Man's 'right' to have sex is more important than vulnerable women's right to safety.

[jellyfrizz]

www.theguardian.com/society/2019/oct/03/man-who-does-not-understand-consent-has-right-to-pursue-sex-court-rules

The judgment said that the “decision to engage in sexual relations ... is a primal expression of our humanity and existence as sexual beings. It is an essential part of our basic DNA as reproductive human beings.”

In its submission to the court, the local authority said that there was concern that JB’s behaviour, if unrestrained, “might result in his exposure to the criminal justice system and risk to potentially vulnerable females”. They said that his advances to women in the past have lacked appropriate social inhibition.

FFS!

I have worked with people with learning disabilities in the past and sex has been an issue we have had to navigate. I strongly believe people with learning disabilities should be supported to have sex lives.

I've read the article. It sounds like he wants sex as many of us do, but doesn't understand what sexual appropriateness and consent are. So there's been a plan in place to stop him basically causing potential harm to others. As there would be with other 'challenging behaviours' which may cause harm to others. However because it is also to do with his right or not to have sex the judge has seemingly decided that this right is greater than that of the women he might potentially offend against or actually his right to be kept safe from committing a crime. (because he doesn't understand that what he is doing is a crime).

I've read it now and find para 81 particularly problematic. It seems to say that we shouldn't impose a burden on him which many people with capacity would be unable to fulfil (because so many men are rapey bastards?) and he should be able to go out and make mistakes. No recognition of the women who may be the victims. The judge talks about his potential criminal behaviour like it's shoplifting or something else trivial.

Ugh.

You have it correct Curious.

I did notice the line in the judgement about what support he needs when engaging in a potentially sexual contact with someone: no mention of what support the person he has engaged with may need.

I agree, it's an incredibly tricky and nuanced situation, but particularly in a country where almost no rapes are successfully prosecuted, it does feel as if this individual's right to seek sex has been given greater value than the right of women not to be harmed in his pursuit of this. I would also think an LA would not have escalated all the way up to actively seeking this through legal channels (where the teams working place a high value on autonomy for the disabled people they work with) unless they had a long and significant history of experiences that make it a very great concern to them that the likelihood of his sexual offending is less high than inevitable.

Sex is not a "fundamental right". When will people get this into their heads? Marriage is a human right but sex isn't, and interference with private life is allowed if there's a compelling public safety case. This guy has already behaved inappropriately to women, that's a public safety case to keep him supervised.

I think that convicted rapists shouldn't be allowed unsupervised access to women after release. I think we do far too little to safeguard women and children from male violence and this needs to be sorted out. Women kill themselves after sexual assault, we deserve protection.

From the judgment:

"87. My conclusion on the first issue posed by the local authority is this. For the purposes of determining the fundamental capacity of an individual in relation to sexual relations, the information relevant to the decision for the purposes of section 3(1) of the MCA 2005 does not include information that, absent consent of a sexual partner, attempting sexual relations with another person is liable to breach the criminal law.
88. In terms of the purported risk of offending, it appears that Mr Sachdeva, on behalf of the local authority, now accepts that the Official Solicitor has accurately recorded in paragraphs 32 to 41 of her opening position document the extent to which that potential risk can be weighed as part of a best interests analysis. In essence, Mr Patel has argued that, whilst it is permissible to weigh the risk of P entering the criminal justice system and/or being the target of some form of vigilante violence as part of a best interests analysis, what is not permissible is the imposition of a restriction on his liberty in order to prevent the possibility of offending insofar as it purely risked harm to those other than P. In this context the protection of others falls squarely within the Mental Health Act 1983 as opposed to the MCA 2005. I did not hear detailed submissions on this aspect of matters which will doubtless occupy the court during the second stage of this split hearing in October this year. If these matters are agreed, they can doubtless be incorporated into any case management order which flows from this judgment."

Translating that:
1 He cannot be subject to a blanket ban on having sex because under the law that would be needed to impose a blanket ban, the possibility that he might rape someone is not enough.
2 It is, though, open to the local authority to take reasonable measures to make sure that he doesn't rape anyone, but these weren't being considered by the court in this hearing. There will be another hearing when these will be looked at, though the judge hopes they can be sorted out before then.

Someday The Guardian may employ a reporter who understands the law.

