11:43, June 11 240 0 theguardian.com

2020-06-11 11:43:04
Court overturns 'right to sex' ruling on man who cannot understand consent

The court of appeal has overturned a controversial ruling that a man has a “fundamental right to sex” even though he cannot understand the issue of consent.

In the original ruling, a judge found in favour of the man, identified only as JB, despite evidence that he represented a “moderate risk” of sexual offending, particularly against vulnerable women.

JB, 36, has autism with impaired cognition and cannot understand that a woman’s consent is relevant in sexual situations, nor that attempting sex without consent is likely to be a criminal offence.

JB has never been charged with any criminal offence, but because of his behaviour towards women he has been subject to a care plan by his local authority since 2014 that imposes significant limitations on his freedoms.

The local authority wanted the care plan to stay in place, but in her original ruling Mrs Justice Roberts said JB was “anxious to have a sexual partner and believes that the current restrictions represent an unfair and unwarranted interference in his basic rights to a private and family life”.

Roberts decided that insisting that JB understood the issue of consent before being allowed to pursue sexual relationships would be discrimination because it would “impose on him a burden which a capacitous individual may not share”.

She acknowledged that not having that knowledge might result in JB committing rape or other sexual offences. But she said JB was “entitled to make the same mistakes which all human beings can, and do, make in the course of a lifetime.”

The local authority took the case to the appeal court, which found in its favour, overturning 14 years of jurisprudence that had set the test for capacity in decisions involving sexual activity with another person relatively low. 

Alex Ruck Keene, a barrister at 39 Essex Chambers and a specialist in the field of mental capacity and mental health law, said the new judgment “made clear that we have been asking the wrong question in relation to sexual relations”.

Vikram Sachdeva QC, who represented the local authority, said: “This is an extremely significant judgment and it is very likely that the matter will not stop here. By both recasting the question in JB’s case and suggesting that this is the way in which capacity with regard to sexual relations should normally be assessed in most cases, the court of appeal has essentially pressed the reset button on what has become an intensely tangled – and frankly unsatisfactory – series of cases.”

Prior to this ruling, the court could only indirectly attempt to try to protect mentally disabled parties who did not understand the need for consent, and their partners, from sexual offences being committed. The court could control their contact with people but that control did not necessarily extend into the bedroom.

Sachdeva said: “The new ruling rebalances the law to allow for protection of the incapacitous person and others as well as promoting their autonomy.”

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