EMNANI SUBHI
Towards the end of last year, the Supreme Court upheld a Court of Appeal decision that the consent of others is a relevant consideration in sexual decision-making. This was the first time the highest court has considered ‘capacity’ under the Mental Capacity Act 2005 (MCA).
1. Does a person need to understand that their sexual partner must have the capacity to consent to sex?
2. Does the person also need to understand that their sexual partner must consent before the sexual activity starts and that their consent must continue throughout the sexual activity?
These were the questions set before the Supreme Court in the case of A Local Authority v JB [2021] UKSC 52.
The case concerned JB, a 38-year-old man with a complex diagnosis of autism (Asperger’s syndrome) combined with ‘impaired cognition’ resulting from severe brain damage caused by epilepsy. He had expressed, in explicit terms, his strong desire to have a sexual partner but his previous behaviour towards women saw heavy restrictions imposed on his ability to socialise without his care workers’ supervision.
Part of his Asperger’s diagnosis meant that he sometimes became:
“…obsessionally fixated on a particular woman, sending inappropriate sexual messages, sending inappropriate sexual messages, inappropriate touching, and targeting the vulnerable.” [para 20]
The judgment cites extensively from the evidence of a clinical psychologist, Dr Thrift, who spoke of the difficulties JB has in terms of learning how to understand and interpret the subtle nuances in intimate interactions. When asked about the other person withdrawing consent during a sexual act, JB said [para 34]:
“She cannot change her mind if you are already doing it. ‘Cos it’s her fault in the first place for saying yes. She can’t say yes and then say no.”
His lack of insight was graphically illustrated in his response to another question by Dr Thrift [para 45]:
“If a woman gets drunk as a party and has sex with a man there, is she fair game for anyone else?”
JB replied:
“I’d say she was fair game, yes. Especially if she’s done it with one person. If she drinks enough, she’s bound to do it with the second one, too.”
Court of Protection – a partner’s consent is not relevant
In the Court of Protection, the judge reached the conclusion that for the purposes of satisfying the test of capacity under the MCA, it was not relevant or necessary for a person to understand the need for their sexual partner’s consent. JB was thus declared to have the capacity to consent to sexual relations. His argument was made on the basis that those without cognitive impairments are not subject to the same standards in advance; hence, the question of JB’s possible exposure to the criminal justice system in consequence of initiating sexual relations with a person who did not consent should be dealt with by the criminal law, retrospectively. The Local Authority were concerned, however, that if JB did not understand the mutuality of consent then there was a moderate risk of him committing sexual offences under the Sexual Offences Act 2003.
Court of Appeal – engaging in sex, not consenting to sex
The Court of Appeal marked an important shift in recasting the decision as being a decision to ‘engage in’ sexual relations rather than simply ‘consenting’ to them.1
Baker LJ held [para 94] that:
“When the ‘decision’ is expressed in those terms, it becomes clear that the ‘information relevant to the decision’ inevitably includes the fact that any person with whom P engages in sexual activity must be able to consent to such activity and does in fact consent to it. Sexual relations between human beings are mutually consensual. It is one of the many features that makes us unique. A person who does not understand that sexual relations must only take place when, and only for as long as, the other person is consenting is unable to understand a fundamental part of the information relevant to the decision whether or not to engage in such relations.”
Supreme Court – a landmark ruling?
The Supreme Court endorsed the Court of Appeal’s approach, which was welcomed by many academics, lawyers, and professional care workers.2 Professor Harding praised the “clear expression by the Supreme Court of the centrality of consent in understanding capacity to engage in sexual relations.” Ultimately, the judgment was not a radical rethink of the test for sexual capacity. It simply restated the Court of Appeal’s decision, but with one small but welcome modification. In the Court of Appeal, the consent element was termed as “the fact that the other person must have the capacity to consent” [para 100]; in the Supreme Court, this was changed to “must be able to consent” [para 90], avoiding the need to grapple with the philosophical complexities of the notion of capacity.
Along with praise, it has also drawn criticism, particularly in respect of the difficult tensions at the interface of the Mental Capacity Act and Sexual Offences Act. The engagement of the criminal law has been seen by some as in direct conflict with the principles of autonomy and empowerment that underpin the MCA, with far-reaching implications of overly paternalistic interventions that may deprive a person of their autonomy in other aspects of life, as well as their freedom of sexual expression (see comments by Regan and Reed-Berendt in the ‘Capacity to engage in sex’ report). Perhaps, as Baker LJ explains [para 6] in the appellate judgment, the MCA is best understood “as a part of a wider system of law and justice.”