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'Where, after all, do universal human rights begin? In small places, close to home -- so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person... Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.' Eleanor Roosevelt, 1958

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Sunday, 6 February 2011

Incapacity, Sexuality, Law

A Court of Protection case about a man with learning disabilities who was banned from having sex has recently been in the news.  The case was reported in the The Daily Mail and The Telegraph, and Libertarian blogger Anna Raccoon, wrote about the case in a posting entitled ‘Too stupid for sex?’  Crown Office Row barrister Adam Wagner wrote a nice summary of the case in the UK Human Rights Blog, and the judgment itself can be found here.

In brief, the case concerned whether a man with learning disabilities, ‘Alan’, who lived in local authority accommodation should be banned from having sexual relations because he lacked the mental capacity to consent to them.  The judge reviewed existing case law on both the capacity to consent to marriage and the sex, and concluded that the law required a person to be able to understand three things in order to be able to consent to sex:
    • The mechanics of the act
    • That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections
    • That sex between a man and a woman may result in the woman becoming pregnant
The judge found that Alan lacked understanding of these matters, and directed that a ban on him having sex should be upheld in the short term, but that he should be provided with an education on these issues in order that he might attain the capacity and be able to resume sexual relations in the future.  In general the consensus on this case appears to be that it was a sensible decision, but there are aspects of the case I find deeply unsettling, which I will discuss here.

The judge in this case followed reasoning laid down by Judge Munby concerning whether the capacity to consent to sexual relations or marriage is ‘general’ or ‘partner-specific’.  In Sheffield City Council v E (2004), it was found that the capacity to consent to marriage was determined by whether or not the person understood the contract of marriage in general– rather than the implications of the specific relationship.  The case concerned whether E, a woman with learning disabilities, had the capacity to consent to marry S, a man with a history of domestic violence and a conviction for buggery of a minor.  It was held that as long as she understood the ‘simple’ contract of marriage, then she had the capacity to consent to marriage with any partner, no matter what his background.  In another case, Judge Munby argues the same way for the capacity to consent to sexual relations: ‘It is difficult to see how it can sensibly be said that she has capacity to consent to a particular sexual act with Y whilst at the same time lacking capacity to consent to precisely the same sexual act with Z.’  Serious concerns with this line of reasoning have been raised by academic commentators  - there is an excellent discussion of the judgment in Sheffield City Council v E in the recently published book Feminist Judgments.  Supreme Court Judge Baroness Hale also remarked on difficulties with this line of reasoning in another case, R v C (2009), in which she said ‘My Lords, it is difficult to think of an activity which is more person and situation specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place.’ [27]

Judge Mostyn- in the present case dismissed Baroness Hale’s remarks as ‘conflating the capacity to consent to sex with the exercise of capacity to consent to sex.’ [34]  In relation to this specific case, I think it is possible Judge Mostyn is correct.  Where I depart from agreement with him is in his analysis of what understanding is required to be able to consent to sex.  Specifically, although he believes it is important to have an understanding of the ‘mechanics of the act’ and the risk of pregnancy or infection, he dismisses the importance of understanding either the emotional repercussions [37] or the need to understand that sex should be between consenting adults [39].  I will take the latter point first.  Judge Mostyn argues because rapists and paedophiles have the capacity to consent to sex, even though they believe it is morally acceptable for it to be non-consensual or with children, an understanding of consent cannot be an essential ingredient in the capacity to consent to sex.  This seems to me to be a faulted analysis of the situation.  Surely the point about rapists and paedophiles is that they understand but disregard, the legal requirement for sex to be between mutually consenting adults.  If it is held that a person can have the capacity to consent to sex without any understanding that it should be consensual, there seems to me to be a risk that people like Alan could be held responsible for entering into non-consensual sex where they had no understanding of consent itself.  The consequences could be that one party is held liable for rape, where they did not understand the other party had a right to refuse sex, or, conversely, that one party is held to have engaged in consensual sexual relations merely because they did not understand they had the right to refuse them.

