Sunday, February 06, 2011

Court strips man of right to have sex.

The British Nanny state has gone one step further than most by stripping a man of the right to have sex based on the court's belief that the man is unable to make this decision for himself.

The man, only known in court records as Alan, is 41 years old. The man is clearly mentally challenged and has a low IQ. He was in care with the state due to his mental state and while living in care met another man named Kieron, which whom he developed a relationship.

But state bureaucrats argued that Alan isn't able to consent because he doesn't understand enough about sex to do so. But suggestions that Alan be given some basic sex education was dismissed by the same bureaucrats who argued such information would only "confuse" him.

The judge has ordered Alan and Kieron to end their relationship and put Alan under "close supervision" to guarantee that he does not have sex.

Under a 2005 law judges have the power to declare people mentally incapable of making their own decisions and then take those powers upon themselves. This includes the power to force people to have surgery, to force them to have abortions and force them to use contraception. It also includes, apparently, the ability to force people to never have sex again.

What is particularly bizarre is that the judge said Alan is incapable of making the decision to have a relationship with Kieron because he (Alan) didn't understand how sex between a man and woman could create babies. The judge noted that Alan thought babies were brought by the stork. Even if one were to accept the argument that this lack of information means Alan could run into unwelcomed problems regarding causing women to be pregnant, his sexual relationship was NOT with a woman. This strikes me as being on par with denying a person the right to drive a car because they don't understand the mechanics of flying.

There are two aspects to this issue. One legitimate aspect is the man's ability to consent, but the second is the nature of the acts to which he is consenting. We allow individuals with little understanding of dietary needs to make decisions regarding the foods they eat, though government is trying to strip that right away as well. The consequences of eating a candy bar are relatively trivial. One doesn't need to have some high level of understanding to make that choice.

So what level of understanding is needed in this case. Given that pregnancy is clearly not a threat the only real potential problems might be health risks. But wouldn't a less intrusive—certainly less authoritarian—measure be simply checking Kieron and Alan for any diseases that might be contracted. If both are healthy in these matters, and the implications of the reports I've read indicate they are, then there is negligible risk on the part of Alan. His ability to consent should not be judged merely on the basis of his mental abilities but also as to the risks he is realistically facing. If both men have a clean bill of health then there is virtually no risk and Alan would appear to be capable to consent to something of no risk.

There might be a case to make sure that someone with Alan's mental abilities isn't wandering the streets having sex willy-nilly, with no understanding of the risks he faces. But that was not the issue the court addressed. It addressed what appears to be a monogamous relationship with one other individual.

But it appears the court has ONLY considered Alan's mental abilities and paid no attention to the actual risks involved in this specific case. Instead the judge dragged in unrelated issues, such as a woman becoming pregnant, even though Alan was not having sex with a woman.

I do not immediately dismiss the necessity of a court to make decisions in those rare cases where a person's individual mental level is so low that they are incapable of informed consent. But informed consent should not be seen in a vacuum but understood in the context of what it is that the person is wishing to consent to. That is something the court failed to do here.

Labels: ,