In a ruling described as “homophobic” and “a denial of the rights of disabled people”, a 41-year-old man has been barred from having sex with another man until he has a better grasp of the health implications of his act.
In the meantime, he will be closely supervised by the local council to ensure his sexual activity is restricted to masturbation in his bedroom or bathroom – and nothing more.
This decision was handed down two weeks ago by the Honourable Mr Justice Mosteyn, presiding over the Court of Protection in Newcastle.
The COP is an historic secret court dating from medieval times and was known as ‘the Masters of Lunacy’. Set up in its present incarnation by the Mental Health Act 2005, it has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.
Its deliberations are usually carried out in secret – though their decisions can have the most far-reaching consequences for individuals: in one recent case, a local council sought an order allowing it to forcibly sterilise on a woman who had already refused this procedure.
In this case, the respondent, identified only in court as “Alan”, first came to the attention of his local authority after reports of inappropriate behaviour towards a number of children in 2008.
A year later, while sharing local council accommodation with another man, a relationship developed, involving penetrative anal sex (active and passive) as well as kissing, mutual masturbation and oral sex. There is no suggestion that the sexual activity and reports of inappropriate behaviour were linked.
Nonetheless, the local council intervened, claiming that Alan, who, with an IQ of just 48, is classified as having a mild to moderate learning disability, “lacked capacity to consent to sexual relations”. An order was placed restricting further sexual contact and a regime of close supervision was put in place.
Despite council claims that Alan had not expressed “any wish to resume sexual activity”, the judge stated that he had asked to be allowed to have sex again.
Justice Mosteyn’s ruling examined issues surrounding consent to sex in great detail. He noted that the degree of understanding required for a valid consent in this area was not great, quoting long-established precedent that “the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend”.
In the end, the issue boiled down to just three areas where understanding and awareness were required: the mechanics of the sex act, the health risks and the risk of pregnancy.
Since Alan clearly understood the mechanics well enough for his own needs, and the risk of pregnancy was nil, the ruling boiled down to a simple question of whether or not he understood the health risks. After hearing evidence to the effect that Alan’s grasp of health issues was poor, the court ruled that he did not have capacity to consent to sexual activity and therefore the council was mandated to prevent this occurring.
This ruling is unlikely to impact the vast majority of the gay community. Nonetheless, critics have been quick to point out to what they consider deeply disturbing implications behind this ruling.
Retired lawyer and legal blogger, ‘Anna Raccoon’, who first drew this story to our attention, says: “This may not be outright homophobia – but I think a general distaste for gay sex underpins the council’s attitudes. The court debates issues of informed consent, wondering if any partner might be accused of raping him. Would this issue even have been raised if they were discussing a heterosexual relationship?”
Miss Dennis Queen, who is active in both disability and sexual rights (on behalf of the Disabled People’s Direct Action Network and the Consenting Adults Action Network respectively) highlighted the lack of sex education offered to people with learning difficulties and the institutionalisation, which is at the root of inept social relationships, and the controlling attitude of the council.
She told us: “People do not learn appropriate social behaviour by being banned from having sex with a consenting adult partner. The intervention itself is an act of exclusion from the normal rights of UK citizens.
“Landlords don’t usually get the right to police our behaviour in the bedroom, but for people in supported living this is not unusual.”