Blanket Prohibition Research Articles

Proposed Modification of the Policy on Provision of Consulting Services by the External Audit Firm

At an informal Board meeting in January, there was broad support for removing the current blanket prohibition on the provision of non-audit-related consulting services by the Fund’s external audit firm and replacing it with a blacklist approach, subject to robust safeguards to ensure the independence of the external audit firm. This paper makes specific proposals to implement such a change. This would align the Fund’s policy on the provision of consulting services by the external audit firm with practices followed in major jurisdictions and allow the external auditor to perform certain consulting services with proper safeguards to maintain the auditor’s independence. The proposed safeguards include: (i) a blacklist of prohibited services; (ii) an independence declaration by the external audit firm; (iii) limitations on the consulting fees that can be paid to the external audit firm; (iv) an oversight role for the External Audit Committee (EAC); and (v) review of consulting services provided by audit firms prior to the selection of a new external audit firm for the Fund. The staff sought the views of the EAC, which concurs with the proposal to modify the policy on the provision of consulting services by the external audit firm along with the related safeguards.

Stout, Rawls, and the Idea of Public Reason

Jeffrey Stout claims that John Rawls's idea of public reason (IPR) has contributed to a Christian backlash against liberalism. This essay argues that those whom Stout calls “antiliberal traditionalists” have misunderstood Rawls in important ways, and goes on to consider Stout's own critiques of the IPR. While Rawls's idea is often interpreted as a blanket prohibition on religious reasoning outside church and home, the essay will show that the very viability of the IPR depends upon a rich culture of deliberation in which all forms of reasoning can be put forth for consideration. This clarification addresses the perception that the IPR imposes an “asymmetrical burden” upon believers. In fact, the essay suggests that there are good reasons why believers, qua believers, might endorse the IPR.

Repositioning Trademark Laws as Tools for Socioeconomic Development

This article examines the provisions of Nigerian trademark laws on comparative advertising. It criticizes the dichotomy between registrations under parts A and B of the register in this regard, and makes the case that the blanket prohibition of comparative advertising in respect of marks registered under part A is unnecessary and unjustified by requirements under international trademark standards. Such prohibition is further inimical to socioeconomic development, including the areas of consumer information, development of local businesses, and the general alignment of the country’s intellectual property laws and practices with the underlying philosophy behind the World Intellectual Property Organization’s Development Agenda. It concludes by making a case for law reform.

The Law Doesn't Say Much About Base Rates

In his recent contribution “Neglect the Base Rate: It’s the law!” (http://ssrn.com/abstract=2192423), Prof. Engel makes the point that the law forbids making group-to-individual inferences based on the relative frequency of a property of interest in a reference class (the “base rate”), unless the members of the reference class were “acting in concert” or the base rate information serves as exculpating, rather than inculpating, evidence in criminal cases. While making his argument, Prof. Engel also criticizes a “Bayesian” approach to evidence evaluation, i.e. an approach that posits that the partial beliefs of judges should conform to the axioms of probability theory, suggesting that it leads to conclusions which are incompatible with substantive law. Prof. Engel develops his arguments based on a series of examples. In this response, I purport to show that, i) subjective probability theory does not lead to solutions of the problems presented by Prof. Engel that are contrary to substantive law; and, ii) the law does not generally prohibit the use of base rate information where it admits other relevant evidence. In fact, the law does not say much about the use of base rate information at all, because it is hardly ever directly relevant outside the world of hypothetical cases of legal scholars. On the other hand, base rate information can be epistemically useful, and a blanket prohibition cannot be read from the law.

The Association between Actuarial Services and Audit Quality

SUMMARYWe examine the association between audit quality and the joint provision of audit and non-audit services (NAS) by accounting firms. We argue that differences in audit quality between joint and non-joint NAS conditions can only be assessed if the quality of the NAS service is held constant. Most prior work has not been able to do this because the identity of the NAS provider is unknown unless it is the audit firm itself. Our analysis is based on firms in the property-casualty insurance industry that purchase an actuarial certification of their loss reserves from an external party. The insurance setting is unique because the non-audit service that we examine is purchased by all firms in our sample, and we can identify both the audit and non-audit service provider. This allows us to directly address the NAS separation issue while holding NAS quality constant. We find that when actuarial work is obtained only from Big N firms (NAS quality is constant), audit quality is higher when separate Big N firms provide audit and actuarial services. The implication is that separating audit and NAS functions between two quality providers is beneficial, compared to allowing one quality firm to provide both services. We caution that this finding may not apply to other types of non-audit services, and a blanket prohibition on these activities is not warranted.JEL Classifications: M41; M42; M48; G22.

