We have justifiably high demands of judges. With their weighty responsibilities, it’s not wrong to expect fairness, impartiality, a willingness to listen to both sides of an argument, and above all, a deep and intimate knowledge of the law. After all, lives are at stake in their presence.
We also want judges to carefully consider their words with sober, solemn care because there are real world repercussions to what they say. And if there’s any doubt about that, look no further than Britain, where one judge’s remarks in court — not even a ruling, just a comment — have sparked a backlash.
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A British judge found himself in hot water for some comments he made during a complicated court case.
As The Guardian reported, Mr. Justice Hayden drew widespread outrage after saying in court that he “cannot think of a more obviously fundamental human right than the right of a man to have sex with his wife.”
Justice Hayden’s comment came while hearing a case asking for a court order to prevent a man from having sex with his wife of 20 years.
It’s a sad situation. Lawyers for a social services group brought the case to argue that the man’s wife, who has learning difficulties, has deteriorated enough that she now lacks the mental capacity to consent to sex.
They have suggested that the judge might need to formally prohibit the man from having sex with his wife to protect her from being raped.
The husband’s lawyers said that the man had already offered to provide an undertaking that he would not have sex with his wife.
However, Mr. Justice Hayden wants to see all the evidence in more detail and hear arguments before ruling.
He said that if he has to issue a formal order, it would be a challenge to police. That’s when his controversial comments came up.
“I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife — and the right of the state to monitor that,” he said. “I think he is entitled to have it properly argued.”
His comments have, understandably, stirred up a firestorm.
Harriet Hall, a columnist for The Independent , called Justice Hayden’s comments “dangerous,” saying that “Sex is not a human right. Saying no is…Let us not forget that it was legal for a husband to rape his wife in this country until 1991.”
A Member of Parliament seized on Justice Hayden’s comments as well.
“This legitimizes misogyny and woman hatred,” Thangam Debbonaire tweeted . “A judge stating ‘I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife.’ No man in the UK has such a legal right to insist on sex. No consent = rape.”
“No capacity to give consent does not remove the requirement for consent, under the terms of the 2003 Sexual Offences Act, lack of capacity to consent means no consent can be given,” she continued.
“This judge is giving out a dangerous set of messages in his pronouncements. The individual case sounds complex and needs careful thought. But no judge should give out this sort of misogynist and inaccurate message. What it says about his values is awful – more important human right than right to bodily integrity? Really?”
Others online wondered if maybe Justice Hayden needed to go back to school on a few matters.
People specifically pointed to the U.K. Human Rights Act (see Article 8 , which guarantees the “right to control who sees and touches your body”), as well as the European Convention on Human Rights.
Many people on Twitter wondered if Justice Hayden even belongs on the bench anymore.
It’s important to remember that Justice Hayden hasn’t made an official ruling in the case at hand just yet. However, his comments are still certainly troubling.
h/t The Guardian
