Why is it illegal for mentally impaired people to have sex before marriage?

Frank O. Pinion

I have special needs family members, this is not a joke post. This topic came up in a conversation I had today. Why exactly is it illegal for mentally impaired people to have sex before marriage? Does this mean that it will always be illegal for mentally impaired, homosexual men and women to have sex? Until gay marriage is legal in Ireland, anyways.

I don't understand the "before marriage" part. How about mentally impaired people who want to experience sex, but not get married?

Mr. Incognito

I didnt realise they could consent to marriage or sex as marriage is a contract and they lack legal capacity for contractual purposes.

Bout legal capacity to consent I would guess

eviltwin

It's not illegal for homosexual men and women to have sex OP.

Mr. Incognito

eviltwin wrote: »

It's not illegal for homosexual men and women to have sex OP.

It was until norris won his challenge to that law on human right grounds

_Whimsical_

It's about capacity to consent and also acts to protect the person with special needs from being preyed upon by those who might take advantage of their diminished capacity and manipulate them into sex. The consequences of such manipulation for the impaired person could be quite dire so perhaps it's good the law provides a strong deterrent?

There are groups lobbying to have the law changed however. It was the subject of a criticially acclaimed play by a Galway based theatre group that produces plays performed by mentally impaired actors. It was called Sanctuary by The Blue Teapot Company. A tv documentary was done on the subject too where they explored the issue.

Frank O. Pinion

Mr. Incognito wrote: »

I didnt realise they could consent to marriage or sex as marriage is a contract and they lack legal capacity for contractual purposes.

Bout legal capacity to consent I would guess

The law states:

IrishStatuteBook.ie wrote:

Criminal Law (Sexual Offences) Act, 1993

5.—(1) A person who—
(a) has or attempts to have sexual intercourse, or
(b) commits or attempts to commit an act of buggery,

with a person who is mentally impaired (other than a person to whom he is married or to whom he believes with reasonable cause he is married) shall be guilty of an offence and shall be liable on conviction on indictment to—

(i) in the case of having sexual intercourse or committing an act of buggery, imprisonment for a term not exceeding 10 years, and

(ii) in the case of an attempt to have sexual intercourse or an attempt to commit an act of buggery, imprisonment for a term not exceeding 3 years in the case of a first conviction, and in the case of a second or any subsequent conviction imprisonment for a term not exceeding 5 years.

(2) A male person who commits or attempts to commit an act of gross indecency with another male person who is mentally impaired shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 2 years.

(3) In any proceedings under this section it shall be a defence for the accused to show that at the time of the alleged commission of the offence he did not know and had no reason to suspect that the person in respect of whom he is charged was mentally impaired.

(4) Proceedings against a person charged with an offence under this section shall not be taken except by or with the consent of the Director of Public Prosecutions.

(5) In this section “mentally impaired” means 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.

So, according to law, how about two mentally impaired people having sex with each other? Is that against the law?

eviltwin wrote:

It's not illegal for homosexual men and women to have sex OP.

I know. I said, mentally impaired, homosexual men and women.

_Whimscial_ wrote:

It's about capacity to consent and also acts to protect the person with special needs from being preyed upon by those who might take advantage of their diminished capacity and manipulate them into sex. The consequences of such manipulation for the impaired person could be quite dire so perhaps it's good the law provides a strong deterrent?

How about their civil rights, though? They are legally allowed to get married and have sex, but not before marriage. This, legally, seems to be forcing people with special needs to get married, before they get to experience sex. I think this is wrong.

_Whimscial_ wrote:

There are groups lobbying to have the law changed however. It was the subject of a criticially acclaimed play by a Galway based theatre group for mentally impaired actors last year. It was called Sanctuary by The Blue Teapot Company. A tv documentary was done on the subject too where they explored the issue.

Thanks for bringing those points up, they were also raised in the conversation I had.

To illustrate my issues, here's a piece from Independent.ie about 40 year old, Mandy Finlay:

Independent.ie wrote:

One would assume that as one half of a couple in a loving relationship, and as we're not living in Iran, Mandy is entitled to enjoy an intimate sexual life with her partner.
Well, prepare to be shocked.
Not only is it socially unacceptable for Mandy to have sex with her boyfriend, it is also a crime. And if she gets married, she is not legally protected against rape.
And yes. Mandy is an Irish citizen living in Ireland.
Oh, I forgot to mention; when Mandy was born, her parents were told that she had Down Syndrome.

johnnyskeleton

If you are mentally incapacitated to such an extent that you are unable to comprehend the nature and quality of a sexual act, then it is illegal for someone to have sex with you.

