8 - Reflections from Practice: The Legal Labyrinth of Sexual Capacity – Balancing Rights with Risks

Summary

Introduction

The previous three chapters vividly reveal the challenge for practitioners and those seeking to reform law and policy: namely, how should the law strike the ‘right’ balance between sexual freedom and freedom from sexual abuse so as to promote sexual autonomy and prosecute sexual offences? They raise essential issues and pose challenges to the empowerment and protection aims of what many see as a rights- based, person- centred Mental Capacity Act 2005 (MCA). Drawing upon the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), the ultimate challenge in relation to international norms is how to preserve legal capacity in sexual relations on an equal basis with those without disability.

‘Equal basis with others’

Squires and Morgan refer in Chapter 5 to a ‘gloriously ordinary life’ sought by disabled people where ‘We all want to live in the place we call home with the people and things we love, in communities where we look out for one another, doing things that matter to us’. In Chapter 6 Sorinmade and Peisah discuss the psychological and physiological benefits of sexual expression in later life, while looming large is the risk of being consigned to celibacy, even despite having a fully capacitous partner. They underline the highly risk- averse approach taken to meeting the intimate desires of those with disability, and the relative ease with which their most intimate affairs and activities are shared with family, using the justification of safeguarding.

In wider society age has a different resonance: consider Mick Jagger who had his youngest child at the age of 73 and got engaged to his 36-year-old partner when he was 79. Then there is Al Pacino, who fathered his youngest child at age 83 with his 29-year-old partner, making him one of the oldest fathers on record. Think about the wonderful female role models such as Judi Dench and Maggi Smith both still working at age 88, and the likes of Bob Dylan aged 82 and Bruce Springsteen a mere child at 73, Paul McCartney at 78 and Ringo Starr at 80: all still performing. Joan Collins is still touring at 90. Sexually active, glamorous, partnered many times; their relationships, actions and behaviour are not policed, except perhaps in the court of public opinion.