The Supreme Court has decided that a 37-year-old man with a learning disability and autism, known as ‘JB’, does not have capacity to consent to sex.
JB’s case got taken to court after he expressed a strong desire to have a girlfriend and engage in sexual relations. However, due to his previous behaviour towards women, his local authority contended that he cannot safely be left unsupervised with them.
The local authority applied to the Court of Protection seeking declarations as to JB’s capacity in various areas, including his capacity to consent to sexual relations.
Expert evidence found that while JB understands the mechanics of sexual acts and the risks of pregnancy and sexually transmitted diseases, his understanding of consent “is lacking”.
The Court of Protection maintained, however, that it is not necessary for a person to understand the need for their sexual partner’s consent, and said that JB does indeed have the capacity to consent to sex. But, the Court of Appeal disagreed.
The Court of Appeal held that to have capacity to engage in sexual relations, a person needs to understand that their sexual partner must have the capacity to consent to the sexual activity and must in fact consent before and during the sexual activity.
The case was then taken to the Supreme Court, after JB disagreed with the Court of Appeal’s ruling. The Supreme Court dismissed JB’s appeal, and agreed with the Court of Appeal that a person needs to understand that their sexual partner must consent before and throughout the sexual activity.
The supreme court’s ruling is final and JB cannot make any further appeals.
