Two unrelated issues triggered my thoughts about the topic of this week’s article. The first was American Rapper, T.I., declaring that he takes his daughter, who happens to be an 18-year-old model, to the gynaecologist annually for a virginity test. He wants official confirmation that her hymen is still intact. The second was a decision of the Court of Protection in the UK to lift an eight-year ban, which prevented a woman with learning difficulty from having sex – A Local Authority v H (No. 2)  EWCOP 51.
The Jamaican law, the Sexual Offences Jamaica, Section 10 (1) of the Sexual Offences Act, states that “a person who has sexual intercourse with another person who is under 16 years of age, commits an offence”. Therefore, if T.I.’s daughter were here, she would not be answerable to anyone if she chooses to engage in sexual intercourse.
According to Section 16 (2) of that act, “A person who is suffering from a mental disorder or physical disability shall be regarded as being incapable of consenting to engage in any act where by reason of mental disorder or physical disability, the person is unable to do one or more of the following – (a) understand what the act is; (b) form a decision as to whether to engage in the act (or as to whether the act should take place); (c) communicate any such decision.” In other words, a person who has a mental disorder or physical disability may be incapable of ever consenting to sexual intercourse.
‘Learning difficulty’ vs ‘mental disorder’
While the provisions of the law may differ between Jamaica and the UK, and it is “learning difficulty” (and not a “mental disorder”) that was being considered by the Court of Protection in H’s case, the judge’s comments may still be applicable in the Jamaican context. In 2011, a judge in the Court of Protection ruled that H “lacked the capacity to make any decisions in relation to her residence, care and support arrangements, consent to sexual relations and contraception” pursuant to the Mental Capacity Act 2005. What followed this ruling were severe restrictions on H’s liberty until 2019 when an application was made for the court to reconsider that ruling and reconsider what was in her best interests in light of changes in her life.
In determining that the restriction should be lifted, the judge made the following comments:
(i) “. . . In the field of human relationships, sexual relationships are not as simple. They have far more than a physical component; they have an emotional and ethical component.”
(ii) Based on a doctor’s assessment that H was “able to describe the mechanics of the act and the potential consequences including pregnancy and heterosexual sexual intercourse and the transmission of sexually transmitted diseases”, the court determined that H had the capacity to consent to sexual relations and matters of contraception. However, H still lacked the capacity to decide questions of residence, care, and support arrangements and contact, as well as the capacity to conduct proceedings.
(iii) “It is not the function of the court; it is not the function of the local authority to ensure H lives a moral life. That is her business. It is only the function of the court and the local authority to regulate who she comes in contact with.”
In summary, only a woman herself or a court has the legal right to decide when a woman has sexual intercourse. Therefore, despite the restrictions T.I., is attempting to impose on his adult daughter, unless she lacks mental or physical capacity, he has no legal right to prevent her from engaging in sexual intercourse. However, if she did lack capacity, as determined by a medical doctor (as in H’s case), a court would be able to determine whether she also lacked the capacity to consent to sexual intercourse.
Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to firstname.lastname@example.org or email@example.com.