Deaccesioning in Museums

One of the paradoxes of deaccessioning is the need to dispose of tangible cultural heritage without violating the donors’ or public's trust. As the economy has declined, precipitating a need for museums to reevaluate and consolidate their collections, misinformation, confusion and public hostility towards deaccessioning has persisted. While practitioners and scholars have shown a great deal of interest in the ethical dilemmas inherent in deaccessioning, the need for deaccessioning and the practicalities and legalities of deaccessioning have been largely ignored. Refuting a blanket prohibition or bias against deaccessioning, this article highlights the legal, ethical and practical considerations of deaccessioning including a list of relevant regulations and best practices. When discussing legal considerations, this article will review restrictions on disposal, authorization to deaccession, fiduciary duties implicated by deaccessioning and standing to sue. Under ethical considerations, this article will analyze relevant provisions from the AAM, AAMD, AASLH and ICOM regarding ethical considerations as well as highlight key issues in the debate. Finally, this article will list the best practices for deaccessioning including the importance of unrestricted title to the work before sale, proper authority to approve deaccessioning, documentation needed, appropriate method, notification to donor and the use of proceeds.

Women as Leaders in the New Testament

Far from being a utopian and impractical ideal, Paul's statement that ‘in Christ there is no male and female’ was intended to have an impact on the day-to-day life of the church. We can see evidence of its impact in the practice of the Pauline churches, where women exercised a variety of roles that we would associate with church leadership in the fields of stewardship, prophecy, and the ministry of the word. But the Pauline letters also display a progressive accommodation of the radical ideal to societal norms, culminating in the blanket prohibition of women's leadership in 1 Timothy.

The drive to ban the NOEC/LOEC in favor of ECx is misguided and misinformed

Challenges to the use of the no observed effect concentration (NOEC) in ecotoxicology have appeared over the years, with a recent call for banning its use in favor of the x% effects concentration (ECx). This article presents an opposing view, providing reasons for the continued use of the NOEC, and for hypothesis testing in general. Although the use of ECx values is appropriate in many situations, there are numerous real-world examples where it is not suitable and offers no advantage over the use of hypothesis testing. These examples are presented with recommended data analysis techniques, illustrating the variety of statistical approaches that are meaningful in analyzing ecotoxicity data. Thoughtful consideration of study design and proper analysis and interpretation of the results will go further to advance the science of ecotoxicology than attempting to implement a blanket prohibition or endorsement of any single statistical approach.

FREEDOM OF ATTORNEY-CLIENT ASSOCIATION

The purposes and core ideals underlying the right of association demonstrate that attorney association to provide legal advice, assistance, and representation (attorney-client association) deserves constitutional protection, as will be explored in Part II. Freedom of association protects the other enumerated rights found in the First Amendment, including free speech, peaceable assembly, and petitioning the government for redress of grievances. Constitutional protection of attorney-client association similarly secures these enumerated First Amendment rights, including attorney speech rights essential for lawful advocacy, peaceable assembly with others to discuss legal grievances, and the effective petitioning of government for redress. Further, freedom of association protects self-government, popular sovereignty, and access to democratic processes, all of which are strongly implicated when examining attorney-client association. Finally, freedom of association ensures that guilt is personal and cannot be imputed to those associating with the guilty unless they personally join in unlawful aims or actions. The HLP Court’s denial of the right of association contravenes this purpose by imposing guilt solely by association with a client who has engaged in unlawful acts. The purposes underlying the right of association thus demonstrate the need for recognition of freedom of attorney-client association. But even more fundamentally, as discussed in Part III, the right of attorney-client association is essential to the attorney’s role in the American system of justice, specifically, in protecting the life, liberty, and property of others and providing access to justice and the fair administration of law. Yet the HLP Court’s holding frustrates the attorney’s role in the administration of justice and the attorney’s duty to take on legal causes and provide access to justice even for unpopular clients. Finally, Part IV will discuss the extent of the right of attorney-client association, including appropriate limitations on that right. In general, attorneys have a right to associate with a client to provide legal advice, assistance, and representation. Regulators, however, can prohibit attorney association with clients where that association poses a significant risk of harm to clients or to others, as in cases involving conflicts of interest. Nevertheless, under such scenarios, regulations work to prohibit specific attorneys from associating with specific clients, but they do not create a blanket prohibition against all attorney assistance or representation of certain groups based on that group’s prior bad acts. Guilt by association has no place in prohibiting attorney-client association. Attorneys can be prohibited from counseling or assisting a client in committing a crime or fraud or related harms, but where attorneys are only engaging in lawful advice and assistance, their association with a guilty client cannot be proscribed.

