Capacity to engage in sex: Is a partner’s consent relevant? – Highest court hands down landmark ruling

Emnani Subhi, doctoral candidate, Newcastle University Law School

Towards the end of last year, the Supreme Court upheld a Court of Appeal decision that the consent of others is a relevant consideration in sexual decision-making. This was the first time the highest court has considered ‘capacity’ under the Mental Capacity Act 2005 (MCA). 

1. Does a person need to understand that their sexual partner must have the capacity to consent to sex? 

2. Does the person also need to understand that their sexual partner must consent before the sexual activity starts and that their consent must continue throughout the sexual activity? 

These were the questions set before the Supreme Court in the case of A Local Authority v JB [2021] UKSC 52.  

The case concerned JB, a 38-year-old man with a complex diagnosis of autism (Asperger’s syndrome) combined with ‘impaired cognition’ resulting from severe brain damage caused by epilepsy. He had expressed, in explicit terms, his strong desire to have a sexual partner but his previous behaviour towards women saw heavy restrictions imposed on his ability to socialise without his care workers’ supervision. 

Part of his Asperger’s diagnosis meant that he sometimes became:  

“…obsessionally fixated on a particular woman, sending inappropriate sexual messages, sending inappropriate sexual messages, inappropriate touching, and targeting the vulnerable.” [para 20] 

The judgment cites extensively from the evidence of a clinical psychologist, Dr Thrift, who spoke of the difficulties JB has in terms of learning how to understand and interpret the subtle nuances in intimate interactions. When asked about the other person withdrawing consent during a sexual act, JB said [para 34]:  

 “She cannot change her mind if you are already doing it. ‘Cos it’s her fault in the first place for saying yes. She can’t say yes and then say no.”  

His lack of insight was graphically illustrated in his response to another question by Dr Thrift [para 45]:  

“If a woman gets drunk as a party and has sex with a man there, is she fair game for anyone else?”  

JB replied:  

“I’d say she was fair game, yes. Especially if she’s done it with one person. If she drinks enough, she’s bound to do it with the second one, too.” 

Court of Protection – a partner’s consent is not relevant 

In the Court of Protection, the judge reached the conclusion that for the purposes of satisfying the test of capacity under the MCA, it was not relevant or necessary for a person to understand the need for their sexual partner’s consent. JB was thus declared to have the capacity to consent to sexual relations. His argument was made on the basis that those without cognitive impairments are not subject to the same standards in advance; hence, the question of JB’s possible exposure to the criminal justice system in consequence of initiating sexual relations with a person who did not consent should be dealt with by the criminal law, retrospectively. The Local Authority were concerned, however, that if JB did not understand the mutuality of consent then there was a moderate risk of him committing sexual offences under the Sexual Offences Act 2003. 

Court of Appeal – engaging in sex, not consenting to sex 

The Court of Appeal marked an important shift in recasting the decision as being a decision to ‘engage in’ sexual relations rather than simply ‘consenting’ to them.¹  

Baker LJ held [para 94] that:  

“When the ‘decision’ is expressed in those terms, it becomes clear that the ‘information relevant to the decision’ inevitably includes the fact that any person with whom P engages in sexual activity must be able to consent to such activity and does in fact consent to it. Sexual relations between human beings are mutually consensual. It is one of the many features that makes us unique. A person who does not understand that sexual relations must only take place when, and only for as long as, the other person is consenting is unable to understand a fundamental part of the information relevant to the decision whether or not to engage in such relations.” 

Supreme Court – a landmark ruling?  

The Supreme Court endorsed the Court of Appeal’s approach, which was welcomed by many academics, lawyers, and professional care workers.² Professor Harding praised the “clear expression by the Supreme Court of the centrality of consent in understanding capacity to engage in sexual relations.” Ultimately, the judgment was not a radical rethink of the test for sexual capacity. It simply restated the Court of Appeal’s decision, but with one small but welcome modification. In the Court of Appeal, the consent element was termed as “the fact that the other person must have the capacity to consent” [para 100]; in the Supreme Court, this was changed to “must be able to consent” [para 90], avoiding the need to grapple with the philosophical complexities of the notion of capacity. 

