Protecting or patronising?

Jo Williams, incoming chief executive, learning
difficulties charity Mencap
“The prime aim of the Home Office review was the overhaul of some
outdated laws on sexual offences. But Mencap, Voice UK (which
campaigns on behalf of people with learning difficulties who have
experienced abuse or crime) and Respond (which provides
psychotherapy to people with learning difficulties who have been
sexually abused) saw it as an opportunity to challenge legislation
which talks about “mental defectives” which we all find
insulting.

“We support a change in the law because we believe vulnerable
people need more protection. We want to champion the right of
people who have profound learning difficulties not to be abused.

“There’s no argument that people with learning difficulties have a
right to engage in a sexual relationship if that’s what they want
to do. We are keen to make sure this legislation is only applied to
those with severe problems who really cannot consent to sex. So we
do have reservations about the fact that section 33 of the bill
talks about banning sexual activity ‘with a person with a mental
disorder or learning disability’. We will be lobbying for the words
‘severe or profound learning difficulty’ to be used.

“But the main thing is to say to potential perpetrators of abuse:
‘If you take advantage of a person who is extraordinarily
vulnerable you will face prosecution.’ At the moment they can get
away with it and the law needs tightening up.

“People with severe learning difficulties may not be able to tell
the difference between a sexual act and being medically examined or
between an act perpetrated against them and one done with them.
They may not be able to fully understand the nature or the possible
consequences of a sexual relationship.

“We are working on a definition of capacity to consent that can be
used to demonstrate that someone had the ability to know what was
happening to them. We set out the case for a proper test to decide
whether a person can consent to sex in the report Behind Closed
Doors. But, as we made clear then, this would only be used in cases
where there was a suggestion of abuse. There is no question of
‘testing’ people before allowing them to have sex.

“As a society we still have a long way to go with learning how to
listen – whether it’s listening to children who are being abused or
people with learning difficulties. So we need to work together on
this. There will be opportunities for people with learning
difficulties to challenge and influence the legislation as it goes
through the committee stage in parliament. And there will be
guidance to support the legislation which is where this issue of
consent will be teased out.

“But it’s important to stress that the idea behind all this is to
protect and also to empower vulnerable people who have problems
with communication and understanding. The last thing we want to do
is limit the opportunities of people with learning
difficulties.”

Karen Flood, member of the National Forum of People with
Learning Difficulties and the government’s Learning Disability Task
Force
“The first we knew about all this was when it came up at a meeting
of the national forum. Everyone was up in arms about it. It’s very
scary – like going back to the days when people told us what we
could and couldn’t do, when anyone who had a sexual relationship
was put away and if you got pregnant they took the child off you.
Some of that still goes on today.

“Anyone can be vulnerable sometimes. It’s not just disabled people.
But why should we have to prove we can consent to having sex? If
you tried to bring in something like that for non-disabled people
there would be murder.

“OK, you have to protect people who need protecting but we think
this is going too far. Just because one person gets abused you
can’t label everyone as at risk. The professionals are bound to try
and use it to take control and tell us what to do. People are
worried they’re going to be banned from having sex. Or they’ll have
to get permission before they can have a relationship. But even
people with severe problems might want to have a sex life. And why
shouldn’t they – even if they haven’t thought about all the
consequences or whatever? Do non-disabled people always think about
the consequences of what they do?

“I know people with learning difficulties who go out with
non-disabled people and they are dead happy. But what will happen
to them if this law goes through?

“We’re also worried about the section on not allowing people to
look at sexual photographs. That could prevent people with learning
difficulties getting sex education on how to keep safe.

“We also want to know what sort of questions they are going to ask
to find out if people can consent. We see this as treating people
with learning difficulties like kids. No one asked us what we think
about all this. Mencap speaks for its members but not for the rest
of us. They need to sit down and find out what people with learning
difficulties want to happen.

“But it’s a bit late now. They should have done it at the start and
got our backing. And we might have been able to say how they could
do it better. We’re always being told we should have choices and be
involved. But then the next minute it’s taken away from us.

“It’s lucky we have the national forum now as we get to find out
about things like this, then we can pass on the information to
people in our local areas.

“Before, when people were abused and spoke up, no one believed them
or took any notice. But now it’s like everything’s going the other
way and we don’t want that. We think everyone has a right to a sex
life, gay or straight, disabled or not.”