catholic, England, gay, Health, Justice, LGBT, mental health, Newcastle, news, OSB

no sex other than masturbation allowed – how do you check?

Mr Justice Mostyn, educated at top Catholic school Ampleforth, hands down judgment that is considered homophobic by some.

In a recent case before Mr Justice Mostyn the Court of Protection held in The Law Courts in Newcastle, a disabled man, aged 41 years (hereinafter referred to as ‘Alan’ in line with the judgment) has been barred from having sex with another man until he has a better grasp of the health implications of his act.

According to Pink News,

In the meantime, he will be closely supervised by the local council to ensure his sexual activity is restricted to masturbation in his bedroom or bathroom – and nothing more.

I have some questions about this.

If he has to be closely supervised by the local council, how will this be done?

Will it mean that another person is present when he is going to masturbate, or will it be monitored by CCTV or something else?

Let’s assume that CCTV is installed to ensure that ‘Alan’ does not do anything other than masturbate [alone]* and that it is monitored 24 hours a day, seven days a week.

There are so many possibilities for more offences to be committed if this is the case, including:

  1. If he or she who is monitoring ‘Alan’ derives any sexual gratification from monitoring him, then he or she would be guilty of voyeurism under section 67 of the Sexual Offences Act 2003 (c.42). Unless of course ‘Alan’ has consented to being watched…
  2. If he or she who is monitoring either in person or by using CCTV derives any sexual gratification from so monitoring, then the person who installed the equipment would also be guilty under section 67(4) of the 2003 Act.

Of course there is another problem with all of this. If ‘Alan’ is considered not to be able to understand the health implications of sex with another man, then is he able to consent to someone watching him masturbate – even if it is to ensure that he does nothing else?

This seems like a most unenforceable judgement from Mr Justice Mostyn in Newcastle.

Footnote
* obviously mutual masturbation would not be allowed as that would be something to which ‘Alan’ is judged not to be able to consent.
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One thought on “no sex other than masturbation allowed – how do you check?”

  1. It’s worth reading the actual judgement in whole – or this well thought out analysis here
    http://www.complicity.co.uk/blog/2011/02/no-more-sex-youre-too-stupid/

    This was a very very well reasoned judgement dealing with a very difficult case. It is also of an interim nature. The order is broadly in the terms sought by the local authority so I assume they were able to show that it would be enforceable as getting courts to make unenforceable orders is difficult if not impossible.

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