Optimal attorney advertising

Attorney advertising routinely targets tort victims. This paper reviews legal services advertising restrictions in the United States and abroad. A theoretical model is developed which incorporates advertising intensity, litigation costs, and an endogenous number of lawsuits. Since advertising induces victims to bring suit, it increases the level of injurer care. However, litigation costs are also incurred. At the optimum, the marginal benefit of deterrence equals the sum of marginal litigation and advertising costs. Extensions of the model are considered, including the possibility that advertising stirs up frivolous lawsuits and that firms use advertising to rent seek. Fee shifting and alternative fee structures are also discussed. Although blanket prohibitions on attorney advertising are likely suboptimal, some regulations may be justified.

A Face Tells More than a Thousand Posts: Developing Face Recognition Privacy in Social Networks

What is so special about a face? It is the one personally identifiable feature that we all show in public. Faces are particularly good for identification purposes because, unlike getting a new coat or haircut, significantly altering a face to make it unrecognizable is difficult. But since most people have only a limited set of acquaintances, they can often remain anonymous when doing something personal by themselves — even in public. The use of face recognition technology in social networks shifts this paradigm. It can connect an otherwise anonymous face not only to a name — of which there can be several — but to all the information in a social network profile, including one’s friends, work and education history, status updates, and so forth.In this Article, I present two central ideas. First, applying the theory of contextual integrity, I argue that the current use face recognition technology in social networks violates users’ privacy by changing the information that they share (from a simple photo to automatically identifying biometric data) and providing this information to new recipients beyond the users’ control. Second, I identify the deficiencies in the current law and argue that law alone cannot solve this problem. A blanket prohibition on automatic face recognition in social networks would stifle the development of these technologies, which are useful in their own right. But at the same time, our traditional privacy framework of notice and consent cannot protect users who do not understand the automatic face recognition process and recklessly continue sharing their personal information due to strong network effects. Instead, I propose a multifaceted solution aimed at lowering switching costs between social networks and providing users with better information about how their data is used. My argument is that once users are truly free to leave, they will be able to exercise their choice in a meaningful way to demand that social networks respect their privacy expectations.Though this Article specifically addresses the use of face recognition technology in social networks, the proposed solution can be applied to other privacy problems arising in online platforms that accumulate personal information. More broadly, the undertaking to open up social networks and make them more transparent and interoperable could address the concern that these networks threaten to fragment the Web and lock in our personal information.

Stop Being Evil: A Proposal for Unbiased Biased Search

Since its inception in the late 1990’s, Google has done as much as anyone to create an open Thanks to Google’s unparalleled search algorithms, anyone’s ideas can be heard, and information (and vertical search services) of all kinds are easier than ever to find. In fact Google counted itself among the most vocal advocates of net neutrality. When people worried that ISPs would use their positions as gatekeepers to discriminate among content in pursuit of profits, Google stood tall as a champion of the little guy.However, as Google has extended its ambition beyond its core function, it has conducted itself in a manner that now threatens the openness and diversity of the same internet ecosystem that Google once stood for. By promoting its own content and vertical search services above all others, Google is placing a significant obstacle in the path of its competitors. Regardless of how well companies like NexTag, Yelp!, and Expedia build products to compete with Google, they will always be disadvantaged in the battle for exposure. And since search engines appear poised to grow increasingly important in the ever-expanding internet, the handicap will be magnified.Senator Richard Blumenthal (D-CT) likened Google to a racetrack owner. You run the own the racetrack, he told Schmidt, and now that Google owns some of the horses you seem to be winning. In order to mitigate the potential damage to competition, Google must be prevented from leveraging its power in core search to steal market share for its downstream vertical search services. And thanks to growing awareness of Google’s conduct, the search giant is likely to face antitrust scrutiny in the foreseeable future. However, we must be careful to avoid a remedy that risks hindering the natural progress of the internet. Simple, blanket prohibitions on self-promotion may protect competition on the surface, but it is also an unimaginative, cosmetic solution that risks stalling internet search in the era of ten blue links.Requiring Google core search to integrate its competitors, as this Note proposes, would promote competition without the intrusive administrative interference. It would also allow online search to continue on its path toward becoming truly universal while protecting consumer choice. But action must come soon. Search — both core and vertical — is taking shape very quickly. Once the maps are drawn for the next generation of online search, the enormous fixed costs, strong consumer habits, and the massive scale required to develop a good algorithm mean the dominant players will have cemented their positions. Let us hope that, when the dust settles, it isn’t too late.

