Understanding Sex: The Right to Legal Capacity to Consent to Sex

Abstract

This article addresses the right to legal capacity to consent to sex of people with intellectual disabilities. Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) guarantees the right to legal capacity on an equal basis in all areas of life. This article discusses sex as an area of life in which people with intellectual disabilities are frequently not being granted legal capacity on an equal basis. It examines current capacity to consent to sex law in Ireland, England and Wales in light of Article 12. It proposes an ‘agreement model’ as a potential Article 12 compliant alternative to capacity to consent to sex legislation.

Keywords: legal capacity, consent to sex, sexual offences, intellectual disabilities

JEL Classification: K00, K39