A perverted ruling that degrades us all

Just under a week ago, a 29-year-old woman was banned by a UK court from having sex. Anyone caught having sexual contact with her, consenting or otherwise, could face charges of sexual assault or rape. The woman, known only as H, became subject to the ruling by the Court of Protection on the grounds that her autism, ‘mild learning difficulties’ and low IQ meant she was incapable of consenting to sexual activity.

It seems bizarre that any court would be able to make such an order. But this is no ordinary court. The Court of Protection is designed to deal specifically with issues involving those deemed to lack the capacity to resolve issues for themselves. Usually, this involves allocating interests in wills where someone is deemed to have gone beserk while drafting it. However, when it comes to people with learning difficulties, the Court of Protection is given spectacular power to meddle in the name of maintaining their ‘best interests’.

The judgement in H’s case, when read in full, reveals an institutional obsession with her sex life since childhood. Social services had expressed ‘concerns’ about H’s sexual behaviour since she was seven years old. Reviewing her files, Mr Justice Hedley concluded that the evidence established H was ‘deeply sexualised’. The nature of the concerns or the exact contents of the notes held by social services were not discussed in the course of the judgement, but a transcript of an interview H had given to a psychiatric hospital in 2009 was quoted, where H admitted to ‘engaging in sex with multiple partners at the same time, including a group of much older men’. Furthermore, she ‘considered that she was bisexual’ and had engaged in ‘oral and anal sex’ and ‘attempted to have sex with a dog’. The evidence led the court to decide that H needed protecting from her own behaviour to the extent that it could ban her having sexual contact with anyone at any time.

But can anyone really say this is in her ‘best interests’?

Bestiality aside – and I realise it is a big aside – this woman had done nothing illegal or even wildly unusual. Besides, in modern Britain, even those who have sex with animals are more likely to end up on an edgy Channel 4 documentary than in front of a judge. The real difference between H and anyone else with an unusual sexual lifestyle was that she was autistic. In the eyes of the authorities, her autism gave them carte blanche to intervene and impose a significant, legally binding restriction on her liberty on the grounds that she was ‘vulnerable’.

Admittedly, we do not know all the facts. But this level of intrusion is disproportionate, hysterical and betrays a fundamental unwillingness to support the independence of people with learning difficulties. I spent four years working with autistic people in their late teens and early twenties. They would frequently display behaviour that was ‘sexually unusual’. Most of the time, it was a little more extrovert than the staff were used to. But the best homes that I worked in recognised that this behaviour, even though it took an unusual form, was an inevitable part of growing up, whether you were autistic or not. At its root was the same adolescent confusion felt by many young people. Moreover, the outcome usually involved the same sexual humiliations, mistakes and informal reprimands that most teenagers are familiar with by the time they get to university.

The problem with H was that she took her curiosity too far in the eyes of the authorities. Of course her case was more extreme than others. But it is telling that none of the many institutions involved in her life, who had been charged with her care and presumably with encouraging her to live as independently as possible, had considered the possibility that she might like and enjoy sexually unusual behaviour. Instead, the assumption from all concerned was that she was incapable of forming any independent sexual preference whatsoever.

This is the reason the judgement sets a dangerous precedent. The lawyers will tell you that H’s judicially endorsed chastity belt will be reviewed periodically to ensure that it remains in her best interests. But the law as it stands grants the courts a broad discretion to decide what is in someone’s ‘best interests’. What if they decide that autistic people lack the capacity to make other lifestyle choices? And what about other so-called ‘vulnerable’ groups? Perhaps people with Down’s syndrome will be deemed not ‘capable’ of deciding that they are gay or want to get married? There is an authoritarian impulse behind this judgement and the law that governs it. We should not believe the judges if they tell us it is just a one-off.

At a time when informal networks of support have disintegrated, it is inevitable that people with significant learning difficulties will require a level of state support and intervention. But these interventions should always take as their starting point the assumption that people with learning difficulties are entitled to live and express themselves however they choose. The old phrase remains apposite: hard cases make bad law. This judgement represents a sad depletion of that informal space that is usually given to those working with autistic people to assist in their sexual development, and a grave intolerance for the idea that people with learning difficulties are capable of making up their own minds.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.