The Shadow of an Archaic System

  • In a modern world, laws need to change and be made new to help people
  • People need freedom to decide what they want to do and have a good life
  • Rules should not just create barriers to prevent people marrying
  • It’s about support, information, rights, respect and happiness for people.

In an Ireland that twelve months ago voted for marriage equality, there is still a category of persons for whom having a relationship is not legally clear.

For people with intellectual disabilities, beside the usual challenges of meeting a significant other, there is an onerous legal shadow hanging over them in the shape of an archaic system and a more recent law that is nonetheless just as restrictive and prohibitive.

122 people with intellectual disability became Wards of Court in 2015 and if you are a Ward of Court, by virtue of the Marriage of Lunatics Act 1811, you may not get married. The intent of this Act is to ‘prevent the marriage of lunatics or any person under a phrenzy’.

For the majority of people who are made a Ward of Court, it is typically for financial reasons such as inheritance or an award of damages. The consequences of wardship, including this change in status, ensures that they cannot marry. This is often a source of anger, frustration and regret for individuals.

The good news is that this law is changing and being removed from our statute books when the long-anticipated Assisted Decision-Making Act 2015 commences, hopefully by the end of this year. Upon commencement, all individuals will be free to marry in accordance with law and provided they have capacity to do so. Marriage equality will be finally secured for all.

To marry you must have capacity and in general terms, capacity to marry is considered at a relatively low standard. As was decided in the famous Durham case “the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend”, and the court described marriage as an engagement to ‘live together and love one another…. to the exclusion of all others”. This doesn’t represent a particularly high legal standard, but does represent a major life goal for many people.

If you are not married, have an intellectual disability and wish to have a sexual relationship then the law is not clear. In 1993, a law was introduced that was hailed as advancing the rights of LGBT persons by effectively decriminalising homosexuality, but was instead creating a new category of person to criminalise. The ‘mentally impaired’ person was created and that same act made sexual intercourse with that person a criminal act. There is no mention of capacity or consent; instead an abstract and arbitrary definition of ‘mental impairment’ is included that provides little clarity over who can and cannot enjoy a sexual relationship. There is one caveat to the law however, in that it does not apply to marriage, so a sexual relationship that could be considered criminal outside of marriage, is not criminal inside marriage.

As far back as 2005, The Law Reform Commission said that “a regrettable effect of (the law) is that, outside a marriage context, a sexual relationship between two ‘mentally impaired’ persons may constitute a criminal offence because there is no provision for consent”.

This tandem system is confusing and it is unfair. It does little to protect – as can be attested to by the paucity of case law. Where sexual assaults have occurred, they tend to be tried under mainstream sexual offences legislation, and that can prove challenging for survivors of abuse in giving evidence, something the 1993 Act was designed to avoid.

Two cases that were widely reported on in the media showed the inadequacy of the law from a protection perspective. In DPP V XY, a man was charged and acquitted of the oral rape of a woman with an intellectual disability. Because there was no evidence of intercourse, the accused was not charged under the 1993 Act and the Act he was charged under gave no regard to any mental impairment of a complainant. In his judgment Mr. Justice Barry White stated “It seems to me that the Oireachtas when they introduced the 1993 act did not fully appreciate the range of offences needed to give protection to the vulnerable”.

A second case, again widely reported on in the media involved a young woman with Down Syndrome from County Kerry. Again as the sexual act fell short of penetration there was no charge under the 1993 Act. The judge in the case made the decision that the woman was an unreliable witness and as a result the charges were dismissed.

Clearly the law fails in its intended protective elements, but concomitantly, self-advocates with intellectual disabilities report the restriction of their rights as adults to have intimate relationships including sexual intercourse. Through our advocacy work, Inclusion Ireland has experienced the negative impact of the legislation, with educators and advocates afraid to provide support or education to individuals with disabilities, for fear of encouragement of law-breaking.

