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RSE and the Law – 2020

posted by Peter Imray on the 10th January 2020

Background.

The delivery of Relationships and Sexual Education (RSE) will become compulsory in English schools from September 2020. This has always been a necessary, though challenging subject to teach to pupils and students with profound and multiple learning difficulties and severe learning difficulties (Stewart et al, 2015) with or without an additional autistic spectrum condition, because the very nature of relationships is naturally flexible, movable, contextual and therefore engages with numerous abstract constructs and situations. One of these concerns the nature of masturbation, particularly in relation to where and when one can do it. It is relatively easy to teach about private and public and though the lessons may for some, take a long time to learn, they are learnable by most.

However, a very small number of people, usually the most complex with the greatest degree of learning difficulty and the highest level of need, may well find extreme difficulty in deferring sexual release and indeed, in understanding the necessity to defer sexual release. It has therefore become fairly common practice for special schools particularly, not only to allow pupils who are obviously in need to use a locked cubicle in a school toilet to masturbate, but also to actively encourage those who are obviously in need to do so. That is, it has become an essential part of the curriculum and teaching process to encourage learners to take responsibility for self-regulation. They can only do this if they can have access to an immediate solution, such as using a locked cubicle in a school toilet.

Part of my responsibilities as Director of Developments at Equals (a UK Based not-for-profit charity working for the educational interests of people with SLD and PMLD and their families) is to develop curriculum materials. In order to discover the latest thinking in the area of RSE and learning difficulties, I attended a one day course recommended by the Sex Education Forum (SEF) run by two very experienced workers in the field namely, Mel Gadd and Claire Lightley. They advised in the strongest possible terms, that the strategies evolved by special schools over a number of years are illegal and therefore invite prosecution of both students and staff.

This short paper is written with a desire to find areas of agreement that can overcome an apparently intractable contradiction. That is, whilst the argument on the illegality of the act of masturbation in a school toilet (or indeed in any public toilet) whether in a locked cubicle or not, is certainly factually correct, I would suggest that the Sexual Offences Act 2003, does not mean that:

‘if you allow or enable a person with learning disabilities to masturbate in a public place or where other members (especially other children) of the public access, such as a school or college toilet, you are potentially enabling or/and committing a sexual offence and placing the young person and yourself at risk of prosecution.” (Gadd, 2018)

Indeed, I am arguing that such advice is

(i) positively harmful to the mental well-being of a number of young people and adults with severe learning difficulties (SLD) and profound and multiple learning difficulties (PMLD);
(ii) in direct contravention of the Equality Act 2010 and Article 14 of the European Convention on Human Rights;
(iii) potentially and unnecessarily placing in physical danger those who are supporting young people and adults with SLD and PMLD, as well as other members of the public, other students and indeed the persons themselves;
(iv) in direct contradiction to the process of maximising independence in learners, particularly with regard to maximising opportunities for all learners in all circumstances to take control of, and be responsible for, their own behaviours.

Let me expand on these one at a time.

1. Literal enaction of Sections 17 and 71 of the Sexual Offences Act 2003, may well be positively harmful to the mental well-being of a number of young people and adults with SLD and PMLD.

Gadd and Lightley are rightly insistent that masturbation is a natural, normal and pleasurable activity, and that:

…..every young person with learning disabilities receives programmes of education on growing up, sex and relationships tailored to age and developmental ability. (Gadd, 2018 p5)

There are however a small but growing number of children, young people and adults, presenting with very complex needs (Pinney, 2017) for whom Carpenter (2011) has described schools as being ‘pedagogically bereft’. That is, their needs are so severe, so different, so complex, they do not fit into any category for whom the current education system has an answer. One thing is certainly clear; it is not possible to instruct these young people to do anything they don’t want to do and have any reasonable expectation that they will concur (Imray, 2018; Imray et al 2017).

Interestingly, two of the examples used (Gadd, 2018 p5 and Gadd, 2019 p7) talk of a young man with the developmental age of a six year old, and advises that he should wait until he gets home. In severe learning difficulties (SLD) terms, this is the equivalent of a very high functioning learner who is possibly able to defer gratification and fully understand the concept of waiting until he gets home. There are however, many with SLD, particularly those functioning consistently and over time within the lower levels of the P Scales, that is, well below the developmental age of six, and all with PMLD, who do not, and by definition, cannot, have this level of understanding. One might as well expect a 12 month old to stop crying on demand because this is not an appropriate place to cry.

Further, even the young man with the developmental age of 6 is unlikely to be able to do what other neuro-typical, conventionally developing teenagers in school can do and often do do; that is, ask to go the toilet when he wants to masturbate. As long as the neuro-typical, conventionally developing teenager doesn’t advertise the reason for going to the toilet, no-one is going to deny him. The neuro-typical teenager probably knows that it’s perfectly normal and natural to masturbate, works out that the only way he can concentrate on his school work is to relieve himself, and takes himself off, making sure to lock the cubicle door and not draw attention to himself. If someone with SLD, even a high functioning person with SLD, is to have the same right, we will have to teach him that it’s a positive thing to do. It is highly unlikely that he will be able to work this out for himself because this is generalising understanding and if he found this level of generalising easy, he wouldn’t have SLD.

