Should people with low IQs be banned from sex?
3 February 2011
D Borough Council v AB  EWHC 101 (COP) (28 January 2011) – Read judgment
In a case which is fascinating both legally and morally, a judge in the Court of Protection has ruled that a 41-year-old man with a mild learning disability did not have the mental capacity to consent to sex and should be prevented by a local council from doing so.
The case arose when a local council, following allegations that a mentally disabled man made sexual gestures towards children, sought a court order stating that “Alan” (a false name) did not have the mental capacity to consent to sexual relations. The council ultimately wanted Alan to be banned from having sexual relations with his former house-mate and sexual partner.
The central question for the court was how to assess if a person has the mental capacity to consent to sex. The question is fraught with difficulty, as a negative answer can lead to the state controlling a person’s sexual activity, as it ultimately did in this case, but also because a prospective sexual partner could be accused of rape for having had sex without consent .
Alan has an IQ of 48, and is seriously challenged in all aspects of his mental functioning.
Dr Hall, the court’s expert medical witness, described sex as “one of the most basic human functions“. Thus, warned the judge,
the Court must tread especially carefully where an organ of the state proposes that a citizen’s ability to perform, in a non-abusive way, the sex function should be abrogated or curtailed. It involves very profound aspects of civil liberties and personal autonomy. (para 11)
But what characteristics does a person need to consent to sex? The judge drew on two analogies.
First, following Mr Justice Munby in Re E (an Alleged Patient); Sheffield City Council v E and S  EWHC 2808 (Fam), he compared sexual consent to consenting to marriage. While a sexual relationship is “not a vital ingredient of marriage it is, generally speaking, implicit in the marriage agreement.” So,
it can be seen that the test of capacity to marry must be very closely related to the test of capacity to consent to sexual relations. And it would be a very strange thing if the latter were set higher than the former, for it would be an absurd state of affairs if a person had just sufficient intelligence to consent to marriage but insufficient capacity to consent to its (generally speaking) intrinsic component of consummation. (para 15)
So how intelligent do you need to be to consent to marriage? Not very, it turns out. The test has altered little since the 19th century, when in the 1885 case of Durham v Durham, it was stated:
the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. It is an engagement between a man and woman to live together, and love one another as husband and wife, to the exclusion of all other.
The second analogy Mr Justice Mostyn considered to be closely related is the capacity of a girl to consent to contraception (see our recent post on the issue). In Gillick v West Norfolk and Wisbech Area Health Authority  1 FLR 224, HL the House of Lords (now the Supreme Court) held that a girl under 16 could validly consent to contraception “provided that she has sufficient understanding and intelligence to know what they involve“. As such, all a person needs is “sufficient rudimentary knowledge” to enable them to decide whether to give or withhold consent (para 22).
An important point which arose from the most recent consent cases is that capacity was act rather than partner specific. In other words, a court need not have regard to the prospective sexual partner, but rather the simple act of sex itself.
The judge went on to rule that the entering into force of the Mental Capacity Act 2005 had no bearing on the test for consent as laid out by Mr Justice Munby in a run of 3 recent cases. Moreover, he rejected Baroness Hale’s doubts in a recent House of Lords case that consent could truly be act specific. She said, in an obiter remark (that is, separate from the main judgment and therefore non-binding):
is difficult to think of an activity which is more person and situation specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place.
Ultimately, the judge concluded that the capacity to consent to sex remains act-specific and requires an understanding and awareness of:
- The mechanics of the act
- That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections
- That sex between a man and a woman may result in the woman becoming pregnant (para 43)
Alan, according to the medical expert, “had no understanding at all of heterosexual coitus” but he did understand “the mechanics of mutual masturbation and anal sex, with persons of either gender.” But as regards the latter, he did not understand the health risks involved.
Alan did not therefore have the capacity to consent and engage in sexual relations. He would have to be supervised for the time being and prevented from future sexual activity by the council.
However, it is a fundamental principle of the most recent mental health legislation that a person should not be treated as unable to make a decision unless all practicable steps to help him to do so have been taken. Therefore, the judge also ordered that the local authority provided Alan with sex education and he would be reassessed by the court after, appropriately, 9 months.
So, a fascinating, sensitive and ultimately sensible decision on an issue which lies at the boundary of law, medicine and ethics. The court made clear that sex is a fundamental right. Some would say that it is too fundamental a right to ever be taken away by the state. But in this case that right had to be balanced against legitimate concerns for public safety. Even so, the judge saw fit to exhaust all possible avenues before declaring Alan permanently unfit for sexual relations. In short, people with low enough IQs cannot always validly consent to sex, but as much as possible should be done to find out if they are able to make the decision for themselves.
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If we assumed this logic to be sound then people who, for instance, suffered from Alzheimer and other cognitive diseases, would have to be constantly monitored to find out if they understood the
“health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections”
As soon as someone with Alzheimer stopped remembering what were the “health risks involved” he/she should be immediately stopped from having sex, since he/she could not give consent anymore!
The same would happen to people that, due to religious beliefs, lack of education, differences in culture, or simple lack of interest would ignore those risks. I can certainly think of many adults ignoring the potential health risks of sexual relationships.
I was disappointed to get to the end of your blog to find you that you said this was a sensible decision.
