Autistic Man who does not understand consent has right to pursue sex, court rules - Politics | PoFo

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The court of protection has ruled that a man who cannot understand the issue of consent must be allowed to pursue sexual relationships.

Mrs Justice Roberts ruled that the man, who has autism with impaired cognition and lives in a supported residential placement, has a “fundamental right to sex”.

The court considers issues relating to people who might lack the mental capacity to make decisions.

A clinical psychologist submitted a report saying that the 36-year-old man, referred to as JB, represents a “moderate risk” of sexual offending to women, particularly to those who are vulnerable, and that JB cannot understand that a woman’s consent is relevant in sexual situations, nor that attempting sex without consent is likely to be a criminal offence.

The judge said that insisting that JB understands the issue of consent before being allowed to pursue sexual relationships would be discrimination because it would “impose on him a burden which a capacitous individual may not share”.

She said not having that knowledge might result in criminal prosecution but JB was “entitled to make the same mistakes which all human beings can, and do, make in the course of a lifetime”.

JB has never been charged with any criminal offence but because of his behaviour towards women he has been subject to a care plan by his local authority since 2014 which has imposed significant limitations on his freedoms.

The local authority wanted the care plan to stay in place, but Roberts said in her judgment that JB had “made it very plain that he desperately wants to find a girlfriend with whom he can develop and maintain a relationship. He is anxious to have a sexual partner and believes that the current restrictions represent an unfair and unwarranted interference in his basic rights to a private and family life.”

The judgment said that the “decision to engage in sexual relations ... is a primal expression of our humanity and existence as sexual beings. It is an essential part of our basic DNA as reproductive human beings.”

Roberts added: “Sexual relations form a fundamental aspect of our humanity, common to all regardless of whether an individual suffers from some impairment of the mind.”

In its submission to the court, the local authority said that there was concern that JB’s behaviour, if unrestrained, “might result in his exposure to the criminal justice system and risk to potentially vulnerable females”. They said that his advances to women in the past have lacked appropriate social inhibition.

In his written submission on behalf of the local authority, Mr Vikram Sachdeva QC accused the court of a “derogation of responsibility”: “If the criminal law is left to regulate such conduct, it will mean that sexual offences will be committed by incapacitated people before the law will intervene to prevent such damaging conduct by the imposition of criminal restrictions. To permit such a situation to continue would be a derogation of responsibility by the court of protection.”

Speaking after the case, Victoria Butler-Cole QC, one of Sachdeva’s colleagues at Essex Chambers, said: “The capacity test in civil law is set as low as possible so that, for example, a 70-year-old woman with dementia who sometimes can’t remember who her husband is, can’t be banned from having sex with him.

“But there is an interesting tension in these cases which has never been tested in the supreme court illustrated in this case, where JB is judged to have capacity but is nevertheless 100% at risk of being arrested for a crime if he tries to have sex with someone without their consent.”

The local authority is expected to appeal against the decision.

The Guardian
If he is sane, then he has the right to pursue sexual relations and has the duty to suffer any criminal liability if pursued in a wrongful or criminal manners.

If, however, he is incapable of understanding this legal liability, and lack the ability to understand or abide by the law, then, to ensure the safety of others, must be confined to a mental care facility where he can be treated in hopes he may reach the stage where he does have the ability to understand and abide by the law.
Last edited by anasawad on 03 Oct 2019 14:47, edited 1 time in total.
Where did this occur? What happens to the lady's right to not be assaulted?

You know, this makes me wonder if the guy's ever assaulted a woman in broad daylight, in a public place. If not, i'd leave the door open on the notion that he has no sense of self control
If he doesn't understand "consent", and "pursues sex" to the point of forcing himself on someone, will it still be rape?

That is at the heart of this. Crantag is correct.

In effect the court has created a class of human who cannot be subject to the law. The judge says he is subject to the law but then says the state can't act to protect society from him. And of course protect him from himself.

This decision is simply absurd. It only has one likely outcome. A woman is harmed. The law is harmed. And the man is harmed.

There are other possible solutions. This subject could be carefully monitored. It seems to me that the most important issue is not personal freedom but protecting the public from someone that all parties says will likely offend.

More of the California shit about letting mental patients out of the hospital. Now they are conveniently sleeping in doorways, terrified and in their own feces. But who can deny they are free?
Isn't this pre-cog stuff? Should we create a class of human that can restrict another without a crime having been committed just because all parties say.

I admit that it is a tough decision. Certainly one that should be made by professionals presenting the evidence to a disinterested arbiter. If you think about it we do it all of the time. For example, in the interest of public safety, we do not allow people who need glasses to drive, to do so without them. We don't wait until the accident.

If this person wished to purchase a gun would we feel the same way? There are laws on the books now allowing the determination to restrict gun ownership to be made before a person purchases a gun. We do not wait until they shoot someone.

This case brings to mind though that this ought not to be about sex. It ought to be about whether he can even be out among people without supervision. Surely sex is not the only thing with which he has trouble determining right from wrong. Does he shop without shoplifting? Does he know not to go into other people's homes uninvited? Exactly what is his level of disability?

Re Reagan: Long before his presidency California has released most mental patients from mandatory living arrangements by act of law. Reagan was a Californian who witnessed this first hand.
Drlee wrote:

Re Reagan: Long before his presidency California had released most mental patients from mandatory living arrangements by act of law. Reagan was a Californian who witnessed this first hand.

I don't know what Cal did, although I wouldn't mind learning.

But nationally, Reagan emptied the asylums so they could die in the streets.
I don't know what Cal did, although I wouldn't mind learning.

But nationally, Reagan emptied the asylums so they could die in the streets.

Pretty much the same thing.
The court heard the man has never been charged with a criminal offence, but has been the subject of a council care plan since 2014 to prevent him ‘behaving in a sexually inappropriate manner towards women’.

The care plan in place imposes significant restrictions on his freedom and the local authority had asked that it remain, The Guardian reports.

Read more: ... to=cbshare


This man has never committed a crime but he has been under house arrest, which is unreasonable. According to the free paper, JB seems be a black man, which may be why the judge was lenient toward JB due to the discrimination issue. JB may not be mentally incapacitated as local authorities claimed and he may have been wrongly diagnosed due to cultural or racial factors.

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