The reported remarks of Hayden J at a directions hearing about the husband’s “right” to have sex with his wife have caused real controversy. Not having been there, and not having had sight of a transcript, I won’t comment on what he is reported to have said, but I would suggest that people read the judgment of Sir Mark Hedley in CH v A Metropolitan Council as a way in which to learn about the difficult interaction between the MCA 2005 and the criminal law.
As Sir Mark Hedley observed in that case:
“logically the question of capacity must apply also to married relations and the criminal law makes no distinction between settled relations and sexual disinhibition or indeed between sexual relations within or outside marriage. Society’s entirely proper concern to protect those who are particularly vulnerable may lead to surprising, perhaps even unforeseen consequences. Such, however, may be the price of protection for all.”
The interaction between the MCA 2005 and the Sexual Offences Act 2003 is difficult, both legally and ethically. Those who want to try to think about this from a broader CRPD perspective would also be well advised to read this article by Liz Brosnan and Eilionóir Flynn.