Introduction

Since the mid- 2010s, the courts in England and Wales have been determining questions of sexual decision- making capacity, by reference not to the question of whether a person consented to a specific encounter, but to whether the person is capable of consenting to sexual activity. Consequently, the courts have reached further and further into the bedroom, with profound implications for the rights of those with cognitive impairments to express themselves sexually. In 2021, the question of how courts should consider the question of sexual decision- making capacity finally reached the Supreme Court in the case of A Local Authority v JB [2021] UKSC 52 (JB). In this chapter, we explore the clash of principles the case illuminates between the need for sexual consent to be true consent, and the need to support the exercise of sexual expression by those with cognitive impairments. We examine why the clash is so fundamental, including by reference to sometimes forgotten debates preceding legislation in both England and Wales and, for comparison, Ireland, and human rights arguments. Recognising that, whether or not it was inevitable that the law would assert an interest in questions of sexual decision- making capacity, it has now done so, we set out a way in which it may be possible to approach matters which may not eliminate, but may at least mitigate, the clash of principles that arises in consequence of the law's involvement.

JB: the case and its implications

JB's case concerned a 38- year- old man with several physical and cognitive impairments, in whose life the local authority had significant involvement. Unlike many of the previous cases in this context, the concern on the part of the local authority was not that JB might not be able to give consent to sexual activity proposed by others (as often arises in the context of potential exploitation or abuse). Rather, the concern was that JB would be at risk of engaging in a course of sexual activity that might not have the consent of a prospective sexual partner. Indeed, on the evidence before the court (which had not at the time of the case been the subject of judicial determination), it was quite clear that JB was actively seeking to initiate sexual activity, potentially with women who either would not, or could not, give consent.