Capacity

Last year I noted D Borough Council v AB (Rev 1) [2011] EWHC 101 (COP), in which a UK High Court judge acting as the Court of Protection under the Mental Capacity Act 2005 banned a man with a "moderate learning disability" from having sex.

"'All His Sexless Patients': Persons with Mental Disabilities and the Competence to Have Sex" (NYLS Legal Studies Research Paper No. 11/12 #26) by Michael Perlin comments that

Few questions of competency are as befuddling or as controversial as the question of a person’s competency to consent to sexual relations. Any consideration of this question necessarily implicates issues of law and clinical assessment, and analyses of this question are usually conflated with discussions of politics, social mores, and “morality.” This inquiry is further complicated by the fact that there is no unitary definition of “competence” in the law in general.

To seek to formulate even a tentative answer to this question, it is necessary to examine overlapping areas of civil and criminal law, including:

• definitions of “statutory rape,” including the use of dyadic “blanket” statutory categories of exclusion based on age, and the use of indeterminate (both statutory and caselaw-derived) categories of exclusion based on mental status

• the right of persons with mental disability to engage in consensual sexual relations in outpatient facilities, halfway houses, group homes, civil hospitals, forensic facilities, and

• the resolution of liability issues arising from tort suits alleging incompetence to consent (most frequently arising in cases in which the plaintiff alleges that an inebriated state robbed him or her of the power to consent).

Case examples illustrate critical issues involved in determining competency to consent to sexual relations in individuals involved in both criminal and civil matters including those diagnosed with intellectual disabilities. Specific emphasis is placed on utilizing assessment strategies that correctly identify cognitive, neuropsychological and psychiatric disorders that could influence competency.

This presentation considers these questions, seeks to identify the factors that must be considered in determining “sexual competence,” learns why this is such an underdiscussed area of discourse in the legal and behavioral communities, and assesses whether it is good law, mental health and/or policy to attempt to craft a unitary standard in this area of social behavior.