This is not merely a matter of social engineering, of ‘teaching what is right and wrong’ [41]; it seems to me that a vital ingredient in having the capacity to exercise consent in any matter is that one must understand the nature of consent itself.  One can hardly be expected to exercise a right to refuse unwanted interferences if one does not understand that one can.  It would be absurd, by comparison, to hold that a person could be said to have consented to a marriage where they believed they had no choice in the matter.
The second subject I want to comment on in relation to this case is a wider social issue, relating to how Alan managed to attain the age of 41 without any of the basic understanding around sex the judge feels is necessary to exercise the capacity to consent to it.  This case is in many ways a fantastic example of how mental capacity is not only related to physiology, but also to a person’s life experiences and current situation.  In my experience of working with adults with learning disabilities, Alan’s situation is by no means unusual.  I have lost track of the number of people I have worked with who are well into adulthood and have no understanding of what sex involves or what its consequences might be.  Yet, these same people display behaviours which clearly show they have a sexual libido, or – particularly for many women I have worked with - that they would like to have a baby.  How have we, as a society, allowed people to enter into adulthood with the physical and emotional longings for intimacy, sexual relations and procreation but so poorly equipped to understand or safely exercise those feelings?  We would not dream of sending our non-disabled children into the world with such dangerous gaps in their knowledge, so why is this happening to people like Alan?

If we look back across the history of adults with learning disabilities in the last century, we can see on ongoing concern with their sexuality.  In the early twentieth century, as is relatively well known, there was a movement to sterilise ‘mentally deficient’ adults – spearheaded in Britain by the Eugenics Society.  In Britain (although not elsewhere), this movement was successfully opposed by an unlikely coalition of Catholics and Libertarians – including the author G K Chesterton.  Public debate over eugenic sterilisation reached a peak over the 1913 Mental Deficiency Bill, where the government eventually removed a clause requiring eugenic sterilisation of ‘mental defectives’ and instead established ‘colonies’ for their separation and sexual segregation.  The defeat of eugenic sterilisation has been widely hailed as a triumph of liberalism over fascistic leanings, a triumph that I would not want to deny.  But, as is raised in this case, I think there is a fundamental question over whether the containment and sexual segregation of people with learning disabilities can be hailed as a ‘humane’ or progressive alternative.  I do not advocate a return to systematic sterilisation of people with learning disabilities, far from it, but the spectre of eugenic sterilisation has long clouded debate over the measures that were implemented in its stead.

It is out of this background of the desexualisation of people with learning disabilities, I believe, that people like Alan are attaining majority age with no knowledge or vocabulary to describe their sexual feelings.  Based on my experiences working with children and adults with learning disabilities, I think there are two dominant background beliefs which continue to give rise to this situation.  The first is that by providing people with learning disabilities with education on sex, they will be more inclined to desire it, and that it turn would give rise to uncomfortable consequences.  If my experiences and the cases like these are anything to go by, a lack of sex education does not lead to an absence of sex drive.  It leads to a dangerous lack of sexual awareness, which may lead to inappropriate behaviours such as those demonstrated by Alan, or the considerable danger of unprotected or unwanted sexual encounters.  Failure to provide an adequate education on not only the mechanics of sex, but also the social and legal issues that attend to it, are a major factor in why adults such as Alan can be said to lack the capacity to consent to sex in the first place.

The second background belief which I believe informs the lack of sex education given to people with learning disabilities, is that they will not need it in any case because they will always be prevented from having sexual encounters.  This has deep roots in the ‘containment’ and ‘management’ solution to adult sexuality found during the eugenics debates of the early twentieth century.  It speaks directly to a question of deprivation of liberty that was, in my view, rather brushed over by the court in this case.  It is hard to see how the degree of control that must be exercised in order to prevent someone having sexual relations can be anything but a deprivation of liberty.  This is one key difference between the issues surrounding sex and marriage.  Whilst a marriage could be annulled where one party lacked the capacity to consent to it, a sexual act cannot be undone – thus, it must be prevented.

