Research
You will find a complete range of our monographs, muti-authored and edited works including peer-reviewed, original scholarly research across the social sciences and aligned disciplines. We publish long and short form research and you can browse the complete Bristol University Press and Policy Press archive of over 1,500 titles.
Policy Press also publishes policy reviews and polemic work which aim to challenge policy and practice in certain fields. These books have a practitioner in mind and are practical, accessible in style, as well as being academically sound and referenced.
This chapter presents a doctrinal analysis of the issue of capacity to consent to sexual relations at the intersection of the civil and criminal law, exploring the various aspects of the Mental Capacity Act 2005 and the Sexual Offences Act 2003. The chapter starts with the position outlined by the Supreme Court in A Local Authority v JB, with which the authors agree, to argue that ‘consent’ as a concept ought to be part of the information relevant to a decision to engage in sex. It then goes on to explore the various boundaries between the civil and criminal legal frameworks regarding capacity to consent to sex, justifying the differences in approach through analysing their differing theoretical and policy functions. Furthermore, the chapter considers whether it is right to view the boundaries between the civil and criminal law here as fixed or unchangeable, and whether, instead, we might usefully learn from a hybrid approach to dealing with the problem of sexual offending towards vulnerable adults.
As shown throughout this edited collection, not only has the law around capacity, consent and sexual relationships recently undergone shifts in the form of the Supreme Court case of A Local Authority v JB [2021] UKSC 52, but it is an area of increasing importance for professionals and practitioners working in areas such as social work, health or supporting victims of sexual abuse. The aim of this collection has not been to resolve legal or practical issues, but to re/open some of the existing discussions and debates on mental capacity and sex, as well as offering new perspectives. In doing so, this collection has shown that such conversations and debates must not focus solely on the doctrinal questions which have historically tended to preoccupy lawyers but must also consider the challenges and opportunities the legal framework poses for disabled adults, and for professionals working in health, social care and sectors beyond. It is undoubtedly the case that A Local Authority v JB (JB), as well as many of the other decisions from the lower courts outlined in the Introduction and throughout the chapters, have precipitated a renewed focus on mental capacity and sex, often driven by legally and factually complex cases where there may be concerns about sexual abuse. The clarification offered by the Supreme Court in JB as to what is considered relevant information under the Mental Capacity Act 2005, as well as the relationship between the civil and criminal law frameworks, is – in many ways – to be welcomed.
This chapter discusses the legal regulation of sexual relations and intimacy from the middle of the 19th century to the coming into force of the Sexual Offences Act 2003 and Mental Capacity Act 2005 in the early years of the 21st century. The chapter demonstrates that this history is both spasmodic and episodic, with legal developments occurring only in fits and starts. The law as it stood at the start of the 21st century was patchy at best in terms of substantive content. What is equally if not more striking about this history is that it reflects systematic discrimination against persons with mental disabilities which has been of such depth that the very humanity of persons so categorised was put into question by the law.
This chapter explores the in-depth accounts of disabled women who have experienced delayed naming of sexual violence through a materialist feminist and a social model of disability lens. The findings presented in the chapter demonstrate the complexities involved in realisation. Realisation refers to the process of a victim-survivor reflecting on what had happened to them and coming to the understanding that their sexual boundaries have been crossed, resulting in them consequently labelling their experience as sexual violence and/or rape. The chapter suggests that the struggles women face are not always located with the individuals’ decision-making in/capacity. The feminist and social model approach adds an important dimension for thinking through the ideas of ‘vulnerability’, risk, agency, naming and how law frames and responds to these. Through this chapter, the reader is invited to reflect on the ways the Mental Capacity Act 2005 perpetuates a medicalised or individualised focus on disability, while masking some of the social factors which are present in experiences of sexual violence.
Sexual and intimate relationships for anyone can be challenging, emotional and rewarding. People with intellectual or cognitive disabilities, however, have often been denied opportunities to develop such relationships, thanks to a historical legal framework that considered them to be ‘defectives’, ‘monsters’ and in need of confinement, and professional practice that has been – and, in many ways, arguably continues to be – considerably risk averse. More recent developments in the law, in part driven by the empowering ethos of the United Nations Convention on the Rights of Persons with Disabilities, have been transformative. In England and Wales, the legal framework contained in the Mental Capacity Act 2005 and associated case law has attempted to give a clearer steer on how to assess a person’s capacity to make decisions about sexual relationships, as well as other types of decisions that may also be a feature of intimate relationships such as contact with other individuals, and the use of social media and internet. Within this legal framework, however, supporting people with decision making about intimate relationships remains complex, daunting, and requires a balancing of many principles, including how best to promote a person’s right to have sexual or intimate relationships, and the extent to which they should be protected from abusive or exploitative intimate relationships, or be prevented from possibly abusing others themselves.
Questions as to the mental capacity of an individual to consent to sex are an increasingly important aspect of legal scholarship and professional practice for those working in care. Recent case law has added new layers of complexity, requiring that a person must be able to understand that the other person needs to consent and can withdraw that consent. While this has been welcomed for asserting the importance of the interpersonal dynamics of sex, it has significant implications for practice and for the day-to-day lives of people with cognitive impairments.
This collection brings together academics, practitioners and organisations to consider the challenges posed by the current legal framework, and future directions for law, policy and practice.
This chapter focuses on the rights of people living with dementia to sexual and intimate lives from a psychiatric perspective. Older people, including people living with dementia, continue to enjoy active sex lives, but the legal position is for individuals engaging in sexual activity to give ‘here and now’ consent to such activities, creating legal uncertainty where there is doubt about an individual’s ability to consent. As a result, the current legal position can dissuade professionals and carers from allowing sexual relations to take place, resulting in discrimination reflecting ageism and ableism, and a violation of an individual’s rights to privacy and private life. We argue that more can and should be done to promote sexual intimacy among people living with dementia, requiring a shift from a medical view of the condition, to one which situates it within its social context.
This chapter explores the arguments presented by the authors in Chapters 5 to 8 and – using practice examples – reflects on their implications and significance for health and social care professionals engaged in supporting disabled adults. It suggests ways in which the law might be reformed in order to better reflect the lives of disabled adults and ensure they are better supported to engage in fulfilling sexual relationships, while also being sufficiently protected from sexual exploitation.