It is, though, open to the local authority to take reasonable measures to make sure that he doesn't rape anyone

Bearing in mind that

1. the other party to sex can change their mind mid-session,
2. P doesn't understand the importance of consent, and
3. continuing sex after the other party has changed their mind and communicated that change constitutes rape,
4. supervising P during sex is likely to be unacceptable to P, the other party to sex, the LA, and the courts, how can the LA protect P and the other party without a blanket sex ban?

The deeply troubling assertion that sex is a "fundamental right" remains a problem in and of itself. The judgement must challenged for that reason alone.

Again I ask, do English courts accept amicus briefs? Because I think Harriet Wistrich or someone of that ilk needs to be engaged to fight the idea that sex is a right.

As I have said elsewhere. The right to have sex is misleading, as it is understood generally. Not surprising given the more agregious tabloid headlines!

What is a right is to want to have sex, to seek out opportunities to have sex. To have full private and family relationships.

But "the right to have sex" is being read as meaning "whether the woman wants it or not" which is, patently, not the law!

I think that convicted rapists shouldn't be allowed unsupervised access to women after release.

I’m not a child. I don’t want or need this.

I think that convicted rapists shouldn't be allowed unsupervised access to women after release. Such a totalitarian attitude. Beware what you wish for!

I think that convicted rapists shouldn't be allowed unsupervised access to women after release How would that work on practical terms other than incarcerating them for life? And why stop there, what about people convicted of other forms of sexual assault that, statistically, may lead to raping later on? And what about the people who think about raping but haven't yet? And those who fantasize about rape but haven't formed the intention to rape yet?

Again I ask, do English courts accept amicus briefs? Because I think Harriet Wistrich or someone of that ilk needs to be engaged to fight the idea that sex is a right.

They do @bd67th, although IIRC it's usually better to get listed as an interested party because then you normally just bear your own costs without the risk of a costs order being made against (this is off the top of my head, it's been a few years since I dealt with this issue).

With rights, comes responsibility. I don't see how he has a right to sex, if he lacks the capacity to understand how to get it responsibly.

Thanks for postIng judgement.

It doesn’t say his right to sex is more important than the safety for vulnerable women.

It’s basically that this man P is currently barred from forming any sexual relationships because he has been deemed unable to have the capacity to consent to sex himself. He has petitioned to have it recognized that he has the capacity to consent to sex.

The LA are against this and argue that even though he might understand consent for himself, he might not understand consent of a potential partner. So, they say he should not be considered to have the capacity to consent to sex.

The ruling is that in testing whether a person has the capacity to consent to sex, the focus should only be on that person and not whether they fully grasp consent in any potential partners.

The judge says here
“Further, in this context it is important to distinguish between the individual (and different) concepts of having the mental capacity to consent to sexual relations and exercising that capacity. In this respect,
Distilled into its essence, it seems to me that P's own choice, and his appreciation of that choice and the opportunity to refuse to consent, is an integral element of the capacity decision itself. Knowledge of the other party's consent to the proposed sexual activity is certainly relevant to the choice which then confronts P as to whether or not he (or she) goes ahead with that activity and thus its essentially lawful or unlawful nature.
If these conceptual issues are difficult enough for the capacitous to grasp, it seems to me that very great care is needed before imposing on the potentially incapacitous the need to understand these quasi-criminal principles and the potential for consent to be withdrawn by the other party at any stage. In my judgment, importing into the test for capacity and/or the information which informs that test a requirement for an understanding of parallel and continuing consent in a sexual partner imposes a test which is set too high. I do not accept that it is appropriate to increase the bar for the potentially incapacitous and thus potentially deprive them of a fundamental and basic human right to participate in sexual relations merely because the raising of that bar might provide protection for either P himself or for any victim of non-consensual sex when those consequences are viewed through the prism of the criminal law.”

The judge doesnt say P can just exercise his capacity unsupervised, vulnerable women will still be protected. It’s just saying that the fact P needs supervision doesn’t mean he cannot consent to sex himself.n

Doctor Thanks for that. That is how I understood it!

Yay, Curious, at least two of us have same understanding.
To me it wasn’t right to sex but by proving that he has the capacity to consent to sex, he should have the right to the opportunity to pursue sexual relations and to decide if he consents or not.