Along with praise, it has also drawn criticism, particularly in respect of the difficult tensions at the interface of the Mental Capacity Act and Sexual Offences Act. The engagement of the criminal law has been seen by some as in direct conflict with the principles of autonomy and empowerment that underpin the MCA, with far-reaching implications of overly paternalistic interventions that may deprive a person of their autonomy in other aspects of life, as well as their freedom of sexual expression [Regan, 2021; Reed-Berendt 2021]. Perhaps, as Baker LJ explains [para 6] in the appellate judgment, the MCA is best understood “as a part of a wider system of law and justice.”  

1 A detailed analysis of this shift can be found in a case note here: Subhi, E. A Local Authority v JB [2020] EWCA Civ 735; [2019] EWCOP 39. Fem Leg Stud 29, 267–276 (2021). https://doi.org/10.1007/s10691-021-09451-9

2 Capacity to engage in sex: Nine responses to the Supreme Court Judgment in Re. JB – Promoting Open Justice in the Court of Protection (openjusticecourtofprotection.org)

Black and Trans Lives Matter: the link between policing, anti-blackness and anti-transness

Cross posted with thanks from En-Gender

Felicity Adams, PhD Candidate, School of Law, Keele University

This summer marks 50 years since Black trans people and queer people of colour including Marsha P. Johnson, Sylvia Rivera, and Stormé DeLarverie led the Stonewall Rebellion against systemic police violence. As Bassichis, Lee, and Spade highlight:

“These early freedom fighters knew all too well that the NYPD – “New York’s finest” – were the frontline threat to queer and trans survival… Stonewall was the culmination of years of domination, resentment, and upheaval in many marginalized communities coming to a new consciousness of the depth of violence committed by the government against poor people, people of color, women, and queer people”.

Their courageous and collective actions culminated in the birth of the gay and queer liberation movement and what we refer to as Pride – a month of community remembrance and celebration.

In 2020, Pride month and the Black Lives Matter movement converge. These movements are united by a shared and resurgent history: police violence. Many are challenging the legitimacy of the police in response to historic and the most recent iteration of racialized, police brutality against George Floyd. Meanwhile, some have used this moment to emulate policing logics by regulating the identities of transgender people – the vanguard of the gay and queer liberation movement. This is, as Andrea J. Ritchie describes “gender policing” – or actions that work to “produce, maintain, reify racially constructed gender norms”.

Once again, the issue of gender policing has risen to the top of public discourse, this time through recent commentaries by high-profile writers during the midst of a global pandemic, the Black Lives Matter movement, and Pride month. These recent commentaries work to monitor gender identity and govern transgender people’s lives. As such they reproduce the logics of colonialism and white supremacy because gender policing is “embedded in, operates in conjunction with, and furthers policing of race, class and nation”.

Alleviating Anxiety and Cultivating Care: Young Trans People in the Family Court of Australia

Senthorun Raj, Keele University

Introduction

The distress faced by young trans(gender) people generates varied social, medical, and legal concerns. In Australia, minors have had to appeal to the welfare jurisdiction of the Family Court of Australia if they wished to undergo medical or surgical changes to alleviate their ‘gender dysphoria’ and affirm their gender. In approving virtually every application and, most recently, dispensing with the requirement for minors to seek court approval, the Family Court has exhibited care, concern, and compassion when addressing anxieties faced by young trans people and formulated therapeutic determinations to relieve their anxieties. Building on queer, feminist, and trans legal scholarship, such as that pioneered by Alex Sharpe, I argue that scholars and activists working in this space need to foreground the emotional enactments expressed in this jurisprudence to understand the extent to which the Family Court affirms the complex identities, capacities, and wellbeing of young trans people.

Religious Freedom in Australian Parliamentary Same-Sex Marriage Debates

Elenie Poulos

Department of Modern History, Politics and International Relations, Macquarie University, Sydney, Australia

These days, the issue of religious freedom regularly makes media headlines in Australia but this wasn’t always the case. While there is evidence of continued religiously motivated abuse and vilification against Australia’s First Peoples and religious minorities including Muslims, Jews, and Sikhs, this is not the focus of public debate. The issue is, rather, the extent of the exemptions from anti-discrimination law granted to religious organisations – that is, against whom and in what circumstances are religious organisations allowed to discriminate based on religious belief?

