I’ve just written up a case, on Pink News, about a 41-year-old man who isn’t allowed to have sex with another guy. Homophobia? Nah. Because he’s intellectually challenged – and therefore decisions as to his personal welfare can lawfully be sub-contracted to a secretive body known as the Court of Protection.
A transcript of the case can be had from Bailli: it took place just over two weeks ago, and as with many legal cases, it has only hit the public arena as the court got around to typing it up. It contains some fine argument about the nature of consent: how you can tell if someone has the capacity to consent and, in the end, the judge decides it boils down to three criteria:
– knowing how to do it (sex)
– knowing the health risks
– understanding the pregnancy risks
Since we are talking anal guy-on-guy stuff here, the last criterion sort of kicks into touch: and it is clear that the focus of this case – a man called “Alan” – knows enough to do what he’s doing, or he wouldn’t be in court.
So in the end, its about health risk and whether he understands and whether the psychiatrist or medical professional who interviewed him thinks he…
Oh. Wait a minute. This is all very interesting, but what the fuck? The guy enjoys having sex. He is doing no harm. No harm appears to be being done to him. He doesn’t articulate the health risks too well – but if that was a criterion applied more widely, there’d be a lot of people doing without sex on a daily basis.
This is like, a question waiting to be unasked. What the hell business is it of his local council what he gets up to? ANd why do they think they have any right to be supervising who he has sex with or when he can masturbate (I kid you not).
No. This feels like yet another of those cases that are becoming so familiar, of professionals getting together and building a consensus around what is “correct” and “normal” behaviour and then enforcing it on an individual.
We see it with intersex (surgeons helpign parents to “normalise” their little girls): we see it with women’s issues (where mostly male professionals are quck to lay down the law as to what counts as “normal”. We absolutely see it in respect of transitioning, where the gates are held firmly closed by professionals until such time as you can prove NOT that you’re transsexual, but that your particular form of transsexualism fits their particular model.
And here it appears to apply to sex and disability and lord knows what else.
What is the matter with these folks? We wouldn’t apply this test of competence to other people having sex: and we wouldn’t apply this test to other activities. Like: badly preparing or storing food is likely to be a major health issue – but we don’t see courts pronouncing on individual capacity to decide what to eat for supper.
Nah. This is about paternalism and its about the big S: society’s eternal presumption that somehow any and all activity that includes sex in it is somehow more difficult and dangerous than ordinary everyday activities.
It does make me cross.