Right now, he is under enforced celibacy which is a violation of his rights.

He doesn't understand consent = he is at risk of raping someone @cutiousaboutsamphire. If its sexual gratification he wants he can get that without endangering anyone. No right to sex - have a wank.

It's about whether he understands women have the right to say no - which he doesn't understand at all @DoctorAllcome

These cases are always going to be tricky. And law is always going to be inadequate. I'm inclined to agree with Curious that the law needs updating and clarifying by the Supreme Court. And that people with LDs have rights: we can't go back to the old days.

Just about to go off and read the judgement now - so not commenting on this man just yet.

But sometimes highly restrictive care plans are the only way: in the case of Katie Dolatowski, for instance, even the care plan failed.

It’s not really a ‘right to sex’ though is it. He has a right to seek sex, or to seek sexual partners, which is different.

Booboostwo And why stop there, what about people convicted of other forms of sexual assault that, statistically, may lead to raping later on? And what about the people who think about raping but haven't yet? And those who fantasize about rape but haven't formed the intention to rape yet?

There's a huge difference between banning someone who has already raped and been proved to have done it and banning someone who is fantasizing.

As for Samphire calling my view "totalitarian", we already do this, we call it a "driving ban". If someone proves they can't be be trusted not to drink-drive, we ban them. If someone proves that they can't be trusted to be around women safely, why can't we ban them from being alone with women? We already have things called "restraining orders" to protect individual women, why can't they be extended to protect all women?

Allcome, I'm not a child either, yet I'm sick of living in fear of rapists. I'm sick of sexual harassment and sexual assault (starting at age eight, most recently earlier this year) to the point that I'm considering suicide to escape. Just because "you're alright Jack" doesn't mean the rest of us are.

bd67th I am very sorry you have been the victim of multiple sexual assaults. And yet that doesn’t make you right in what you are saying now. What are you going to ban rapists from to prevent them from raping again? The only way to prevent them is to imprison them for life. Not to mention that the man in this case hasn’t actually raped anyone.

What are you going to ban rapists from to prevent them from raping again?

Going near women. We already have restraining orders to stop X from going near Y, or stop X from going within X metres of any school. Why not have restraining orders stopping rapists from being alone with women?

Not to mention that the man in this case hasn’t actually raped anyone.

But he has form for sexual harassment and, importantly, lacks the mental capacity to learn why what he is doing is wrong in order to stop sexually-harassing women. The LA are trying to protect women from him and protect him from the risk of prosecution and incarceration. Do you think that a man with that level of autism would last a week in prison without being beaten into a bloody pulp? Incarceration in a secure hospital would be safer but would deprive him of the physical liberty that he currently enjoys under supervision.

We wouldn't give this man a firearms licence because of the risk he might pose to others. He has a rape weapon built into his body and a proven track record of ignoring women's boundaries, but you want to give him the opportunity to deploy that rape weapon.

@bd67th
I’m also sorry to hear you have suffered sexual assault. Please don’t assume I’m alright jack whatever that means, I think it means you think I’ve never experienced sexual assault/rape? That’s an incorrect assumption.

I don’t agree with your viewpoint that convicted rapists should also be subject to some sort of lifetime segregation from women. You are assuming that someone who has raped will rape again. You are also assuming that rape is only male on female when it is not.

Your fear is probably PTSD. That constant hyper vigilance and scanning for threats is PTSD keeping you in red alert & fearful. It is what is giving you suicidal thoughts. No one can live in constant fear. Please consider seeking out trauma counselling..you don’t need to suffer alone.

@RuffleCrow
It's about whether he understands women have the right to say no - which he doesn't understand at all @DoctorAllcome**

The case and judgement were not about that, if that is what you mean by “it”. The case was P making the case that he has the capacity to consent to sex himself. That’s it.

The LA tried to argue that a person cannot have the capacity to consent to sex if they can not ALSO determine without fail whether a potential partner is also consenting. The judge disagreed on the basis that abled people with no disabilities have been known to display very poor judgement in that regard and yet they are deemed to have the capacity to consent to sex.

Basically, the LA doesn’t want to supervise P in the area of sexual relations. They want to keep him involuntarily celibate because it’s easier and cheaper. That’s all this judgement is about. Next would probably be how to supervise P and similar people to ensure no extra risk to others.