Abstract

http://ssrn.com/abstract=1908733
 
 

Footnotes (160)



 


 



'All His Sexless Patients': Persons with Mental Disabilities and the Competence to Have Sex


Michael L. Perlin


New York Law School

April 12, 2011

NYLS Legal Studies Research Paper No. 11/12 #26

Abstract:     
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

o the use of dyadic “blanket” statutory categories of exclusion based on age,

o 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:

o outpatient facilities,

o halfway houses,

o group homes

o civil hospitals,

o 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.

Number of Pages in PDF File: 56

Keywords: mental disability law, criminal law, criminal procedure, law and sexuality, institutional rights, competence

working papers series





Download This Paper

Date posted: August 12, 2011  

Suggested Citation

Perlin, Michael L., 'All His Sexless Patients': Persons with Mental Disabilities and the Competence to Have Sex (April 12, 2011). NYLS Legal Studies Research Paper No. 11/12 #26. Available at SSRN: http://ssrn.com/abstract=1908733 or http://dx.doi.org/10.2139/ssrn.1908733

Contact Information

Michael L. Perlin (Contact Author)
New York Law School ( email )
185 West Broadway
New York, NY 10013
United States
212-431-2183 (Phone)
HOME PAGE: http://www.nyls.edu/bios/perlin.html
Feedback to SSRN


Paper statistics
Abstract Views: 638
Downloads: 111
Download Rank: 116,234
Footnotes:  160

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.344 seconds