man and woman hands having sex on a bed.
man and woman hands having sex on a bed.

Rape risk ‘must be free to pursue sex’

A UK court has ruled that an intellectually disabled man who does not understand consent must be allowed to pursue relationships despite posing a "moderate risk" of raping women.

The Court of Protection, which hears financial and welfare matters for people who lack the mental capacity to make decisions, said restrictions on the man's ability to socialise freely should be lifted because sex is a "fundamental human right".

The 36-year-old, referred to only as JB, has a complex diagnosis of autism with impaired cognition. He has never been charged with a criminal offence but, due to his sexually inappropriate behaviour towards women, has been living in a supported residential placement under a comprehensive care plan since 2014.

The plan "imposes significant limitations on his ability to function independently" with "restrictions on his access to the local community where he lives, his contact with third parties, and his access to social media and the internet".

"The primary thrust of the evidence is that JB lacks the insight or ability to communicate appropriately with women to whom he is attracted," Justice Roberts said in the September 17 judgment.

"On occasions his advances have lacked appropriate social inhibition and … 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."

JB, represented by a government solicitor, challenged the care plan as infringing on his human rights. "Throughout the course of this litigation, JB has made it very plain that he desperately wants to find a girlfriend with whom he can develop and maintain a relationship," Justice Roberts said.

"He is anxious to have a sexual partner and believes that the current restrictions represent an unfair and unwarranted interference in his basic rights to a private and family life."

His local authority wanted the care plan to stay in place, arguing it was the court's responsibility to protect JB from "committing a criminal offence for which he could be imprisoned".

A clinical psychologist prepared a report that concluded JB "represented a moderate risk of sexual offending to women".

"Based on descriptions of his previous and ongoing behaviours, this is most likely to take the form of sexual harassment through the form of repeated, unwanted sexually explicit messages to females whose numbers he has obtained or whom he contacts through social media or dating sites," she wrote.

"JB has also been observed to have limited social boundaries around women, particularly those who are vulnerable but also women in pubs or clubs whom he has approached while dancing. Additionally he acknowledges not being able to judge women's reactions to him and that he is unwilling to directly ask for clarification of these issues."

She added, "In these and similar situations the risk is of JB sexually touching these women without consent. In terms of vulnerable women who do not have the capacity to consent to sexual relations, there is a risk of JB not recognising or respecting this fact, resulting in the potential for rape to occur."

Justice Roberts ruled, however, that requiring JB to demonstrate a "full appreciation of both his own and a partner's of consent" would be discriminatory because it would "impose on him a burden which a capacitous individual may not share".

She said lacking that knowledge might expose JB to the risk of criminal prosecution but that he was "entitled to make the same mistakes which all human beings can, and do, make in the course of a lifetime".

"A decision to engage in sexual relations … is a primal expression of our humanity and existence as sexual beings. It is an essential part of our basic DNA as reproductive human beings," she said.

"Sexual relations form a fundamental aspect of our humanity, common to all regardless of whether an individual suffers from some impairment of the mind. The whole process of decision-making in this context - even in the case of persons of full capacity - is 'largely visceral rather than cerebral, owing more to instinct and emotion than to analysis'."

She added, "In my judgment, to argue that a full and complete understanding of consent (in terms recognised by the criminal law) is an essential component of capacity to have sexual relations is to confuse the nature or character of a sexual act with its lawfulness."

 

frank.chung@news.com.au


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