Capacity to consent to sexual relations
See the case law links for details of this area of law.
Case law
The leading case is the following Supreme Court judgment:
- Capacity and sexual relations. A Local Authority v JB [2021] UKSC 52 — The joint expert described JB's number one priority as "to get" a woman as a sexual partner, with the sole goal being physical and sexual contact with a woman and any woman, and that JB lacked understanding of concepts of consent by the other person and so posed a risk of sexual offending to women. The Supreme Court (dismissing the Official Solicitor's appeal) decided that in assessing JB's capacity "the matter" was his "engaging in" (rather than consenting to) sexual relations, and that information relevant to that decision includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity. The Supreme Court reiterated that capacity assessments should first ask whether the person is "unable to make a decision for himself in relation to the matter" (which involves formulating "the matter" and consequently identifying "the information relevant to the decision" which includes information about the reasonably foreseeable consequences to the patient and others) and secondly ask whether that inability is "because of" an impairment of, or a disturbance in the functioning of, the mind or brain. In relation to sexual relations "the matter" will ordinarily be formulated in a non-specific way: in this case JB's wishes were non-specific, but in another case "the matter" might be person-specific (e.g. sex between a long-standing couple where one person had a relevant impairment, or between two mutually-attracted people both with relevant impairments). The question of JB's capacity was remitted to the original judge for reconsideration.
More cases can be found in Category:Sex and marriage cases.
External link
- Peter Bartlett, 'Sex, Dementia, Capacity and Care Homes' (2010) 31 Liverpool Law Rev 137. Abstract: '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.'
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