionals, rape crisis centres and disability service providers. This breakdown likely reflects the volume of submissions to the LRC made by these different groups – and the final LRC report (2013: 14) reflected the fact that the majority of the submissions focused on the need to protect people with disabilities from sexual abuse rather than the need to abolish specific offences that discriminate against people with disabilities. Whilst the views of people with disabilities did not seem to significantly influence the LRC’s recommendations for legal reform, people with disabilities, activists and artists continued to work together to create art to bring their dissatisfaction with the current law to the attention of a broad public audience.

The Role of Art in the Disability Movement and Sexual Offences Reform in Ireland

Many artists have contributed their talents to various social movement campaigns and many activists have deliberately employed artistic methods to call for social and legal change (Shepard, 2011). Adams (2002) cites the use of gospel singing in the civil rights movement, folk songs in the free speech movement and the Statue of Democracy in the Chinese students’ democracy movement as examples of the way various art forms have been incorporated into social movements’ campaigns for change. Within the global disability rights movement, disabled artists have played a prominent role in campaigns for social change. One example is disabled artist Liz Crow’s performance in Trafalgar Square in 2008, where she dressed in a Nazi uniform and was hoisted in her wheelchair onto the plinth, as part of her art installation ‘Resistance’, which explored the Nazi campaign against people with disabilities and its contemporary relevance (Crow, 2011). Crow’s work, and that of other disabled artists, is often used to challenge societal perceptions of people with disabilities as passive, dependent and unable to contribute to mainstream culture or social change (Barnes and Mercer, 2001). In this way, ‘disability arts’ often interacts with and compliments disability politics and the work of DPOs in seeking social change (Morrison and Finkelstein, 1992).

Naturally, art created by people with disabilities is not always political, and a particular art practice developed by, or with people with disabilities, may have its own political message, without necessarily being connected to simultaneous action occurring in the broader disability movement. However, the concept of art as a tool of social change is worth exploring in the specific context of sexual offences reform in Ireland, given that two specific pieces of art were crucial in raising public awareness and generating broader societal interest in the need for reform of these laws in Ireland. One was a play performed by disabled actors, and the other was a documentary made about people with disabilities’ experiences of sex and relationships. Neither of these artistic endeavours could be described as a pure form of ‘disability arts’ because both involved collaboration between people with disabilities and non-disabled allies (documentary makers, writers and directors). However, they do provide interesting examples of how such collaborative action can be used to develop artistic expression and inspire social change.

The play was the first art performance to highlight the injustice of current sexual offences law in Ireland. It was called ‘Sanctuary’ and was written by Christian O’Reilly. Blue Teapot, an inclusive theatre company of actors with intellectual disabilities, performed the play throughout Ireland in 2012 and 2013. O’Reilly is a non-disabled playwright, but both he and Petal Pillay, the director of the play, describe how the development of the script was a collaborative process, and much of the material drew on the stories told to them by the disabled actors about their own personal experiences (Keane, 2013). The play tells the story of two young adults with intellectual disabilities, Larry and Sophie, who convince their support worker, Tom, to book them a hotel room so that they can have some private time together whilst Tom takes the rest of their peers to a group outing at the cinema. Tom reluctantly agrees, but once he discovers that Larry is considering having sex with Sophie, he becomes uncomfortable and cites his ‘duty of care’ to make sure ‘nothing bad happens’ to them. Tom tells Larry that he can’t have sex because ‘it’s against the law’ and that Larry and Sophie would have to be married first.

Whilst this is not a fully accurate representation of the current law in Ireland, as described above, it does powerfully bring home the discrimination that people with disabilities face in developing consensual sexual relationships in Ireland. Larry repeatedly asks Tom during one scene ‘Would it be different if we were normal?’ and Tom is uncomfortable with this language and does not want to answer the question directly, which further demonstrates the taboo and stigma surrounding the sexual relationships of people with intellectual disabilities in Ireland. Sanctuary brought to light the legal and practical barriers facing people with disabilities who want to engage in consensual sex. Shannon (2012) has described the impact of the play as having highlighted ‘the marginalization of human rights’ experienced by people with intellectual disabilities in a way that ‘may have surprised many audience members’.

