Published on 12, July, 2020
I'm posting this fully aware that it’s likely to blow up into some awkward bitter argument. But I’m begging the reader to please try to be civil, try to be objective. Also we are going to be talking about sex and legal cases about sex so if this is triggering for you I suggest you hit the back button.
I feel like sometimes I have to remind people that there are two diagnostic criteria for autism: social difficulties and restricted or repetitive patterns of behaviours, activities and interests.
Some People like to try and distance themselves from this core of social difficulties. Saying autism is about them being sensitive. But in many ways autism is much more about people being socially insensitive. To some degree the (case) law and a great many right thinking people understand and acknowledge this.
Life is full of grey areas and particularly when it comes to social grey areas autistic people greatly struggle. There are some people who say that if you can’t navigate those grey areas as an autistic person you should avoid them. But anyone who sat down to think about it for a real length of time would realise that excluding people from the grey areas in work for example would exclude them from working. There is essentially no job or profession which does not offer them the opportunity to be insensitive or make people uncomfortable or to offend people. There are no jobs without at least some grey areas. Because of this the law offers a degree of protection to autistic people under disability discrimination law. Action taken against them at work because of things that happened because of their autism must be justified beyond the rules and policies of their employer. Reasonable adjustments must be made including reasonable adjustments to provisions, criteria and practices which of course includes policies on behaviour and practices applied to handling disciplinary complaints.
We appreciate that autistic people need these protections to prevent them from being pushed out of a workplace. A place full of grey areas.
However there is a place even more full of grey areas that many people, even other autistic people, seem to think autistic people should avoid if they’re not able to navigate them flawlessly. I am of course talking about sex and relationships.
Why do you suppose it is a people even some autistic people seem to think it’s acceptable to push autistic people out of this vital area of human experience when it’s not acceptable, in some cases even illegal, to do so in other areas of human experience like work and activity in public places and just generally being a part of society?
I believe at least in part it is infantilization. That some think that autistic people are somehow less intelligent and therefore more childlike. Of course many of us are not only intelligent; our intelligence is superior to the average man. However the notion persists in the minds of some that autistic people are somehow childlike and therefore are not, or at least should not be, sexual. To people with this mindset overtly sexual autistic people are threatening in the same way that children who display sexual behaviour can appear threatening or at least unsettling.
People use unhelpful terminology like ‘the mental age of a five year old’ as if that means a person has the temperament of a five year old which isn’t the case at all. And on the opposite end of the spectrum those of us who have highly developed intellectual capabilities are assumed to be disinterested in supposedly carnal low base matters. Of course these expectations are not only wrong they are unhelpful; even discriminatory.
If an autistic person should as a consequence of their social difficulties give someone the impression they view them as ugly or stupid or fat, well as much as we may lament it we accept that this is part of the occasional cost of having autistic people moving freely, included in society. But if an autistic person should give someone else the impression that they are sexually interested in someone, and in the process because of their social difficulties make someone uncomfortable, we act as if it is a heinous crime which should deny them the right to be included within that society we were previously championing their access to.
When you think about it it’s much more irrational to take offence at someone finding you attractive than someone thinking or indicating something insulting about you.
Many people act as if autistic people's right to be included in the social dynamic of sex and relationships is conditional on them being able to either avoid or navigate the grey areas flawlessly and that’s a standard autistic people are not expected to meet in any other aspect of social interaction.
The only thing that seems to make neurotypicals more uncomfortable than autistic people persistently trying and failing in the area of sex and relationships is autistic people who are extremely successful in the area of sex or relationships but achieve this success in a way that undermines social norms.
This is particularly true of autistic women who are perceived to be promiscuous. Terms like ‘poor impulse control’ and ‘sexual disinhibition’ are used. But of course there are lots of women in the world who are impulsive and disinhibited. However we live in a world of double standards where there is a much greater stigma attached to being a promiscuous woman than a promiscuous man. A social stigma that some autistic people simply will not care about. It’s quite likely that there are many neurotypical women who would be openly having lots of casual sex if it weren’t for the social stigma. The inhibition is at least partly social pressure. And if autism frees people from social pressure I do not accept that that is a form of vulnerability from which they need protecting.
In short there is a strong moral argument for:
Normally most high functioning autistic people will only experience this prejudice in a social setting but for low functioning autistic people it can lead to the government trying to take their right to sexual autonomy away in the court of protection. I propose to examine two cases where the court was asked to take away an autistic person's sexual autonomy and use them as examples of the paternalistic and moralistic approach that tends to infantilize autistic people.