It is a peculiarity of these cases that they concern the concept of consent, which arises from a tradition of negative liberty and the prevention of unwarranted interferences with one’s autonomy and one’s person.  Although Adam Wagner sees this case as relating to issues of public safety, it seems to me that the court is primarily addressing the question of whether Alan should be permitted to resume his relationship with his housemate Kieron, not whether he should be permitted to molest and rape the public at large.  Thus, they are concerned with whether permitting Alan to have sex with Kieron infringes his bodily integrity, because he cannot be said to have consented to it.  It seems to me ironic that in an attempt to protect Alan’s bodily integrity and autonomy in such a private matter, his sex life is brought before a public court, to be reported in the national press.  He is subjected to a range of deeply personal assessments by medical professionals; interestingly, there is no discussion as to whether he consented to these.  He is physically prevented from resuming his sexual relationship to the extent that he is deprived of his liberty; one can only assume that at points this included physical restraint.  I do not question the legality of the path which led to this state of affairs.  If Alan lacks the mental capacity to consent to sex, then any penetrative sex he engages in will be statutory rape – as for a child, and those who care for him cannot therefore permit it.  I wish however to point to the considerable irony that in seeking to avoid this ‘violation’ – which Alan himself desires – the authorities are forced to exercise further violations upon his bodily integrity, autonomy and privacy.

I wanted to end this piece with a consideration of the extreme difficulties faced by those charged with the care of adults who lack mental capacity in supporting, or otherwise, their sexual needs.  There is beginning to be a change in attitudes towards sex education and supporting the emerging sexuality of adults with learning disabilities, but the issues are extremely complex.  One great concern is whether people with learning disabilities should be supported to have families.  In a school for children with learning disabilities that I once worked in, there was a poster on the wall which read “People with learning disabilities can do anything, including having a family” – it had a picture of two stick figures under a rainbow, holding hands, with a baby.

I thought of this poster often, years later, when I worked in a unit which provided residential assessments of families subject to child protection proceedings in the courts.  I worked largely with families where one parent or the other had learning disabilities.  Their situation was a million miles from that rainbow drawing.  In most of the cases I saw, although – importantly - not all, even the most intensive teaching did not instil the skills needed to provide ‘good enough’ parenting.  One particularly common problem was that whilst parents could demonstrate learning when called upon, this learning was not reliably implemented where parents were distractible.  Interventions to prevent boiling formula milk being given to babies, to prevent overdoses of medicine, babies left unattended in the bath were not unheard of – and whilst some parents learned to avoid these situations, not all did.  Some of the most agonising cases also concerned domestic violence by fathers who often did not have learning disabilities.  In such situations, the mother was often left with the unbearable choice of staying with her abusive partner, who was able to provide the support and planning needed to demonstrate ‘good enough’ parenting, or to fail to demonstrate that she could do this alone and thus lose her child.  I cannot begin to imagine the pain these families went through, but I can recount that these were the most distressing and difficult moments of my working life.  There were families that came back several times over the years to replay this nightmare scenario, often – but not always, with the same results.  It occurred to me on several occasions that if these parents lived within more supportive communities, or had more support from families (most were themselves brought up in care) or the state, they might have been able to safely parent.  But people with learning disabilities are, as yet, a very significant distance from such an ideal situation.

Whilst systematic sterilisation is undoubtedly morally repugnant, and prevention of sexual encounters altogether may result in significant violations of bodily integrity and indeed dignity, it is simply not possible to hold up our hands and say that we should abstain from involvement altogether.  I concur with Judge Mostyn and Lord Justice Munby that we should be cautious about setting the bar for capacity to consent to sex too high, such that people – for instance – with learning disabilities could not enjoy sexual relations and are subject to major infringements of their liberty to avoid them.  The structure of the Mental Capacity Act regarding sex means that we cannot take a person’s ‘best interests’ into account.  This is because consideration of ‘best interests’ only comes into play once someone is said to lack the mental capacity to take a decision for themselves; the decision to consent to sex can never be taken on behalf of another person.  This seems both wise and prudent.  However, I would caution against a measure of capacity that viewed sex as a mere mechanical act with attendant ‘biological’ risks.  Surely an understanding of the risks of possible infection or pregnancy requires a comprehension that these will have major practical and emotional sequellae, sometimes life changing.  I do not envy the decisions that must be made by those who care for Adam; but I hope those providing him with sex education take some trouble to ensure he understands more than the minimal criteria set out by the court.

