Consent to Sex Requires Capacity
The prosecution appealed against the reversal of the defendant’s conviction for a sexual assault of a woman said to be unable to communicate her refusal to sex because of her mental disorder.
Held: The appeal was allowed, and the conviction restored. The case law on capacity has for some time recognised that, to be able to make a decision, the person concerned must not only be able to understand the information relevant to making it but also be able to ‘weigh [that information] in the balance to arrive at [a] choice’.
However the 2003 Act ‘puts the matter beyond doubt. A person is unable to refuse if he lacks the capacity to choose whether to agree to the touching ‘whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason’.
Provided that the inability to refuse is ‘because of or for a reason related to a mental disorder’, and the other ingredients of the offence are made out, the perpetrator is guilty.
The words ‘for any other reason’ are clearly capable of encompassing a wide range of circumstances in which a person’s mental disorder may rob them of the ability to make an autonomous choice, even though they may have sufficient understanding of the information relevant to making it.’
and ‘Once it is accepted that choice is an exercise of free will, and that mental disorder may rob a person of free will in a number of different ways and in a number of different situations, then a mentally disordered person may be quite capable of exercising choice in one situation but not in another. The complainant here, even in her agitated and aroused state, might have been quite capable of deciding whether or not to have sexual intercourse with a person who had not put her in the vulnerable and terrifying situation in which she found herself on 27 June 2007. The question is whether, in the state that she was in that day, she was capable of choosing whether to agree to the touching demanded of her by the defendant.’
Lord Hope of Craighead, Lord Rodger of Earlsferr, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Mance
[2009] UKHL 42, Times 07-Aug-2009, [2010] 1 Cr App R 7, [2010] Crim LR 75, [2009] 4 All ER 1033, [2009] 1 WLR 1786
Bailii
Sexual Offences Act 2003 30(2)(b)
England and Wales
Citing:
Appeal from – C, Regina v CACD 2008
The defendant appealed against his conviction for sexual assault on a female when she suffered a mental condition which prevented her indicating her refusal of the touching.
Held: The complainant’s irrational fear due to her mental disorder . .
Cited – X City Council v MB and others; re MAB FD 13-Feb-2006
The adult patient was autistic. The doctors said that he lacked capacity, and the authority sought to prevent his return to Pakistan with, they thought, a view to being married. . .
Cited – NHS Trust v T (adult patient: refusal of medical treatment) FD 28-May-2004
The patient had a history of self harming leading to dangerously low haemoglobin levels. She knew that if she refused a blood transfusion she might die; nevertheless she believed that her blood was evil and that the healthy blood given her in a . .
Cited – Re C (Adult: Refusal of Treatment) FD 1994
C had been admitted to a secure hospital as a patient under Part III of the Mental Health Act 1983 because of his paranoid schizophrenia. He now sought an injunction to prevent the amputation of his gangrenous foot without his written consent. The . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – Local Authority X v MM and Another; re MM (An Adult) FD 21-Aug-2007
The test for capacity to consent to sexual relations must be the same in its essentials as the test in the criminal law; more importantly ‘a woman either has capacity, for example, to consent to ‘normal’ penetrative vaginal intercourse, or she does . .
Lists of cited by and citing cases may be incomplete.
Crime, Health
Updated: 11 November 2021; Ref: scu.368924