We therefore have to spend a considerable amount of time positively teaching him that it is a good thing to go to the toilet to relieve himself when he is not able to suppress his sexual excitement, providing he follows certain basic rules, such as locking cubicle doors. It is, I would suggest, contradictory to argue that masturbation is normal, natural and good, but masturbating when one really needs to, is bad. Such a stance can only lead to confusion and misunderstanding and will quite possibly be extremely deleterious to his good mental health. We would not consider denying other natural desires; we accept that ensuring sufficient food, water, exercise, warmth, kindness, love etc is good for one’s mental health. If a learner desires food and water now, it would be perverse and even abusive to demand that the learner defers this desire for several hours; why should we do this for masturbation?

Given these conditions, it seems reasonable that we teach all those with learning difficulties, whether high functioning or not, a certain clear, basic principle. That is,

any form of sexual activity needs to take place in private, this means in places where other people are not and I can be by myself (Gadd, 2019).

This phrase is taken from the handout given on the day of the course. My argument is that a toilet with a locked door (wherever the toilet is) is a place where ‘other people are not and I can be by myself’.

Secondly, it can be argued that the Gadd and Lightley advice is in direct contravention of the Equality Act 2010 and Article 14 of the European Convention on Human Rights.

The nature of the law is that by and large, it operates under the principle of reasonableness. One can see this in the recent judgement of Judge Rowley (Sellgren, 2019).

Judge Rowley questioned whether the law as it stands within the Equality Act discriminates against children who habitually express challenging behaviour, which is itself part (and sometimes a very central part) of their SEND. The key lies in recognising that “aggressive behaviour is not a choice for children with autism”. In making this statement Judge Rowley held that:

“In my judgment the Secretary of State has failed to justify maintaining in force a provision which excludes from the ambit of the protection of the Equality Act children whose behaviour in school is a manifestation of the very condition which calls for special educational provision to be made for them. In that context, to my mind it is repugnant to define as ‘criminal or anti-social’ the effect of the behaviour of children whose condition (through no fault of their own) manifests itself in particular ways so as to justify treating them differently from children whose condition has other manifestations.”

We know, do we not, that expressed and overt challenging behaviour is a common feature of a number of conditions that fall within the SEND umbrella. Autism is certainly one, but it is also fairly common in those with severe learning difficulties, moderate learning difficulties and profound and multiple learning difficulties, and when these conditions are mixed, that is ASD plus SLD for example, it is even more likely (Emerson et al, 2014 for example). Indeed, challenging behaviour has long been regarded as being ‘normal’ for those with learning difficulties (Hewett, 1998). We know also that the nature of challenging behaviour is enormously disabling for those who are stuck in the cycle (O’Brien, 2016; Ashton, 2015 for example) and that challenging behaviour is defined by us.

‘Challenging behaviour’ is a socially determined construct. Reiteration of this construct and its accepted definition is necessary to focus assessment, formulation and interventions on the relationship between the individual and their environment, rather than on the elimination of behaviours. (Learning Disabilities Professional Senate, 2016, p4)

Imray (2018) argues that recognition of this has profound implications for how we, as educators, carers, advisors, supporters etc respond.

Let’s just deconstruct this statement, because this is very, very important. Challenging Behaviour, with capital letters and as a ‘category’ or as a label which we might assign to a child, young person or adult is not the same as severe learning difficulties or profound and multiple learning difficulties or autism. These are also categories or labels, but it is not possible to change them. A child who has SLD will grow into an adult with SLD and there is nothing anyone can do about this. It is not because of bad teaching, or bad schooling, or bad parenting; it is what it is. It might be considered to be an impairment, in the same way as having no right arm is, though it is not necessarily disabling, if we as a society choose not to make it so. (Imray, 2018 p7)

We can however, decide the opposite course and actively choose to make the impairment disabling. That is, we can (and often do) choose to disable, by for example, insisting that all children conform to our rules, do things our way, cope with situations and stresses that we can cope with, communicate in ways in which we communicate, are interested in things which we find interesting, obey rules which we are able to conform to, are conversant with and apply social rules which we have put in place etc, etc, etc. We do all of these things even when we know that children will have difficulties in doing so, and all of their behaviours are telling us that they have no interest in doing so. In such situations we should not be surprised when some children raise objections. And this is very much the point, the objections are highly likely to be physical expressions of challenging behaviour, often violent, often painful, because those who are expressing them have no other way because of their SEND. Children who express habitual challenging behaviours do not do so out of choice, they do so because they have no other way (Imray and Hewett, 2015).

Article 14 of the European Convention on Human Rights obliges us to reach decisions which do not involve us acting irrationally, given the information we have before us. It requires that all of the rights and freedoms set out in the Act must be protected and applied without discrimination. Discrimination occurs when one is treated less favourably than another person in a similar situation and this treatment cannot be objectively and reasonably justified.

