Man who does not understand consent has right to pursue sex, court rules
theguardian.com/society/2019/oct/03/man-who-d...
theguardian.comPosted Oct 3, 2019, 11:00 AM UTC
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theguardian.comNot sure what the alternative is - he hasn't committed a crime, and I really don't like the idea that we could curtail somebodies (fairly fundamental) freedoms on the basis that they might, or are even likely, to do something wrong.
Now of course, there is also the need for courts to protect the wider public (i.e., women here) but, again, I stress, he hasn't committed any crime. Do we start rounding up scrotey looking kids who are "probably" going to start nicking cars and chucking them in jail?
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Do we start rounding up scrotey looking kids who are "probably" going to start nicking cars and chucking them in jail?
It's not an issue of probability though. There is an inherent contradiction, which seems to be being overlooked, in that the man is known not to understand consent i.e. he cannot take 'responsibility' for his sexual behaviour, and yet he somehow deserves the 'right' to have sex.
We shouldn't give rights to people who can't take responsibility for their own behaviour. Rights and responsibilities ought to go hand in hand. If you're not responsible enough to understand that, for example, "no means no", how the hell are you deserving of sex as a "basic right"?!
Huge flaws in this decision-making IMO.
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You don't seem to understand the basic concept of "rights". Rights aren't granted, they exist by default - i.e., you're mixing up the granting of him a right vs the removal of a right.
He HAS the right already, he was born with it like you and I. Asking the court to remove those rights is a big deal, and it's right that it should attract a high burden of proof.
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I'm sure that you get my point, though. Which is that, if you're demonstrably incapable of taking responsibility for yourself, then the 'rights' you were born with should be removed.
As I said, rights should be based on your ability to understand and be responsible for them. We have 'mental capacity' tests when it comes to finance and all sorts of other decisions. If you don't understand consent, you lack the mental capacity to have sex and, on this basis only, deserve to lose your right to have sex. Otherwise, this person's rights have a very real and serious risk of infringing on another person's rights, i.e. the right to be respected when you say "no ta" to sex...
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I'm sorry dude, but you misunderstand rights. We are not born with them. The government grants them to us, and they take them away again too. They take your right to privacy away when the spooks hack your messages and read your emails. They take your right to family life and freedom away when you are sent to prison.
Rights are synthetic. They do not exist as some sacred immovable universal force. Freedoms are fought for and won, and have to be jealously maintained and protected.
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Well...yes and no. Rights exist within our legal frameworks, of course - I wasn't trying to turn it into some kind of philosphical question. But, legally, the moment you are born you are granted entitlement to all sorts of legal rights in the UK, and then the rest are added at certain ages.
You don't have to apply to them, you don't have to go to court and prove yourself worthy of them, they're just there. This court case was about whehter we should REMOVE those rights from somebody.
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We only gain the right to drive after we are 17 and pass two tests, and we gain the right to vote when we are 18 and a citizen.
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correct - this is like leaving a wolf in the lambing pen because excluding it would infringe its rights
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I think the article is a bit misleading or is framed in a way that has led to misinterpretations of the case and its consequences.
from the judgment: http://www.bailii.org/ew/cases/EWCOP/2019/39.html
The man ('JB') "has been living in a supported residential placement where he is subject to a comprehensive care plan which imposes significant limitations on his ability to function independently. In particular, there are 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 restrictions on JB's ability to socialise freely with whomever he chooses have been imposed primarily in order to prevent him from behaving in a sexually inappropriate manner towards women. The primary thrust of the evidence is that JB lacks the insight or ability to communicate appropriately with women to whom he is attracted. 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. "
He wasn't free to do what he wants.
"The principal issue which I am asked to determine relates to what is said by both parties to this litigation to be a lacuna in the existing law in relation to the test for capacity to consent to sexual relation."
If I understand correctly:
The local authority's position was that JB does not have capacity to consent.
If he was not found to have capacity the Local Authority would not have to change his care plan.
There will be a separate hearing about challenges to his care plan on other grounds.
Note: "At the present time, his aspirations may not be grounded in reality because of his particular vulnerabilities. It seems to me that it is not for this court now to determine whether or not his aspirations may ultimately be capable of realisation. "
He still isn't free to do what he wants.
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God lawyers are ridiculous, pages and pages and pages to essentially write
"the right of a nutcase to potentially assault women outweighs society's ability to constrain him"
,because apparently sexual contact became a fundamental right at some point (I look forward to the NHS, the national hooker service to fulfil this right). This might be legally correct, but god damn its stupid and another one for the ECHR is dumb list.
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fundamental freedoms
this isn't America and even if it was, there is no fundamental right to be able to have sex with people.
Do we start rounding up scrotey looking kids who are "probably" going to start nicking cars and chucking them in jail?
if they are cognitively incapable of understanding that stealing cars is wrong, then it might not be a good idea to let them hang out near car parks.
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this isn't America and even if it was, there is no fundamental right to be able to have sex with people.
No, but there's a clear right to seek it. Article 8 of the ECHR, btw.
if they are cognitively incapable of understanding that stealing cars is wrong, then it might not be a good idea to let them hang out near car parks.
You didn't answer my question.
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Do we start rounding up scrotey looking kids who are "probably" going to start nicking cars and chucking them in jail?
