Protection Or Paternalism: Sex, Intellectual Disability And Law

However, the words “as far as possible” imply that in some circumstances, limitations on a right may be justifiable. One such circumstance is where a competing right exists, for example, a right to sexual expression has to be balanced against a right to protection. Criminal law may provide some protection by defining sexual offences against persons with intellectual disability.

Australian jurisdictions have used three different approaches in current legislation: to set a minimum standard of sexual knowledge that must be present before the person is deemed capable of consent; to prohibit sexual relations with persons of holding power or authority over the person; and to proscribe all sexual exploitation. These specific offences notwithstanding, there is a high incidence of sexual offences against members of this population, and few offenders are prosecuted.

It is my contention that current statute does not provide the requisite level of protection, nor does it support freedom of sexual expression for persons with intellectual disability. In this paper I propose reforms to law and to social policy which should allow persons with intellectual impairment to concurrently exercise their rights to sexual expression and protection.