Senior judge bans autistic woman, 29, from having sex

A senior judge has effectively banned a vulnerable young woman from having sex on the grounds that she does not understand the risks involved. Mr Justice Hedley said the 29 year-old, who is autistic and has an IQ of 64, lacked the mental capacity to consent to having sex and so made the “very restrictive” order to protect her best interests. He said she had previously engaged in risky behaviour with a number of people because she did not understand she could say no, and that she should be protected from “potentially exploitative and damaging” relations in future. The order not only means she is prevented from having sex, but also means anyone who tried to have intercourse with her could be charged with sexual assault or rape.

Mr Justice Hedley said: “It is strange, but nevertheless true, that even the freedom to make unwise decisions is one that the court is required to guard and only to restrict if and when the best interests of [the woman] so require.” The judge had been asked by a local authority to declare that the vulnerable young woman, referred to only as H to protect her identity, lacked mental capacity to consent to sexual relations and that her best interests required close monitoring by social services. Explaining his reasons in a judgement now made public, Mr Justice Hedley told how H had mild learning difficulties, atypical autism and a low IQ. She had been on an at-risk register as a child and led a “rather itinerant lifestyle” after her parents split up and her father died, and was kept in a psychiatric hospital for almost two years after being sectioned in November 2009.



By that time she was described as “highly vulnerable”, with one man having been convicted of attempting to rape her and her taking part in “exploitative and unconventional” behaviour with others including a “group of much older men”. She now lives with three other people in a house provided by the local authority, and although she has two part-time jobs she requires “1:1 supervision” and is not free to leave the building alone. The judge had to consider the “sensitive and difficult” issue of whether or not she was able to consent to sexual relations. He said it was impossible to establish a test of someone’s capacity to understand the moral component of sex, but it was possible to ask if they understood that they had a choice and could refuse another’s advances. It is also possible to decide if someone can weigh up possible decisions.

The judge concluded that H lacked capacity to consent to sex as “she does not understand the health implications” and “cannot deploy the information she has effectively into the decision-making process”. As sexual intercourse is required to consummate a marriage, he added that she also lacks capacity to marry. Under the Deprivation of Liberty Safeguards order to which she is subjected and the latest ruling, the restrictions “prevent H from engaging in sexual relations (which she would otherwise willingly do) because she does not have the capacity to consent and they will be potentially exploitative and damaging.” However the judge added that doctors believe H is capable of learning more about protection and health, and so the matter can be kept under review.