"I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife’

Bing ... Even if it were taken at face value without the case... Do you really think that a judge, somebody who rules on human rights, is fit for work if they cannot think of a human need or a legal right that is more fundamentally important than sex? How about right to eat, appropriate warmth and shelter, freedoms from torture or abuse?

I think you're all taking it out of context. It's also poorly worded. I think he means LEGAL RIGHT. In general. Not against a woman's wishes

Then he has an extremely limited imagination.

If only the Women's Aid spokeswoman had given this a little more consideration rather than just reacting to the misleading clickbait headline.

"Wednesday 3rd April 2019

Women’s Aid responds to judge’s comments in court that it is a “fundamental human right” of a husband to have sex with his wife, as reported in the Guardian.

Nicki Norman, Acting Chief Executive at Women’s Aid, said:

“Rape in marriage has been illegal since 1991. The judge’s comments in court that it is a “fundamental human right” of a husband to have sex with his wife are outdated and misogynistic, showing a complete disregard for women’s rights. The judge’s primary consideration in this case must be the woman’s safety and the protection of her basic human right to live free from degrading treatment such as rape as set out in the 1988 Human Rights Act.

“Research shows that women with a long-term illness or disability are more likely to be victims of domestic abuse compared with those without a long-term illness or disability (ONS, 2018). While one in five women supported by domestic abuse services have experienced sexual abuse as part of a pattern of domestic abuse (Women’s Aid, 2019). We know from our work with survivors that a woman may be experiencing control, threats and intimation from her partner which makes it difficult, if not impossible, for her to consent to sex in that relationship. The public’s outrage at the judge’s comments in this case clearly show that some judges are out of step with wider public opinion on cases of violence against women and girls. These judges must be held to account for their old-fashioned and deeply sexist attitudes and there must be investment in training to ensure that everyone within the justice system has stepped forward into the 21st century"

despite using the same click bait...

And it may also be that both spouses in this marriage have LD but only one is clearly lacking capacity currently. That doesn't mean the other should be signing declarations put in front of them by SS without a judge hearing arguments to ensure everyone and everything involved is properly understood.

Really glad I read this thread. And thanks to pp’s for explaining the legal framework behind the click bait headlines.

Yes, absolutely.

Hayden was referring to the 'fundamental right' of adults to have consensual sex and when and how the state should intervene in private relationships including marriage.

This involves key legal issues of capacity and consent, and how the law can be operational.

His use of sexed pronouns was unfortunate (although accurate to this case to be fair).

I have wondered whether the husband himself has LD and Hayden J was concerned about issuing orders on the behest of SS without properly hearing arguments. May account for the unusually clumsy phrasing from him?

And

Yes, Hayden J went on to say, "“I think he is entitled to have it properly argued.”

Hmm, hadn't considered this - do you think it's possible that Hayden was using "he" as in the legal manner of saying "he" to mean any person of either sex? So he could have been talking about a general "a person's right to have consensual sex with their partner if they want to", perhaps?

Some well explained and reassuring post in the last page or two - thanks.
Seems it's not as shocking as first thought.

Yes, Hayden J went on to say, "“I think he is entitled to have it properly argued.”

I have wondered whether the husband himself has LD and Hayden J was concerned about issuing orders on the behest of SS without properly hearing arguments. May account for the unusually clumsy phrasing from him?

George these are some of the issues that the MCA was created to address. Within this Act, sex is an 'exempted' decision - if someone lacks capacity to make this decision, no-one can make a 'best interests' decision on their behalf. The state then has a duty to protect this individual from having sex because, as you say, if they did the person they had sex with would be committing an offence under the Sexual Offences Act.

So while it is a 'fundamental right' that adults can have consensual sexual relationships, the state can and should 'interfere' if one or both of the parties involved lacks capacity.

Awful, awful reporting.

A lot of people have misunderstood what human rights are. They are not rights that one person can enforce against another. They are rights that the state cannot interfere with.

In this case, the wife wants to have sex with her husband. She consents. The issue is that she does not any longer have the mental capacity to give valid consent. Does this make the husband a rapist? Or not?

I'm not sure what any of your posts are for pickled - tbf most are not impressed at being 'called' onto threads via @'s.

....I didn't like to assume or be rude...so thank you for answering

I think Smothers question 'what's your point?' is directed to me.

You answer your own question Smother when you say "So, to paraphrase, your point in being on this thread is to set out in simple terms what the case is about?"

Yes, because the clickbait headline is (deliberately) misleading, many women were (understandably) angry about it, and the case is actually a very necessary consideration of some of the practical applications of the statues of MCA and Human Rights Act.

Ok smother- people won't know you don't like being @'d. You might want to turn it off in settings.

I don't think anyone knows what you are asking. We've tried. What's your point?

...and pleased don't @ me

I keep asking you what your point is on this thread and you have ignored me again? Why?

@Smotheroffive it's hard to see what you are getting at. Is it this? "I am cross that this seems to have its emphasis on his rights (to not be barred from consensual sex) when the case was about her being protected?"
The case is about her, and people like her, being protected both from marital rape AND from unnecessary state interference.
The headline is about his rights, but is inflammatory click bait and needs to be ignored.

Smother, it’s like you just aren't reading what has been said here. Several women on the thread have given nuanced explanations of what the case is about - and how it’s completely different from what you suggest (and from what the clickbait headlines suggested with their isolation of the judge’s wording).

Like pickle, I was initially outraged when I heard the reporting. Thanks to pps I’m reassured that this is not the upsetting type of case lots of us initially thought it must be.

Again, what was your point on this thread?

Now I understand why Leavers voted for Brexit....

What about stopping and engaging a brain cell for a change?

Wouldn't it be more likely that this sentence was lifted entirely out of context so as to give it a very different meaning to the one intended simply to provide a click baity headline for the media?

It's really not that hard is it?