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

[AngeloMysterioso]

So says Mr Justice Hayden, who has been given the task of deciding whether a man should be allowed to continue to have sex with his learning disabled wife, in the event that she is no longer able to provide consent.

Independent article

AIBU to find that statement absolutely sickening?

YANBU.

A ring does not replace consent and a man's "right" to have sex with his wife was abolished in 1991.

I don't think he meant it like "men can have their woman whenever they want". I think it was more "married couples should be allowed to have sex and it shouldn't be banned until we've actually investigated the mental status of those involved". They only have the word of the carers to go on, if that becomes enough to have a legal order preventing people from having sex then it will be open to abuse. He just wants it investigated by speaking with legal and medical representatives for the wife. And in this case the husband agreed to the order as he doesn't want to rape his wife. The judge just wants to follow the proper legal procedures.

I would like to live in the world where I had an ‘obviously fundamental human right’ to withhold consent to sex.

Also, I have a vague recollection of marital rape becoming illegal. I think it was more than 25 years ago. How old is this judge? And is he married?

Even if he didn't mean that men have an automatic right to have sex with their wives... To say that you 'can't think of a more fundamental right'?

Right to freedom of thought? Less fundamental than the right of - and lets note here he didnt say 'a person to have sex with their spouse' - less fundamental than the right of a man to have sex with his wife.

Thats not a human right.

I'm with TheInvestigator. The whole statement makes more sense, and is less horrifying, than the snippet you've quoted.

Both sides to this have to be considered properly for it to become case law. That will sadly mean that they have to consider whether it's likely that she'd have continued to consent. Given the 1991 law change and general consent laws, I don't see how he could possibly be told that he can continue to have sex with her - but it's also worth noting that the man himself does not appear to be arguing that he should be able to. He has offered to sign an agreement to say that he will not.

I think you’ve taken it out of context after reading the article.

But in all honesty how the holy fuck does it get to the point that the council needed to step in a court level.

I would presume that if the woman has clearly severe learning difficulties then the man might also. So the judge wants to hear from everyone to ascertain who is and isn’t capable of consent.

I would like to live in the world where I had an ‘obviously fundamental human right’ to withhold consent to sex.

Also, I have a vague recollection of marital rape becoming illegal. I think it was more than 25 years ago.

Absolutely what @CardsforKittens said.

And the judge just doesn’t want to take the councils word for it. Ie. Why should anyone have sex taken away from them without proper investigation. From both the man and woman’s point of view.

YABU. It's obvious he's talking about consensual sex. The issue is who gets to decide the consent in this tricky case - the council, the husband or wife, a judge etc.

Is this not where the language about what a "right" is becomes somewhat confused?

There are rights that you are entitled to, and rights that are actually the right to be free to do something.
E.g. the right to family life means the state should not stop you from having a family life. It doesn't mean that having a family is your right, and therefore the state must provide you with one.

Along the same vein, the right to have sex with your wife means the state should not stop you from doing so, not that it is something you are entitled to if your wife does not consent.

Consent can be a complicated issue for some disabled people. I went to a talk a while ago which raised a lot of points that don't have clear cut answers. One of relevance to this case, is that being deemed legally incapable of giving consent, does not mean that the wife does not want to have sex.

I think it is good that this is being tested in court. Sadly I think the poor language choice may have done the case a lot of damage.

I read the whole article this morning and think it’s a very difficult case. I’ve worked with women with learning disabilities who were definitely being used by men, quite often older husbands, for sex that they couldn’t possibly understand or consent to. I can remember one very disturbing case where it was quite obvious from injuries that the woman had been forced to have sex in a certain position with a lot of force/violence. She said it was ok because he’d bought her a packet of fags afterwards. She was in her 40s with the mental age of a 12 year old and this was 20 years ago before MCA/DOLS. Without knowing the exact details of why there are concerns in this case it’s difficult to know if the woman is being abused or not. Where I live, Social Services don’t intervene except in the most severe cases. I know other LA’s will be over-zealous.