If youre mentally incapacitated but not in such a manner or to such an extent that you are unable to comprehend the nature and quality of a sexual act then it is not illegal for you to have consensual sex.

So why do people who have mental incapacities but who still understand sex to a normal adult capacity lack the ability to legally have sex? They dont and anyone who says otherwise is wrong.

Why do people who dont have an adult understanding of sex lack the ability to legally have sex? Well, surely thats obvious

Frank O. Pinion

johnnyskeleton wrote: »

If you are mentally incapacitated to such an extent that you are unable to comprehend the nature and quality of a sexual act, then it is illegal for someone to have sex with you.

How about two people, both "mentally incapacitated to such an extent that they are unable to comprehend the nature and quality of a sexual act", having sex with each other? The criminal law act doesn't seem to reference that.

Pro Hoc Vice

Frank O. Pinion wrote: »

How about two people, both "mentally incapacitated to such an extent that they are unable to comprehend the nature and quality of a sexual act", having sex with each other? The criminal law act doesn't seem to reference that.

Then the question would arise of mens rea. The criminal law is not just the Statue in fact until the last century it was not much statute law but mostly the common law.

Any act must be interpreted with a bit of reality, the section quoted was and is to protect vulnerable people, I have never heard of a case involving two vulnerable people having sex and then facing charges.

In my opinion there is nothing stoping a person with such disability having sex as long as they can consent and are over the age of 17.

Also being mentally impaired is defined in the Act and a defence is set out in the Act.

Dandelion6

johnnyskeleton wrote: »

If you are mentally incapacitated to such an extent that you are unable to comprehend the nature and quality of a sexual act, then it is illegal for someone to have sex with you.

If youre mentally incapacitated but not in such a manner or to such an extent that you are unable to comprehend the nature and quality of a sexual act then it is not illegal for you to have consensual sex.

That's not what the Act says. You don't have to be so incapacitated as to be unable to comprehend the nature and quality of a sexual act; it's sufficient that you are so impaired that you are unable to live independently. That brings a far larger number of people within its terms, including people who are perfectly able to comprehend and consent to a sexual act. The Law Reform Commission has called for the repeal of this provision for that very reason, as have disability groups, and its replacement with a functional test like the one you describe.

Frank O. Pinion

Pro Hoc Vice wrote: »

Any act must be interpreted with a bit of reality, the section quoted was and is to protect vulnerable people, I have never heard of a case involving two vulnerable people having sex and then facing charges.

The person I was talking to was of the believe that it is illegal for two consenting, mentally impaired adults to have sex. I did not believe this to be the case, because it seems ridiculous.

Pro Hoc Vice wrote:

Also being mentally impaired is defined in the Act and a defence is set out in the Act.

5.—(1) A person who—
(a) has or attempts to have sexual intercourse

with a person who is mentally impaired other than a person to whom he is married

That seems to read like it is perfectly okay for a non-mentally impaired person to marry a mentally impaired person and have sex, but it is illegal for the same couple, presumably in love (maybe engaged), to have premarital sex. In this case the law is unfair and unequal.

johnnyskeleton

Dandelion6 wrote: »

That's not what the Act says. You don't have to be so incapacitated as to be unable to comprehend the nature and quality of a sexual act; it's sufficient that you are so impaired that you are unable to live independently. That brings a far larger number of people within its terms, including people who are perfectly able to comprehend and consent to a sexual act. The Law Reform Commission has called for the repeal of this provision for that very reason, as have disability groups, and its replacement with a functional test like the one you describe.

Incapable of living independentlyie wards of court and those in full time care. Or those who are unable to guard against serious exploitation ie those unable to comprehend the nature of a sexual act. Were not talking about someone who is capable of exercising personal autonomy in either case, and i wonder how realistic is the suggestion that someone who is incapable of living independently would fully understand a sexual act. Incapable doesnt mean cant live independently because you cant hold down a job etc. It means you cant feed yourself if left alone etc.

johnnyskeleton

Frank O. Pinion wrote: »

That seems to read like it is perfectly okay for a non-mentally impaired person to marry a mentally impaired person and have sex, but it is illegal for the same couple, presumably in love (maybe engaged), to have premarital sex. In this case the law is unfair and unequal.

Its unequal alright, but how is it unfair? Maybe insofar as it doesnt extend as far as homosexual civil partners, but it doesnt prevent a mentally impaired person having a family life - it just limits the circumstances

Frank O. Pinion

johnnyskeleton wrote: »

Its unequal alright, but how is it unfair? Maybe insofar as it doesnt extend as far as homosexual civil partners, but it doesnt prevent a mentally impaired person having a family life - it just limits the circumstances

Because a mentally impaired person might want to have sex, but not get married. Or how about if they have different relationships over time, they shouldn't have to marry everybody they have a relationship with, to have sex.

