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Miranda Mourby: Capacity to consent to sexual relations - where are we now?
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‘When is it appropriate for society to intervene paternalistically in a decision or decisions that individuals make as to their sexual relations?' begins the judgment in
IM v LM AB & Liverpool City Council [2014] EWCA Civ 37. The answer now confirmed by the Court of Appeal is that in the context of adults who may lack capacity to consent to such relations this will depend on whether their decisions are being scrutinised in a civil or criminal jurisdiction.
When determining whether an alleged victim of ‘sexual touching of a person with a mental disorder impeding choice' (Sexual Offences Act 2003 s 30) had the capacity to make that choice a jury can consider the identity characteristics and behaviour of the defendant. In the Court of Protection however a person's capacity to consent to sexual relations in future should not be assessed in a ‘person specific' way even where the identity and attendant risks of the potential partner are well established.
In
Regina v Cooper [2009] UKHL 42 Baroness Hale stated:
‘it is difficult to think of an activity...
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