Judge hits out at “irresponsible” media reporting of case on capacity to consent to sex

A Court of Protection judge has strongly criticised media reporting of a case involving whether a woman had the capacity to consent to sex with her husband.

Mr Justice Hayden said in the case brought by the London Borough of Tower Hamlets that much of the media reporting had been “sententious and, in some instances, irresponsible” and had frightened the man involved sufficiently for him to disengage from the proceedings.

In NB, Re (Consent to sex) [2019] EWCOP 17 the judge said he would reserve judgment and wished to give the man AU a further opportunity to participate.

A woman NB, who has a general global learning difficulty and a communication impairment, became the subject of a safeguarding review after she made remarks to her dentist about her relationship with her husband, which caused concern that she might be vulnerable to sexual exploitation.

An assessment by a clinical psychologist concluded that NB was unable to demonstrate an appreciation of why people got married, separated or divorced and lacked an understanding of the association between sexual intercourse and pregnancy.

It was also considered that she was unable to communicate the concept of refusal of sex to her husband.

But the judge said: “There is also evidence that indicates that NB very much enjoys the status of marriage, is affectionate to her husband and, on occasion, initiates sexual relations.

“The primary issue before the court is whether NB truly has the capacity to consent to sexual relations.”

After a hearing in March, Hayden J had encouraged the Official Solicitor to secure AU legal representation and a solicitor was appointed.

“Unfortunately, the case attracted a great deal of media coverage, this notwithstanding that no argument had been heard and no judgment delivered,” the judge said.

“A great deal of the comment was sententious and, in some instances, irresponsible. It is considered, by the Official Solicitor and the applicant local authority, that the impact of that publicity frightened AU very considerably, leading him to believe that he was likely to be sent to prison.

“He has left the party's flat and disengaged with these proceedings. It seems that he visited a solicitor, local to where he lived, who may have given him poor advice.”

The judge said it “seemed entirely artificial” to try to assess NB’s ability to consent to sex in general when in reality AU was the only person with whom she would have sex.

He reserved judgment so “that I can take the time to look carefully and in some detail at the case law and its applicability to the facts of this case.

“It would appear, that it requires to be said, in clear and unambiguous terms that I do so in order to explore fully NB's right to a sexual life with her husband and he with her, if that is at all possible.”

He added: “I also want to afford [AU] the opportunity to make submissions, through counsel, if he wishes to do so.”