And yes, the homosexual issue, of a relationship between a homosexual non-mentally impaired person and a homosexual mentally impaired person, not ever being legally able to have sex, because of the current status of gay marriage in Ireland.

Pro Hoc Vice

Frank O. Pinion wrote: »

Because a mentally impaired person might want to have sex, but not get married. Or how about if they have different relationships over time, they shouldn't have to marry everybody they have a relationship with, to have sex.

And yes, the homosexual issue, of a relationship between a homosexual non-mentally impaired person and a homosexual mentally impaired person, not ever being legally able to have sex, because of the current status of gay marriage in Ireland.

While on the face of it the section makes it illegal for a person to have sex with a mentally impaired person. While the act gives a defence that if the persons is unaware of mental impairment they commit no offence.

The real problem with the legislation as you point out that there seems to be no reference to consent and gives two definitions "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."

Many people live in assisted living but would not be incapable of independent living, the serious exploitation is more akin to a consent issue. But the first part is very badly drafted. But in interpreting we must look at the constitution and ECHR, as both protect privacy ECHR more so, the section must be in my opinion read to allow sex where the mentally impaired can show real consent, if that is not there then a conviction can follow, of course where both parties are mentally impaired then the issue is do either party actually commit an offence.

conorh91

johnnyskeleton wrote: »

If you are mentally incapacitated to such an extent that you are unable to comprehend the nature and quality of a sexual act, then it is illegal for someone to have sex with you.

That rule is not contained within the section, nor is it a necessary inference. There are only two tests for mental impairment. The most straightforward test is an ability to live an independent life as a result of a disorder of the mind. On the face of it, this a very low threshold. A mentally disabled individual may conceivably be incapable of living an independent life and simultaneously be capable of forming the normally-requisite consent associated with sexual relations.

Furthermore, this section is ambiguous regarding the protection of mentally impaired married women, should they be suffering from disorders of the mind to an extent that they are incapable of leading independent lives.

It is worth mentioning that the Criminal Law (Rape) Amendment Act 1990 pre-dates the commencement of the instant Act by three years. The latter effectively creates a new defence of rape within marriage under certain circumstances.

So on the one hand, the Act appears too harsh on many unmarried persons who are mentally impaired. On the other hand, it appears to set too high a threshold for the protection of married persons who are mentally impaired and may be very reliant on their spouses.

I disagree with yourself and Pro Hoc Vice. There is a legitimate cause for concern. The legislature should create an appropriate defence of consent, abolish the marital defence, and re-draft the section in a way that better-protects those with intellectual disabilities, regardless of marital status.

Peregrinus

The law is crude, but it exists because the unpleasant reality is that mentally impaired people are extremely vulnerable to sexual exploitation, and also more than usually vulnerable to emotional injury, and often less able to deal with the consequences and responsibilities of, e.g., unintended or unwanted pregnancy (or even, in some cases, of intended and wanted pregnancy).

Of course, not every sexual relationship involving a mentally impaired person is exploitative, injurious, etc. But there is a high risk.

The kicker is in subsection (4); you can't be prosecuted under this section "except with the consent of the Director of Public Prosecutions".

In other words, the approach they have taken here is this; it's difficult and probably impossible to try to prescribe in advance all the circumstances in which sex with a mentally impaired person should be crimnalised, and all those in which it should not. Instead, we'll adopt default rule which makes it an offence, but prevent private prosecution of the offence, or any prosecution without careful consideration of whether prosecution is warranted.

As I say, it's crude, but it's hard to think of any less crude approach that would still provide any useful degree of protection for a signficantly vulnerable group.

I think to judge how this law operates in practice, it's not enough to look at the text of the law; you also have to look that the pattern of prosecutions, and the prosecution policy.

Dandelion6

johnnyskeleton wrote: »

Incapable of living independentlyie wards of court and those in full time care. Or those who are unable to guard against serious exploitation ie those unable to comprehend the nature of a sexual act. Were not talking about someone who is capable of exercising personal autonomy in either case, and i wonder how realistic is the suggestion that someone who is incapable of living independently would fully understand a sexual act. Incapable doesnt mean cant live independently because you cant hold down a job etc. It means you cant feed yourself if left alone etc.

Cite for that interpretation please. Pretty much all the published commentary I have seen on the law, including as I have said from the Law Reform Commission (in multiple reports), interprets it to mean exactly what is says.

