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What the critics of the ‘right to sex’ judge got wrong

3 April 2019

7:05 PM

3 April 2019

7:05 PM

There’s a terrifically sensitive, not to say odd, hearing underway this week in which social services are seeking to prevent a man from having sex with his wife. The couple have been married for more than 20 years but her deteriorating mental health means that social services aren’t confident that she’s able to give informed consent to sex so they’ve asked a judge to consider an order barring her husband from engaging in intercourse, which seems like an extraordinary incursion by the state into a couple’s private life.

But it’s not the propriety of this involvement that’s getting feminists worked up. Mr Justice Hayden who is hearing the case observed: ‘I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife,’ he said. ‘I think he is entitled to have it properly argued.’

Sort of common sense, you’d think, in the circumstances. We’re talking here about a marriage of 20 years – a husband, not a potential predator taking advantage of a mentally ill women he barely knows. But it was cue for the reliably mouthy Jess Phillips, Labour MP for Birmingham Yardley, who presumably doesn’t have enough to do in parliament just now, to intervene in this sensitive case with the tweet: ‘It is not a basic human right to have sex with your wife. It is not even close to a right.’

Well, I disagree. The judge correctly observed that the man might be put in a situation where he could face prison if he breached an order on sexual consent. How do you police such an order? Do social services actually take the woman into care? Details of the case have not been released, but the judge’s notion of the couple’s human rights, including the right to a family life, seem closer to reality than that of those who are terrifically up for seeing marital sex as potential rape.

Thangam Debbonaire, the Labour MP for Bristol West, was also quick to weigh in. ‘This legitimises misogyny and woman hatred,’ she tweeted. ‘No man in the UK has such a legal right to insist on sex… No judge should give out this sort of misogynist and inaccurate message. What it says about his values is awful.’

No it’s not. There are in fact very fraught issues to do with the capacity of mentally ill or mentally disabled people to consent to sex – Mr Justice Hayden not long ago took issue with social services who did not intervene when a succession of men took advantage of a mentally ill woman to have sex with her; a very different case. Indeed, here the man has volunteered to abstain from sex with his wife.

This is a couple who’ve been married for two decades and presumably the woman consented to sex during the course of it. None of us observers knows the details but it’s just possible that the husband knows his wife and her feelings – even in her present condition – better than social services, and certainly better than Phillips and Debbonaire. The judge will presumably establish whether the wife would be distressed by physical contact with her husband and is able to consent. But he is right to raise the man’s rights against that of social services to tell him whether or not he can have marital sex. It’s not misogynistic or women-hating to see the implications of this case as very worrying indeed.


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