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!

@DoctorAllcome

Your translation may be right, I would need more time to think about it.. but I am getting more and more disturbed by this.

My understanding of the MCA when it comes to sexual consent is that the relevant information is defined by case law and is -

1-Mechanics (what is sex).

2-STDs - How you get them, how not to get them
3- Pregnancy and it's relation to sex.

My understanding is that recent case law may have upset this a little bit by making things a bit greyer in terms of if consent can be person specific rather than act specific. I'm putting that aside though but it's a whole other thread if you know the case I mean.

I am not sure how the those three things, and in particular the pregnancy one are more important or relevant than consent of the partner. The case seems to hinge around the harm caused to him as he may potentially commit a crime and go to jail (by the way that's fine, it's the CoP, it's there to protect him not society). I am not sure how it could be argued that becoming a father could cause him (or any vulnerable male) more harm than going to jail.

The case law is of course based on one of the many cases of women with cognitive impairments being abused by predatory males and (failed) attempts by social services to stop the abuse. I think that's the heart of the problem here.

The whole framework of the law tries to treat males and females the same when they are inherently different and face different risks. Case law based on a woman being abused by a registered sex offender doesn't really work when applied to a man with a history of sexually inappropriate behavior against women... shocker.

That was a bit of a stream of consciousness but I will leave it as is. I am really interested to hear from anybody else who follows case law like this.

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

That's true of other things the courts do deem relevant though. Lot's of non-cognitively impaired people don't understand the risks of STDs on even a basic level. The court has decided that despite that people whose capacity in question must understand that to consent.

Surely there can be a happy medium? Maybe a consent form? It seems a bit extreme to ban someone from having a sex lode because they can’t understand consent but at the same time allowing them to do so creates a risk. Surely they can work out a mechanism to obtain consent in a way that the person understands?

Does it not come down to the fact that the law predominantly does not exist to prevent people from acting unlawfully but to punish when they do? In practice at least.

This case interests me a lot, I work with victims of sexual assault and women with learning disabilities and the issue of sex and consent and capacity comes up a lot. The MCA is incredibly complex and nuanced and capacity fluctuates depending on situation so is ever changing and unpredictable.

If the court are saying his care plan is too restrictive for even public safety and his own rights then I tend to agree with them, it's very unlikely they would do this lightly in my experience but there seems to be some ass covering where they talk about it going to the Supreme Court.

Fundamentally he has the right to make unwise and illegal decisions. Whether he faces the consequences of those decisions is down to his capacity at the time of the crime.

I'm going to read a lot more about this case as I was pretty outraged on first glance but the wider picture is not so clear cut and his care team appear to need lessons in least restrictive practice. Off to read.

The MCA is incredibly complex and nuanced and capacity fluctuates depending on situation so is ever changing and unpredictable

Sexual consent is slightly different. The functional test is rigidly based on case law.

Fundamentally he has the right to make unwise and illegal decisions

Everybody has the right to make unwise decisions but if your capacity is in question you have to understand that decision. That's the crux of the case.

Currently when deciding (under the MCA) if somebody can consent to sex they have to understand the relevent information which currently is-
Do you understand how sex is done?
Do you understand how you catch STDs and how you prevent them?
Do you understand that sex can result in pregnancy

If the court had ruled the other way it would have added a 4th test-

Do you understand the other person has to consent?

My understanding is that they decided that the 4th test took things too far.

@UglyGlassVase
*My understanding of the MCA when it comes to sexual consent is that the relevant information is defined by case law and is -

1-Mechanics (what is sex).
2-STDs - How you get them, how not to get them
3- Pregnancy and it's relation to sex.*

This test is the test to determine if the person has the mental capacity to consent to sex. If a person understands #1-3, then they are deemed to be able to decide for themself if they do or do not consent to sex.

This test is person specific. Actual consent to sex is still act specific and can be withdrawn mid-activity as well. That does not change.

The law has to treat males and females the same because the core principle of justice and human rights is that all are equal before the law.

The LA tried to argue that essentially this test should have a #4 added to it which would read something like....

1. Ability to determine partners(s) consent to sex

Which is vital for consensual sex as an activity, but is not vital to determining whether a person has the capacity to consent to sex for themself.

