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Report on Sexual Offences and Capacity to Consent

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Report on Sexual Offences and Capacity to Consent REPORT SEXUAL OFFENCES AND CAPACITY TO CONSENT (LRC 109-2013) © COPYRIGHT Law Reform Commission FIRST PUBLISHED November 2013 ISSN 1393-3132 LAW REFORM COMMISSION’S ROLE The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 180 documents (Working Papers, Consultation Papers, Issues Papers and Reports) containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have contributed in a significant way to the development and enactment of reforming legislation. The Commission’s law reform role is carried out primarily under a Programme of Law Reform. Its Fourth Programme of Law Reform (2013-2015) was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in October 2013. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. The Commission’s Access to Legislation project makes legislation in its current state (as amended rather than as enacted) more easily accessible to the public in the form of Revised Acts, as well as providing electronically searchable indexes of amendments to legislation and important related information. The Commission provides online access to selected Revised Acts. The indexes include the Legislation Directory of primary and secondary legislation and the Classified List of Legislation in Ireland. The Classified List is a separate list of all Acts of the Oireachtas that remain in force organised under 36 major subject-matter headings; work is underway to add in-force secondary legislation to this List. ii MEMBERSHIP The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President: Mr. Justice John Quirke Former Judge of the High Court Full-time Commissioner: Finola Flanagan, Barrister-at-Law Part-time Commissioner: Marie Baker, Senior Counsel Part-time Commissioner: Donncha O’Connell, Professor of Law Part-time Commissioner: Thomas O’Malley, Barrister-at-Law iii LAW REFORM RESEARCH STAFF Director of Research: Raymond Byrne BCL, LLM (NUI), Barrister-at-Law Legal Researchers: Colm Kitson BCL (NUI), LLM (QUB), Barrister-at-law Kerri McGuigan LLB (Dub), LLM (UCL), Attorney-at-Law (New York) Karen McLaughlin LLB (Ling Germ) (Dub.), LLM (QUB) Sarahrose Murphy BCL (NUI), LLM (NUI), Barrister-at-law Denise Roche BCL (Int.), Solicitor Mary Travers BA (Law), LLM (NUI) ACCESS TO LEGISLATION Project Manager: Alma Clissmann BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor Assistant Project Manager: Jane Murphy BCL Legal Researchers: Aileen O’Leary BCL (NUI), LLM (NUI), AITI, Solicitor Morgan Harris LLB (UKC), Barrister-at-Law iv ADMINISTRATION STAFF Head of Administration: Ciara Carberry Executive Officer: Deirdre Fleming Staff Officer: Annmarie Cowley Clerical Officers: Ann Browne Joe Cooke Liam Dargan Library and Information Manager: Órla Gillen, BA, MLIS PRINCIPAL LEGAL RESEARCHER FOR THIS REPORT Kate McGovern LLB (Dub), LLM (Edin), Barrister-at-Law v CONTACT DETAILS Further information can be obtained from: Head of Administration Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 Telephone: +353 1 637 7600 Fax: +353 1 637 7601 Email: [email protected] Website: www.lawreform.ie vi ACKNOWLEDGEMENTS The Commission would like to thank the following people and organisations who provided valuable assistance: Ability West Claire Adams, Connect People Network Nicola Booth, Legal Research Intern, Law Reform Commission Maria Caples Centre for Disability Law and Policy, NUI Galway Children and Families Services, Health Service Executive Martin Cox Caroline Dalton Crisis Pregnancy Programme, Health Service Executive Michael Feely, Connect People Network Gerry Higgins Inclusion Ireland Inclusive Research Network Ryan Johns, Connect People Network Anne-Marie Martin Mental Health Services, Health Service Executive Tomás Murray National Advocacy Unit, Health Service Executive National Disability Authority National Disability Unit, Health Service Executive Dr Maura Pidgeon, Chief Executive Officer, An Bord Altranais David Prendergast, Lecturer, School of Law, Trinity College Dublin Rape Crisis Network Ireland Sexual Health Clinic Full responsibility for this publication lies, however, with the Commission. vii TABLE OF CONTENTS TABLE OF CASES xi TABLE OF LEGISLATION xiii INTRODUCTION 1 A Background 1 B Evolving language and the subject-matter of the Report: decision-making capacity 1 C The need to separate capacity to consent and health 4 D Outline of this Report 6 CHAPTER 1 THE CONTEXT FOR REFORM 9 A Introduction 9 B Evolution of policy and international legal framework 9 (1) From eugenics to a rights-based analysis 9 (2) From institutional care to empowerment in the community 10 (3) Development of a functional approach to capacity 10 C Current law on