A judge said marital sex is a fundamental human right for men. Let’s not underestimate how dangerous that is

What hope do victims have if our judicial system openly privileges the primal urges of men over the physical wellbeing of women?

Are men entitled to more human rights than women? It often feels as though they are – and it certainly did so this week when a judge announced in court that it was a man’s “fundamental human right” to have sex with his wife. Perhaps we should be asking, instead, whether such a judge deserves the right to a place in the justice system at all.

Let’s rewind. A man whose wife has severe learning difficulties appeared in front of the Court of Protection a few days ago after council officials raised concerns that his wife might no longer be able to consent to sex because of her mental health. In other words, the couple may no longer be able to legally have sex.

Lawyers for the unnamed council in which the couple live are seeking an order that would bar the man from engaging in sexual intercourse with his wife of 20 years. It’s an unusual case that sounds more like an ethical dilemma on a philosophy A-level course than a court hearing.

Before considering the case in detail, the sitting judge Mr Justice Hayden said: “I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife ... I think he is entitled to have it properly argued.”

But the law is clear on this: along with being asleep, unconscious, inebriated or detained against one’s will, if someone is “unable to refuse [sex] because of or for a reason related to a mental disorder”, consent is vitiated and the sexual act becomes unlawful. It becomes rape. There could be no more perfect illustration of institutionalised sexism and bias against women than that a judge – someone in a powerful and trusted position – could refer to “sex with his wife” as the “fundamental human right” of a man.

It’s not the first time that such dangerous comments have been uttered in court. Take the case of the Yorkshire Ripper, in which the prosecution differentiated the killing by Peter Sutcliffe of sex workers on the one hand and “innocent women” on the other.

Or the case last year in which a defence barrister was allowed to submit a teenager’s knickers as evidence that she was “open to meeting someone”.

Then there’s the West Yorkshire police campaign in which women are told never to attend a party at the house of someone they don’t know because they could be raped – notably, this is a campaign which is still being promoted.

When people in such prestigious, decision-making positions hold (and openly air) such views, is it any wonder that public surveys reveal astonishing views surrounding rape? More than a third of people over 65 don’t believe that forced sex in long-term relationships or marriage is rape either. Has society given them a solid reason to believe otherwise?

There are many factors contributing to the stubbornly low rape conviction rates in our country: fear of standing up in court and relaying the minutiae of a harrowing assault; having to face your attacker again; concerns that you may not be believed; or anxieties that your sexual history will be dredged up and used against you (despite rules of evidence which legislate against this).

Can the justice system really say that everything possible is being done to increase conviction rates and encourage rape victims to come forward when they allow judges to make such dangerous – and, importantly, unlawful – comments in court without consequences?

We know that 90 per cent of rape victims already know their attacker and that stranger-in-dark-alley tropes account for a marginal number of attacks. Domestic violence is on the increase and funding is on the decrease. What sort of message would a comment like this send to a violent husband? Quite frankly, it tells him the system is on his side.

Sex is not a human right. Saying no is. And appearing in front of an unbiased judge to assert one’s right to say no is one of the most basic tenets of a functioning society. Without that, how can we claim we are doing anything to change things? Let us not forget that it was legal for a husband to rape his wife in this country until 1991.

Rape, assault and abuse are all weapons used against women as means to exert control over them. When the victim is disabled or vulnerable, this control is even easier to exert. Women with disabilities are more likely to experience domestic abuse than those without.

Rather than thinking of this case as an example of a man’s rights being potentially revoked, the role of a judge in a court of law is to ensure that this woman’s right to consent is being upheld. For it is she who is at risk of losing a human right – the right to protection under law from inhuman and degrading treatment – not he. Why else does our law seek to protect people with dementia from those seeking to take advantage?

One wonders if Mr Justice Hayden believes straight women also have a fundamental right to sex with their husbands, or how this apparently fundamental right might apply in the case of a gay marriage.

These comments go far beyond a mere misunderstanding or misinterpretation of mental health conditions. If they had been uttered to a jury in a rape trial, for instance, there would have been a legitimate possibility that they could have swung the case. Research shows, after all, that we are more likely to believe – and listen to – people in positions of power than our own judgment.

What hope do victims have if our judicial system openly privileges the primal urges of men over the physical wellbeing of women? How can those with disabilities expect to carry out healthy and consensual relationships in the eyes of the law in that context?

Quite simply, sexual assault and low conviction rates persist because comments like these are allowed to be made without remediation – and there’s little hope for progress if we continue to turn a blind eye.