Sexual decision-making: a change in the law is needed

Robin Mackenzie and John Watts (of the South London and Maudsley NHS Foundation Trust) have recently published an intriguing manuscript in the International Journal of Law & Psychiatry. Entitled ‘Capacity to consent to sex reframed: the need for an evidence-based model of sexual decision-making and socio-sexual competence,’ the authors argue that recent English legal cases have set a very low threshold for the capacity to consent to sexual activity. Indeed, the Court of Appeal stated recently that: “the ability to use and weigh information is unlikely to loom large in the evaluation of consent to sexual relations.” Mackenzie and Watts make the point that such cases significantly affect the legal status of such activities involving people who are diagnosed with either a learning disability, an autistic spectrum disorder or another neurodiverse condition.

This study has a principal focus on two recent legal cases that support the argument that the current test needs reframing from a relationship-centred perspective in favour of an evidence-based model of sexual decision-making.

The authors go on to argue that relevant training is essential for persons with a learning disability, autistic spectrum disorder or neurodiverse condition in order to promote socio-sexual competence. This is critical for resolving existing tensions between sexual rights guaranteed in international agreements, in criminal law provisions and in local authorities’ obligations to protect the vulnerable and sexual health concerns.

Mackenzie R and Watts J. Capacity to consent to sex reframed: IM, TZ (no 2), the need for an evidence based model of sexual decision-making and socio-sexual competence. International Journal of Law & Psychiatry 40(2015): 50-59.