One of the most controversial policy questions in all of institutional mental disability law is the extent to which patients in psychiatric hospitals have a right to voluntary sexual interaction. The resolution of this matter involves the resolution of difficult and sensitive questions of law, social policy, clinical judgment, politics, religion, and family structures.
As difficult as these questions are in cases involving civil hospitals, the difficulties are exacerbated when the topic is the application of the right in forensic hospitals. Such facilities typically house individuals involved in the criminal justice system (either those who may be incompetent to stand trial, those who have been found to be incompetent to stand trial, those who have been found not guilty by reason of insanity, or, in some cases, those convicted of crimes). These statuses raise public concerns about the populations in question, the extent to which they are entitled to exercise civil rights while institutionalized, and the potential additional danger that might be associated with the granting of sexual freedom to this population. A different set of difficulties are present when we consider the application of this right in hospitals (whether civil or forensic) in Asia, where the notion of "patients rights" regrettably lags far behind the construction of such rights in Western nations.
It is impossible to meaningfully come to grips with the multiple issues presented in this paper without also coming to grips with the social attitude of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. Sanism infects both our jurisprudence and our lawyering practices; it islargely invisible and largely socially acceptable, is based predominantly upon stereotype, myth, superstition, and deindividualization. It is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.
In this paper, I will (1) discuss the state of the law that applies to sexual autonomy in psychiatric institutions, (2) review the social policy issues as they relate to (a) forensic patients, (b) Asia, (3) explain the pernicious impact of sanism, and (4) seek to offer some tentative solutions to the underlying dilemmas.
Washington Law Review, Vol. 83, Issue 4 (November 2008), pp. 481-512