Who decides what is ‘consent’?

Picture of Sir Anthony Hayden, a middle-aged white man, clean shaven, wearing a bright red robe with white shoulders, with a judge's horse-hair wig covering the top and sides of his head. Behind him are shelves of leather-bound hardback books.
Mr Justice Sir Anthony Hayden, who made the offending remarks on Monday.

This Monday a judge in the Court of Protection, a British court that decides the affairs of disabled people who are not able to do so for themselves, made a remark which caused a lot of outrage while hearing a case about a married woman who had lifelong learning difficulties (according to press reports) but whose mental health had worsened in recent years to the extent that social workers were claiming she no longer had the capacity to consent to sex with her husband or anyone else. The judge, Sir Anthony Hayden (right), remarked, “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 - I think he is entitled to have it properly argued”, which a lot of people have taken to imply that the man has the right to force his wife to have sex with him, which, however clumsily he expressed it, is not what I believed he was trying to say at all. The couple cannot be named, but as they have been married for 20 years, it can be reasonably assumed that they are both above 40 and may well be older than that. (More: Shoaib Khan @ HuffPost.)

That a man has no right to force his wife to have sex with him has been established in law since 1991. The issue here is whether the woman has the capacity to decide whether to have sex or not. Social workers believe she does not; this claim is clearly disputed, as the man had offered to give an undertaking that he would not have sex with her but the judge refused this offer and demanded to hear evidence from all sides. The Court of Protection has sometimes issued rulings that a person with impaired mental capacity be prevented from having sex because they have no understanding of either consent or the potential consequences of having sex; in one case, a woman with learning disabilities and atypical autism was ordered to be supervised at all times as otherwise, she would engage in risky sexual behaviour with anyone who asked; in another, an Asian couple including a woman with significant cognitive impairment was required to live apart because the wife had no understanding of the matter of consent (although it was understood that she found sex ‘comfortable’) and could not be repatriated to her home country.

However, the right to family life is a fundamental human right — it’s the famous Article 8 of the European Convention on Human Rights, which has been important in securing the rights of disabled people to a life outside the walls of institutions — and for couples, a sex life is part of family life and unless there are very strong reasons, that should be free of outside interference; the right of adults with both physical and mild intellectual disabilities to live as couples and have a sex life has been a hard-fought battle to achieve. (The reports do not say, but it is quite likely that the man has a learning disability as well.) While it is true that marriage does not circumvent consent or make the woman her husband’s property, a couple that have been married 20 years might be able to gauge such things as each other’s desire for or willingness to have sex better than a couple which have only just met, and they might be able to ‘read’ each other better than professionals who do not know them very well do. It is also possible that the woman has periods of lucidity where she has better understanding of what is going on than she does at other times, and these may not be the times when professionals are in the house.

The remarks have attracted widespread condemnation, with some suggesting that they take judicial understandings of gender relations back to the Dark Ages and portray marriage as a “season ticket” offering unlimited sex, regardless of how the woman feels. However, what the judge was doing was putting a brake on efforts by a group of professionals to dictate how a couple live their lives — perhaps whether they should even be allowed to live together or whether the wife should be in a ‘home’ — rather than, as I have seen people do on social media, take the professionals’ opinion at face value when it might be based on an underestimation of her capacity or an assumption that the man will abuse his wife if left alone with her. We do not know the age or exact condition of the woman; that may be revealed when the final judgment is published in a few months’ time, if it is (not all CoP judgments are published, as the court sits in private), but however anachronistic the statement he made sounded, the principles are sound and the defence of the right to family life is to be supported, not condemned.

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