Excerpts from the play and interviews with the cast were included in a moving documentary called ‘Somebody to Love’ by Anna Rogers and Zlata Filipovic (two non-disabled film-makers), which first aired on national television in February 2014. In the development of this documentary, three disabled women worked as consultants to the film-makers – Suzy Byrne, Grace Kelly and Selina Bonnie. The performers in the Blue Teapot Company also played a prominent role in the documentary, with Kieran Coppinger, who plays Larry in Sanctuary, introducing the documentary and being interviewed about his own real-life relationships (RTE One, 2014). The voices of the film-makers are not heard in the documentary, the narrators are people with disabilities themselves. This demonstrates the collaborative nature of its development and the prominence of people with disabilities within it, as narrators of their own lives.

At the time the documentary was aired, Sanctuary had already been performed across the country, with sell-out performances at the Galway Arts Festival and the Dublin Fringe Festival. However, the inclusion of scenes from the play in a documentary on national television helped to ensure the injustice of the current sexual offences law was brought to a much wider audience. This documentary powerfully demonstrated how the use of support in daily living can restrict people’s ability to engage in relationships. Mandy Finlay, a young woman with intellectual disability featured on the documentary, had to wait 4 years and undergo multiple assessments before she could be supported by staff to go on a weekend away with her boyfriend.

This documentary, and the play it included excerpts from, played a central role in developing a groundswell of broad community support for the efforts of disability advocates and their allies to seek further law reform in Ireland. These initiatives were not developed as part of a comprehensive strategy by the disability movement in Ireland to use art as a means of calling for legal change. However, they demonstrate the power of artistic expression in capturing the public imagination and highlighting the injustice of current sexual offences law.

A Collaborative Reform Process: Developing Senator Zappone’s Private Members Bill

Senator Katherine Zappone, a prominent activist for marriage equality,⁷ was moved by the documentary Somebody to Love and expressed her solidarity with disabled people who highlighted the injustice of current sexual offences law. In response to the airing of the documentary, one of the authors of this article (Flynn, 2014) wrote a blog post on Human Rights in Ireland critiquing the LRC’s proposals for change and calling for a disability-neutral approach to sexual offences law. Senator Zappone read this blog post and contacted us via the Centre for Disability Law and Policy with the idea of developing a private members’ bill to address this issue. We agreed to provide her with technical support in drafting the Bill and to connect her with people with disabilities who are directly affected by the current law to discuss ideas for change.

Since private members’ bills are generally not likely to be enacted without government support, the main purpose of our efforts was to raise awareness of the issue and to demonstrate that a human rights compliant solution could be put forward to reform the current law. In reflecting on the process we undertook in developing this Bill, we will apply Stone and Priestley’s six principles for emancipatory disability research to explore how we worked together with people with disabilities in this process. The aim of this approach is to expose the vulnerability of our work and to think critically about how inclusive processes of lawmaking might be designed in the future.

Stone and Priestley (1996) set out the following framework for emancipatory disability research:

the adoption of a social model of disablement as the epistemological basis for research production

the surrender of claims to objectivity through overt political commitment to the struggles of disabled people for self-emancipation

the willingness only to undertake research where it will be of practical benefit to the self-empowerment of disabled people and/or the removal of disabling barriers

the evolution of control over research production to ensure full accountability to disabled people and their organizations

giving voice to the personal as political whilst endeavouring to collectivise the political commonality of individual experiences

the willingness to adopt a plurality of methods for data collection and analysis in response to the changing needs of disabled people

The process of legislative drafting does not neatly fit into the parameters of undertaking social research, which is the main focus of Stone and Priestley’s analysis. This is particularly true since legislative drafting inevitably involves many other actors apart from the researchers and the people directly affected by the law. For us, these actors included the sponsor of the legislation (Senator Zappone), other parliamentarians, the Minister for Justice, parliamentary draftsmen, the media, civil society and the public. Nevertheless, we feel these principles provide a useful framework to consider how we approached this work and how our research process could be improved upon.

The process of developing the Private Members Bill began with Senator Zappone’s request for research assistance, and following her initial approach, we met to discuss options for reform. In our initial meetings, we involved two barristers with experience in this field, to get their perspectives on the feasibility of the various approaches we were considering, and also reached out to academic criminal lawyers for their insights on the reform. Senator Zappone determined the broad parameters of the approach, which was to abolish section 5 and replace it with a disability-neutral offence of abuse of a position of power. We then made contact with three DPOs to involve them in developing the Bill: the National Platform of Self Advocates, the CPN and the IRN.