JB was a legally blind epileptic man with aspergers and a moderate amount of brain damage that left him with a mental impairment that wasn’t quite severe enough to count as a learning disability.
JB was eager to engage in sexual activity with others and the local authority sought a court order that he was not mentally capable of consenting to sex. They accepted that he understood all the usual aspects needed for capacity to consent. His ability to withhold consent, STDs, contraception, pregnancy. However they asserted he did not properly understand the other parties' need to consent specifically that consent can be withdrawn.
A lawsuit ensued beginning in the court of protection, progressing to the court of appeal and ending in the supreme court. The principal questions being A) does the mental capacity to consent to sex included the capacity to understand that the other party can withdraw consent and B) if so does JB meet the test under the mental capacity act.
The definition for question be can be found in section 3 mental capacity act 2005:
The court of protection decided question A) in the negative, that JB did not need to understand the other party's ability to withdraw consent to consent himself and the court of appeal and the supreme court decided that he did. We’re not going to relitigate question A here. The more illuminating aspect is the approach taken to question B.
In both the court of protection the Court of Appeal and the Supreme Court question B was brushed over because the focus had been question A and in fairness to the Supreme Court and the Court of Appeal they did remit the case to be retried in the court of protection so that question B could be more fully addressed.
However the way that the initial psychological assessments were done at least insofar as they are quoted in the case and the way in which the court seems to take them at face value are extremely instructive.
My argument, in a nutshell, is that in the process of determining question B there seems to have been no attempt to disentangle JB’s moral understanding of consent and his understanding of consent as defined in law.
To illustrate this consider the following expert from the Supreme Court judgement describing the psychological assessment of JB.
SC34. When asked by Dr Thrift about the other person withdrawing consent during a sexual act JB said:
“That’s a tricky one … If the person gives consent then she’s already given consent and you have to go through with it to the end. Once you’re half way through she can’t say ‘I don’t give you consent’ ‘cos you’re already doing what you need to do. She cannot change her mind if you are already doing it. Cos it’s her fault in the first place for saying yes. She can’t say yes and then say no. Already said yes and you’ve got your chance.”
Dr Thrift recounted how JB did not shift in this view across all her assessment sessions, and how JB was visibly shaken at the idea that a partner would be able to withdraw consent. JB, therefore, does not understand that the other person can withdraw consent during a sexual act and therefore he would not weigh this in his decision making.
It’s very clear that JB thinks that a person who consents to sex is morally obligated to go through with it. It’s not at all clear that this is his opinion of the legal position. More to the point it’s not at all clear that it has been explained to him that the legal position and Dr Thrift’s apparent moral position are distinct.
It appears that Dr Thrift may have had a long rambling argument with JB to the effect that sexual partners have a moral right to withdraw consent. But JB is perfectly entitled to hold the view that they do not. The question is whether JB has had it properly explained to him that they have a legal right to withdraw consent. It’s not at all clear that Dr Thrift made a distinction between the two in her discussions with JB. Which calls into doubt whether subsection two of section 3 has really been applied. That is that all practical efforts have been made to explain the legal position on consent to JB. It’s entirely possible that had Dr Thrift restricted herself purely to a legal discussion of consent that JB’s answers might have been very different.
The fact that JB is shaken by the idea that the sexual partner can withdraw consent is neither here nor there. He is not required to like it, he’s not required morally agree with it, for the purposes of the mental capacity act he’s only required to understand that they have a legal right to withdraw consent.
Dr Thrift’s questionable tendency to read in between the lines and indeed the court's tendency to follow along in the same direction is somewhat concerning. For example in the subtext imputed to the following exchange:
SC35. JB’s understanding of the concept of consent was also graphically illustrated by his response to the question asked by Dr Thrift:
“If a woman gets drunk at a party and has sex with a man there, is she fair game for anyone else?”
JB response was:
“I’d say she was fair game yes. Especially if she’s done it with one person. Yes if she drinks enough she’s bound to do it with the second one too.”
Their assumption seems to be that JB thinks consent given to one is consent given to all. I do not think that is a reasonable inference to draw from this statement. A more reasonable inference might be that JB believes someone who drinks excessively and has sex with strangers at parties might be more likely to be willing to have sex with a second stranger at a party. This is not an unreasonable inference.
It is unreasonable to infer that this equates to him expressing that he doesn’t think he needs to seek someone’s consent because they previously consented to have sex with someone else at the same event.
Given that autistic people struggle with statements phrased in a vague way you might question why Dr Thrift chose to use nebulous terminology like ‘fair game’ which could be interpreted in several different ways. It begs the question: fair game to do what? If the answer is to proposition then the issue of consent does not arise. Because seeking someone’s consent for sex cannot in and of itself be seen as evidence that you do not understand the concept of consent. In fact if anything quite the opposite.
