The right of consent

Sex can be a tricky issue at the best of times. But when it comes
to trying to balance the need to protect people with learning
difficulties who may be vulnerable to abuse with the desire to
empower them to live as full a life as possible, it can become a
minefield.

The government has strayed into that minefield with its new Sexual
Offences Bill which includes a section strengthening the law to
protect people with learning difficulties from sexual abuse.

According to Mencap, this group is four times more likely to fall
prey to abusers than the rest of the population. And, where abuse
is suspected, the charity is calling for a “statutory test of
capacity” to determine whether informed consent was given by
someone who fully understood the consequences of their
action.

No one would deny that protection is crucial for those whose
learning difficulties are so severe that they are particularly
vulnerable. But many people with mild to moderate learning
difficulties, especially those living in group homes, already have
a hard enough time from some professionals if they want to have a
sex life.

Once word gets round that sexual activity with someone with
learning difficulties is to be punishable by life imprisonment then
there will be a danger that a mindset could take hold under which
people are told “you can’t have sex – it’s against the law”.

Meanwhile, there is Lord Skelmersdale, a former health minister,
telling peers that a person with learning difficulties can “never”
give informed consent to sex.

With attitudes like this being expressed at such a high level, is
it any wonder that people are extremely fearful for their rights?
The tension between protection and empowerment is at the heart of
social care practice and can never be resolved without listening to
service users.

And that doesn’t only mean talking to Mencap.