Specific statute provision for the protection of mentally impaired persons
The Criminal Law (Sexual Offences) Act, 1993, provides specifically for the protection of mentally impaired persons from sexual abuse. Section 5(1) provides:
‘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 … shall be guilty of an offence.’ The term ‘mentally impaired’ in the section 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’.
The consent of the Director of Public Prosecutions is required to initiate proceedings under this section of the Act, thus preventing private prosecutions. It is a defence for a person charged with an offence under this section, to show that at the time of the alleged commission of the offence he did not know nor had no reason to suspect that the person which whom he performed the act was mentally impaired.
Prosecution of criminal offences
In respect of offences where the accused is a person with learning disabilities, our criminal law does not recognise a defence of diminished responsibility; such an accused is treated as any other person without such a disability. The court may, however, take the fact of disability into account in mitigation.
Where the victim of a criminal offence has a learning disability, there are particular issues in relation to consent and the giving of evidence. Where the offence alleged is of a sexual nature in which consent is an issue (e.g. rape), the fact of learning disability raises the question of the capacity of a person to consent to the sexual act. If it can be shown that the woman with learning disability was incapable of giving consent within the meaning of the Act, ‘beyond reasonable doubt’, an accused could be convicted of rape.
The Criminal Evidence Act 1992 provide specifically for measures to overcome past difficulties in the giving of evidence by persons with learning disabilities in the prosecution of criminal offences. Section 27 of the Act provides that the evidence of a person with a mental handicap who is over fourteen years may be given to the court otherwise than on oath or affirmation. The court must be satisfied that the person is capable of giving an intelligible account of the events relevant to the proceedings, and where a person makes a which he knows to be false or does not believe to be true, he is guilty of an offence.
Section 19 of the Criminal Evidence Act 1992 provides that persons with a mental handicap over the specified age are permitted to give evidence through a television link, an intermediary, or video recording. This applies to proceedings relating to a sexual offence, an offence involving violence/threat of violence to a person, or of attempting or conspiring to commit such offences.
The role of the Director of Public Prosecutions
The prosecution of all criminal offences in Ireland is in the name of ‘The People’, by or at the suit of the Director of Public Prosecutions. The effect of the legislative changes outlined above should be to ease the prosecution of sexual offences against persons with learning disabilities. This is, however, subject to the difficulties which can and do arise in the prosecution of all cases of sexual abuse due to delays in making the complaint/problems of lapse of time, difficulties in securing evidence and in recollecting events. Nevertheless, it is the policy of the Director of Public Prosecutions to prosecute all such offences.
Civil law–Protection of people with learning disabilities
The assumption of wardship (vested in the President of the High Court) previously required the ownership of property which had to be protected/managed by the. But in 1987 the Midland Health Board successfully sought wardship of the court to protect the welfare of an adult woman with a learning disability who was at risk of serious harm. It is now possible to seek wardship of the court for the purpose of protecting a person with learning disabilities from abuse.
CHILD CARE ACT 1991
The Child Care Act 1991 has put in place a comprehensive legal regime directed towards the protection of children under 18 years. The Act sets out the grounds under which a health board may apply to obtain care orders; The Act also provides for the Gardaí to take a child to a place of safety, where is an immediate and serious risk to the health or welfare of a child
Relevance of international human rights law
International human rights law provides a ‘rights perspective’ to understanding the rights of all individuals. The UN Declaration on the Rights of Mentally Retarded Persons (1971) states ‘the mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings’, and that ‘the mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosecuted for any offence he shall have a right to due process of law with full recognition being given to his degree of mental responsibility.’
In the European context, the Council of Europe’s European Convention on Human Rights and Fundamental Freedoms (1950) and the European Social Charter (1961) offer respectively a legally enforceable system for the protection of rights against the state, and a system for review of service provision.
The UN Convention on the Rights of the Child makes specific reference to sexual abuse of children (Art 19), and refers in Art. 23 specifically to the rights of the mentally and physically disabled child and the obligations of the states parties. Although not legally enforceable in the same manner as the European Convention, it is a useful source of reference for advocates of the rights of children with learning disabilities.