You might think JB‘s opinions make him a little bit of an arsehole. But that’s the point. autistic people are allowed to be arseholes, we’re allowed to be heroes, we're allowed to be prudes, we are allowed to be horny, we’re allowed to be liberal. There are plenty of neurotypical arseholes who have views you and I might find morally repulsive. The difference is not being autistic they are a lot better at hiding it. And the fact that an autistic person doesn’t or can’t hide views that might be considered as morally objectionable isn’t grounds to say that they are not competent to be in charge of their own lives.
In society's estimation autistic people are not allowed to be womanisers, play boys, or generally promiscuous. Society feels compelled to push the archetype of the sensitive soul upon them. And if they do not conform to that expectation surely there must be something wrong with them.
You can see the psychologist pushing this particular moral archetype in the following excerpt:
SC23. JB recounted to Dr Thrift that his “number one priority” is “to get” a woman as a sexual partner. Dr Thrift was of the view that JB’s main motivation for having, in his words, a “girlfriend” is exclusively about getting a woman to have sex with him rather than developing any form of relationship. JB expressed very clearly to Dr Thrift that he does not value the companionship aspects of a sexual relationship. She was of the opinion that JB finds it hard to understand that a potential partner may want this. Furthermore, JB made repeated comments to Dr Thrift about “becoming less picky” or “fussy” and that he “would have anyone”. Dr Thrift described JB’s “sole goal”, if his account to her is correct, as being to have physical and sexual contact with a woman and any woman.
What JB has clearly described here is his desire to have what we would normally refer to as a sex friend or a friend with benefits. He may use the terminology girlfriend because that is how others characterise sexual relationships to him but it seems clear that’s what he has in mind not a girlfriend.
And the subtext of the psychologist is that somehow this is morally wrong. That he should not want this, that this is an unacceptable thing for him to hope for. And the fact that she doesn’t bring up with him that his description better matches a friends with benefits type situation suggests to me that she thinks him having the knowledge that there are people out there who choose to be in relationships that are sexual but not romantic is somehow forbidden or dangerous knowledge for him to have.
As if the only acceptable kind of sexual relationship an autistic person can have is a loving, staring into each other’s eyes, sex in a missionary position through a bedsheet type relationship.
In fact, use of terminology like being less ‘fussy’ suggests that he knows that they’re not that many people interested in a relationship on a purely sexual basis, that he needs to find someone who would consent to this, and he is willing to be flexible in order to do this.
The doctor that examined JB makes it clear that they think that he is a high risk for offending. But this is not relevant, it is not a parole hearing or a sentencing hearing. No crime has been committed. The only question to be determined is his level of understanding and how that reflects on his capacity to consent to sex. If JB is at risk of offending simply because JB is an *** that’s not grounds to determine that he doesn’t have capacity.
I will go further if JB is at risk of offending not because he doesn’t understand the importance of the other parties consent in general but because he might be easily confused as to whether or not the other party does or does not consent in a specific case that is also not grounds to determine that he does not have capacity.
Under the terms of a mental health act capacity relates to his ability to understand the decision in general not to understand specific circumstances perfectly. But it seems like it was a key consideration of the court as to whether or not he was likely to offend and whether or not he would be likely to understand whether consent was or wasn’t given in a given circumstance. Even though the issue before the court was solely whether or not capacity to consent includes knowledge of the other parties legal right to withdraw consent and whether or not JB understood this or could be made to understand it.
The Supreme Court expressed concern over whether or not JB could foresee the harm of his choice to engage in sexual activity. Harm is a really nebulous concept. The harm of committing a criminal offence is quite clear. But if the Supreme Court also considers harm more generally that raises serious concerns. Can the average man in the street foresee the potential harm of a sexual encounter? Many would say not. There’s a fair amount of disagreement between person-to-person about what would actually constitute harm. This is moral territory. And if the Supreme Court chooses to consider foreseeing of harm that is debatable or a question of morals as a matter for the mental capacity act then it has evidently made itself the thought Police.
Both the Court of Appeal and the Supreme Court came to the conclusion that Dr Thrift’s report alone was sufficient to conclude that JB did not understand that consent could be withdrawn. But in doing so they do not mention anything about whether or not they refer to the concept of the legal right to withdraw consent or the moral right.
Thankfully both these courts chose to remit the matter back to the court of protection and at this point we are not aware of how the case is resolved.