Dandelion6

Peregrinus wrote: »

The law is crude, but it exists because the unpleasant reality is that mentally impaired people are extremely vulnerable to sexual exploitation, and also more than usually vulnerable to emotional injury, and often less able to deal with the consequences and responsibilities of, e.g., unintended or unwanted pregnancy (or even, in some cases, of intended and wanted pregnancy).

Of course, not every sexual relationship involving a mentally impaired person is exploitative, injurious, etc. But there is a high risk.

And yet the disability rights groups are the ones calling for the law to be changed. Will we ever get over the idea that we need to legislate for people for their protection, regardless of what they think they need?

Peregrinus

Consent or capability of giving consent is not the issue here. If it were, there would be no need for a special provision dealing with mentally impaired people, since having sex with anyone with their consent is rape, whether they are mentally impaired or not.

The same goes, incidentally, for the under-17s. People assume that the under-17s are incapable of consenting to sex and, under the influence of this assumption and of US TV shows, often refer to sex with under-age people as "statutory rape". It is not. Having sex with an underage person who does not consent is rape, just like having sex with a person of full age who does not consent. Having sex with an underage person who does consent is not rape at all. But it's still an offence.

Both for the under-17s and for the mentally impaired, the issue is not consent. A 16-year old may be perfectly capable of consenting to sex, as may a person with a learning disability, but that is irrelevant. The issue is social, emotional, psychological, etc readiness to deal with the impact and consequences of sex. In those cases there is a crude but not completely unrealistic assumption that most of the people in the protected group are not ready for sex and shouldn't have to deal with it, with or without their consent.

As I say, this is crude, but in both cases the crudity is recognised, and some flexibility is built in, by the fact that prosecution decisions are confined to the DPP.

Peregrinus

Dandelion6 wrote: »

And yet the disability rights groups are the ones calling for the law to be changed. Will we ever get over the idea that we need to legislate for people for their protection, regardless of what they think they need?

Disability rights groups calling for the law to be changed are not necessarily sayin that there is no need for protective legislation, are they? Just that this is not the law that is required. (I haven't seen any such calls from disability rights groups, by the way. I'm not doubting you when you say there have been calls, but if you can link to them it would be helpful, so we could see exactly what they are saying.)

It seems obvious that there must be a class of people whose mental impairment is such that they do need protection. It may be that the current law draws the line at the wrong place (capacity for independent living may not be the right test to apply) or that there need to be exceptions to cover, e.g., a committed or recognised sexual relationship, or both.

And of course sex isn't the only area where we have legislation affording special protection of one kind or another to the mentally impaired. I think the notion that we should "get over the idea that we need to legislate for people for their protection, regardless of what they think they need" doesn't really stand up when applied to the mentally impaired. They're actually a textbook example of a group where we do need to think about doing this.

drkpower

Peregrinus wrote: »

Both for the under-17s and for the mentally impaired, the issue is not consent. A 16-year old may be perfectly capable of consenting to sex, as may a person with a learning disability, but that is irrelevant. The issue is social, emotional, psychological, etc readiness to deal with the impact and consequences of sex. In those cases there is a crude but not completely unrealistic assumption that most of the people in the protected group are not ready for sex and shouldn't have to deal with it, with or without their consent.

This is a really tricky debate and i think that both yours and conorh's approaches - despite being quite different - have almost equal merit.

On balance, i'd probably just go with conor's approach. While i see why you use the analogy with minors, i dont think its appropriate and in fact i think that analogy is one of the main gripes of the disabvility groups.

With minors, while clearly there are significant differences in social, emotional, psychological, readiness between individuals within a certain age range, you can broadly legislate for them as a group.

The same cant be said for those with mental impairments. There are so many impairments and so much variationin severity, that legislating for them as a group is difficult, and some would argue, is stigmatising. Put simply, two individuals with a mental impairment may be at complete ends of the capacity spectrum (one completely capable of making even complex decisions, the other not capable of making even the most simple decision). The same will not apply to two 15 year olds; yes, one will be more advanced than the other but there will never be the same disparity.

For that and other reasons, a functional approach is more appropriate. I understand and accept your argument that a functional approach may actually provide less protection for vulnerable people, but i think that risk is outweighed by the positives of using a functional approach.

Peregrinus

Ah, look, everything you say is correct; "mental impairment" covers a wide diversity of conditions which vary not only in degree but in their nature. And any "one size fits all" rule is, in fact, not going to fit in a great many cases.

The problem is, though, that a consent-based rule would be a one-size-fits-all rule as well. So would having no special rules for the mentally impaired.

I think there's two ways to approach this, neither of them completely satisfactory.

