Legislating Consent

DOI10.1177/0964663915599051
AuthorAnna Arstein-Kerslake,Eilionóir Flynn
Date01 April 2016
Published date01 April 2016
Subject MatterArticles
Article
Legislating Consent:
Creating an Empowering
Definition of Consent to
Sex That Is Inclusive of
People With Cognitive
Disabilities
Anna Arstein-Kerslake
University of Melbourne, Australia
Eiliono
´ir Flynn
National University of Ireland Galway, Ireland
Abstract
In this article, we draw on our experiences of law reform in Ireland to explore how to
create a definition of consent to sex that is inclusive of people with cognitive disabilities.
Using critical disability studies and feminist theory, we set out the context in which
capacity to consent to sex law is currently operating. We critique the law on the basis
that it holds people with cognitive disabilities to a different standard of sexual decision-
making than others. We tell the story of the movement in Ireland to reform such law and
our experiences working collaboratively with artists, disabled people’s organizations and
parliamentarians to achieve change.
Keywords
Consent, disability, sex
Corresponding author:
Eiliono
´ir Flynn, Centre for Disability Law and Policy, Institute for Lifecourse and Society, National University of
Ireland Galway, Galway, Ireland.
Email: eilionoir.flynn@nuigalway.ie
Social & Legal Studies
2016, Vol. 25(2) 225–248
ªThe Author(s) 2015
Reprints and permission:
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DOI: 10.1177/0964663915599051
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Introduction
Sex and sexuality is an important part of personhood and identity. Recent scholarship has
affirmed that people with disabilities must have equal recognition of legal agency in all
areas of life – including sexual agency (Flynn and Arstein-Kerslake, 2014). However, the
criminal law in many jurisdictions has assumed that persons with disabilities, and
women with cognitive disabilities in particular, are vulnerable to sexual exploitation.
As a result, it has prioritized the protection of people with cognitive disabilities over the
recognition of their sexual agency.
1
The criminal law often seeks to provide this protection in the form of separate crim-
inal offences that only apply where the complainant has a cognitive disability and where
the complainant is not regarded as capable of providing valid consent to sex. These laws
presume that people with cognitive disabilities are vulnerable and require that their abil-
ity to consent to sex be demonstrated, before their consent will be regarded as valid.
2
In
the past decade, in many countries, people with disabilities themselves have begun to
critique these laws. With the support of allies, they have begun to develop concrete pro-
posals for law reform. These proposals, such as the one we helped to develop in Ireland,
seek to ensure that rape and sexual offences law is disability sensitive and non-
discriminatory.
We partnered with people with disabilities and allies in Ireland to develop a definition
of consent to sex that can accommodate the diverse ways in which people with disabil-
ities, and others, communicate and make decisions about sex. Throughout this process, it
became clear that reform can and should take as its starting point the views of people
with disabilities and their grass-roots advocacy organizations. This approach has the
potential to lead to more sustainable, inclusive and effective rape and sexual offences
law that serves the whole population and provides recognition of people with disabilities
as sexual agents.
Setting the Context: Disability and Sexual Violence
Feminist scholarship has documented the history of rape and sexual violence as a tool of
oppression both in the larger societal realm (MacKinnon, 1994) and in interpersonal rela-
tionships (Copelon, 1993). Rape and sexual offences law has often been constructed
either in a domineering way that leaves sexual power in the hands of men (Anderson,
1998; Ryan, 1995) or in a paternalistic way to ‘protect’ women (Schulhofer, 1992).
Many feminist scholars have discussed these issues in depth (Estrich, 1987); however,
much of the feminist literature on rape and sexual offences has overlooked the perspec-
tives of people with disabilities. This is particularly unfortunate because studies have
shown that people with disabilities, especially women with disabilities, experience sex-
ual violence at a higher rate than people without disabilities (Plummer and Findley,
2012; Young et al., 1997). Women with disabilities have fought for their right to be
treated equally as sexual agents (Morris, 1991) and to equal protection from sexual vio-
lence. Many disability activists have argued that people with disabilities also have a right
to be free from disproportionate interferences into their sexual lives (Shakespeare et al.,
226 Social & Legal Studies 25(2)

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