Sex, Capacity and the Courts

Professor Rosie Harding, Professor of Law and Society, Birmingham Law School, University of Birmingham. Rosie Harding's research explores the place of law in everyday life, particularly in the contexts of ageing, disability, gender and sexuality. Her primary interests are in social justice and family law. Her work has a particular focus on the regulation and recognition of caring and intimate relationships. She uses social science methods including both qualitative and quantitative approaches to empirical research to investigate the place of law in everyday life, including everyday understandings of equality, law and legal discourse, and human rights. Her work is grounded in feminist legal theory and gender, sexuality and law, and has been supported by research grants from the AHRC, ESRC, British Academy and Leverhulme Trust.

She is author of Duties to Care (2017, Cambridge University Press), and Regulating Sexuality (2011, Routledge, winner of the 2011 Hart-SLSA Book Prize and Early Career Prize) and editor of Supporting Legal Capacity in Socio-Legal Context (Hart, 2022, with Mary Donnelly and Ezgi Taşcıoğlu), Revaluing Care in Theory Law and Policy (Routledge, 2017, with Ruth Fletcher and Chris Beasley); Ageing and Sexualities (Routledge, 2016, with Elizabeth Peel), and Law and Sexuality (Routledge, 2017). She was a British Academy Mid-Career Fellow from 2016-2017. In 2017 she was awarded a Philip Leverhulme Prize for Law. Professor Harding is Chair of the UK Socio-Legal Studies Association (SLSA), a Fellow of the Academy of Social Sciences, series editor of Law, Society, Policy (for Bristol University Press), and a Trustee of Changing our Lives.

Questions around capacity and sexual activity in the context of intellectual disability have generated significant activity in the Court of Protection since the Mental Capacity Act 2005 came into force. Early jurisprudence in that court built on pre-MCA case law that set a ‘low bar’ for capacity to consent to sex. As more complex cases have come through the courts, finer details of, and more complex questions about the relationship between capacity and sexual activity have come to be determined. Recent times have brought two significant decisions of the higher courts exploring the intersections between mental capacity law and the criminal law.

In A Local Authority v JB [2021] UKSC 52 the Supreme Court clarified the information relevant to the decision to engage in sexual activity; in Secretary of State for Justice v C (& others) [2021] EWCA Civ 1527, the question for the Court of Appeal was whether providing practical support to enable an intellectually disabled person to access a sex worker would be contrary to relevant provisions of the Sexual Offences Act 2003. In this paper, I explore the trajectories and outcomes of these cases in light of my empirical research about supporting legal decision-making. I argue that capacity law has moved in this direction (placing controls on the sexual lives of intellectually disabled adults) at least in part as a response to the inability or unwillingness of the criminal law to sufficiently prevent or provide redress for sexual offences involving intellectually disabled people.

This webinar is part of an open webinar series, hosted by CISC. To discover more please visit the Centre for Intimate and Sexual Citizenship and follow the Centre on Twitter.