The Legal Forum who produced the Cooper Report have issued the following Note on the matter of “Consent” in relation to conversion practices, and why the UK government should not provide any form of exemption that allows for consent.
Jayne Ozanne, Director of Ozanne Foundation that commissioned the Cooper Report and convened the Legal Forum
“As this memo makes clear, we can only be a champion people’s rights to self-determination if we adequately safeguard people from inappropriate pressure. That is why the Legal Forum is stressing that consent cannot be allowed in relation to “conversion therapy”. What is more, all attempts to change, “cure” of suppress a person’s sexual orientation or gender identity are by their very nature coercive as they come from a mindset that says only certain sexualities and gender identities are acceptable.”
Revd Dr Helen Hall, Associate Professor at Notthingham Trent University and Anglican priest who specialises in law and religion/belief, in particular issues around exorcism, children and vulnerable people.
“Any ban on conversion practices which allows an exception for consent will fail to protect vulnerable people. Whilst some individuals are physically compelled to take part, many more walk in and apparently assent to participating, but they do so as a result of immense social, emotional and often spiritual pressure. Consent in these circumstances is not voluntary or informed, and treating it as such is a defeat for free choice rather than a victory.”
The signatories to this memo are:
Lawyers Baroness Helena Kennedy QC (Chair)
Robin Allen QC (former Head of Cloisters)
Robin Dormer (Retired Parliamentary Counsel)
Revd Dr Helen Hall (Associate Professor in Law, Nottingham Trent University)
Professor Javier Garcia Oliva (Professor in Law, University of Manchester)
Professor Nick Grief (Emeritus Professor of Law, University of Kent)
Dr Craig Purshouse (Senior Lecturer in Law, University of Liverpool)
Dr Ilias Trispiotis (Associate Professor in Human Rights Law, University of Leeds)
MPs/Peers Baroness Liz Barker (Liberal Democrats)
Crispin Blunt MP (Chair of APPG on Global LGBT+ Rights)
Angela Eagle MP (Labour)
Wera Hobhouse MP (Liberal Democrats Spokesperson for Women and Equalities)
Civil Society Susie Green (CEO, Mermaids)
Nancy Kelley (CEO, Stonewall)
Paul Martin (CEO, LGBT Foundation)
Leni Morris (CEO, Galop)
Jayne Ozanne (Director, Ozanne Foundation)
Peter Tatchell (Director, Peter Tatchell Foundation)
Cooper Report: Consent, Autonomy and the Law
The right to self-determination is fundamental in a liberal democracy. The freedom of individuals to make choices about their body and health, and the liberty to hold and express their religious, political and ideological values, are both core elements of this right. This is reflected in the national and international human rights instruments, and is a deep part of the Constitutional Culture of the United Kingdom.
However, the law also recognises that a failure to protect the vulnerable from exploitation or duress would undermine, rather than promote, personal autonomy. Self-determination can only be preserved if individuals are adequately safeguarded from inappropriate pressure. If the coerced or managed expressions of the disempowered are accepted as genuine and operative consent, then their freedoms and dignity are stolen rather than championed. The legal system must, therefore, regulate the practices to which individuals can consent.
The legal framework consistently restricts personal autonomy in circumstances where there is a real risk of a large number of vulnerable people giving consent through coercion or manipulation, even if a small number of individuals might theoretically give free and informed consent.
Consent to Harm
Legislation in relation to domestic violence, female genital mutilation and forced marriage all provide examples of circumstances in which Parliament has recognised the danger of permitting consent in respect of harmful or potentially harmful practices and activities.
Case law establishes that subject to limited and recognised exceptions (e.g. medical treatment, ritual male circumcision) individuals cannot consent to actual bodily harm or more serious injury. This was articulated in R v Brown, a case concerning the ability to consent to adult sado-masochistic sexual activity. It is important to note that whilst the decision has received some criticism on grounds of homophobia and paternalism, it has also been robustly defended by commentators citing the dangers of giving perpetrators of domestic and sexual abuse the potential defence of consent, further stripping protection from their already disempowered victims.
This policy approach also extends to settings where religious freedoms are engaged, so that aside from limited and recognised exceptions (e.g. ritual male circumcision) actual bodily harm may not be inflicted in a religious context, particularly where there is an imbalance of power (e.g. in the offering of exorcism rituals). Where behaviour is serious enough to warrant criminalisation, the law allows consent as a defence only where it is in the balance of societal interest to do so. Where a significant number of vulnerable people may suffer harm, it will not be in the balance of collective interests to permit an activity.
When the issue was recently considered in relation to bodily modification outside of healthcare settings, the court addressed the point that unregulated practitioners offering such services would not be subject to the same ethical codes and regulation as clinicians. Doctors have duties to ensure that patients are in a position to provide informed consent, and are qualified to identify when a person may have compromised capacity to do so; without this framework in place, vulnerable people might agree to harmful procedures without fully appreciating the consequences.
In shaping policy, the legal system has to adopt an approach which works at a societal level. Theoretically, a person with full capacity to consent and assess the risks might attend a tattoo or piercing studio and pay to have their tongue split, but a framework which permitted this would be exposing vulnerable people to undergoing such procedures without adequate consent and the protection of medical ethics. The law has to take cognisance of all of the social factors in play in deciding how to balance autonomy and protection. The same principle applies to the question of conversion practices.
Conversion Practices and Consent
Whilst conversion practices do not always involve physical harm, the legal framework has long recognised that diagnosable psychological harm is a form of personal injury, and it is demonstrable that such practices pose a very grave risk of this kind of damage being inflicted. Given that is condemned by bodies such as the Royal College of Psychiatrists and many other medical bodies, it necessarily takes place outside of well-regulated ethical frameworks where capacity to consent can be assessed.
Furthermore, conversion practices invariably involve an imbalance of power. The persons receiving such intervention understand their sexual orientation or gender identity to be undesirable, pathological or transgressive in the view of a social group of which they are a part, and are often emotionally and/or financially dependent (e.g. a family or faith community). In contrast, the persons offering this intervention hold themselves out as being able to resolve this. This context creates an inevitable imbalance of power and pressure to acquiesce, rendering consent nugatory in the vast majority of cases.
As noted above, in determining policy, the legal framework must recognise the circumstances of all members of society, not only the privileged or empowered. The possibility of a rare hypothetical individual giving genuine consent does not render it acceptable for many vulnerable people to be harmed in circumstances where they cannot consent. The current legal approach to the issue of consent in other areas reflects the need for this balance between autonomy and protection, whereas continuing to permit conversion practices would enable abuse and therefore undermine, rather than promote, individual freedom and dignity.
As such, allowing conversion practices to take place is out of step with the position of the law in other areas, because it fails to protect individuals from harm to which they are unable to give free and informed consent, as detailed in the main body of the Cooper Report. The imbalance of power, combined with the social context of conversion practices, render free and informed consent almost impossible to achieve, therefore the case for prohibition in the public interest is overwhelming.