Two of these organizations – CPN and IRN – had already made their views known on how sexual offences law should be reformed in Ireland in their submissions to the LRC. The third organization, the National Platform of Self Advocates, is the only nationally representative group completely run and controlled by people with intellectual disabilities themselves (Inclusion Ireland, 2014). Since the Platform was a new organization, it had not made a previous submission on how the law should be changed in this field. However, as researchers who provide support to the Platform, we knew that they had expressed interest in these issues. As the only national organization of (rather than for) people with intellectual disabilities, we considered them to be the legitimate representatives of the broader intellectual disability community in Ireland. Since the Platform had not engaged in advocacy on this issue before, Senator Zappone asked to attend one of their meetings where she sought their views on the current law and their personal experiences. Following on from this initial contact, we organized a meeting with representatives from all three organizations to discuss our ideas on the Private Members Bill.

Stone and Priestley’s first three principles were relatively uncontroversial for us as researchers in the process of developing the Private Members Bill. We sought to develop a reform proposal that would: (1) challenge the perception of people with cognitive disabilities as lacking in sexual agency and (2) restore their legal autonomy to consent to sex. We believe that this approach is in line with the tenets of the social model of disability and the human rights obligations contained in the CRPD. We had already made our position clear in our submission to the LRC and in our previous writing on this subject (Flynn and Arstein-Kerslake, 2014). We were therefore not making any claims to objectivity, but rather fully committing to achieving equality for people with disabilities through the legislative process. In doing so, we were also aligning ourselves with disability advocates who had made the same calls for law reform.

Similarly, throughout this process, we were demonstrating our willingness to only undertake research that would be of practical benefit to the disability community. Our aim was to dismantle disabling barriers by abolishing a discriminatory law and to introduce a proposal for a new sexual offence that would have universal application to both people with and without disabilities. Although we knew the Bill had little chance of being enacted, we hoped that the process of developing a concrete proposal for reform would strengthen the movement for a new approach to sexual offences law reform.

The application of Stone and Priestley’s final three principles to our work highlights the conflicts that inevitably occur in political and legislative processes. Stone and Priestley firmly believe that the ownership of the research process, and research outputs, should remain with DPOs. People with disabilities should be directing the research and should co-own the results. In developing the Bill, we made efforts to ensure there would be a meaningful collaboration between the DPOs we contacted and ourselves as researchers. We held an initial meeting with Senator Zappone and representatives of all three DPOs to discuss our approach to the Bill, using an easy-to-read version of the draft legislative text, with simple language and images to explain the concepts. In this meeting, we feel we established an agreement with the organizations as to the general approach that should be taken, but did not seek to secure agreement on the exact wording of the sexual offence of abuse of a position of power, or exactly how consent should be defined in the new law. Most of the advocates expressed dissatisfaction with the current law but were also sceptical about the impact of new legal solutions in practice and directed our focus to the advocacy, education and awareness raising, which would need to accompany any new law.

For this reason, our subsequent meetings with the advocates focused more on the process by which we should launch the Bill and raise public awareness about our proposals, rather than on the technical detail of the legislative language. We might explain this approach by reference to the tight time frame within which the drafting had to be completed, and the different skill sets and levels of knowledge among the disability advocates in the room, but it remains a potential weakness of our approach, which could perhaps have been better addressed in a legislative process conducted over a longer time frame, with the provision of more intensive support to disability advocates to ensure their meaningful involvement in determining the detail of the legislative text.

Stone and Priestley emphasize the delicate balance between acknowledging individual lived experience and prioritizing the concerns of the disability community as a group, throughout the research process. Throughout our engagement with the three organizations in drafting the Bill, we gave opportunities for individuals to tell their stories and tried to design a law that would respond to these everyday experiences. We also attempted to cover situations that went beyond the personal experiences of those who participated in the process. We tried to base the approach as much as possible on what those organizations had argued for themselves in their submissions to the LRC. However, during the entire drafting process, we were conscious of the political constraints, the need to produce something that would be perceived by political decision-makers as feasible and would allay fears that with the abolition of section 5, people with disabilities might be left open to sexual abuse and exploitation without the consequences of criminal sanction.

