Our sex drive is a basic instinct, one of our prime motivations in life. Without it, there would be no more humans. You might imagine that our judiciary, if only in order to keep up a willing stream of ‘clients’, would place limits on its occurrence only as a last resort – where the protection of children are concerned, or violence against a sexual partner.
You would be wrong. As of last week it has officially been ruled that you can be ‘too stupid’ for sex. Perhaps it is relevant that in the case under consideration, it was unlikely that the sex involved could result in procreation.
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.
a) This is a man involved; this is not question of a vulnerable woman who might suffer the personal consequences of childbirth.
b) He is 41 years old, and merely suffers from a mild learning disability.
c) He apparently has a preference for anal sex.
Originally the case arose because the man involved had made ‘sexual gestures’ towards children. All well and good – we have laws that can be applied, and rightly so, to cover this situation.
However, the local council, who made the application to the Court of Protection, also wanted the man banned from having sexual relations with his former house-mate and sexual partner (another male) on the grounds that he did not have the mental capacity to consent to such sexual activity – potentially leading to a prospective, sexual partner being accused of rape for having sex without consent.
The Court of Protection was forced to rule on the characteristics a person needs to consent to sex. It determined that it required 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)
The man involved was found to have ‘no understanding at all of the nature of heterosexual coitus’ but did understand “the mechanics of mutual masturbation and anal sex, with persons of either gender.”
From which we can deduce that item 3 was unlikely to occur regardless of whether he understood or not. He certainly understood the mechanics of the acts that he wished to engage in, which only leaves us with item 2. The health risks.
Anal sex undoubtedly carries greater health risks. It is more usually, but not exclusively, an act carried out between two men. It has been decided by the court that he does not have capacity to consent to sexual activity and that the council is mandated to prevent this occurring.
“Since then Alan has been subjected to close supervision to prevent any further sexual activity on his part, other than private masturbation, which he is allowed to perform in the bathroom or in his bedroom” (at para 8).
- pending the local authority providing him with sex education and returning to the court to see if he has sufficiently absorbed the knowledge in nine months time.
The decision was compared to the capacity required to consent to marriage, established in 1885 – which is incredibly low.
“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”.
Why do I get the feeling that the gay lobby may not be best pleased to find that you have to pass an IQ test to engage in anal sex? Bright buggers that they are, surely they will mount a challenge to this decision?