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a is e law on

ca aci o ave se

In the frst of two artcles which explain the complex legal
issues surrounding sex, consent and capacity for people with learning
disabilites, our legal correspondent elin a c we begins by
analysing the case of KA.

e ou o o ecton ecen l lies, gifs or alcohol – would be highly reasonably be expected to know, of the
T awa e in a a es o a cogent evidence. (In criminal law, disorder and its likely efect on the
an wi own s s n o e w o a some of these things are capable of giving inability to refuse.
een e ive o con u al elatons o rise to presumptons which the defendant
ove a ea ecause o is alle e lack o must atempt to rebut). In the criminal law, the 2003 Sexual
ca aci o consen o se es i e ein Ofences Act includes the words
a ie o seve al ea s. ow can is The Court of Protecton has looked at ‘for any other reason’ and the courts
e econcile wi e lea in case cases involving both gay and straight sex have interpreted these words as capable
on consen o se calle in w ic a and has, for instance, made an order of encompassing a wide range of
e son wi onl a u i en a preventng an autstc woman with an IQ circumstances in which a mental disorder
un e s an in o se was esu e of 64 from having sexual intercourse on may rob a person of the ability to
ca a le o consentn the grounds she did not fully understand make an autonomous choice,
that she could say no to such actons. despite having sufcient understanding
a aci o ave se oes no u n on She had a history of very early and deep of the informaton relevant to making it.
e i ent o a o ia eness o e degree of sexualisaton. Examples are compulsions, delusions and
e son w o is su estn i . phobias and, in the context of sex, low
If one has capacity to consent to sex However, case law in the Court of self-esteem due to depression,
itself, nobody else can say: ‘This partner is Protecton ofen results in an interim emotonal dependency, disinhibiton or
a good choice but this one isn’t’. order which says it would be in the sexualisaton through early abuse.
One’s choice of partner is not a best person’s best interests to be taught (one
interests decision for others! If a person to one) to know about these things, ow uc ca aci oes one
lacks capacity to engage in sexual actvity, because it is agreed that he or she has nee o consen o se
then he or she must be protected from potental to learn. In the leading case of KA, the gentleman
sex and others who might like to explore was 29 and had a mild/moderate
sexual actvites with that person because learning disability with an IQ of
sex involves touching, and touching If one has capacity to approximately 70. The council was
without consent is a civil assault, as well concerned that his family might consider
as a sex ofence in our criminal law. consent to sex itself, nobody arranging a marriage for him as a
else can say: ‘This partner means of securing his future care.
The test is actvity specifc, so even if is a good choice but this KA’s parents and the local authority had
one regularly consents to ‘ordinary’ one isn’t’. One’s choice of co-operated in providing some specifc
sex, that does not mean that one has educaton to KA around issues of sex
the capacity to consent to an actvity partner is not a best interests and marriage.
that one has no experience or decision for others!
understanding of: an obvious example a is e c i inal law The judge concluded that his ability to
would be the wrongness of assuming functon outside the home was less
capacity to engage in anal sex on the part than presented by the family but that
of a woman with learning disability only Since the 2003 Sexual Ofences Act there KA had some valuable life skills,
familiar with vaginal intercourse. has been no presumpton that sexual including basic literacy and relatvely
actvity with a person with learning good verbal presentaton, the ability to
But context is everything: the disabilites is always criminal – capacity is understand simple documents, care for
circumstances in which the individual issue-specifc and not ONLY related to a his cat, and help out in a relatve’s
is being persuaded into the sex are person’s IQ or diagnosis. local restaurant.
all-important. So the fact that a person
without disabilites appears to be The essence of the main ofence (sexual A report had been prepared by a
interested in a person with a cognitve actvity with a person with a mental consultant psychologist with lengthy
impairment does not mean that the disorder impeding choice in secton 30 experience of capacity assessments who
person is inevitably a groomer or an of the Act) is sexual touching which the had seen KA and family members on
abuser. However, the methods used by person is unable to refuse due to a several occasions. She had concluded that
that person in their approach – if, reason related to a mental disorder, and KA lacked capacity to have sexual relatons
for example, they have used outright where the defendant knows, or could and to marry. The judge, Parker J, found

10 Vol 31 No 2 | Winter 2017 o uni Living www.cl-initatves.co.uk