The ‘problem’ of religious freedom first came to the attention of many Australians when conservative Christian lobbyists, politicians and religious leaders, responding to growing calls for marriage equality, began to cast it as a threat to religious freedom. However, its history stretches back to European invasion. Some limited protection was included in the Constitution in 1901, but because Australia lacks a national comprehensive human rights instrument, there is no general protection for freedom of religion or protection from religious discrimination.[i] Religious freedom is instead addressed through exemptions or exceptions in anti-discrimination law which allow for lawful discrimination by religious organisations in certain circumstances.[ii]

My doctoral research aims to examine the rise of the politics of religious freedom in Australia. One of the key flash points for debate has been marriage equality. To understand how politically sensitive the ‘problem’ of religious freedom has become, one need look no further than the name of the bill that finally granted marriage equality: the Marriage Amendment (Definition and Religious Freedoms) Bill 2017.

Sex, Identity and Recognition: Re-thinking ‘Rape by Deception’

Chloe Kennedy

Edinburgh Law School

On December 14 2018, the decision of the Director of Public Prosecutions not to prosecute ex-DC Andrew Boyling for rape, indecent assault, procurement of sexual intercourse and misconduct in public office was upheld by the High Court in R (Monica) v DPP (henceforth Monica). The application for judicial review was brought by one of three women with whom Boyling, an undercover police officer, had a sexual relationship whilst posing as an environmental activist, named Jim Sutton. The case highlights significant issues relating to proper police conduct and the limits of state power but at its core is the question of when and why deception should undermine consent to sex. In this post, I put forward two arguments, both of which are based on my view that something important has been left out of previous attempts to answer this question. First, I argue that deceptions that are considered capable of undermining consent to sex can be understood as a form of ‘identity non- or misrecognition’ – a kind of failure on the part of the deceiver to respect the identity of the deceived. Second, I argue that conceiving of rape by deception in these terms provides a framework for thinking differently about where the boundaries of the criminal law ought to be drawn. Using Monica as a case study, my ultimate aim is therefore to suggest that identity nonrecognition could provide a foundation for this area of law going forward (as indeed it seems to have become in the recent past) but also to think critically about what this might mean in practice.

What’s the Value of Civil Claims for Rape for Sexual Violence Survivors?

Nikki Godden-Rasul

Newcastle University Law School

Last month, an apparently rare Scottish civil case in which ‘Ms M’ was awarded damages for rape after an unsuccessful criminal prosecution against Stephen Coxen made the news. The often negative and distressful experience of the criminal justice process for sexual violence survivors is well documented, even in cases where the victim-as-witness is treated fairly and with respect by criminal justice personnel, and the case proceeds as it should.

Ms M’s experience was, unfortunately, not this best case scenario. She said that the criminal justice system is a ‘disgrace’: ‘my case wasn’t investigated as well as it could have been’ and ‘how the Crown represented my case, I think the Crown failed in that’. Despite this, she was not ready to give up on using the law to hold Stephen Coxen to account. Although a jury in the criminal case returned a verdict of ‘not proven’, in the Court of Session, Sherriff R B Weir QC found that Coxen had penetrated Ms M’s vagina and mouth with his penis without her consent, and he had no reasonable belief in consent.

At the time of the sexual assaults Ms M was an undergraduate student who met Stephen Coxen when she was on a night out following a house warming party. Ms M was so intoxicated that she did not have the capacity to give meaningful consent. Sherriff Weir concluded that it ‘has been established on the balance of probabilities that the defender ignored what would have been obvious signs of the pursuer’s intoxication, took advantage of her in that state, and continued to do so even when she began to evince distress and attempted to resist him’. Ms M was granted £80,000, to be paid by Coxen (AR v Stephen Daniel Coxen [2018] SC EDIN 53). Ms M said she hopes that the civil case shines a light on the failures of the criminal justice system in rape and sexual assault cases, a point emphasised by the Scottish Women’s Rights Centre who represented her.

The cries from certain corners that a successful civil claim after an unsuccessful criminal prosecution for rape is ‘double jeopardy!’ and/or ‘a threat to justice!’ were predictably loud and predictably baseless. The Scottish Women’s Rights Centre with JustRight Scotland, Rape Crisis Scotland, and a number of solicitors in Scottish Legal News have responded to highlight the factual inaccuracies and gross misrepresentations.

S.V. v Italy: The European Court of Human Rights continues the gradual evolution of trans rights in Europe

Giuseppe Zago, Northumbria University

On 11 October 2018, the European Court of Human Rights issued a new judgment contributing to the recognition and protection of gender identity within the Council of Europe framework. In S.V. v. Italy, the Court followed up on the recent A.P., Garçon and Nicot v France decision to confirm that authorities’ refusal to authorise a transgender person with a female appearance to change her male forename in the midst of the transition process amounts to a violation of the right to respect for private life under Article 8 of the Convention.

