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Capabilities, Capacity and Consent: Sexual Intimacy in the Court of Protection

Lindsey, Jaime and Harding, Rosie (2020) 'Capabilities, Capacity and Consent: Sexual Intimacy in the Court of Protection.' Journal of Law and Society. ISSN 0263-323X (In Press)

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Abstract

This article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity. The capabilities approach to justice is then used to demonstrate the limitations of this approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non-consensual sex and exploitation. Finally, the paper argues that, rather than focusing on a medicalised approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people realise their rights to sexual intimacy.

Item Type: Article
Divisions: Faculty of Humanities > Law, School of
Depositing User: Elements
Date Deposited: 23 Jul 2020 12:13
Last Modified: 23 Jul 2020 12:13
URI: http://repository.essex.ac.uk/id/eprint/28295

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