- A one-size-fits-all formal rule, coupled with a high degree of discretion and careful judgment about when and how to enforce it. That's basically what we have now.

- An attempt to draw up a set of rules which identify different kinds of mental impairment and lay down different tests about the degree of protection from sexual exploitation that is needed for each kind. I admit I haven't thought in detail about how this would work in practice, but my initial reaction is that I'm not convinced that this would produce fewer cases where the rules worked badly, and it would produce a good deal more uncertainty, as someone suffering from mental impairment might have difficulty in establishing which rule applied to them.

This is an area where I think we should be looking at what works. How do the present rules, and their enforcement, play out in practice? Do they help to protect the mentally impaired from sexual exploitation? Is the price paid in terms of loss of autonomy and dignity for that protection too high? Do other countries take a different approach, and how does that work out, in terms of trading off protection on the one hand and autonomy and dignity on the other?

Dandelion6

Peregrinus wrote: »

Disability rights groups calling for the law to be changed are not necessarily sayin that there is no need for protective legislation, are they? Just that this is not the law that is required.

No, of course they aren't. Actually what they often say is that the law as it's written is both too broad and too narrow - too broad because it criminalises even consensual relationships, too narrow because it excludes actual sexual abuse that does not involve intercourse. Here is an example.

Dandelion6

Peregrinus wrote: »

Do other countries take a different approach, and how does that work out, in terms of trading off protection on the one hand and autonomy and dignity on the other?

I can't speak to what the actual laws are in other countries. But I was recently in the US and attended a talk by a disability rights lawyer (who has a disability himself albeit a physical one), which had an international audience of lawyers and human rights activists. During the Q&A afterwards I mentioned Ireland's law. The best I can say about the reaction was that it was not positive.

Peregrinus

Dandelion6 wrote: »

No, of course they aren't. Actually what they often say is that the law as it's written is both too broad and too narrow - too broad because it criminalises even consensual relationships, too narrow because it excludes actual sexual abuse that does not involve intercourse. Here is an example.

What they say makes sense, but it's perhaps easier to criticise the current law than to frame a better one. I think the key paragraph in the report you link is this:

"On the one hand, the 1993 Act does not go far enough to protect people from sexual exploitation, while on the other hand it risks criminalising people with an intellectual disability who are in consenting sexual relationships."

It would be too easy to read this with a mindset that assumes that on the one hand you have exploitative sexual relationships and on the other hand you have consenting sexual relationships, so that a consenting relationship cannot, by definition, be exploitative.

But of course it can, and this is particularly true in the case of vulnerable groups like the mentally impaired. The policy, I think, is that if a relationship is exploitative of a mentally impaired person (whether intended as such, or simply playing out as such regardless of intent) then it should be forbidden, regardless of consent. I think you can defend that policy, while at the same time saying that a presumption that all relationships involving a person whose mental impairment leaves them unable to live independently are exploitative is too sweeping; some other test for vulnerability to exploitation is required. Which is why I would be interested to know of the tests used in other countries.

I'm also interested in this bit:

"The law must be changed to make all sexual offences against people with an intellectual disability criminal, says Inclusion Ireland. Inclusion Ireland is making this call in light of yesterday’s (Monday 15th November) decision by a judge to direct a jury to return a not guilty verdict because the Criminal Law (Sexual Offences) Act 1993 does not provide for oral rape as an offence."

On one level this makes no sense. There is no need for legislation to make all sexual offences against people with an intellectual disability criminal. Sexual offences are already criminal, regardless of whether the victim has a disability; that's what makes them "offences".

I think the point is that if the oral rape had been prosecuted as an ordinary sexual offence, it would have been necessary to show that the victim did not consent. As it was, it was prosecuted as an act done to a mentally impaired person, so the issue of consent was not relevant, but the prosecution failed because oral sex is not caught by the provisions which deal specifically with mentally impaired people. And when Inclusion Ireland is calling for the 1993 Act to be broadened, they say they want it to cover sexual acts which are not vaginal or anal penetration; they want it to be possible to prosecute those acts even if consented to by a mentally impaired person, at least in some contexts. So they are not calling for a consent-based regime for mentally-impaired persons. They want even consensual sexual acts to be prosecutable, provided some other test of vulnerability is met. The key issue is, what ought that test to be?

Dandelion6

The General Scheme of the Criminal Law (Sexual Offences) Bill 2014 was published yesterday

Section 5 of the 1993 Act will be replaced with new wording. It's not finalised yet but the suggestion is that it will criminalise sexual activity with someone who meets a definition along the lines of the following:

"vulnerable person" means 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.

I don't know if the disability groups will be happy with that, but it certainly strikes me as an improvement over the status quo.