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Vulnerability and capacity to consent to sex - asking the right questions? [2014] CFLQ 371

Date:4 JUN 2015
Keywords: Vulnerability - Mental Capacity Act 2005 - consent to sex - sexual autonomy - capabilities

The burgeoning body of literature seeking to conceptualise vulnerability has provoked new and interesting perspectives for legal and ethical debates. Commentators are beginning to explore the potential for vulnerability theories in various contexts and to challenge prevailing attitudes and accepted beliefs in doing so. This article seeks to add to this growing body of discourse by examining the recent legal developments in the context of capacity to consent to sexual relations. It will be suggested that, viewed through the lens of vulnerability, the current judicial approach takes a narrow, individualised stance which obscures many of the situational and relational dynamics where interact and shape the landscape of consent to sexual relations. Moreover, and perhaps more importantly, it is argued that the current legal response here does not facilitate resilience and sexual autonomy, despite judicial statements to the contrary. Through uncovering the situational and pathogenic factors which are otherwise obscured by an approach hinging the concept of mental capacity, the vulnerability approach opens up space for debates about the appropriate legal response to foster resilience and capabilities.