The right to choose to engage in sexual intercourse, or even a sexual act, relies upon the powers contained under the Sexual Offences Act 2003 as well as art.8 of the ECHR (Right to respect for private and family life). However, when disability fetters that discretion, the court is required to exercise greater consideration of exactly how such a vulnerability intervenes.
In summer of 2006, a 28 year-old woman suffering with schizo-affective disorder and an IQ of 75, found herself confronted by an aggressive man known to be suffering from metal health issues, and coerced into a situation whereby the defendant forced the victim to perform oral sex against her will.
Upon indictment, the defendant argued that while her illness caused fluctuating symptoms, she was at the time of the alleged offence, able to choose whether or not to engage in the act. When directing the jury, the judge remarked that in order to secure a conviction they must agree that the victim:
“[W]ould be unable to refuse if she lacked the capacity to choose whether to agree to the touching…for example, an irrational fear arising from her mental disorder or such confusion of mind arising from her mental disorder, that she felt that she was unable to refuse any request the defendants made for sex.
Alternatively, [she] would be unable to refuse if through her mental disorder she was unable to communicate such a choice to the defendants even though she was physically able to communicate with them.”
With the defendant duly convicted, he immediately appealed, during which the Court of Appeal both acknowledged and supported his original defence through Re MM, in which the court held that:
“Irrational fear that prevents the exercise of choice cannot be equated with lack of capacity to choose.”
However, when presented to the House of Lords under challenge by the Crown, close examination of s.2(1) of the Mental Capacity Act 2005 revealed that:
“[A] person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain.”
While s.30(1)(c)(d) of the Sexual Offences Act 2003 states how a person is guilty of an offence if the victim is unable to refuse:
“(c)…because of or for a reason related to a mental disorder, and
(d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.”
This is further supported by s.30(2) which states that a sexual offence is recognised when:
“(2) B is unable to refuse if –
(a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or
(b) he is unable to communicate such a choice to A.”
On this occasion, the House held that when placed into such a traumatic and hopeless situation, the victim had been unable to neither decide nor refuse the advances of the defendant, therefore there could be no doubt as to the soundness of the original conviction. It was for these reasons that the appeal was upheld, while the House reminded that had the victim been held to have capacity but been unable to communicate her refusal, the defendant would have been otherwise liable for statutory rape under ss.1 and 75(2)(e) of the 2003 Act.
“[T]o be able to make a decision, the person concerned must not only be able to understand the information relevant to making it but also be able to “weigh [that information] in the balance to arrive at [a] choice…”
“One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place.”