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Sexual Relations and Mental Capacity – Family Judge Grasps the Nettle

Adults of sound mind enjoy a fundamental freedom to have sexual relations with one another – but that right ultimately depends on the ability to give informed consent. A family judge powerfully made that point in a case concerning a vulnerable young woman who formed an intense relationship with a dangerous sex offender.

The learning-disabled woman, aged in her late 20s, craved relationships with men and dreaded the very thought of being single. Her boyfriend was a very high-risk sex offender who was also said to have learning disabilities. The relationship, of which her parents entirely understandably disapproved, had made it impossible for her to live at home and she had been moved into institutional care.

She denied having any concerns about his status as a registered sex offender who had twice had sexual harm prevention orders made against him. Although their relationship eventually came to an end, they exchanged love letters whilst he was in prison and she discussed her intention of marrying him when he was released.

She later formed a new relationship with a man (Z) who also suffered from learning disabilities. She wore his ring on her wedding finger and stated that they had talked about marriage and intended to live together. In those circumstances, the local authority that bore responsibility for her care sought a declaration that she lacked the mental capacity to decide to engage in sexual relations.

The judge found that she was able to understand the need for a sexual partner to consent to sexual relations. Granting the council’s application, however, he was driven to the conclusion that she could not currently understand that a sexual partner must also have the mental capacity to give consent to such relations.

The judge emphasised that he had not reached that decision lightly. It was bound to be profoundly disappointing for her, given how important it was to her to be able to form a full and rewarding relationship with a man. He acknowledged that it would have a serious impact on her care and support plan and would significantly impact on her future happiness and fulfilment in life.

A clinical psychologist had testified that the requirement of mental capacity to enter into sexual relations was too abstract a concept for her to grasp. However, the judge said that nothing would be lost, and much might be gained, were further steps taken to educate her on the subject. She was at a crucial stage of her development and no assumptions could be made about the strength of her feelings for Z, or his for her, simply because they both had learning disabilities.

17 May 2021
Last Updated
14 July 2021