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Sex and the mentally disabled – respect for autonomy, humanity and dignity

Date:24 AUG 2021
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Mary Welstead, CAP Fellow Havard Law School; Visiting Professor in Family Law University of Buckingham

A young man, C, had Klinefelter syndrome, a genetic disorder in which males have an additional X chromosome. C had developmental problems and although he was able to consent to sex, he was unable to arrange it. Girlfriends would not be easy to find. He confided in his Care Act advocate and litigation friend who shared the information with C’s social worker. The Local authority applied to the Court of Protection to establish whether enabling sex for C would contravene the Sexual Offences Act 2003 (SOA 2003). With considerable empathy, Hayden J held that it would not be unlawful to arrange for C to enjoy sex in a risk -free manner following the Court of Protection’s consent. C had had a psychotic episode in his youth and had made threats of a sexual nature. No details of these incidents were given but Hayden J concluded by stating that:

At the heart of this case is a young man who faces many challenges in life and whose emotional security remains fragile. In due course I will have to consider whether it is in his best interests to pursue the course that he has set his mind on. As part of that evaluative exercise, I will have in mind that it will never be in C's interest to put himself or others at risk.'

Hayden J’s judgment inevitably raises interesting moral questions about prostitution for both the mentally incapacitous and those who have capacity. 




The full article will be published in the September issue of Family Law


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