LC was A 23-year-old woman with severe learning disabilities and autistic spectrum disorder. She had spent time in care from which she’d frequently absconded. She had a pre-existing order from the court of protection limiting her contact with men, her access to social media and her right to choose where she lives. However it was deemed she had capacity to marry and consent to sex.
In spite of this LC had married a man, subsequently become estranged from this man, reconciled with this man, and been moved by the local authority into a residential unit where her husband regularly visits her. The case for which we have a published judgement was ostensibly about changing the court ordered therapy she undergoes but is full of telling and disturbing details about the way that she and her history of sexual choices had been viewed by professionals and the courts.
We should begin with the statement from the judge in paragraph 3:
3. … But as she reached maturity she began to develop an obsessional interest which was sexual in motivation in relation to men. This it requires to be said, in unambiguous terms, is a feature of her Autism. As such, it should not attract censure of any kind. Her behaviour is characterised, in this context as 'socially inappropriate', exhibited when she is out in the community. I do not need to amplify what is meant by that term. …
Now even if you accept that autism has caused her to develop a special interest in sex it doesn’t follow that that affects her competence. In fact, thinking about sex more often than the average person should improve one's awareness and understanding of factors relevant to sexual contact and selection of sexual partners.
More to the point she should not have to rely on autism as an excuse for hyper sexual or promiscuous behaviour. There are plenty of neurotypical women enthusiastically engaged in promiscuous behaviour who would assert that it's no one's business how they live their lives and the law wouldn’t dream of saying otherwise.
It’s a repeating theme in this judgement that the judge focuses more on LCs sexual behaviour than the decision-making process as underlies it. Risk is referred to but the exact nature of a risk is not explained much less what evidence there is LC is unaware of those risks.
Now the question of capacity to determine her own contact with men was determined in previous trials. Nevertheless given this trial was about assigning a new psychiatrist and treatment plan and given that the issue of capacity is an ongoing question it’s markedly strange that the judge almost entirely brushed over the question of her reasoning and knowledge in favour of focusing on her behaviour and perceived risk.
Throughout the judgement there seems to be a tacit unspoken assumption that a history of risk-taking in and of itself is evidence of a lack of capacity for example in this paragraph:
4. Now as long ago as 2013, proceedings were initiated in the Court of Protection because it was felt that LC was at very significant risk of sexual harm if she were permitted unfettered liberty or, in fact, to be unescorted in the community generally. The existence and extent of that threat is well established on the evidence. The Local Authority tried a variety of interventions which were all focussed on improving LC's understanding of how her interpersonal relationships with men could be made safer. This is a facet of the Local Authority's obligations, pursuant to the Mental Capacity Act 2005 (MCA), namely to promote a pathway to capacity in LC's decision-making on these issues.
Again many neurotypicals choose to engage in sexual behaviour that many would consider risky. That doesn’t mean that they’re unaware of the risks or unable to consider them. Just that they weigh the excitement and libido involved as more significant factors. A history of sexual risk-taking is not dispositive of a lack of capacity. But apparently if you also happen to have autism people assume it is.
The judge seems to treat autism as if it were a factor overriding rather than feeding into her decision making process. Rather than the devil made me do it, it’s ‘the autism made her do it.’ As can be seen in this next excerpt:
11. Following LC's marriage, the tensions inherent in this situation came to the fore. It is clear that LC soon began to show an interest in men other than her husband. As he is here, listening to this judgment and to the exchanges today, it is important that I re-emphasise to him and perhaps to others, that it would be entirely wrong to make a moral judgment in relation to LC's behaviour. It bears repetition, this is an aspect of her Autism.
Autism may make you preoccupied with sex if it’s a special interest. It may make you disinclined to care about social taboos around sex. It doesn’t prevent you from understanding important concepts like fidelity and consent. And since the court determined that she does have capacity to consent to marriage and sex she must’ve been previously deemed to have an understanding of these concepts.
So on what basis does the judge assert that this is a product of her autism rather than a product of her choices. Why can an autistic woman not be horny and promiscuous without it being her autism just as any woman might potentially be predisposed to those tendencies.
Remember legal capacity is determined by your ability to understand and a reason about the decisions you have to make. If being horny and preoccupied with sex is a basis to declare someone unable to reason rationally about sex we will have to declare a great many neurotypical people devoid of the capacity to make these decisions.