Again, thankfully this 1993 Act is under review as part of Ireland’s ‘Roadmap to Ratification’  of the UN Convention on the Rights of Persons with Disabilities (UNCRPD), and it is anticipated that new legislation which more effectively protects, while also avoiding undue interference, will emerge before the end of the year.

Clearly the Criminal Law does not satisfy requirements of the UNCRPD and provides a barrier to people with disabilities enjoying relationships on an equal basis with others. Although the prosecutions under the 1993 Act are rare, the legislation has created a culture of fear and inactivity.

In terms of relationships, family planning and marriage, access to information and education can be a big challenge for many people with disabilities. People can be afraid to ask for support or information, doctors or other medical practitioners reluctant to provide services and other people who are in natural or paid positions of support may be afraid to offer information by virtue of the shadow of the criminal law. In June 2014, then Senator Katherine Zappone said that the law had created, a “chilling effect” where persons with intellectual disabilities within Irish society are fearful of forming relationships (The Irish Times, 10 June 2014).

Nonetheless, people with intellectual disabilities or extra support needs have identified relationships, sex, marriage and family life as important life goals for them. In a submission to the Law Reform Commission, the Connect People Network said “The law about sex and people with extra support needs is very important. The law affects some of the most important things in our lives”.

The UNCRPD requires States to take positive measures so as to ensure that people with disabilities have respect for privacy in family or home life (Article 22), and to take measures to eliminate discrimination in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others (Article 23).

In its report on Sexual Offences & Capacity to Consent, the Law Reform Commission commented that this “may be considered to have particular application to women, and …that all persons, including pregnant women, irrespective of their disability status, are entitled to have access to age-appropriate information and reproductive and family planning education”.

Additionally, the Commission took the view that “the provision of appropriate educational support… should be a pre-requisite to (testing) capacity to consent to sexual activity” and additionally that “education programmes should deal with privacy, intimacy, assertiveness, empowerment, relationships and the ability to identify abusive or exploitative situations”.

Through its advocacy work, Inclusion Ireland has encountered many people providing sexual education and training to people with intellectual disabilities who regularly cite fears about the law as a barrier to delivering good education. Educators are afraid that they are encouraging people to break the law.

Relationships in general can be hard for people with intellectual disabilities. Barriers exist in terms of socialising, loneliness as well as marriage and having a family. The recent report of the Intellectual Disability Supplement of the Irish Longditudinal Study on Ageing (IDS-TILDA) reported in 2014 that people with intellectual disability are generally single and without children or grandchildren. The same report noted that socialising can be difficult for people with disabilities, particularly those in institutions. Socialising tended to occur with staff or other residents. Almost half of adults involved in the IDS-TILDA reported feeling loneliness.

Further barriers exist with people with disabilities and their interactions with the public. Public attitudes towards people with disabilities having sexual relationships or founding a family are mixed. An Inclusion Ireland survey in 2008 found 98% of people believed that people with intellectual disabilities should have the opportunity to live as normal a life as possible. This is an exceptionally high number and represents a positive sign, but when more specific questions were asked the numbers began to drop. When asked about the right to marry, the number decreased to 80% and while this is still high, it means that one in five people do not believe that a person with intellectual disability should have a right that other adults have.

In the 2011 NDA Attitudes survey, approximately eight out of ten respondents agreed that people with vision, hearing or speech disabilities or physical disability have the same right to sexual relationships as the general population. However the number was significantly lower with people with learning disabilities or autism, with just 51% in agreement that they have the same right to sexual relationships as everyone else. Furthermore, support for people with intellectual disability or autism to have children if they wish was recorded at 38%.

It seems counter-intuitive that people would hold an attitude that people are entitled to a ‘normal life’ but that this would not include marrying or having a family or that people would have the right to marry but not to have children, yet successive surveys demonstrate that this is a prevailing view.

Clearly there is significant work to be done, not only in amending the criminal law and protecting people’s rights to relationships, but also in improving the visibility and acceptance of people with disabilities as having choice over their sexual agency, as partners, as spouses and as parents.

Sarah Lennon is Training & Development Officer at Inclusion Ireland .