The UK court of protection - considers issues relating to people who might lack the mental capacity to make decisions - has ruled a man unable understand the concept of sexual consent must be allowed to pursue sexual relationships if he wishes.
Justice Roberts ruled the man, who has severe autism with impaired cognition and lives in a supported residential placement, has a “fundamental right to sex”, as such relations “form a fundamental aspect of our humanity, common to all regardless of whether an individual suffers from some impairment of the mind”.
The ruling comes despite a clinical psychologist submitting expert evidence to the hearing suggesting the 36-year-old, referred to as ‘JB’, represents a “moderate risk” of sexual offending, particularly in respect of vulnerable individuals, and can neither understand a woman’s consent is fundamental in sexual situations, nor engaging in non-consensual sexual activity is a criminal offence.
In response, Justice Roberts stated obliging JB to understand the issue of consent before being allowed to pursue sexual relationships would be discrimination as it would “impose on him a burden which a capacitous individual may not share”, and he was “entitled to make the same mistakes which all human beings can, and do, make in the course of a lifetime”.
In its submission to the court, the local authority said there was concern JB’s behaviour, if not stringently monitored and restricted, “might result in his exposure to the criminal justice system and risk to potentially vulnerable females”. Vikram Sachdeva QC, acting on behalf of the local authority, further accused the court of a “derogation of responsibility”.
“If the criminal law is left to regulate such conduct, it will mean sexual offences will be committed by incapacitated people before the law will intervene to prevent such damaging conduct by the imposition of criminal restrictions,” he warned.
However, the presiding judge evidently wasn’t moved by their arguments.
“[JB] made it very plain he desperately wants to find a girlfriend with whom he can develop and maintain a relationship. He’s anxious to have a sexual partner and believes the current restrictions represent an unfair and unwarranted interference in his basic rights to a private and family life…The decision to engage in sexual relations is a primal expression of our humanity and existence as sexual beings. It’s an essential part of our basic DNA as reproductive human beings,” Roberts stated in her judgement.
The local authority is expected to appeal the decision.