My problem is definitely with the wording. Why is the most fundamental human right the one of a man being entitled to have sex with his wife. Badly worded and concerning imo. I can think of other human rights that are far more important. He could have said “I consider it a fundamental human right for a married couple to be entitled to have sex with one another”. But he didn’t. He worded it the way he did. It does make me question what his own beliefs are and whether or not he’s biased.

It is very badly worded and it gives currency to the people.out there who do actually think it's man's right to have sex with his wife regardless of whether or not she consents. The article comments across various sites make for depressing reading including many people who think that because she had the mental capacity to consent to the marriage then it is implied she consents to sex even if she cannot say so.

He "can't think of a more fundamental human right"?? What an incredibly poorly worded/poorly thought out statement.

The right to life? Freedom from torture? Freedom from slavery? Right to a fair trial? Nope, sex is more important.

My main issue is the wording, as PPs have said. But wording is important, and I don't think "well its obvious what he meant" is really a great thing to have to say about a comment by a judge. If a TV commentator had said this as a passing comment, I'd be much less fussed, and would probably be saying "well they didn't mean it like that."

Yep, badly worded, badly thought out and if it has been taken out of context, it will surely remain so, since everyone will read this one quote in a newspaper article and not the whole judgment which won't be reported.

When I first read it, I had to go back and read it again and then thought, 'thats a mis-print, surely?'

It is very badly worded, which makes me very uncomfortable. It may have not been meant like this but the way it is phrased means that the man is the subject who has the rights, the woman is the object that the man has rights over.

Yeah i think it was taken out of context.

Essentially the context is that if a couple have been having sex happily for years and years and years, and there is no idication that the womans feelings habe changed. does the council have more right to determine consent that the husband.

The idea that the council can determine your lack sexual consent in the absence of evidence to suggest that is scary

Essentially the context is that if a couple have been having sex happily for years and years and years, and there is no idication that the womans feelings habe changed. does the council have more right to determine consent that the husband.

Social Services must have evidence that her capacity to give consent has deteriorated otherwise the case wouldn't have gotten this far. As the evidence has yet to be made public you can't really say that there is no indication that her feelings have changed and the husband must agree that there is an issue with capacity as he's said he will sign an undertaking not to have sex with her and does not appear to be contesting the decision.

yesterdays thread about this

The judge was told that the man has offered to give an undertaking not to have sex with his wife.

I think the judge used horrible phrasing, but context is very much needed here.

As I understood it, the judge wanted to fully understand it from every perspective, and possibly meant that consensual sex is something that shouldn’t be taken away from a couple without thorough consideration. I saw it more as that he didn’t think the man should be arrested for having (consensual) sex with his own wife - and that the issue of genuine consent needed to be proven one way or another, before declaring the man a rapist if they sleep together.

It is no one's human right to have sex with another person married or not.

That is a very badly worded statement. Unfortunately it is going to be picked up and used by abusive people.

I understand the context. However, there must be at least 12 other ways he could have phrased what he meant. As it stands, this statement is very general and very open to misinterpretation. That’s what I have a problem with.

I vote for life, liberty and security of person as more fundamental rights. Also rights to freedom of thought, conscience and religion.

The case is a complicated one, but the judge should not have said that. It sounds rapey.

I would have thought the learned Judge would have been more capable of a less offensive phrasing than the one he used. Possibly he needs to get with the times a little bit. They changed quite some time ago.

If the lady is not able to properly consent to sex with her husband, he cannot have sex with her. If she does not have the capacity to consent, then she does nit gave the capacity to refuse. If he has sex with her, she is in an extremely vulnerable position and needs protecting.

I think he is probably getting at that say 25 years ago a lot disabled people were in some kind of institution and they had not rights to meet the other sex never mind anything else and that yes this man does have a right to a loving relationship not that he has a right to rape his wife .