Protection or paternalism? A critical evaluation of Australian legislation relating to sexual acts involving persons with intellectual disability

As a result of the development and recognition of human rights and of the principle of normalisation, in recent decades sweeping changes have occurred in the living conditions of many people with intellectual disability. The United Nations Declaration on the Rights of Mentally Retarded Persons (1971) contains statements to the effect that, as far as possible, the lives of disabled persons should resemble those of their non-disabled peers, and this presumably extends to sexual expression. 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, the right to sexual expression has to be balanced against a right to protection. Under some conditions, the provision of protective measures may fall to the criminal justice system, which may be used to afford protection to 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 sexual activities; to prohibit sexual relations with persons holding power or authority over the person; and to proscribe all sexual exploitation. This thesis contains proposals for reforms to each category of legislative provisions. First, it is suggested that the standard of knowledge required to support consent should more closely resemble the knowledge required for informed consent to medical procedures. Second, restrictions on sexual activity with persons with intellectual disability based