Similarly, the spirit of the Equality Act is to state very clearly and plainly that we cannot use a person’s impairment as a reason to disable them. We would I’m sure regard it as ‘repugnant’ to suggest that someone without physical mobility should be excluded because they can’t get to their next classroom under their own volition. The issue relating to challenging behaviour, and indeed masturbation, is no different. Judge Rowley has (rightly) argued that the law must not be interpreted in a way that disadvantages those with SEND. Not offering a person an opportunity to sexually relieve him or herself in the same way that is open to those without a learning difficulty (by for example, innocently asking to go to the toilet) is effectively discriminating against that individual because of his/her learning difficulty.

3. The advice potentially and unnecessarily places in physical danger those who are supporting young people and adults with SLD and PMLD, as well as other members of the public, other pupils and indeed the persons themselves.

I don’t think I need to overly expand on this, because the arguments have already been made. Most with learning difficulties may be able to defer sexual relief, some will not. Those ‘some’ may well react in a negative manner, which may be physically violent in nature, and to be honest, who would blame them.

If a learner has communicated a basic request – I am hungry and need food, I am thirsty and need drink, I am cold and need warmth, I am frightened and need comfort, I am sexually frustrated and need relief – but this is being refused, it is not unreasonable that the person being refused gets annoyed. Why would they not? Clearly the level of that annoyance will vary from person to person, but those who are doing the refusing have to expect challenging behaviour, and no amount of admonitions, strong/strict voices, clear instructions etc. will overcome this crisis. The point is here that this is entirely unnecessary. All learners can be taught to take control of their own behaviour, providing they are given control over the resolution. If we are not willing or able to give them control, we mustn’t be surprised at the behaviour.

4. Lastly, and following on from the points above, the advice is in direct contradiction to the process of maximising independence in learners, particularly with regard to ensuring wherever possible, that all learners in all circumstances take control of, are responsible for, and crucially, are able to self-regulate their own behaviours.

We can, through repetition and constant over-learning, ensure that all learners with SLD at least understand

  • which parts of the body are universally private
  • that permission is central to touching others and being touched by others, especially on private parts of the body
  • that sexual acts such as masturbation must be conducted in a private space
  • that a private space means somewhere where I can lock the door, where other people are not and where I can be by myself
  • that I will be taught the exact geographical location of private spaces and public spaces in the environments that I normally inhabit such as school, home, out in my local community etc.

If we are reliant on members of staff telling learners what they are not allowed to do, and ensuring that they do not do what they are not allowed to do, the individual with learning difficulties will always be reliant on such people making the decision. Any notion of independence will be a sham since we are fostering a paternalistic relationship where those without learning difficulties always know best and will always be directive.

Peter Imray
9th January 2020

References

Ashton B (2015) Promoting Positive Behaviour in S Martin-Denham (ed) Teaching Children and Young People with Special Educational Needs and Disabilities. London. Sage.

Carpenter, B. (2011) Pedagogically Bereft!: Improving learning outcomes for children with foetal alcohol spectrum disorders. British Journal of Special Education 38 (1): 38–43.

Emerson, E., Blacher, J., Einfeld, S., Hatton, C., Robertson, J., & Stancliffe, R.J. (2014). Environmental risk factors associated with the persistence of conduct difficulties in children with intellectual disabilities and autistic spectrum disorders. Research in Developmental Disabilities, 35, 3508–3517.

Gadd M (2108) Common concerns and suggested solutions: Guidance document 2017. FPA Project Jiwsi.

Gadd M (2019) Masturbation: Working with people with learning disabilities. Lightly Consulting/Cwmni Addysg Rhyw/Sex Education Company.

Hewett D (1998). Challenging Behaviour is Normal in P Lacey and C Ouvry (eds) People with Profound and Multiple Learning Difficulties. London. David Fulton.

Imray P (2018) Turning the Tables on Challenging Behaviour (2nd ed). London. Routledge.

Imray P, Colley A, Holdsworth T, Carver G and Savory P (2017) Listening to Behaviours: adopting a Capabilities Approach to education. The SLD Experience. 76: 3-9.

Imray P and Hewett D (2015) Challenging Behaviour and the curriculum in P Lacey, R Ashdown, P Jones, H Lawson and M Pipe (eds) The Routledge Companion to Severe, Profound and Multiple Learning Difficulties. London. Routledge.

Learning Disabilities Professional Senate (2016) Challenging Behaviour: A Unified Approach. London. The Royal College of Psychiatrists.

O’Brien, J. (2016) Don’t Send Him in Tomorrow: Shining a Light on the Marginalised, Disenfranchised and Forgotten Children of Today’s Schools. Carmarthen. Independent Thinking Press.

Pinney A (2017) Understanding the needs of disabled children with complex needs or life limiting conditions. London. Council for Disabled Children/True Colours Trust.

Sellgren K (2019) School exclusion of autistic boy unlawful, judge rules. Katherine Sellgren, BBC News education report; accessed at www.bbc.co.uk on 19th October 2019.

Stewart D S, Mallett A and Hall T (2015) Sex and Relationships Education in P Lacey, R Ashdown, P Jones, H Lawson and M Pipe (eds) The Routledge Companion to Severe, Profound and Multiple Learning Difficulties. London. Routledge.