Yesterday we looked at Inclusion Ireland’s ( the advocacy group for people with intellectual disability) public entrance into the fray on the 8th amendment with their C.E.O.’s public support for repeal of the 8th so that intellectually disabled women can access abortion which he states is their right along with anyone else.
For a look at where the organisation is on the matter of sexual relations, here is their submission to the proposed law reform section 5 of the 1993 Criminal Law Sexual offences act, which was released in 2013.
Inclusion Ireland state:
“Where there are perceived intimate relationships taking place, particularly in a residential care environment, people working in the service have contacted us with concerns about whether they have a responsibility to prevent such relationships. This so-called ‘chilling effect’, leads to a disadvantage among young people with impairment, as compared to their non-disabled peers.
People with intellectual disabilities face many difficulties in terms of social integration and in particular intimate or sexual relationships. A report by the National Federation of Voluntary Bodies, discovered that while the majority of the teenagers involved in their research “expected to live away from home in the future and to marry”, none had discussed having a current or former boyfriend or girlfriend.
Attitudes play a significant part in driving change in this area and the National Disability Authority reports, that almost half (49%) of people surveyed believed that people with intellectual disability did not have the same right as everyone else to a sexual relationship. Concerns as to the capacity to consent was cited as a significant factor in this attitude. With people with intellectual disabilities facing such significant social and attitudinal barriers, it is clear that legislation compounding these attitudes is unhelpful at best and represents a significant barrier to people with intellectual disabilities enjoying their right to relationships. “
Inclusion Ireland believe that the innocence portrayed in teenagers with I.D. stating that one day they would live away from home and marry but none of them appeared to have a current boyfriend or girlfriend is an indication of difficulties in social integration especially in the area of sexual relationships.They cite staff members in residential care units contacting them with concerns that intimate relationships were happening on their watch as indicative of a pervasive discriminatory mind set, which is borne out in the National Disability Authority Reports showing that half of those consulted did not believe in sexual relationships for people with intellectual disability, because of concerns about capacity to consent.
Just to put it in context: the Irish government’s proposed law reform according to Inclusion Ireland’s submission sought not to prevent sexual relationships among adults with intellectual disability. Rather they stated that the intellectually disabled population, has the right to “a loving sexual relationship” . However this from Inclusion Ireland’s point of view, was discriminatory. They state:
“A person who does not have a disability is not required to demonstrate a loving relationship prior to having their right to sexual relationships respected. The standard, in general, for a person to have a sexual interaction with another person is that consent is present and that the individual had the capacity to consent. In this proposal, it is mentioned that the UN Convention on the Rights of Persons with Disabilities (UNCRPD) obliges States Parties to eliminate discrimination in realizing their human rights. To require people with intellectual disability to be in ‘loving’ sexual relationships is to hold them to a different and discriminatory standard.”
So Inclusion Ireland are stating that the sexual relationships that adults with intellectual disability engage in in general or in care, do not have to be loving. This they feel is patronising them, as the general populace don’t have to have loving relationships. The only thing that is required is that consent is present and the capacity to consent by one party if the other person does not have intellectual disability or by both if both have intellectual disability.
It’s worth noting that Inclusion Ireland point out how acts short of intercourse and buggery were not covered in the 1993 sexual offences act and how this loophole meant that when someone with intellectual disability was abused, the perpetrator walked free. They also point out under the 1993 act, that as a sexual act was prohibited with a person with such a disability, if two people with the disability did engage in sexual relations, they were potentially open to criminal charges which needed to be addressed.
But ultimately Inclusion Ireland’s recommendations to the Dept of Justice are as follows:
The concept of ‘Vulnerable Adult’ should be revisited with a broader ‘Person with Impaired Capacity’ considered
A definition of vulnerability based on an individual’s disability or mental illness is discriminatory and should be removed.
A statement of the presumption of capacity to consent for all persons would be beneficial in terms of policy
‘Loving sexual relationship’ should be removed. If a statement is required ‘Sexual relationship of their choosing’ could be considered.
The statement that ‘no proceedings for a sexual offence shall be brought against a vulnerable person except by, or with the consent of the Director of Public Prosecutions’ should be removed for the reasons outlined above.(This last point refers to a recommendation for reform of the section 5 of the 1993 Criminal Law Sexual offences act that vulnerable persons not be prosecuted)
A big question arises if trying to avoid having clients with intellectual disability engage in sexual relations is deemed to be discriminatory at official level. How after the fact of sexual relations taking place with one or more intellectually disabled people possibly in residential, or day care when state agencies are involved, do the said agencies, handle this on the ground? If it looks like something could happen do they intervene or is consent to be presumed and it’s let go ahead or anticipating them, is capacity and consent established in advance? If relations do happen without warning, is an assessment of functional ability to consent automatically done or only if the general level of functioning raises flags? If it’s heterosexual, does a visit to a family planning specialist automatically kick in? Whether those relationships are loving or not, the presumption of capacity to consent and the entitlement of intellectually disabled people to express their sexuality when and however they wish to, will result in pregnancy some of the time.
If a intellectually disabled woman gets pregnant, won’t she get non-directive counselling that denies the reality of her baby’s right to life just like anyone else? At least in that regard, it is non-discriminatory if the position is that her developing baby has no inherent rights unless she chooses it.
Perhaps the pregnant woman with intellectual disability, judged to have capacity to consent, is asked if she wants the baby and her answer is in the negative. An abortion is arranged. But if her answer is the opposite, is that the end of the story? Consciously or unconsciously will people around her influence her decision not to abort and should she choose not to, accept it? Do the discriminatory attitudes identified in the population kick in then?
If discriminatory attitudes operate along the lines of ‘she’s better off having an abortion and it’s best all round’, who knows and is consulted and who benefits from the abortion? The woman? The person who got her pregnant especially if they didn’t have a disability or don’t want the baby?
A baby will likely have problems that those assisting her or the father if he has disability also, may deem too much for her / him or their families or the health system to cope with. This may be perceived as grounds enough for influencing a push to abort however nuanced or unconsciously done (or not) though it shouldn’t happen. Although Inclusion Ireland advocate that she has the right to marry or not and have a baby or not, what of the non-directive counselors in family planning clinics if that is the route taken or if a worried next of kin family member want her to have an abortion: does that influence the decision?
If the abortion happens, again, does anyone else benefit? The HSE? There are many who view the disabled as a burden including state agencies and state agents. One has to look no further for this term ‘burden’ being used about babies with disabilities, than the final report of the Joint Oireachtais committee on abortion which recommended to repeal. However there was no press conference or statement by Inclusion Ireland about that.