Consenting adults?

Tue, 06 Oct 2020

This article is reproduced with kind permission from the New Law Journal, published in the 18 September 2020 issue

Laura Davidson examines the law on capacity to have sexual relations.

‘No man is an island’. So Lord Justice Baker reminded us recently in A local authority v JB [2020] EWCA Civ 735, [2020] All ER (D) 62 (Jun) (at [98]). The judgment provides a fascinating and comprehensive review of the law on capacity to have sexual relations, cutting through the confusing mire of (largely obiter) case law to bring a degree of clarity and refinement to the requisite capacity test. Naturally, the wishes of P (the subject of a capacity assessment) and his or her consent to sexual relations were central in previous reported decisions, but in JB it was the consent of a potential partner under the microscope.

Due to his Asperger’s Syndrome, JB had marked difficulties in social interactions and his adaptive and global intellectual functioning. Like P in Re A (An Adult) [2019] EWCOP 2, [2019] All ER (D) 124 (Feb) his access to social media and the internet had been restricted. This was due to his tendency to send inappropriate and sexually explicit and/or harassing messages to women. Due to the ‘high risk that he would commit a sexual assault in pursuit of a sexual relationship’ (an allegation of which had already been subject to police investigation), JB received 1:1 supervision outside his supported living placement.

Parties to Court of Protection (COP) proceedings agreed that JB lacked capacity to make decisions on residence, care and support, contact with others, and internet and social media usage. An independent clinical psychologist considered him unable to understand the concept of consent due to limited comprehension of other people’s emotional states or intentions. Despite the repeated provision of information, he could not comprehend that someone might either refuse consent, or change their mind and withdraw it, with rape a possible consequence (para [11]). While unable to understand or weigh these ‘highly pertinent factors’ (para [15]), JB knew the mechanics of the sexual act, and understood the risks of pregnancy and sexually-transmitted diseases. Thus, the court found he had capacity to consent to sexual relations. As decisions relating to social media and the internet were fundamentally different in nature, Mrs Justice Roberts rejected a submission that Re A (An Adult) was authority for the need to include potential exposure to criminal sanctions as part of the information relevant under s 3(1) of Mental Capacity Act 2005 (MCA 2005) to decisions about sexual relations. The key to the issue, in her view, was the difference between ‘having the mental capacity to consent to sexual relations and exercising that capacity’ (para [79]).

Knowledge of the other party’s consent to the proposed sexual activity went to choice about the latter, rather than to capacity itself (para [80]). Policing the exercise of capacity regarding sexual relations, the judge held, was the role of criminal law.

The judgment

Upon appeal by the local authority, Baker LJ gave a unanimous judgment overturning Mrs Justice Roberts’s decision and remitting it to the first instance court. Previous case law framing the decision-making in terms of capacity to consent to sexual relations had been unhelpful, since ‘giving consent to sexual relations is only part of the decision-making process’ (para [92]). The ‘fundamental decision’ which ‘should normally be assessed in most cases’ (para [93]) was whether to engage in sexual relations (para [92]).

Baker LJ held that the ‘instinctual, emotional component of sexual desire’ was not to the exclusion of ‘a cerebral element’ which required everyone to consider whether the other person consented (para [96]). A ‘fundamental part’ of information relevant to the decision was that sexual relations must be between consenting partners and take place ‘only for as long’ as that consent lasts (para [94]). Including that requirement within the information relevant to the decision which would inevitably restrict autonomy and rights was not discriminatory to those with mental disabilities since it applied to everyone ‘[a]s social beings’ (para [98]). It also accorded with the COP’s duty to protect P, and simultaneously protected other participants from serious harm (para [106]). Since ‘the consensuality of sexual relations is part of the relevant information, it plainly relates to capacity itself rather than the exercise of capacity’ (para [95]).

Approving the obiter observations at paras [44] and [62] in B v A Local Authority [2019] EWCA Civ 913, [2019] All ER (D) 51 (Jun) the appellate court reiterated that previous guidance had been just that: guidance. ‘Relevant information’ must be ‘tailored to the facts of the case’ (para [42]; TZ [2013] EWHC 2322 (COP) at [55], [2013] All E (D) 144 (Oct)) and ‘firmly anchored to the decision in question’ (para [95]). Paragraph 100 of the judgment lists five matters identified as ‘information relevant to the decision’ on whether or not to engage in sexual relations which P must understand:

1. the sexual nature and character, including the mechanics, of the act;
2. that the other person must (a) have capacity to consent, and (b) consent prior to and throughout the sexual activity;
3. that P can consent to or refuse sexual relations;
4. that a reasonably foreseeable consequence of heterosexual intercourse is pregnancy;
5. that health risks—particularly sexual infections—may result, reducible through precautions like condom-use.

Contrary to Roberts J’s view, consent was not a difficult concept for those with full capacity to understand, but rather, ‘[i]t is something which any person engaging in sexual relations has to consider at all times’. This applied even though some might choose to ignore the absence of consent and commit sexual assault or rape. The Court of Appeal also disagreed with the view of the first instance court that if JB could not understand the concept, he, like everyone else, was permitted to make a mistake about a partner’s consent. Such an error would be quite different from JB’s inability to understand relevant information. Accordingly, the appeal was allowed.

