Capacity to Consent to Sex in the Civil and Criminal Law: Blurring the Boundaries

This chapter presents a doctrinal analysis of the issue of capacity to consent to sexual relations at the intersection of the civil and criminal law, exploring the various aspects of the Mental Capacity Act 2005 and the Sexual Offences Act 2003. The chapter starts with the position outlined by the Supreme Court in A Local Authority v JB, with which the authors agree, to argue that ‘consent’ as a concept ought to be part of the information relevant to a decision to engage in sex. It then goes on to explore the various boundaries between the civil and criminal legal frameworks regarding capacity to consent to sex, justifying the differences in approach through analysing their differing theoretical and policy functions. Furthermore, the chapter considers whether it is right to view the boundaries between the civil and criminal law here as fixed or unchangeable, and whether, instead, we might usefully learn from a hybrid approach to dealing with the problem of sexual offending towards vulnerable adults.