Your analysis of the judgement did not include that the psychiatrist involved “thought” Alan would not benefit from sex eduction because it would confuse him. Equally there is no mention that it is highly doubtful that any one took the time to give Alan sex eduction, ever. Therefore he never stood a chance when the Judge examined his understanding of his ability to comprehend the three matters he did. How do you know something unless someone has taken the time to teach you?
You imply that Alan was a threat to the community and the order is sensibly in place to protect others. There is little to substantiate this view. In relation to the incidents that happened in the community. If these had breached the same threshold as all other people need to the Police would have/should have intervened and Alan should have been dealt with through the Justice system like everyone else. The Police looked at one of the events and decided to do nothing. Another point to note here is not even people sentenced to jail are banned from having sex. Only very serious sex offenders with no chance of stopping their sexual offending are (usually chemically) restrained from having sex.
It is my analysis that the issue here is the staff at his care home were not comfortable with Alan’s and Keiron’s relationship. So they used their power to get the court to intervene. The court fell for it and now this man’s life is effectively significantly impacted on for at least the next 9 months.
This judgement is an appalling breach of this man’s human rights. It sets an extremely poor international precedent and does not align with the modern view that all people should be treated equally and with dignity and respect.
I hope someone in the UK helps this man. Because he most certainly needs someone to stick up for him.
I agree entirely with you Debbie. This is a shocking decision, and the fact that a “human’s right” group upholds it is even more shocking.
I didn’t start with the IQ – the article header (and the judge in this case) did. I just followed their logic and indeed that leads to what you point at: castrating/sterilizing. Which is related to Euthanasia, I figure. Which is wrong.
But thanks for trolling anyway 0o
“A bird has an IQ of what, 10 maybe? But they’re allowed to “roam freely” ”
A dog or cat has a higher IQ and we castrate/sterilise them as we see fit. If that’s your logic then your answer would seem to be “we shouldn’t ban people with low IQs from having sex, we should sterilise and de-hormonalise them so they don’t want to have sex”. Like we do to dogs and cats.
A bird has an IQ of what, 10 maybe? But they’re allowed to “roam freely” …
I don’t get it, not at all. Leave these people alone – taking care of them is one thing. To act as guardian for them, another.
You clearly haven’t read the case, otherwise you wouldn’t have written this. The judge has handled this with the upmost care and the decision is a good one. He was advised by a doctor to not give sexual education classes to ‘Alan’ again, but did so, because the judge realises that this is a very significant part of a persons life. He has also allowed appeal as well as saying he will re visit the case and decided later on. It is not a matter of the state acting like a guardian, but protecting others including young children when coming to its decision.
I am sure that this is all very very complex however the title question cuts right to it in my humble opinion and the easy answer to that is a clear ‘NO’. The idea of the latent paedophilllic suggestion is I believe rendered moot by the lack of education on appropriate personal relationships. There is no suggestion in any of the articles that the physical relationship with the co-resident is of a predatory or abusive nature and it would seem on the reading of the scant facts available to us that it is best to attempt to curb the possibility of innappropriate sexual behaviours by denial of any sexual practice, I believe this to be a bad idea on many levels and that the only decent practice by the Local Authority involved should have been to provide appropriate guidance and education on personal and intimate relationships, for ALL residents of the home with targeted work with ‘Alan’ to address any particular concerns and suppport for him to safely access his basic human rights. Surely all the people involved in this MUST have had a basic course on Sexual Rights and People wioth Learning Disabilities ?? I believe this is standard and statutory for anyone working within the field.
In some sense we’ve been here before. In KC & Anor v City of Westminster Social & Community Services Dept & Anor  EWCA Civ 198 the point at issue was the validity of a marriage conducted by telephone link with Bangladesh between a severely mentally-impaired male UK national, IC, and a Bangladeshi female, NK. Thorpe LJ concluded that IC
‘… has not the capacity to understand the introduction of NK into his life and that introduction would be likely to destroy his equilibrium or destabilise his emotional state… Were IC’s parents to permit or encourage sexual intercourse between IC and NK, NK would be guilty of the crime of rape under the provisions of the Sexual Offences Act 2003. Physical intimacy that stops short of penetrative sex would constitute the crime of indecent assault under that statute’ (para 32).
The marriage was held to be invalid in English law even though it was valid in Bangladeshi law and under sharia.
Oh, UKHR Blog, you’ve been terribly naughty with the heading of your post! It’s a tease for sure, but the question of degree still seems unanswered in this judgment.
It’s the degree of the mental disorder that fascinates me and there seems to be conflicting information: an IQ of 48 but only a mild learning disability; challenged in all aspects of mental functioning but having what appears to be regular intercourse (although not heterosexual it would seem) with just one partner, for an extended period of time.
So, is this really a mental capacity issue or are the advances ‘Alan’ made more akin to someone suffering with latent paedophilia? I haven’t read the judgment so it may be that there are some clues in the gestures ‘Alan’ made to the children, but it would be interesting to know more about those actions.
No doubt the sex ed classes will help to reveal whether or not ‘Alan’ is as lacking in capacity as is being suggested, but it’s great to see fundamental rights being handled with care.
Great post. I work a lot with mental capacity and mental health acts and my first response to the question posed in the title was ‘of course not’ which I suppose is one of the intended responses but as always it is a matter of detail when you look at the judgement and the individual circumstance – so it definitely makes sense to me which is as much as I could possibly ask from a court judgement!
Thanks for sharing.
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