english judge says man having sex with wife is fundamental human right

[Snao Cone]

On 4/4/2019 at 2:04 AM, Telecaster68 said:

English judges - still - tend to be of an age and class where they use 'man' to mean 'person'.

Can't wait for that mentality to die off with the people who hold it.

[Carmine88]

What is strange to me is how did she consent to marriage in the first place? I mean maybe she wasn't like this originally but I found that odd. On the topic however I feel the judge is either a misogynist who thinks women owe sex or he just misphrased it. I always like to consider they could have been misquoted or there's more to it in general as we have the bare bones of the story. If this is his legitimate opinion I would question if he should be doing this job if he can't keep his personal opinions from overriding the law.

[Skycaptain]

@Carmine88, in this particular case, at the time of marriage the wife to be was deemed mentally capable of consent and making decisions. It is subsequent mental deterioration which has instigated this action by the authorities. 

[Carmine88]

@Skycaptainoh I see. I think this is a tricky one. Personally I would have said that if she is not capable of consent she would have to placed somewhere else and given a guardian to watch for her best interests. I mean perhaps she could stay at home depending on if the husband was doing anything bad. I don't know if he was aware she no longer functions. It said he volunteered to stop. I suppose they can make a better judgement if they know the details.

[Skycaptain]

Basically it's everyone in authority being frightened of litigation. Time was the husband honouring his marriage vows, and the authorities accepting his undertaking pertaining to her mental state would have been sufficient, but now we have too many lawyers and not enough work for them, so cases like this go through the courts, appeal courts and supreme Court, all at the taxpayers expense 

[Blaiddmelyn]

2 hours ago, Skycaptain said:

Basically it's everyone in authority being frightened of litigation. Time was the husband honouring his marriage vows, and the authorities accepting his undertaking pertaining to her mental state would have been sufficient, but now we have too many lawyers and not enough work for them, so cases like this go through the courts, appeal courts and supreme Court, all at the taxpayers expense 

Who are these lawyers with not enough work? I'm happy to give them some of mine (subject to all my legal obligations about doing that) so I can stop leaving work at ridiculous hours. (In fairness, my boss has taken some of my work off me so I can at least get home on the same day that I left for work).

 

On reading what he said, I think he was just badly saying This is about this man's right to privacy. What's he's effectively said is: in order to enforce the undertaking, you potentially have to monitor this man's night life, which clashes with his right to privacy (that's what he probably means by the words and the right of the state to monitor that. I would therefore rather look at the evidence and see if that's feasible given the legal framework.

 

Though assuming that's right, why he couldn't have said it in literally any way that didn't imply the man can legally rape the woman, I've no idea.

 

 

[Blaiddmelyn]

5 minutes ago, Telecaster68 said:

Maybe he did, but it didn't get reported that way.

"I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife – and the right of the state to monitor that,” he said. “I think he is entitled to have it properly argued."

 

The double quotes imply this was a direct quote - it may have had minor editing but that is unlikely as judges read from a written judgement.

[Blaiddmelyn]

That's true. It's always better to read the judgment itself. And I suspect the context is that he thinks the undertaking is useless and doesn't protect the woman, which I think must be right. It's almost impossible to police.

 

*Not that I ever do court of protection work. 

[Blaiddmelyn]

29 minutes ago, Telecaster68 said:

I've reported on enough  cases to know there's not much way of telling what went on, beyond a reporter picking up on a single phrase from a judge during an administrative case management hearing.

Tbf, sometimes they do come out with weird things. For example, let's never forget the Lord Denning judgment that starts with It happened on April 19, 1964. It was bluebell time in Kent.

[Hecate]

The big decider in this is consent. Sex is not rape if both parties can give clear consent. 

 

It would be interesting to know how much capacity this woman has and if her husband has Power of Attorney which as I understand it is really only meant for making certain decisions for an individual who is deemed to not have capacity to make those themselves. But that's for their health and welfare, that doesn't extend sex, so I cannot see how they could possibly justify sex as that isn't critical to her life.

