A less impaired vision of sexuality

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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.

 

REFERENCES:

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.

 

 

The heinous crime of truth-telling

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Two men awaiting sentence in Britain’s latest child sex scandal face an exceptionally steep fall from grace. Unlike the stars whose celebrity sparkle has been so abruptly snuffed out in the last twelve months, following the torrent of allegations about the late Jimmy Savile, this pair have made their name not as mere entertainers but as pillars of the establishment and icons of probity.

They are a judge and a public prosecutor. The crime in which they conspired together and which has already destroyed their high-flying careers and good name is apparently considered – judging by the outcry – the gravest sex crime that can be perpetrated in modern society: they have told the truth!

As readers in the UK will be aware, I refer to Crown Prosecution Service lawyer Robert Colover, QC, and His Honour (now Dishonour!) Judge Nigel Peters QC, who, jointly and severally, did knowingly, wilfully and most guiltily commit an act of truth-telling in Her Majesty’s Court at Snaresbrook last month, contrary to the Inappropriate Truths Act, which has an existence in the minds of child “protection” lobbyists as real and substantial as any government legislation.

Colover has been suspended from prosecuting sexual offence cases pending a review by the Crown Prosecution Service (CPS), while Judge Peters’ comments are being investigated by the Office for Judicial Complaints. The seriousness of the case could not have been made clearer than by Prime Minister David Cameron, no less, who made it his job (in a notable constitutional development!) to pronounce judgement in the case himself. Handing down his verdict, the Prime Minister told the press the CPS was ”absolutely right” to label Colover’s comments “inappropriate”.

What, then, was the nature of this terrible truth-telling? This is not for tender ears, but it was this: in a case in which 41-year-old Neil Wilson was given an eight-month suspended jail sentence for sexual activity with a child, the prosecutor and judge both “blamed the victim”. They made the well substantiated claim, which has not been publicly rebutted on factual grounds, that the girl who was the 13-year-old “victim” was a more than willing participant in the sexual acts.

The girl reportedly looked older than her actual age and told the man she was 16, which is the age of consent in the UK. Wilson met the schoolgirl when she asked him to buy cigarettes for her while she was playing truant. She stripped out of her school uniform and performed oral sex on him.

In accusatory language Heretic TOC would not support, but which appears to have been backed up by the facts of the case, prosecutor Colover, said in court, “The girl is predatory in all her actions and she is sexually experienced. There was sexual activity but it was not of Mr Wilson’s doing; you might say it was forced upon him despite being older and stronger than her.”

Well, quite! Resistance would have been useless! The poor man was practically raped! The judge in effect agreed, saying that “On these facts, the girl was predatory” and had been “egging on” the defendant. He said his lenient sentence took account of this.

With a prosecution like that, it may be thought, the fortunate Mr Wilson hardly needed a defence lawyer, and indeed none was quoted in any of the reports I saw. What prompted this rare (these days, at least) outbreak of commonsense in court is as obscure as it is welcome, but Heretic TOC needs only to congratulate the Judicial Dynamic Duo!

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Observant readers will notice a gap of several lines (and some stars) after the last paragraph. I am just attempting to prove to myself than I can still write a reasonably succinct blog when I really try. The one above, at well under 600 words, is far shorter than many of my recent efforts, which have ballooned to thrice this length, and more. However, like poor Mr Wilson faced with his striptease Lolita, I still find myself powerless to resist going a bit further than I perhaps should. I must therefore place myself at the mercy of you, dear readers, as my judge and jury in this matter, and hope you will be as forgiving as the two QCs at Snaresbrook Crown Court!

One announcement I feel confident you will forgive:  a few moments ago, as I write, I was informed over the airwaves by the BBC that the latest celebrity show trial in Britain has ended in a verdict of Not Guilty. Michael Le Vell, actor in Coronation Street, one of the nation’s longest-running and most popular TV soaps, has been cleared of a number of CSA charges, including rape. I haven’t followed the case closely but I think it was one of those “his word against hers” allegations, with no corroboration. If that is so, the jury were right to settle for nothing less than a proper standard of proof.

