07 February 2011

Council bans man from having sex

A man in the UK has been prohibited from having sex on the grounds of his incapacity to consent, by his council.  

He has not committed any offences.  However he has a low IQ and "moderate learning disability".  It was claimed he doesn't understand enough about sex and that sex education would confuse him.

Now if I apply a simple test about the role of the state, it is to protect people from the initiation of force and fraud by others.

Yes it is 2011.  It is the UK.

Classically Liberal says:

Under a 2005 law judges have the power to declare people mentally incapable of making their own decisions and then take those powers upon themselves. This includes the power to force people to have surgery, to force them to have abortions and force them to use contraception. It also includes, apparently, the ability to force people to never have sex again.

In essence it is the state claiming ownership over the mentally disabled to make life decisions for them, without having them institutionalised.   Forcing people (which means women) to use contraception and have abortions is, of course, a politically correct form of sterilisation (which isn't acceptable, although the effect is the same).  It is possible to understand why reproduction for women who are mentally disabled is problematic, because they are largely incapable of performing the functions of a mother.   Although red flags go up when this is raised. 

However, to prohibit a man having sex appears to be different.  The man has been having a sexual relationship with another man, who hasn't complained.  There are no other examples, although there are accusations of lewd behaviour in two instances, no police action ensued.  Presumably if he has acted criminally the law should step in.

Yet now he is to be banned from having sex, with another, for what end?  What right does the state have to take away this man's legal right to have sex and why? To protect him? 

The man concerned is "now subject to “close supervision” by the local authority that provides his accommodation, in order to ensure he does not break the highly unusual order". 

Shades of the Stasi in east Germany.

However Classically Liberal makes a key point:

We allow individuals with little understanding of dietary needs to make decisions regarding the foods they eat, though government is trying to strip that right away as well. The consequences of eating a candy bar are relatively trivial. One doesn't need to have some high level of understanding to make that choice.

So what level of understanding is needed in this case. Given that pregnancy is clearly not a threat the only real potential problems might be health risks. But wouldn't a less intrusive—certainly less authoritarian—measure be simply checking Kieron and Alan for any diseases that might be contracted. If both are healthy in these matters, and the implications of the reports I've read indicate they are, then there is negligible risk on the part of Alan. His ability to consent should not be judged merely on the basis of his mental abilities but also as to the risks he is realistically facing. If both men have a clean bill of health then there is virtually no risk and Alan would appear to be capable to consent to something of no risk.

History is littered with example of the state using psychiatry to remove people from society "for their own good".  Thomas Szasz in "The Myth of Mental Illness" warned of how mental illness has been used by the state to mould behaviour rather than represent anything real:

"If you talk to God, you are praying; If God talks to you, you have schizophrenia. If the dead talk to you, you are a spiritualist; If you talk to the dead, you are a schizophrenic"

Now this case is not the same, but it still makes me wary.
I share this conclusion:

"I do not immediately dismiss the necessity of a court to make decisions in those rare cases where a person's individual mental level is so low that they are incapable of informed consent. But informed consent should not be seen in a vacuum but understood in the context of what it is that the person is wishing to consent to. That is something the court failed to do here."

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