I find nothing disturbing in the judgement itself hen read in its full context. I think the media is completely twisting it up. It’s not a right to sex so much as a right to not be forced to be celibate by the State. Enforced celibacy is very similar to the forced sterilization that mental “defectives” were put through in the bad old days. The judgement makes it clear that he will need close supervision to navigate any sexual relationships that might evolve. With this supervision, he isn’t going to be any more of a risk than any random guy.

@UglyGlassVase
Lol just saw your “4th test” exactly thinking the same thing

The law has to treat males and females the same because the core principle of justice and human rights is that all are equal before the law

Of course and the law should, that's not the point I made though is it?

The law doesn't lay out the relevant information, the case law does and the case law is patently absurd. For a vulnerable male what is more relevant? Getting somebody pregnant or going to jail? Is pregnancy as a result of sex more relevant to a male or a female? Who is more at risk of being a victim of a sexual predator? A female literally cannot be convicted of rape. The relevant information is sex based.

Which is vital for consensual sex as an activity, but is not vital to determining whether a person has the capacity to consent to sex for themself

Why? Why is understanding the risk of STDs more important? Would you rather go to jail for 8 years or get crabs?

Thank you @DoctorAllcome @UglyGlassVase it makes me consider my understanding of a real life situation I'm dealing with right now differently. Appreciate you taking the time to consider and explain;

I'm absolutely going to read more about this case

@DoctorAllcome
It's all the double posting I'm doing. I find this really interesting but I have to go to bed so keep posting quickly.

I have never thought about any of this before by the way, I find these cases fascinating.

I absolutely agree with you in principle by the way in terms of peoples right to pursue relationships.

Lot's of non-cognitively impaired people don't understand the risks of STDs on even a basic level

I would be surprised if risk of STDs were even part of the MCA test. I think it is below basic in that if you merely know STDs exist and you get them from sex you are good to go. Risk is higher level stuff. Maybe @doublebarrellednurse Can shed some light on this aspect.

I would be surprised if risk of STDs were even part of the MCA test

They are. It's in the ruling.

Posted too soon-

26 His Lordship concluded that the 'relevant information' should be set at a sufficiently simple and rudimentary level consistent with the equivalent low level of the test for capacity to marry. He framed the test in this way:
"42. I therefore conclude that the capacity to consent to sex remains act-specific and requires an understanding and awareness of: the mechanics of the act; that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infection; that sex between a man and a woman may result in the woman becoming pregnant

The quoted part is used as the functional test and has been for some time.

This is quite a complex case and I’d advise anyone to read the judgement posted before replying.

I don’t think anyone is trying to be a rape apologist. At the same time this person is ‘currently’ innocent of committing any crime.

When it comes to restricting and promoting mentally disabled persons rights most people like myself will feel conflicted. Some people here seem to want the person locked up in a cell without parole having never been convicted of a crime.

I also understand the concept of why wait until they have if his behaviour makes it seem inevitable but we don’t yet live in a pre-crime Minority Report environment

A female literally cannot be convicted of rape.

That will change. They can and are convicted here in the US of rape. I know U.K. is looking to also update their law which only excludes females by specifically requiring penetration with a penis.

The test is relevant to both men and women because it only relates to can they consent to have sex done to them. It’s not about whether the other party is also capable and is consenting. That’s outside the scope of the concept of mental capacity to consent.

It’s like contract law right? A minor cannot sign a legally binding contract because they do not have the capacity to consent. When they turn 18, they can sign contracts for car loans, rental agreements etc because they are now deemed to have the capacity to consent. Their legal right to enter into a contract is not affected by whether or not they can determine whether everyone else also has the capacity to consent. It’s not saying that’s not important because vulnerable people can be defrauded by accident or on purpose, just that it’s not relevant to a person’s right to consent.

Good night! Nice talk. Still early for me.

Sorry but “health risks” is not the same as “risks of STDs”
To my mind, one is general the other more specific. But perhaps I am just reading too much into your paraphrasing.....

@Caucho
Good post. 100% agree.

We don't know how this person has behaved, and no one has stated he should be kept locked in a cell.
People have decided that he is trying to form meaningful relationships, whereas its possible that he decides he wants sex and then pursues that train of thought.

My guess is that his care plan is designed so that his carers don't want to deal with his behaviour. They may also be concerned they will be held liable or culpable if he commits an assault.

