This is a guest post by Sarah. She blogs here.
This is one of the strangest cases I’ve heard of since I started blogging. It seems to be not so much surprise that a disabled person knows what sex is, but a feeling that he doesn’t understand what sex means.
A 41 year old man, known only as Alan, has been banned from having sex because he has an IQ of 48 and a ‘moderate’ learning disability. Alan started a romantic relationship with another man, Kieron, who he met while living in a home provided by his local council. However, in June 2009, Alan’s local town hall decided that he lacked the mental capacity to have contact with Kieron, and began court proceedings to restrict their contact with each other. Since then, Alan has been closely supervised to prevent him from carrying out any further sexual activity, except when he is alone in his bedroom.
This is the latest case to be brought before the Court of Protection, which has the power, under the Mental Capacity Act 2005, to make life or death decisions for people who lack the intelligence to make them for themselves. Usually, this court can force people to have abortions or life saving surgery, use contraception or switch off life support machines.
Alan is described as ‘sociable’ and ‘able’ but his mental functionality is described as ‘seriously challenged.’ His sex drive is described as ‘vigorous’ and ‘inappropriate.’ There were apparently two reports of Alan making inappropriate gestures to children, but police did not take any action. A psychiatrist told the judge in the Court of Protection that Alan thinks sex causes ‘spots or measles’ and that babies are ‘delivered by a stork or found under a bush.’ The psychiatrist added that sex education would leave Alan ‘confused.’
Based on these statements, the judge ruled that Alan ‘does not have the mental capacity to consent to and engage in sexual relations’ at this time, but that he should be given sex education in the hope that he gains this capacity.
Alan had said that he would ‘feel happy’ if his relationship with Kieron was allowed to continue, and had asked for the judge to be told that he wanted to kiss his partner again.
The judge said that this case was legally, intellectually and morally complex as sex is ‘one of the most basic human functions’ and that the court must handle the case carefully. But he said that a test of a person’s capacity to consent to sex could be carried out based on their understanding of the act itself. This requires an understanding of the ‘mechanics of the act,’ an understanding that there are health risks involved, and an understanding that sex between a man and a woman leads to pregnancy. He highlighted the fact that the court cannot prevent people making ‘unwise’ decisions.
Now, my views. It’s obvious to me, from all these reports, that Alan’s understanding of sex is extremely limited. However, he obviously understands the ‘mechanics’ of sex, and he knows that there are some health risks involved. Since he has a male partner, there doesn’t seem to be much chance of him getting anyone pregnant- or as much point in teaching him about pregnancy as there would be if his relationship was with a woman. Importantly, he appears to understand what it means to have a sexual relationship with one partner. Surely, if the information was simplified to fit his level of understanding, someone could explain the need for him to use contraception? Apart from that, Alan clearly understands that the relationship makes him happy- he has said so himself. Surely that is all that really matters?
Sex, like all other really important things, is a human right. Even if it’s physically impossible for a person to have sex, everyone understands it at some level, and, at some point in life, everyone wants to have sex with someone. I think this is council protection gone even more mad than usual. There are some things that courts and councils should not have a right to interfere in, reduce or ban. You may not agree, but I, for one, think sex- and happiness- are two of those things.
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Filed in: Civil liberties,Disability