Disabling consent, or reconstructing sexual autonomy.

Author:Fischel, Joseph J.
Position:IV. Disabling Consent: Notes for a New Statutory Scheme of Sexual Regulation B. Reforming Sexual Assault Law (for Persons with Disabilities
  1. Capturing Status

    No matter how (re)furbished, consent is not synonymous with nor solely constitutive of sexual autonomy, now relationally defined and inclusive of persons historically ejected from autonomy's ambit.

    Another compensatory reform, then, to the gap in sexual assault protections for severely disabled persons is the expansion of laws to regulate or criminalize sexual conduct within certain relationships of dependence unaddressed by extant status restrictions. Status restrictions are, for the most part, strict liability offenses unconcerned with intent, scienter, consent, etc. Sex otherwise consensual may nonetheless be impermissible under per se proscriptions.

    Status restrictions on sexual relations are neither unprecedented nor uncommon: assault laws frequently contain provisions restricting or prohibiting sexual contact within particular relationships. (389) These status restrictions include provisions restricting sexual conduct between parents and their children, teachers and their students, employers and their employees, and/or doctors and their patients. (390) Laws regulating sex within family relationships (often codified as "incest") commonly target consanguinity or biological relation over power inequality. (391) Laws regulating sex between teachers and students are premised on both the alleged immaturity of minors (392) and the likelihood of coercion or manipulation. (393) Age of consent statutes, perhaps the most widespread example of status restriction codifications, are generally understood to concern both the uneven social power dynamics between adults and minors as well as the presumptively limited developmental capacity of young people. (394) At their best, status restrictions track manipulations of relational dependence. Status restrictions reflect that there are certain professional, familial, and other social relationships in which one subject is disqualified from processes of sexual negotiation due to acute dependence and/or inequality (e.g., psychotherapists, high school coaches, aunts, and uncles). (395)

    Like other states, Connecticut criminalizes sex not only between adults and minors (396) (and between older adolescents and younger adolescents/children), (397) but also within specified relations of dependence. Connecticut currently imposes restrictions of differing degrees of severity on relationships between parents/guardians and their children, (398) custodial supervisors (in the justice system, hospitals, and other institutions) and their charges, (399) psychotherapists and their patients, (400) school employees and students, (401) coaches and players at the secondary school level, (402) and employers and employees--if the employer is twenty-years-old or older, and the employee is under eighteen. (403) Sexual contact is also limited among familial relatives, along kinship lines stipulated in Connecticut General Statute [section] 46b-21. (404)

    But are these restrictions sufficient? Or to put this differently: how often do perpetrators of sexual assault "look" like Richard Fourtin--the mother's boyfriend, an informal caretaker, a person of trust? Might prevalence of sexual abuse within heretofore unregulated relations of dependence be grounds for proscription?

    a. Capturing Status by the Numbers

    To track patterns of sexual violence within relations of dependence, we reviewed, coded, and analyzed all sexual assault cases heard by the Connecticut Appellate Court between January 1, 2010, and March 1, 2015: a dataset of 175 cases and 205 unique victims. (405) The results confirm research on sexual assault incidence more generally, which suggests that about 80% of sexual assaults are committed by someone known to the victim (406)--a number that rises to over 90% for victims who are minors when assaulted. (407) Of all victims whose connection to the perpetrator is described in the respective case (n = 161), 87.0% had a prior, established relationship with the perpetrator, and 72.0% had a relationship that could be classified as involving significant dependence and/or power imbalance. (408) Sex within some of these relationships is already prohibited in Connecticut--for example, sex between fathers and their children, or sex between a teacher or coach and their students. (409) In other relationships, though, manipulations of power and dependence may go unchecked.