In terms of Stone and Priestley’s principle of openness to a plurality of research methods, we did develop collaborative research methods in drafting the Bill, and as researchers, we acted as a bridge between different methods and approaches to law reform. We attempted to design research that would merge the advocacy demands of people with disabilities with the options presented by parliamentarians, legal professionals, other academics and draftsmen. However, there were serious constraints to flexibility in designing the research output as a result of the constraints within the criminal law. We attempted to counter this by producing two versions of the Bill – including a summary in ‘everyday language’, which featured pictures and plain text. Self-advocates also played a crucial role in designing a launch event for the Bill where representatives from the three organizations, as well as members of the Blue Teapot Theatre company and the producer of Somebody to Love discussed their experiences with the media and explained why they wanted the law to change. Many of these advocates also attended the second stage debate on the Bill in the Senate on the same day that the Bill was launched and watched (with understandable impatience) the lawmaking process ‘in action’.

In line with the tenants of the CRPD, as discussed above, we made two innovative proposals for reform in the Bill. The first is the abolition of section 5 of the 1993 Act and its replacement with a disability-neutral offence of abuse of a position of dependence or trust for sexual purposes. This new offence covers all forms of sexual activity (unlike the current section 5 that only covers penetrative sex) and respects people with cognitive disabilities as individuals who can consent to sexual activity. It also provides protection against sexual abuse for all people who are in relationships of dependence and trust, including older family members, and others who may be vulnerable to exploitation for reasons unrelated to disability, including those who are survivors of human trafficking, or refugees. The definition of a person who abuses a position of dependence or trust to commit a sexual offence ‘includes, but is not limited to, a person who (a) provides care, (b) is responsible for welfare, (c) occupies a position of authority, (d) provides education, or (e) provides support services including therapy or counselling, to the victim’.(2014 Act, section 1).

In discussing the introduction of this new offence with DPOs, we found there was a clear desire to protect people with disabilities against non-consensual sexual contact, but no clear consensus as to the best mechanism for achieving this. One option would be simply to abolish section 5, and argue for the universal application of the common law offence of rape, and existing sexual offences law to cover people with disabilities. However, politically, it was felt that this option might be unpalatable to those concerned about protecting people with disabilities against sexual exploitation. In this way, the inherently political nature of lawmaking became evident.

Following discussions with self-advocates, we decided to include a defence of consent to the offence of abuse of position of dependence or trust. This decision was made because the offence was not meant to be a strict liability offence applicable to any relationship of dependence or trust where a sexual act took place. In the Bill, we aimed to reflect the views of the self-advocates we worked with, who sought respect for sexual agency on an equal basis with others. The purpose of including such a defence is so that a person with or without a disability, who voluntarily and knowingly develops a sexual relationship with a support person or other person in a position of dependence or trust, will not be at risk of having their relationship criminalized. We wanted to make sure that there was recognition in the Bill that a person with or without a disability could consent to a sexual relationship with someone in a position of dependence or trust.

The second innovation in the Bill is the proposed reform of the definition of consent as applied to all existing sexual offences. We proposed that consent is defined as the existence of ‘an agreement between the parties to engage in the specific act’ based on an ‘examination of the communication between the parties immediately prior to the act.’ (2014 Act, section 2). While the Bill posits that ‘each person must be shown at that time to have understood the nature of the act’ it also clarifies that ‘an understanding of the nature of the act shall only require the person to understand the physical nature of the act and shall not require the person to understand possible physiological consequences.’ (2014 Act, section 2). In our deliberations with DPOs in the drafting of the Bill, many self-advocates agreed that it was important for people to understand what they were agreeing to when they decided to have sex with someone and reiterated the need for better sex education for people with disabilities to support this change.

In examining communication between parties, there is a risk of stigma and prejudice playing a role in the courts deliberations. Torrey highlights the dangerous and pervasive rape myths that continue to influence juries deliberating on rape cases, including that:

women are ‘asking for it’ when they wear provocative clothes … if a woman says ‘yes’ once, there is no reason to believe her ‘no’ the next time … a woman who goes to the home of a man on the first date implies she is willing to have sex …. (1990, 1015)

By requiring active communication between the parties, we believe that a more robust conception of consent is achieved. It does not allow the defence to rely on the complainants’ behaviour, dress or other irrelevant factors to infer consent. Further guidance could be developed by the courts on the environments and contexts that might raise evidential presumptions as to the lack of consent – for example, in situations where the complainant was deprived of liberty; feared for his or her life, safety or well-being; where violence or the threat of violence was present and so on.