A women can though Doctor...

I think it means you think I’ve never experienced sexual assault/rape?
No, it means I think you're not bothered about the possibility of it happening again.

That’s an incorrect assumption.
Another woman hurt by men.

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.
My "assumption" is actually an evidence-based observation that most rapists are repeat offenders.

You are also assuming that rape is only male on female when it is not.
Incorrect. I am assuming nothing, I am declaring male-on-male rape to be men's problem to solve. Women cannot rape under English law, the offence by definition requires a penis.

Your fear is probably PTSD entirely reasonable given the epidemic levels of male violence against women. That constant hyper vigilance and scanning for threats is PTSD keeping you in red alert & fearful minimising your chance of getting caughf unawares by some bastard man wanting fo get his dick wet at your expense.
FTFY.

It is what is giving you suicidal thoughts.
You could not possibly be more wrong. The suicidal thoughts are because I am not alone, countless women suffer as I have done and worse and no one is doing anything useful to stop men from raping because their hurt feelings and imagined "right" to sex matter more than our safety. The suicidal thoughts are because rape is de facto legal with plummeting prosecution and conviction rates, whilst the few female-only spaces we can take refuge in are destoyed by trans activists. The laughter of my first two assailants ringing in my ears and the knowledge that other women and girls will live with the echoes of similar laughter makes me suicidal. My fear does not make me suicidal, you presume too much about my mental health here. My fear keeps me safe. When EVAW found that one-third of men think that women don't have the right to expect a man to stop if she changes her mind during sex, fear of men is eminently rational. That fear keeps men out of my bed. (FFS, I am celibate to avoid being raped, and this judge thinks it's unfair to keep a known sexual harasser who doesn't understand consent celibate? Celibacy is not going to kill him.)

No one can live in constant fear. Please consider seeking out trauma counselling..you don’t need to suffer alone
I phoned Rape Crisis after that EVAW report (linked above) came out. My trauma was triggered by that one-third figure and the immediate realisation that I had tolerated sex so harmful that it had given me UTIs sooner than tell the man "stop, you're hurting me" because, at some level, I suspected he wouldn't stop and I didn't want to test that and have it proved that I was dating a rapist; I preferred to be "in the dark" and pretend all.was well than know the truth. It was not the memories of childhood sexual abuse that caused the fear response, nor the memories of adult rape, nor the memories of sexual harassment, but statistical evidence from a well-designed study. My fear response is rational and I don't want to lose it; losing it would be going back to unawareness and pretending everything is OK. Who benefits from that? I don't. Men benefit from me being counselled into acceptance of men's abuse of me. Men benefit from me being "fixed" back into compliance and sexual availability.

If a species of scorpion had a sting that would injure or even hospitalise you, but only one-third of specimens would use it, would you put your hand in a tank of them? Would you consider one as a suitable pet? Men are fitted with rape weapons and one-third will use them. Why would I want a "pet man" aka boyfriend or husband, knowing this?

The judgement makes it clear that he will need close supervision to navigate any sexual relationships that might evolve. With this supervision, he isn’t going to be any more of a risk than any random guy.

I said this upthread and I will say it again, and again, and again, until someone actually answers my question:
Given that:

1. Women have the right to withdraw consent to sex mid-session,
2. P doesn't understand the need for the woman to consent and is hence likely to disregard withdrawal of consent,
3. P continuing past a consent withdrawal would constitute rape, and
4. P and the woman cannot reasonably be observed during sex by LA staff or any other safeguarding actor, How are the LA going to protect a woman from P raping her (and by extension protect P from the criminal justice consequences of said rape)?

bd67th
I agree with all you’ve said..
doctorallcome I find your comments to bd67th very condescending
I can’t imagine anyone who has been through sexual abuse or rape making comments like that or having your opinion

This is another reason I don't read the Guardian

It's just the DM but with fewer tickers and shit

My point being that this ruling means that, at some point, this man's safeguarding team have to leave him in a room alone with a woman so that he can exercise his "fundamental right to sex" (using the wording of the judgement) when he doesn't understand the need for her to consent and has form for ignoring boundaries. At that point, he becomes way more of a rape risk than the average joe. There is no way to mitigate this whilst obeying the ruling.