Traces of the Past: Mental Capacity Law, Disability, and Sexuality

Law’s role in shaping and constraining the sexual lives of disabled people in England and Wales is well-documented (Sandland, 2013). Sexual relationships were prevented through legal interventions (such as the Criminal Law Amendment Act 1885, s5(2) which criminalised any sexual activity with a ‘female idiot or imbecile’ [terminology in original]). This, coupled with the institutionalisation, guardianship, and sterilisation of disabled people, enabled total control over their lives including intimate and sexual matters. Underpinning these interventions, particularly in the 19^th and 20^th Centuries, was a prevailing eugenics movement, evident in the shaping of the Mental Deficiency Act 1913; a fear that ‘prorogation of mental defectives’ would lead to the degeneration of the British race. Ideas of protection were prevalent in the legal approaches here – protection of the human race, but also protection of disabled people, particularly disabled women who were rendered as vulnerable. Monstrousness, vulnerability, othering, and risk are apparent in these histories.

These frameworks are no longer an overt feature of our legal landscape. Law in this context now claims to ‘empower’ individuals, support their autonomy, and protect relationships. In the Law Commission’s work leading to the Mental Capacity Act 2005, key drivers for reform included a need for deinstitutionalisation and a rights-based legal and policy agenda. Relationships are (ostensibly, at least) recognised in the Care Act 2015, and protected via Art 8 of the European Convention on Human Rights. The legal landscape – at least at a superficial level – looks very different to the 19^th century and the ableism detailed above.

However, it is important to be attentive to the ongoing existence of the ideas of othering, protection, dangerousness, monstrousness, and vulnerability; to note that far from being consigned to disability history, they are a persistent undercurrent in the contemporary legal landscape, which continue to shape and constrain the sexual lives of disabled people.

A key case which illustrates the return (if it ever went away) of this rendering of monstrousness, risk, and othering is the case of Re JB. This case focused on the question of mental capacity to engage in sex. It involved a man in his thirties (referred to in the case as JB) defined in the judgment as having a complex diagnosis of autistic spectrum disorder and impaired cognition. He lived in a supported living arrangement under close supervision, redolent in many ways of an institution. He had few opportunities for unsupervised social interactions, in part because of concerns about sexually inappropriate behaviours toward women. In the Court of Protection, the issue was described thus,

‘On occasions his advances have lacked appropriate social inhibition and, whilst he has never been charged with (let alone convicted of) any criminal offence, there is a concern that his behaviour, if unrestrained, may result in his exposure to the criminal justice system and risk to potentially vulnerable females’ [[2019] EWCOP 39 Para 3]

The Court of Protection was asked to decide whether JB had capacity to consent to sex. Unlike other decisions under the MCA, following s27 no best interests decision can be made in relation to sex if somebody is deemed to lack capacity. In earlier cases, a ‘low threshold’ had been set in relation to the test for capacity to consent to sex; the relevant information for the purposes of assessing capacity included things such as understanding the nature of sexual intercourse, potential risks (including pregnancy or STDs) and that the individual could choose to consent or refuse. In JB however, the issue was whether an additional factor needed to be part of this relevant information; namely, whether the person has to understand that the other person must also consent and can withdraw that consent at any time. In the Court of Protection, mindful of the stark implications of capacity assessments in this context, it was held that JB had capacity to consent to sex. The judge, Roberts J, suggested that adding this element to the test would in essence be discriminatory, as it would entail a further barrier to sexual relations that does not exist in the lives of individuals without impairments.

Both the Court of Appeal and ultimately the Supreme Court disagreed, and instead centralised consent as crucial for sexual intercourse and held that to have capacity to engage in sexual intercourse, they must understand that the other person must consent and can withdraw that consent at any time. In relation to the discrimination question, Lord Stephens pushed back against this, suggesting that every person must consider whether the other person is consenting. This was additionally justified in terms of the purported protective imperative of the MCA, protecting the individual from potential criminalisation and protecting others from potential risk. In this sense, JB was both monstrous and vulnerable, with this risk in need of management via the mental capacity framework. The upshot of this is the prevention of potential sexual interactions. These patterns of risk, othering, and protection have further played out in cases in the wake of the JB judgment, many of which have involved disabled men – see Re PN (2023); Re ZZ (2024); Re ZX (2024).

At around the same time that JB was moving through the appellate courts, disability and sexuality was central to another case: A Local Authority v C (2021). C had flagged with his Care Act advocate that he wished to have a girlfriend, but recognised that this was unlikely to occur in his current care arrangements. He asked the advocate to explore the potential for contact with a sex worker. The Local Authority brought the case to clarify the legality of supporting access to a sex worker for C. In particular, there was a fear that doing so may constitute an offence under the Sexual Offences Act 2003 s39, which makes it is a criminal offence for a care worker to cause or incite sexual activity by a person with a mental disorder. In the Court of Protection, the key phrase ‘cause or incite’ in the SOA was interpreted to find that supporting access to a sex worker was not a criminal offence – rather than the support workers being the cause, C himself would be causing the sexual contact by seeking out support to access a sex worker. The Court of Appeal, however, took a different approach to interpreting the statute, and held that to support access to a sex worker would be the cause of sexual activity and so would be a criminal offence under the legislation. The upshot of this is that those deemed to have a mental disorder (under the SOA) can be rendered celibate or asexual, due to legal frameworks and institutional structures.

It is striking in these cases how these historical legacies of monstrousness, risk, vulnerability, and asexuality have re-emerged in new forms. This tells us something important about law and disability, and how both are constructed and reinscribed in ways that require constant attention underpinned by an awareness of the histories and roots of legal norms and concepts, as well as careful unpicking of these threads to think through potential futures.