"all His Sexless Patients": Persons With Mental Disabilities and the Competence to Have Sex

• Publication year: 2021

"ALL HIS SEXLESS PATIENTS": PERSONS WITH MENTAL DISABILITIES AND THE COMPETENCE TO HAVE SEX

Michael L. Perlin(fn*) & Alison J. Lynch(fn**)

INTRODUCTION ................................................................................ 258

I. COMPETENCE TO HAVE SEX ................................................ 263

A. Factors to Consider in Assessing Competence to Have Sex ...................................................................................... 263

B. Defining "Sex" ................................................................... 265

1. Variations ..................................................................... 266

a. Masturbation .......................................................... 267

b. Availability of Contraception ................................. 268

c. Gender Issues ......................................................... 269

d. How This All Relates to Competency .................... 270

II. JURISPRUDENTIAL INQUIRIES ............................................. 271

A. Introduction ........................................................................ 271

1. Sanism .......................................................................... 272

2. International Human Rights .......................................... 273

3. Therapeutic Jurisprudence ............................................ 277

III. MARRIAGE ................................................................................. 279

A. Mental Capacity to Marry .................................................. 281

B. Context and Standing ......................................................... 282

1. Spouse Seeks Annulment ............................................. 283

2. Guardian or Family Member Seeks Annulment During Spouses' Lifetime ............................................. 284

3. Guardian or Family Member Seeks Annulment After Death of a Spouse ......................................................... 286

4. "Heartbalm Actions" .................................................... 287

IV. STERILIZATION ........................................................................ 288

A. Buck v. Bell ......................................................................... 288

B. Misapplication of "Best Interests" Standard ...................... 289

V. STATUTORY RAPE ................................................................... 292

A. Statutory Law ..................................................................... 292

B. The Case Law ..................................................................... 293

VI. OTHER APPROACHES: THE AMERICANS WITH DISABILITIES ACT ................................................................... 297

CONCLUSION .................................................................................... 299

INTRODUCTION

An article published in early 2014 in a peer-reviewed scientific journal began with a startling comment: "The recognition that individuals with disabilities have a desire for sexual relationships with other people is a relatively new concept in the scientific community."(fn1) We believe that this observation-wildly at odds with much of the literature referred to in this Article and in another paper by the two authors(fn2)-exemplifies the discussion in our previous paper about the confusion and misinformation that permeates all of disability law and policy, especially mental disability law. The baseline, rather, for any scholarly inquiry into this subject, must be that "[i]ndividuals [with disabilities] have the same needs for intimate relationships and sexual expression as everyone else."(fn3)

With the growth in the field of mental disability law over the past forty years, very few topics involving persons with mental illness remain taboo or off limits to scholars and judges who face these issues daily.(fn4) However, discussions of the question of whether persons with mentaldisabilities have a right to voluntary sexual interaction often touches araw nerve in conversations about mental disability law-even with thosewho are practicing in the field. The discomfort that people feel inexamining this topic is further exacerbated when discussing individualswho are institutionalized. Why is this? And what does this have to dowith "sanism"-an irrational prejudice of the same quality and characteras other irrational prejudices that cause, and are reflected in, prevailingsocial attitudes such as racism, sexism, homophobia, and ethnic bigotry(fn5) that permeates all aspects of mental disability law and affects allparticipants in the mental disability law system: litigants, fact finders, counsel, and expert and lay witnesses?(fn6) Consider this explanation as tohow audience members responded to standard talks on this topic: If as I saw it, sanist myths, based on stereotypes, are the result ofrigid categorization and overgeneralization, then they functionpsychologically to "localize our anxiety, to prove to ourselvesthat what we fear does not lie within."(fn7)

We thus labeled individuals with mental illness as "deviant, morally weak, sexually uncontrollable [and] emotionally unstable."(fn8) And often, we (especially professionals) regard them as not being human at all, and lacking human qualities including needs for affection and dignified ways of expressing affection. Our attitudes toward the sexuality of persons with mental disabilities reflect this labeling:Society tends to infantilize the sexual urges, desires, and needs of the mentally disabled. Alternatively, they are regarded as possessing an animalistic hypersexuality, which warrants the imposition of special protections and limitations on their sexual behavior to stop them from acting on these "primitive" urges. By focusing on alleged "differentness," we deny their basic humanity and their shared physical, emotional, and spiritual needs. By asserting that theirs is a primitive morality, we allow ourselves to censor their feelings and their actions. By denying their ability to show love and affection, we justify this disparate treatment.(fn9)

All these tensions are heightened in cases involving institutionalized persons, in which consumer desires and provider discomforts must be acknowledged and recalibrated.(fn10) They must also be considered carefully in the context of Professor Suzanne Doyle's observation that sex is an "indeterminate and artificial" category defined "by people who want to preserve their own political and social advantages."(fn11)

It is also telling as to how uncomfortable this topic makes many people when we consider the responses of audience members to frank discussions about these issues (at a talk in Florida, one attendee leapt to his feet to exclaim, "Professor Perlin, you are an agent of the devil!");(fn12) negative responses could be broken down into these categories:

1. Anger;

2. Denial;

3. Projection;

4. Transference;

5. Fear;

6. Religiosity.(fn13)

Audience responses-whether the audiences were composed of lawyers, physicians, mental health professionals, advocates, family members or lay persons-have been similar in other nations, both common law (the United Kingdom) and civil law (Japan).(fn14) Again, these attitudes deny the empirical realities to which we have referred.(fn15)

Although this often appears to be a difficult subject to raise, even among those familiar and comfortable with other aspects of mental disability, it is one that must be raised. Dignity concerns and rights violations will occur if there is not a full understanding of the importance of the ability for persons with mental illness to practice free sexual expression. There has been some literature that begins to discuss this and to delve into the intricacies of the subject. However, we believe that much of this literature presumes that the "subjects" of these papers-those with mental illness who are institutionalized-are incompetent. The discussions therefore only address ability to engage in sexual activities from the perspective of an incompetent, institutionalized adult. We hope to broaden the scope of these examinations, and rather than presume incompetency, deal directly with the very likely situation of a competent, mentally ill person wishing to engage in sexual activity. We hope to examine legal competency, as well as the difficulties encountered when one begins to use different measures of "competency" for different tasks or activities. We will also explore the attitudes that surround this type of discourse, and their impact on advancing the rights of persons with mental illness.

In this Article, we consider these attitudes while seeking to answer the following questions:

* In this area of law and policy, is there any unitary definition of competence?

* Are there certain factors that must be considered in determining "sexual competence"?

* How does domestic law and policy relate to issues of sexual competence, and does it impact how we should approach these issues?

* What are the international human rights law and therapeutic jurisprudence implications of the answers to these questions?

In Part I, we will discuss competence to engage in sexual activity in matters involving persons with mental disabilities, looking also at the question of what we mean when we refer to "sex." We then consider in Part II the significance of sanism, the potential...