Introduction

In this chapter the principal aim is to analyse the law around sex and capacity which was repealed and replaced by the Sexual Offences Act 2003 and Mental Capacity Act 2005. This law is to be found in a spasmodic trail of criminal case law, punctuated and undermined from the late 19th century onwards by a statutory embargo on sexual activity involving, initially, ‘idiots’ and ‘imbeciles’ and, later, (some) ‘mental defectives’. Initially, this embargo extended only to females and only to sexual intercourse, but it was extended in both respects by legislation in the second half of the 20th century. I will argue that this historical analysis suggests that the legacy inherited by the modern law involved more than the need to strike an appropriate balance between protection and sexual autonomy, which was the main preoccupation of the Law Commission (1995, para. 5.13) and Parliament at the time of the 2003 Act. The law as it stood at the start of the 21st century was patchy at best in terms of substantive content, but what is equally if not more striking about this history is that it reflected systematic discrimination against persons with mental disabilities of such depth that the very humanity of persons so categorised was thereby put into question.

The criminal law on sex and capacity, 1845–85

The law finally replaced in 2003 begins in the mid-19th century, with a slight revision of the common law definition of rape. The law at the time (and indeed until 1976) required the presence of force and resistance before a court would find that a rape had occurred. This situation was modified in R v William Camplin, and it is this modification which marks the beginning of a concern with capacity issues. Camplin was convicted for the rape of a girl of 13, but the decision was reserved by the trial judge, Parke B, for a point of law to be decided by the Court for Crown Cases Reserved (which heard appeals on points of law at this time). The argument of counsel for the defendant was that, as there had been no actual or threatened force and no resistance, no rape had occurred.