In the first of two articles which explain the complex legal issuessurrounding sex, consent and capacity for people with learning disabilities, our legal correspondent Belinda Schwehr begins by analysing the case of KA.

The Court of Protection recently awarded £10,000 in damages to a man with Down’s syndrome who had been deprived of conjugal relations for over a year because of his alleged lack of capacity to consent to sex, despite being married for several years. How can this be reconciled with the leading 2016 case on consent to sex, called KA, in which a person with only a rudimentary understanding of sex was presumed capable of consenting?

Capacity to have sex does not turn on the identity or appropriateness of the person who is suggesting it.

If one has capacity to consent to sex itself, nobody else can say: ‘This partner is a good choice but this one isn’t’. One’s choice of partner is not a best interests decision for others! If a person lacks capacity to engage in sexual activity, then he or she must be protected from sex and others who might like to explore sexual activities with that person because sex involves touching, and touching without consent is a civil assault, as well as a sex offence in our criminal law.

The test is activity specific, so even if one regularly consents to ‘ordinary’ sex, that does not mean that one has the capacity to consent to an activity that one has no experience or understanding of: an obvious example would be the wrongness of assuming capacity to engage in anal sex on the part of a woman with learning disability only familiar with vaginal intercourse.

But context is everything: the circumstances in which the individual is being persuaded into the sex are all-important. So the fact that a person without disabilities appears to be interested in a person with a cognitive impairment does not mean that the person is inevitably a groomer or an abuser. However, the methods used by that person in their approach – if, for example, they have used outright lies, gifts or alcohol – would be highly cogent evidence. (In criminal law, some of these things are capable of giving rise to presumptions which the defendant must attempt to rebut).

The Court of Protection has looked at cases involving both gay and straight sex and has, for instance, made an order preventing an autistic woman with an IQ of 64 from having sexual intercourse on the grounds she did not fully understand that she could say no to such actions. She had a history of very early and deep degree of sexualisation.

However, case law in the Court of Protection often results in an interim order which says it would be in the person’s best interests to be taught (one to one) to know about these things, because it is agreed that he or she has potential to learn.

What is the criminal law?

Since the 2003 Sexual Offences Act there has been no presumption that sexual activity with a person with learning disabilities is always criminal – capacity is issue-specific and not ONLY related to a person’s IQ or diagnosis.

The essence of the main offence (sexual activity with a person with a mental disorder impeding choice in section 30 of the Act) is sexual touching which the person is unable to refuse due to a reason related to a mental disorder, and where the defendant knows, or could reasonably be expected to know, of the disorder and its likely effect on the inability to refuse.

In the criminal law, the 2003 Sexual Offences Act includes the words ‘for any other reason’ and the courts have interpreted these words as capable of encompassing a wide range of circumstances in which a mental disorder may rob a person of the ability to make an autonomous choice, despite having sufficient understanding of the information relevant to making it.  Examples are compulsions, delusions and phobias and, in the context of sex, low self-esteem due to depression, emotional dependency, disinhibition or sexualisation through early abuse.

How much capacity does one need to consent to sex?

In the leading case of KA, the gentleman was 29 and had a mild/moderate learning disability with an IQ of approximately 70. The council was concerned that his family might consider arranging a marriage for him as a means of securing his future care. KA’s parents and the local authority had co-operated in providing some specific education to KA around issues of sex and marriage.

The judge concluded that his ability to function outside the home was less than presented by the family but that KA had some valuable life skills, including basic literacy and relatively good verbal presentation, the ability to understand simple documents, care for his cat, and help out in a relative’s local restaurant.

A report had been prepared by a consultant psychologist with lengthy experience of capacity assessments who had seen KA and family members on several occasions. She had concluded that KA lacked capacity to have sexual relations and to marry. The judge, Parker J, found the expert’s assessment competent and thorough.

KA had a very rudimentary understanding and was able to weigh up that the consequences of sex are or may be pregnancy and ill-health, though he struggled to retain information about condom use or to understand that the ill-health may be serious. The expert also took the view that KA would find it a deprivation to be unable to have sex or to marry.

Parker J commented that, whilst not determinative of capacity, this did support an inference that KA understood the nature and character of both sex and marriage.

The ruling on the case of KA

The judge ultimately disagreed with the expert:

“The tests for capacity in respect of sexual relations and marriage are not high or complex. The degree of understanding of the ‘relevant information’ is not sophisticated and has been described as ‘rudimentary’, … ‘salient’ may be more apt. I must not set the test too high … [Adding] any further relevant information to the requirement for understanding … is likely to involve unnecessary paternalism and a derogation from personal autonomy”.

She emphasised: “It is particularly important to de-couple welfare from capacity under the heading of health and pregnancy.” Putting this another way, the ability to assess ‘risk’ fully is not the same as weighing information, and is not an explicit part of the legal test of capacity; risk assessment is a function of social services or the CCG in the discharge of statutory functions involving duties to meet needs.

“The statutory test is of foreseeable consequences, as in the pre-existing law. Again on the authorities, understanding need only be at a rudimentary level.”

She concluded that it was not necessary for KA to understand condom use in order to have capacity to have sexual relations: condom use went to welfare and not to capacity to consent to sex. So KA did have a rudimentary understanding that illness and pregnancy were foreseeable consequences of sexual relations sufficient to hold on to the presumption of capacity.

Capacity to have sex – the implications of the KA ruling

The core relevant information for a debate about capacity to have sex is this:

  1. i) The mechanics of the act and its sexual character (ie. that it is not a medical examination or procedure).
  2. ii) That sexual relations can lead to pregnancy.

iii) That there are health risks caused by sexual relations.

With regard to the relevance of consent of the person with impaired capacity, it goes to the very nature of the act. The question is: “Does the person have sufficient knowledge of … the sexual nature and character… of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether or not to give or withhold consent to it, at that time and, where relevant, to communicate their choice to their partner?” A great example of a lack of understanding of the nature of the act is an old case (R v Williams, 1923) in which a person was persuaded into sex on the basis it would be good for her singing voice!

The judge said:

 

  • “It is not ‘risk’ that needs to be considered, it is reasonably foreseeable consequences. A [person] needs to have an understanding, if not a sophisticated one, that pregnancy is a foreseeable consequence of heterosexual relations.

 

  • The consideration of contraception in general is far too detailed and complex to form part of the capacity test.

 

  • Pregnancy is a separate type of consequence from illness and must be considered separately. It does not constitute ill-health.

 

  • It should suffice if a person understands that sexual relations may lead to significant ill-health and that these risks can be reduced by precautions like a condom.

 

  • I do not agree that it is necessary for KA to understand condom use, which, leaving aside efficacy, goes to welfare and not capacity. It is not an examination in which one has to attain a certain mark in all modules.”

This then was the clear outcome from the case of KA in 2016, the leading case on sexual consent.  In the next issue, Belinda Schwehr will I examine the more recent case of a man with Down’s syndrome whose wife was effectively warned by a Safeguarding Team of legal action if she did not desist from having sex with him, on the grounds of inability to consent.  She will also examine the implications for care management, assessment and commissioning.