Value of Valor: Money, Medals and Military Labor

The United States Supreme Court recently overturned the Stolen Valor Act on the grounds that the law’s blanket prohibition on falsely claiming to have received a military medal or decoration violated the First Amendment right to free speech. This Article uses the controversy provoked by the law to explore the implications of offering compensation for military service in the form of medals. How is compensation in medals related to monetary compensation? Querying the distinctions between money and medals — and the ways in which the boundaries around medals are drawn and policed — offers a means of considering the forms of value that underlie compensation for the work of those who fight in the name of the nation. In an era where value is increasingly assessed in monetary terms, what might medals tell us about the resistance of certain forms of value to such conversion? Furthermore, understanding the relation between medals and money is of vital importance because, this Article contends, the government’s increased use of private military contractors, who are ineligible for most military medals, constitutes a retrenchment from a workforce that is paid in both forms of value — honor and money — to one that is paid in money alone.

Over My Dead Body: A Better Approach to Testamentary Restraints on Marriage

Money is a tool that can be wielded from the grave. It is not uncommon to find deeds or wills that shape the behavior of the living by conditioning a gift on a potential beneficiary’s conduct. Sometimes these conditions involve a limitation on marriage — prohibiting, penalizing, or requiring marriage to one of a particular religious faith or ethnicity. Courts have held that complete restraints on marriage are unreasonable, contrary to public policy, and void. However, partial restraints of marriage are valid as long as they are “reasonable.” A restraint is “unreasonable” only if a marriage permitted by the restraint is factually not likely to occur. This essay suggests that this fundamental approach is incorrect. The Reasonableness Test produces extremely problematic results, due to four major flaws: (1) it ostensibly questions the testator’s intent while disingenuously claiming that it does not, (2) it is empirically unsound, (3) it fails to take into account whether the restraint is actually consequential to the beneficiary, and (4) it produces unjustifiably inconsistent results based on geography and time. This essay then discusses several alternative approaches to the Reasonableness Test, including the blanket prohibition of all marital restraint provisions, the blanket allowance of all marital restraint provisions, and case-by-case balancing. A new test is then promulgated: a test for coercion. If we are worried that the provision will force the beneficiary to surrender to an unreasonable marriage or a lifetime of loneliness, we should examine the extent to which the donee is actually influenced by the conditional gift. I argue that the Coercion Test is the best approach because it avoids all four major problems with the Reasonableness Test, while providing more respect for testator’s intent than a blanket prohibition, more protection of public policy than a blanket allowance, and more consistency than a case-by-case balancing approach. Most importantly, the Coercion Test addresses the crux of the public policy problem: whether an individual’s freedom of choice of marriage is being restricted.

Optimal Attorney Advertising

Attorney advertising routinely targets tort victims. This paper reviews the Supreme Court’s jurisprudence on attorney advertising, and develops a theoretical model that incorporates advertising intensity, litigation costs, and an endogenous number of lawsuits. Since advertising induces victims to bring suit, it increases the level of injurer care. However, litigation costs are also incurred. At the optimum, the marginal benefit of deterrence equals the sum of marginal litigation and advertising costs. Although blanket prohibitions on attorney advertising are likely to be suboptimal (consistent with the Court’s position), some regulations may be justified.

Are There Some Positions Editors Just Shouldn't Publish?

