A Down’s Syndrome sufferer was awarded £10,000 in compensation after social workers ordered his wife not to have sex with him.
The sex ban for the 38-year-old and his wife was imposed after the couple applied for fertility treatment, and a psychologist ruled that the husband did not have the mental capacity to consent to sex.
The wife was told by social workers that if she had sex with her husband she would be committing an offence that can be punished with a 14-year-jail sentence.
A Down’s Syndrome sufferer was awarded £10,000 in compensation after social workers ordered his wife not to have sex with him. File photo
The case was described as ‘unique’ by Court of Protection judge Sir Mark Hedley, who ordered the council which employed the social workers to pay compensation.
The award was made not because of the social workers’ threat or the suppression of their sex life, but because the local authority delayed in providing the husband with sex education. The psychologist had said a sex education course would give him the capacity to consent to sex.
Sir Mark did not name the couple and, in keeping with the habitual secrecy of the Court of Protection, the metropolitan council has also remained unnamed and will be shielded from public criticism.
The judge said in his ruling, delivered at the High Court in Leeds and published yesterday, that the couples’ sex life came to an end for almost two years on 27 March 2015.
The wife, he said, ‘was advised that she must abstain from sexual intercourse with her husband as that would, given his lack of capacity to consent, comprise a serious criminal offence.’
Under the Sexual Offences Act of 2003, clauses designed to protect vulnerable people from abuse make it an offence to engage in ‘sexual activity with a person with a mental disorder impeding choice.’ Conviction can bring a maximum sentence of 14 years in jail.
The wife was told that if she continued to have sex with her husband, social workers would take ‘safeguarding measures’ to remove either her husband or herself from the home they shared with his parents.
Sir Mark said the wife moved into a separate bedrom, a snub her husband could not understand. The judge said: ‘In order not to lead him on she significantly reduced any physical expressions of affection. The impact of all this on the husband is not difficult to imagine.’
The judge said in his ruling, delivered at the High Court in Leeds and published yesterday, that the couples’ sex life came to an end for almost two years on 27 March 2015
The council failed to provide the sex education course demanded by the psychologist until 27 June 2016, the judge said.
The therapist who ran the course reported, the judge said, that the husband ‘had made sufficient progress in all areas save the understanding of health risks from a sexually transmitted diseases. However, given that the husband and wife were in a committed monogamous and exclusive relationship, he questioned whether that was relevant information.’
The couple were finally given permission to have sex again after a further psychiatrists’s report and a court ruling compelled social workers to change their minds. They were told they could resume ‘a normal conjugal relationship’ on 2 May this year.
The judge said that the 2003 sex offences law took no account of whether or not a couple were married.
‘This case is unusual; indeed thus far it may be unique in being applied to a settled, monogamous and exclusive married relationship,’ Sir Mark said.
‘In those rare cases where the courts have made declarations of incapacity to consent to sexual relations, they have generally been cases of restraining sexual disinhibition to protect from abuse or the serious likelihood of abuse.
‘However, logically the question of capacity must apply also to married relations and the criminal law makes no distinction between settled relations and sexual disinhibition or indeed between sexual relations within or outside marriage. Society’s entirely proper concern to protect those who are particularly vulnerable may lead to surprising, perhaps even unforeseen consequences. Such, however, may be the price of protection for all.’
He ordered £10,000 in compensation to be paid to the husband for the delay in providing sex education, of which £2,000 will go to pay for an ensuite bathroom for the couple’s bedroom. Their legal costs will also be paid by the council.
The judge said: ‘Many would think that no couple should have to undergo this highly intrusive move upon their personal privacy yet such move was in its essentials entirely lawful and properly motivated.’