Introduction

This chapter considers the legal test for capacity to consent to (or engage in) sexual activity at the boundary of the civil and criminal law. This is an area that has been under- explored, with focus tending to be in the respective silos of each jurisdiction. Instead, we combine our expertise as a mental capacity law scholar and a criminal law scholar, to consider the relationship between these two distinct branches of the law. We argue, drawing on new materialist theories (Barad, 2003; Barad, 2007; Garland- Thomson, 2011; Conaghan, 2013), that the boundary between the civil and criminal law on capacity to consent to sex is permeable and, moreover, that the underpinning justifications for the civil and criminal law regarding capacity to consent to sex are fundamentally the same, with divergence primarily in relation to the procedural safeguards in the respective jurisdictions. We suggest that strengthening the procedural safeguards of the civil law, specifically the Court of Protection (CoP), is a more productive way forward than reinforcing the perceived boundary.

This tension between the civil and criminal law came to the fore following the Supreme Court decision in A Local Authority v JB (JB), one of the few appellate decisions concerning the operation of the Mental Capacity Act 2005 (MCA), and the catalyst for the discussion in this edited volume. By way of background, we first see an attempt at defining capacity to consent to sex by Munby J in X City Council v MB, NB and MAB; with subsequent interpretation under the MCA, consent to sex jurisprudence soon became a minefield. As decisions about consent to sex are excluded from the best interests approach of the MCA, where the CoP is called upon to assess capacity to consent to sex it is concerned with whether or not an individual has the general capacity to consent, rather than capacity in relation to a specific individual.

In JB the Supreme Court affirmed the principle that it is necessary for the decision maker to understand that both they and the other person involved must give consent to the sexual activity in question, thereby recentring the role of consent in mental capacity law.