Too Stupid for Sex – Episode 2.
Mention the name Enoch Powell, and within minutes someone will reference his ‘Rivers of Blood’ speech. Arguably, and sadly, that speech did nothing to change the marching speed of the progressives.
It was not the only speech Enoch made, another, that had a dramatic effect on the British social history, is rarely mentioned.
Enoch was the Father of ‘Care in the Community’- indeed it might come as a surprise to you that this iconic piece of legislation, much beloved of the Left leaning liberals, was actually the result of determinedly right wing, heartless Tories, messing with the NHS.
Announcing the first wave of mental hospital closures at the Conservative Party Conference in 1961, Enoch Powell, then health minister famously evoked the brooding “water towers and chimneys” of the old asylums:
[I] imply nothing less than the elimination of by far the greater part of this country’s mental hospitals as they exist today. This is a colossal undertaking […] There they stand, isolated, majestic, imperious, brooded over by the gigantic water-tower and chimney combined, rising unmistakable and daunting out of the countryside – the asylums which our forefathers built with such immense solidity to express the notions of their day.
I doubt that any other ‘notion of the Victorian day’ received as many hand wringing column inches as the many and varied tales of unmarried Mothers who had been incarcerated for life following the birth of a baby. As the Civil Rights movement and the Philosophy of Personalisation gathered pace throughout the 1960s, the notion that anybody could ever, ever, have thought they had the right to infringe on human dignity and self worth to the extent of dictating whether or not they could enjoy such a basic human pleasure as Sex took centre stage. It was unthinkable to the new waves of Social Workers emerging from the red brick universities.
Fast forward 50 years, and we are once again locking up the sexually promiscuous. There may even be some merit in this notion – why should children be born to those who have not sufficient intellect to care for them runs one argument. However, where this argument had merit in the days pre-1960 when birth control was not an option easily available, and the moral argument was strongly bound up in the wishes of a society that still trooped out to worship on a Sunday morning and avow their adherence to the bible, today we are using the ‘extension of autonomy’ argument to achieve the same result.
The ‘extension of autonomy’ argument, for those who have not been around this blog long enough to get bored to tears with my obsession with the Court of Protection, is the means by which the Labour Government passed the Mental Capacity Act 2005, a Machiavellian piece of legislation which allows the government to make decisions on behalf of those they consider are making unwise ‘choices’ in life. (Beware smokers and the obese….!)
Yes, they have been at it again. Deciding who can have Sex and who can’t.
As with the earlier ‘Too stupid for Sex’ case, the decision turns on the ability to understand the health risks, rather than on moral grounds or the risks of pregnancy.
Health authorities and councils have previously asked judges to force women to take contraception and undergo surgery which would prevent conception – but in the latest case, Mr Justice Hedley was asked by a local authority to declare that a young woman, referred to only as H, lacked mental capacity to consent to sexual relations. He ruled that:
Moreover, she clearly had difficulty saying no but that is not the same as understanding that she had a choice: she understood that but had found it very difficult to practice.
In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse?
It is plain from the judgement that ‘H’ had a long and extensive sexual history that involved group sex, animals, and were possibly exploitative. At least one man had been convicted of attempted rape. However, Mr Justice Hedley has ruled that this was by choice, she ‘had difficulty’ in saying ‘NO’ but had the capacity to understand the concept.
You might think that this should have been the end of the case. You may wonder why ‘H’ is today under lock and key, deprived of her liberty, banned from having sex to the extent that should she do so, any man would automatically be charged with rape. You may even pause to wonder what is the difference between being locked up in a Victorian asylum for the moral sin of having sex whilst unmarried and being under lock and key in a Northern town for having sex whilst unmarried. Indeed, thanks to this ruling, ‘H’ will never be able to marry, since consent to having sexual relations is a requisite part of the marriage act.
To so ponder would be to underestimate the skill of the legal wordsmiths.
For the consultant psychiatrist, Dr. Xenitidis, extended his investigation into ‘H’s capacity to understand, from ‘understanding the nature of choice in having sexual relations’ to ‘understanding the health risks associated with various sexual practices’. There ‘H’ floundered. She didn’t fully understand the health risks. As so many of us don’t – to wit the various government health pamphlets and advertisements foisted upon us.
Mr Justice Hedley has ruled that:
I have therefore come to the conclusion that H lacks capacity to consent to sexual relations on two specific bases: first, that she does not understand the health implications of sexual relations, a matter made more serious in this case by her history of multiple partners indiscriminately accommodated; and secondly, that she cannot deploy the information she has effectively into the decision making process.
As a direct result of ‘H’ not being au fait with current health information:
H is supervised on a 1:1 basis at all times whether in or out of the property and she is not free to leave it on any other basis. Those who may enter the property are also carefully regulated. It is not that H does not have much to do, (she has a number of outside activities including two part time jobs) but that she cannot do it without 1:1 supervision.
This highly regulated regime evokes two observations: first, that it clearly constitutes a deprivation of liberty and indeed a DOLS standard authorisation under Schedule A1 of the Mental Capacity Act 2005 is in force and its renewal will be sought; and secondly, the purpose of these restrictions is to prevent H from engaging in sexual relations (which she would otherwise willingly do) because she does not have capacity to consent and they will be potentially exploitative and damaging.
We have come full circle. Once again we are locking up young women (and men) who are having sex that the authorities disapprove of, the only difference being that we no longer use the Bible as the basis of our deliberations, now we pretend that they have had their ‘autonomy extended’, and that they have asked the law to impose the ‘self-discipline’ that it judges they should have imposed for themselves.
