‘Let’s talk about sex’: balancing rights and responsibilities

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Working for a human rights charity, my team and I spend a significant amount of time talking about sex. The right to have relationships with people – from friendships to sex – is part of each person’s fundamental human rights, guaranteed in law both internationally and here at home. But that isn’t the same as some rather unfortunate (and perhaps revealing) language reportedly used by a judge in a case currently at the Court of Protection, language which has hit the headlines this week.* He is quoted as saying “I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife – and the right of the State to monitor that.”

Let’s be clear, no man has the right to have sex with his wife (or anyone else). What he, and she, and everyone else, does have, is the right to have relationships and for the state to not interfere with this unless it is lawful to do so, for a legitimate (usually protective) aim, and it is proportionate to restrict that right. Clearly protecting people who do not, or cannot, consent from another person’s sexual advances meets this test. In fact, the right that protects our ability to form relationships, applies equally to all people involved, in this case the husband and the wife. As well as forming relationships, the right to respect for private life** also means that the other person does not have to have a relationship with you, ensuring that their informed consent, choice, control and well-being is secured.  Indeed, human rights were an important part of dismantling English legal provisions which allowed martial rape until the early 1990s.  Our criminal law, at least on paper, has caught up and it is clear that consent is required for sexual relationships; where there is no consent (which requires freedom and capacity to make that choice) the situation becomes one of rape and/or other offences under the Sexual Offences Act. And where sexual offences occur, it has been established that under the Human Rights Act there is an operarional duty on criminal justice services to investigate and protect people’s right to not be subjected to inhuman or degrading treatment.

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Reports of the case hitting the headlines suggest the woman has a learning disability(s) and that social services are concerned that she has diminishing capacity. Talking about capacity in this generalised way often sets off alarm bells for us. The law recognises that as people we don’t lose capacity wholesale, simply because we have a learning disability (or dementia, or a brain injury, etc.). Rather, it must be shown that we lack capacity to make a specific decision. So in this case the issue is whether the woman does indeed lack capacity to make an informed choice to consent to having sex with her husband. The woman, her rights, including her capacity, should be the central focus of the court’s undertaking. A detailed examination of the evidence, hearing arguments from those representing the woman, her husband and social services is what the judge has said needs to happen now.

The right to have relationships, and restricting this when a person’s capacity to consent may be impaired by learning disabilities or other issues, is something the courts have had to deal with before, and will continue to do so. In one case involving LC, a woman with Autistic Spectrum Disorder and a learning disability, the court found that by looking at capacity in an issue-specific context (as the law requires), it is possible to “possess the decision-making facility to embark on sexual relations whilst, at the same time, not being able to judge with whom it is safe to have those relations.”*** Another case involved CH, a man with Downs Syndrome who, after several years of living with his wife, sought fertility treatment, which triggered a capacity assessment. This found that CH could not consent until he had been provided with a sex education, which the consultant psychologist determined would enable CH to achieve capacity. The local authority wrote to his wife, WH stating that she must abstain from sexual intercourse with her husband as that would, given his incapacity to consent, be a serious sexual offence under the Sexual Offences Act. If this happened either CH or WH would be removed from the home. The course wasn’t provided to CH for 18 months, despite repeated requests on CH’s behalf. A court case was taken, which found that whilst some incursion on the sexual relations of CH and WH would have been a justifiable restriction of their rights, such a long time delay in enabling CH to achieve capacity to consent was not.****

Too often at BIHR, we see services that sweep in and assume that a person cannot consent because they are disabled or unwell and therefore staff can simply put a stop to relationships. At a recent BIHR session with care staff we were discussing a situation where a nurse had “caught” two residents who both live with dementia having sex in one of their bedrooms, and telephoned their families to relay this information. Whilst there were assumptions about what is appropriate for people with dementia, there was in fact no concern that either person did not consent. The next week we had a similar conversation with safeguarding staff where a woman with learning disabilities had been assessed as not having capacity to consent to sex, but was using social media to meet up with men to have sex. In both cases human rights law is there to protect the rights of people who do consent to sex to be able to exercise their rights to choice without public officials arbitrarily interfering and to ensure officials take positive action to step in an protect people who cannot consent, to ensure their rights to safety and well-being are protected.

There is no doubt much complexity to the case before the Court of Protection, and details in reports are patchy – but the question remains is it about misogyny? The comments of the judge certainly point to, at best an unfortunate use of language, but perhaps more worryingly deeper rooted issues about the perception of gender and women within our legal system. But we have to remember that what the headlines are leading with is the language of the person, not of human rights. Whilst the husband in this case has rights, so too does his wife, and it is in fact her human rights around capacity, choice, and well-being which will need to be paramount to the Court’s inquiry.

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