One of the most controversial social policy issues that remains dramatically underdiscussed in scholarly literature is the sexual autonomy of persons with psychosocial and intellectual disabilities, especially those who are institutionalized. This population – always marginalized and stigmatized – has traditionally faced a double set of conflicting prejudices: on one hand, people with disabilities are infantilized (as not being capable of having the same range of sexual desires, needs and expectations as persons without disabilities), and on the other, this population is demonized (as being hypersexual, unable to control base or primitive urges). Although attitudes about the abilities and capabilities of persons with disabilities are changing for the better, it remains true that, “many people still struggle to accept that mentally disabled individuals engage in sexual activity.” Even as the “sexual revolution” in the United States recognized sex and sexuality were needs rather than simply desires, persons with disabilities were left out of this shift in perception. Attitudes toward persons with disabilities engaging in sexual behavior have remained firmly in place for centuries; perhaps the most famous characterization remains Justice Oliver Wendell Holmes’s line in Buck v. Bell, a case involving sterilization of a woman allegedly intellectually disabled: “Three generations of imbeciles are enough.” People with disabilities, simply put, are frequently stripped of their sexuality.
The ratification of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD) demands we reconsider this issue. In light of Convention Articles mandating, inter alia, "respect forinherent dignity," the elimination of discrimination in all matters related to interpersonal relationships, and services in the area of sexual and reproductive health, it is time for a radical change of perspective and attitude in how society views the sexuality, and right to express that sexuality, of persons with disabilities. Society as a whole must, as international law already has, recognize that being deemed a ‘person’ or ‘sexual’ is not contingent upon ability. Yet, the literature surrounding the sexual autonomy and issues of sexuality people with disabilities continue to confront remains remarkably silent on this issue in general, and totally silent about the issue we discuss in this paper: the CRPD’s impact on the rights to sexual autonomy for persons institutionalized because of psychosocial or intellectual disability.
This paper will (1) briefly review the history of how significant legal and social issues regarding sexuality have been ignored and trivialized by legislators, policy makers and the general public, (2) highlight those sections of the CRPD that force us to reconsider the scope of this issue, (3) offer some suggestions as to how ratifying and signatory states must change domestic policy so as to comport with CRPD mandates, and (4) consider the implications of therapeutic jurisprudence insights for the resolution of these issues.
1 Can. J. Comp. & Contemp. L. 9 (2015)