If Matthew, a 59 year old man, has sexual contact with Rosie, a 25 year old woman with learning difficulties and a diagnosis of Asperger Syndrome, a sexual assault has obviously been committed. Hasn’t it?
Matthew met Rosie’s at the home of an older woman with learning difficulties with whom he had had a relationship. They were on excellent terms. Rosie and Matthew flirted and she asked him for a hug. On two occasions she went back to his flat after spending the evening socialising in the Octopus Club – a local meeting place designed to meet their clientele’s support needs. Things got complicated…
Rosie shared what had happened with her support worker, and the decision was made to initiate the full process of investigation and prosecution.
Following receipt of my report the Crown Prosecution Service dropped the case. Two key aspects had been overlooked by investigators: the character of the accused, and whether Rosie could and did give consent – and if so, to what?
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The Mental Capacity Act Code of Practice
This admirable legal guide integrates the needs of people who have some form of temporary or permanent impairment of mental functioning with the needs of professionals to make just and fair decisions about their capacity to consent and the implications, in each case, in law.
Unusually, I met neither the accused nor the complainant – my report was based entirely on documentary evidence. This stated explicitly that Matthew was 59, had never married and had no children, that he had formed a long-term and mutually satisfactory relationship with another woman with learning disabilities, and that his habitual lifestyle included regular visits to social clubs popular with people with limited social and intellectual capacities, where he was well known.
The various social and police reports also gave numerous indications that Matthew was probably of limited intellectual capacity himself. However, this had never been assessed. I considered that a miscarriage of justice might occur if Matthew did have limited competencies and this was not taken into account.
The evidence itself was decidedly complicated.
There had been contact on a number of occasions and Matthew and Rosie had been to bed together. She had clearly consented to that, and had not minded some things, but had asked him to stop doing other things. This he had done, but only after a short period of attempted persuasion. If this case had come before a full hearing, then at some point the judge would have had to turn to the questions: how long did this short period last, how coercive was the persuasion, and was this ‘short period’ still too long?
And what could Matthew reasonably be expected to understand and take into account during these exciting but ultimately disappointing encounters – the test of reasonable belief as set out in CPS guidance on the Sex Offences Act 2003 (Chapter 3) – given his likely intellectual capacity.
Rosie shared her secret and sought guidance
What had Rosie actually wanted to see happen when she told her support worker? I believe she wanted just that – support. She wanted a friend who would help her get it right not a professional who would take her anxieties down the offending route.
The code of practice on consent states, at the head of every chapter (fifteen times in all), that throughout the code “… a person’s capacity (or lack of capacity) refers specifically to their capacity to make a particular decision at the time it needs to be made”. I take this to also mean:
No global judgement of capacity should be made, notwithstanding
that for the most profoundly disabled the assessment will nearly always be that they do not possess such capacity.
Did Rosie have a general understanding of the decisions she was making and the likely consequences of those decisions? Did she understand, retain, use and weigh up her decision? And did she communicate her decision? Rosie’s clinical report said she felt she ‘had’ to do things her carers said, and did not believe she could refuse as she will ‘get into trouble’.
The question of her capacity to consent (and therefore to refuse) to report what had happened to the police does not seem to have been considered at all by professionals. But she had told her social worker she didn’t want the matter reported!
The evidence showed she had a good general idea of what police involvement would mean and, crucially, of her own position in relation to the raising of any complaint – how strongly she felt about what had happened, the degree to which she was personally and privately willing to take some responsibility for what had happened, and that she considered Matthew’s apology to satisfy her.
Perhaps she should not have considered an apology sufficient – but the Mental Capacity Act explicitly and deliberately rules out allowing a third party opinion about the wisdom of a decision to influence that third party’s assessment of capacity.
Despite Rosie’s learning and other disabilities she is likely to have normal physiological needs and responses. I refer here to sexual needs but I also refer to the need for physical intimacy – the need to touch and be touched, to hold and be held, and to engage in physically intimacies which though often a precursor to sex are not necessarily sexual.
This need, too, can be overwhelming.
I suggested to the court that it might be helpful, in sorting out what parts of the intimacies which occurred were consensual, to consider whether Rosie might have been minded to consent to physical intimacy but not to sexual intimacy. But this and the other thorny and difficult questions were never dealt with in court.
Fortunately, the CPS made a quick and sensible decision. And I hope my report encouraged the professionals concerned to actually read the guidance on consent, and perhaps combine a bit more confidence in their judgments with a more open-minded recognition of their clients’ whole needs.