Let's Misbehave: Intellectual Disability and Capacity to Consent to Sex

Abstract

This paper discusses two recent judgments, A Local Authority v H [2012] EWHC 49 (COP) and D Borough Council v AB [2011] EWHC 101 (COP). Both these judgments involve adults with intellectual disability, who are considered as lacking capacity to consent to sex, under the provisions of the Mental Capacity Act. Faced with the dilemma of protecting persons with intellectual disability from sexual abuse or allowing them to engage in sexual relations, English courts have clearly chosen the path of protection. Setting aside criminal law and health risks, the analysis questions whether interferences in the sexual life of persons with intellectual disability can be justified on the grounds of incapacity alone. Sexual relations are not only part of private life, but also a basic human need. The liberal prerequisite of capacity in order to exercise a negative right (such as sexual relations as part of private life) becomes an exercise in paternalism, as the person with intellectual disability is banned from having sex for his/her protection (albeit for the reason that he/she lacks capacity, according to the traditional understanding of liberal autonomy). On the contrary, this paper takes the view that the question of capacity has to be only one part of a much more elaborate examination of the circumstances of each case.