A British court has banned a man with an IQ of 48 from having sex, on the grounds that he "does not have the capacity to consent to and engage in sexual relations." Is this really fair?
According to the Telegraph, the 41-year-old man, identified as Alan, was in a sexual relationship with a man named Kieron. He said "it would make me feel happy" to keep having sex with Kieron, but Britain's Court of Protection, which has the power to make such decisions for intellectually disabled people, decided he had to stop. The reason: Alan doesn't understand sex or its risks well enough, believing "that babies were delivered by a stork or found under a bush" and that "sex could give you spots or measles."
The judge in the case ordered that Alan receive sex ed so he can become more informed, but until that happens, the only sexual activity he's allowed to have is masturbation. As Ryan O'Hanlon of the Good Men Project points out, this is a pretty problematic decision — he asks, "Is it legally, intellectually, and morally just to prevent an adult, albeit a mentally deficient one, from having sex?" Few would dispute that people should know the risks of sex, and how to minimize them, before they jump in the sack. However, the fact remains that many people don't — and if they're of normal IQ, they get to bone anyway. Given this, banning a man from doing what his non-disabled peers can freely do feels discriminatory. So do the other situations in which the Court of Protection can apparently intervene: "ordering that they undergo surgery, have forced abortions, have life-support switched off or be forced to use contraception." All of this hearkens back to the forced sterilization of supposedly "feeble-minded" patients — a disturbing episode in American history and a reminder of the perils of making sexual and reproductive decisions for others.
Of course, there's also the issue of consent — if Alan is truly incapable of giving it, then Kieron would be guilty of rape. The judge in the case says that "a simple test can be carried out to see if a person is capable of consenting to sex based on the act itself rather than the proposed partner" — but the Telegraph isn't explicit about what this test is. The British Medical Association and Law Society guide proposes the following criteria: in order to be capable of consent, an intellectually disabled person "(a) must be capable of understanding what is proposed and its implications; and (b) must be able to exercise choice." However, these guidelines haven't always been followed in court, and some have suggested more stringent criteria involving an understanding of pregnancy and STDs. In a paper on the subject, clinical psychologist Glynis Murphy pointed out, "It is important to note [...] that capacity to consent to sexual relationships, however it is defined, is not a static phenomenon. There was clear evidence that those people with learning disabilities who had had sex education were more knowledgeable and less vulnerable than others."
Clearly, sex ed for Alan — and for everyone, intellectually disabled or not — is a good idea. The question is whether someone's IQ should make such education a mandatory precondition for consent. In answering it, we need to balance our desire to protect intellectually disabled people from victimization with the need to grant them their rights as adult human beings.
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