capacity to consent to sexual relations 11 (1) Section 5 of the Criminal Law (Sexual Offences) Act 1993 11 (2) Deficiencies in the current law on sexual offences and capacity to consent 12 D Reproductive and parental rights 15 (1) Introduction 15 (2) Challenges facing parents who require decision-making assistance 16 (3) Rights of parents who require decision-making assistance: the Constitution and international standards 17 (4) Supports for parents with disabilities 18 E Protection from exploitation and abuse 20 (1) Introduction 20 (2) International obligations 20 (3) Current protections 21 (4) Development of National Standards 25 (5) Education 26 CHAPTER 2 GENERAL APPROACH TO REFORM OF THE LAW ON CAPACITY TO CONSENT 29 A Introduction 29 B Absence of consent, including absence of capacity 29 (1) Introduction 29 (2) Current general law on consent in Ireland 29 (3) Overview of consent in other countries 32 C Obligations: equality, empowerment and protection 36 (1) Introduction 36 (2) Obligations under the Constitution, the UNCRPD and ECHR 36 (3) Persons who require protection from sexual exploitation and abuse 39 D Meeting the requirements of the UNCRPD, the ECHR and the Constitution: a disability-neutral approach versus specific capacity provision 44 (1) Ireland 45 (2) Comparative analysis 45 (3) Final recommendations 48 CHAPTER 3 A FUNCTIONAL TEST OF CAPACITY TO CONSENT 51 A Introduction 51 viii B Relationship with capacity to marry: English case law since the Sexual Offences Act 2003 and the Mental Capacity Act 2005 51 C Components of a functional test of capacity to consent to sexual activity 52 (1) Ability to understand relevant information 53 (2) Ability to retain the information 62 (3) Decision-making ability 64 (4) Communicative ability 67 CHAPTER 4 SPECIFIC SEXUAL OFFENCES RELATED TO CAPACITY TO CONSENT 71 A Introduction 71 B Research on exploitation and abuse and the range of specific offences 71 (1) Research on the prevalence of exploitation or abuse 71 (2) The range of sexual activity that should be included 73 (3) Approaches to persons in positions of trust and authority in other jurisdictions 74 (4) Autonomy and protection 75 (5) Final recommendation 76 C Specific elements of the offences 77 (1) Position of trust or authority 77 (2) Whether the offences should involve strict liability 79 (3) Existence of a prior sexual relationship 81 (4) Penalties 82 CHAPTER 5 REFORM OF CRIMINAL PROCEDURE AND TRIAL PROCESS 87 A Introduction 87 B Reporting and investigation of sexual abuse 87 (1) Barriers to reporting abuse 88 (2) Barriers to prosecuting abuse 89 (3) Developments in other jurisdictions 92 (4) Concluding comments and final recommendations 93 C The criminal trial process 95 (1) Introduction 95 (2) Challenges facing people who require and accommodation in the criminal trial process 95 (3) Overview of support measures in Ireland 96 (4) Overview of developments in England, Wales and Northern Ireland 98 (5) Pre-trial cross-examination and re-examination 100 (6) Intermediaries 107 (7) Support persons 116 (8) Communication aids 118 (9) Use of appropriate language and questioning style 119 (10)Guidelines for those working in the criminal justice system 123 D Special measures for defendants 124 (1) Introduction 124 (2) Challenges facing defendants who require support and accommodation 124 (3) Comparative analysis 125 (4) Concluding comments and final recommendations 127 CHAPTER 6 SUMMARY OF RECOMMENDATIONS 129 APPENDIX DRAFT CRIMINAL LAW (SEXUAL OFFENCES AND CAPACITY TO CONSENT) BILL 2013 133 ix TABLE OF LEGISLATION Pg No. Assisted Decision-Making (Capacity) Bill 2013 Bill No.83/2013 Irl 1 Canadian Criminal Code RSC 1985 1985 c. 46 Can 78 Child Care Act 1991 No. 17/1991 Irl 24 Citizens Information Act 2007 No 2/2007 Irl 18 Coroners and Justice Act 2009 2009 c. 25 Eng 117 Crimes Act 1900 No. 40/1900 NSW 35 Crimes Act 1958 No. 6231/1958 Vict 35 Crimes Act 1961 No. 43/1961 NZ 35 Criminal Code 1913 No. 28/1913 WA 35 Criminal Evidence (Northern Ireland) Order 1999 1999 No. 2789 NI 102 Criminal Evidence Act 1992 No. 12/1992 Irl 96 Criminal Justice (Withholding of Information on No. 24/2012 Irl 23 Offences Against Children and Vulnerable Persons) Act 2012 Criminal Justice Act 1991 1991 c. 53 Eng 101 Criminal Justice Act 2003 2003 c. 44 Eng 102 Criminal Law (Rape) (Amendment) Act 1990 No. 32/1990 Irl 31 Criminal Law (Rape) Act 1981 No. 10/1981 Irl 29 Criminal Law (Sexual Offences) Act 1993 No. 20/1993 Irl 1 Criminal Law (Sexual Offences) Act 2006 No. 15/2006 Irl 48 Criminal Law Amendment Act 1935 No. 6/1935 Irl 10 Criminal Procedure (Scotland) Act 1995 1995 c. 46 Scot 127 Disability Act 2005 No. 14/2005 Irl 18 Evidence Act 1908 No. 56/1908 NZ 113 Evidence Act 1958 No. 6246/1958 Vict 122 Evidence Act 1995 No.
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