Crime and the law DE is a man of 36, with a learning disability. His IQ was said to be 40, implying a mental age of between six and and nine. Such a low IQ certainly suggests quite a significant level of mental impairment. DE lived with his devoted parents, who over the years had enabled DE to develop a modest degree of autonomy, such as walking to the gym with a friend, or travelling to a day centre on a bus by himself.
Such developments took years to achieve. DE formed a relationship with another learning-disabled woman, named PQ, whom he had known for 10 years. The result of this well-meaning but short-sighted approach proved little short of disastrous. The couple started a sexual relationship, and PQ became pregnant. All hell then broke loose.
PQ was accused of exploiting DE, and her baby was taken into care. DE was not allowed to see PQ unsupervised. As he did not even understand how a child had come into being in the first place, he had very little appreciation of why his routines were so disrupted.
Later, they became reconciled. DE said he did not want any more children. Firstly, DE had acquired capacity to consent to sexual relations, but secondly, he lacked capacity to use contraception.
The court ruled that his best interests required sterilisation. But to say that a person has competing rights is surely oxymoronic. A competent adult is free to decide which aspect of his private life means more to him: An adult lacking capacity cannot make that choice.
While one can understand the court reaching the conclusion it did, on pragmatic grounds, this ruling has an air of smoke and mirrors about it. Should PQ and DE have been in a position to start a sexual relationship at all? And how can the issue of capacity to have heterosexual sex sensibly be viewed in isolation from the capacity to use birth control?
Many people would see such a distinction as artificial. Paradoxically, leaving the couple to their own devices resulted in far more state intrusion into their lives, and prolonged distress to them both, than if they had been chaperoned in the first place. One standpoint is that those with learning disabilities should not be prevented from having sex, because it is pleasurable and a core element of being human. But this rose-tinted view is, arguably, unduly complacent.
It would not be used to justify sex between, or with, young children. DE, with a mental age of between six and nine, sounded rather too impaired. A curious feature of the case is that DE miraculously acquired the legal capacity to have sex during the proceedings. Again, this convenient development does not seem altogether convincing.
It is interesting that DE, according to the judgment, attended these sessions reluctantly. While the Court would no doubt claim to be handling difficult ethical and legal issues sensitively, the outcome is the same as if DE were alive in Virginia in the s. This should give us pause. The ruling has been hailed as a victory for autonomy and choice.
In reality, however, what has happened is that others have imposed their own views of what is right for DE on to him. It is time to have a more open and democratic debate about whether and when our society deems it acceptable for the mentally disabled to have sex and start families, instead of leaving such decisions to be made behind closed doors by unelected judges. Barbara Hewson is a barrister in London. For permission to republish spiked articles, please contact Viv Regan.
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