Sexuality and Incapacity

Abstract

Sexual incapacity doctrines are perhaps the most important form of sexual regulation, as they control access to sex by designating who is legally capable of sexual consent. Most states have adopted sexual incapacity tests for adults that focus narrowly on assessing an individual’s cognitive abilities. These tests serve an important protective function for people with temporary cognitive impairments, such as those rendered incapable due to alcohol or drugs. However, this comes at the cost of barring many people with persistent cognitive impairments, such as Down Syndrome or Alzheimer’s Disease, from any sexual activity. This is despite the fact that said individuals often still have sexual desires and are able to engage in sexual decision-making with support from caregiving networks. The central claim of this Article is that sexual incapacity doctrine should grant legal capacity to adults with persistent cognitive impairments if they are embedded in an adequate decision-making support network. In other words, the right to sexual expression should not be withheld due to cognitive impairment alone. To justify this claim, the Article provides a theory of sexual incapacity doctrine that is grounded in the practice of supported decision-making and the normative foundations of sexual capability and relational autonomy. The Article then sets forth a novel test for sexual consent capacity: cognition-plus. This test focuses on gauging the capacity for volition, assessing the mental capacity of the individual to understand the nature and consequences of the sexual decision, and evaluating the adequacy of the decision-making support system using principles of fiduciary law. The Article concludes by applying the cognition-plus test to the case of older adults with dementia, a group of increasing importance with the aging of the population.

Keywords: aging, capability, capacity, consent, decision-making, dementia, disability, incapacity, rape, sex, sexuality, supported decision-making