It is not always an easy task to decipher communication between two people, especially if there are conflicting accounts of the communication. Nonetheless, we agree with Anderson’s (2004) contention that communication is an essential aspect of negotiating sex and that it must be a core component of legislation defining consent. Nevertheless, stigma and discrimination cannot be eradicated by one piece of legislation, and it can only be achieved by a shift in the social consciousness. In the process of drafting a legislative definition of consent, our goal was to ensure that the Bill would play a role in that shift and that, in the future, a search for communication in consent to sex law will take into consideration the environmental and social context free from rape myths, gender stereotypes or disability-based discrimination.

The Bill also makes clear that in determining the presence of consent ‘no higher standard of understanding shall apply to persons with disabilities than that which applies to persons without disabilities’. (2014 Act, section 2). This definition of consent in the Bill seeks to eliminate the use of discriminatory assessments of ‘mental capacity’ to consent. Under current Irish case law⁸, it must be established that the victim has the ‘capacity’ to consent, before any examination of whether the victim in fact consented will be undertaken. As described above, these assessments pose a particular barrier for people with disabilities, if they are disproportionately imposed where the victim has, or is thought to have, a mental impairment. In our discussions with DPOs in drafting the Bill, stories emerged of people who had been asked to undergo psychological assessments before a service provider would allow support for a person to stay overnight with a sexual partner. Self-advocates spoke about how they did not want to be ‘tested’ in order to get the support they needed to engage in consensual sexual relationships. We attempted to reflect this demand in the text of the Bill by ensuring that no discriminatory standards would be applied to people with disabilities to determine the presence of their consent to sex.

In our analysis of the legislative process from an emancipatory research perspective, we can see that significant efforts were made to ensure that both the content of the Bill and the process of its development were inclusive of people with disabilities who are directly affected by the current law. We acknowledge the limitations of the lawmaking process in reflecting the totality of the demands of disability activists and the scepticism of DPOs in the potential of law reform to bring about positive change. Nevertheless, despite procedural constraints, we are confident that the text of the Bill, and the process of its development, as discussed above, is broadly reflective of the views of people with intellectual disabilities on how the law in Ireland should be changed.

Government’s Response to Grass Roots Calls for Reform

The Department of Justice responded to these calls for reform by publishing a discussion paper in July 2014 and calling for further submissions from the public on its proposals (Department of Justice, 2014a). This paper proposes the abolition of section 5 of the 1993 Act and its replacement by two new sexual offences, a general offence of engaging in a sexual act with a vulnerable person and a specific offence of abuse of a position of trust or authority in respect of a vulnerable person. The paper defines a vulnerable person as someone who:

(i) is suffering from a disorder of the mind, or (ii) has a disability which is of such nature or degree as it (a) may cause the person to lack the necessary understanding to consent to sexual acts [in certain circumstances] or (b) may severely restrict the capacity of the person to guard himself or herself against serious exploitation by another person. (2014a: 6)

This definition is very similar to that of mentally impaired person, which appears in the 1993 Act. Therefore, the individuals the proposal seeks to protect are almost identical to those covered by the existing legislation.

The general offence of sexual act with a vulnerable person covers all forms of sexual activity and includes an offence of inducing a vulnerable person to engage in a sexual act. It appears to be targeted at defendants without disabilities who engage in sex with persons with disabilities (2014a: 7). This is clearly not a disability-neutral offence and, therefore, does not reflect the demands of disability advocates (Connect People Network, 2014) or follow the approach set out in Senator Zappone’s Bill.

However, the Department of Justice discussion paper does provide for a new offence of abuse of a position of trust or authority in respect of a vulnerable person. At first glance, this may seem similar to the proposal endorsed by disability advocates in Senator Zappones’s Bill, but there are significant differences in the scope of the offence. First, it only applies to people with disabilities under the definition of ‘vulnerable persons’ outlined above. This is problematic because it again creates a separate legislative provision that only applies to people with disabilities. This is potentially a violation of the CRPD because it may not meet the non-discrimination requirements. It is also further stigmatizing people with disabilities by automatically including them in a category of vulnerable people.

