There isn’t a judgment on this, because it is a case that has not yet been decided, but given that it was the number one article on most viewed on the Guardian this morning (and it is still top ten) and my twitter stream is full of very outraged people (some of whom know why they are outraged and are right, and some don’t know why and are outraged for the wrong reasons), I thought I’d write about it.
It involves a Court of Protection case in which a woman with learning difficulties is facing a deterioration in her ability to make decisions, and may have reached the stage where she can no longer consent to sex (The legal test for an adult to consent to sex is whether they understand, or are capable of understanding, three things. 1. The mechanical process. 2. the risk of pregnancy and how to avoid that. 3 the risk of STDs and how to avoid that. So it is a low bar, and if someone is as an adult a person who used to be able to consent and now there are doubts, that must be a horrendous situation for her and everyone who cares about her. Note that the Court have not YET decided whether she lacks capacity, from the Press report)
The husband said that he would agree not to have sex with his wife whilst all of this was looked at, and was willing to give an undertaking to the Court (a promise that he could be sent to prison for if he breached it). Social workers wanted there to be an order instead.
The Judge, with a Press Association journalist present, was considering the case. Mr Justice Hayden said “I cannot think of any more obviously fundamental human right than of a man to have sex with his wife – and the right of the State to monitor that. I think he is entitled to have it properly argued.”
Now, I personally would have said something like “It is important that a Judge, before allowing the State to control and monitor what goes on in the bedroom between two adults in a relationship, should carefully consider the evidence and hear proper argument about that”
And that wouldn’t, it seem to me to be controversial.
So, if you are annoyed because
A) A Judge has ruled that the old setting of ‘there’s no rape in marriage, men are entitled to sex from their wives regardless of the wife’s feelings’ has come back
then you can stop being annoyed about that, because that hasn’t happened. And also couldn’t happen, because the decision to overturn that barbaric proposition was in an Act of Parliament and the Courts have no power to overturn Acts of Parliament.
If, however, you are annoyed because
B) Language has power, words have power, ideas have power, and the old law that allowed wives to be raped under the guise that they were property of men and men were entitled to complete autonomy over their body is such a barbaric and not that old view that it is necessary to be very mindful of the sensibilities of language when thinking about any wording that implies that a man has rights over a woman’s body EVEN WHEN YOU DON’T MEAN THAT
then you are fully entitled to be annoyed about that, and it is a subject well worthy of debate.
I think the Judge could have expressed his thoughts much more clearly, and been alive to the landmine of ‘conjugal rights’ and women as chattels that was in his path, and been very very clear that he was talking about the rights of both men and women to have respect for their private life from the State and the State should only interfere where it is necessary and proportionate to safeguard others.
I fully accept that my view of his words has to be coloured by the fact that I am a man and not a woman and so I need to check my privilege – I’m sure that I would have a different perspective to bring to this issue if I were female. You might well end up thinking that there’s not a chasm of difference between A and B, and that to say B you must have thoughts in your mind that A is not that bad. I don’t know that I’d go that far, but I accept that others might.
I hope there’s going to be some judicial clarification published. My twitter feed is awash with people thinking A) or if not A) that this is a Judge who wishes he could do A) and is probably going to let some awful rapist off.
It is worth remembering that in all of this, there is a man and a woman, who are already going through a dreadful ordeal that you wouldn’t wish on anyone, and the Press coverage is probably making that even worse. If you are that man and you wanted to talk to a friend or colleague about what is happening to you, you probably can’t do that today.
suesspiciousminds 
Surely innocent until proved guilty (a plea neglected in the family courts) should apply ;Unless there was evidence that she refused surely one could presume that she had agreed ?
After all if the couple had been together some time sex could have become a habit like eating,drinking ,and sleeping and unless there was evidence of physical violence what harm was done?
Maybe she could not give consent to eat but her husband could hardyl be accused of force feeding her and assaulting her if she was more than willing to eat but judged by overzealous officials to have no capacity……… Something in the family courts that is diagnosed too often on those who rail and protest against the system after their children are removed ……………
Perhaps I should add that maybe they were not going through a dreadful ordeal and that even if the wife had relapsed into childhood she could still be pleased by regular sex with her husband and might be upset if the practice suddenly ceased .No indeed, horrible judges in horrible courts too often interfere with family life because they feel “more likely than not ” someone is doing wrong or might do so when they should be applying the principle of “beyond reasonable doubt” before branding folk as rapists or child abusers …………..
Might be worth pointing out that Hayden J has vg record of respectful HR decisions and that this was undoubtedly a directions hearing with the judge flagging up the kind of Art8 probs that are engaged ? Mx
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Very good explanation, I would only add that if the Family courts are to keep letting journalists in, it would be nice to think the journalists would do their job to explain these things to the public, rather than offering them up as clickbait to increase public suspicion of the judges whose independence is a pillar of our democracy.
But there we go. The fourth estate likes to call judges upholding the supremacy of Parliament “enemies of the people” so that’s never going to happen.
Judges who authorise the forced adoption of babies whose mothers have committed no crimes but who are suspected of having a potential for future emotional abuse should be sacked and punished.