'All His Sexless Patients': Persons with Mental Disabilities and the Competence to Have Sex' by Michael L. Perlin and Alison J. Lynch comments
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 institutionalised - 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.Perlin's ''Striking for the Guardians and Protectors of the Mind': The Convention on the Rights of Persons with Mental Disabilities and the Future of Guardianship Law' by Michael Perlin in (2013) Penn State Law Review is noted here.