Second, the offence only applies to sexual acts that constitute rape or aggravated sexual assault. Third, the defendant is defined as a person ‘who as part of their employment or as part of a contract for service supervises or provides treatment to a vulnerable person and that supervision or treatment directly relates to that person’s vulnerabilities’ (2014a: 5). Importantly, consent is not a defence to this offence, in stark contrast to the approach set out in Zappone’s Bill. However, reasonable mistake as to whether the complainant was a vulnerable person is a defence. This seems contradictory, since the person who is employed to support ‘vulnerable persons’ can surely never successfully argue that he or she was unaware that the person in question had a disability (2014a: 10).

In our view, the fact that consent is not available as a defence where the alleged offence involves someone in a position of trust or authority is also problematic. It is clear that this provision was deliberately framed to avoid any situation in which a complainant felt compelled to consent because of fear of an authority figure, or fear of the support provided by the defendant being withdrawn if she refused. However, if this is the case, a definition of consent that emphasizes the importance of the consent being freely and voluntarily given without threat or inducement, such as that set out in Zappone’s Bill, could better address this particular concern.

These critiques, along with other points of concern, were presented to the Department by the Centre for Disability Law and Policy (2012), Connect People Network (2013), and Inclusive Research Network (2012), among other organizations who made submissions to the Department of Justice following the publication of this proposal. Subsequently, in November 2014, the Department published a General Scheme of the Criminal Law (Sexual Offences) Bill 2014. At the time of writing, this Scheme has not set out in detail the provision that is intended to replace section 5 of the 1993 Act, but it does provide a definition of ‘vulnerable person’ for the purpose of a new offence. The Scheme states that a vulnerable person is:

a person who (i) is suffering from a disorder of the mind, whether as a result of mental illness or dementia, or (ii) has an intellectual disability, which is of such a nature or degree as to severely restrict the capacity of the person to guard himself or herself against serious exploitation or abuse, whether physical or sexual, by another person. (2014b: 8)

This definition again equates vulnerability with specific kinds of disabilities and retains the approach that a separate sexual offence should exist where the complainant has one of these disabilities. At the time of writing, it is not clear what exactly the new offence will be (2014b: 21). However, it is hoped that the Department will seriously consider a revision of its proposals in light of the repeated calls from self-advocates with disabilities and their allies for a disability-neutral approach to sexual offences law reform.

Conclusion: Successes and Challenges of the Reform Process and Lessons for the Future

The journey towards reform of sexual offences law affecting persons with disabilities in Ireland has had a number of successes in the past 3 years. This has culminated in the publication of Senator Zappone’s Private Members Bill and the support that this proposal received from grass-roots advocates, parliamentarians, the media and the general public. However, there are a number of challenges that still must be addressed. This reform process has had some success that we believe has the potential to be replicated globally to develop human rights-based reform that responds to the concerns of people with disabilities. One positive element of the process was of the development of an inclusive and accessible law reform proposal guided by the views of the people with disabilities directly affected by the existing law. Another successful outcome was the production of legislation in an easy-to-read format for people with intellectual disabilities. The active role that people with disabilities played in promoting this proposal for reform, engaging with the media to explain why they wanted the law to be changed, and generously sharing their own experiences in order to inform our proposal, were all crucial to the successful drafting of the Bill. Nevertheless, we must also acknowledge the limitations of the legislative process in facilitating meaningful inclusion of people with cognitive disabilities at all stages of the drafting process, including the time constraints, the need to prioritize political concerns and the difficulties of achieving broad social change within the confines of the criminal law.

The development of a disability-neutral sexual offence of abuse of position of trust or dependence in Senator Zappone’s Bill is also a significant success as well as the more ambitious proposal to place parameters around the concept of consent as it applies to all sexual offences. Such a definition ensures that the notion of consent is inclusive of the diverse ways in which adults, including people with disabilities, communicate their desires and choices about sexual activity. The response that the Bill received from the Minister for Justice, other parliamentarians, the media and the general public is perhaps even more important than the technical legal solutions presented in the Bill. The relationship developed with the Minister for Justice is a particularly important success in this process.