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February 13, 2012 at 16:55 -
Do you not realise that the real purpose of all these deliberations and interventions by the state appartachik is about keeping the ‘professionals’ such as social workers and learned judges well employed and allowing them the belief they serve some inherently useful purpose in life by depriving others of their liberty, whilst retaining their own.
Much too depressing to think what the world would be like without such skilled persons for the likes of ‘H’ and those like her who are unhappy at their being deprived of their rights to personal lives. No one has a right to their life!
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February 6, 2012 at 23:53 -
Remove ovaries?
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February 6, 2012 at 17:24 -
This is a dreadful problem; Goebbels and Hess would have found it simple – and reinforcing.
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February 6, 2012 at 11:15 -
The road to hell is paved with good intentions……..
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February 6, 2012 at 10:30 -
Oh this is a bugger of a post, if you don’t mind my typing so. Or ‘thought provoking’ as his Monkness more politely said. Am having an ‘on the one hand’ and then ‘on the other hand’ moment.
On the one hand depriving anyone of their liberty when they have not committed a crime, been tried and found guilty by a jury of their peers, is wrong in principle.
On the other hand – reality has a habit of coming along and giving ‘principle’ a damn good kicking. It sounds like this woman has been taken advantage of by some pretty unpleasant men in some pretty unpleasant ways. Exploitative is a lovely word that doesn’t burden us with the gory details but those details would make my blood boil. Bad people seem to smell out vulnerability. So yes, if I knew this woman personally I would desperately want to protect her. But……Lets be honest, there are a lot of women and men out there in exploitative relationships. Are councils going to try and fix all of those? I know people who have made terrible choices – am I their keeper?
Where to draw the line between protecting an individual and depriving that individual of their autonomy to make their own decisions – good and bad? I find the sleekit, weasel reasoning used in this case problematic. If you can’t make the case on understanding choice then you just have to let it go. And I’m afraid ‘forced contraception’ falls to the same argument. If this woman understands she can use contraception and has the ability to take use it but chooses not to, then……..
Have I mentioned this is a bugger of a post?
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February 6, 2012 at 10:42 -
“Lets be honest, there are a lot of women and men out there in exploitative relationships. Are councils going to try and fix all of those? “
If it means continued employment for their little empires, then I would suspect the answer might be ‘Yes’…
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February 6, 2012 at 10:01 -
I know this sounds a bit daft, but amongst all these ‘assessments’, presumably someone kind has sat down with ‘H’ and explained the various dangers?
Suppose they have, and ‘H’ has said, in effect, “I don’t care”, then apart from the babies issue, who else’s business is it?
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February 6, 2012 at 10:25 -
The prospective partners on to whom she could pass any infection? You could argue they should protect themselves against any perceived health risk… but then again, what if they, also, do not understand? Or care? And their partners?
And then there are those readers who would say the state should care because it will have to pay for any treatment “H” needs, and also for the treatment of anyone who becomes infected as a result of having sex with her.
No, I’m not saying these are arguments to deny her liberty. Roughly, I agree with Anna, contraception would be best, but how the hell are you going to enforce that?
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February 6, 2012 at 12:08 -
Hormone implant, coil or injection. The contraception is the easy part; one injection every twelve weeks and that’s it.
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February 6, 2012 at 12:29 -
You’re right… I was sloppy in assuming condom use (but I think that’s because I was focussed on the prevention of disease transmission).
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February 6, 2012 at 09:29 -
The focus should always be to maintain the maximum amount of liberties.
I see nothing wrong (in this case) with forced contraception as long as it is reversible (coil, hormone implants etc) to prevent accidental pregnancy. If she wanted to have children then that is a separate issue.
As regards heath risks many adults take risks already so I dont see that as a valid argument for such draconian restrictions. Every effort should be made to get her to use protection. A pragmatic approach would for her to have mandatory STI tests & treatment as required. If she does get an STI then there should be some protocol in place to prevent her from infecting partners while under treatment. Even if she gets a non-curable STI then that should not be an excuse to remove her liberties as long as her partners know she is infected.
She is doing nothing illegal.
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February 6, 2012 at 09:55 -
Sadly, with the advent of ASBOs, you don’t NEED to be ‘doing nothing illegal’ to find yourself in hot water, legally-speaking…
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February 6, 2012 at 08:59 -
Once again, I find myself speechless…
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February 6, 2012 at 09:00 -
Do you understand the health risks of remaining speechless?
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February 6, 2012 at 09:52 -
To my blood pressure…?
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February 6, 2012 at 08:51 -
She understands the concept on “no”, has difficulty in applying it (as do I as it happens) but doesn’t understand the health risks (like many other adults), if I read this right?
I’m with forced contraception as the least worst solution, condoms being the only effective option here given the purpose. Any man having sex with her without a condom is gilty of rape? Possible I guess. And if he fits one of the “wrong” type for the type of sex engaged in, and it breaks?
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February 6, 2012 at 08:56 -
“Any man having sex with her without a condom is guilty of rape?”
As is the law in Sweden, as that nice Mr Assange is in danger of finding out!
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February 6, 2012 at 10:13 -
Is he not accused of having been coercive or deceptive in some way regarding the use (or not) of a condom?
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February 6, 2012 at 11:12 -
Just have, “Condom use mandatory” tatooed above her welcome mat. Job done!
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February 6, 2012 at 11:16 -
Is this your coat EdP?
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February 6, 2012 at 11:22
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February 6, 2012 at 11:21
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