 

Using any legal grounds like that to OK this would set a serious precedent, and it could redefine what consent is when it comes to sex. I mean really, it's rape to have sex with somebody who is unconscious, asleep or under the influence and unable to give consent. Why should her inability to give consent due to her reduced mental capability be any different to somebody who is in an altered state of consciousness and their inability to consent? 

[everywhere and nowhere]

By the way, here's a feminist commentary on this case:

A judge said marital sex is a fundamental human right for men. Let’s not underestimate how dangerous that is

Quote

But the law is clear on this: along with being asleep, unconscious, inebriated or detained against one’s will, if someone is “unable to refuse [sex] because of or for a reason related to a mental disorder”, consent is vitiated and the sexual act becomes unlawful. It becomes rape. There could be no more perfect illustration of institutionalised sexism and bias against women than that a judge – someone in a powerful and trusted position – could refer to “sex with his wife” as the “fundamental human right” of a man.  (...)

We know that 90 per cent of rape victims already know their attacker and that stranger-in-dark-alley tropes account for a marginal number of attacks. Domestic violence is on the increase and funding is on the decrease. What sort of message would a comment like this send to a violent husband? Quite frankly, it tells him the system is on his side.

Sex is not a human right. Saying no is. And appearing in front of an unbiased judge to assert one’s right to say no is one of the most basic tenets of a functioning society. Without that, how can we claim we are doing anything to change things? Let us not forget that it was legal for a husband to rape his wife in this country until 1991.

Rape, assault and abuse are all weapons used against women as means to exert control over them. When the victim is disabled or vulnerable, this control is even easier to exert. Women with disabilities are more likely to experience domestic abuse than those without.

 

[Skycaptain]

@Hecate, sorry for the late reply. Your questions are basically the same as the council, acting on the woman's behalf, and the judge are asking. This is why the case has been referred for a full judicial hearing, rather than an instant response without her degree of awareness as to what is involved being reviewed. 

[uhtred]

On 4/24/2019 at 6:49 AM, Hecate said:

The big decider in this is consent. Sex is not rape if both parties can give clear consent. 

 

It would be interesting to know how much capacity this woman has and if her husband has Power of Attorney which as I understand it is really only meant for making certain decisions for an individual who is deemed to not have capacity to make those themselves. But that's for their health and welfare, that doesn't extend sex, so I cannot see how they could possibly justify sex as that isn't critical to her life.

 

Using any legal grounds like that to OK this would set a serious precedent, and it could redefine what consent is when it comes to sex. I mean really, it's rape to have sex with somebody who is unconscious, asleep or under the influence and unable to give consent. Why should her inability to give consent due to her reduced mental capability be any different to somebody who is in an altered state of consciousness and their inability to consent? 

Very tricky problem.   If you turn it around, I don't know if it is OK to say that mentally disabled people are not allowed to have sex.   Being under age and being intoxicated are both temporary states.   Do we want there to be a time in someone's life after which they are never allowed to have sex again?

 

Would it be different if the genders were reversed? 

 

 

[Snao Cone]

3 minutes ago, uhtred said:

Would it be different if the genders were reversed?

I would imagine old farts school thinkers would see it differently because the antiquated ideas of marriage are that a wife owes a husband sex, and that wives are supposed to be subservient, so it wouldn't matter if the wife didn't have the intellectual capacity to make her own informed choice. Very very few people would say that out loud anymore, but I wouldn't be surprised if it's still part of the worldview held by some individuals, especially in older generations. But in another way, men who may have intellectual disabilities that limit the ability to give informed consent might also be assumed to always want the sex they're having because of stereotypes of men being horndogs, so any sexual act they engage in must be their own will. And yet, people of all genders or ages with intellectual disabilities can be conned into doing sexual things that would appear to be of their own volition if they were mentally capable, but once factoring in their abilities are very obviously not. If bullies persuade someone with an intellectual disability to engage in bestiality, that's not consented sex for either the person or the animal, is it? So for typical marital relationships, where is the line between a person with an intellectual disability giving informed consent, and their partner making that decision for them? Sadly there are people out there who seek partners with lower intellectual ability for reasons like this.

[affogato]

Sexual coercion under the guise of "well, we are husband and wife" is still sexual coercion and sexual coercion is rape.