A less impaired vision of sexuality


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.



Hail, an improbable age of consent heroine!


Heroes, or heroines, do not come much more improbable than lawyer Barbara Hewson. Who would have thought that this champion of women’s rights, with a reputation to protect as a successful, high-profile advocate in leading cases, would suddenly throw caution to the winds and call very publicly for the age of consent to be lowered to 13, as she has done this week?

It’s a British story, and it has been all over the media here, replete with predictable reactions, including “shock” at the large London law firm where she is one of many barristers, who are all self-employed members of the “chambers”, or law practice team. It all kicked off with an article by Hewson in the lively libertarian online journal Spiked, to which sociologist Frank Furedi is a regular contributor: see After Savile: Policing as entertainment, mentioned here recently.

Hewson’s article, like Furedi’s, arose from the Savile “scandal” last year and Operation Yewtree, the massive police attention to “historic” so-called child sexual abuse that has been going on ever since, with seemingly almost daily arrests, especially of aging celebrities such as the entertainer Rolf Harris, the former pop star Gary Glitter, the DJ Dave Lee Travis, the comedian Jim Davidson and the PR guru Max Clifford, all of whom deny any offence. TV legend Stuart Hall, by contrast, recently pleaded guilty to offences which Hewson, with an admirable sense of perspective, dismissed as “low-level misdemeanors” involving teenagers.

She began her article in a starkly combative fashion:

I do not support the persecution of old men. The manipulation of the rule of law by the Savile Inquisition – otherwise known as Operation Yewtree – and its attendant zealots poses a far graver threat to society than anything Jimmy Savile ever did.

She goes on to compare the present moral panic with the one in Victorian England which led to the age of consent being raised from 13 to 16 in 1885. Turning to the present scene, she says the so-called abuse relates to relatively trivial matters routinely exaggerated by pressure groups such as the NSPCC.  The NSPCC and the Metropolitan Police Force, as reported here at Heretic TOC, produced a joint report into Savile’s alleged offending in January, called Giving Victims a Voice. It was noted here that this report outrageously treated the allegations as proven facts. Now Hewson lends the considerable authority of her legal standing to this point:

Note how the police and NSPCC assume the roles of judge and jury. What neither acknowledges is that this national trawl for historical victims was an open invitation to all manner of folk to reinterpret their experience of the past as one of victimization.

Quite. She says that the acute problem of proof which stale allegations entail also generates a demand that criminal courts should afford accusers therapy, by giving them “a voice”’, an infantilizing function that undermines judicial impartiality and fair hearings.

Hewson concludes with a trio of proposed law reforms: remove complainant anonymity; introduce a strict statute of limitations for criminal prosecutions and civil actions; and reduce the age of consent to 13.

Typifying the mainstream media response, the Daily Telegraph ran a column by another lawyer, Malcolm Underhill. Regarding the proposed age of consent reform, he wrote:

This suggestion must rate as one of the most foolish proposals on the issue of child welfare that has been laid before the public. If the proposal is adopted by Government, such a change would be a green light for paedophiles, sending the completely wrong message.

I love the “If the proposal is adopted by Government” bit, don’t you? Ha! We should be so lucky! Alas, one maverick lawyer’s speech does not a government policy make. But it’s a start. Meanwhile, the reality is that the craziness in the UK goes on, and is getting worse by the day. Remember, this from If cardinal sinners and lordly lotharios float your boat… , a Heretic TOC blog in March?

… can it really be…yes, it’s one of the nation’s favourite TV soap opera stars, charged with “child rape”. Plus one, two – no it’s three – God it’s gone up to four; bloody hell it’s FIVE musical maestros from one of the most famous music academies in the land: all of them facing the music for vilely fiddling with their violin students!

Guess what the figure is now for those music teachers? I was shocked by five of them being in trouble. Well now (or at the latest count), there are thirty nine, yes, THIRTY NINE, music teachers under investigation at that academy, Chetham’s school of music, plus one other, the Royal Northern College of Music, both in Manchester.

Enough already! Enough of this lunacy for one day!