Are There Some Positions Editors Just Shouldn't Publish? Gregory E. Kaebnick I recently wrote to a friend and occasional Report contributor that part of the job of editor, as I understand it, is to recognize the merit in and, in effect, foster the advancement of work that one actually believes is in some sense wrongheaded. It's a point I want on the table as I introduce the two articles in this issue of the Report—not because I necessarily think these articles are wrongheaded, but because I want it clear that publishing the articles does not necessarily mean I or others at the Center think they are right, either. We publish articles that we think advance thinking, but that can mean publishing articles that challenge morally compelling positions. Thus, deciding whether one agrees with a position expressed in a paper is not the same as deciding whether the paper makes an important point and makes it well. The articles in this issue both depend on a somewhat similar distinction—roughly, between assessing a moral point and developing policy that would enforce that point. In the lead article, Lawrence Nelson and Brandon Ashby argue that though there are good moral arguments against physician participation in executions, those arguments are not so decisive that all reasonable people must accept them. In fact, there is room for reasonable disagreement about physician participation in executions, and as long as there is, professional medical organizations may discourage members from participating but should not destroy the careers of those who do anyway. In the second article, Chiara Lepora and Joseph Millum argue that physicians can sometimes appropriately decide to be complicit in torture, even though torture is wrong. Complicity is not always appropriate, they argue, and should always be minimized, but a blanket prohibition on complicity in torture is mistaken. In fact, carefully minimized complicity can actually be good for the people undergoing torture. This point, too, echoes a point Nelson and Ashby make: if executions are going to occur, it may well be beneficial for those being executed to have physicians participating in them. Some articles make for challenging reading because the arguments are intricate. These articles make for challenging reading because the topics are unpleasant. Also in this issue is a second installment of essays we selected in the informal essay contest we held last year to commemorate the Report's fortieth volume. We had asked for up-and-coming people in bioethics to tell us what the field should do in the next forty years. Many people wrote about the topics they felt needed attention, and we published a set of those essays in the November-December 2010 issue. Many also wrote about method—about how bioethics should be done—and the set in this issue draws from these submissions. Harold Braswell calls for renewed attention to how bioethical issues are framed. Lisa Campo-Engelstein and Sarah Rodriguez call for institutionalized collaborations between bioethicists and scientists as a way of broadening perspectives and developing a common moral framework. And in the essay we put up front, Amy Paul calls for greater respect for people with whom we disagree—a point that may reverberate especially loudly in this issue.— [End Page 2] Copyright © 2011 The Hastings Center

Wet Weather NPDES Permitting (Including SSOs): Case Studies from Around the Country

Wet weather discharges are often cited as being a cause of (or contributing to) water bodies not attaining water quality standards. Wet weather discharges include stormwater systems, combined sewer overflows (CSOs), sanitary sewer overflows (SSOs), and nonpoint sources. All of these sources except for nonpoint sources require a National Pollutant Discharge Elimination System (NPDES) permit in order to discharge pollutants. A strategy for managing these diverse sources is needed. The difficulty associated with effectively addressing wet weather discharges under the NPDES permit program is not a new issue; however there are a number of examples from different parts of the country that provide some innovative and thought provoking ideas for possible solutions. SSOs are point source discharges; however the ability to include SSOs in NPDES permits is one impediment to a fully operational and integrated approach to wet weather permits that is shared across the country. In many states, the discharges from SSOs are considered to be “prohibited” without any regulatory basis provided for this blanket prohibition. This problem of lack of regulatory basis is often magnified by federal enforcement actions and consent decrees that require the “elimination” of SSOs without any mechanism for achieving the requirement. In 1999, EPA published a draft proposed regulation to provide a strategy for addressing SSOs, but the regulation never went forward. In the draft document, EPA acknowledged that eliminating SSOs was not possible. Despite this recognition, very few states have developed a strategy for addressing SSOs. The CWA does not prohibit issuing NPDES permits for the discharge from a SSO. This raises several important questions. Why aren’t SSOs currently being included in municipal NPDES permits? What are the impediments to issuing NPDES permits for SSO discharges? How do we overcome these impediments and move forward? In 2004, NACWA (at the time AMSA) published a White Paper: Sanitary Sewer Overflows Legal Issues. This White Paper looked at the issue of how to control overflows from a theoretical legal perspective. The paper provided a number of recommendations for EPA to consider regarding the permitting of SSOs.

