{"id":217,"date":"2022-02-04T11:56:24","date_gmt":"2022-02-04T11:56:24","guid":{"rendered":"https:\/\/blogs.ncl.ac.uk\/nelrn\/?p=217"},"modified":"2022-02-04T11:56:25","modified_gmt":"2022-02-04T11:56:25","slug":"capacity-to-engage-in-sex-is-a-partners-consent-relevant-highest-court-hands-down-landmark-ruling","status":"publish","type":"post","link":"https:\/\/blogs.ncl.ac.uk\/nelrn\/2022\/02\/04\/capacity-to-engage-in-sex-is-a-partners-consent-relevant-highest-court-hands-down-landmark-ruling\/","title":{"rendered":"Capacity to engage in sex: Is a partner\u2019s consent relevant? \u2013 highest court hands down landmark ruling"},"content":{"rendered":"\n

EMNANI SUBHI<\/strong><\/h3>\n\n\n\n
\"\"
“Supreme Court”\u00a0by timrawle<\/figcaption><\/figure>\n\n\n\n

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 \u2018capacity\u2019 under the Mental Capacity Act 2005 (MCA).<\/strong><\/p>\n\n\n\n

1. Does a person need to understand that their sexual partner must have the capacity to consent to sex?<\/em><\/p>\n\n\n\n

2. Does the person also need to understand that their sexual partner must consent before<\/em> the sexual activity starts and that their consent must continue throughout the sexual activity?<\/em><\/p>\n\n\n\n

These were the questions set before the Supreme Court in the case of A Local Authority v JB [2021] UKSC 52.<\/p>\n\n\n\n

The case concerned JB, a 38-year-old man with a complex diagnosis of autism (Asperger\u2019s syndrome) combined with \u2018impaired cognition\u2019 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\u2019 supervision.<\/p>\n\n\n\n

Part of his Asperger\u2019s diagnosis meant that he sometimes became:<\/p>\n\n\n\n

\u201c\u2026obsessionally fixated on a particular woman, sending inappropriate sexual messages, sending inappropriate sexual messages, inappropriate touching, and targeting the vulnerable.\u201d [para 20]<\/p>\n\n\n\n

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]:<\/p>\n\n\n\n

\u201cShe cannot change her mind if you are already doing it. \u2018Cos it\u2019s her fault in the first place for saying yes. She can\u2019t say yes and then say no.\u201d<\/p>\n\n\n\n

His lack of insight was graphically illustrated in his response to another question by Dr Thrift [para 45]:<\/p>\n\n\n\n

\u201cIf a woman gets drunk as a party and has sex with a man there, is she fair game for anyone else?\u201d<\/p>\n\n\n\n

JB replied:<\/p>\n\n\n\n

\u201cI\u2019d say she was fair game, yes. Especially if she\u2019s done it with one person. If she drinks enough, she\u2019s bound to do it with the second one, too.\u201d<\/p>\n\n\n\n

Court of Protection \u2013 a partner\u2019s consent is not relevant<\/h2>\n\n\n\n

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\u2019s 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\u2019s 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.<\/p>\n\n\n\n

Court of Appeal \u2013 engaging in sex, not consenting to sex<\/h2>\n\n\n\n

The Court of Appeal marked an important shift in recasting the decision as being a decision to \u2018engage in\u2019 sexual relations rather than simply \u2018consenting\u2019 to them.1<\/a><\/sup><\/p>\n\n\n\n

Baker LJ held [para 94] that:<\/p>\n\n\n\n

\u201cWhen the \u2018decision\u2019 is expressed in those terms, it becomes clear that the \u2018information relevant to the decision\u2019 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.\u201d<\/p>\n\n\n\n

Supreme Court \u2013 a landmark ruling?<\/h2>\n\n\n\n

The Supreme Court endorsed the Court of Appeal\u2019s approach, which was welcomed by many academics, lawyers, and professional care workers.2<\/a><\/sup><\/kbd> Professor Harding<\/a> praised the \u201cclear expression by the Supreme Court of the centrality of consent in understanding capacity to engage in sexual relations.\u201d Ultimately, the judgment was not a radical rethink of the test for sexual capacity. It simply restated the Court of Appeal\u2019s decision, but with one small but welcome modification. In the Court of Appeal, the consent element was termed as \u201cthe fact that the other person must have the capacity to consent\u201d [para 100]; in the Supreme Court, this was changed to \u201cmust be able to consent\u201d [para 90], avoiding the need to grapple with the philosophical complexities of the notion of capacity.<\/p>\n\n\n\n

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 \u2018Capacity to engage in sex\u2019<\/a> report). Perhaps, as Baker LJ explains [para 6] in the appellate judgment, the MCA is best understood \u201cas a part of a wider system of law and justice.\u201d<\/p>\n\n\n\n

\n\n\n\n

Footnotes<\/strong><\/h3>\n\n\n\n

1 A detailed analysis of this shift can be found in a case note here: Subhi, E. A Local Authority v JB [2020] EWCA Civ 735; [2019] EWCOP 39. Fem Leg Stud 29, 267\u2013276 (2021). https:\/\/doi.org\/10.1007\/s10691-021-09451-9 <\/h3>\n\n\n\n

2 Capacity to engage in sex: Nine responses to the Supreme Court Judgment in Re. JB \u2013 Promoting Open Justice in the Court of Protection (openjusticecourtofprotection.org)<\/h3>\n\n\n\n
\n\n\n\n

Emnani Subhi <\/strong>is PhD student at Newcastle Law School examining where the boundaries of sexual consent should be drawn for people with compromised mental capacity to strike the right balance between protecting them from abuse and preserving their sexual autonomy. Last year, her case note on Re JB\u2019s Court of Appeal decision was published in the Feminist Legal Studies journal: E Subhi, \u2018A Local Authority v JB [2020] EWCA Civ 735; [2019] EWCOP 39\u2019 (2021) 29 Fem Leg Stud 267\u2013276<\/a>, https:\/\/doi.org\/10.1007\/s10691-021-09451-9.<\/h3>\n","protected":false},"excerpt":{"rendered":"

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 \u2018capacity\u2019 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":10241,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-217","post","type-post","status-publish","format-standard","hentry","category-uncategorised"],"_links":{"self":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/217","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/users\/10241"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/comments?post=217"}],"version-history":[{"count":4,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/217\/revisions"}],"predecessor-version":[{"id":223,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/posts\/217\/revisions\/223"}],"wp:attachment":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/media?parent=217"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/categories?post=217"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelrn\/wp-json\/wp\/v2\/tags?post=217"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}