Senior judge sparks outrage by saying it is a “fundamental human right” for a man to have sex with his wife

There has been significant coverage over the past few weeks concerning a remark apparently made by Mr Justice Hayden that he “cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife”.

Hayden’s comments have resulted in strong criticism, with Labour MP Thangam Debbonaire having said that “this legitimises misogyny and woman-hatred” and Jess Phillips the Labour MP for Birmingham Yardley tweeting “It is not a basic human right to have sex with your wife. It is not even close to a right”.

The comment, which has been widely quoted in isolation, was allegedly made at a preliminary hearing. There is therefore no published judgment, meaning that it is difficult to ascertain the context in which the alleged comment was made and the true meaning behind it.

While the comment appears inelegantly worded in isolation, it is, one would hope, unlikely that a High Court Judge sitting in the Court of Protection would make the mistake of intending to suggest that a man has a right, in effect, to have sexual relations with his wife, regardless of her ability or otherwise to consent.

That is particularly so given that, first, it has been established law since 1991 that it is a criminal offence for a man to rape his wife and, secondly, that the Court of Protection has traditionally adopted a very sensitive approach to the matter of sexual relations.

Section 27 Mental Capacity Act 2005 includes a list of “excluded decisions” which are decisions on behalf of a protected party which cannot be made in respect of any matter that falls within that list. The decision to consent to sexual relations is included in that list.

As such, if a person lacks capacity to make one of the excluded decisions, the Court of Protection has no jurisdiction to make the decision on behalf of a protected party.

In practice, the court has traditionally (although not always) set the threshold for capacity in these matters fairly low.

However, despite it being an excluded decision and the general approach taken, the Court of Protection is often faced with difficult questions in respect of capacity to consent to sexual relations.

In TZ (No 2) (2014) EWHC COP 973, the Court of Protection determined that TZ had capacity to consent to sex, but not to make a decision as to the support he requires when having contact with an individual with whom he may wish to have sexual relations.

In P (Sexual Relations and Contraception) v.2 [2018] EWCOP 10, concerns arose that by reason of P’s learning difficulties she was vulnerable to sexual exploitation, pregnancy and sexually transmitted diseases. There was evidence that she was sexually assaulted and an expert reported that the police expressed concern that P should not access the community unsupervised as she appeared to be a target for exploitation and was extremely vulnerable. The court agreed that P had the capacity to consent to sexual relations and that it was in her best interests for an intrauterine contraceptive device, which had been inserted some years earlier without her knowledge, to remain in place until the end of its normal ten year span.

In the recent case of Manchester City Council v LC & Anor [2018] EWCOP 30, the court was faced with a case concerning the sexual relations of LC, a young woman with autism and a learning disability.

The matter that came before Justice Hayden last week concerns the ability of a man to have sex with his wife of over 20 years, a lady who has learning difficulties.

Social services, on behalf of P, have invited the Court of Protection to consider imposing a court order preventing P’s husband from having sex with P on the basis that there is evidence indicating that P’s mental health is at a stage where she no longer has the capacity to make decisions about whether or not she wants to have sex.

At the preliminary hearing, Mr Justice Hayden presiding in the Court of Protection said that he wanted to examine the evidence in detail and hear arguments from lawyers representing P, her husband and the council involved before making any decisions.

Mr Justice Hayden was told that the man had offered to give an undertaking not to have sex with his wife, but recognised that while the man might be put in a situation where he could face prison if he breached an order or an undertaking not to have sex with his wife, any such order would be very difficult to police.

A full hearing is expected in the near future and it is anticipated that the comment will be revisited in an attempt to clarify the context and rationale behind it.

The Care Quality Commission (CQC) has recently issued guidance on relationships and sexuality in adult social care services. This sets out the matters that should be considered when seeking to establish capacity in relation to sexual activity which it is recommended is considered when faced with this difficult issue.