Criminalisation of Sex with Disabled People with Cognitive Impairments in Commonwealth Countries: A Colonial Remnant that Interferes with the Human Right to Sexual Agency

Abstract

Sexual offence laws in many Commonwealth jurisdictions criminalise sexual activity with disabled people with cognitive impairments. Many of these laws were created with the intent to protect disabled people with cognitive impairments from sexual abuse. However, they often preclude the possibility for the individual to consent to sexual activity. This preclusion from consenting to sex has the potential to create significant hardship for disabled people with cognitive impairments. It can create barriers to sexual expression and romantic relationships. In addition, it may interfere with the right of disabled people with cognitive impairments to sexual agency, which is protected as part of the right to legal capacity in Article 12 of the 2006 United Nations Convention on the Rights of Persons with Disabilities (CRPD). Many of these sexual offence laws are either colonial remnants or may be a product of colonial influence. Many of the most restrictive laws date back to colonial rule and bear remarkable similarity to laws in the United Kingdom (UK) around the time of colonisation. The UK has since enacted reform in this area and has less restrictive laws. However, even these reformed laws often present barriers to the recognition of sexual consent from disabled people with cognitive impairments. This article reviews sexual offence laws across Commonwealth jurisdictions and analyses their compliance with Article 12 of the CRPD. It identifies a potential need to reform antiquated laws that appear to be a remnant of colonial rule and more modern laws that may continue to create barriers to sexual expression and romantic relationships for disabled people with cognitive impairments.