    Although fathers--the most common perpetrators in this set--are prohibited by status restriction from engaging in sexual contact with their children, mothers' boyfriends, and unmarried partners of parents generally, are not (our dataset contained only one female perpetrator). (411) The statutory focus on fathers rather than unmarried parents' partners as potential perpetrators (even when the partner cohabits with the mother and maintains a parental household role) (412) seems, superficially, commonsensical: the relationship involves neither consanguinity nor a formal, legal relationship of dependence. As shown in Table 1, though, mothers' boyfriends may perpetrate sexual assault at close to the same rate as fathers: they are the second most common perpetrators in our case review (accounting for 14.9% of assaults across appellate cases in which the relationship between victim and perpetrator is specified, compared to 17.4% for fathers). Uncles, also common perpetrators (6.8%), are prohibited from sexual contact with their nephews and nieces, but only by consanguinity. (413) An uncle by blood faces status restrictions on sexual contact with his niece or nephew, but an uncle by marriage (or an aunt's live-in boyfriend) does not. (414) These legal discrepancies--or what we might crudely call "the green light" for mother's boyfriends and uncles--demonstrate the failure of existing status restrictions to capture common manipulations of relational dependence.

    If, in the interest of protecting and promoting sexual autonomy, we shift from a model of status restrictions based on age and consanguinity (or legal affinity, e.g. relatives "by marriage" rather than "by blood") to a model based on significant dependence and inequality, other relationships may be regulable. Sexual autonomy might provide normative grounds to restrict, for example, sexual contact between a young woman and her mother's boyfriend, as the young woman may be unduly impeded from codetermining (in the Fourtin scenario, exiting) the relation despite the absence of a formal (legal or consanguine) relationship.

    Recall Rubenfeld's second seventeen-year-old (pressured into sex with the high school principal (415)) and Spindelman's cannibalistic sex. (416) We are inclined to think of sex in heretofore legally unregulated relations of dependence (namely, the child of a parent and the parent's intimate partner) like sex between a teenage student and a high school teacher, or, strange-sounding as it first seems, sex that entails killing, eating, or causing severe and irreversible injury to one's partner. Under a relationally reconstructed sexual autonomy sensor, sex with your mother's boyfriend, sex with your high school principal, and sex that involves irreversible injury may be impermissible because of the permanent constraints they level on an individual's (sexual) future, and therefore hir ongoing ability to codetermine sexual relations. (417) Relational sexual autonomy protects not just the sexual present but the possibility of a sexual future. And capturing status relations, as opposed to extending the reach of "physical helplessness" or "mental incapacity," renders sex between Richard Fourtin and L.K. impermissible, without the risk of criminalizing all sex with persons with disabilities.

    Viewed alongside our appellate case review, Fourtin appears both exceptional and typical. Exceptional, because the statutes under which Fourtin was charged-- those that reference physical helplessness--are so infrequently exercised by the state (418) and because reported assault cases rarely involve victims with identified disabilities. (419) Typical, though, because the relationship between Richard Fourtin and L.K. was one of significant dependence and power imbalance due to Fourtin's dual roles as L.K.'s mother's boyfriend and one of L.K.'s informal caretakers. (420) A recurring theme across witness and expert testimonies in and preceding Fourtin is L.K.'s significant dependence on others in her day-to-day life, including on Fourtin himself. (421) As disabled persons living in a world compulsorily captivated by and structurally designed for the able-bodied, (422) L.K. and similarly-situated adults are often "radically dependent" on the assistance of those around them in order to complete tasks necessary for both survival and flourishing. (423) This dependence places severely disabled persons at substantially higher risk of victimization, sexual and otherwise. Research suggests that women with disabilities are approximately four times more likely than women without disabilities to experience sexual assault. (424) For persons with intellectual disabilities (ranging from mild to severe), risk of victimization may be even greater, approximately ten times higher than for persons without intellectual disabilities. (425) Comparative rates of lifetime risk of sexual assault do not capture the heightened risk of repeated victimization: in one study of persons with diverse disabilities who had experienced sexual assault, nearly half (49.6%) had experienced ten or more sexually abusive incidents in their lifetimes. (426)

    Especially instructive are the rates at which disabled people are sexually assaulted within the context of relationships of intimacy and dependence. Dick Sobsey and Tanis Doe found that 37.5% of perpetrators held supervisory positions over their victims, contracted on the basis of the victims' disability. (427) Another 28.8% of perpetrators had other supervisory positions over the victims. (428) Evidence also suggests that factors associated with increased...

To continue reading