I think you're in the wrong sub if you're expecting a "No."
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I think I agree with the ruling. Seems like if the ruling went the other way you could end up with a misuse of the courts.
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Seems like if the ruling went the other way you could end up with a misuse of the courts.
Nice sex life you got there, powerful person... be a shame if someone decided you're a danger to women.
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It's a terrible ruling, in as much as Nobody should have the right to sex. It is the ultimate privilege. Otherwise you have the right to rape people.
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This doesn't say he has the right to sex. He just has the right to go out and try to get laid.
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He can't try to get laid, because there is the implicit concept of consent in that statement. He can try to get sex, he might get lucky with the consent
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They just said like everyone else he has a right to go out and try to get laid. If he had sex without consent he'd be punished like everyone else. But the courts shouldn't punish people for crimes they haven't commited.
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It's the "fundamental right to sex" I can't wrap my head around. Imagine if some incel came out with this, they'd be tarred and feathered. Such a right does not exist and nor should it get precedence over other people's safety.
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Article 8 ECHR. You have a fundamental right to seek out relationships, including sexual ones.
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I really do try to pull that from
" 1. Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
but I'm struggling to pick out the words, clearly I'm not lawyer material
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Private life equals your right to have interpersonal relationships, sexual relationships etc
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If you really want to understand then read the judgment and its references.
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"fundamental right to sex" I can't wrap my head around
He has a right to pursue sex.
Not to it itself.
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I see where they're going with it but... what happens if he assaults someone and that had been preventable?
But then I suppose we can't prosecute based on what might be.
Certainly an interesting case!
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It's a court case so we can only speculate on what we know has been said in the media. It would be a big problem if the defendant ended up in a sexual assault case and the "They don't understand" defence was tried.
That said it's possible there's much more than meets the eye. The case where someone apparently had to give police notice 24 hours prior to sex turned out to be due to multiple incidents of BDSM causing harm to unsuspecting partners
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Oh come on - this is liberal stupidity on steroids.
"rights" in this context only exist for people that have the agency to understand why an act is morally wrong and illegal. Most of our laws including the pertinent one in question require a "guilty mind" to be considered a crime - ergo this decision is doubleplus stupid
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Yep, he’s not criminally liable so if he does commit a rape and traumatises some poor woman for life, all that will happen is a brief spell of institutionalisation and then rise and repeat.
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all that will happen is a brief spell of institutionalisation
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He sounds a bit like Chris-chan to me based on everything I read there
What are the chances of a woman ever wanting to have sex with him anyway?
I'd say the chances of any woman wanting to have sex with an adult man with severe (not mild) autism are close to nil
Less chance of getting laid than an actual incel
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An issue might be that some autistic people with severe symptoms don’t have any sense of shame (Or rather no theory of mind) leading to situations like for example hanging round a high school trying to pick up girls.
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pretty sure you've missed why his freedoms are being curtailed
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I bet some equally autistic woman might be interested. What if they have a whole load of debilitated children they are incapable of looking after? Is it fair for society to shoulder that burden?
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There are considerably less autistic women than men
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So?
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If he does not understand consent, does he have capacity to consent?
If he doesn't have capacity to consent, it will be a sexual offence for someone to engage in sexual activity with him.
edit: ' In this case there has already been a capacity assessment of JB. The single joint expert [1] instructed by the parties has indicated that JB has the ability to consent to sexual relations albeit that he does not understand or weigh "highly pertinent factors in ensuring he engages in lawful sexual activity". '
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so, every man then?
/feminist
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I think the judge could have made it clearer, that he "has the right to have sex with a fully consenting partner" ... because saying that he has the right to have sex makes it sound like someone has to be forced to fulfil that right for him
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I would like to think that your point is implied.
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Maybe it was intended to be implied, but unfortunately it comes across as a statement of his right to have sex, with no mention of who is going to fulfil that right
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Perhaps we already have precedent in common law that covers the grounds for consent and people’s right from being raped.
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Yes, of course - it's just a statement which feels like there's an important part missing - a part which needs to be clarified
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It's not a reasonable inference to draw, that "someone has to be forced to fulfil that right for him". The judge likely didn't imagine that anyone would reach that conclusion.
From your comment and others it's evident the judge lacks imagination.
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Judge in case regarding mentally deficienct man underestimates the sheer hard of thinking in BadUK.
Seriously, at times this place has the intellectual capacity of a council estate flat roof pub at 1am
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Different life experiences give us different views I suppose
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The judgment http://www.bailii.org/ew/cases/EWCOP/2019/39.html
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The courts in this country are messed up.
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What kind of precedent is this? Since when does anyone have a “fundamental right to sex”? Since when does that trump the right for normal people to not get raped?
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Since when does that trump the right for normal people to not get raped?
It doesn't. Nor does the article claim it does.
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I'm struggling to comprehend the idea that people are here are struggling to parse the ruling as the right to seek something, rather than some bizarre right to force people to give it to you.
It really is one of those threads that makes me wonder how such hard of thinking people manage to find their way onto Reddit and BadUK.
I certainly get disagreeing with the ruling - afterall, it got that far and was a complex case, but let's discuss it on the merits surely.
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Can't see any way this will go wrong. No siree, he definitely won't turn into a replica of Lucas Werner