A High Court judge has come under fire for describing a man’s right to have sex with his wife as a “fundamental human right”. He was sitting in the Court of Protection, deciding whether a man could have sex with his wife, who suffers from learning difficulties. This statement by the judge has been universally condemned; however I believe he was right to make it and it was important for him to have done so.
A human right to have sex with one’s spouse exists and is legally enforceable. The Human Rights Act, broadly and generally, lists our basic human rights. Article 8 provides for the right to have one’s family and private life respected, prohibiting the government from unnecessarily interfering in individuals’ private and family lives. Having sex with one’s spouse is such an integral part of one’s ‘family life’ that, although it is not explicitly mentioned, it is undoubtedly covered by Article 8. If the Government banned a married couple from having sex, it would give rise to a viable human rights claim. There is therefore a human right to have sex with one’s spouse.
People who have objected to the judge’s words seem to be harbouring a misconception that human rights are rights people have against each other. This is not the case. Human rights are rights that individuals have against the state. They relate to aspects of people’s lives that states cannot interfere with. There is, sadly, no human right to food. But if there was, it would mean the government should feed people, not that people could eat anyone’s food whenever they wanted. There is a human right to freely express one’s opinion. All it means is that the government should not stop people from expressing themselves. It does not mean that other people can be forced to hear that person speak, or to read what they write. The right to family life means the government must not interfere in people’s family lives; it does not mean people can force their families to make them part of their lives. One’s “right” to have sex merely means one’s sex life is not for the government to interfere with, not that one can have sex wherever, whenever, however and with whoever one wishes.
A human right to have sex with one’s spouse means this is an area that should be free of government interference. No state institution, including courts, should dictate when or how a married couple has sex. Article 12 of the Human Rights Act protects the right to marry. Being able to marry a person of one’s choosing is a basic, legally-enforceable human right. But the consent of the other person is implicit in this. Clearly, this “right to marry” does not mean we can force people to marry us or bring a human rights claim against them if they refuse to. This right just means it is not the government’s business who an individual marries nor is the government entitled to interfere with it. Similarly, the human right to have sex with one’s spouse merely means the government should not interfere in married couple’s sex lives. The consent of both parties is implicit in this, and indeed sex without the other spouse’s consent would constitute rape. The “human right” to have sex with one’s spouse means the government can be sued if it unnecessarily interferes with it; it does not mean one’s spouse can be sued for refusing to have sex.
The case in which the judge was making this decision was particularly sensitive. A married woman suffers from learning difficulties and is becoming increasingly unable to consent to sex. So what does that mean for her husband? The judge, correctly, reminded himself that the state should be very hesitant to police sexual relationships between spouses. With that in mind, and having made clear to everyone, including the husband, that he understood this basic legal principle, the judge proceeded with the case.
This seems to be a balanced, sensible way for the judge to have approached an exceptionally sensitive case. It was important for the judge to have mentioned the husband’s ‘rights’ at the outset to make clear he was conscious there were two people involved in the case – not just the wife – and that the decision would affect not just her but him too. It may well be that when the case returns to court, despite the husband’s “right” to have sex with his wife, the judge rules this is an exceptional case where the state should intervene and ban the husband from having sex with his wife. But at least, by the judge’s words, the husband’s right has been acknowledged.
Any party in court should know they have been heard properly and their rights have been considered. It is therefore essential for judges to make statements such as this, even if it means they can be misinterpreted when reported in isolation. The husband in this case, now caring for the woman he has loved and been married to for 20 years, needed to be assured that his role in her life was not being taken over by the state, and that the judge would consider his rights when making his decision. The judge was therefore correct, indeed duty-bound, to make this statement.
Shoaib M Khan is a human rights lawyer