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

So if a woman goes into a coma after an accident say, her husband has the right to climb on top of her in hospital as per his human right? WTF.

That statement cannot have been 'taken out of context'. It is foul, no matter what context it's in. No excuse. Unless he said "NOT!!!" at the end and it was the 1st of April. Which I doubt.

Actually the case itself doesn't horrify me. It's that comment. I can think of a more fundamental human right: the right not to be assaulted. The right to be safe? Surely that's the most fundamental of all? The system is so broken when we have people like that using their interpretation of the law to mete out sentences, whether people are innocent or guilty. To allow people to be retraumatised to horrific degrees in court.

I read one awful case recently: www.stokesentinel.co.uk/news/stoke-on-trent-news/unmasked-face-park-rapist-jailed-2685250
I will just warn before posting this, it is a very upsetting link but the quote that stuck out to me was this:

Describing her experience of the trial, the victim continued: “I had to walk out at one point because it all got too much.

“I could not stand the lies that were being said about me. I felt totally humiliated by the whole thing.

“Despite all this, I’m glad I came to court. I wanted justice and that is what I got. I wanted him to know that he can’t make life any worse for me than he already has. I’m still here, I’m still alive and for that I’m grateful.”

Why should she have to go through that, to get justice? It's not right.

Rape culture, pure & simple.

Makes me utterly furious.

I know, but its not possible to police such an undertaking!

How has this come to light in the first place.

A man in his position is liable to do lots of things to defend his position, why did ss get involved? An undertaking looks willing.

How can an undertaking possibly be policed?

Smotheroffive the husband has offered an undertaking that he won't have sex with his wife now that she lacks capacity.

The protective aspects of this judgement will be in terms of (in the crudest terms) what would happen if he didn't agree to this undertaking or what if he changed his mind? These are hypothetical but entirely possible situations, relevant to ongoing case law but not this particular case as it stands.

Also, what will happen if/when the woman's capacity to consent to sex is restored (as it may be as it seems to be because of her current mh problem not ld)? It's important that there is some protection so that she is not unlawfully denied the opportunity to consent to when if/when she recovers her capacity.

Interesting how people will claim that what is in the papers isn't true - until it's a salacious bit or an interpretation THEY want to believe. I truly feel sorry for the husband in this situation. He's in a lose/lose situation as some seem to what to think badly of him no matter what.

Who knows whether he really does or doesn't, I've said it before, it hes really not going to be saying I have sex with my wife whether or not she wants it!

Does any rapist ever say they've raped?

How are all these women protected, as, even if they instigate it, can they stop it at any point.

Why oh why does any man ever want to rape,but they do.

There are also many 'sex pests' who will keep 'trying it on' despite a simple rebuff, everyone's heard of 'the headache' because you can't just say no.

I heard this on the radio and my thought was why would the man in an instance like this be wanting sex with a partner with diminished mental capacity? Where is his respect or decency?

Please read the thread. The man does not want sex with her.

I wonder if the age of the woman is relevant in cases like these? Presumably when a women is ‘of child bearing age’ part of being able to consent to sex is understanding the consequences (I.e. potential pregnancy). Once a woman is past the menopause, then if, for example, she initiated sex, so consent is clearly given, does the capacity issue become simpler if the consequences do not include pregnancy?

I heard this on the radio and my thought was why would the man in an instance like this be wanting sex with a partner with diminished mental capacity? Where is his respect or decency?

For example, we have thousands upon thousands of dementia sufferers in the country, many of whom are married. Do we think that carers should be assessing capacity to consent for each of them?

Sadly, from what I've heard, the carer (I assume particularly if they're female) sometimes gets no opportunity to turn down sex let alone assess the capacity of their spouse.

Also impressed at SS!

It's good to 'hear' that husband is not after claiming some sort of sexual rights over wife. Who is going to say they routinely rape their wife though.

I've heard too much to believe things are as they appear from the outside.

