It’s an incredibly important issue and needs to be talked about way more. The article is really good. I was struck by this though:
“At the end of the day, everyone has the right to a relationship.”
Unfortunately, I suspect that’s not actually true. I don’t know, I’m no expert on this at all, but there seem to be pretty major issues when it comes to people who may lack capacity. Consider the Sexual Offences (Scotland) Act 2009 s 17:
“17Capacity to consent
(1)This section applies in relation to sections 1 to 9.
(2)A mentally disordered person is incapable of consenting to conduct where, by reason of mental disorder, the person is unable to do one or more of the following—
(a)understand what the conduct is,
(b)form a decision as to whether to engage in the conduct (or as to whether the conduct should take place),
(c)communicate any such decision.
(3)In this Act, “mental disorder” has the same meaning as in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (and related expressions are to be construed accordingly).”
If a person lacks capacity to consent to sexual activity according to this definition, then it does indeed look like they have no right in law to any sexual activity with anyone else. Have I interpreted that right? Does it seem that way to others here?
If that’s the case, if a support worker helps someone to have sex, but there is a question about their capacity, that support worker might be committing a sexual offence. Perhaps of:
4 Sexual coercion
If a person (“A”)—
(a)without another person (“B”) consenting to participate in a sexual activity, and
(b)without any reasonable belief that B consents to participating in that activity,
intentionally causes B to participate in that activity, then A commits an offence, to be known as the offence of sexual coercion.
There might be lawful ways through this, but the article doesn’t tackle them. Does anyone even know about this? It’s taboo enough supporting service users who have capacity to consent. But the taboo is even worse when it comes to people who may lack capacity but nevertheless clearly might want and benefit from a relationship. And also what of the role of supported decision-making? Can the risks involved with consent be mitigated sufficiently with really good support? I’ve come across these taboos several times in my work. It’s really awkward and can cause a kind of moral panic. It’s as if disabled people, especially those who struggle to make decisions under some circumstances or have high support needs, mustn’t be permitted into a whole area of what it means to be human.
Is this one of those areas where (understandable) risk aversion can lead to a whole population being denied what everyone else regards as one of the most, if not the most, important aspects of human existence?