[Edit: I've just found a fantastically interesting, useful and free article by Peter Bartlett, from Nottingham University, on issues relating to dementia and sex in care homes.  This particularly focuses on the Sexual Offences Act 2003, and it well worth a read.]


  1. There's a great post on press reporting on the Court of Protection by Fighting Monsters, which touches upon public responses to issues of sexuality and mental capacity:


  2. 39 Essex Street Newsletter for February comments on this case:

    'If this decision is correct, it is clear that the criminal test for capacity under s.30 of the Sexual Offences Act 2003 and the civil test are not the same; a point which was not acknowledged in A‟s case. It may also, counter-intuitively, impose more restrictions on people with learning disabilities rather than promote their sexual freedom, since where an exploitative or abusive relationship exists, the inclination may well be to „fail‟ the individual on the test for capacity (as there is inevitably a degree of flexibility about how much knowledge of, for example, STIs, is required). This could then result in a global declaration preventing sexual contact for the individual in other, non-exploitative contexts. Local authorities and those working in this area can only hope that the issue does receive consideration by the Court of Appeal in the near future.'

    Glad I'm not alone in my concerns...

  3. Thanks for this post. I think that generally (although things are better than they were) people charged with 'care' have difficulties with issues related to sex and sex education (in the case of people with learning disabilities). I work with older adults and trust me on this, people don't lose their desire for sex and close human contact when they have dementia. This is an issue that is skated around by many residential homes and hospitals where there is an appalling lack of understanding of the issues -of course, the issues around unwanted pregnancies possibly means that this flies even further under the radar but it is an increasing issue. I personally, as one fairly random social worker with a not-higher-than-average caseload have seen cases relating to this with increasing frequency. It would be an interesting research project because these cases are very unlikely to come up to the Court of Protection for judgement.

  4. I think inevitably these cases will come up more in the Court of Protection, although my instinct is that it will be a learning disability case rather than dementia. This isn't because, as you say, people stop desiring sex when they have dementia, but because - in my experience - people in residential homes for dementia tend to be subject to a closer degree of control and more successfully prevented from having sexual encounters. Also, as you say, without the risk of pregnancy local authorities are probably less likely to pursue the matter in costly court action.

    One of the trickier issues with declines in mental capacity, as through dementia or brain injury, is what happens to existing sexual relationships. If your partner has dementia, but you do not, at what point does continuing your sexual relationship become 'rape'? What if refusing sex causes them distress?

    One point that is made in the 39 Essex Street newsletter, is that the courts - in considering an individual case - generate legal tests for capacity to consent to sex without necessarily considering in depth the other circumstances where that test may then have to be applied. There are such a wide range of situations, it's hard to consider a test that would be appropriate to manage all rights and risks considerations.

  5. Very well read piece.

    The hard place to the stone you create of lack of effective sex/relationship education to learning disabled people is the often inappropriate labels of 'sex offender' placed on learning disabled people because they engage in sexual behaviour.

    I worked in a forensic setting as a psychotherapist with learning disabled patients labelled offender who in many cases had not been helped to deal with their sexual feelings.

    Sex and sexuality are fundamental aspects of the human condition and in terms of human rights is enshrined in the universal declaration in the right to private relations. The aetiology of this being the denial of family life by the Nazis to groups they classified as sub human.

    Sterilisation is a mechanical response to that basic human urge to find pleasure through our bodies, sex being one of those routes.