The decision here is at what point and in what ways would a person be deemed incapable of making a decision as per the MCA, and what would happen if the person regained their capacity in terms of legal jurisdiction.

This woman isn't at risk of having non-consensual sex with her husband, as he doesn't want to have sex with her in her current condition of lacking capacity.

The decision is as important for all people with 'mental impairments', so that their right to consent to sex when they have capacity to do this (but maybe not to manage their finances etc), is upheld.

It's very positive that SS have escalated this to the Court of Protection. Too often this area of the law is overlooked because it's difficult to talk about. That leaves more people at risk of being sexually offended against, being a sexual offender or being deprived of their right to consensual sex.

smother it's not about whether the person can communicate consent though, it's about whether they have the mental capacity to understand the consent they are communicating. Wife may be fully and clearly consenting (or indeed initiating) and still be deemed not to have capacity. I don't think it would be at all easy to tell when that point had been passed in a gradually worsening illness.

I read a lot of case law and Justice Hayden has a beautiful way with words, with this in mind I'd really like to read the whole statement. As others have said, this is a COP issue, social care cannot make a decision but must bring the case forward if they are aware there are potential issues. It's interesting as to why this has made it into the news, it's certainly not the first time the COP has had to rule on such matters. I'm wondering what has made this case 'newsworthy' - potentially that clunky phrase from Hayden.

I don't think I wouldn't be initiating sex with someone who had deteriorated to a point of not having that capacity.

I would liken it to being too drunk, or too drugged. Anything that renders you unable to make it clear one way or the other, cannot assume positively that's there's ever agreement

It must be hellishly hard as a spouse to judge at what point exactly your partner's consent to sex becomes invalid, when both are in an established habit of sleeping together. Particularly with conditions that don't decline linearly and have good days and bad days. Even if the well partner leaves it 100% to the ill partner to initiate sex it doesn't help.

With the total lack of decent rape conviction rates, I see no way a woman can be, in reality, protected whilst in a marriage with a male partner actively seeking sex.

Do I have a warped view?

If a naked woman is laid next to you as a male in bed, how likely is he to interpret a move or some kind as a sign for wanting sex?

I don't want to think most men, or even many, or few, would in the least take advantage, but I can't help feeling more than a little minded of the sweetie shop analogy

Who's to say whether incapacitated women is being taken advantage of?

My point is that presumably the marriage would continue, which leaves the woman unprotected in that sense.

So the, never had to indicate a subtle 'no' ever, any more than once, ever?

How does a woman with out capacity even do that much, or indicate a will for sex. At that point thebwomannis extremely vulnerable to rape (at least non-consensual sex same thing)

@smotheroffive it’s more conceptually clear if you look at it as the court balancing her right to have consensual sex with her right not the be raped when she looses capacity. The court is going to determine whether she has capacity. This will provide an excellent authority for findings of capacity where they diminish over time in respect of sexual consent and will help protect the rights of individuals with diminishing capacity both before and after the point where they loose sufficient capacity to consent.

I think people are failing to make the distinction between having sex with and raping. It’s poorly worded but a generous reading of that statement would be that the right to have consecual sex with ones partner is important and when there is possibility that consenting individuals may be prevented by organs of the state from having sex they deserve a full hearing. A literal reading would be that the right to consexual sex is a fundamental human right and cannot be interferes with without a full hearing. An ungenerous reading would be that a man’s right to sex is important enough to run the risk of rape. I think it’s more a case of bad wording that bad intentions.

The adult becomes a 'vulnerable', like a child is

My key point is that capacity change brings fundamental marriage change.

Is there any woman alive that has had their partner immediately cease any form of further 'seduction' or encouragement to have sex when she has 'indicated subtlely' that it's not on the cards?

The south Carolina thing came up as I was on this thread reading just an aside that was shocking and marriage related, didn't mean to derail (should have posted about it, but was wanting to watch - something like 27 states sponsor child marriage)