A Local Authority v JB [2020] EWCA Civ 735; [2019] EWCOP 39

In Re JB, a local authority, concerned with the risk the respondent posed to vulnerable women, successfully appealed against an order made in the Court of Protection that declared JB, an autistic man with impaired cognition, possessed capacity to consent to sexual relations. In this recent decision, the Court of Appeal has arguably reset the last 15 years of jurisprudence concerning P’s capacity to make decisions in regard to sexual relations. Previous case law focused on P’s ability to consent to such relations, and whether P understood the information relevant to that decision. Notwithstanding the abundance of legal authority, including the recent appellate judgments of Hayden J in London Borough of Tower Hamlets v NB and AU (consent to sex) [2019] EWCOP 27. and B v A Local Authority [2019] EWCA Civ 913. there was a lacuna in the existing law in relation to what information was relevant for the purposes of assessing the issue of capacity to consent to sexual relations. Judges have traditionally adopted a protectionist stance in understanding “the information relevant to the decision” under s3(1) of the Mental Capacity Act 2005 (MCA), with an emphasis on whether P understood the risks of pregnancy and sexually transmitted diseases. However, the Court of Appeal in Re JB has broadened its interpretation of ‘relevant’ information to also include the ability to understand the importance of a partner’s consent to such relations. This is a welcome change to previous courts’ interpretations of the ‘nature’ of the sexual act, moving from an approach focused on the physical sexual mechanics to one which views the nature of sex as a mutually consensual engagement. However, a fundamental shift in how we view such cases is likely to have far-reaching consequences, particularly for local authorities and professionals seeking guidance in relation to their care planning.

     

Letter

Tributes for the daughters of earth

Mary Jacobus, First Things: The Maternal Imaginary in Art, Literature and Psychoanalysis, London and New York: Routledge, 1995, £14.99.

Adeline Virginia Stephen . . .

Hermione Lee, Virginia Woolf, London: Chatto and Windus 1996, £20, £8.99 (pbk.).

Virginia Woolf: not so common destinations

Rachel Bowlby, Feminist Destinations and Further Essays on Virginia Woolf, Edinburgh: Edinburgh University Press, 1997, £16.95 pbk.

Gillian Beer, Virginia Woolf: The Common Ground, Essays by Gillian Beer, Edinburgh: Edinburgh University Press, 1996, £14.95 pbk.

Running on empty?

Parveen Adams, The Emptiness of the Image: Psychoanalysis and Sexual Differences, London and New York: Routledge, 1996, £37.50, £11.99 pbk.

Refusing to ‘Pass‘

Lola Young, Fear of the Dark ‘Race’, Gender and Sexuality in the Cinema, London: Routledge, 1995, £40, £13.99 pbk.     

Emmeline pankhurst: a biographical interpretation [1]

This article examines a dominant narrative about, Emmeline Pankhurst, leader of the Women's Social and Political Union (WSPU), the most notorious of the groupings campaigning for the parliamentary vote for women in Edwardian Britain. It is claimed that this narrative is to be found in the influential book, The Suffragette Movement (1931), written by one of Emmeline's daughters, Sylvia. In this book, Sylvia portrays her mother as a traitor to the socialist cause, a leader who deliberately encouraged wealthy Conservative women to join the WSPU and who failed to mobilise the working classes, a misguided autocrat who supported a single-issue campaign, a weak woman easily swayed by her eldest daughter, Christabel, and a failed mother who neglected her less favoured children, Harry, Adela and Sylvia.     

Memsahibs and their servants in nineteenth-century India[1]

Abstract

From the beginning of the nineteenth century, British memsahibs, the wives of officials, military officers, missionaries, and merchants, consistently expounded an image of Indians to the female reading public in Britain through their letters and diaries to female relatives, and through published autobiographies, advice manuals, articles, and advice columns in women's periodicals. Since servants were the group of Indians with whom memsahibs had the most contact, their relationship with domestics shaped British women's attitudes towards the Indian in general. The servants' dark skin and their religious, social, and linguistic differences contributed to the negative attitudes of the memsahibs towards them. The Indian rebellion of 1857 and the emergence of social Darwinism further heightened memsahibs' beliefs that Indians were subhuman savages. Earlier generations of memsahibs influenced the later generations through their derogatory comments about Indian domestics. Furthermore, by writing about their Indian servants, memsahibs identified themselves as active participants in Britain's imperial venture in India.     

Earning and learning: girlhood in pre-industrial Europe [1]

Adolescence was a recognised and significant stage in the life cycle of eighteenth-century girls. It was utilised across Europe and across classes to ‘bring up’ girls, to provide them with the knowledge and social understanding they needed on reaching adulthood. For most, marriage would mark the end of adolescence, and the skills, knowledge, customs and indeed dowries that most had acquired were the necessary perquisites to set them up as a married adult woman. Girls followed many routes, but service was the mainstay of this period of their life, whether in their homes or the homes of others, whether as apprentices, or contracted servants, or whether as simple employees. This article explores the routes girls followed: schooling, service at home, as apprentices, and as servants either in farm or industrial work or as domestic servants. The role of ‘upbringing’ and transmission of culture are fundamental to our understanding of female adolescence. Also, it is important to recognise that girls themselves had a hand in making decisions about how they would traverse these years. So while adolescence had significance within the social constructions of eighteenth-century Europe, it also had meaning for the girls themselves.     

Who Needs [Sex] When You Can Have [Gender]? Conflicting Discourses on Gender at Beijing

‘Gender’, understood as the social construction of sex, is a key concept for feminists working at the interface of theory and policy. This article examines challenges to the concept which emerged from different groups at the UN Fourth World Conference on Women in Beijing, September 1995, an important arena for struggles over feminist public policies. The first half of the article explores contradictory uses of the concept in the field of gender and development. Viewpoints from some southern activist women at the NGO Forum of the Beijing Conference are presented. Some of them argued that the way ‘gender’ has been deployed in development institutions has led to a depoliticization of the term, where feminist policy ambitions are sacrificed to the imperative of ease of institutionalization. ‘Gender’ becomes a synonym for ‘women’, rather than a form of shorthand for gender difference and conflict and the project of transformation in gender relations. ‘Gender sensitivity’ can be interpreted by non-feminists as encouragement to use gender-disaggregated statistics for development planning, but without consideration of relational aspects of gender, of power and ideology, and of how patterns of subordination are reproduced. A completely different attack on ‘gender’ came from right-wing groups and was battled out over the text of the Platform for Action agreed at the official conference. Six months prior to the conference, conservative groups had tried to bracket for possible removal the term ‘gender’ in this document, out of opposition to the notion of socially constructed, and hence mutable, gender identity. Conservative views on gender as the ‘deconstruction of woman’ are discussed here. The article points out certain contradictions and inconsistencies in feminist thinking on gender which are raised by the conservative backlash attack on feminism and the term ‘gender’.