The Minister did not oppose the introduction of this Private Members Bill and made time to speak on the Bill when it was introduced in the Senate. Her statement reflected her agreement with the guiding principles of Senator Zappone’s Bill – namely, the right to sexual autonomy for people with disabilities on an equal basis with others and the protection against exploitation and abuse of all adults (Seanad Debates, 2014). Whilst the Minister accepted the need to repeal section 5 of the 1993 Act, in her statement (2014) to the Senate, she proposed a different solution to that offered by Senator Zappone, focusing more on the potential vulnerability of persons with disabilities to sexual abuse and reinforcing the notion that individuals should meet a certain level of mental capacity before their consent would be deemed valid.

Other success factors include the press conference held by Senator Zappone to launch the Bill, which was led by a panel of people with intellectual disabilities who spoke about their own experiences in relationships and sexuality. Panel members featured actors from Blue Teapot, Zlata Filipovic from Somebody to Love, members of the CPN, the National Platform of Self-Advocates and theIRN. They shared positive stories of their experiences, including one couple from the CPN who talked about planning their wedding as well as describing the barriers that they have faced in the past and the supports they would like to continue to develop their relationship (Zappone, 2014b). Panellists and audience members at the launch also highlighted how service providers and families play a crucial role in supporting relationships, and how some organizations are continuing to provide support, despite the restrictions of the existing law (Sunbeam House Services, 2014). Finally, the response from the media and the general public to Senator Zappone’s Bill was overwhelmingly positive, with coverage of the launch and Senate debate in several major media outlets, including the Irish Times (O’Brien, 2014) and Drivetime (RTE Radio One, 2014). Perhaps the most positive impact that the Bill has had is that it encourages government to listen to the voices of people with disabilities and to engage directly with their concerns (rather than the concerns of their family members or service providers) in determining how to reform the law in this area.

Challenges remain to ensure that the views of people with disabilities will be given priority in any legislative proposal for reform. These challenges are compounded by a number of factors – which include the Department of Justice’s focus on disability as vulnerability in its Discussion Paper (2014a: 6) and General Scheme (2014b: 8) as highlighted above and the LRC’s continued emphasis on the functional assessment of mental capacity as a valid criteria for restricting legal agency in the context of consent to sex (2013). Whilst the Department’s decision not to include the functional test of mental capacity to consent as an element of its proposed offence, its inclusion of ‘inability to consent’ as opposed to mere ‘lack of consent’ in the definition of the offence suggests that its approach is still distinguishing between people with disabilities and those without disabilities in terms of their sexual agency.

Whilst the movement has begun, much work remains to be done to ensure that rape and sexual offences legislation around the world is inclusive of people with disabilities, recognizes people with disabilities as sexual agents and provides appropriate protection from sexual violence for people with and without disabilities. There is a long history of stigma and prejudice to be challenged, particularly for women with cognitive disabilities, before the law will recognize them as sexual agents on an equal basis with others. The best way to overcome this seems to be through the development of broad coalitions that can increase knowledge of the lived experience of people with disabilities in making decisions about sex and allow the voices of those most directly affected by the law to be heard above all others.

As non-disabled researchers, we have learned important lessons about the possibilities for emancipatory research by exploring disability-neutral approaches to sexual offences reform. Our collaborative work with people with disabilities has sought to acknowledge their sexual agency, whilst recognizing that sexual violence is often deeply rooted within power disparities. Our experience of campaigning for legislative reform in this area can provide some insights for those in other jurisdictions embarking on a similar journey. One of the most valuable lessons we have learned through this process is the importance of involving self-advocates from the beginning in framing legislative proposals, based on the guiding principle of ‘nothing about us without us’, which became the mantra of disability advocates in the negotiation of the UN CRPD.⁹ We also acknowledge the important role played by artists such as writers, actors, directors and documentary makers in bringing the discrimination inherent within sexual offences law to the attention of the public in Ireland. We find that there are many opportunities to incorporate principles of emancipatory research in legislative reform processes, notwithstanding the political constraints of lawmaking. We hope that this experience will encourage others to find parliamentary allies to progress similar reforms in an inclusive manner, keeping the demands of disability activists at the core of the lawmaking process.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship and/or publication of this article.

Notes

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