An Institutional Solution to Conflicts of Conscience in Medicine

Conflicts of Conscience in Health Care: An Institutional Compromise. By Holly Fernandez Lynch. The MIT Press, 2008. 358 pages. Hardcover. $34.00. One of the most intriguing questions in medical ethics is whether individual physicians ought to be able to refuse conscientiously to provide services that patients seek. The issue requires us to delve into difficult problems, such as the extent to which physicians must subordinate their interests to those of their current or prospective patients, and how essential the services physicians object to are as new medical technologies develop. Despite the difficulty that surrounds this issue, many bioethicists--like Dan Brock and Mark Wicclair--have tried to address it in a single journal article. But Holly Fernandez Lynch is an exception. She gives objection in medicine (hereafter, conscientious objection) the book-length treatment that it deserves. Lynch opposes a blanket prohibition on objection. Among her reasons are that patients are not well served by physicians who have serious moral qualms about services that the patients need, and that medical professionalism does not require physicians to take all comers or to accede to all requests--even legitimate ones. She further explains that some refusals--such as a refusal to assist a sixty-year-old woman in conceiving a child--may be appropriate. We should not prevent physicians from making good objections, and we can probably think of some regardless of what our moral commitments are. Lynch concludes that we need to allow some objection; however, some readers will find that she exaggerates this need. For example, some will object to what she says is the strongest argument for retaining room for moral refusers: the inability to know the answers to many of the moral questions that create controversy in medicine, such as whether a fetus is a person. Some readers will have more faith than Lynch does in the resources of moral philosophy to provide proofs for such claims. Some may also feel that she overstates the importance of allowing objection by defining the term too broadly. For her, objection includes refusals grounded in values that are widely held within the profession and have been accepted as clinical standards (p. 34). An example would be a refusal to allow a sick child to decide on his own what his treatment will be. This unusually broad conception allows Lynch to say that taking a strong stand against objection commits one to the unhappy view that physicians are mere technicians who have no personal autonomy or morality of their own. If the professional standard is no objection, then physicians can never object to patient requests on grounds of conscience, even when their conscience aligns with what their profession requires of them. But is such absurdity a consequence of refusing to condone objection? Not if the category refers, as Dan Brock believes it does, only to objections to what is legal and professionally accepted. Even those of us who feel she exaggerates, however, could agree with Lynch that a strict prohibition on objection is inappropriate. The question then becomes: How are we to make room for objection without eliminating patients' access to important medical care? Lynch develops an institutional solution to this problem, the details of which take up much of her book. The book has three main parts. In part one, Lynch describes the legal situation and the debate about objection in the United States. She argues in favor of resolving the debate by determining whether physicians have professional obligations that preclude them from exercising freedom of conscience in their capacity as physicians. She favors a model of medical professionalism that she calls the gate-keeping paradigm. …

"The Individual Can . . ."

The issue of age of consent for sexual activities has been bedevilled by the absence of any objective standards or criteria for what is meant by or involved in "consent." Despite this absence—or because of it—the social and political response has been to reach for blanket prohibitions on sexual activity by persons under particular ages—ages which have settled in the mid‐ to late teens. At the same time, the percentages of persons aged 15 and under who are sexually active in our societies indicate that young people are regularly consenting to sexual activities. Consent to sexual activity has also been a concern in relation to the lives of the cognitively or mentally impaired. In an attempt to clarify issues surrounding consent there, a significant proposal in regard to objectifying standards for consent was reported by Carrie Hill Kennedy, in her article “Assessing Competency to Consent to Sexual Activity in the Cognitively Impaired Population” (Journal of Forensic Neuropsychology 1:3, 1999), where she developed a two‐part scale for ability to consent, including twelve criteria involving knowledge and five criteria involving personal assertiveness and safety. Kennedy herself has maintained that there is no relevance for her research as applied to minors: adults have sexual rights, minors do not. However, it would seem clear that there is a certain relevance—if not in the use of a similar scale for assessing the competence of a particular minor to consent, then in generally comparing the age at which children attain the developmental level comparable with that implied by Kennedy’s five Safety standards, and using that information to critique the present, obviously unrealistic ages of consent. In relation to the Knowledge scale, the importance of sexual education becomes still clearer.

Sex, Dementia, Capacity and Care Homes

This paper addresses the appropriate legal and policy approach to sexual conduct involving people with dementia in care homes, where the mental capacity of one or both partners is compromised. Such conduct is prohibited by sections 34–42 of the Sexual Offences Act 2003, but this article asks whether this blanket prohibition is necessarily the appropriate response. The article considers a variety of alternative responses, eventually arguing that clearer guidance regarding prosecution should be issued.