Capacity to consent to sex reframed: IM, TZ (no 2), the need for an evidence based model of sexual decision-making and socio-sexual competence

Recent English cases have set a very low threshold for the capacity to consent to sexual activity, and the Court of Appeal in IM v LM (2014) has held that “the ability to use and weigh information is unlikely to loom large in the evaluation of consent to sexual relations.” Such cases significantly affect the legal status of such activities involving persons diagnosed with a learning disability (LD), an autistic spectrum disorder (ASD) or other neurodiverse (ND) conditions. A principal focus on two cases in particular—IM v LM (2014) and A Local Authority v TZ (no 2) (2014)—supports the argument that the current test needs reframing from a relationship-centred perspective, in order to reflect an evidence-based model of sexual decision-making. Relevant training for persons diagnosed as LD, ASD, or ND is essential in order to promote socio-sexual competence. This is critical for resolving existing tensions between (1) sexual rights guaranteed in international agreements; (2) criminal law provisions and local authorities' obligations to protect the vulnerable; and (3) sexual health concerns.