If Heretic TOC were to put it about that the American Psychological Association supports an age of consent of eight, you might think I was having a laugh. You would be right, too, except that when the opinions of over 300 doctoral members of that august and conservative organisation were surveyed on what assessment criteria they thought would show capacity to consent, they came up with very basic factors, such as knowledge of the consequences of sexual behaviour, that an earlier study by one of the same researchers had shown could be met by those with a mental age of eight.
The reason it was possible to come to such a conclusion without igniting an even more explosive controversy than the Rind et al. Affair, is that the sexual rights of mentally impaired adults were at issue, rather than those of children. The issue of mental impairment arose here, it will be recalled, in the context of a reader’s suggestion – soon hotly contested – that anti-androgen treatment might sometimes be in the best interests of a mentally impaired young man. Rather than going straight back to that emotionally charged issue, it might help to check out some underlying principles and research relating to the mentally impaired.
About ten years ago, and still in my files, is an analysis carried out by an Ipce member (so blame him if it is wrong!) on a paper in the Journal of Forensic Neuropsychiatry, titled “Assessing competency to consent to sexual activity in the cognitively impaired population”, by a certain Carrie Hill Kennedy. A “Sexual Consent and Education Assessment” instrument was used, with two dimensions, “sexual knowledge” and “safety practices”, indicating the ability to make safe decisions. Those judged competent had, on average, an IQ of 65 and an adaptive behaviour age of 9.4 years. Those judged incompetent had average IQ 46 and adaptive behaviour age 6.7 years. This would suggest, at an intermediate position, that competence is achieved at around 8.2 years, and IQ 55.
Research of this sort would once have been unthinkable. A century ago it was regarded as imperative that mentally impaired people should be prevented at all costs from having an active sex life. In the wake of Darwin’s theory of evolution and its emphasis on “the survival of the fittest”, the eugenics movement of the late 19th century proposed selective breeding of humans to reduce intellectual disabilities. That meant making sure the genetic quality of “the stock” was not reduced by letting “idiots” (IQ 0-25), “imbeciles” (IQ 26-50) or “morons” (IQ 51-70) make babies. In those days, even before the early 20th century invention of IQ tests, people judged mentally defective were likely to find themselves warehoused in asylums where the sexes were strictly segregated – including even couples who had married before being institutionalised. In a number of countries, including the United States, Canada, Sweden and Germany, sterilisation was practised.
Eugenics has since become unfashionable but there are still very real concerns over mentally impaired people having children they are incapable of looking after, or imposing themselves on a sexual partner because they do not know any better, or themselves being vulnerable to exploitation. Against this, though, in recent decades the development of human rights thinking has meant that more liberal possibilities are being investigated and embraced, at least within the realms of empirical research (as we have just seen) and legal theory. The latter has gained a foothold in the UK via the European Convention on Human Rights, especially Article 8, “Right to respect for private and family life”, which in many respects (including, for instance, gay rights), has been interpreted in a remarkably radical and pioneering way by the courts.
The Mental Capacity Act 2005 in England and Wales reflects this positive spirit in its title (“Capacity” not “Incapacity”) and in five principles set out in the Act, starting with the assumption that a person must be assumed to have capacity unless it is shown to be absent. Another, rather startling, principle is that “A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision.” We all make unwise decisions sometimes and the Act – wisely, Heretic TOC would say – recognised that the freedom to do so is important, at least within limits that have regard to the “best interests” of a person who lacks capacity.
But therein lies a problem, even though acting in someone’s “best interests” sounds so reasonable and the phrase is so familiar and well established in law: the courts are often charged, for instance, with making decisions on behalf of children which are “in the best interests of the child”. The difficulty, as a judge said in the High Court of Australia, is that “in the absence of legal rules or a hierarchy of values, the best interests approach depends upon the value system of the decision-maker.” In other words, no matter how permissive the statute law is, restrictive values will prevail if the statute is at odds with a wider climate of opinion, especially among the mental health authorities and the judges.