The judgment confirms important principles concerning States’ obligations regarding gender identity, though it fails to address adequately the issue of the legal pathologisation of trans people.

Legal Arguments that Gender Self-Declaration Undermines Women’s Rights are Seriously Flawed

Professor Alex Sharpe, Keele University

This blog post was updated on 22 October 2018.

As we approach the deadline for submissions concerning reform of the Gender Recognition Act (GRA) 2004, debate over the likely effects of adopting a system of gender self-declaration has intensified. However, opposition to reform has come not only from the right-wing media, so-called gender ‘critical’ feminists and the Christian Right. It has also come from within the legal community.^[1] In particular, barrister, Julian Norman, has made a series of arguments as to why a system of gender self-declaration will undermine cis women’s rights, and in particular, the right to exclude trans women from women-only spaces.^[2]

Essentially, she makes two arguments:

Foxes in the Henhouse: Putting the Trans Women Prison Debate in Perspective

Professor Alex Sharpe, Keele University

This article considers the recent case of Karen White and offers a measured response, in place of the heated reactions, the case has so far generated in the media and elsewhere. The key facts about the case are that Karen White, a transgender woman, was placed in HMP New Hall, a female prison in West Yorkshire, while on remand for rape and despite a history of sexual offending, and that while on remand, she assaulted four female inmates. The case has been manna from heaven for the right wing media and those who, with no sense of irony, describe themselves as gender critical feminists, and who oppose trans rights. The Times’ Janice Turner is one journalist who is (rightly) angry about the case, which she likens to ‘locking a fox in a henhouse.’^[1]

 

She calls for prison policy change so as to preclude “male-born (sic) criminal(s) who [have] committed a violent or sexual crime against women” from being allocated to the female estate. While some readers may sympathise with this suggestion, we need to recognise what it and Turner’s fox metaphor masks. First, let us begin with some statistics. Turner refers to a ‘BBC reality check’ that found that there are currently 125 trans prisoners in English and Welsh prisons, 60 of whom have sex offence convictions (48%) (while she does not say so explicitly, these figures appear to be 2017 figures provided by the Ministry of Justice after the anti-trans group, Fair Play for Women, put in an FOI request).^[2] Before proceeding further, let us consider this 48% figure. While it suggests nearly half of all trans prisoners are sex offenders, it is actually very misleading. This is because the statistic: (i) only counts trans prisoners who have informed prison officers of their trans status, (ii) does not count trans prisoners with a GRC, and (iii) does not take account of trans prisoners on shorter sentences, because they were not included in the survey. Accordingly, the actual percentage of trans prisoners who are sex offenders is likely to be considerable lower than 48%. This is perhaps especially so given exclusion of prisoners on shorter sentences, as they are, by definition, less likely to be sex offenders.

Women’s Rights and Male Parasites: When Paternity Leave Becomes a Women’s Issue

Kyle L Murray

Teaching Fellow in Public Law and Human Rights, Durham Law School.

Comments welcome via Twitter: @KyleLMurray92 or email: k.l.murray@durham.ac.uk

The recent Women & Equalities Committee report on paternity leave, while making welcome proposals, is revealing of a fundamental problem with the way we frame issues of gender (in)equality negatively affecting men. In this post, Kyle talks about the importance of framing the dealing with men’s issues not just as parasitic upon women’s rights, but as valuable pursuits in themselves.  

“We should take measures to break the glass ceiling and improve the representation of women in top positions in the workplace – this would relieve the considerable pressures on men, who we know suffer breakdowns and depression from their workload, with sometimes disastrous consequences”.

If this headline sounds as though it misses the point and belittles the harms done to women from the inequality it seeks to challenge, it is because it does. If it sounds as though it risks leaving the attitudes leading to these inequalities unchallenged – and therefore recommends strategies likely to be of limited effectiveness – again, it is argued, that is because it does. If readers are viewing it with a sense of disbelief, it is because it is fictitious. But its problematic framing of the issue of gender inequality is, I argue, not too far from what we have recently seen in discussions surrounding paternity leave and the difficulties faced by fathers. The recently-released Women & Equalities Committee (WEC) report – ‘Fathers in the Workplace’  (20 March 2018) – and its presentation in the media, is a prime example; framing issues of gender inequality and challenges facing men primarily within the paradigm of advancing women’s equality and rights.