Royal Courts of Justice

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The husband and wife have been married for 27 years

A woman with learning difficulties can no longer consent to sexual activity with her husband, a court has heard.

The couple, who are from London and cannot be named, have been married for 27 years.

Lawyers for the woman have asked Mr Justice Hayden to make a a declaration saying she “lacks the capacity” to consent to sex.

Reserving judgment, he said he must “look carefully” at the case before making a ruling.

The Court of Protection heard a specialist concluded the woman’s mental health meant she could no longer understand the “sexual act”, sexually transmitted disease or pregnancy.

‘Ethical and moral principle’

Her husband had initially offered to give an undertaking not to have sex with her, but the judge said evidence had to be explored in detail before decisions were made.

In an interim ruling, he wrote: “The difficulty that presents in this case is that there is only one individual with whom it is really contemplated that [she] is likely to have a sexual relationship – her husband of 27 years.

“It seems entirely artificial therefore to be assessing her capacity in general terms when the reality is entirely specific.”

He said the woman’s “lack of understanding” may not “serve to [invalidate] her consent to sex with her husband”.

“It is important that the relevant test is not framed in such a restrictive way that it serves to discriminate against those with disabilities, in particular those with low intelligence or borderline capacity.”

Mr Justice Hayden has also heard submissions from lawyers representing social services bosses at Tower Hamlets Council, who have responsibility for the woman’s care,

He said the case raised issues “integral to the couple’s basic human rights” and there was a “crucial social, ethical and moral principle” involved.

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