Comment

This comprehensive decision from the appellate court led by a highly experienced COP judge has further elucidated the test for capacity to make decisions about sexual relations. Rephrasing such capacity decisions as involving engagement rather than consent makes good sense. The case law review—which expressly disapproved dicta in several cases—is extremely useful to practitioners (see Fig.1)

Impact on others & reasonable foreseeability

Intrinsic to the decision was the fact that P’s behaviour would impact on others. However, JB was not the first case where such an understanding was considered integral to a capacity test. In D Borough Council v B [2011] EWHC 101 (Fam), [2011] 3 All ER 435 Mr Justice Mostyn held that the ‘relevant information’ P must understand included health risks such as ‘the acquisition of sexually transmitted and sexually transmissible infection’ (emphasis added). This risk was reiterated by Mr Justice Cobb in Re B (Capacity: Social Media: Care and Conduct) [2019] EWCOP 3, [2019] All ER (D) 125 (Feb) and endorsed as ‘relevant information’ on appeal in B v A Local Authority [2019] EWCA Civ 913, [2019] All ER (D) 51 (Jun) along with the need to understand that condoms can protect against infection (para [57]). That information was deemed appropriate to the test, bearing in mind that P’s decisionmaking must be practically oriented and no more onerous than for someone with full capacity; such facts were ‘well known among all sexually active generations’. So, too, is an awareness of the need for a sexual partner’s consent by ‘every person engaging in sexual relations’ (para [96] of JB).

That links back to s 3(4)(a) of MCA 2005:‘[t]he information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another.’

One such consequence when deciding whether or not to engage in sexual relations is that a potential partner may not consent. Similarly, they may initially (or eventually) consent, but thereafter change their mind. Submissions on s 3(4)(a) of MCA 2005 were made by the local authority in JB (see para [81]), citing Re A (Capacity: Refusal of Contraception) [2010] EWHC 1549 (Fam), [2011] 3 All ER 706 in which Mr Justice Bodey was asked to consider whether the realities of parenthood (wrongly attributed to the risk of sexually transmitted infections by Baker LJ) was information relevant to contraception decisions. Clearly, risk of harm to JB’s future partners (and potentially to himself, through investigation and/or prosecution) was a reasonably foreseeable consequence of having sexual intercourse without regard to the other participant’s consent. However, although the protective aspect of the need to understand the requirement of consent by both sexual partners was acknowledged (atpara [106]), the court did not discuss s 3(4)(a) of MCA 2005.

Simplicity?

In IM v LM and Others [2014] EWCA Civ 37 (at [80]), [2014] 3 All ER 491 the Court of Appeal emphasised that ‘the notional decision-making process attributed to the protected person with regard to consent to sexual relations should not become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity’. In JB at first instance, issues of consent were held to involve ‘conceptual issues difficult for the capacitous to grasp’ (para [77]). The need to use and weigh ‘quasi-criminal principles’ before sexual activity would demand a ‘refined or nuanced analysis which would not typically inform any [such] decision…made by a capacitous individual’ (para [81]). However, Baker LJ expressly disagreed, holding that ‘it is something which any person engaging in sexual relations has to consider at all times’ (para [107]). The Court of Appeal also disapproved Roberts J’s contention that requiring a full understanding by P that sexual relations absent consent was criminal would ‘confuse the nature or character of a sexual act with its lawfulness’ (para [78]). The appellate court has clarified that mutual consent relates to capacity itself, rather than to its exercise (para [95]). The need for simplicity was important; a ‘full’ comprehension of criminal provisions would be far too onerous a test for capacity on sexual relations, the sexual urge was basic one, and discrimination against those with mental disabilities was prohibited. Nonetheless, it could not justify the exclusion of information ‘manifestly relevant to the decision’ (para [95]). ‘A person who does not understand that sexual relations must only take place when, and only for as long as, the other person is consenting’ would be unable to understand a fundamental part of the information relevant to the decision (para [94]). Yet, the previous sentence in the judgment delineates a slightly different formulation of ‘relevant information’ as ‘inevitably’ including ‘the fact that any person with whom P engages in sexual activity must be able to consent to such activity and does in fact consent to it’. This alters the test from, ‘does the potential partner consent?’, to ‘do they have the ability to and in fact consent?’—a more sophisticated concept with which the average lay person might struggle. Further, does an ‘ability’ to consent equate to a ‘capacity to consent’, in legal terms?

Anomaly & lacuna

The judgment also creates an anomaly. P might be found to lack capacity to engage in sexual relations because of a lack of understanding either that someone else (i) might not consent; or (ii) might withdraw consent. This incongruity bars a sexual relationship even if a specific partner is known to be equally eager for a union, unless P can develop the requisite understanding through education. Yet, in JB’s case this proved impossible; he was ‘visibly shaken at the idea that a partner would be able to withdraw consent’ (para [14]). His fixed view during several assessments was that:

‘[i]f a person gives consent then she’s already given consent and you have to go through with it to the end…. She can’t change her mind if you are already doing it. Cos it’s her fault in the first place for saying yes. Already said yes and you’ve got your chance.’

The appellate court has also left a lacuna. Having clarified that capacity ‘should normally be assessed in most cases’ in terms of ‘engagement’ in sexual relations rather than ‘consent’ to it (para [93]), that begs the question, ‘when might it not’? Perhaps the capacity decision might have been more clearly reframed by asking whether or not JB had the capacity to engage in lawful sexual intercourse, with the inherent corollary of an understanding of the need for mutual consent.

With kind permission from New Law Journal, please Click Here for the original.

Fig.1

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