Enough, too, in a way, for Heretic TOC, who now finds himself obliged to make an unwelcome but very necessary announcement. I love writing this blog and if I had the time I would gladly post a thousand words or more every day rather than roughly twice a week, which has been the usual rate since this “not the dominant narrative” started just over six months ago. Sadly, though, my time is coming under more and more pressure. I have a variety of other projects in hand which are too frequently being left on the back burner. This cannot go on. Accordingly, I have decided to post only once per week, or possibly only twice per month, from now on. This might even be a relief for readers struggling to keep abreast of all this heresy! With posts becoming somewhat less regular, though, it will become harder to know when a new post has arrived. Accordingly, for the benefit of those who have not already done so, I would suggest becoming a “follower” of the blog, so that you get an email each time a new piece is posted. All you need to do is press the “Follow” button in the brown bar across the very top of the page, just to the right of where it says Heretic TOC.

Taking the hex off a media word in edgeways


As a blog that aspires to rationalism, Heretic TOC abhors superstition: your enlightened host wouldn’t dream of crossing the road to avoid walking under a ladder or fret over what might happen on a Friday the 13th.

It is different, though, when the stakes are raised a bit beyond the ordinary, as they were a couple of months ago on the day of Heretic TOC’s launch. Those with good memories may recall that I mentioned (The media must be desperate, 8 Nov.) being contacted by several newspapers in the wake of the Savile affair, one of which was the Guardian. The others, I said, had offered money for information about celebrity members of PIE. But what about the Guardian? The reason for their interest was something I left hanging.

Looking back, I now realise there was perhaps a shameful touch of superstition at work. I didn’t want to “put a hex” on the project in question, which promised the prospect of getting a word in edgeways in the mainstream media. Well, it’s been “hexed” for a long time anyway, despite my caution, so perhaps this is the time to reveal all.

Back in October, the man from the Guardian was Jon Henley. He said his editor, Alan Rusbridger, was interested in doing a more wide-ranging article on the P subject. Rather than seeking to embarrass the famous, the idea was to explore with me why paedophilia had become the focus of such intense concern in recent years. Did I have any thoughts on why PIE’s campaign to liberalise the age of consent (AOC) laws had faltered, even back in the 1970s, and why our perspective had become steadily even more unpopular ever since?

As might be expected, I had plenty of thoughts on this that I was happy to share. A phone interview over an hour long duly ensued within a day or two. It went well. Henley’s questions were intelligent and reasonably well informed. Googling him, I had discovered a really interesting piece of his from about ten years ago on French intellectuals such as Michel Foucault, Roland Barthes and Jacques Derrida, who had all signed a radical petition back in 1977 calling for the abolition of the AOC. That was when he had been the Guardian‘s Paris correspondent.

A few days later, now into early November, I contacted Henley, who told me he had finished his 1500-word article and it had been accepted for publication. Ever since then, I have been given assurances by him personally and by the features desk that they intend to use it.

But when? I’m getting old. I’d quite like to see this article before I die!

My strong suspicion, I have to say, was that publication had been overruled by the Guardian’s numerous feminist writers: while the final decision must be the editor’s, he would be aware of the need to maintain some degree of consensus with his top columnists, to say nothing of not wanting to alienate the paper’s legions of women readers.

The latest installment of this long-running saga was yesterday. The Guardian were doing a charity phone-in: make a donation to their nominated charities and you would get the chance to speak personally to various Guardian writers, including Henley, and even with the big chief himself, Rusbridger. Right, Tom, I told myself: Go for it! Speak to the editor directly! Charm him into scheduling Henley’s piece without further ado! How could he refuse, especially as I would be supporting his charities at massive personal cost? – Well, quite a chunk out of my modest budget, anyway, but hardly big enough to smack of your actual bribery.

So, how did Mission Improbable but definitely not Impossible go? Not badly, actually. After calling at the scheduled start time in the morning, I was disappointingly told Rusbridger would not be around until the afternoon. So I was put through to Henley instead. Jon was a pleasure to talk to, full of seasonal cheer. And he assured me the article has not fallen victim to censorious opponents. On the contrary, he said, there is every chance it will be used at some time over the holiday period: it had only been left because it is the sort of article that will not date and can be used any time. After all, paedophilia may be out of fashion as a sexual activity, but it is always in vogue as a subject for journalism. So what better time to slot it in than when all the writers are too festively occupied to do much writing?

With this fresh, and very credible, assurance safely banked, I decided I did not need to bend Rusbridger’s ear after all. Or not this time. Back in March, though, I went along to the Guardian’s Open Weekend in London, where I attended a public session on the paper’s future and did manage to get a few minutes’ worth of private conversation with him, at the end. I can’t be sure, but that contact may have been a factor behind the decision to contact me in October. More about that, perhaps, another time.

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