Why Sex And Mental Capacity Is A Complex Human Rights Balancing Act

By Ruth Campbell, Writer 7 Oct 2019

It is unlawful to prevent an autistic man who is unable to understand “consenting sexual relations” from pursuing intimate relationships, a court ruled last month. What can get lost behind the often provocative headlines that accompany these types of cases is the complex balancing act involved in avoiding discrimination against those with learning disabilities and preventing crime and harm, writes Ruth Campbell.  

The Court of Protection, which is tasked with considering cases for people who lack the mental capacity to make decisions for themselves, handed down a judgment in the case of a man known only as JB on 17 September.

JB is 36 years old and has a complex diagnosis of autism with impaired cognition. For the past five years he has been living in a supported residential placement, with a care plan which imposes significant limits on his ability to live independently and engage with his local community. In particular, it limits his contact with other people and his access to social media and the internet.

Those restrictions make it difficult for JB to meet and socialise with other people. In particular, they severely limit his ability to meet members of the opposite sex, to form romantic relationships, and to have sex – which this is the issue that brought JB to the Court of Protection.

A Human Right To Sex?

Image Credit: Pexels.

Mrs Justice Roberts, the judge who sat on the case, described the case as engaging “a fundamental and basic human right to participate in sexual relations”. Just a few months ago another judge, Mr Justice Hayden, made headlines when, in a preliminary hearing on a case involving a husband and wife who had a learning disability, he made the statement that men have a “fundamental human right” to have sex with their wives.

Journalists, MPs, and the general public were furious at what they saw as the suggestion that men could have sex with their wives whenever and however they want. It’s easy to see why people were shocked and concerned by that suggestion – marital rape in the UK only became a crime in 1991, and explicitly so in law in 2003 – but to do so fundamentally misunderstands the nature of human rights.

First of all, it’s important to note that there is no explicit “right to sex”. What there is, however, is Article 8 of the European Convention on Human Rights, which protects our right to a private and family life. This right is broad, but it essentially protects our dignity and our autonomy to make decisions for ourselves and to conduct our lives, privately, in the way we choose to. Article 8 has been crucial, for example, in ensuring the recognition of same sex-marriage and in outlawing legislation prohibiting homosexuality.

The courts have been clear that all decisions about sex fall squarely under Article 8. They have also been clear that it should be considered as a fundamental. The way in which we form relationships with others, conduct ourselves in those relationships, and fall in love – or lust – are crucial to who we are as human beings; how we define ourselves; and how we present ourselves to the world.

We also need to remember that human rights regulate the relationship between the state and the individual. They are rights that we have to hold the state to account and to prevent it from interfering, unjustly or unnecessarily, in our lives. Human rights do not give us claims against other individuals. In the context of sexual relationships, and the comments from both judges about rights to sex, it means that the government cannot interfere with someone’s sex life – or, at least, they must have really good reasons for doing so.

The Balancing Act

scales of justice No-Deal Brexit

Image Credit: James Cridland / Flickr. 

And what might those good reasons be? In the case of JB, the local authority responsible for looking after him had placed limitations on his ability to interact with others – and form romantic and sexual relationships – because they felt it was necessary for his safety, and the safety of others. They didn’t want him to be in a position where his behaviour might pose a risk to himself or to vulnerable women, or even lead him to commit a sexual offence.

These are understandable concerns. Article 8 is not an absolute right and can be limited in circumstances where it is necessary, including when needed to “prevent disorder and crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” In these types of cases, there is a balance to be struck between the rights of individuals to privacy, personal dignity and self-determination, and the rights of vulnerable individuals to be safe and protected.

We need to be careful about the way in which we approach that balancing exercise, however, and make sure that it doesn’t lead us down the road towards discrimination against adults with learning disabilities or cognitive impairments.

The fact that somebody has a learning disability or any other kind of cognitive impairment does not automatically mean they lack capacity. The law which governs decision-making for people who can’t make decisions for themselves (the Mental Capacity Act 2005) is crystal clear that any assessment of capacity must be based on an assessment of a particular individual, in relation to the specific decision that needs to be made at that point in time. To make a blanket assessment of capacity based on someone’s condition, or the fact that they might generally lack capacity, would be discriminatory.

Then there is the potential for a decision to discriminate against those who lack capacity when compared with how the law treats people with capacity. Mrs Justice Roberts was critical of the idea that JB should be subjected to a higher test for understanding of consent and relationships by virtue of the fact that he might lack capacity, when we don’t ask those individuals deemed to have legal capacity to prove their understanding or “refined or nuanced analysis” of any decision they might make to consent to sexual relations.

A Complex Area


This is a complex area, and one that we probably don’t always feel comfortable acknowledging. A finding that someone is unable to engage in relationships with another person – where there is “true consent and mutual desire” – is a serious one, and not one that should be made lightly.

In all of this too, it is crucial to remember that the fact that someone may lack the capacity to make decisions does not mean that they lose their rights and freedoms. In fact, there may be an argument that we have more responsibility to safeguard the rights and freedoms of people unable to speak up for themselves, in order to ensure they are not encroached or overridden. These cases – when they’re not being turned into clickbait by media companies, or appropriated by politicians looking to make a statement – help cast a crucial light on these issues.

Featured Image Credit: Stock Image / Pexels. 

About The Author

Ruth Campbell Writer

Ruth graduated from the University of Oxford with a BA in Jurisprudence before completing a Masters in Medical Law and Ethics at King’s College. She works for a national medical organisation in the Medical Ethics and Human Rights Department, where she leads on policy relating to end of life issues and health in detention.

Ruth graduated from the University of Oxford with a BA in Jurisprudence before completing a Masters in Medical Law and Ethics at King’s College. She works for a national medical organisation in the Medical Ethics and Human Rights Department, where she leads on policy relating to end of life issues and health in detention.