And another bit of good news you may not have caught yet: Richard Dawkins has been making waves by saying he and other children in his school peer group had been molested by a teacher but “I don’t think he did any of us lasting harm.” Peter Watt, director of child protection at the National Society for the Prevention of Cruelty to Children, immediately went public, in effect to contradict him, insisting on the usual dogma of life-long trauma. An advocate of “listening to the victim”, he clearly did not have ears for this one!

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And now a bonus blog, offering a few reflections on the case of the Judicial Dynamic Duo:

1)      The girl was 13, which in English law is significant in terms of consent. If a girl below this age consents to sexual intercourse, any man who has sex with her is liable to be charged with rape, because her consent counts for nothing. But if she is over 13 and under 16 he can only be charged with the lesser offence of “sexual activity with a child”. This is because her consent is in effect taken into account as real and it acts as a mitigating factor. This being the case, the public outrage over acknowledging the active role of the child in the Snaresbrook Crown Court case flies in the face of the law. The competence of many young people under 16 to make important decisions in their life is also acknowledged in English law in what is known as “Gillick competence”, following the case of Gillick v. West Norfolk & Wisbech Area Healthy Authority, 1986. The highest court in the land, the House of Lords, ruled that those under 16 could give consent to medical treatment as long as they had sufficient understanding and intelligence to appreciate what was proposed and to express their own wishes. Lord Scarman identified the principle that parental rights yield to the young person’s own right to make their own decisions if they have this “Gillick competence”. Significantly, the medical treatment in question can include advice on contraception for sexually active youngsters. As the admirable lawyer Barbara Hewson recently noted, “It has been Department of Health policy since the 1980s that underage teenagers choosing to be sexually active should receive contraceptive advice and treatment, in confidence. Sexual health charities working with young people have been telling policy makers, for years, that the existing age of consent law does not deter those underage teenagers who are sexually active. And the UK’s teen pregnancy rate is one of the highest in Western Europe. Yet if one of these ‘Gillick-competent’ teens is involved in a criminal case, these uncomfortable facts are conveniently forgotten.”

2)      Have there been precedents for the Judicial Dynamic Duo’s approach? Definitely, but it’s been a while. In 1993 an 18-year-old babysitter who tried to have intercourse with a nine-year-old girl after climbing in her bed was freed on probation by a judge who described the child as “no angel”. Judge Ian Starforth Hill was unsurprisingly castigated for this remark by the appeal court. Even more notorious from a protectionist point of view were the remarks of Judge Brian Gibbens in a case 10 years earlier, that of William Watson-Sweeney, who admitted having sexual intercourse with a seven-year-old girl. The judge was clearly sympathetic to the defendant, a former soldier, twice wounded in action, who had a drink problem. His Honour made an unfortunate remark to the effect that people could get themselves accidentally into all sorts of problems in life. This emerged as the following headline in The Times: “Sex with children could happen to anyone accidentally, judge says”. Imagine how that would go down today, especially regarding intercourse with such a young child! Not that the “intercourse” was more than minimal: the penis needs only to slightly enter the labia to qualify. The judge pointed out that the child’s virginity remained intact.

3)      An even more fascinating aspect of the Watson-Sweeney case was reported in an appendix to a Home Office report some years ago. The defendant pleaded not guilty to rape on the grounds that the child – aged seven remember – had consented to sexual intercourse with an understanding of what that entailed. Remarkably, the court accepted that the girl’s statement that “she knew what mummies and daddies did in bedrooms” was sufficient evidence of her understanding of the true nature of the situation. (From Setting the Boundaries: Reforming the law on sex offences, Vol. 2 Supporting Evidence page 136, Appendix D2, Literature Review of Research into the Law of Sexual Offences Against Children and Vulnerable People, by Caroline Keenan and Lee Maitland).

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