This article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity. The capabilities approach to justice is then used to demonstrate the limitations of the existing legal approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non-consensual sex and exploitation. Finally, the article argues that, rather than focusing on a medicalized approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people to realize their rights to sexual intimacy.
Bibliographical noteFunding Information: The authors would like to thank the anonymous reviewers for their feedback on this article as well as Donald Nicolson, Michael Thomson, Karen Yeung, and participants at the UK Mental Disability Law Conference 2018 for their comments on earlier versions of this article. Professor Harding is grateful for the support of the Leverhulme Trust through a Philip Leverhulme Prize.
ASJC Scopus subject areas
- Sociology and Political Science