It seems clear that in the mind of the Court what is important is protecting her from the consequences of what the court views as bad choices rather than the reasoning process used to make those choices. As if no rational woman could ever consent to casual sex, sex with a stranger or sex in a public place. This paternalistic attitude can be seen in the following excerpts:
12. LC began to seek sexual relations with strangers, in what I will loosely call the public domain. The Local Authority became concerned about the appropriate level of restriction to be imposed in order to protect LC's sexual integrity. …
13. In broad terms, the plan proposed that LC should have unsupervised contact with men because, at that time, it was thought that she had become either entirely or largely estranged from her husband. …
14. ... It is plain that a number of men took advantage of LC under these arrangements, compromising her safety and her dignity and imposing what, to my mind was, with the enormous benefit of hindsight, an intolerable burden on those supervising her. …
The court speaks of her sexual integrity, her dignity, and her safety. But sexual integrity and dignity are subjective. And LC is free to have a different view of them from the court. And even if she doesn’t the question is whether she is able to reason about these things not about whether she consistently makes good or bad choices. There are plenty of mentally functional neurotypical women who consistently make bad sexual choices by their own standards, repeatedly over and over. We do not assert that it is because they lack mental competency.
The court pinpoints one of the clear and disturbing implications of this arrangement in the seventh paragraph:
7. Self-evidently the evidence presents the court with a complex legal and factual matrix. LC is considered to lack the capacity to decide whether to have contact with men or as it has evolved, to make decision whether or not a man with whom she may wish to have sexual relations is safe. It is axiomatic that the risks posed to her are physical in a real sense, not only from her exposure to disease, but from the nature of the men she may encounter. Rather more insidious is the risk of emotional harm to LC by interacting in this way.
By determining that she has the capacity to consent to sex but not to make decisions about with whom she has contact the court has effectively said that she has a right to have sex but only with the people they approve of in the situations they permit. This is hugely paternalistic and this paternalism might be easier to accept if the court were more concerned with analysis of her decision-making capacity than protecting her from social stigma or emotional distress.
And whether by design, or I suspect more likely intention, this situation where her potential lovers must be vetted totally prevents LC from engaging in casual sex. If she wishes to have an affair behind her husband's back or indeed a threesome with her husband’s consent she would first need to ask permission. It’s extremely difficult to square this with the courts assessment that she is competent to consent to sex.
It could clearly be interpreted as ‘she is competent to consent to sex but only the kind of sex we approve of.’ Only loving romantic sex is appropriate for autistic people is the message that is being sent.
So why does society feel the need to rob autistic people of their sexual autonomy? Because that’s what this is, by saying that risky sex, or casual sex, or sex with strangers is less appropriate for autistic people you are denying autistic people's sexual autonomy equal to that of their non-autistic peers.
What is so threatening about the idea of autistic people having wild casual sex that society feels the need to try and cast them in the role of the victim (mostly women) or the villain (mostly men)?
If autistic people struggle to navigate the grey areas of sex and relationships it’s not generally because they don’t understand the important general principles like consent. It’s because so much in human sexual behaviour is inferred from context or subtext or non verbally that in the specific situation they won’t always have the specific information to apply the general principles to. An excellent example would be this account given by a solicitor of an autistic client accused of sexual assault. He thought a girl was flirting with him. He responded with physical contact, as soon as he realised he was mistaken he stopped. At all times he was aware of the need for consent and while touching her thought in fact he had consent. On the basis of this argument the charges were dropped. This is an excellent example of the kind of innocent and harmless mistake that autistic people get pilloried for. Because with questions of sex generally whether it's a question of criminal culpability or mental capacity the law requires you start with the state of mind and work forward to the act to make a determination.
But in society people want to start with the offended party and their feelings and work backwards to the act to determine the question. That’s ethically unfair and an impossible burden to put on autistic people who by their very nature can not be mind readers. Looking only at the results not the intent or process leave no room for a grey area even though we all know there is one.
The fact that picking someone up in a club, or on tinder, or anywhere else, is fraught with grey areas, areas of uncertainty, areas of risk both to oneself and of upsetting others, can not be used as a basis to try and exclude autistic people from this aspect of life.
I suppose I feel a lot better about reasoning my way out of infantilisation and desexualisation, than trying to reason my way out of the opposing extremity, as the former concept gives me a low-mood and the latter gives me stress. I handle stress way worse than I handle depression. It is my understanding that as a society, the neurotypical world has no idea here the line is objectively, either written or unwritten, you are in a threatening-situation no matter who you are. Even if society had a coherent concept of the unwritten-rules, autistic-people still would have a hard-time grasping them, so I guess having made the conclusion that no one is safe, I’d rather be dealing with exclusion, than dealing with excommunication. Apologies for the lack of thorough-breakdown, I am only making an argument based of the text enclosed within the conclusion, apologies also if you’ve already with this in the main-body..