"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?

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.

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.

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?

Rape culture, pure & simple.

Makes me utterly furious.

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.

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.

No Teal, that's not what anyone is saying.

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.

The context could have been something like

"While Mr X has offered an undertaking to never have sex with his wife, I am concerned that, should Mrs X regain her capacity to consent at a later stage and want to engage in sex with her husband, her husband would then not be able to, and I can think of no more fundamental right than for a man to be able to have sex with his wife if they both want to, so I don't want to put them both in that position and I think the arguments need to be heard as it sets an important precedent".

Something like that?

Just want to say again in case it looks like I am coming across as a rape apologist(!), I was horrified by this report of what the judge had said. But knowing rhus judges previous rulings etc, I don't think it's as straightforward as the BBC made it sound.

This is a good blog explaining the situation.

suesspiciousminds.com/tag/hayden-j/

Hayden J is absolutely not a fossilized old bigot. He is an out gay man, and a fearless critic of failures of government and local authorities when their care falls short. The right wing press loathe him, which explains why they will jump on this to discredit him.

This is a very informative thread, for me at any rate.

I think the point about taking the judge's words out of context is well made. Lang and others have explained that the husband in this case is happy to sign an undertaing not to have sex with his wife again, he has no intention of having sex with her while she lacks consent, but the judge wants to test the broader legal implications - whether such a document would have lasting power in a medical situation which flluctuates or could improve, whether the state would have the right to intervene, and so on. As someone pointed out, ill thought out case law on this could leave a situation where, for example, people with Downs syndrome in a consensual relationship with each other could be barred from having sex with one another by social services.

Judges have to think through not just the rights and wrongs of an individual case, but which principles from that case are generalisable across the board and which are to do with the specific circumstances of the case before them. And they have to make judgements which explain which parts of the judgement are universally applicable, and which ones do not set precedent.

LauraMipsum upthread also made a really good point about court reporting - that phrases are taken out of context or even reworded for maximum journalistic impact.

This sounds like several outlets have been guilty of this - taking a complex case, reporting a single phrase out of context for maximum shock value, with no thought of either the stifling effect this has on proper discussion of the complex underlying legal issues, or of women who have been victims of spousal rape, and how devastating they will find it. I suspect though that in this case the fault lies with the journalists, not with the judge.

for everyone on this thread who has been re-traumatised by these headlines.

The full sentence (in a longer statement) was this “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."

It's a shame that the judge used sex-specific pronouns because it detracts from the purpose of this case which is about the right for consenting adults to have sex unless they lack the capacity to make a decision, and the right of people who don't have capacity to consent to sex to be protected from having sex.

This is all within the Mental Capacity Act 2005. Smithers you say yourself "that it's not possible to police such an undertaking" and "how can an undertaking be policed?" Those are EXACTLY the issues that this case will endeavour to bring some clarity to (amongst others).

The MCA says that people who lack capacity to consent to sex should be prevented from having sex. The issues are how this law can be implemented in the context of personal and marital relationships.

Teal No. Someone in a coma obviously can't give consent to sex, so the state has a duty to protect that person from having sex ie in this context being raped by anyone.

mobile.twitter.com/TorButlerCole/status/1113490963903778817?s=17

^ this is a rather helpful explanation.

It truly is a nonsense.

The [longer] statement actually says the right for a man to have sex with his wife.

Regardless of sex of either party, neither party ever has any right to have sex, shock horror,even, inside marriage!

It is a nonsense,because undertakundertakings currently don't keep abused women and DC safe, let alone expecting this can be sanctified somehow within marriage.

I think it nullifies marriage, temporarily for the time of temporary consent issues, as there are legal expectations are there not, around having expectations of sex and lack thereof being legitimate grounds for divorce?

Men have the right to have sex with their wives
Criminal offence.
Sexual Offences Act 2003
www.lawtonslaw.co.uk/resources/what-are-the-legal-penalties-for-marital-rape/

Unless you're actually going to engage with what this case is about and the relevant legislation ie the Mental Capacity Act and the Sexual Offences Act, there's honestly no point in continuing this discussion.

In brief.
Adults have the right to have consensual sex with another consenting adult. It is a breach of Human Rights legislation to prevent a consenting adult from having sex if they have the capacity to make the decision to. This is the 'fundamental right' that the judge refers to.

The 'state monitoring this' is what the MCA requires. If someone doesn't have the capacity to consent to sex, within this law, the state has the duty to prevent anyone having sex with this person.

That is what this case will create jurisdiction about.

I think this is a real exemplar of emotional manipulation by misleading click bait reporting.

Very unfair to frighten women by not enlightening people on what the case is actually about but just sitting back after triggering hurt and outrage. Unworthy of the fourth estate and indicative of how women's concerns and safety are leveraged for clicks but not actually cared about.

Justice Hayden is an out gay man, I believe, who has been very critical of what he sees as institutional and governmental short-comings.

The right wing press don't particularly like him, so it's not surprising that this - albeit poorly worded - phrase has been quoted with no attempt to explain the actual issues that he is saying must be heard in court and not have a blind eye turned to them.

These issues of human rights, capacity, consent and the right for vulnerable adults to be protected, are exactly what people are saying is the problem with this quote.

I agree that in our current social context of male violence, including sexual violence, being normalised and it being expected that women don't make a fuss, it's easy to initially interpret the quote like that.

But there are plenty of posts on this thread that explain the complexities of the situation in quite simple terms. It's quite useful for everyone to have a basic working knowledge of the MCA - no-one knows when someone close to them or indeed themselves may be in need of its protection, to both maintain their rights and protect them.

Very unfair to frighten women by not enlightening people on what the case is actually about but just sitting back after triggering hurt and outrage. Unworthy of the fourth estate and indicative of how women's concerns and safety are leveraged for clicks but not actually cared about.

This is where I am. In fact, I feel this is an almost insulting "nod" to feminism, a tick of the box, "look at this awful judge". Without actually engaging with the issue at all, just trying to provoke outrage on a superficial level.

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

The thread title....

What point are you trying to make smother?

The thread title is the statement that is being argued as bad journo, which I think is probably just as reasonable or not as the original headline in the press, was my point.

It is far more complex that that, but its still a difficult statement to break down easily into it not meaning what it, at face value, appears to be saying.

The facts, as I see them are that ss has raised concerns about specifically this case, for this woman who is unable to give consent (albeit potentially temporarily), so I'm not sure where his right to have sex with someone who consents, comes into this, as apparently she can't, and how, in these circumstances can she be (or others) who are vulnerable, be protected withina marriage?

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?

Where does the issue exist that a man has ever been stopped from having consensual sex? Is that happening somewhere?

God forbid!

The husband's 'fundamental right' to have sex is, as for all adults with capacity to make this decision, part of human right legislation and in the UK protected by the MCA.

The judge did not say that it is this husband's fundamental right to have sex with the person who is his wife, regardless of her capacity. At all. Quite the reverse, in fact if you look at the full statement.

It's a legal argument, specifically, when and how the State intervenes in personal relationships. In part so that people don't have the right to have consensual sex taken away from them eg people with LD and partly so that people who don't have capacity are protected.

If you read the actual article and all the comments, this is all explained in some detail and quite clearly.

That's not what I'm saying either. I didn't say that, but what is your point in this?

Where does the issue exist that a man has ever been stopped from having consensual sex? Is that happening somewhere?

It could potentially happen in this case. That's why the judge thinks the arguments need to be heard. Because his wife could regain the capacity to consent, and if she does, and he has signed this undertaking not to have sex with her, then neither of them would be able to have consensual sex. That is what the judge is trying to avoid.