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

[Ratatouille76]

www.google.com/amp/s/www.independent.co.uk/news/uk/home-news/sex-man-wife-judge-court-protection-learning-difficulties-a8849211.html%3famp

Am speechless. Men have the right to have sex with their wives?

Agree with all those saying that this is not an issue of a husband trying to have sex with his wife against her will. One of the problems with the judge's ill-chosen, or mis-quoted, comment is that opprobrium is now being heaped on the husband unfairly.

The problem with saying that, if you lack capacity to make other decisions (e,g financial/healthcare), you also lack the capacity to choose to have sex, is that this would mean many people with learning disabilities or acquired brain injuries never being allowed to have sex, when they might very much want to. It would mean that anyone who has sex with them is committing a crime. This would include, for example, couples with Down's syndrome in a long-term loving relationship - with each of them committing sexual assault every time they have sex, even if the sex is very much wanted by both.

This is what the court case is testing. Not - despite the reports- a husband's right to have sex with his wife. It's really the other way round- it's about the wife's right to a sexual relationship despite her intellectual impairment and without inadvertently criminalising her partner.

smother I think they said her condition had deteriorated. She was originally competent to consent to marriage and sex.

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.

I do think the state should stop you from doing so, as her rights to consent and not be raped trump his 'need' every time.

What sick man has sex like this? What if she were paralysed/speechless/dead? Would it matter to him that he were using here body this way when he couldn't be sure whether she was in full agreement.

I keep thinking of it the other way round and its very sick making.

Yes, she was able to sign up to marriage, but she isn't any more, and beinbwithin a marriage has 'conferred' an institution in which to continue something that should have stopped.

Using someone for sex isn't something that should be allowed to continue just because she can't consent any more.
Pooor pooor woman . So glad SS are involved in protecting her.

@Smotheroffive - have you read the article or any of the responses on the thread?

This woman is not in danger, her husband is not insisting he be allowed to have sex with her, in fact, the judge has rightly suggested that rathe than jut blindly sign an order that the case be tested in court so that there is a clear legal framework to support everyone in this situation. The post from @XXcstatic explains it very well.

You are making some valid points about consent, but the points you are making are not relevant to this scenario. Yes, she probably wouldn't be able to consent to marriage now, but she had the capacity to twenty years ago when they first got married. Given the ages involved, I also don't get your point about statutory 'rape marriage' in South Carolina - it sounds horrendous, but not sure what it has to do with this?!

If someone loses 'mental capacity' that impacts on their individual decisions.

That's all. Yes, I totally understand this is a case of a woman losing capacity over time, so how is she protected.

It does seem.appropriate for there to be legislation to protect any adult who can no longer give/remove consent.

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)

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 adult becomes a 'vulnerable', like a child is

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.

@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.

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)

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

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?

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.

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

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.

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.

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.

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.

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.

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?

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?

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

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.