Sex and Capacity: The Management of Monsters?

Published date01 November 2013
Date01 November 2013
Sex and Capacity: The Management of Monsters?
Ralph Sandland*
The f‌irst consideration by a civil court of the test of capacity to engage in sexual relations – X City
Council vMB, NB and MAB – is as recent as 2005. This article places this and subsequent cases
in the historical context of the way in which the law has constructed the sexuality of persons with
intellectual impairment. The article argues that, beginning with a series of rape cases in the mid
to late nineteenth century, which recognised the concept of consent given through the expression
of animal instincts, the law has accepted and deployed a model of intellectual impairment which
understands expressions of sexuality in terms of an increasingly unstable opposition between
vulnerability and danger, understood as the presence or absence of instinct, and as indicating an
underlying ‘monstrosity’. The article argues that the historical continuity apparent in the modern
case law is unfortunate and should be rectif‌ied.
This article seeks to place the recent, and continuing, construction of a civil law
test for capacity to consent to sexual relations in the historical context of the way
in which law has constructed the sexuality of the intellectually impaired.
Although the common law has long been concerned with the issue of mental
capacity, its focus has largely been on questions of money, property and inher-
itance. In contrast, the f‌irst consideration by a civil court of the test of capacity
to engage in sexual relations – X City Council vMB, NB and MAB1(MAB)–is
as recent as 2005. MAB was not, however, a case wholly without precedent. The
judge, Munby J, was referred by counsel to a series of criminal cases in the
nineteenth century, in which men had been acquitted of, or appealed against
convictions for the rape of a female ‘idiot’ or ‘imbecile’, because the prosecutrix,
although (in modern terms) clearly lacking capacity to consent, had nonetheless
given a legally valid consent through the expression of her ‘animal instincts’.2
Not surprisingly, Munby J declined to follow these ‘by now very elderly’
authorities, ‘. . . in any event disf‌igured by acceptance of the doctrine . . . that a
mentally disordered person can legally consent to sexual activity if their “animal
instincts” take over’.3However, as I shall argue, traces of that ‘doctrine’ can be
found in the interstices of the judgment in MAB, and subsequent case law has
equated the expression of sexuality by a person with intellectual impairments
with the concept of instinct to an increasingly explicit degree.
Moreover, this is not the sudden re-emergence of a long-abandoned doctrine.
Although the line of cases repudiated by Munby J came to an abrupt end in
*School of Law, University of Nottingham.
2ibid at [73].
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(6) MLR 981–1009
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
1885, with the statutory creation of a new offence of unlawful sexual intercourse
with a female idiot or imbecile,4irrespective of her capacity or consent, the
‘animal instincts doctrine’ continued to have currency and underpinned the
Mental Def‌iciency Act 1913 (the 1913 Act). The 1913 Act, which introduced
a policy of state institutionalisation of ‘mental defectives’, with one main aim
being to control the expression of defective (instinctive) sexuality, enacted
further offences to prevent sexual activity involving a defective. Although the
1913 Act was largely repealed by the Mental Health Act 1959, the 1959 Act
did not revisit these offences. It was not until 2000 that the Law Commission
recommended their repeal and replacement with offences, now found in the
Sexual Offences Act 2003 (the 2003 Act), which criminalise sexual activity
with a person suffering from mental disorder, but only if that person lacks
capacity to give or refuse consent ‘because of or for a reason related to a mental
The Liberal Government which husbanded the 1913 Act into law claimed
that its purpose was ‘the protection of individual sufferers’.6Similar protectionist
intentions were embedded in the 2003 Act, although by 2000 it was recognised
that some, perhaps many, intellectually impaired people did in fact have capacity
to consent to sexual relations and should be entitled to the same rights to sexual
freedom as other adults.7As such, the 2003 Act seeks to strike a balance between
the ‘competing goals in need of reconciliation when issues of mental capacity and
consent are considered: the need to respect choices made by those who are
mentally disabled, and the need to ensure that such people are protected from
abuse and exploitation’.8The opening up of a space in which persons with
intellectual impairment can engage lawfully in sexual activity soon entailed the
necessity for civil courts to articulate a civil law test for capacity, and here too the
issue has been seen in terms of achieving a balance between sexual freedom and
the protection of vulnerability.
In this article I seek to unpack these concepts, of instinct and vulnerability,
and the relation between them. As Martha Fineman has noted, despite its
common use in various discourses, the concept of ‘vulnerability’ remains ‘grossly
under-theorized’ and ‘ambiguous’, and this ‘provides an opportunity to begin to
explore and excavate the unarticulated and complex relationships inherent but
latent in the term . . . the concept of vulnerability can act as a heuristic device,
pulling us back to examine hidden assumptions and biases that shaped its original
social and cultural meanings’.9The crux of my argument in this respect is that if
the use of the concept of vulnerability in this context is excavated, it is evident
4 Criminal Law Amendment Act 1885, s 5(2).
5 Sexual Offences 2003, s 30(1)(c).
6 Reginald McKenna, Home Secretary, introducing the Mental Def‌iciency Bill into the House of
Commons: HC Deb vol 53 col 221 28 May 1913.
7 G. H. Murphy and A. O’Callaghan, ‘Capacity of adults with intellectual disabilities to consent to
sexual relations’ (2004) 34 Psychological Medicine 1347.
8 Law Commission, Consent in Sex Offences: A Report to the Home Off‌ice Sex Offences Review
(London: Law Commission, 2000) para 4.6.
9 M. A. Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008)
20 Yale Journal of Law and Feminism 1, 9.
Sex and Capacity
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited.
982 (2013) 76(6) MLR 981–1009

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