With the growth in the field of mental disability law over the past 50 years, very few topics involving persons with mental illness remain taboo or off limits to scholars and judges who face these issues daily. However, discussions of the question of whether persons with mental disabilities have a right to voluntary sexual interaction often touches a raw nerve in conversations about mental disability law, even with those who are practicing in the field, and the discomfort people feel in examining this topic is exacerbated when discussing individuals who are institutionalized.
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 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 examine legal competency, as well as the difficulties encountered when one begins to use different measures of "competency" for different tasks or activities. We explore of the attitudes that surround this type of discourse, and their impact on advancing the rights of persons with mental illness.
In this paper, 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? and
* what are the international human rights law and therapeutic jurisprudence implications of the answers to these questions.
First, we 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 the significance of sanism, the potential implications of international human rights law, and the meaning of therapeutic jurisprudence to this inquiry. Then, we discuss issues of competency in the context of marriage and briefly in the context of sterilization. Next, we look at competency in the context of criminal law, focusing mostly on the ways that "statutory rape" is defined in cases involving putatively-consensual sex involving persons with mental disabilities. After that, we examine the maturation of the Americans with Disabilities Act as a litigational tool. We then conclude with a few thoughts and recommendations.
89 Wash. L. Rev. 257 (2014)