A senior judge has said he "cannot think of any more obviously fundamental human right" than the right of a husband to have sex with his wife in a case concerning a woman with learning difficulties.
Mr Justice Hayden made the comment during the sensitive case, which was brought to court by social services workers, who have asked the court to decide whether the husband, who cannot be named, should be allowed to have sex with his wife.
The officers caring for the woman say that her mental health has deteriorated to the extent that she is no longer capable of giving consent. They asked for a ruling in the Court of Protection, where decisions are made for those who "lack mental capacity" to do so themselves.
The husband had himself said he would no longer have sex with his wife, but Mr Justice Hayden said he wanted to see more evidence and hear further arguments from lawyers before making a decision, saying the man could be put in a position where he faced prison if he breached an order not to have sex with his wife, and that such an order would be difficult to enforce.
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"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," the judge said. "I think he is entitled to have it properly argued."
His comments caused outrage on social media, with many people pointing out that they could think of several more fundamental human rights, "including a wife's right to say no".
Andrew Stroehlein of Human Rights Watch tweeted: "Er... how about her right to say no? Nobody has a "fundamental right" to another person's body. How can that not be obvious?"
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Thangam Debbonaire, the Labour MP for Bristol West, tweeted: "This legitimises misogyny and woman-hatred.... No man in the UK has such a legal right to insist on sex. No consent = rape."
Other Twitter users pointed out that they could "think of several more obviously fundamental human rights, namely all of those which are actually fundamental human rights" and that they could not "think of any more obviously fundamental human right than the right of a woman to refuse sex with anyone, anytime, anywhere, under any circumstances".
However, lawyers defended the judge. The Times reports that solicitor and law lecturer Dagmar Steffens said that Mr Justice Hayden's thoughts may not have been well expressed but that the issue was not as simple as some were making out, asking: "Should this mean that a certain degree of learning disability means you can never have sex?"
Nicki Norman, acting chief executive at Women's Aid, told Pretty52: "Rape in marriage has been illegal since 1991. The judge's comments in court about the "fundamental human right" of a husband to have sex with his wife are outdated and misogynistic, showing a complete disregard for women's rights.
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"The judge's primary consideration in this case must be the woman's safety and the protection of her basic human right to live free from degrading treatment such as rape as set out in the 1988 Human Rights Act.
"Research shows that women with a long-term illness or disability are more likely to be victims of domestic abuse compared with those without a long-term illness or disability, while one in five women supported by domestic abuse services have experienced sexual abuse as part of a pattern of domestic abuse.
"We know from our work with survivors that a woman may be experiencing control, threats and intimidation from her partner which makes it difficult, if not impossible, for her to consent to sex in that relationship.
"The public's outrage at the judge's comments in this case clearly show that some judges are out of step with wider public opinion on cases of violence against women and girls.
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"These judges must be held to account for their old-fashioned and deeply sexist attitudes and there must be investment in training to ensure that everyone within the justice system has stepped forward into the 21st century."
A full hearing is expected in the next few months.
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