In present day Britain and other developed countries, this climate of opinion is steeped not in eugenics but in victim feminism: vulnerability to exploitation through imbalances of power are emphasised – very clearly so, for instance, in the Home Office consultation paper Setting the Boundaries: Reforming the law of sex offences, which set the tone for the 2003 Sexual Offences Act. This Act comprehensively reformed the law in this area, including provisions in respect of those with “a mental disorder impeding choice”. The feminists had a problem though: they could not fashion a law which “protected” the mentally impaired to the extent of completely denying them a sex life, because this clashed with the ECHR’s Article 8, newly built into UK law via the Human Rights Act 1998, which came into effect in 2000.
In practice, however, the “best interests” doctrine has provided a significant loophole. One way or another, what seems to be emerging from case law since the Mental Capacity Act is a series of judgments that emphasise incapacity rather than capacity. In a case reported in August for instance, just two months ago, a mentally impaired woman was prevented from living with her husband when he finished serving a prison sentence – a decision criticised by the Official Solicitor to the Senior Courts.
Unwanted pregnancies, and giving birth to children the parents are incapable of looking after are real issues. These were hardly problematic, though, in the 2011 case of a gay man with an IQ of 48, said to have “a vigorous sex drive”. It was not disputed that he was happily in a relationship with his male partner but a court decided he lacked capacity to consent – although his IQ is a fraction higher than the average of those judged competent in Kennedy’s research, noted above. An online commentator remarked: “If neither he nor his sexual partner is being abused then I don’t see the problem. In fact, if he has a ‘vigorous sex drive’ it’s probably better for everyone he have an appropriate outlet for it instead of frustrating it until he finds an inappropriate one.”
A mildly encouraging feature of the case is that the judge offered some hope, based on the fact that the test of capacity does not set the bar high. It just requires an understanding and awareness of the “mechanics of the act”, “that there are health risks involved” and that sex between a man and a woman may lead to pregnancy. He ruled that the council should provide him with sex education in the hope that he would then be able to pass the test.
The significance of this and similar judgments, I suggest, lies in the fact that in one area of law, dealing with mental capacity, it is being established that sexual consent requires neither a sophisticated level of informed consent, nor a mental age anything like as high as the age of consent in Britain (16) or many American states (18), nor a proven level of emotional maturity, nor the ability to make wise decisions. If an adult with a mental age of eight has the capacity to consent to sex, it is not obvious why an average child of eight would be lacking in that capacity, especially if provided with the requisite information through sex education.
That is Heretic TOC’s primary thought for today but a further provocation arises from another very recent judgment, again made in the UK in August this year. In the first time a UK court has made such a decision, a High Court judge agreed to the sterilisation of a man because it is “in his best interests”.
And you know what? I think the judge was right. It was a pro-sexual decision. It allowed the man’s sex life to continue.
Referred to as “DE”, the 37-year-old was said to have an IQ of 40. He was deemed capable of consenting to sexual relationships but could not properly make decisions about contraception. The judge said a vasectomy could take place after hearing that DE did not want to become a father again, and another child could cause him “psychological harm”. He already has a young son, born in 2010, with his girlfriend. A routine had been in place to stop the man meeting his girlfriend without supervision, to “keep them safe”. Now, thanks to the wise decision of the court, it has become possible to remove this intrusive and frustrating intrusion into the man’s private life without any fear of disastrous consequences.
Carrie Hill Kennedy: Assessing competency to consent to sexual activity in the cognitively impaired population. Journal of Forensic Neuropsychiatry, 1(3) 1999: 17-33
Carrie Hill Kennedy & John Niederbuhl (2001): Establishing Criteria for Sexual Consent Capacity. American Journal on Mental Retardation: November 2001, Vol. 106, No. 6, pp. 503-510.
Alain Giami: Sterilisation and sexuality in the mentally handicapped. European Journal of Psychiatry: 1998: 13 (Suppl. 3), 113-119.