Outcry over comments of judge set to decide if couple can continue having sex

Social services fear that the woman’s learning difficulties mean she can no longer consent to intercourse

Old Bailey, Court
(Image credit: Getty Images)

A judge has sparked outrage with his comments about a case in which he will rule whether a man can continue to have sex with his wife of more than 20 years.

The Daily Telegraph reports that social workers assigned to the wife, who has learning difficulties, say there is “evidence that her mental health has reached a stage which means that she no longer has the capacity to make decisions about whether she wants to have sex”.

The Court of Protection - a specialist court in London that hears cases involving people who may lack the mental capacity to make legal decisions – has been asked to rule on the case.

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.


Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

Lawyers representing social service officials have suggested that the court might have to issue an order barring the man from having sex with his wife to “prevent her from being raped”. A full hearing is expected in the near future.

The judge overseeing the case, Justice Hayden, said he “wanted to examine evidence in detail” before making any decisions. The judge also expressed concern that the husband would face jail time if he violated any orders not to have sex with his wife, adding that such an order would be difficult to police.

“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,” Justice Hayden said. “I think he is entitled to have it properly argued.”

His choice of words have drawn strong criticism from activists, with Labour MP Thangam Debbonaire accusing the judge of “legitimising misogyny and woman-hatred”.

“No man in the UK has such a legal right to insist on sex,” she added in a tweet.

Fellow Labour MP Jess Phillips agrees, tweeting that someone having sex with their wife “is not even close to a right”, while journalist Eve Livingston calls Hayden’s comments “terrifying”.

Meanwhile, the Daily Mail notes that the “ability for a man to have sex with his wife without her consent was explicitly banned in 1991 and is punished by the courts as any other rape”.

Continue reading for free

We hope you're enjoying The Week's refreshingly open-minded journalism.

Subscribed to The Week? Register your account with the same email as your subscription.